Court of Criminal Appeals of Tennessee, Nashville
May 12, 2015
Appeal from the Criminal Court for Davidson County No. 2005-C-2271 Seth Norman, Judge
Cynthia M. Fort (on appeal and at trial) and Joseph L. Morrissey, Jr. (at trial), Nashville, Tennessee, for the appellant, Phillippe Rogers.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Dan Hamm and Andrea Green, Assistant District Attorneys 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., J.
The evidence at the petitioner's jury trial revealed that members of the Metropolitan Nashville Police Department ("Metro") drug task force began wiretapping Jerry Smith's telephone conversations on November 5, 2004, to further their investigation into Mr. Smith's drug activity. State v. Phillippe Rogers, No. M2009-00101-CCA-R3-CD, slip op. at 2-3 (Tenn. Crim. App., Nashville, Aug. 19, 2010), perm. app. denied (Tenn. Jan. 13, 2011). On November 19, the task force intercepted calls between Mr. Smith and the petitioner in which the two men discussed a cocaine delivery from Atlanta to Nashville that was set to take place on November 20. Id., slip op. at 3. Through the testimony of task force Sergeant James McWright, the State presented multiple recordings of wiretapped conversations:
In the first call, the [petitioner] left an electronic voice mail message on Mr. Smith's telephone in which he told Mr. Smith, "It's a done deal." The call was recorded at 12:36 a.m. on November 10, 2004.
In the call between Mr. Smith and Jeremiah Milan, another conspirator, recorded at 10:19 a.m. on November 20, 2004, Mr. Smith informed Mr. Milan that "ain't none come through yet, " and Mr. Milan asked, "Roger and them still got them five?" Sergeant McWright explained that, based on his experience and training, he understood "five" to mean five kilograms of cocaine.
A telephone call made at 12:44 p.m. on November 20, 2004, between the [petitioner] and Mr. Smith was played to the jury. The [petitioner] told Mr. Smith that he and some other men were running late but that he would call when they arrived in "a little bit."
In another call, recorded at 4:04 p.m. on the same day, Mr. Smith explained that he talked to a "dude" that was running late but was "definitely gonna be here with them nickels." Mr. Smith said that the man would call Mr. Smith that evening. Mr. Milan said that another man was "supposed to give [him] that nine" and that Mr. Milan was following the man. Mr. Milan told Mr. Smith that he "got some stuff lined up." Sergeant McWright explained that "nickel" usually refers to the number five and that he understood the call to mean five kilograms of cocaine. He also said that, from his understanding, Mr. Milan was finding a "nine piece" of cocaine to suffice him until the "nickels" came in from Atlanta.
The next call was recorded at 4:22 p.m. and involved Mr. Smith and the [petitioner]. The [petitioner] told Mr. Smith, "I'm gonna be over there getting me a piece of that hot chicken, probably in about 45 or 50 minutes." The [petitioner] clarified that he would be at "the hot chicken place" and that he would contact Mr. Smith with "the angle." Sergeant McWright testified that, at this point, he and his officers believed that the men were talking about Prince's Hot Chicken. However, he discovered that while Mr. Smith thought they were meeting at Prince's Hot Chicken, the [petitioner] believed they were meeting at Hotchickens.com, a different hot chicken restaurant.
The next calls between Mr. Smith and the [petitioner] were recorded at 5:37 p.m. and 6:13 p.m. During the first call, the [petitioner] told Mr. Smith that he was 15 minutes from the "chicken house, " and Mr. Smith responded, "Okay, I'll be watching." During the next call the [petitioner] told Mr. Smith that he was standing at the door, and Mr. Smith said he could not see him from the parking lot. Sergeant McWright testified that he had monitored Prince's Hot Chicken and did not observe either Mr. Smith or the [petitioner].
A 6:57 p.m. call between Mr. Milan and Mr. Smith reflected that Mr. Smith "didn't know if dude . . . gonna stay here or not." Mr. Milan said, "I know we can move them bastards tomorrow." Mr. Smith stated that he would not be able to "get up there" until 2:00 p.m. the following day because he had church. Mr. Smith mentioned that "the dude" from Atlanta "got four of [them], " and Mr. Milan said he would "try and line them up."
During another call between Mr. Milan and Mr. Smith at 7:25 p.m., Mr. Smith put the [petitioner] on the telephone with Mr. Milan. The [petitioner] told Mr. Milan that he was "sitting with all these clothes in [his] lap" and that he was "trying to see cause them dudes was pushing." The [petitioner] stated that he was trying to "pull it together" because he had "a good situation." He asked Mr. Milan when he could "give [him] concrete." Mr. Milan responded "about 1:30." The [petitioner] then stated that he had met with some people who were "rolling kinda heavy" and "about 65 deep." Sergeant McWright explained that he interpreted this to mean "whoever [the petitioner] was getting [cocaine] from had another 65 kilos, or they could have 65, 000 in on those four." He further explained, "I interpreted it that [the petitioner] had gotten four from whoever already had 65 [kilos], but the jury will have to determine which interpretation they want to believe."
The next call between Mr. Milan and Mr. Smith occurred at 10:14 p.m. In this call Mr. Smith said that he "put him in the [Maxwell House] hotel." He said, "He got some glass, got four of them." Sergeant McWright ...