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State v. Byars

Court of Criminal Appeals of Tennessee, Jackson

February 27, 2017

STATE OF TENNESSEE
v.
GERALD LAMONT BYARS

          Assigned on Briefs September 7, 2016

         Appeal from the Circuit Court for Madison County No. 15-211 Roy B. Morgan, Jr., Judge

         Following 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part, Modified in Part, Reversed in Part, and Remanded

          George 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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         This 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.

         1. Guilt Phase.

         Investigator 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.

         Upon 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 "powder cocaine[.]"[1]

         Inv. 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.

         Based 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. Greer's opinion.

         Mail 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.

         After 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.

         While 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."

         On 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.

         That 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 the residence.

         On 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[.]"

         Thereafter, 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.

         2. Gang Enhancement Phase.

         At the 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."

         Regarding 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[.]"

         On 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.

         The 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.

         Sgt. 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.

         Inv. 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 Disciples."

         Inv. 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."

         Samuel 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.

         Ofc. 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.

         Ofc. 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 of ten.

         Ofc. 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.

         Ofc. 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.

         Regarding 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 lifestyle[.]"

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 ...

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