Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 13, 2015
Appeal from the Circuit Court for Williamson County No. II-CR-017770 Michael W. Binkley, Judge
Vanessa P. Bryan, District Public Defender; Benjamin C. Signer, Assistant Public Defender (on appeal), and Glenn Funk and John Jackson (at the guilty plea and sentencing hearings), Nashville, Tennessee, for the appellant, Fred Calvin Lee.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Kim R. Helper, District Attorney General; and Sean B. Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
At the plea hearing, the Defendant pleaded guilty as charged in the indictment and received ten years for each conviction. The parties agreed that the trial court would determine the manner of service. The State's recitation of the facts relative to Count 1 showed that on the 5th day September 2013, Detectives with the Franklin Police Department Narcotics Unit did utilize a confidential informant to arrange delivery of an amount of cocaine from the Defendant . . . . Confidential informant was provided with recorded [police] funds, fitted with a transmitter and recording device. Confidential informant was surveilled then to the location . . . [in] Williamson County, Tennessee. Whereupon arriving at the location the confidential informant did make contact with the Defendant, up on the front porch of the Defendant's residence. The Defendant did go into the residence after making contact with the confidential informant[, ] came back out, did deliver to the confidential informant an amount of white substance. Confidential informant did in turn deliver back the recorded money. The white substance was . . . submitted to the TBI and it came back positive for . . . cocaine, an amount greater than .5 gram.
Relative to Count 2, the State's recitation of the facts showed that
on the 6th day of September, again Detectives . . . did utilize a confidential informant to arrange delivery of an amount of cocaine from the Defendant . . . . Again, all the same arrangements that were in Count 1 were made. The confidential informant was surveilled again, out to the address . . . in Williamson County, Tennessee. Upon the confidential informant arriving at the residence, the Defendant arrived simultaneously. The Defendant was observed going into the residence and then came back out whereupon coming back out made contact with the confidential informant. Did deliver to the confidential informant a white substance, . . . [which] was submitted to the TBI for analysis and did come back positive for . . . cocaine in an amount greater than .5 gram.
At the sentencing hearing, the presentence report was received as an exhibit. The report showed the Defendant had previous convictions for five counts of cocaine-related offenses, five traffic-related offenses, three counts of driving with a suspended license, two counts of perjury, two counts of violating the driver's license law, and a theft-related offense. The report showed that in a previous case, the trial court revoked the Defendant's probation and ordered him to serve his sentence in confinement because he failed to report to his probation officer, incurred new criminal charges, and failed to complete his "public work" requirement. The report showed that the Defendant was later released on parole, which expired on February 25, 2011.
The Defendant reported completing the tenth grade, but he later obtained his GED and certifications in industrial cleaning, plumbing, and upholstery. The Defendant reported leaving high school because a woman was expecting his child and because he went to prison. He obtained his occupational certifications while in confinement. The Defendant reported good mental and physical health and denied abusing alcohol. He first consumed marijuana at age eighteen and admitted smoking marijuana two weeks before the presentence evaluation. He reported employment with a collision repair center for two years at the time of the interview and previous employment with a landscaping business for about four years.
Franklin Police Narcotics Detective Keith Martin testified that as a result of his time as a patrolman and a detective, he had concluded that Williamson County had a problem with cocaine. He had participated in hundreds of controlled cocaine purchases. He said that cocaine-related activity was associated with other criminal offenses, including assault, weapon violations, theft, and violent offenses.
Detective Martin testified that his confidential informant reported to him that the Defendant was selling cocaine and that the informant and the Defendant arranged for the informant to purchase cocaine from the Defendant on September 5 and 6, 2013. Relative to the September 5 controlled purchase, the Defendant and the informant agreed upon $120, but the informant only brought the Defendant $100. The informant and the Defendant discussed the price, and the Defendant entered his home and returned to the front porch with a substance that was later determined to be cocaine. Detective Martin said that the controlled purchase occurred around 5:00 p.m. in a typical residential area and that children were walking on the street.
Detective Martin testified that the September 6 controlled purchase was conducted in the same manner and occurred after 12:00 p.m. Detective Martin recalled that a child played in the Defendant's yard and that a woman walked onto the porch and talked to the confidential informant ...