Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs September 16, 2014
Direct Appeal from the Circuit Court for Sullivan County No. S50833 R. Jerry Beck, Judge
Kenneth E. Hill (on appeal), Kingsport, Tennessee, and Perry L. Stout (at trial), Johnson City, Tennessee, for the appellant. Brent Allen Blye.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Barry Staubus, District Attorney General; and William Harper, Assistant District Attorney General, for the appellee, State of Tennessee.
NORMA McGee Ogle, J., delivered the opinion of the court, in which ROGER A. PAGE and ROBERT H. MONTGOMERY, JR., JJ., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
On June 22, 2005, the appellant was charged by presentment with count one, possession of 26 grams or more of cocaine, a Class B felony; count two, possession of dihydrocodeinone, a Class A misdemeanor; and count three, possession of less than one-half ounce of marijuana, a Class A misdemeanor. At trial, the following evidence was adduced:
On November 12, 2004, Detective Jason Grant Bellamy of the Kingsport Police Department, accompanied by Detective Mark Mason and Officer Jeff Kendrick, went to the Comfort Inn in Kingsport, Tennessee to look for the [appellant]. When they arrived at the hotel, Detective Bellamy asked the staff if the [appellant] had rented a room. When the staff told him that the [appellant] did not have a room at the hotel, he asked if Savonna Collier, who had been seen with the [appellant] and identified as his girlfriend, had rented a room. They learned that Ms. Collier had rented room 264.
Detective Bellamy and the other officers went to room 264. Ms. Collier answered the door, and after they identified themselves, Ms. Collier allowed them to come inside. They found the [appellant] asleep on the bed closest to the door, wearing only a thin shirt, jeans, and socks. They arrested the [appellant]. After the [appellant] was taken from the room, Ms. Collier asked Detective Bellamy if he would let the [appellant] have his jacket, which had been underneath the [appellant] on the bed. Detective Bellamy retrieved the jacket from the bed and searched it. Inside the jacket, he found three blue pills labeled "Watson 5-4-0" and a prescription bottle filled with what appeared to be crack cocaine. Detective Bellamy collected the evidence and asked Ms. Collier to accompany him to the police station. Ms. Collier complied, and by that time, the [appellant] had already left in a patrol car. Once they arrived at the police station, Detective Bellamy gave the items retrieved from the jacket to Detective Sean Chambers, who identified the contents of the pill bottle as cocaine. Detective Chambers spoke with Ms. Collier, who gave him the key to the hotel room.
Detective Chambers went to the hotel with Detective Sergeant Dale Phipps and Detective Steve Hammonds. They searched Ms. Collier's room and found several items in the drawer of the table that was located between the two beds in the room. Inside the drawer, Detective Chambers found a plastic bag that contained approximately six other plastic bags. In two bags, he found plant material. In three bags, he found a white substance. In another bag, he found tan-colored rocks. He also found "cash in the amount of $612" and two receipts. Both receipts referenced the [appellant]. In the storage area underneath the drawer of the table, Detective Bellamy found several tan-colored rocks on top of a Comfort Inn notepad. On the bed closest to the door, he found a cigarette box that contained a blue pill, labeled "Watson 5-4-0" and a small amount of plant material. He found a blue shirt on the same bed, and in the left pocket of the shirt, he found a hand-rolled cigarette. He continued to search the rest of the room but did not find anything else. The room did not contain any baggage or clothing other than the blue shirt found on the bed. The room also did not contain any crack pipes, straws, or syringes that may have been used to ingest the drugs found in the room. Detective Chambers later learned that a razorblade had been found on the [appellant]. Detective Chambers then went to the hotel office and retrieved a copy of the registration form, which showed that the room was registered to Ms. Collier and that two individuals were staying in the room.
According to Detective Chambers, the approximate value of the cocaine found in the hotel room was $3, 000. His estimate was based on the weight of the cocaine and the "going price in the city of Kingsport." He stated that the crack rocks that were found in the room would normally be sold as "individual rocks" after they were "broken down into smaller quantities." He also stated that the crack rocks could be sold as they were found.
The rocks found in the pill bottle contained cocaine base and weighed 16.84 grams. The white powder found in the three bags contained cocaine and weighed 6.93 grams. The rocks found in the other plastic bag contained cocaine base and weighed 1.79 grams, .44 grams, and 4.36 grams. The rocks found in the storage area of the bedside table contained cocaine base and weighed .39 grams. Thus, there was a total of 23.8 grams of crack rocks, and 6.93 grams of powder cocaine. The plant material was tested and found to contain marijuana, and the total weight of the plant material was 5.9 grams. The blue pills were tested and found to contain Dihydrocodeinone, a Schedule III drug.
Brent A. Blye v. State, No. E2012-02626-CCA-R3-PC, 2013 WL 3973468, at *1-2 (Tenn. Crim. App. at Knoxville, Aug. 5, 2013); see also State v. Brent Allen Blye, No. E2008-00976-CCA-R3-CD, 2011 WL 529515, at *5-7 (Tenn. Crim. App. at Knoxville, Feb. 14, 2011).
At trial, the defense argued that the appellant was in the motel room for reasons other than dealing drugs and that the drugs belonged to Ms. Collier. The jury rejected the appellant's argument and convicted the appellant of the charged offenses. The appellant pursued a direct appeal; however, he failed to file a timely motion for new trial, and this court's review was limited to addressing the sufficiency of the convicting evidence. Blye, No. E2008-00976-CCA-R3-CD, 2011 WL 529515, at *3-4. Upon concluding that the evidence was sufficient, this court affirmed the appellant's convictions. Id. at *7.
Thereafter, the appellant filed a petition for post-conviction relief, which was denied by the court. On appeal, this court remanded the case to the trial court "to determine whether, but for counsel's deficient performance, a motion for new trial would have been filed raising issues in addition to sufficiency of the evidence." Blye, No. E2012-02626-CCA-R3-PC, 2013 WL 3973468, at *12. On remand, the trial court found that the appellant was entitled to a delayed appeal.
Subsequently, the appellant filed a motion for new trial, raising numerous issues, including (1) that the trial court erred by refusing to allow the appellant to question Ms. Collier about her prior convictions and charges; (2) that the trial court erroneously instructed the jury that they could not consider comments about Ms. Collier as evidence; (3) that the trial court failed to instruct the jury on various lesser-included offenses; (4) that the trial court erred by instructing the jury that "possession/casual exchange" required the mens rea of recklessness; and (5) that the trial court erred by allowing Detective Chambers to testify about the value of the drugs. The trial court denied the motion, and the appellant timely filed a notice of appeal.
A. Co-Defendant's Criminal History
The appellant first challenges the trial court's decision to limit his direct examination of his co-defendant, Ms. Collier. The record reflects that prior to the close of the State's proof, defense counsel announced his intention to call Ms. Collier as a defense witness. The trial court stated that Ms. Collier, who was represented by counsel, might invoke her Fifth Amendment protection against self-incrimination. Defense counsel argued that he should be allowed to question Ms. Collier about her prior record for which she had no Fifth Amendment privilege. Defense counsel explained:
[T]he prior record concerns prostitution. And the theory being that there's two people in the room. The cocaine has to belong to somebody. She rented the room herself in cash. And there was no luggage or clothing in the room, so there could be more going on in the room than selling dope.
[A]s long as I don't ask her anything that would incriminate her to be charged with a crime presently, she's just another witness and answering questions.
The trial court noted that defense counsel was "correct to a point" but that "there's got to be a theory, a legal theory that I can let that type of testimony in. I know where you're going. You want to show she's a prostitute." Defense counsel clarified, "No. That she has been in the past." The trial court stated that the questioning would violate Ms. Collier's Fifth Amendment right against self-incrimination, noting that Ms. Collier could be indicted if she admitted to prostitution in the motel room.
The trial court again asked defense counsel to provide a legal basis for questioning Ms. Collier about her prior criminal history. The court noted that defense counsel could not question Ms. Collier pursuant to Tennessee Rule of Evidence 404(b) because "if this was a defendant under 404(b) . . ., you can't use it to show a propensity to commit a crime." Defense counsel answered, "I'm really just at a loss[.]" The trial court referred to Tennessee Rule of Evidence 404(a) but noted that "this is not the criminal accused we're dealing with, and we're not dealing with a victim" and that "you're not offering this for impeachment, you're offering it as substantive evidence."
The trial court held a jury-out hearing so that counsel could question Ms. Collier. The court noted that her attorney was present. As soon as defense counsel began questioning Ms. Collier, her counsel immediately objected, advising the court that Ms. Collier would be invoking her Fifth Amendment right and that "I don't want her to say anything that touches the facts of the charges." The trial court asked Ms. Collier if she intended to invoke her Fifth Amendment right against self-incrimination regarding what occurred in the motel room, and Ms. Collier responded in the affirmative. Defense counsel then asked Ms. Collier how she met the appellant, and she again invoked her Fifth Amendment right. The trial court stated that Ms. Collier could invoke the Fifth Amendment because "that shows her association" with the appellant. Upon further questioning by defense counsel, Ms. Collier acknowledged that she was arrested in Nevada on March 31, 2004, for "solicitation or engaging in prostitution" but said that she had never gone to court on that charge. She acknowledged being arrested in Florida for prostitution on January 28, 2005, and on March 10, 2005, but denied being convicted of either charge. She ...