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Johnson v. State

Court of Criminal Appeals of Tennessee, Nashville

March 9, 2017


          Assigned on Briefs: February 23, 2017 at Knoxville

         Appeal from the Criminal Court for Davidson County No. 2012-B-1770 Cheryl A. Blackburn, Judge

         The petitioner, Timothy Allen Johnson, appeals the denial of post-conviction relief from his 2013 Davidson County Criminal Court jury conviction of tampering with evidence, for which he received a sentence of 12 years. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

          Jessica Van Dyke, Nashville, Tennessee, for the appellant, Timothy Allen Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.



         Originally charged with one count each of the sale of less than .5 grams of cocaine in a drug-free school zone, tampering with evidence, and resisting arrest, the petitioner pleaded guilty to resisting arrest in exchange for a six-month sentence, and the trial court ultimately declared a mistrial as to the sale of cocaine when the jury was unable to reach a verdict.[1] A Davidson County Criminal Court jury convicted the petitioner of one count of tampering with evidence, and the trial court imposed a 12-year sentence as a persistent offender to be served concurrently to the petitioner's six-month sentence for resisting arrest. This court affirmed the convictions on direct appeal. See State v. Timothy Allen Johnson, No. M2014-00766-CCA-R3-CD (Tenn. Crim. App., Nashville, Mar. 2, 2015).

         In Timothy Allen Johnson, this court stated that the "case arose out of an incident where the [petitioner] agreed to obtain crack cocaine for two undercover police officers to purchase." Id., slip op. at 1.

Detective Michael Donaldson testified that on the evening of March 27, 2012, he and his partner, Detective Brittany Shoesmith, were participating in a "buy-bust" operation. In a "buy-bust" operation, undercover detectives pose as drug users to purchase a controlled substance from a target. Once the purchase is complete, a "takedown team" immediately arrests the seller. The members of the takedown team wear "clearly marked raid gear" identifying themselves as police officers, and they move into position to arrest the seller after receiving a "takedown signal" from the undercover officers. On the evening of the incident, Detectives Donaldson and Shoesmith were playing the role of drug purchasers. In order to maintain their cover, the detectives were in an unmarked vehicle that did not have police lights or sirens.

Id., slip op. at 1-2. After the undercover detectives encountered the petitioner and asked him for drugs, the petitioner eventually managed to procure "'a bag of crack' that appeared to be an eighth of an ounce." Id., slip op. at 2, 3. The drug transaction took place in the detectives' unmarked car. Id. Detective Donaldson observed that the "drugs were in a corner portion of a ziploc baggie that had been torn away from the main bag." Id., slip op. at 3.

When Detective Donaldson remarked that the amount seemed like "a lot for a thirty[, ]" the [petitioner] responded that not all of the drugs were for Detective Donaldson. The [petitioner] opened the bag and gave Detective Donaldson thirty dollars worth of crack cocaine. Detective Donaldson secured the drugs by placing them into an ashtray, and Detective Shoesmith continued to drive. Detective Donaldson then gave the "takedown" signal.
An officer on the takedown team pulled in front of the vehicle and activated his blue lights. Detective Donaldson heard the [petitioner] say, "[I]t's the vice, it's the vice." Detective Donaldson turned toward the backseat and witnessed the [petitioner] placing both the plastic bag and its contents into his mouth in an attempt to ingest the remaining amount of drugs. Detective Donaldson began to wrestle with the [petitioner] to prevent him from consuming the drugs as the takedown team was running toward the vehicle. The takedown team wore "raid gear that sa[id] police all over the front of it and all over the back of it." The [petitioner] fought with the officers who attempted to remove him from the vehicle, and officers had ...

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