Court of Criminal Appeals of Tennessee, Nashville
Session Date April 21, 2015
Appeal from the Circuit Court for Rutherford County No. F-69010 Mitchell Keith Siskin, Judge
Joe Mason Brandon, Jr., Murfreesboro, Tennessee, for the appellant, Roy Allen Smith.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Lawrence Ray Whitley, District Attorney General; and Jennings H. Jones, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant was arrested after a search warrant executed at his residence resulted in the discovery of oxycodone and several hundred dihydrocodeinone pills. A Rutherford County grand jury indicted the defendant, and he was charged with possession of a Schedule II controlled substance with intent to manufacture, deliver, or sell; with possession of a Schedule III substance with intent to manufacture, deliver, or sell; with maintaining a dwelling used for keeping or selling controlled substances; and with possession of drug paraphernalia.
Edward McKenna, a detective with the LaVergne Police Department, testified that the property where the defendant resided consisted of a main residence, a shed or outbuilding, and a trailer or camper occupied by the defendant. When the SWAT team arrived, one team went to search the main house, and a separate team came to search the defendant's residence. Officers entered the defendant's camper and removed the defendant. Officers then searched his residence and found a bottle of pills. The bottle's label had been partially removed, but the remnants of the label showed a prescription for oxycodone. Detective McKenna testified that in his experience, a ripped label was used to deceive law enforcement and indicated that the pills were illegally obtained. Under the sofa, officers found a sandwich bag containing white, oblong pills which Detective McKenna testified bore the marking "IB 114." Near the bathroom, police seized a red, plastic Folgers coffee can which contained coins and paper money. Officers also discovered a prescription bottle from Kroger pharmacy but did not take it into evidence because the prescription was in the defendant's name.
Kristine Keeves, a crime scene technician, photographed and collected the items recovered from the home during the search. She testified that the pills from under the couch were marked "IP 114." Ms. Keeves testified that the prescription bottle with the torn label contained fifteen blue pills and appeared to originate from LaVergne Drug Store. Ms. Keeves confirmed that other medications, including BC powder and bottles of hydrocodone and oxycodone that had been prescribed for the defendant, were not seized. However, a small, yellow pill from the kitchen was sent to the Tennessee Bureau of Investigation ("T.B.I.") for testing. The defendant's wallet, containing $833 in cash, was also seized.
The bulk of the evidence was discovered approximately twenty to thirty feet from the trailer. Detective McKenna testified that police found two red plastic Folgers coffee cans hidden in the tree line by the trailer. The cans were of the same type as the one found in the defendant's home, but the one in the home was larger. One can was covered in a black plastic trash bag, and the other had duct tape on the lid. The cans were approximately one hundred to one hundred and fifty feet from the main residence. Detective McKenna testified that each can contained a ziplock "baggie" of pills and that several hundred pills were recovered. Ms. Keeves confirmed that the two containers were found approximately thirty feet from the trailer. The cans were at the base of a tree on the side facing the camper. The Folgers can covered in a black plastic trash bag contained five hundred white, oblong pills with "IP 114" imprinted on them, and these pills appeared identical to the pills recovered from the couch. The other Folgers can contained two hundred white, oblong pills with "M367" imprinted on them. Ms. Keeves collected the cans and tried to recover fingerprints from them but was unable to do so. Ms. Keeves testified that the main house was located on the other side of the tree line and across a field. She temporarily sealed the cans at the scene and then opened them at the police station to count the pills.
Detective McKenna testified that when the defendant saw the Folgers cans recovered from the tree line, he immediately said, "[T]hose are not mine." According to Detective McKenna, a prescription for personal use would allow thirty to one hundred and twenty pills per month and only a pharmacy would have over seven hundred pills.
Ella Carpenter, a special agent forensic scientist for the T.B.I., did chemical testing on some of the evidence recovered from the defendant's home. Agent Carpenter did a chemical analysis of one of the pills imprinted "IP 114" from the Folgers can containing five hundred pills, and she discovered that it was dihydrocodeinone, a Schedule III controlled substance. She did not do a separate analysis on the thirty pills recovered from the couch that also bore the "IP 114" stamp, but she concluded from a visual inspection that the pills were consistent with the dihydrocodeinone pill she had tested. Agent Carpenter also conducted a chemical analysis of the fifteen tablets in the prescription bottle with the torn label, and she found that they were oxycodone, a Schedule II controlled substance. Agent Carpenter did not do a chemical analysis on the yellow pill because she concluded from a visual examination that it was medication that was not a scheduled substance. Agent Carpenter also did not perform any chemical analysis on the two hundred pills marked "M367" in the other Folgers can. She explained that she performed a visual identification, which is a presumptive test, and that the pills were presumptively identified as dihydrocodeinone tablets based on their external markings. Detective Henry McGowan testified that the street value of each dihydrocodeinone pill would be between five and eight dollars.
The defense attempted to implicate the other two residents of the premises in the offenses. Detective McKenna testified that a man named Ronny Rich, who was the third person living on the premises, was also arrested in conjunction with the execution of the search warrant. When the defense asked Ms. Keeves about seventeen pills she collected and logged on the evidence log, she first testified that the pills may have been in a prescription bottle in the defendant's home; ultimately, she refreshed her memory ...