Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Jackson March 3, 2015
Appeal from the Criminal Court for Davidson County No. 2011-C-2526 Monte D. Watkins,
Jason Chaffin (on appeal and at motion for new trial) and Samuel A. Wooden (at trial), Nashville, Tennessee, for the appellant, Alfred Calvin Whitehead.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Antoinette Welch and John Zimmerman, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE.
At the trial, Metro Nashville Police Officer Eric Knight testified that on May 19, 2011, he was involved in a "buy-bust" operation involving an undercover purchase of drugs from and the arrest of a street-level drug dealer. He identified the Defendant and said the Defendant was arrested in the J.C. Napier housing area. Using a map, he identified the area and the point of the arrest, which he said was across the street and "five hundred some odd" feet from Cameron Middle School.
Regarding the events leading to the arrest, Officer Knight testified that he saw a black male approach the Defendant. The Defendant wore a white tank top and blue shorts. He said the two men "walked back" to a shadowy area between some buildings, engage in what appeared to be a hand-to-hand transaction, and walked in the direction from which they had come. Officer Knight and Detective Jeremy Smith went to the Defendant's location within about one minute and arrested him. He said he recovered $777 from the Defendant's left pocket and a bag containing 4.3 grams of a substance that field tested positive for the presence of cocaine.
Officer Knight testified that typically, hand-to-hand transactions were quick in order to avoid detection. He said the individuals involved would walk away from a crowd and exchange money and drugs. He said that normally, the drug dealer and buyer would want to get away from each other quickly. He said a crack cocaine buyer would want to smoke the drug as quickly as possible.
Officer Knight identified the bag containing a white rock substance he recovered from the Defendant. He said the bag contained "twenty rocks, " each of which typically would weigh about 0.2 gram and be sold for $20. Based upon the total weight of 4.3 grams, he estimated the bag contained twenty-one rocks. He said that most crack cocaine users bought a $10 rock weighing 0.1 gram or a $20 rock weighing 0.2 gram. He said that when he arrested a crack cocaine user, the person typically had burn marks on the person's fingers from using a hot pipe to smoke the drugs, "Chore Boy" copper tubing to filter the pipe, and a metal pipe.
Officer Knight testified that he completed the paperwork relative to the Defendant's arrest. He said the Defendant gave a Nashville home address that was not near the arrest scene and stated he was unemployed.
On cross-examination, Officer Knight testified that the events occurred around 8:30 p.m. on May 19, 2011. He said that he recognized the Defendant because he knew him previously but that he did not know the other person involved in the transaction. He said that he was 50' to 100' from the individuals involved in the transaction, that he did not wear night vision goggles, and that he was inside a car with tinted windows. He acknowledged that he did not see drugs or money change hands. He acknowledged he did not see the unidentified man smoke crack cocaine or hold drug paraphernalia. He acknowledged he did not see whether a crowd was around the Defendant before the Defendant walked away for the transaction but said others were in the area when the Defendant returned to the area where he had been previously.
Officer Knight testified that in his experience, drug dealers kept their crack cocaine rocks in a single bag, rather than having each rock in an individual bag. He said that in contrast, quantities of marijuana possessed for resale were often packaged in individual bags. He said that in his experience, street-level drug dealers did not keep written records. He said drug dealers he had arrested had nicknames or "street names" but did not use false names instead of their given names. He said drug dealers knew possession of weapons with drugs increased the penalties. He said that they sometimes had other people who held their guns or that they kept their guns in bushes. He agreed that drug dealers sometimes used lookouts but did not know if the Defendant employed a lookout that night. He agreed the Defendant did not possess a gun, scales, or records related to drug transactions.
On redirect examination, Officer Knight testified that a typical hand-to-hand transaction occurred quickly, had no obvious movement, and occurred at waist level. He said a drug dealer typically gave the buyer a rock without the buyer selecting the rock he wanted. He said the Defendant did not possess drug paraphernalia and did not make any statements about being a drug user. On recross-examination, he disagreed that the hand-to-hand transaction he saw resembled a handshake.
Metro Nashville Police Officer Robert Young testified that he was involved in the buy-bust operation on May 19, 2011. He said that in an operation of this nature, a geographic area was targeted based upon complaints and crime activity. He said an officer photocopied the money used in order to record the serial numbers. He said $20 transactions were typical. He said that after a suspect was apprehended, the serial numbers of cash the suspect possessed was compared with the serial numbers of the money designated for the operation.
Regarding the events of May 19, Officer Young testified that he was a member of the surveillance and takedown team. He identified the Defendant as a person with whom he came into contact. While he was parked in an undercover vehicle, he saw the Defendant, who matched a physical description he had received via radio. He said the Defendant wore bright blue shorts and a white tank top. He said that the Defendant had been described as having met with another person but that he did not see a second person near the Defendant. He said the Defendant was walking through a "cut" that led from a road behind homes in the J.C. Napier housing development toward Charles E. Davis Boulevard.
Officer Young testified that after he received the takedown signal, he, Detective Knight, and Detective Smith apprehended the Defendant. He said that the Defendant had $777 in small denomination bills in his left pocket and that a bag containing a white rock substance, which tested positive for the presence of cocaine base, fell to the ground when Officer Knight searched the Defendant's right pocket. He said the Defendant's cash included a $20 bill with a serial number matching one of the $20 bills the police had photocopied for the operation. He identified the evidence collected relative to the case, which included a bag containing a white, rock-like substance weighing 0.2 gram that field tested positive for cocaine base and a bag with a white, rock-like substance weighing a total of 4.3 grams that field tested positive for cocaine base.
Officer Young testified that drug dealers typically had cash in multiple, small denominations. He said that although the police department did not conduct controlled buys for less than $20, a user might make a smaller purchase. He said that drug dealers in the area in which the transaction took place "may . . . claim a corner" or specific area from which to sell drugs. In his experience, he had not encountered a drug user who possessed over $700 cash or over four grams of crack cocaine.
On cross-examination, Officer Young testified that although drug dealers sometimes carried guns, the Defendant did not have one when he was arrested. He agreed that the items seized at the scene included a bag containing a 0.2 gram white rock. He agreed that the Defendant was arrested in a housing project and that the people in the area generally were poor. On redirect examination, he acknowledged the 0.2 gram rock was not seized from the Defendant's person.
Metro Nashville Police Department Lieutenant William Mackall testified that he was in charge of the Narcotics Unit of the Twentieth Judicial District Drug Task Force. His twenty-two years of law enforcement experience included posing as a drug buyer, posing as a drug dealer, conducting long-term investigations, conducting street-level interdiction, attending numerous educational seminars, training other officers, and addressing citizens' and patrol officers' complaints. He estimated he had been involved as an officer or supervisor in over 1000 buy-bust operations. He said he had testified as an expert witness in over one dozen drug-related trials. The trial court permitted Lieutenant Mackall to testify as an expert witness in street-level drug sales.
Lieutenant Mackall testified that buy-bust operations involved a purchase by an undercover police officer or a private citizen acting as a confidential informant. He said that when a confidential informant was used, the person was searched before and after the drug deal and was given instructions about where to go, what to do, and what not to do. He said that if the informant had money, it would be taken before the deal, and the person would be supplied with police money that had been photocopied.
Lieutenant Mackall testified that crack cocaine was derived from cooking powder cocaine to remove impurities and resulted in a rock form which was ...