Court of Criminal Appeals of Tennessee, Nashville
Session Date: May 12, 2015
Appeal from the Criminal Court for Davidson County No. 2012-B-1806 Seth W. Norman, Judge
Michael A. Colavecchio, Nashville, Tennessee, for the Appellant, Anthony James Zonneville.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Victor S. Johnson III, District Attorney General; and Shannon E. Poindexter, Assistant District Attorney General, for the Appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
A Davidson Grand Jury indicted the Defendant in Count 1 of possession with intent to sell or deliver .5 grams or more of a substance containing cocaine within 1, 000 feet of a school and in Count 2 of possession with intent to sell or deliver Alprazolam within 1, 000 feet of a school. The jury found the defendant guilty as charged in Count 1 and guilty of possession of schedule IV in Count 2. Pursuant to a Sentencing Agreement, the Defendant was sentenced to the mandatory minimum sentence of 15 years' incarceration to be served at 100% in Count 1 and eleven months and 29 days in Count 2, concurrent with Count 1. The sentence was ordered to be served consecutively to case 2012-B-1210 for a total effective sentence of 31 years. The trial court overruled the motion for new trial, and this timely appeal followed.
The Defendant challenges the sufficiency of the evidence as it relates to Count 1 only and claims the trial court erred in not granting the motion for new trial.
Metropolitan Nashville Police Department (MNPD) Detective Jason Wong and his partner, Officer Watkins, were dispatched sometime between 8:00 and 9:00 p.m. on May 8, 2012, to a Nashville address on a complaint of narcotics being sold. At first, Detective Wong accidentally drove past the duplex at the address. However, after realizing his mistake, he parked his car and walked back. As he walked toward the duplex, he observed two people sitting in a vehicle parked in the driveway. He approached from the rear on the driver's side as Officer Watkins approached on the passenger side. The driver's side window was down and he overheard the Defendant ask the passenger, "[h]ow much do you need?" He observed that the Defendant had in his lap some pills in one plastic baggie and a white substance in another plastic baggie. The Defendant was breaking off a piece of a white, rocky substance. Detective Wong stood by the window approximately one foot from the vehicle for approximately 45 seconds before the occupants realized he was there. He then announced himself, removed the Defendant from the driver's side of the vehicle, and placed him under arrest. His partner removed Dawn Stamps from the passenger side of the vehicle and placed her under arrest. The Defendant was searched, and $579 was found on his person. The vehicle was searched and eight items were seized as evidence. Detective Wong signed and submitted the Property/Evidence report at approximately 1:00 a.m. the next morning. The report lists under Property Description: 4.3 grams of cocaine, 1.3 grams of cocaine, 1.5 grams of cocaine, .4 grams of cocaine wrapped in a $5 bill, 15 Xanax pills, bottle of Naproxen containing 7 pills, LG Verizon black cell phone, and $579 U.S. currency.
On cross-examination, Detective Wong stated he was not surprised that certain details, such as his standing by the window for approximately 45 seconds and overhearing the conversation between the driver and passenger, were not included in the arrest report. When asked what he recovered from Ms. Stamps, Detective Wong said he found a folded five dollar bill containing .4 grams of cocaine between the passenger's seat and the center console. He stated he found a plastic corner baggie containing Xanax in the front driver's side floorboard. Detective Wong did not recall if Ms. Stamps had any money on her person but knew that no money was seized or recovered from her. No scales or unused baggies were found in the vehicle.
On redirect examination, Detective Wong testified he found three plastic baggies containing cocaine, one containing 4.3 grams, another containing 1.3 grams, and a third containing 1.5 grams. He observed the Defendant's breaking off part of the substance in the baggie later found to contain 4.3 grams of cocaine. He said it is common for the person buying cocaine to receive it wrapped in a one dollar or five dollar bill. He said Ms. Stamps was charged with simple possession of cocaine.
MNPD Detective Nicholas McClusky responded to the address at the request of Detective Wong. When he arrived, the Defendant and Ms. Stamps were in custody. He field tested and weighed the white substance found in the three baggies. The substances tested positive for cocaine base. He recalled the three baggies weighed 4.3 grams, 1.4 grams, and 1.3 grams, but he stated that he would need to check the paperwork to be sure of the weights.
MNPD Property and Evidence Lab Clerk Lou Ann Corcoran submitted the evidence, a submittal form, and a Request for Examination to the Tennessee Bureau of Investigation (TBI). She said each piece of evidence was marked with a tracking barcode linked to the complaint number. She identified the copy of the Property and Evidence Report that ...