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State v. Pennock

Court of Criminal Appeals of Tennessee, Jackson

March 19, 2015

STATE OF TENNESSEE,
v.
JAMES PENNOCK

Session January 6, 2015.

Appeal from the Circuit Court for Dyer County No. 12-CR-328 R. Lee Moore, Jr., Judge.

The Defendant-Appellant, James Pennock, was convicted by a Dyer County jury of three counts of sale of a Schedule II controlled substance. On appeal, the Defendant argues that (1) the evidence is insufficient to establish the Defendant's identity as the person who committed the offenses; (2) the trial court erred in instructing the jury regarding eyewitness identification testimony; and (3) the trial court erred in allowing the co-defendant, Nora Gibson, to testify without proper notice provided to the Defendant.[1]Upon our review, we affirm the judgments of the trial court.

William T. Edwards, Dyersburg, Tennessee, for the Defendant-Appellant, James Pennock.

Robert E. Cooper, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Phillip Bivens, District Attorney General; and Karen Burns, Assistant District Attorney General, for the Appellee, State of Tennessee.

CAMILLE R. MCMULLEN, delivered the opinion of the court, in which ALAN E. GLENN and ROGER A. PAGE, JJ., joined.

OPINION

CAMILLE R. MCMULLEN, JUDGE.

State's Proof.

In December 2011, Sergeant Michael Leggert of the Dyersburg Police Department narcotics unit used a confidential informant, Paul "Sonny" Barch, to facilitate three undercover drug buys from the Defendant. Sergeant Leggert testified that he had worked with Barch as a confidential informant in approximately 170 cases, and Barch had proven reliable.

On December 13, 2011, Barch called the Defendant and asked if he had any methodone to sell. Barch had known the Defendant for eight to ten years and had sold drugs to him before. Sergeant Leggett monitored and recorded the phone call, which was introduced into evidence and played for the jury. The Defendant informed Barch that he had methadone to sell, and the two arranged to meet at a local Dollar General Store. Before the arranged meeting time, Investigator Chris Gorman of the Dyer County Sheriff's Office searched Barch and his vehicle to ensure that he did not have any drugs, money, or weapons in his possession. The officers provided Barch with recorded buy money to purchase the drugs and equipped him with audio and video recording devices to monitor and record the sale. The officers also followed Barch and videotaped the transaction from their vehicle a short distance away.[2] At the Dollar General Store, Barch was met by the Defendant's mother, Nora Gibson, rather than the Defendant. She delivered 15 methadone pills, and he gave her $80. After the transaction, Barch met the officers at their arranged meeting location and gave Sergeant Leggett the pills. Sergeant Leggett sealed the pills in an evidence bag, and Investigator Gorman searched Barch's person and vehicle again and did not find any other drugs.

On December 15 and December 22, 2011, Barch called the Defendant again to make two more undercover drug buys. On both occasions, Sergeant Leggett monitored and recorded the phone calls made to the Defendant. The Defendant and Barch arranged to meet at the Defendant's house for both sales. Prior to the meetings, Dyersburg Police Officer Chris Clement searched Barch and his vehicle and equipped him with audio and video recording devices. Sergeant Legget and Officer Clement monitored the sales from about a block away from the Defendant's home. On December 15, the Defendant sold Barch 15 methadone pills for $75, and on December 22, the Defendant sold Barch 15 methdadone pills for $120. After the transactions, Barch met the officers and gave Sergeant Leggett the methadone pills he purchased from the Defendant. Sergeant Leggett sealed the pills in an evidence bag, and Officer Clement searched Barch and his vehicle and did not find any other drugs or money.

Sergeant Leggett acknowledged that Barch had a prior criminal record and a history of drug abuse. He testified that Barch did not have any pending criminal charges when he worked as a confidential informant, and Barch was paid by the police department for his undercover work. Likewise, Barch testified that he had been convicted of selling drugs in the past and had used drugs for many years. He stated that he had been "clean" for over a year, and he decided to work as a confidential informant because he "wanted to make changes in [himself]." He testified that he did not have any pending charges in December 2011 and all of his prior drug charges occurred before he began working as a confidential informant.

Special Agent Brock Sain, a forensic scientist for the Tennessee Bureau of Investigation, was qualified as an expert in drug identification. He analyzed the pills purchased from the Defendant in this case and determined the pills to be methadone, a Schedule II drug.

Nora Gibson, the Defendant's mother and the co-defendant in this case, testified on behalf of the State over the objection of the Defendant. In December 2011, the Defendant lived with her in her home. She testified that on December 13, 2011, the Defendant asked her to deliver methadone pills to Sonny Barch, and she did so. Barch gave her $80 for the pills, and she kept part of the money and gave the remainder to the ...


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