Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 13, 2015
Appeal from the Circuit Court for Bedford County No. 17739 Franklin Lee Russell, Judge.
Donna Orr Hargrove, District Public Defender; and Michael Jonathan Collins, Assistant Public Defender, for the appellant, John Wesley Couch.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Robert J. Carter, District Attorney General; Richard Aron Cawley and Michael D. Randles, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE.
This case relates to the purchase of a box of pseudoephedrine from a CVS pharmacy on March 14, 2013. At the trial, Shane George, a Shelbyville police officer assigned to the 17th Judicial District Drug Task Force, testified that pseudoephedrine was required to manufacture methamphetamine. He said people manufacturing methamphetamine commonly obtained pseudoephedrine pills from pharmacies.
Officer George testified that "the cook, " a person who manufactured methamphetamine, commonly sent individuals, such as addicts and people financially "down on their luck, " to purchase pseudoephedrine. The purchasers brought the pseudoephedrine to the cook, who reimbursed the purchasers with methamphetamine or money. Officer George said that because pseudoephedrine purchasers' names were added to the National Precursor Log Exchange, the method of sending other people to purchase pseudoephedrine protected the cook.
Officer George testified that on March 14, 2013, he was notified that a suspicious pseudoephedrine purchase was occurring at the Shelbyville CVS pharmacy. He and Drug Task Force Assistant Director Tim Miller went to the pharmacy to investigate.
Officer George identified the pseudoephedrine purchaser as Gary Michael Painter. Officer George watched Mr. Painter leave the pharmacy and sit in the front passenger's seat of a white GMC Jimmy SUV. Officer George conducted a records check on the SUV's registration plate and found that the plate was registered to a 1997, red Pontiac sedan. Officer George and Director Miller saw the SUV leave the pharmacy and travel to the Shelbyville Walmart, at which point they lost sight of the SUV.
Officer George testified that when he next saw the SUV, it was unoccupied and parked in front of a Mexican restaurant. Forty-five minutes to one hour later, Officer George observed the Defendant, Mr. Painter, and a woman leave the restaurant, get in the SUV, and drive away. The Defendant drove, Mr. Painter sat in the front passenger's seat, and the woman sat in the back passenger's seat. Officer George said he and Director Miller followed the SUV, hoping to learn whether the three would make any other stops or visit a cook. As the SUV headed toward Tullahoma, Officer George decided to conduct a traffic stop of the SUV based upon the unlawful vehicle registration.
Officer George testified that when he stopped the SUV, the Defendant was the driver. Officer George asked the Defendant for his driver's license, and the Defendant said he did not have one. When asked where he had been that evening, the Defendant did not mention the pharmacy. Officer George checked on the Defendant's license status and determined that it was suspended or revoked.
In an audio-recorded interview, Officer George asked the Defendant about the location of the box of pseudoephedrine, and the Defendant replied the box was "going back to a Billy Mays." Officer George was familiar with Billy or William Mays because Officer George knew he was a methamphetamine cook and had arrested him recently for promotion of methamphetamine manufacture.
Officer George did not remember if the Defendant told him that Mr. Painter had purchased pseudoephedrine that evening, but Officer George knew the identity of the purchaser because he had access to the pharmacy logs. Officer George said he asked the Defendant where the pseudoephedrine was located in the SUV. The Defendant replied the pseudoephedrine might be in the center console area. Officer George found in the console a box of pseudoephedrine in a CVS shopping bag along with a CVS receipt. Officer George testified that the Defendant said that Mr. Mays planned to use the pseudoephedrine to manufacture methamphetamine and that in return the Defendant would receive about a quarter to one-half gram of finished methamphetamine.
Portions of the recording were played for the jury. In the recording, Officer George asked the Defendant where "the pills" were going, and the Defendant asked if he was "going to get in trouble." Officer George replied the Defendant was in trouble, and the Defendant asked, "Are you going to carry me to jail now?" Officer George replied that it depended upon what the Defendant told him and that if Officer George received "a bunch of lies, " he would take everybody to jail. The Defendant asked how he could keep everybody out of jail, and Officer George told the Defendant to tell him the truth. The Defendant said he would do anything if Officer George kept everybody out of jail. As Officer George said he needed to know what the Defendant knew, the Defendant interjected, "Do you know Billy Mays?" Officer George replied he had recently arrested Mr. Mays.
In the recording, the Defendant asked Officer George if Mr. Mays had been arrested recently, and Officer George said yes. As the Defendant began speaking about what he was trying to do, Officer George said, "Let me explain what you are trying to do. You're trying to get a box of pseudoephedrine, you and that gentleman and that woman. . . . And you're trying to take it to [Mr. Mays] so that he can cook meth with it. Correct?" The Defendant ultimately agreed and said he was "trying to make this look good."
In the last portion of the recording that was played, Officer George asked the Defendant what the Defendant would receive from Mr. Mays in exchange for taking the box of pseudoephedrine to Mr. Mays. The Defendant said Mr. Mays would give him "[h]alf a
'G'" to be split among the Defendant and the other two people. The Defendant said that he and the other people ...