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State v. Gossett

Court of Criminal Appeals of Tennessee, Jackson

March 28, 2017

STATE OF TENNESSEE
v.
MARCHELLO KARLANDO GOSSETT Count Offense Classification Offense Date Count Offense Classification Offense Date

          December 6, 2016 Session

         Appeal from the Circuit Court for Tipton County No. 8083 Joe H. Walker, III, Judge

         The Defendant, Marchello Karlando Gossett, was convicted by a Tipton County jury of possession with intent to deliver 0.5 grams or more of cocaine and two counts of felony possession of a handgun and was sentenced to serve thirty years at sixty percent in the Department of Correction. On appeal, the Defendant contends that: (1) the trial court erred by denying his motion to dismiss the indictment; (2) the evidence was insufficient to support his conviction for possession with intent to deliver 0.5 grams or more of cocaine; (3) the trial court erred by failing to compel the State to disclose information about the confidential informant; (4) the trial court erred in curtailing the Defendant's cross-examination of the confidential informant; (5) the trial court erred in denying his motion for a mistrial; (6) the trial court erred by allowing the State to introduce inadmissible hearsay into evidence; (7) the State committed prosecutorial misconduct; (8) the trial court erred in admitting certain exhibits into evidence when the State failed to establish chain of custody; (9) the trial court erred by failing to charge simple possession and casual exchange as lesser-included offenses; (10) the trial court erred by allowing the State to read the indictment which contained "the name and nature of the Defendant's prior felony conviction"; and (11) cumulative error requires reversal. Following a thorough review of the record and applicable authorities, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Lauren M. Fuchs and Chelsea A. Harris, Memphis, Tennessee, for the appellant, Marchello Karlando Gossett.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Factual and Procedural Background

         Indictment No. 7824

         This appeal arises from a controlled drug buy between the Defendant and a confidential informant on May 14, 2013, and the execution of a search warrant at the Defendant's residence that same afternoon. Based on evidence found during the search, the Tipton County Grand Jury indicted the Defendant on November 4, 2013, for the following offenses:

Count
Offense
Classification
Offense Date
1
Simple possession of a Schedule VI controlled substance, to wit: marijuana
Class A misdemeanor
May 14, 2013
2
Simple possession of a Schedule V controlled substance, to wit: codeine
Class A misdemeanor
May 14, 2013
3
Felony possession of a handgun
Class D felony
May 14, 2013
4
Felony possession of a handgun
Class D felony
May 14, 2013
5
Possession of a Schedule II Controlled Substance, to wit: Cocaine, with intent to deliver in the amount of 0.5 grams or more
Class B felony
May 14, 2013
6
Possession of a Schedule II Controlled Substance, to wit: Cocaine, with intent to deliver in the amount of 0.5 grams or more, having been convicted of three prior Class B felonies under Tenn. Code Ann. § 39-17-417
Class B felony
May 14, 2013
7
Possession of drug paraphernalia
Class A misdemeanor
May 14, 2013

          The Defendant filed several pre-trial motions, including a motion to exclude Tennessee Rule of Evidence 404(b) evidence at trial and a motion to reveal the identity of the confidential informant. At a pre-trial motions hearing, the following exchange took place regarding the motions:

[Defense Counsel]: . . . I believe the State's primary argument in the withholding of the identity of the confidential informant is that as uncharged conduct it's not relevant to the proceedings. Therefore, Your Honor I have prepared a Motion to Exclude Any and All Evidence in Relation to the Confidential Buy. If it's not relevant to this proceeding, then it shouldn't come in in any shape, fashion, or form.
[The State]: I agree.
[Defense Counsel]: If I may pass this forward.
[The Court]: I think the State agrees with your motion.
[Defense Counsel]: . . . So Your Honor is granting this Motion at this time, the Motion to Exclude under 404(b)?
[The Court]: Does the State intend to introduce any evidence?
[The State]: No, sir, Your Honor, unless [the Defendant] takes the stand and says something like, I never sell cocaine, or something like that. As far as our case-in-chief we don't intend to put on any proof. We think the search warrant stands on its own, and we don't try to bolster it for that matter.
[The Court]: Okay. The Court would not anticipate the State attempting to do that, but if they did do that and you made objection, and if you're making a pre[-]trial motion to exclude that, under the circumstances as stated by the State, the Court would have to rule on that at a later time. But during the case-in-chief the Motion to Exclude Prior Illegal Acts Under Rule 404(b) would be granted absent a jury-out hearing to show a need.
But in past experience at least, the State has not attempted to introduce any evidence with regard to the buy upon which a warrant was issued, and I wouldn't anticipate any in this trial. But if it does, I will grant your Motion with regard to that.

         In a written order, the trial court later granted the Defendant's motion to exclude Rule 404(b) evidence, stating:

The [D]efendant moves per Rule 404 to limit evidence of the prior delivery alleged in the affidavit of the warrant. The State indicated that it did not intend to introduce such evidence in the trial of the indicted offense[s].
The motion is granted, and the requirements of [Rule] 404 as to a jury out hearing are required prior to any attempt to introduce evidence of prior illegal acts of the [D]efendant.
However, the trial court denied the Defendant's motion to reveal the identity of the confidential informant. The trial court reasoned:
The identity of the informant need not be revealed unless a witness at the execution of the search warrant at the defendant's residence, or material to the defendant's defense. The defendant has shown neither.
Our Supreme Court has determined that the identity of a confidential informant is generally privileged from discovery. House v. State, 44 S.W.3d 508. Disclosure shall be denied when a defendant's sole purpose of discovering a confidential informant's identity is to challenge the validity of a search warrant. . . . The motion to reveal the identity of the informant mentioned in the affidavit of the search warrant is denied.

         April 3, 2014 Trial

         The Defendant's trial in case number 7824 began on April 3, 2014. After voir dire but before the jury was sworn, the State requested that the trial court rule on a 404(b) motion "about some prior acts of the Defendant[.]" The State argued:

[T]here was a search warrant executed at 7673 Richardson Landing in Drummonds in Tipton County by the Tipton County Sheriff's Office and that it was based on a controlled buy which happened, according to the search warrant, within 72 hours of the execution on May 14, which was in the afternoon of May 14, 2013.
At the execution of the search warrant there was found to be buy money from the sale of $70 worth of cocaine, which actually was analyzed by the TBI lab to be 0.25 grams. There was some text messaging back and forth on that day of May 14 between [the Defendant] and the undercover person, who was [the confidential informant] and the purchase was made actually that morning. And on the execution of the search warrant the very pre-recorded $70 in miscellaneous currency, which will be described, was found under [the Defendant] while he was asleep on the bed.
So we have the situation in this case, obviously the important element as far as the State is concerned, and certainly the [D]efendant, is how this cocaine, which was obtained on the execution of the search warrant, was possessed. Was it simple possession? Was it possession with intent?
And the officer who is available to testify would testify regarding the purchase which was in the morning of May 14, 2013, for which he has actually the pre-recorded money used in that purchase which was found under [the Defendant]. He can testify about his observance of the
transaction on a video which was obtained as a result of this undercover buy, which was also the basis of the search warrant.
In addition to this, Your Honor, there was a series of drug transactions about which Investigator [] Chunn can testify. One was on May 8, 2013, for $90 worth of crack cocaine, which was purchased from [the Defendant]. Again, he, the officer, viewed the videotape of this transaction involving the same confidential source.
On May 9, 2013, Investigator Chunn was involved in an undercover buy from [the Defendant] for what was analyzed to be 0.61 grams of crack cocaine, again involving the same confidential source and [the Defendant].
All of these purchases were at 7673 Richardson Landing.
Also there was a purchase on the next day May 10, 2013, from [the Defendant], using the same confidential source, involving Investigator [] Chunn. Again, videotapes on all of these transactions and lab report[s] on all of these transactions. In this case, 0.37 grams of cocaine.
In all of the cases the officer was involved in the controlled buy, monitored the situation, and viewed the videotapes.
We think that all of these transactions should be admissible, the events of May 8, May 9, May 10, but certainly, certainly the event of May 14, in that that recorded money was actually found under [the Defendant] when the search warrant was executed.
Under 404(b), Your Honor, there are a lot of cases for the proposition that prior events of drug selling are admissible on charges of drug selling or possession with intent.

         The State continued:

We think it would be a disservice to the State and not unduly burdensome on the [D]efendant that evidence should come in that when the search warrant was executed on the afternoon of May 14, the officers found all of the recorded currency which had been used in the purchase of cocaine from [the Defendant] hours before, for which there was a videotape of that transaction and for which there was a lab report that indicated 0.25 grams of Schedule II cocaine. We think it's highly relevant, Your Honor, to the only real issues in the case, in the State's opinion, which is the intent of the [D]efendant.
The State then proposed:
I would offer for [the Defendant's] consideration by his lawyer and in consultation with him that the State-what the State intends to do is in July to indict [the Defendant] for the facts in 7824 and also those at this point uncharged events of May 8, 9, 10, and 14. The State is going to do that.
If [the Defendant] is agreeable to just going forward with that information on the prior sale of May 14 coming in, then the State will never charge him further on the other events; that is, there will be evidence of a May 14 delivery, but he will not be further charged in that case, nor on the events of May 8, 9, and 10.
So in other words, we could go-the State would be willing to go forward today if we get in that evidence. Otherwise, the State would move to [dismiss] the case with the clear understanding by [the Defendant] we're going forward with everything in July, or attempting to.

         Defense counsel responded that "this would be a very different conversation if [she] had ever been allowed in the past to ask anything about the confidential informant's buy." Defense counsel stated that she had no information about "other buys on May 8, 9, and 10." Moreover, defense counsel stated that she had not been provided the text messages between the Defendant and the confidential informant or the video of the drug buy from May 14, 2013. Defense counsel argued that, if the Rule 404(b) evidence that the trial court had previously ruled was inadmissible was allowed to be introduced at trial, the defense would be "completely unprepared" and "forced to move for a continuance[.]"

         The trial court allowed the Defendant time to discuss the matter with defense counsel during a lunch break. Following the break, defense counsel announced that the Defendant would not stipulate to the introduction of the evidence. Defense counsel stated:

[I]t's the defense's position that at this point I could not go forward, I could not consent to go forward on trial today with information about the alleged buy, because I don't have any information about the marked money at all. If the State wants to provide me with the information that they intend to present and allow me an opportunity to review it and know whether or not I could in fact go forward with trial based on that information, then I would ask the Court for a continuance to do that. But short of that opportunity, I could not provide effective assistance with so little knowledge about a vital aspect of this case.

         The trial court sustained the Defendant's objection to the admission of the evidence "due to the way the case had developed up to that point." Upon the trial court's ruling, the State entered a nolle prosequi in case number 7824, with the expressed intent to re-indict the Defendant in July 2014.

         Indictment No. 8083

         On July 7, 2014, the Tipton County Grand Jury indicted the Defendant for the following offenses: [1]

Count
Offense
Classification
Offense Date
1
Delivery of a Schedule II Controlled Substance, to wit: Cocaine, in the amount of 0.5 grams of more
Class B felony
May 8, 2013
2
Delivery of a Schedule II Controlled Substance, to wit: Cocaine, in the amount of 0.5 grams of more
Class B felony
May 9, 2013
3
Delivery of a Schedule II Controlled Substance, to wit: Cocaine, in the amount of less than 0.5 grams
Class C felony
May 10, 2013
4
Delivery of a Schedule II Controlled Substance, to wit: Cocaine, in the amount of less than 0.5 grams
Class C felony
May 14, 2013
5
Possession of a Schedule II Controlled Substance, to wit: Cocaine, in the amount of 0.5 grams or more with intent to deliver
Class B felony
May 8, 2013
6
Felony Possession of a Handgun
Class D felony
May 14, 2013
7
Felony Possession of a Handgun
Class D felony
May 14, 2013
8
Possession of a Schedule II Controlled Substance, to wit: Cocaine, with intent to deliver in the amount of 0.5 grams or more
Class B felony
May 14, 2013
9
Possession of a Schedule II Controlled Substance, to wit: Cocaine, with intent to deliver in the amount of 0.5 grams or more, having been convicted of three prior Class B felonies under Tenn. Code Ann. § 39-17-417
Class B felony
May 14, 2013

         Following his indictment, the Defendant was held without bond. At his arraignment on July 22, 2014, the trial court set the Defendant's bond at $100, 000, and the case was set for trial on November 25, 2014. On September 11, 2014, the Defendant filed a motion to reduce bond. At a hearing on October 10, 2014, the trial court denied the motion to reduce bond but granted a defense motion to continue the trial based "on advice of [defense counsel's] doctor due to [defense counsel's] pregnancy" and reset the trial to March 23, 2015.

         Motion to Dismiss Indictment No. 8083

         On November 3, 2014, the Defendant filed a motion to dismiss the indictment based on "a denial of right to a speedy trial, a violation of his due process rights, and vindictive prosecution." At a hearing, the Defendant testified that he was arrested on May 14, 2013, on the charges in case number 7824 and that his family posted a $10, 000 bond. He was arrested on a probation violation[2] based on these new charges on July 23, 2013, and he had been incarcerated continuously since that date. The Defendant recalled that, after a preliminary hearing, the trial court raised the Defendant's bond so that the Defendant could receive jail credit. The Defendant testified that while incarcerated he had anxiety about going to trial and about his charges. He stated that he had been in custody for sixteen or seventeen months and had not been able to hold his children during that time. The Defendant stated that he had been prepared for trial on April 3, 2014; however, the State dismissed the case after jury selection when the Defendant refused to agree to the admission of evidence of additional crimes. The Defendant said that his counsel had not been given any information regarding the additional offenses that the State wanted to introduce, so counsel was unable to go forward with the trial.

         The Defendant testified he was granted parole for his prior cases on July 10, 2014. He recalled that the trial court denied the Defendant's motion for the State to reveal the identity of the confidential informant during a pre-trial hearing in case number 7824. He denied that he knew the name of the confidential informant. The Defendant also denied that the State made an offer that the Defendant "stipulate" to the admission of certain evidence. He explained:

It wasn't a stipulation. It was a choice as far as whether we would allow inadmissible evidence in a trial that my attorney didn't know anything about, or, you know, or else I would be facing new charges that also were unknown . . . .

         The trial court denied the motion to dismiss. Regarding the Defendant's allegation of a speedy trial violation, the trial court found that the Defendant was indicted in July 2014, and the case was originally set for trial in November 2014. The case was then reset for the next term at the Defendant's request. The trial court found that the Defendant's seventeen-month incarceration had not been "due to this case." The trial court reasoned:

At the time of the alleged commission of the crimes in May 2013, the [D]efendant was on probation in . . . 6236 and . . . 6121. A warrant to revoke was filed and after a hearing, probation was revoked. He was given credit in those two cases for time served. He has been incarcerated in TDOC on the [eight] year sentences. He was paroled July 10, 2014. Since July, he has not ma[d]e bond. [The] Defendant moved to continue the trial until next term in 2015, which request was granted.

          The trial court determined that the Defendant had not shown any prejudice caused by the delay. The court stated that the length of delay "ha[d] not been extensive." The trial court found "no due process violation by the State for the delay caused by the dismissal of the charges . . . and the new indictment of additional charges in . . . 8083." Additionally, the trial court found that the indictment should not be dismissed for unnecessary delay under Rule 48 of the Tennessee Rules of Criminal Procedure.

         Regarding the Defendant's claim of prosecutorial vindictiveness, the trial court found that the State "wished to introduce at the trial the fact that marked money from the drug buy was found in the house. The defendant did not agree." The trial court explained that the new charges in case number 8083 were based on additional drug deals by the Defendant that the State had been aware of but had not charged the Defendant with in case number 7824. The court found that the Defendant had not shown that these additional charges were brought solely to penalize the Defendant. The trial court found that the State had indicated an intention to charge the Defendant with the additional drug transactions but made "an offer to escape prosecution." The trial court stated that the offer by the State "was more in the form of negotiation" and determined that the additional charges were "a proper exercise of prosecutorial discretion." Accordingly, the trial court denied relief.

         March 23, 2015 Trial

         The Defendant's trial began on March 23, 2015. On that day, the parties selected a jury, and two witnesses testified. However, on the morning of March 24, defense counsel was ill and could not continue. The trial court declared a mistrial the following day due to the continued illness of defense counsel. The trial court reset the case for trial on April 13, 2015.

         April 13, 2015 Trial

         The trial court bifurcated the Defendant's trial so that the jury would not know the Defendant's status as a convicted felon until the second phase of trial when the jury considered the charges of felony possession of a handgun in Counts 6 and 7. During the first phase of the Defendant's trial, Brent Chunn, a narcotics investigator with the Tipton County Sheriff's Office, testified that he conducted several controlled buys in 2013 using a confidential informant ("the CI"). Investigator Chunn recalled that, on May 14, 2013, he and his partner, Investigator Michael Green, met with the CI at the Drummonds Fire Department around 11:00 a.m. The CI said that he was going to purchase $70 worth of crack cocaine from the Defendant. Investigator Chunn equipped the CI with a "button camera" to record the transaction and provided the CI with $70, which Investigator Chunn had previously photocopied. Investigator Chunn instructed the CI to drive to the

          Defendant's location, purchase the crack cocaine, and then call Investigator Chunn when leaving the location. Investigator Chunn searched the CI and his vehicle before the CI left the fire department for the Defendant's residence on Richardson Landing Road. Driving an unmarked police car, Investigator Chunn followed one to two minutes behind the CI. When he passed the Defendant's address, Investigator Chunn saw the CI's vehicle at the Defendant's residence.

         Investigator Chunn testified that, following the transaction, he again met with the CI at the fire department. The CI did not have the $70 worth of buy money, and Investigator Chunn recovered from the CI approximately 0.25 grams of a white rock-like substance, which appeared to be crack cocaine. Investigator Chunn testified that he placed the substance into a sealed evidence bag and turned it over to the evidence technician for the sheriff's office, Deputy John Turner. Investigator Chunn also reviewed the videotape of the transaction. Investigator Chunn explained that the videotape showed that the CI drove to the Defendant's residence on Richardson Landing Road, where he waited for the Defendant's arrival. Investigator Chunn stated that the videotape did not show an exchange of narcotics or money between the CI and the Defendant. However, from a still shot taken from the videotape of the drug buy, Investigator Chunn identified the Defendant's charcoal-gray Chevrolet Tahoe. Investigator Chunn stated that he saw the vehicle at the residence when he returned to execute a search warrant that afternoon.

         Investigator Chunn testified that he and other members of the sheriff's office forcibly entered the Defendant's residence in order to execute the search warrant. After securing the residence, officers videotaped the premises as they searched. Investigator Chunn recalled that they found the Defendant inside the residence, asleep in his bedroom. On the Defendant's bed under a pillow, Investigator Chunn found the $70 of buy money with the Defendant's driver's license folded up inside the money. He found additional cash in a pair of the Defendant's pants, for a total of "roughly 300 bucks . . . in fives and tens and twenties[.]" Additionally, Investigator Chunn found a substance in a clear cellophane bag, which field-tested positive for cocaine. Investigator Chunn placed the evidence into a sealed envelope at the scene, which he identified at trial. He testified that he transported the envelope back to the sheriff's office where he gave it to Deputy Turner to be logged as evidence. On a dresser near the Defendant's bed where Investigator Chunn found the crack cocaine, he also found a set of digital scales, which he testified were commonly used for "weighing out of narcotics[.]" In a nightstand beside the Defendant's bed, Investigator Chunn located two handguns-a Kel-Tec 9mm and a Savage Arms .357 revolver-which he collected and turned over to Deputy Turner. Officers also searched the Defendant's Chevy Tahoe and towed it to the sheriff's office's seizure lot. Investigator Chunn identified a copy of a vehicle tow-in report, which the sheriff's office used for "disabled vehicles, accident, or seizures." He noted that the tow-in report listed the registered owner of the Chevy Tahoe as the Defendant's wife, Jeanetta Pearson, and the document was admitted into evidence as an exhibit. Investigator Chunn stated that no drugs or drug paraphernalia were found inside the vehicle.

         Based on his five years of experience as a narcotics investigator, Investigator Chunn testified that 4.79 grams of crack cocaine was worth "roughly $400 to $500" in the area of the Defendant's residence at the time of the offenses. He stated that an "eight-ball" was around three grams of cocaine, and he estimated that an eight-ball sold for about $250 in Drummonds in 2013. Investigator Chunn stated that an "average" sale of crack cocaine in that area would be for 0.5 or 0.6 grams and would cost "[b]etween $80 and $100[.]" Investigator Chunn testified that, based upon his experience, the items found inside the Defendant's residence-a digital scale, 4.79 grams of crack cocaine, and cash money in small denominations-was indicative of possession with the intent to deliver.

         On cross-examination, Investigator Chunn testified that the Defendant's twelve or thirteen-year-old daughter lived at the residence and that Ms. Pearson "frequent[ed] the residence." The investigator stated that he found a small amount of marijuana and liquid codeine in the Defendant's residence and agreed that such an amount would be considered for "personal use." He testified that he found no ammunition for the handguns in the residence or in the Defendant's vehicle. Additionally, Investigator Chunn found no drugs individually packaged for resale during the execution of the search warrant. He testified that he never used the CI as a confidential informant against anyone other than the Defendant due to the CI's theft convictions.

         The CI testified that he worked for the Tipton County Sheriff's Office as a confidential informant on May 14, 2013. On that day, he met Investigator Chunn at the Drummonds Fire Department where Investigator Chunn provided him with buy money and placed a camera on his shirt. The CI testified that, after leaving the fire department, he drove about five to seven minutes to the Defendant's residence on Richardson Landing Road.

         The CI testified that he and the Defendant exchanged several text messages leading up to the controlled buy. From photographs of his cell phone, the CI identified the text messages, which stated:

[The CI]: You going to be ready about 1:30?
. . .
[The Defendant]: Yeah, ready.
. . .
[The CI]: 1:30 for sure?
[The Defendant]: Yeah, ready.
[The CI]: Be ready in an hour.

         Despite indications from the text messages that the CI planned to meet the Defendant around 1:30 p.m., the CI testified that he actually arrived at the Defendant's residence at 11:00 a.m. When he arrived, he went to the front door and knocked, but the Defendant was not home. The CI called the Defendant, and the Defendant was "kind of frustrated with [the CI] . . . because [he] had no patience." The State played the videotape of the transaction, and the CI identified the Defendant's truck on the videotape. The CI stated that, while the videotape was recording, he called the Defendant. He stated that the Defendant answered and told the CI that he would "be there in a minute." The CI stated that, when the Defendant arrived, he walked over to the Defendant's truck and gave the Defendant the $70 of buy money. The Defendant went into his house while the CI waited at the front door for five to seven seconds. The Defendant then came back outside with a quantity of crack cocaine, which he handed to the CI. The CI testified that the transaction cannot be seen on the videotape. However, he stated that the buy occurred "at the time when [the Defendant] came out the door, you could see a glimpse of him. And right when he would have came [sic] out, he would have gave [sic] it to me." The CI confirmed that he was searched by investigators both before and after the controlled buy. He stated, "Usually when I would get back on this occasion I would be almost strip searched."

         The CI identified a still photograph from the videotape. He stated that the photograph showed the Defendant and the Defendant's vehicle, which was parked on the Defendant's front yard. The CI stated that, after the transaction, he returned to the Drummonds Fire Department and gave the crack cocaine to Investigator Chunn. He stated that he did not make any stops between the Defendant's residence and the fire department.

         On cross-examination, the CI agreed that he approached the police to work as a confidential informant and that he chose the Defendant as the target of the controlled buy. He agreed that he had previously been convicted of felony theft and was convicted of several felonies after he worked as a confidential informant for the sheriff's office. Specifically, the CI testified that he pleaded guilty to burglary and felony theft in November 2013 and that he received three years' probation for the offenses. Defense counsel then attempted to question the CI further about his convictions, as follows:

[Defense Counsel]: In Count 3 you pled to theft of property one thousand ...

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