Court of Criminal Appeals of Tennessee, Knoxville
Session Date: January 21, 2015
Appeal from the Criminal Court for Sullivan County No. S55, 024 R. Jerry Beck, Judge
Gene G. Scott, Jr. (motion for new trial & on appeal), Jonesborough, Tennessee, and Richard A. Spivey (at trial), Kingsport, Tennessee, for the appellant, Billy Ray Allen.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Barry P. Staubus, District Attorney General; and James F. Goodwin and Adam Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
This case relates to the seizure of twenty-six grams or more of crack cocaine during the search of an apartment. At the trial, Kingsport Police Corporal Timothy Horne testified that on March 21, 2007, at 11:00 p.m., he received information that led him, Sergeant Crawford, Detective Summey, and Detective Ferguson to respond to Aspen Ridge Apartments. All of the officers traveled together in an unmarked vehicle and wore civilian clothes and gear identifying them as police officers. As Sergeant Crawford drove into the apartment complex, Corporal Horne saw a person whom he later identified as Russell Malone, who froze when Corporal Horne made eye contact with him. Corporal Horne said Mr. Malone turned, stared at the officers and then at the ground, turned, and walked between two apartment buildings. Corporal Horne temporarily lost sight of Mr. Malone as the officers continued to drive through the complex. Detectives Summey and Ferguson got out of the vehicle, and Corporal Horne and Sergeant Crawford drove to the lower level of the complex to look for Mr. Malone.
Corporal Horne testified that he and Sergeant Crawford found Mr. Malone standing at the corner of building A, adjacent to apartment A4. Detectives Summey and Ferguson arrived shortly thereafter. As the officers talked to Mr. Malone, Lakisha Johnson arrived in a Ford Taurus, got out of her car, and walked to where the officers and Mr. Malone were talking. They were less than 30' from the front door of apartment A4. The officers learned that Ms. Johnson was staying in apartment A4, and they asked permission to search it. Corporal Horne said that Ms. Johnson consented to a search, that she had keys to the apartment, and that Mr. Malone did not have keys. He said that the Defendant was inside the apartment lying on a bed when everyone entered for the search. Corporal Horne did not see anyone enter or leave the apartment while they were talking outside. He also did not see any lights or hear any noises coming from inside the apartment.
Corporal Horne testified that when he first saw the Defendant, the bed was made, a cell phone was beside the Defendant, and the Defendant did not appear to have been sleeping. The Defendant told Corporal Horne that he lived in apartment K1, which was about 100' from apartment A4. Corporal Horne said that during their conversation, the Defendant suggested the police search apartment K1 and that the officers requested and obtained the Defendant's consent before a search of apartment K1 was conducted. When the police searched apartment K1, they found $405 in cash in a sweatshirt hood inside a closet. Corporal Horne said apartment K1 was fully furnished.
Corporal Horne testified that the Defendant said he was from Arkansas and had lived in Kingsport for about one year. When the Defendant was asked why he was inside apartment A4, he said that he had helped Ms. Johnson move into the apartment earlier that day. The Defendant said he was a truck driver and had driven to Kingsport from Arkansas for work before helping Ms. Johnson move. The Defendant said he was lying on the bed because he was tired from the drive and from unloading Ms. Johnson's belongings. The Defendant did not tell Corporal Horne how long he had worked as a truck driver but said he usually drove for one week and returned home for one week. Corporal Horne did not see an eighteen-wheel truck parked at the apartment complex.
Corporal Horne testified that during the search of apartment A4, Detective Summey found a sock containing crack cocaine inside the toilet tank. The Defendant, Mr. Malone, and Ms. Johnson were arrested.
Corporal Horne testified that on March 21, 2007, he had worked in the vice and narcotics unit for three years and that he learned a common way to package cocaine possessed for sale or delivery was to break down a large rock of crack cocaine into smaller sizes, ranging from one-half gram to an "eight ball." He said one gram of cocaine sold for about $100, depending upon demand and the purity level. He said 28.35 grams was equivalent to one ounce.
On cross-examination, Corporal Horne testified that Sergeant Crawford knocked on the door of apartment A4 before everyone entered. He agreed the Defendant wanted the officers to search his apartment. When asked what he meant by his testimony that the $405 was hidden, he said the money was not accessible, "[n]ot in a bank, " and "not somewhere you could run and access it." He agreed no drugs were found on the Defendant and said the Defendant's hands were not wet when he was handcuffed.
On redirect examination, Corporal Horne testified that he did not know how long the Defendant had been inside apartment A4. The officers, Mr. Malone, and Ms. Johnson talked outside the apartment for about ten to fifteen minutes before they entered for the search. Corporal Horne did not know what the Defendant did during that time. On recross-examination, he stated that the front door was the apartment's only exterior door.
Lakisha Johnson testified that she knew Mr. Malone through Kevin Allen, her former boyfriend and the Defendant's brother. She met the Defendant in 2005 or 2006, but she did not know him well. She said that around March 21, 2007, the Defendant and his brother traveled to Arkansas to visit their mother. Although she denied living with the Defendant after her relationship with the Defendant's ...