Assigned on Briefs January 6, 2014
Appeal from the Criminal Court for Davidson County No. 2012-D-2937 Cheryl A. Blackburn, Judge
Sunny M. Eaton, Nashville, Tennessee, for the Defendant-Appellant, William Scott Ross.
Robert E. Cooper, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Victor S. Johnson, III, District Attorney General; and John Zimmerman, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
CAMILLE R. MCMULLEN, JUDGE
On October 23, 2012, the Davidson County Grand Jury returned a sixty-one-count indictment against twenty-seven individuals, including the Defendant-Appellant, William Scott Ross. Specifically, the Defendant was charged in count 1 with conspiracy to sell 300 pounds or more of marijuana within 1, 000 feet of a drug-free zone. He was also charged in count 32 with official misconduct for allegedly informing co-defendant Joseph Todd Travierso of an ongoing wiretap investigation involving Mark Christopher Gerald, another co-defendant.
Subsequently, the Defendant pled guilty to the lesser offense of facilitation of a conspiracy to sell over seventy pounds of marijuana, a Class C felony, and to official misconduct as charged, a Class E felony. Pursuant to the plea agreement, the matter proceeded to a sentencing hearing on February 7, 2014 for the trial court to determine whether the Defendant should be granted judicial diversion.
At the hearing, the State entered the Defendant's presentence report into evidence without objection. According to the report, the forty-five-year-old Defendant had no prior criminal record and reported having "good" mental and physical health and a "very good" family relationship. The report further reflected that the Defendant reportedly began drinking alcohol when he was sixteen, that he began smoking marijuana when he was eighteen, and that he would smoke about two or three times a month until he quit. The State also called two witnesses.
Judge Casey Moreland of the Davidson County General Sessions Court testified that he supervised the Drug Court program and that the Defendant was the administrator. He explained that Drug Court provided eligible defendants with substance abuse treatment in lieu of incarceration. The Defendant's duties included overseeing the day-to-day operations of the program, screening potential participants, and occasionally acting as a case manager. Judge Moreland agreed that the position was funded by the Metro Nashville government and estimated that the Defendant was employed in this capacity for about ten years. He had first hired the Defendant to work for him as a probation officer and then promoted the Defendant to Drug Court administrator because of his competence and professionalism.
Judge Moreland said that in August 2012, the District Attorney's Office informed him that the Defendant had resigned. He was previously unaware of any misconduct on the Defendant's part and had never suspected the Defendant of using drugs. He agreed that the matter was secretly handled to insulate the Drug Court and that no one at the courthouse knew the reason for the Defendant's resignation.
On cross-examination, Judge Moreland testified that a few months after the Defendant's abrupt departure, each of the eleven Drug Court graduates thanked the Defendant for helping them. He agreed that the Defendant was respected by his colleagues and that the position was stressful due to its emotional nature. Judge Moreland said that the Defendant interacted with participants, their family members, and attorneys. To his knowledge, the Defendant's charges were unrelated to the position or to any Drug Court participants. He stated that the Defendant had been effective and "absolutely" able to do his job. In response to questioning from the trial court, Judge Moreland stated that he believed the Defendant learned of the wiretap investigation from testimony presented in open court.
Sergeant Brink Fidler of the Metropolitan Nashville Police Department ("MNPD") testified that he was the sergeant in charge of the 20th Judicial District Drug Task Force and that he participated in the instant investigation. He confirmed that the Defendant was present in General Sessions Court during a hearing in a separate case involving co-defendant Mark Gerald. At the proceeding, Detective Justin Fox testified that Gerald had been the subject of a prior wiretap investigation. Sergeant Fidler stated that, after the hearing, the Defendant learned from a hallway conversation with Detective Fox that Gerald was involved in the instant case. According to Sergeant Fidler, Detective Fox made "an offhand comment" to the Defendant stating, "[W]ell, yeah, we got [Gerald] jammed up in another one." He said that all the Drug Task Force members were aware that the Defendant was a court official.
Sergeant Fidler stated that, at the time, there was an active wiretap investigation of Gerald and other co-defendants, including Joseph Travierso and James Roberts. Because the Drug Task Force was intercepting Travierso's phone calls, Sergeant Fidler learned that the Defendant called Travierso after the hearing and asked to see him. Based on surveillance of Travierso's residence, officers observed the Defendant enter the home for a short time and then leave. Sergeant Fidler said that the Defendant had been to Travierso's house before as a narcotics customer, specifically for marijuana and cocaine. He stated that the Defendant was never charged for his personal drug use.
During this particular visit, officers intercepted a call between Travierso and Roberts shortly after the Defendant had left. Travierso told Roberts, the primary defendant in the case, that his contact had just left the house, that there was currently a wiretap of Gerald's phone, and that they needed to be cautious. During the call, Travierso and Roberts had discussed their options in detail, including killing the prosecutor in the case. As a result, Roberts got rid of his phone shortly before MNPD had planned on taking him into custody. Sergeant Fidler stated that Roberts was in Arizona at the time trying to obtain more marijuana, and the Drug Task Force had to "scramble" with the Phoenix authorities to locate and track Roberts. Sergeant Fidler said that after Roberts "dropped" his phone, MNPD could ...