Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs April 28, 2015
Appeal from the Criminal Court for Knox County No. 102607 Bobby R. McGee, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Erica Harris
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, delivered the opinion of the Court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
This is an appeal from the Knox County Criminal Court's denial of Petitioner's petition for post-conviction relief On March 9, 2011, Petitioner was convicted by a Knox County jury of the sale and delivery of 0.5 grams or more of cocaine. The trial court merged her convictions and sentenced her to serve seventeen years' incarceration. On appeal, this Court affirmed Petitioner's conviction and sentence. State v. Erica Harris, No. E2012-01107-CCA-R3-CD, 2013 WL 1190826, at *3 (Tenn. Crim. App. Mar. 25, 2013), perm. app. denied (Tenn. Aug. 14, 2013).
Petitioner's conviction arose from a controlled drug purchase on August 24, 2009. The purchase involved a confidential informant named Francis Brady. Ms. Brady testified that she was familiar with Petitioner and two of her sons. Ms. Brady testified that the plan was for her to go to Petitioner's residence on August 24 and purchase crack cocaine from "just whoever was in the residence." Id. at *1. Ms. Brady asked Petitioner for $100 worth of crack cocaine. Petitioner went to the kitchen and brought out a DVD case with cocaine rocks on it. She told Ms. Brady that the cocaine belonged to her son. Petitioner attempted to call her son to see if she could give the cocaine to Ms. Brady. When her son did not answer the phone, she agreed to let Ms. Brady have the drugs. Ms. Brady said that Petitioner gave her a "bread wrapper" to put the cocaine in, and Ms. Brady gave Petitioner the $100 of buy money. Id.
Ms. Brady was fitted with a recording device. An audio recording of the transaction-which this Court described as "largely unintelligible"-was admitted into evidence and played for the jury. Id. The voices on the recording "are barely audible over the static associated with the equipment being hidden inside Ms. Brady's clothing and the very loud barking of a dog throughout a great deal of the transaction"; however, a woman's voice can be heard identifying herself as "Erica." Id. at *5. Ms. Brady identified Petitioner as the person she interacted with during the recorded transaction.
Officer Michael Geddings of the Knoxville Police Department supervised Ms. Brady in her role as a confidential informant. Ms. Brady told Officer Geddings that she had previously purchased drugs from Petitioner's son while Petitioner was present in the residence. Officer Geddings monitored the August 24, 2009 transaction from a vehicle parked outside of the residence. Ms. Brady turned over the rock-like substance she purchased, which was determined to be 0.9 grams of crack cocaine. Petitioner's residence was 597 feet from Green Magnet Elementary School.
On September 15, 2009, Officer Geddings and Officer Joshua Schaffer executed a search warrant at Petitioner's residence. During the search, Petitioner made a statement to Officer Schaffer that "the crack she had sold . . . was her son's and that her son was the one that obtained the crack cocaine and that if he was not there on that occasions [sic] she sold." Id. at *2.
Petitioner and trial counsel engaged in a Momon colloquy on the record. Petitioner did not testify on her own behalf.
Petitioner presented the testimony of her son, Tramell Harris. Mr. Harris testified that he lived with Petitioner, her husband, and his siblings. He admitted selling cocaine out of Petitioner's residence, and he pleaded guilty in juvenile court to possession of cocaine. Mr. Harris stated that his aunt, Petitioner's sister, stayed with the family in August of 2009 and that she used and sold cocaine. Mr. Harris stated that his mother did not sell cocaine. Mr. Harris conceded that during the September 15, 2009 search, cocaine was found in Petitioner's closet but explained that he placed it there. Mr. Harris was not home during the August 24, 2009 transaction and did not know whether Petitioner sold drugs to Ms. Brady on that occasion.
In rebuttal, the State called Petitioner's sister, Andrea Johnson Drury, and recalled Ms. Brady. Ms. Drury denied any involvement in the sale of cocaine. Ms. Brady denied having purchased drugs from Ms. Drury and again ...