Court of Criminal Appeals of Tennessee, Nashville
Session Date January 14, 2015
Appeal from the Circuit Court for Bedford County No. 17534, 17658 Franklin L. Russell, Judge
Thomas S. Santel, Jr., Murfreesboro, Tennessee (on appeal); and William Stanley Bennett, Murfreesboro, Tennessee (at trial) for the appellant, William Jason Harris.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Robert Carter, District Attorney General; Michael David Randles and Richard Cawley, Assistant District Attorneys General; for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Agent Shane George of the Shelbyville Police Department, who is assigned to the 17thJudicial District Drug Task Force, testified that on June 5, 2012, he learned from a CVS pharmacy employee that Mary White was attempting a suspicious purchase of pseudoephedrine at the CVS pharmacy on Lane Parkway in Shelbyville. Agent George drove to the pharmacy and conducted surveillance in the parking lot. Agent Brad Martin also arrived and aided with surveillance. Agent George observed Ms. White walk out of the store and get into a silver Kia vehicle with three male occupants, including Defendant, Defendant's brother James Dewey Harris (a.k.a. "D"), and Samuel Brent Fults who is Ms. White's son. Agent George then observed the Kia, driven by "D", travel to the Rite Aid pharmacy located a few blocks from CVS. He testified that "D" and Mr. Fults exited the vehicle and walked into Rite Aid together. Ms. White and Defendant remained in the car.
During that time, Agent George learned that Ms. White was unable to purchase any pseudoephedrine from CVS because she did not "present the correct symptoms to the pharmacist." He then observed "D" and Mr. Fults get back into the Kia, and "D" drove to the Walgreens pharmacy located on North Main Street. Agent George observed Ms. White and one of the men get out of the car and walk into the pharmacy. He noted that "there was a lot of back and forth movement between the, the vehicle and the pharmacy. I think there were, at least, one in and out that took place by those individuals. So, they, they went in, they came out, they went back in, and they came out." Agent George attempted to call Walgreens and notify them of possible criminal activity but he could not get an answer. He then pulled up the National Precursor Log Exchange and determined that there was no sale of pseudoephedrine that took place while the individuals were in the pharmacy.
Agent George testified that Ms. White and the other individuals got into the Kia and drove back to CVS. He said:
Once they were at the CVS pharmacy, I saw Mr. Fults, back, the male backseat passenger and Mary White's son, exit the vehicle and go into the pharmacy. And within just a short period of time he came back out and he was carrying a pharmacy bag that's consistent with, you know, going into the pharmacy and getting a box of pseudoephedrine and then coming out with it in a bag.
Now, the vehicle that, that they were in was parked on the, the sheriff's office side of the pharmacy. Mr. Fults came out. Instead of going back directly to the vehicle, he made a, if you're looking at him at the front of the pharmacy, he went to my left, be his right, and walked all the way down to, past the little cut-through there in that strip mall. And he walked out of my sight towards the back of the store. And Special Agent Martin was back there observing his actions.
And then within a, a relatively short period of time, he came back around the front of the store and he was empty-handed. He no longer had the bag and he no longer had the box of pseudoephedrine in his hands, which is, is, you know, I thought was a little strange but not uncommon.
So, I observed Mr. Fults then get into the vehicle with the Harrises [sic] and Ms. White. They pulled out of their parking spot, went back out, got on North Main Street, and went directly up to the [Walmart] pharmacy located on North Main Street. Now, I was able to video record Mr. Fults' activities at the CVS, and I continued video recording the, once they arrived at the [Walmart] location.
Agent George observed Defendant, Ms. White, "D", and Mr. Fults walk into Walmart as a group, and they walked over to the pharmacy section of the store. Agent George noted that while in the parking lot, before entering the store, he observed what appeared to be money being exchanged between the four individuals. Agent George walked in the store and over to the pharmacy, spoke with the pharmacist, and gave him a description of Defendant, Ms. White, "D", and Mr. Fults. Agent George also told the pharmacist that the group of individuals may attempt to buy pseudoephedrine products and to notify Agent George if a transaction occurred. Agent George turned around and saw Ms. White in line behind him with a box of pseudoephedrine that he later watched her purchase. Agent George observed "D" purchase a bottle of hydrogen peroxide, and Defendant purchased a large quantity of matches. Agent Martin observed the individuals as they walked out of Walmart and got into the car. The vehicle turned on 231 North and drove toward Rutherford County.
Agent George testified that he left the store and "hurried to my vehicle because I knew at that point that, you know, we had two confirmed boxes of pseudoephedrine that were in the vehicle and then hydrogen peroxide and the matches, which are components used to manufacture methamphetamine." He then followed the Kia out of the parking lot. Within a short period of time, Agent George paced the vehicle and determined that the vehicle was traveling sixty miles per hour in a fifty-mile per hour zone. At that time, Agent George felt he had grounds to stop the vehicle; however, he decided to make sure that the occupants in the car did not intend to make any further stops to purchase additional items. Once the vehicle approached the intersection of "82 and 231 North" and turned right, Agent George activated his blue lights and pulled the vehicle over at a BP station. Agent Martin also arrived on the scene. "D" was driving, and Defendant was sitting in the front passenger side of the vehicle. Mr. Fults and Ms. White where sitting the back seats. Agent George asked for "D"' driver's license, which "D" provided. Agent George then verified that "D's" license was not suspended or revoked, and he asked "D" for permission to search the vehicle, which "D" denied. Agent George explained that at that point he performed a warrantless search of the vehicle.
Agent George asked Defendant to exit the vehicle, and Agent George searched him. Agent George found seven individual "blister packs" of pseudoephedrine tablets that had been removed from the box in the crotch area of Defendant's pants. He also asked the other occupants of the vehicle to step out, and he searched them. Agent George testified that Defendant had boxes of matches underneath him in the car that had been torn open, and the process of removing the "striker plate" from the matches had begun. Agent George searched the vehicle and found a Walmart receipt, a bottle of hydrogen peroxide that had been purchased by "D", a CVS receipt that reflected the purchase of CVS brand decongestant in an amount of 2.88 grams, an empty box of Walmart brand cold medicine which contained pseudoephedrine, coffee filters, razor blades, a hole punch, tweezers, digital scales, insulin syringes, and a "meth pipe." Agent George noted that some of the items were tools "commonly found around people that are manufacturing methamphetamine." He also testified that insulin syringes are "commonly used by addicts to inject the methamphetamine into their bloodstream." Agent Martin collected all of the evidence from the vehicle after the search.
Sometime later, Agent George was completing paperwork for the seizure of the vehicle "because it was used during the commission of a felonious crime." When he went to serve the paperwork on "D, " who was in custody, Agent George was informed by a correctional officer that Defendant wanted to speak with him. Agent George informed Defendant that he did not have to speak with him but Defendant was "very adamant about wanting to speak with [him] at that point." Agent George testified:
I explained to him that I worked directly for the district attorney's office and that any cooperation I was able to get from him I would be able to take back to [the] district attorney's office and provide them that information. And if we were able to do anything proactive with his information, then that would be good for him and I could provide that to the DA's office and then they would take that into consideration when it came time to adjudicate his charges, you know, dispose of them in court, in the, in the courtroom. And, and he told me [he] understood and we went on about the business of conducting the interview.
Agent George testified that Defendant stated he, "D", Mr. Fults, and Ms. White were in Shelbyville together to purchase "cold pills." Defendant noted that Mr. Fults had initially called and said that he would purchase pseudoephedrine in exchange for methamphetamine. Defendant told Agent George that he used the "red phosphorous" method of making methamphetamine and described the process. He admitted that he had traded methamphetamine for "boxes on at least one occasion." Defendant told Agent George that his "course of action" on June 5, 2012, was a "finished product" of methamphetamine. He thought that he could have made three grams of methamphetamine out of the pseudoephedrine purchased. Defendant also provided information concerning a prescription pill drug dealer. Agent George understood that Defendant would then act as a confidential informant in building a case against the dealer. Agent George gave Defendant a contact number, and when Defendant made bond and was released from custody, he briefly contacted Agent George two or three times but failed to maintain contact. During the interviews, Defendant never told Agent George that he had been threatened by his brother, James Dewey Harris (a.k.a. "D").
Agent George checked the pseudoephedrine purchase database and learned that Defendant's purchase history was approximately four-and-a-half pages long. At approximately 7:10 p.m. on June 4, 2012, Defendant attempted to purchase a 2.88-gram box of pseudoephedrine at the CVS located at 825 North Main Street in Shelbyville. Agent George testified that Defendant was blocked from the purchase "because he was outside the compliance, the weight for the compliance within a 30-day period, that at that point in time was nine grams of pseudoephedrine purchased, . . . within a 30-day period." Defendant also attempted to purchased a box of pseudoephedrine on the same date at approximately 8:28 p.m. at the Walgreens across the street from CVS. The sale was again blocked because of the "federal compliance measures that were in place."
Mary White testified that on June 5, 2012, she got into the car with Defendant, "D", and her son, Mr. Fults, and they drove to Shelbyville. They first stopped at CVS, and Ms. White attempted to purchase a box of pseudoephedrine, but the purchase was denied. She said that the purchase was for "D". Ms. White testified that they next stopped at Walgreens, and everyone went inside. She said that no one attempted to purchase any pseudoephedrine, and they left and drove to Walmart. Ms. White admitted that the purpose of going to Wal-mart was to purchase a box of pseudoephedrine, which she did. She testified that Mr. Harris showed her what to buy. Ms. White was aware that the pseudoephedrine was to be used to make methamphetamine because she "heard people talk about it." She was arrested after making the purchase.
Bonnie Sue Hawkersmith, Defendant's fiancé, testified that she inadvertently mailed a letter written by Defendant to the district attorney's office. She said that the letter was supposed to have been mailed to the pastor of the church that she attended. In the letter, Defendant made the following admission:
'My brother, ["D"], was making it, ' [ ]. 'I did help him get things to make the day [sic], the drug along with the mother, son, that was with us. And the two of us which also buying things to help with the process. But my brother, ["D"], being the one that was the actual maker of the drug.
Ms. Hawkersmith presumed that the drug Defendant was referring to was methamphetamine.
Defendant's brother, "D", testified on behalf of Defendant. He said that prior to June 5, 2012, he and Defendant were enrolled in vocational school together in McMinnville. "D" testified that on June 5, 2012, he and Defendant got out of school at approximately 3:00 p.m. and drove to Manchester to pick up Mr. Fults and Ms. White. "D" was driving, and they drove to Shelbyville. "D" testified that Defendant "kind of blew and shook his head" because he knew that "D" was going to Shelbyville to purchase pseudoephedrine to make methamphetamine. "D" claimed that Defendant knew that "D" would become "sick" if he did not get any methamphetamine to use, and then Defendant would not have a ride to school. He said that Defendant also knew that he had a temper. "D" testified that he knew Mr. Fults because they were in prison together.
"D" testified that they drove to CVS in Shelbyville, and the following took place:
Mr. Fults went in and, and they bought the pseudoephedrine, and, and when he, when he came out, he sent his mother in and she was, kind of, nervous about going in. And he said, Momma, you mean, you mean to tell me that we've come all this way and you're not even going to go in, he's going to give us $50 for this box of pseudoephedrine, you mean, to tell me - - and as far as -- the only thing my brother ever said in that car on that ride was, he turned around and said, Man, that, she ain't got to go in that store if she don't want to. And they, they, kind of, fussed about that for a little while.
"D" testified that Defendant did not go into the CVS, and he did not ask Defendant to go in the store. Ms. White then went into Rite Aide, and she attempted to purchase pseudoephedrine but the sale was denied. At that point, "D" testified that Defendant was ready to go home but he said that Defendant knew that "D" was going to "get [his] way or else."
"D" testified that he went into Walmart. He admitted to having a picture of a box of pseudoephedrine on his phone so that Mr. Fults did not purchase the wrong product. "D" testified: "Because once you purchase a box of pseudo, you can't buy any more until, like, a 48-hour deal." He said that Defendant was against making methamphetamine; however, he admitted that Defendant purchased the matches in Walmart. "D" testified that he asked Defendant to start breaking down the matches in the car. He said that Defendant was trying to "keep the peace" with him because Defendant needed a ride to school. "D" also said that Defendant attempted to hide the pseudoephedrine pills for him when they were stopped by Agent George.
On cross-examination, "D" believed that Defendant may have started using methamphetamine, "but it wasn't nothing like ["D"] was using it." Defendant had indicated during the interview with Agent George that he would receive "two-tenths of a gram" of methamphetamine. However, "D" testified that the methamphetamine would have been split between "D", Ms. White, and Mr. Fults. "D" claimed that although Defendant indicated to Agent George that he and "D" were making methamphetamine together, "D" was "doing [his] own cook" on June 5, 2012.
Wanda Eastes is a registered nurse and mother to Defendant and "D". She testified:
They have very different personalities. ["D"] is, was the oldest. He developed an aggressive personality. The leader, usually. He was the leader of the two. We dealt a lot with ["D's"] personality problems, I guess, you might say. We tiptoed around him quite a bit.
And [Defendant] was more laid back. More a peacemaker, I guess. He, he wanted things to, he had some goals and some dreams. And the two of them -- ["D"] didn't seem to have that. He didn't seem to look forward to those kind of things. [Defendant], kind of, was led by ["D"] quite a bit. There's so much I want to say about the two. I guess that the, personality-wise, I could depend on [Defendant] and I couldn't depend on ["D"].
Ms. Eastes testified that "D" would sometimes become violent, and she had seen him act aggressively toward Defendant. She testified:
I saw a lot of aggression. You couldn't make ["D"] mad because he would react. And there was a time that he got mad - - and I don't know what over, you would never know what it was most of the time, but he threw a, a brick through the windshield of the car that [Defendant] was in, driving.
Ms. Eastes testified that she was shocked to learn that Defendant had been arrested for the present offenses. She said:
Because I knew what [Defendant] wanted. I knew what he was doing. I knew he was, he was - - I know his routine. He would call me, sometimes, and, and - - on the weekends. And when we went to church, he would, it was always, you know, about his school and about Suzie and the kids and, and, and how he wanted a life, and, you know, he wanted to, to, he wanted to become a, he wanted to finish his schooling. And he wanted to, to have a, a like with, with her and those children.
Ms. Eastes noted that Defendant had a lot of sinus-related problems and that he took pseudoephedrine for those problems.
On cross-examination, Ms. Eastes agreed that none of "D's" prior convictions were for any violent offenses. She admitted that Defendant had prior convictions for vehicular homicide, facilitation of aggravated robbery, aggravated burglary, theft over $500, failure to appear, vandalism over $500, theft over $1, 000, and contraband in a penal facility. Defendant also had two additional felony convictions in Coffee County.
A. Cross-examination of Wanda Eastes on Her Knowledge of Defendant's Prior Convictions
Defendant contends that the trial court committed reversible error by allowing the State to cross-examine Defendant's mother, Wanda Eastes, concerning her knowledge of Defendant's prior ...