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State v. Armstrong

Court of Criminal Appeals of Tennessee, Nashville

December 5, 2016

STATE OF TENNESSEE
v.
JAMICHAEL POLK ARMSTRONG

          Assigned on Briefs October 4, 2016

         Appeal from the Circuit Court for Maury County No. 21156 Stella L. Hargrove, Judge

         The Defendant, Jamichael Polk Armstrong, was convicted by a Maury County jury of facilitation of sale of cocaine over 0.5 grams in a drug-free school zone and sentenced to ten years in the Tennessee Department of Correction, with the first eight years to be served at one hundred percent release eligibility pursuant to the Drug-Free School Zone Act (hereinafter "the Act"). On appeal, the Defendant claims that the evidence is insufficient to support his conviction and that the trial court erred by applying the Act to his facilitation conviction. Following our review, we affirm the Defendant's conviction but remand for resentencing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded for Resentencing

          L. Samuel Patterson, Columbia, Tennessee, for the Defendant-Appellant, Jamichael Polk Armstrong.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; and Brent Cooper, District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         This appeal stems from a controlled drug purchase completed by an informant working for the Columbia Police Department. The Defendant was indicted by a grand jury for the sale of cocaine over 0.5 grams within 1, 000 feet of a drug-free school zone. A jury trial began on October 10, 2013, at which time the following evidence was adduced.

         Trial. A confidential informant (CI) working for the Columbia Police Department (CPD) testified that he had purchased cocaine from a man named Michael or "Al" Harding in the past and that he agreed to help the CPD set up a controlled purchase at Harding's house on June 17, 2011. The CI said that Harding did not always have cocaine to sell but that "there was always somebody around that had it." The CI could not remember whether he spoke with Harding on the day of the purchase, but he testified that he "usually did" and that he knew he would be purchasing the drugs from an unknown "black male."

         The CI met with officers before the purchase, and he was searched and supplied with a listening device and hidden camera. He then drove to Harding's house in a police-supplied vehicle. There were at least three or four other adults present at the house when the CI arrived. The CI told Harding that he wanted $100 worth of cocaine, and Harding "made the phone call." After the call, the CI "saw the [Defendant] walking up." The CI handed the money to the Defendant, and the Defendant handed the CI the drugs in a cigarette cellophane wrapper. The CI identified a still photograph from the hidden camera, which he said showed the drugs in the Defendant's hand. The CI testified that Harding was sitting next to him during the purchase but that Harding did not participate in the purchase between the CI and the Defendant. The CI identified several other still photographs from the hidden camera, including photographs of the Defendant's face and a photograph of the drugs in the CI's hand. The CI then left Harding's house and drove back to meet the officers. The CI was paid around $120 or $125 for the purchase.

         On cross-examination, the CI admitted that he had been charged with possession of crack cocaine a few months before the undercover purchase. He confirmed that his criminal record included convictions for the sale of cocaine, burglary, theft, vandalism, forgery, and probation violation. He had been using cocaine for probably fifteen or twenty years but had been sober since June 2011. The CI also testified that he had mental health issues and struggled with major depression and manic depressive bipolar disorders. He had been paid for participating in between ten and fifteen paid undercover drug purchases with the CPD. He also admitted to using the money to occasionally buy drugs for himself in the past. The CI acknowledged that the video did not show him placing the money into the Defendant's hand.

         Officer Jason Dark testified that the CI was used to conduct the undercover drug purchase at Harding's house on June 17, 2011. Officer Dark followed the CI to the area surrounding Harding's house before the purchase, and after the purchase was completed, he followed the CI back to the police department where the officers recovered the drugs the CI had purchased. Officer Dark testified that, before a purchase, officers would search an informant, photocopy any currency they planned to use for the purchase, and provide an electronic listening device and a camera for the informant. Officer Dark confirmed that if an informant participated in an undercover purchase to help with his own charges he would not also be paid. Officer Dark also testified that he used a computer program developed by the Planning Department of the City of Columbia to determine the distance between the undercover purchase location and the nearby College Hill School, [1] which was 747 feet.

         On cross-examination, Officer Dark confirmed that the CI had worked with the CPD in the past as a confidential informant, including a case in May 2011, a few months before the undercover purchase, in which Harding sold to the CI. Officer Dark also confirmed that he was not able to physically observe the transaction between the CI and the Defendant. Officer Dark testified ...


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