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Northern v. State

Court of Criminal Appeals of Tennessee, Jackson

April 25, 2017


          Assigned on Briefs March 7, 2017

         Appeal from the Circuit Court for Madison County No. C-15-313 Roy B. Morgan, Jr., Judge

         Joe Travis Northern, Jr. ("Petitioner") appeals from the denial of his petition for post-conviction relief. Petitioner claims that he received ineffective assistance of trial counsel and of counsel appointed to represent him in a Tennessee Rule of Criminal Procedure 36.1 motion. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

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

          William J. Milam, Jackson, Tennessee, for the appellant, Joe Travis Northern, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and James Curwood Witt, Jr., J., joined.



         Procedural Background

         According to this court's opinion from the Petitioner's direct appeal, Petitioner was convicted by a Madison County jury of possession of more than one-half ounce of marijuana with the intent to sell or deliver, possession of a firearm during the commission of a dangerous felony with a prior felony, possession of a firearm by a convicted felon, tampering with evidence, and possession of drug paraphernalia and was sentenced as a Range II, multiple offender to an effective term of eighteen years in the Department of Correction. State v. Joe Travis Northern, Jr., No. W2013-02757-CCA-R3-CD, 2014 WL 6792756, at *1 (Tenn. Crim. App. Dec. 3, 2014), perm. app. denied (Tenn. Apr. 13, 2015). Petitioner appealed claiming that the evidence was insufficient to support his convictions and that the trial court imposed an excessive sentence. Id. On direct appeal, this court summarized the proof at trial as follows:

On January 9, 2013, Jackson police officers executed a search warrant at [Petitioner's] residence, where [Petitioner] and a second man, Desmond Jones, were present. …
At trial, Captain Christopher Wiser of the Jackson Police Department's Gang Enforcement Unit testified that he found in the home a loaded 9-millimeter Ruger P95 handgun in the kitchen in the space between the wall and a kitchen countertop and a set of digital scales, an open box of sandwich bags, a marijuana grinder, a marijuana blunt, and a bag of loose marijuana on the coffee table in the living room. On cross-examination, he agreed that it would not be uncommon for someone who consumed marijuana to have a marijuana grinder or a marijuana blunt in his or her home.
Investigator Rodney Anderson of the Jackson Police Department's Gang Enforcement Unit testified that he found a police scanner in the living room of the home. He said that police scanners can be used by drug dealers both to listen to "police traffic" and to possibly pick up transmissions between the police and a confidential informant who is wearing a "body wire." On cross-examination, he testified that the police scanner was turned off when they arrived to execute their search but that they turned it on and the device was working.
Lieutenant Phillip Kemper of the Jackson Police Department's Gang Enforcement Unit testified that he found a set of black digital scales with marijuana residue under the couch in the living room of the home. He said that digital scales are commonly used by both sellers and buyers of narcotics to ensure that the amount being sold is accurate.
Investigator Sam Gilley of the Jackson Police Department's Gang Enforcement Unit, the case officer in charge of the search, testified he entered the residence to hear a toilet running in a bathroom near the area in which the SWAT Team had just detained [Petitioner]. He said he looked inside, saw marijuana floating on top of the water, and fished it out of the bowl with the net he carried for such purposes. He also saw either a half-gallon or a gallon-sized ziplock bag, with some remnants of marijuana still inside, lying on the floor of the bathroom. Investigator Gilley explained that lower level street dealers typically purchase their supplies of marijuana in either a half-gallon bag, which will hold approximately one-half pound, or in a gallon bag, which will hold approximately one pound. He further testified that he and his officers pulled the toilet off the floor and were able to "plainly see that the marijuana was flushed down the toilet also." They were not, however, able to retrieve the flushed marijuana from the sewer line.
Investigator Gilley testified that he found approximately seven "twisted off baggies" on the coffee table in the living room. He explained that these were common in the drug trade:
[I]f you're selling somebody some marijuana and say they want to buy like a quarter ounce, you'd measure out three and a half, four or five grams of marijuana. You normally throw it on the scale in front of them, throw it on a baggie, tie the baggie up and put it in a little-you know, twist it around in the corner and tie a knot, or whatever you do.
Investigator Gilley testified that the portions of the baggies that he found on the coffee table were consistent with someone selling, rather than buying, marijuana. He explained that if one were a user or a buyer, he would have the cut off corner of the baggie that contained the drugs rather than the remaining portion from which the corner had been cut off: "If you were just a user, you would have the corner where the drugs are. There would be no reason for that [the twisted off portion] to be laying around your house unless you were selling drugs."
Investigator Gilley testified that the 9-millimeter Ruger handgun recovered from the kitchen of the home was loaded with a clip containing ten bullets. He said that a handgun is commonly used in the drug trade "for defense." He agreed that the other items found in the house, including the police scanner, digital scales, marijuana grinder, and plastic bags were "consistent with the sale or delivery of marijuana" and that items consistent with the smoking or consumption of marijuana, such as rolling papers or pipes, were not found in the home. Finally, he identified the statement that [Petitioner] gave in which he denied that he sold drugs, disavowed any knowledge of the gun found in his home, and claimed that the drugs and drug paraphernalia were items he used in his personal consumption of marijuana. [Petitioner's] statement reads in pertinent part:
Des [Desmond Jones] come to my house about a hour ago. He did not bring any drugs or weapons inside of my house. Des did not bring anything illegal inside of my house. The marijuana inside of that house is mine. I did not have any other drugs inside the house other than marijuana. The marijuana on the living room coffee table and the marijuana inside the toilet is all that I had. I did not have any guns inside of my house or on my property. I do not sell marijuana, I only smoke marijuana. I only keep marijuana to smoke, depending on how much money I have. The scales and police scanner are mine. The other guy here does not have anything to do with what's in my house.
On cross-examination, Investigator Gilley acknowledged that, despite his direct examination testimony that there were no items consistent with the consumption of marijuana in the home, the home contained a blunt, "roaches" in an ash tray, and some "cigarillo" packaging in the trash.
Tennessee Bureau of Investigation Special Agent Shelandis Garrett, a forensic scientist in the drug chemistry unit of the Memphis Laboratory, testified that the three samples submitted for her analysis in the case consisted of a marijuana cigar, 2.07 grams of marijuana, and 29.57 grams of marijuana. On cross-examination, she agreed that the total weight of the marijuana in the two separate samples was 31.5 grams, which was just over one ounce.
Desmond Jones testified that he arrived at [Petitioner's] house moments before the police officers arrived to execute the search warrant and that he did not bring any drugs or weapons into the home. He stated that [Petitioner] was in a back room when the officers arrived. On cross-examination, he testified that he did not see [Petitioner] with any drugs or weapons.
Eric Muhammad testified in [Petitioner's] behalf that, unbeknownst to [Petitioner], he hid his 9-millimeter P60 Ruger pistol in [Petitioner's] kitchen when he left for a quick trip to the store while visiting [Petitioner] on the morning of the search. He said that when he returned from the store and saw the drug task force at [Petitioner's] home, he continued to his own home without stopping. On cross-examination, he testified that he was somewhat familiar with handguns but would not be surprised to learn that the pistol was a P95 rather than a P60 Ruger. He acknowledged that he and [Petitioner] were close friends and testified that he showed the pistol to [Petitioner] when he arrived at ...

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