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State v. Collins

Court of Criminal Appeals of Tennessee, Nashville

May 16, 2017

STATE OF TENNESSEE
v.
TOMMY LEE COLLINS, JR.

          Assigned on Briefs January 18, 2017 at Knoxville

         Appeal from the Circuit Court for Bedford County No. 13-CR-17817 F. Lee Russell, Judge

         The Defendant, Tommy Lee Collins, Jr., was convicted by a Bedford County Circuit Court jury of employing a firearm during the commission of a dangerous felony, a Class C felony, evading arrest, a Class D felony, and reckless endangerment, possession of marijuana with the intent to sell, and possession of marijuana with the intent to deliver, Class E felonies. See T.C.A. §§ 39-17-1324 (2014) (employing a firearm during the commission of a dangerous felony), 39-16-603 (2014) (amended 2016) (evading arrest), 39-13-103 (Supp. 2012) (amended 2013) (reckless endangerment), 39-17-417(a)(4) (Supp. 2012) (amended 2014) (possession of a controlled substance). The trial court merged the possession of marijuana convictions and sentenced the Defendant to an effective eight years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his drug and firearm convictions, (2) the trial court erred by denying his motion to suppress evidence obtained as a result of the traffic stop and subsequent search of the car he was driving, (3) the prosecutor improperly challenged a juror on the basis of race, (4) the trial court erred by declining to order the prosecutor to disclose the identity of a confidential informant, and (5) the Defendant's dual convictions for reckless endangerment and evading arrest violated double jeopardy principles. Because we conclude a juror was improperly challenged, we reverse the judgments of the trial court and remand for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed; Case Remanded

          David Harris (on appeal) and Stephanie Pirera (at sentencing and motion for new trial), Nashville, Tennessee, and Harold E. Dorsey (at trial), Alamo, Tennessee, for the appellant, Tommy Lee Collins, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Robert Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case arises because of a tip from a confidential informant about the planned sale of marijuana, which led members of the Seventeenth Judicial Drug Task Force to attempt to initiate a traffic stop of a car driven by the Defendant. The Defendant led officers on an eleven-mile, high-speed chase involving multiple near-collisions with police cruisers and one civilian vehicle. The chase began on Bottle Hollow Road, spanned a section of State Highway 82, and ended inside the Shelbyville city limits. After the car was stopped and the Defendant arrested, a backpack containing a loaded pistol and marijuana was recovered from the front passenger floorboard.

         Suppression Hearing

         Bedford County Sheriff's Deputy and Assistant Director of the Seventeenth Judicial Drug Task Force Timothy Miller testified that he had received multiple tips concerning a man who drove a silver four-door Jaguar and distributed marijuana at a specific residential area. Deputy Miller stated that he went to the residential area multiple times, that he saw the Jaguar, and that the Jaguar was registered to Jordan Beales. Deputy Miller said that on May 16, 2013, a confidential informant told him that the informant had been in contact with Christina Long, a person from whom the informant had previously bought marijuana. The informant told Deputy Miller that on multiple occasions, the informant had ordered one-half pound of marijuana and that Ms. Long had called her "source." The informant told Deputy Miller that he had gone to Ms. Long's house and waited for her source to arrive. The informant said that an African-American man driving a silver Jaguar would arrive, that Ms. Long would take marijuana from the man and give it to the informant, and that the informant would give money to Ms. Long to give to the man. The informant stated that he did not know the man's name.

         Deputy Miller testified that based on this information, he authorized the informant to order one-half pound of marijuana from Ms. Long. Deputy Miller stated that the informant told him the man driving the silver Jaguar was expected at Ms. Long's house during the evening hours on May 16. Deputy Miller said that the informant had previously provided information to the police between ten and twenty times, that the informant had made successful controlled drug purchases on behalf of Bedford County law enforcement and other Tennessee agencies, and that large quantities of drugs had been obtained as a result of the informant's cooperation. Deputy Miller stated that he had found the informant reliable.

          Defense counsel interjected and stated, "Your Honor, his reliability is not at issue at all. I understand that." The prosecutor responded that he used reliability to establish probable cause for the search of the car and that he accepted counsel's stipulation as to the informant's reliability.

         Deputy Miller testified that he and other officers set up surveillance on both ends of the road on which Ms. Long lived, that Ms. Long drove past them, that Agent Shane George stopped her car, and that Deputy Miller stopped behind them. Deputy Miller said that before he had an opportunity to speak to Ms. Long, he saw an African-American man in a silver Jaguar drive past them. Deputy Miller stated that he attempted to stop the Jaguar by activating his blue lights, that the Jaguar did not stop, and that the driver led the police on an eleven-mile chase toward Shelbyville.

         Defense counsel again interjected and stated the defense was only "contesting the stop." Deputy Miller stated that the Defendant was removed from the Jaguar, that the Jaguar was searched, and that a maroon bag with a "large quantity" of marijuana and a loaded gun was found on the front passenger floorboard.

         On cross-examination, Deputy Miller testified that his supervisor at the Drug Task Force received a "handful" of anonymous tips about the silver Jaguar. Deputy Miller agreed that he did not personally listen to the tips. He said that he saw the Jaguar in the residential area between five and ten times before May 16. He stated that he was told a man was selling marijuana at the residential area and was given a description of the Jaguar. He agreed that he was not told the basis of information supporting the anonymous tips. Deputy Miller said that he did not see any indications of criminal activity when he saw the Jaguar at the residential area, that he did not see Mr. Beales or the Defendant. Deputy Miller stated that after May 16, either the Defendant or Maury County "authorities" who had interviewed Mr. Beales told Deputy Miller the Defendant had borrowed the Jaguar from Mr. Beales or was in the process of buying it from him. Deputy Miller agreed that before May 16, he did not know the Defendant was connected to the Jaguar.

         Deputy Miller testified that the confidential informant purchased drugs from Ms. Long, that the informant had been to Ms. Long's house multiple times, that the informant usually purchased between one-quarter and one-half pound of marijuana, and that every time the informant had purchased marijuana, Ms. Long's supplier had been an African-American man driving a four-door Jaguar. Deputy Miller said the informant told him that Ms. Long took the drugs and gave the supplier the informant's money. Deputy Miller did not know where the informant stood during the transactions. Deputy Miller stated that the informant said he saw the hand-to-hand drug transactions and that the informant never bought drugs directly from the Jaguar's driver.

         Deputy Miller testified that the confidential informant had no contact with the Jaguar's driver on May 16 and that the informant's information came from conversations between the informant and Ms. Long. Deputy Miller said that the informant had placed an order for one-half pound of marijuana, that Ms. Long told the informant she was "going to call my same guy, it's going to happen the way it always happens." Deputy Miller stated that the informant said the supplier would be an African-American man driving a four-door, silver Jaguar and that he would arrive during the evening hours. Deputy Miller agreed that the informant never identified the driver and that the informant never identified the Defendant. Deputy Miller said that officers corroborated the time frame, the car, and the male driver. Deputy Miller stated that the first time the informant described the Jaguar and the previous transactions was one or two days before May 16 and that on May 16, the informant called to tell Deputy Miller the sale had been arranged for later that day. Deputy Miller said that some years previously, the informant had been arrested and provided information to the police, that the informant had stopped providing information after the resolution of his case, and that the informant had been arrested on new charges and provided the information about the Jaguar in connection with the second arrest. Deputy Miller did not know when the informant's second arrest occurred but said it was shortly before May 16. Deputy Miller said that the informant had worked on "major investigation[s]" in Rutherford and Davidson Counties and had participated in several "pretty big busts" in Bedford County. Deputy Miller stated that the informant provided information leading to a traffic stop just before May 16, which resulted in the recovery of fifteen to twenty grams of methamphetamine. Deputy Miller said that in his experience, the informant's information had been reliable and accurate.

         Trial

         Deputy Miller's trial testimony was consistent with his testimony at the suppression hearing. He stated that on May 16, he drove an unmarked police car and that Agent George stopped a car driven by Ms. Long. Deputy Miller stated that he parked behind Agent George and asked him to bring Ms. Long to Deputy Miller's police cruiser, that Ms. Long walked toward Deputy Miller, and that Deputy Miller saw a silver four-door Jaguar drive past them. Deputy Miller said that he pulled out behind the Jaguar and activated his blue lights and later his siren, that the Jaguar did not stop, and that another unmarked police car joined the pursuit. He stated that the Jaguar maintained the same speed at first but gradually increased speed. He said that Tennessee State Highway Patrol Trooper Barry Qualls attempted to block the road in his vehicle, that the Jaguar, Deputy Miller, and Agent George drove around Trooper Qualls, and that Trooper Qualls activated his blue lights and siren and joined the pursuit.

         Deputy Miller testified that during the pursuit, he and Trooper Qualls made "a number of attempts" to slow or stop the Jaguar by placing their police cruisers in front of it, that they had to "take evasive action" several times to avoid colliding with the Jaguar, and that the Jaguar attempted to "ram" the police cruisers when they were in his way. Deputy Miller said that the vehicles traveled between sixty and seventy miles per hour, that they traveled onto a local highway, that three or four Bedford County Sheriff's Department police cruisers joined the pursuit, and that the vehicles eventually reached speeds of about ninety miles per hour. Deputy Miller stated that on one occasion, he went around the Jaguar and applied his brakes in order to slow the Jaguar and that the Jaguar "darted out into the oncoming traffic" and nearly caused a head-on collision with a civilian motorist. Deputy Miller said that after the incident, the officers did not attempt to slow the Jaguar by pulling in front of it and instead sought to stop it from behind. He agreed that the pursuit ended when the officers surrounded the Jaguar, forcing it to stop. Deputy Miller said that the Defendant was the driver, that he was removed forcibly from the Jaguar, and that one of the officers shocked the Defendant with a Taser. He stated that the pursuit spanned eleven miles.

         Deputy Miller testified that he knew the Defendant and that the Defendant was the Jaguar's only occupant. Deputy Miller said that after the Defendant had been arrested, he saw a maroon backpack "in plain view" on the front passenger-side floorboard. Deputy Miller agreed that the backpack was easily observable and within arm's reach of the driver's seat and that nothing would have obstructed the driver's view of the backpack.

         Photographs of the silver Jaguar were received as an exhibit. Deputy Miller testified that the photographs depicted the Jaguar and unmarked police cars as they appeared when the Defendant was stopped and the location of the maroon backpack. He said that he searched the backpack and found several one-gallon plastic bags containing marijuana, a loaded "Millennium" nine-millimeter pistol, and a dryer sheet. He stated that drug sellers used dryer sheets to mask the smell of marijuana. He said that the quantity of marijuana was much more than he expected to see for personal use and that in his experience, a person possessing that much marijuana intended to sell it. He stated that it was very rare for a marijuana user to carry a pistol.

         Deputy Miller identified photographs of the backpack, marijuana, pistol, and dryer sheet, which were received as an exhibit. Deputy Miller stated that the multiple plastic bags indicated to him that the marijuana was packaged for sale. He said that he sent the marijuana to the Tennessee Bureau of Investigation (TBI) for testing and that the marijuana weighed a little less than 350 grams, which was about three-quarters of one pound.

         On cross-examination, Deputy Miller testified that Agent Shane George stopped Ms. Long's car because he suspected a male passenger could have been her marijuana supplier. He agreed that he did not instruct Agent George to stop Ms. Long, that no contraband was recovered from Ms. Long, and that no scales were recovered from the silver Jaguar. Deputy Miller stated that he was uncertain but that it was possible a deputy looked inside the maroon backpack and saw marijuana before the backpack was photographed and removed from the Jaguar. He said, though, that he observed the backpack continuously from the time of the Defendant's arrest. He stated that he was the first person to notice the bag on the floorboard, that he removed the bag from the car, and that he placed it and its contents on the hood of his police cruiser.

         Deputy Miller testified that generally, drug transactions did not necessarily involve scales and that in this case, the marijuana had previously been weighed and packaged by the ounce, quarter pound, and half pound. He stated that in his experience, it was common not to recover scales and that each drug transaction was different because of the individuals involved. He said that he did not know Mr. Beales. Deputy Miller stated that he did not send the plastic bags for collection of fingerprint evidence, that it was "nearly impossible" to collect fingerprints from plastic bags, and that in fifteen years, he had never been involved in a case when fingerprints had been successfully recovered from plastic bags.

         Seventeenth Judicial Drug Task Force Agent Shane George testified that on May 16, 2013, he conducted a traffic stop in connection with a marijuana investigation and that during the stop, a silver four-door Jaguar drove past him on the road. He said that Deputy Miller activated his blue lights and siren and followed the Jaguar in his unmarked police car and that Agent George activated his blue lights and siren and followed them in his unmarked police pickup truck. Agent George stated that at one point, he pulled alongside the Jaguar and saw that the Jaguar's driver had a clear view of the police vehicles behind him.

         Agent George identified a video recording taken from his police pickup truck's camera, which was received as an exhibit and played for the jury. In the recording, two men stood next to a stopped car on a two-lane road. One of the officers wore a bulletproof vest, and the other wore a shirt marked "police" on the front and back. Blue lights reflected off of the back of the car. The man in the vest, presumably Agent George, walked to and entered the truck. A silver Jaguar sedan and a black car with its blue lights activated drove past the truck. Agent George followed the black car.

         In the recording, the officers drove for several seconds before activating the black car's and the truck's sirens. The cars approached a marked state highway patrol vehicle, which was stopped in the middle of the two lanes with its blue lights and siren activated and faced the oncoming cars. The Jaguar, the black car, and the truck drove around the patrol car. The line of cars sped up, and eventually the cars turned right onto other two-lane roads Agent George identified in the recording as "Hilltop" and "Highway 82." The highway patrol vehicle and the black car attempted to box in the Jaguar multiple times, but the Jaguar swerved to avoid being trapped. The Jaguar nearly collided with the black car and the white truck on multiple occasions. In the process of avoiding the black car, the Jaguar entered the left lane and almost hit a civilian motorist, who had to swerve onto the shoulder to avoid a head-on collision. The vehicles passed multiple marked police cars with blue lights and sirens activated, as well as multiple civilian motorists, the majority of whom had pulled over on the side of the road. A small black object was visible in the air, and it went under the truck. Agent George stated that the object appeared to be a cell phone and that it was "10-7." A marked police car traveling in the right lane pulled in front of the Jaguar and came to a stop beside two civilian trucks in the left lane. The white truck pulled over to the right side of the Jaguar, and the black car remained behind the Jaguar. All the vehicles came to a stop, shuffling was audible, and a voice said, "Get on the ground." The pursuit lasted about eleven minutes.

         Agent George testified that in the recording, Deputy Miller had his blue lights activated, that Trooper Qualls had been traveling toward them from the opposite direction and had set up a roadblock, and that the Defendant drove around Trooper Qualls by going onto the shoulder. Agent George stated that about five minutes after the pursuit began, the Jaguar and the police vehicles sped up "dramatically." Agent George described several attempts to box in and slow the Jaguar. Agent George said that on one occasion, the Jaguar came within inches of his truck and that he had to "take evasive action" to avoid being hit. Agent George stated that on another occasion, Deputy Miller pulled in front of the Jaguar in an attempt to slow the Jaguar, the Jaguar pulled into the oncoming traffic lane, and the Jaguar nearly hit an oncoming motorist. Agent George said that after the near miss, the officers only attempted to slow the Jaguar from behind. He stated that the vehicles traveled between sixty and ninety miles per hour at varying intervals.

         Agent George testified that he saw a cell phone on the road, that the cell phone went under his truck, and that he told the dispatcher the cell phone was likely broken. He said that he did not know from where the cell phone came and that it was possible it came from the Jaguar or had been on the side of the road and kicked up by one of the cars. He agreed that in the video recording, Deputy Miller commented over the radio that the driver of the Jaguar had thrown something out the window. Agent George stated that cell phones were valuable in drug ...


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