Assigned on Briefs September 7, 2016
from the Circuit Court for Madison County No. 15-211 Roy B.
Morgan, Jr., Judge
a jury trial, the Defendant, Gerald Lamont Byars, was
convicted of attempted possession of 0.5 grams or more of
cocaine with intent to sell, attempted possession of 0.5
grams or more of cocaine with intent to deliver, simple
possession of marijuana, and possession of drug
paraphernalia. The jury also found that the two attempted
cocaine possession offenses constituted criminal gang
offenses, and the Defendant received enhanced punishment-a
sixteen-year sentence, with the attempted cocaine possession
counts and the gang enhancement counts all being merged into
a single conviction. He now appeals as of right, arguing (1)
that the evidence was insufficient to support his attempted
cocaine possession convictions and the gang enhancement
violations; (2) that the trial court erred by qualifying a
Haywood County Sheriffs Officer as an expert in gang
activity; (3) that the gang enhancement statute, Tennessee
Code Annotated section 40-35-121, is unconstitutional,
entitling him to plain error relief; and (4) that his
sixteen-year sentence is excessive. Following our review of
the record, we ascertain no error in the guilt phase of the
trial on the underlying attempted cocaine possession offenses
in Counts 1 and 2. However, because the criminal gang
enhancement statute as employed by the State in the guilt
phase of the trial on Counts 5 and 6 violates the Due Process
Clause of the Fourteenth Amendment and is facially
unconstitutional, plain error requires us to reverse the
judgments of the trial court in Counts 1, 2, 5, and 6, vacate
and dismiss the criminal gang enhancements in Counts 5 and 6,
and remand for modification of the judgments in Counts 1 and
2 and a new sentencing hearing on those counts. Because the
Defendant does not challenge his misdemeanor convictions or
sentences in Counts 3 and 4, those judgments are affirmed.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Court Affirmed in Part, Modified in Part, Reversed in Part,
Morton Googe, District Public Defender; and Jeremy B.
Epperson, Assistant District Public Defender, for the
appellant, Gerald Lamont Byars.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; James G.
(Jerry) Woodall, District Attorney General; and Jody S.
Pickens, Assistant District Attorney General, for the
appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
KELLY THOMAS, JR., JUDGE
case arises from undercover surveillance of a residence at
109 Newton Street in Jackson and the ultimate search of that
residence on July 10, 2014. On April 27, 2015, the Madison
County Grand Jury returned a six count-indictment against the
Defendant, charging him with alternative counts of possession
of 0.5 grams or more of cocaine with intent to sell or
deliver (Counts 1 and 2), a Class B felony; possession of
marijuana (Count 3), a Class A misdemeanor; possession of
drug paraphernalia (Count 4), a Class A misdemeanor; and two
counts (Counts 5 and 6) of violation of the criminal gang
enhancement statute predicated on the underlying offenses in
Counts 1 and 2, elevating those offenses one conviction
class. See Tenn. Code Ann. §§ 39-17-417,
-418, -425(a)(1) & 40-35-121(b). The Defendant proceeded
to a trial by jury, where the following facts were adduced
during a bifurcated proceeding.
Tikal Greer with the Jackson Police Department testified that
he had been conducting surveillance at the 109 Newton Street
address for several days prior to July 10, 2014. During that
time, Inv. Greer observed the Defendant's comings and
goings from that residence. Inv. Greer also determined that
the home's utilities were registered in the
Defendant's name. Ultimately, based upon certain
observations, a search warrant was issued for the residence,
and on July 10, 2014, at 8:00 a.m., officers executed that
search warrant. Because no one answered the door, the
officers forced their way inside by ramming the door off the
hinges. According to Inv. Greer, it was then determined that
the residence was unoccupied.
searching the residence, officers found four individually
wrapped bags of cocaine and a small bag of marijuana on top
of a kitchen cabinet. According to Inv. Greer, the
Defendant's "kitchen cabinet was pretty close to the
ceiling, so they had to stand on top of the actual cabinet to
get to it." Inv. Greer stated that testing later
revealed that the bag of marijuana contained 0.6 grams and
that the four bags of cocaine amounted to 16.6 grams of
Greer testified that a digital scale and "a mixing
tool" were found in the kitchen drawer immediately below
the drugs, and the scale had a white powdery substance on it
that field-tested positive for cocaine. Inv. Greer also
observed a one dollar bill in the drawer and that bill had
"cocaine residue inside of it." Inside the cabinet
directly below that drawer, officers retrieved two Pyrex
measuring cups, which also field-tested positive for cocaine.
Additionally, plastic baggies were discovered "right
beside" the microwave on the kitchen counter. Inv. Greer
explained that drug users "will normally" put
cocaine inside a Pyrex measuring cup "mix[ing] it with
baking soda to make crack" or "mixing it with other
enhancements to actually cut it just to make more
cocaine." He stated that drug traffickers might also use
the Pyrex cup to "actually put the cocaine in it and
pour it on a digital scale to weigh it" during the
resale process. Moreover, a digital scale was "used for
weighing purposes" when packaging narcotics, according
to Inv. Greer. Inv. Greer detailed the process of making
"crack cocaine" for the jury.
upon Inv. Greer's "training and experience, "
all of these items found together indicated a
"resale" operation. According to Inv. Greer, the
"street value" of 16.6 grams of powder cocaine was
approximately $1600, and if that amount was converted into
crack cocaine, it had "six times" that value.
However, the "small amount" of marijuana was
"consistent with personal use[, ]" in Inv.
was located throughout the residence with the Defendant's
name on it-one letter showed a recent postmark of June 5,
2014. Two medicine bottles that had the Defendant's name
on them were found alongside the digital scale, mixing tool,
and dollar bill in the kitchen drawer. Also, a belt with the
Defendant's last name on it was found in the master
bedroom, and officers located a checkbook reflecting the
Defendant as the account holder. Two additional one-dollar
bills with cocaine residue were found in other locations
inside the home. The Defendant's work ledger was
discovered in the master bedroom and showed his work schedule
at Owens Corning Fiberglass.
the search was conducted, the Defendant was arrested at Owens
Corning. The Defendant was in possession of approximately
$783 at the time of his arrest.
incarcerated in the county jail, the Defendant placed a phone
call to his mother. During that call, the Defendant said,
"It was time to stop, anyway." A recording of the
call was played for the jury. The Defendant placed a second
call to a female that was also recorded. During this
conversation, the Defendant stated to the female that
"they took all [of his] money" he had "just
got" but that he was still in possession of the
"money where [he] got paid yesterday."
cross-examination, Inv. Greer acknowledged that several of
the items were normal household items found in a kitchen. He
also agreed that drug users, as well as sellers, often owned
digital scales to weigh their drugs. Furthermore, Inv. Greer
confirmed that the presence of the three one-dollar bills in
the home indicated personal cocaine usage.
concluded the State's proof, and the Defendant presented
testimony from Monica Turner in his defense. Ms. Turner
testified that she lived with the Defendant at the 109 Newton
Street address on July 10, 2014, when the search was
conducted. She claimed that one of the one-dollar bills found
in the bathroom of the home belonged to her and that she and
the Defendant used the bill when they did cocaine. Ms. Turner
asserted that she had no knowledge of the drugs found inside
cross-examination, Ms. Turner stated that she obtained the
drugs from "[d]ifferent places." She also estimated
that, in July 2014, she made approximately $9.75 per hour at
her job and that the Defendant made $11.00 per hour at Owens
Corning. She testified regarding the household expenses and
agreed that neither she nor the Defendant would have
sufficient funds to purchase $1600 worth of cocaine, the
amount found inside the home. Ms. Turner averred that, if
that amount of cocaine was found in the residence, she had
"no idea" how it got there and that it must have
belonged to the Defendant. She also stated that any digital
scales with cocaine residue on them, as well as any Pyrex
measuring cups, were the Defendant's and not hers. She
claimed that, if she ever brought cocaine into the house, she
usually "finished it up[.]"
the jury convicted the Defendant of the lesser-included
offense of attempted possession of 0.5 grams or more of
cocaine with intent to sell in Count 1; of the
lesser-included offense of attempted possession of 0.5 grams
or more of cocaine with intent to deliver in Count 2; as
charged, of simple possession of marijuana in Count 3; and as
charged, of possession of drug paraphernalia in Count 4.
Gang Enhancement Phase.
outset of this second phase, the trial court conducted a
jury-out hearing because the Defendant objected to Sergeant
Shawn Williams's testifying as an expert in street gangs.
Sgt. Williams, with the Haywood County Sheriff's Office
("HCSO"), was called to the stand and began by
recounting his employment history. Sgt. Williams stated that
he was first hired by the Brownsville Police Department
("BPD") in February 1989 and worked for that agency
for approximately twenty-two and one-half years. During his
time with the BPD, he received training pertaining to gangs
and narcotics law enforcement. He was also involved in
federal and state investigations, including the "OCDETF
task force" from 1998 to 2005, a task force that was
sponsored by the Federal Bureau of Investigation and
"targeted the Black Gangster Disciple Nation street gang
in Haywood County." Sgt. Williams stated that he had led
and participated in "hundreds" of drug and gang
investigations "throughout [his] career" and that
those investigations often involved the execution of search
warrants and use of confidential informants or
"cooperating sources." According to Sgt. Williams,
he first began investigating the Gangster Disciples when he
"was named the first gang investigator" for the BPD
in October 1994. Sgt. Williams confirmed that he retired from
the BPD in August 2011, and then went to work for the Mason
City Police Department as a gang investigator for
approximately six months before taking his present job with
the HCSO as "a patrol officer, a narcotics investigator
and gang investigator[.]" He agreed that his
"primary focus in law enforcement ha[d] been the
investigation of street gangs."
his résumé as a gang expert, Sgt. Williams
detailed his extensive training and certifications, his
memberships in professional organizations, the offices he had
held in several gang investigators associations, and the
occasions on which he had provided group instruction on the
topic. Sgt. Williams said that he had testified four times in
court "concerning the presence of street gangs" and
also four times about "someone's membership in a
street gang[.]" According to Sgt. Williams, during his
"law enforcement experience and training, " he had
become familiar with "the organizational structure of
street gangs, " "their style of dress, "
"their symbols that they use, " and their
"tattoos." Sgt. Williams estimated that, since
1994, seventy-five to eighty-five percent of his work had
dealt "with the investigation of, identification of,
[and] the prosecution of street gang members[.]"
cross-examination, the defense asked Sgt. Williams why he
retired from the BPD. Sgt. Williams replied that he retired
"because, number one, [he] was tired of the politics,
and number two, [he] was tired of being accused of and
investigated for things [he] didn't do." Sgt.
Williams confirmed that he had been investigated for
"improper disposal of sensitive items which were in
evidence[.]" While there was never any finding of
criminal wrongdoing, according to Sgt. Williams, he was
informed that the TBI found that "several policies and
procedures of the police department" had been violated.
He asserted that he was not told any specifics about what
policies and procedures he had violated due to his decision
to voluntarily retire. Sgt. Williams also agreed that he had
received a written reprimand in September 2014 for
"[i]nappropriate communication with dispatch" based
upon his use of "unprofessional language"; however,
no further action was taken, according to Sgt. Williams.
trial court concluded that the defense could not ask Sgt.
Williams about these disciplinary incidents as impeachment
evidence or as a method of attacking Sgt. Williams's
qualifications. The trial court reasoned as follows:
First of all, this inappropriate communication, I guess using
inappropriate words or responding back to dispatch, would
certainly not go to credibility, truthfulness issue and I
don't think has anything to do with his qualifications as
an expert . . . .
Now as far as the other matter, dealing with the TBI
investigation, I'm looking at the press release. . . . It
doesn't say what the BPD policies and procedures were, it
just says they've been addressed. It clearly says TBI
didn't find [Sgt. Williams] violated criminal laws, and
it said they just uncovered several policy and procedures had
been-had not been followed. It doesn't talk about
willfulness, intentional. It clearly rules out criminal.
. . . .
The court is of the opinion that . . . it's not for
impeachment purposes, wouldn't be proper consideration.
It really doesn't go to his scientific, technical or
otherwise specialized knowledge and training in this area. I
don't-with the lack of any further information, I
don't find it would be proper.
. . . .
I'm not going to allow it at this point due to the
vagueness of the whole situation. It's just not specific.
It would be very misleading I think to the trier of fact.
Williams then gave testimony about how his expertise
specifically pertained to the Defendant's case.
Thereafter, the trial court determined that Sgt. Williams had
specialized knowledge on street gangs, that his
qualifications were sufficient to declare him an expert in
the area of gang activities, and that his testimony would
substantially assist the jury. That concluded the hearing out
of the jury's presence.
Tikal Greer was recalled before the jury and identified some
photographs he had taken at the Defendant's residence. He
testified that he photographed a different belt that had been
found on the bedroom dresser across from the aforementioned
belt with the Defendant's last name on it. This second
belt was blue and white and had "DUES PAID" printed
on the belt strap and "BLAC" on the belt buckle.
Inv. Greer stated that he photographed this belt believing it
to be "gang paraphernalia dealing with the Gangster
Greer also observed the Defendant's tattoo on his right
shoulder, which he described as "a heart with wings on
it, pitchfork, a crown" and had the initials
"BOD" or "BOS" above it. According to
Inv. Greer, the tattoo was "associated with the Gangster
Disciples." On cross-examination, Inv. Greer
acknowledged that the tattoo "appeared old."
Gilley testified that he had worked for the Jackson Police
Department almost eleven years, serving as a patrolman for
four years, then on the "street crimes unit"
approximately one year, and then on "[t]he gang
enforcement team" for six years. He currently worked for
Madison County Metro Narcotics, holding that position for
only a few months. Ofc. Gilley testified that he had received
training in and had experience dealing with street gangs. He
also detailed his extensive knowledge, education, and
experience on the subject.
Gilley confirmed that he was familiar with a street gang
called the "Gangster Disciples." The Gangster
Disciples was a national gang originating in Chicago, and
Ofc. Gilley had been investigating the local chapter of this
gang since 2010. Ofc. Gilley described the gang's
organizational structure as similar to a "pyramid
scheme" with the "people at the very top"
making the most money. According to Ofc. Gilley, the
"predominant function" of the Gangster Disciples
had always been "narcotics trafficking, " cocaine
specifically, and "having membership to this
organization essentially is sending money back to the
organization, the chairman." In addition, Ofc. Gilley
said that Gangster Disciples engaged in other illegal
activities associated with drug sales:
[Y]ou're going to have beefs over territories to sell
those drugs, you're going to have shootings and homicides
that come along with that. You're going to have
everything from robbery-You know, they're not going to
accept someone trying to sell drugs in their territory, so
the first thing they're going to do is rob them, take
everything they have, tell them to get out of there, you
know, that's their turf.
Gilley confirmed that the Gangster Disciples was the
"most organized gang" in Jackson and Haywood
County, with a significant membership. There was a
"close association" between Gangster Disciples
members in Jackson and Haywood County, according to Ofc.
Gilley. Ofc. Gilley was also familiar with specific
individuals in these areas, identifying Terrell Lamont Reed,
Byron Purdy, William Arnold, Tommy Champion, Michael Anthony
Smith, and Marvin Sangster, whom Ofc. Gilley described as
"documented members" of the Gangster Disciples.
Ofc. Gilley explained that documented membership was based
upon a ten-point scale system, where points are awarded for
certain behaviors. Each behavior or factor was given a point
value, and if an individual achieved ten points on the check
list, then he or she was considered a gang member. For
example, according to Ofc. Gilley, Terrell Reed admitted to
being a gang member, which gave him nine points; Reed
affiliated with other gang members, which gave him
"another couple of points"; and Reed had
gang-related tattoos again giving him "another couple of
points, " placing Reed close to twenty points on a scale
Gilley said that Reed was convicted on June 24, 2015, of
possession of cocaine with intent to sell and possession of a
firearm by a convicted felon, and Reed pled guilty to gang
enhancement at that time, specifically being a member of the
Gangster Disciples. Reed was also convicted of aggravated
assault on August 26, 2011, and sale of cocaine on May 2,
2007. According to Ofc. Gilley, Reed was "chief of
security for the governor of the State of Tennessee, "
who was Purdy, and Purdy resided in Jackson. The other
individuals identified by Ofc. Gilley were also in "that
higher echelon" of Gangster Disciples membership.
Gilley identified Michael Smith as "an associate"
who, when not imprisoned, had "served as enforcer and
also chief security for the governor of the entire
state." Ofc. Gilley described the duties of these
positions: the enforcer does "whatever muscle work needs
to be done as far as shootings, assaults, anything like
that"; and the chief of security "keep[s] up with
all the firearms for the gangs, make[s] sure that they know
the status the gang is on or if they're in a heat with
someone, to make sure the right people are armed." Ofc.
Gilley further testified that Smith had likewise admitted to
being a member of the Gangster Disciples, that Smith had
"also done other things on the point of scale to get him
well above that [ten] mark[, ]" and that Smith had been
convicted of possession of marijuana with intent to sell,
unlawful possession of a firearm, and assault.
Tommy Champion, he had also served as enforcer for the
Gangster Disciples, had admitted affiliation with the
Gangster Disciples, and had "met the requirements of
that same [ten]-point scale[, ]" according to Ofc.
Gilley. Champion had convictions for possession of cocaine
with intent to sell or deliver, possession of a firearm
during the commission of a dangerous felony, assault, and
unlawful possession of a firearm (two counts). Ofc. Gilley
said that a firearm was a "common tool" for those
involved in the drug trade and the "gang
Ofc. Gilley discussed how gangs use social media:
They use it for several things, to communicate with one
another, also they use it as a recruitment tool because, you
know, everybody is letting their kids on social media now.
Gangster Disciples will actually begin recruiting kids as
young as [ten] years ...