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.
OPINION
JAMES
CURWOOD WITT, JR., JUDGE
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 ...