Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs April 29, 2015
Appeal from the Criminal Court for Sullivan County No. S61, 966 Robert H. Montgomery, Jr., Judge
The Defendant, Darryl L. Bryant, was indicted for one count of possession of oxycodone with intent to sell or deliver, a Class C felony; and one count of simple possession of marijuana. See Tenn. Code Ann. §§ 39-17-417, -418. Following a jury trial, the Defendant was convicted of the lesser-included offense of facilitation of possession of oxycodone with intent to sell, a Class D felony; and acquitted of the simple possession charge. See Tenn. Code Ann. §§ 39-11-403, -17-417. The trial court sentenced the Defendant to six years as a Range II, multiple offender. In this appeal as of right, the Defendant contends (1) that the trial court erred in denying the Defendant's motion to suppress the evidence against him; (2) that the trial court erred in denying the Defendant's request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (3) that the evidence was insufficient to sustain his conviction for facilitation of possession of oxycodone with intent to sell; (4) that the trial court erred in instructing the jury; and (5) that the State committed prosecutorial misconduct. Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
Darryl L. Bryant, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Barry Staubus, District Attorney General; and Kent L. Chitwood, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
At the suppression hearing, Detective Nathan Elliot of the Kingsport Police Department (KPD) testified that on November 7, 2012, he received a tip from a confidential informant (CI) named "Rachel." Det. Elliot testified that he believed that the CI was a reliable informant because she had been used in twelve previous controlled purchases. Det. Elliot further testified that the CI had given him information on three prior occasions that had led to the issuance of search warrants, subsequent arrests and "recovery of narcotics." According to Det. Elliot, on those three occasions, he found narcotics where the CI said they would be located. Det. Elliot admitted that the CI had convictions for simple possession of marijuana and possession of drug paraphernalia, associated with "known criminals, " and was paid for the information she provided in this case.
Det. Elliot testified that the CI told him that at approximately 10:00 a.m., there would be a black Lexis in the parking lot of the West Side Inn with two people inside. The CI told Det. Elliot that one of them would be Winfred Byrd, Jr., the co-defendant in this case, and that Mr. Byrd "would be in possession of more than 100 [o]xycodone pills." Det. Elliot testified that he believed the CI's information was based on her personal knowledge. However, Det. Elliot admitted that the CI did not say that she had personally observed the pills. Instead, Det. Elliot testified that the CI "had stated that Mr. Byrd was somebody [she] had met recently who was dealing a lot of narcotics in Kingsport." Det. Elliot admitted that the CI provided no information about the Defendant.
Based upon the CI's information, Det. Elliot and another detective went to the West Side Inn in an unmarked minivan. Det. Elliot testified that once they arrived at the West Side Inn, they saw a black Lexis in the parking lot with two men inside. According to Det. Elliot, the car was alone in the middle of the parking lot. Det. Elliot drove by the car and saw Mr. Byrd in the passenger's seat. Det. Elliot testified that he recognized Mr. Byrd from "past narcotics investigations" and that he had "dealt with [Mr. Byrd] many times" when he was a jailer. Det. Elliot further testified that he knew Mr. Byrd was a convicted drug dealer. However, Det. Elliot admitted that it had been four or five years since he had last seen Mr. Byrd. Det. Elliot further admitted that there was nothing suspicious about the car and that the Defendant and Mr. Byrd were just sitting in the car when he drove by.
Det. Elliot testified that after he drove by the Lexis, he parked about fifty to sixty feet away and called the CI to ask her to describe the car again and "to ascertain if [she] had any more new information." The CI told Det. Elliot that she had just spoken to Mr. Byrd and he told her "that they were there." Det. Elliot admitted that he did not see Mr. Byrd using a phone when he drove by the car. Det. Elliot testified that after speaking to the CI on the phone, he initiated a "felony stop in the parking lot." According to Det. Elliot, he pulled the van up behind the driver's side of the Lexis and a marked patrol car pulled up behind the passenger's side. Det. Elliot testified that he drew his weapon, pointed the gun at the car, and ordered the men out of the car. Det. Elliot further testified that as the Defendant was exiting the car, he saw "something fly in the air, several small pills in the air when the vehicle door opened."
Det. Elliot testified that he handcuffed the Defendant and advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). According to Det. Elliot, he asked the Defendant what he was doing at the parking lot, and the Defendant answered, "We came here to meet some girl named Rachel to sell some pills." Det. Elliot testified that he then asked the Defendant why there were "pills scattered over the car" and that the Defendant answered, "When you all pulled up [Mr.] Byrd threw them inside the car." Det. Elliot further testified that he asked the Defendant how many pills were in the car and the Defendant answered, "Probably 100." According to Det. Elliot, the Defendant also admitted that the car was his.
Det. Elliot testified that in the driver's seat, there was "a small clear plastic bottle that had [twenty] pills" inside it. Det. Elliot further testified that there were more pills "scattered throughout the vehicle in the cup holder and the floorboard areas." In total, Det. Elliot found eighty-eight pills scattered throughout the car in addition to the twenty inside the plastic bottle. Det. Elliot testified that he found also "a very small amount of marijuana" in the trunk of the car and two cell phones inside the car. Det. Elliot testified that he found $600 on the Defendant when he searched him. According to Det. Elliot, the parking lot for the West Side Inn was an area with a "significant amount of drug activity" at that time. At the conclusion of the suppression hearing, the trial court denied the Defendant's motion, finding that the CI was reliable and had personal knowledge of the information she provided to Det. Elliot.
At trial, Detective Noah Tidwell of the KPD testified that on November 7, 2012, he was a patrolman and was asked to assist Det. Elliot in an investigation. Det. Elliot instructed Det. Tidwell to park his patrol car behind the West Side Inn so it would not be seen. Det. Tidwell testified that the area where the West Side Inn was located was "a high crime area." Det. Elliot then radioed Det. Tidwell and informed him that the car he was looking for was in the parking lot. Det. Tidwell pulled up behind "a dark colored Lexis" with a Knox County license plate and two people inside. Det. Tidwell testified that as he approached the passenger's side door he saw "through the back glass . . . just kind of pills go flying everywhere." Det. Tidwell testified that he got the passenger out and "just secured" him while Det. Elliot dealt with the Defendant.
Det. Elliot's testimony at trial was consistent with his testimony from the suppression hearing. Det. Elliot testified that the CI specifically told him that there would be two black men in the car. Det. Elliot also estimated that the "street value" of the pills was over $3, 000. Det. Elliot testified that Mr. Byrd had no money on him when he was arrested, but that the Defendant had $600 in $100 bills. Det. Elliot admitted that "the most common denomination [of] currency found on drug dealers . . . would be normally [twenty dollar bills]." Det. Elliot further testified that he knew Mr. Byrd also went by the alias Michael Byrd.
Michael Bleakley testified that he was a special agent and forensic scientist for the Tennessee Bureau of Investigation (TBI). Agent Bleakley was admitted as an expert in narcotics identification. Agent Bleakley testified that he examined the pills and plant material recovered from the Defendant's car. Agent Bleakley concluded that the 108 pills found in the car were oxycodone and that the plant material found in the trunk of the car was marijuana residue. Agent Bleakley explained that at the TBI laboratory, residue was considered "anything weighing less than .03 grams."
Mr. Byrd testified on the Defendant's behalf at trial. Mr. Byrd admitted that he went by both Michael Byrd and Winfred Byrd, Jr. Mr. Byrd testified that he met the Defendant while they were both in prison. Mr. Byrd claimed that on November 7, 2012, he learned that his brother had died and that the Defendant picked him up to take him to the bus station so he could go to his brother's funeral. Mr. Byrd also claimed that the Defendant gave him $100 for a bus ticket. Mr. Byrd testified that once he was in the Defendant's car, he asked the Defendant to take him to the West Side Inn parking lot "to pick up some money from this girl that owed [him] some money." Mr. Byrd testified that the Defendant was impatient and did not want to wait for the woman because he needed to get to work.
Mr. Byrd admitted that he pled guilty in this case and that he was there to "meet Rachel to sell her some pills." Mr. Byrd also admitted that he threw the pills in the car as the police approached them. Mr. Byrd testified that he could not remember how many times he spoke to the CI on the phone that day, but admitted that he had met her "[m]ultiple times." Mr. Byrd denied that the Defendant knew anything about his plan to sell the pills to the CI. Mr. Byrd admitted that he had a prior conviction for cocaine possession and that he was "sure" the Defendant knew why he was in prison. Mr. Byrd further admitted that he testified at his guilty plea submission hearing that the Defendant's answers to Det. Elliot's questions were truthful. However, Mr. Byrd testified that he did not hear Det. Elliot question the Defendant, claimed that "a lot" of the guilty plea submission hearing was not transcribed, and claimed that he did not understand the prosecutor's questions at the hearing.
The Defendant testified that he met Mr. Byrd while they were both in prison. The Defendant explained that he spent eighteen years in prison for aggravated robbery and especially aggravated robbery convictions before he was paroled. The Defendant admitted that he knew Mr. Byrd was in prison for being a "drug dealer." The Defendant testified that once he and Mr. Byrd had both been released from prison, he "tried to help" Mr. Byrd. According to the Defendant, on November 7, 2012, he received a phone call from Mr. Byrd's aunt informing him that Mr. Byrd's brother had died. The Defendant testified that she asked him to call Mr. Byrd and tell Mr. Byrd about his brother. The Defendant claimed that he then called Mr. Byrd, told Mr. Byrd about his brother, and that Mr. Byrd said he had no way to get back home for the funeral.
The Defendant testified that he offered to buy Mr. Byrd a bus ticket and drive him to the bus station in Knoxville. The Defendant claimed that he drove to Kingsport to pick up Mr. Byrd and that he left his home in Knoxville with the television on and the coffee "running" because he was "coming straight back." The Defendant explained that he had to be at work to open the convenience store he worked at. The Defendant admitted that he was arrested with Mr. Byrd in Kingsport around 10:00 a.m., but claimed that the convenience store he worked at did not open until noon. The Defendant testified that he picked Mr. Byrd up at "his brother's house" in Kingsport and that Mr. Byrd put his bag in the trunk of the car before he got in the car.
The Defendant testified that as Mr. Byrd was getting in the car, he noticed that Mr. Byrd had a blunt of marijuana in his hand. The Defendant claimed that he told Mr. Byrd to get rid of it and that Mr. Byrd "faked like he [threw] it away." According to the Defendant, he and Mr. Byrd were on their "way back to Knoxville" when Mr. Byrd asked him to stop at the West Side Inn so Mr. Byrd could "pick up money from a girl." The Defendant testified that the woman was supposed to already be in the parking lot, but Mr. Byrd was texting her and said she was "pulling in." The Defendant stated that he parked the car and left it running, but that he was upset and worried that he was going to be late for work.
The Defendant recalled seeing a van drive by his car and park "a few cars down." The Defendant testified that "a few minutes later [he] look[ed] up and there [was] a gun pointed right at [him]." The Defendant claimed that he did not hear any commands from the police officers, but that when he saw the gun and Det. Elliot's badge, he "immediately open[ed] the door, " put his hands up, and said, "Please do not shoot me." The Defendant claimed that Det. Elliot never questioned him and that a different police officer asked him if the pills in the car were his. The Defendant testified that he told the police officers that he did not know where the pills had come from and denied knowing that Mr. Byrd planned to sell the pills to the CI.
The Defendant claimed that he had $600 on him the day of his arrest because he was planning on paying off his car loan. The Defendant testified that there were three cell phones in his car that day. The Defendant admitted that all three of the phones belonged to him, but claimed that he gave a phone to Mr. Byrd. The Defendant further claimed that he "never used [the] phone" Mr. Byrd used to call the CI and arrange the sale of the oxycodone pills. On cross-examination, the Defendant claimed, contrary to his previous testimony, that Det. Elliot actually did speak to him at the scene of the arrest and asked him how many pills were in the car and to whom the car belonged.
Based upon the foregoing, the jury acquitted the Defendant of the charged offense of possession of oxycodone with intent to sell and convicted him of the lesser-included offense of facilitation of possession of oxycodone with intent to sell. The jury also acquitted the Defendant of the simple possession of marijuana charge. Following a sentencing hearing, the trial court sentenced the Defendant to six years' incarceration as a Range II, multiple offender. The trial court ordered the Defendant's sentence to be served consecutively with the remainder of the sentence from which the Defendant had been released on parole when this offense was committed. The Defendant filed a timely motion for new trial and several amendments in which he raised the claims brought on appeal as well as ineffective assistance of counsel. The trial court denied the motion, including the Defendant's claim of ineffective assistance of counsel. The Defendant now appeals.
I. Suppression Motion
The Defendant contends that the trial court erred in denying his suppression motion. The Defendant argues that Det. Elliot lacked the requisite probable cause to seize Mr. Byrd and himself because the CI did not provide Det. Elliot with any information to suggest she had personal knowledge of what she told Det. Elliot about Mr. Byrd and the oxycodone pills. The State does not respond to the Defendant's argument regarding the CI's basis of knowledge. Rather, the State argues that "the ...