Court of Criminal Appeals of Tennessee, Nashville
Session January 21, 2015
Appeal from the Circuit Court for Blount County No. C-21408 Tammy Harrington, Judge
W. Tyler Weiss, Madisonville, Tennessee, for the appellant, Jeffrey Lee Martin.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Mike Flynn, District Attorney General; and Matthew L. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
The defendant's conviction relates to his driving from his home in Madisonville to Maryville to purchase a product containing pseudoephedrine, ostensibly to then sell the product to a manufacturer of methamphetamine.
At trial, Blount County Sheriff's Department Lieutenant and Fifth Judicial District Drug Task Force Assistant Director Robert Nease,  who was certified as an expert in narcotics investigations, testified that "[s]murfing is when individuals go out to the community and buy components or precursors needed to manufacture methamphetamine. And . . . pseudoephedrine is that main component . . . needed to manufacture methamphetamine." He said that, in his experience, one mark of "smurfing" is the traveling of an individual over "a long distance to purchase pseudoephedrine because they are either known where they live as someone involved in that activity or because of past reasons" their attempted purchase will be refused. Many times, he said, these individuals will arrive as a group and stagger their purchases and that the favorite locations of "smurfers" were Target and Kroger pharmacies. He said that a box of pseudoephedrine purchased for between $5 and $12 could be sold on the street for "anywhere from $50 to $80 a box." He explained that with advances in "cooking" methods, methamphetamine could be manufactured from pseudoephedrine at a one-to-one ratio, meaning that one gram of pseudoephedrine could yield one gram of methamphetamine. Methamphetamine typically sold for $100 per gram.
Lieutenant Nease said that on October 29, 2012, he received a call from the Target Pharmacy asking for officers to respond. When he arrived, he joined others who had assembled a surveillance team, and he "listened to the surveillance team on the radio." He then saw the defendant leave the Target in a maroon Toyota. After leaving the Target store, the vehicle made its way to the Kroger, where Lieutenant Nease was waiting inside. Inside the store, Lieutenant Nease observed Mitchell McKenzie purchase a box of cold medication that contained pseudoephedrine. At that point, Lieutenant Nease advised the other members of the surveillance team that the purchase had been made. When he exited the store, he saw other officers detaining the occupants of the maroon Toyota, including the defendant and Mr. McKenzie. Officers confiscated three boxes of medication containing pseudoephedrine. One box of Up and Up brand medication purchased from Target at 1:22 p.m. contained 2.4 grams of pseudoephedrine. A box of Aleve brand medication was purchased at Target at 1:31 p.m., and a box of Kroger brand medication was purchased at 1:59 p.m. Cough drops were also purchased at the Kroger and the Target, and Lieutenant Nease explained that the purpose of those purchases was to give the appearance that the medications were being purchased for legitimate reasons.
Lieutenant Nease opined, based upon his training and expertise, that the three individuals made the three purchases separated by time and/or distance because they were not going to be used for a legitimate purpose. Otherwise, he said, the three individuals could have purchased the medication at the same time and location. "It was, " he said, "an apparent attempt to throw suspicion off themselves to stagger both going in the Target." They also did not go to the Kroger store next door to the Target but to one "across town."
Mitchell McKenzie testified that both he and the defendant lived in Madisonville and that the third individual was also from Monroe County. He said that he had been charged with a criminal offense for purchasing pseudoephedrine on October 29, 2012, and that, in consideration for his testimony at the defendant's trial, the State had agreed to some leniency on that charge. On October 29, 2012, Mr. McKenzie and the defendant discussed driving "to Maryville to purchase pseudoephedrine to take back to Monroe County to sell" to a person "to manufacture meth." He said that they decided to drive to Maryville because "you can't buy it in Madisonville." The defendant provided the money to make the initial purchase, and Mr. McKenzie was to be paid $40 for his "trouble."
Mr. McKenzie was detained immediately after exiting the Kroger, and he provided the following statement to the police: "I, Mitchell McKenzie came to Blount County to purchase pseudoephedrine to take back to Monroe County to sell to an individual for the sole purpose of cooking meth. I was to receive $40 for my trouble."
Alcoa Police Department and Fifth Judicial District Drug Task Force Officer Brett Hayden Romer, who acted as the case agent in this case, also observed the defendant and a third individual exit the same vehicle at different times to go into the Target to make a purchase. After officers followed the vehicle to Kroger, a decision was made to approach the individuals in the parking lot of the Kroger. Officers discovered three separate boxes of medication containing pseudoephedrine during a subsequent search.
The State rested, and after a full Momon colloquy, the defendant elected not to testify and chose to present no proof. The jury convicted the defendant as charged of one count ...