Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 22, 2015
Appeal from the Criminal Court for Davidson County Nos. 2011-B-1648 & 2011-D-3013 Mark J. Fishburn, Judge
Dwight E. Scott, Nashville, Tennessee, for the appellant, Joshua L. Carter.
Kyle Fite Mothershead (on appeal); and Jay Norman (at trial), Nashville, Tennessee, for the appellant Adonis LaShawn McLemore.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Victor S. Johnson III, District Attorney General; and Sarah N. Davis and Janice Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Alan E. Glenn, J., joined.
ROGER A. PAGE, JUDGE
This appeal involves two separate cases, 2011-B-1648 ("1648") and 2011-D-3013 ("3013"), with appellant Joshua L. Carter as the defendant. Appellant Adonis LaShawn McLemore was appellant Carter's co-defendant in Case 3013, and his appeal was consolidated by order of this court with appellant Carter's appeal. Case 1648 stemmed from an undercover operation by the Metro Nashville Police Department investigating drug trafficking in Nashville that resulted in the Davidson County grand jury's indicting appellant Carter for selling less than .5 grams of cocaine in a drug-free zone; possession with intent to sell or deliver more than .5 grams of cocaine in a drug-free zone; simple possession of marijuana; possession of drug paraphernalia; and evading arrest. Case 3013 stemmed from an encounter between appellants Carter and McLemore and murder victim Jordan Gardner across the street from the Out of Bounds nightclub in Nashville that resulted in the grand jury's indicting appellant Carter for premeditated murder and both appellant Carter and appellant McLemore for especially aggravated robbery and felony murder.
I. Facts Related to Case 1648
Metro Nashville Police Detective Jeremy Smith testified that on March 4, 2011, he was the undercover officer in a "buy-bust" narcotics operation. He explained that a "buy-bust" operation involves an undercover officer who purchases drugs, a "close-cover" team that surveils the situation for the officer's safety, and a "take-down" team that arrests the drug dealer after the purchase. The undercover officer would wear a listening device that transmitted audio to other members of the team but did not record audio. Detective Smith testified that for the March 4, 2011 operation, he was posing as a drug user. He approached Purvis Edwards in a tobacco store parking lot to ask for a lighter. Mr. Edwards entered Detective Smith's car, and Detective Smith asked Mr. Edwards whether he had a "twenty" or could get him a "twenty." Detective Smith explained that a "twenty" was $20 worth of crack cocaine. Mr. Edwards responded that he could take the detective to get the drugs but wanted to go to a Money Gram store first. Prior to going to the Money Gram store, Mr. Edwards called someone and told that person that he wanted two "twenties."
Detective Smith testified that he took Mr. Edwards to the Money Gram store, and when Mr. Edwards returned to Detective Smith's car, he made another telephone call, this time saying that he was on his way. Mr. Edwards directed Detective Smith to the Cee Bee Food Store on Lafayette Street and Charles E. Davis Boulevard. Detective Smith parked and gave Mr. Edwards two $5 bills and one $10 bill, all of which had been previously photocopied. Mr. Edwards walked towards the store and out of Detective Smith's sight. When Mr. Edwards returned to the car, he gave back to Detective Smith the $20, saying that he could not make the drug purchase "because the vice was out." Detective Smith explained that meant someone in the area had seen police officers. Mr. Edwards made another telephone call, again asking for two "twenties, " as Detective Smith was driving away from Cee Bee Food Store. Mr. Edwards directed Detective Smith to return to the food store. Mr. Edwards took the previously-photocopied money from Detective Smith and walked to the front corner of the store. Detective Smith testified that Mr. Edwards met a black male wearing a black, long-sleeved shirt and a "gray puffy-like . . . jacket with no sleeves." Detective Smith said that an obstruction prevented him from seeing their hands. The two men were together for approximately thirty seconds, and then Mr. Edwards returned to Detective Smith's car. Mr. Edwards showed Detective Smith several loose white rocks in his hand, which he then gave to the detective. Detective Smith testified that having a small amount of drugs loose and held in a hand rather than in a bag was typical because drug dealers would break off a piece of a larger rock of crack cocaine to give it to the buyer. When he had the drugs in his hand, Detective Smith gave a signal to other officers to begin the "take-down." He said that appellant Carter ran towards the J.C. Napier housing project, where he was taken into custody.
Detective Smith testified that in connection with the buy-bust operation, the police collected a large rock of cocaine, several small rocks of cocaine, and marijuana separated into small bags. Detective Smith further testified that the police collected $215 in currency from appellant Carter, including the two $5 bills and the one $10 bill that Detective Smith had previously photographed and had given to Mr. Edwards.
On cross-examination, Detective Smith said that he did not remember testifying in a January 2012 proceeding that he saw appellant Carter place something in Mr. Edwards' hand. He stated that the January statement was "true and correct" because it was closer to the date of the operation. Detective Smith agreed that he did not give a description of appellant Carter to other officers and explained that other officers watching the scene would have given that description. Detective Smith testified that he did not see appellant Carter throw anything on the ground before his arrest and did not see his arrest. He said that one would not find drugs just lying on the ground in that general area. Detective Smith could not remember whether Mr. Edwards, after being arrested, asked where the person was who had sold him the drugs.
On re-direct examination, Detective Smith clarified that he saw hand movements between appellant Carter and Mr. Edwards but that he did not see the actual items being exchanged. Detective Smith testified that he was familiar with the area where the buy- bust operation had occurred and had conducted routine walking patrols around the J.C. Napier housing project. He had never seen drugs lying on the ground.
David Kline testified that he managed the mapping division at the Metro Nashville Planning Department and that as part of his duties he created 1, 000 feet drug-free zones around certain properties. For purposes of appellant Carter's trial, he had created a map showing Cameron Middle School, the drug-free zone around the school, and Cee Bee Food Store. He testified that he was familiar with Cameron Middle School on a personal level because he tutored there twice weekly, including the time that the buy-bust operation occurred; therefore, he knew that the middle school was "an opening and functioning" public school.
Tennessee Bureau of Investigation ("TBI") Special Agent forensic scientist Cassandra Ann Franklin-Beavers testified that she weighed and tested the substances given to her in relation to this case. Two substances were cocaine base, also known as crack cocaine, one of which weighed 2.52 grams and the other 0.3 grams. The third substance was marijuana. While Agent Franklin-Beavers did not testify about the weight of the marijuana, her laboratory report, entered as an exhibit to the trial, indicated that the marijuana weighed 4.5 grams.
Purvis Lee Edwards, an indicted co-defendant in this case, testified that he had numerous prior convictions, including four misdemeanor theft convictions, two felony forgery convictions, two misdemeanor fraudulent use of a credit card convictions, and three possession of less than .5 grams of cocaine convictions. He said that the drug and theft convictions were related to his drug use. Mr. Edwards testified that in March 2011, he had been living in a hotel after being released from incarceration. On the day in question, his brother had sent him a Money Gram to help him pay for rent, but Mr. Edwards did not have a way to get to the Money Gram store to retrieve the money. He was walking to a nearby store when a white man in a vehicle, Detective Smith, stopped him to ask if he knew where to get "D, " which Mr. Edwards explained meant "dope." Mr. Edwards responded affirmatively and asked for a ride to the Money Gram store. Detective Smith drove him to the Money Gram store and then back to Cee Bee Food Store. Mr. Edwards testified that he wanted to simply pay Detective Smith for the ride and leave but that the man reminded him about getting drugs. Mr. Edwards said that he walked around the block, returned to Detective Smith, and told him that there were no drugs because "vice was out." Mr. Edwards stated that he had not made a real effort to find any drugs at that point but that he reconsidered when Detective Smith pointed out that he would have already gotten the drugs he wanted if he had not taken Mr. Edwards to the Money Gram store. Mr. Edwards testified that he then made a concerted effort to find drugs, so he called several people, including appellant Carter. When he asked appellant Carter if he was in the area, appellant Carter responded that he was "right here." Mr. Edwards testified that he met appellant Carter in front of the check cashing store directly next to Cee Bee Food Store and that they walked together to the front of Cee Bee Food Store. Mr. Edwards said that he asked appellant Carter for two "dimes, " or two $10 pieces of crack cocaine. Mr. Edwards testified that he and appellant Carter exchanged money for the drugs and that he returned to Detective Smith's vehicle. He gave Detective Smith all of the cocaine and was subsequently arrested. Mr. Edwards testified that the Thursday before appellant Carter's trial began, the two men were in a holding cell awaiting a court date when appellant Carter told Mr. Edwards that he wanted him to give appellant Carter's attorney a version of events with which Mr. Edwards disagreed. Mr. Edwards said that appellant Carter wrote down that he wanted Mr. Edwards to say that he had given appellant Carter the "marked" money in exchange for a $20 bill and that Detective Smith had been parked on the side of the building where he could not have seen their transaction. Mr. Edwards said that he recalled Detective Smith being parked directly behind the men.
On cross-examination, Mr. Edwards testified that appellant Carter had written down the information for him; however, Mr. Edwards tore up the paper and flushed it down a toilet. He said that he had a change of heart and did not want to start a new life with a lie. Mr. Edwards agreed that he gave appellant Carter money and that appellant Carter gave him drugs. Mr. Edwards also confirmed that when both men were arrested, he asked the police officers where the man was who had sold him the drugs and said that appellant Carter was not the man. Mr. Edwards stated that he was lying when he said that to the police and that he "was actually laying a foundation for Mr. Carter to build upon later because he was [Mr. Edwards'] drug dealer at that time."
Metro Nashville Police Detective Marcel Chalou testified that on March 4, 2011, he was providing "close cover" for Detective Smith in the buy-bust operation, meaning that he was in an unmarked car close to Detective Smith. Detective Chalou said that he was parked in the Cee Bee Food Store parking lot and watched Mr. Edwards approach appellant Carter. He testified that he saw a "hand-to-hand transaction" and described exactly what he observed: "I see Mr. Edwards, his hands go as if he's passing something to Mr. Carter, then I see them, they're looking down, I see Mr. Edwards' hand is out flat and Mr. Carter, what I viewed is him placing something in Mr. Edwards' hands." Detective Chalou said that he relayed appellant Carter's description to the rest of the team - "short male black, blue jeans, black shirt, gray puffy vest." After both appellant Carter and Mr. Edwards were taken into custody, Detective Chalou looked at both of their telephones and saw that Mr. Edwards had called appellant Carter.
On cross-examination, Detective Chalou testified that he followed appellant Carter across Lafayette Street into the J.C. Napier housing project but that he turned right instead of following directly behind appellant Carter in an attempt to intercept him. Detective Chalou said that he did not see appellant Carter discard anything. Detective Chalou further said that he had seen drugs on the ground in that neighborhood but that there was "[g]enerally . . . a reason why." He stated that he had never "just randomly come up, been walking down the street and found [a] bag of drugs." Detective Chalou could not recall citizens being in the immediate area of appellant Carter's arrest but believed that some people were around the buildings nearby.
Metro Nashville Police Detective Steven Jenkins testified that he was on the "take-down" team involved in the March 4, 2011 buy-bust operation that resulted in appellant Carter's arrest. He said that in his experience, he had learned that oftentimes suspects would try to hide from police in the housing projects. On March 4, he tried to position himself and his partner, Detective Robert Young, for the likelihood of a foot pursuit. He recalled hearing Detective Chalou's description of appellant Carter over the radio. After receiving the description, Detective Young exited their vehicle in an attempt to cut off appellant Carter. Detective Jenkins said that he parked the car and followed Detective Young. He saw appellant Carter running down a hill. Detective Young first encountered appellant Carter, and appellant Carter attempted to reverse course. Detective Jenkins chased after him, and he saw appellant Carter throw a baggy. The baggy hit a brick wall and fell to the ground. Detective Jenkins said that he was only three to four feet away from appellant Carter at that point and then took him into custody. Detective Young recovered the bag soon thereafter. Detective Jenkins testified that after he was arrested, appellant Carter made a statement that he knew he should not have been selling because he had seen "the white girl, " which Detective Jenkins interpreted to mean Detective Dills, a female detective on the take-down team that day.
Detective Young corroborated Detective Jenkins' testimony. He added that the bag discarded by appellant Carter contained crack cocaine and marijuana. Detective Young searched appellant Carter and found over $200 in currency. Detective Young said that he was carrying a photocopy of the buy money used in the operation and was able to confirm on the scene that appellant Carter's currency included the bills used as buy money. On cross-examination, Detective Young stated that he believed he and Detective Jenkins exited the car at the same time. He was not sure whether appellant Carter had retrieved the bag from a pocket or whether it had been in his hand.
After Detective Young's testimony, the State rested its case-in-chief. Thereafter, appellant Carter moved for a judgment of acquittal on all counts. The trial court granted the judgment of acquittal for the drug paraphernalia count after the State conceded it had not presented proof to support that charge. The trial court otherwise denied appellant Carter's motion. Appellant Carter did not put on any proof. Subsequently, the jury convicted appellant Carter of the sale of less than .5 grams of cocaine in a drug-free zone, a Class B felony; possession with the intent to sell or deliver more than .5 grams of cocaine in a drug-free zone, a Class A felony; simple possession of marijuana, a Class A misdemeanor; and evading arrest, a Class A misdemeanor. The trial court found that appellant Carter was a Range II, multiple offender. It sentenced him to concurrent terms of forty years (twenty-year mandatory minimum to serve) for the Class A felony; twenty years (twelve-year mandatory minimum to serve) for the Class B felony; and eleven months, twenty-nine days for each Class A misdemeanor.
II. Analysis - Case 1648
Appellant Carter contends that the evidence was insufficient to support his convictions in case 1648. Specifically, he argues that the jury should have disregarded all impeached testimony and claims that the testimony of appellant Carter's accomplice was uncorroborated. The State responds that it met its burden of ...