Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 13, 2015
Appeal from the Criminal Court for Sumner County Nos. CR771-2013, CR500-2014 Dee David Gay, Judge
David A. Doyle, Assistant District Public Defender, for the appellant, Timothy Lewayne Morton.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sidney Preston, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
On August 13, 2014, the defendant, originally charged in case CR771-2013 with one count of repetitive telephone harrassment and one count of bribing a witness, pleaded guilty to one count of repetitve telephone harassment and one count of solicitation to bribe a witness. In addition, in case CR500-2014, the defendant pleaded guilty as charged to one count each of disorderly conduct and public intoxication. The trial court ordered all four sentences to be served concurrently and imposed an effective two-year sentence to be served on supervised probation.
On August 19, 2014, the defendant's probation officer, Brian Stanley, filed a probation violation report alleging that the defendant had violated the terms of his probation by arriving for his initial appointment while intoxicated, resulting in his arrest for public intoxication. On September 12, the defendant's probation supervisor, Scott Little, filed an amended probation violation report alleging that the defendant had called the probation offices from the Sumner County jail and threatened Mr. Little and his staff.
At the September 12, 2014 revocation hearing, Mr. Little testified that, when the defendant reported to the probation offices on the morning of August 19, "he stumbled through the office" and had "a heavy odor of alcohol about him." Mr. Little inquired whether the defendant had been drinking, and the defendant responded that "he had been drinking the night before and that that was his right as a citizen to be able to drink." The defendant also admitted that he had smoked marijuana. The defendant became "extremely loud and disruptive" and was "verbally abusive" to other probation officers. Mr. Little repeatedly asked the defendant to calm down, at which point the defendant turned his verbal abuse on Mr. Little.
Mr. Little instructed Officer Stanley to take the defendant to the drug screening room to administer a drug screen for marijuana usage, and Mr. Little then contacted the Gallatin Police Department ("GPD"). GPD officers arrived shortly thereafter, and the defendant was arrested and charged with public intoxication. The defendant pleaded guilty to public intoxication on September 3.
Later that same day, the defendant called Mr. Little from jail, and in a 15-minute, profanity-laced tirade, the defendant "was extremely abusive and threatening, " made multiple "racist" comments, and threatened to "physically assault or kill the staff." An audio recording of the telephone call was admitted into evidence.
The defendant testified that the recent events in Ferguson, Missouri involving "the boy getting shot in the abdomen and twice in the head" were the impetus for his outburst at the probation office and his subsequent profane and threatening telephone call. The defendant explained that the Ferguson events had really upset him and that he had "some rage" and "some hard feelings about white folks at the time." The defendant also explained that the healing process from his gastric bypass surgery was taking much longer than he had anticipated, impacting his ability to work and earn money, and he believed that, due to the surgery, the small amount of liquor he had consumed on the evening of August 18 affected his "system" more than it would have prior to the surgery. The defendant denied smoking marijuana on August 18, explaining that he mentioned the marijuana to Mr. Little on August 19 because he believed that his drug usage in late July would prevent him from passing a drug screen.
The defendant apologized to Mr. Little for his behavior on August 19, explaining that he "was upset because the boy got shot" and because he could no longer work. The defendant admitted that he had pleaded guilty to the public intoxication charge stemming from the August 19 incident and that the conviction was a violation of his probation. The defendant also acknowledged that, when he was ...