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King v. State

Court of Criminal Appeals of Tennessee, Nashville

June 28, 2017

JEFFREY KING
v.
STATE OF TENNESSEE

          Session February 14, 2017

         Direct Appeal from the Criminal Court for Davidson County No. 2010-C-2083 Cheryl Blackburn, Judge

         The Petitioner, Jeffrey King, pleaded guilty to multiple drug and money laundering crimes, and the trial court sentenced him to forty years of incarceration to be served at 100%. The Petitioner attempted to reserve certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether wiretaps used in the investigation of the crime were lawful. This court determined that the Petitioner was not entitled to relief on the basis of the certified questions and affirmed the judgments on appeal. State v. King, 437 S.W.3d 856, 889 (Tenn. Crim. App. 2013). In 2015, the Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel and, after a hearing, the post-conviction court denied relief. After review, we affirm the post-conviction court's judgment.

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

          Manuel B. Russ, Nashville, Tennessee, for the appellant, Jeffrey King.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Glenn R. Funk, District Attorney General; Edward S. Ryan and Andrea Green, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts and Procedural History

         The facts underlying this case encompass numerous charges against the Petitioner and his co-defendants for possession and sale of marijuana, money laundering, and possession of firearms in Davidson, Sumner, and Rutherford counties.[1] The Petitioner was represented by different attorneys in each county and pleaded guilty to varying drug and money laundering offenses in each county.

         A. Trial

         This court summarized the factual and procedural background of the case for each of the three counties. We include that which is relevant to this appeal:

On October 7, 2008, Phillip L. Taylor, state investigator for the 20th Judicial District Drug Task Force of Nashville, Davidson County, Tennessee, filed in the Criminal Court for Davidson County, Tennessee, an Application for Interception of Wire and Electronic Communications for the interception of communications through telephone line (615) 517-7591 "used by Bruce Dady" ("the First Dady Application" and "the First Dady Number"). The First Dady Application is 59 pages long and consists of 271 numbered paragraphs containing the sworn averments of Officer Taylor. The identified "concern" of the First Dady Application was "the delivery, sale, or possession with intent to sell or deliver, 700 pounds or more of any substance containing marijuana, and conspiracy to commit the same" ("the Target Crimes"). The First Dady Application identified the following individuals as participants in the Target Crimes: Vernon E. Lockhart, Bruce A. Dady, the [Petitioner and his co-defendants], . . . (collectively, "the Target Subjects"). . . . .
Also on October 7, 2008, Officer Taylor filed in the Criminal Court for Davidson County, Tennessee, an Application for Interception of Wire and Electronic Communications for the interception of communications through telephone line (615) 714-5541 "subscribed to by Cassie T. Roark" but "believed to be used primarily by [the Petitioner]" ("the King Application"). The King Application is 60 pages long, consists of 275 numbered paragraphs, and is substantially similar to the First Dady Application.
On October 7, 2008, the Criminal Court for Davidson County, the Hon. Mark Fishburn ("the Issuing Court"), granted the First Dady Application, the King Application. . . and issued as to each Application an Order Authorizing the Interception of Wire and Electronic Communications, a ten-page document. Each Order contains the following findings:
4. There is probable cause to believe that [the Target Subjects] have committed, and will continue to commit, the offenses of delivery, sale, or possession with intent to sell or deliver, 700 pounds or more of any substance containing marijuana, and conspiracy to commit same.
5. There is probable cause to believe that the telephone assigned phone number (615) 714-5541, a telephone service provided by Verizon Wireless, . . . subscribed to by Cassie T. Roark at 1636 Stokley Lane, Old Hickory, Tennessee, believed to be used by [the Petitioner], Target Subject, in connection with the commission of the above described offense [sic].
6. There is probable cause to believe that the communications to be intercepted will concern the telephone numbers associated with the Target Subjects, and the dates, times, and places for commission of the aforementioned offense when the Target Subjects communicate with their coconspirators, associates and other participants in the conspiracy, thereby identifying the co-conspirators and others as yet unknown. In addition, these communications are expected to constitute admissible evidence of the above described offense.
7. It has been established adequately that normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ.
Applications for additional wiretaps and for extensions of the wiretaps previously authorized ensued over the period from October 10, 2008 through late March 2009. The Issuing Court granted all of the State's applications, resulting in the electronic surveillance of a total of twenty-three telephones. The involved phone numbers were monitored for several months for evidence related to the Target Crimes.
In 2009, the [Petitioner and his co-defendants] were indicted in several Middle Tennessee counties on multiple charges including drug and money-laundering offenses. In the Sumner County and Davidson County cases, the [Petitioner and his co-defendants] each filed a motion to suppress the evidence gleaned from the wiretaps. [The Petitioner] also filed a motion to suppress the evidence gleaned from the wiretaps in the Rutherford County case. Each of the trial courts held an evidentiary hearing and subsequently issued orders denying the [Petitioner's and his co-defendants'] motions.
Thereafter, [the Petitioner] entered conditional guilty plea in Rutherford . . . county, as follows:
Davidson County: One count of conspiracy to sell over three hundred pounds of marijuana, a Class A felony, with a sentence of forty years in the TDOC; two counts of conspiracy to commit money-laundering, a Class B felony, with each count carrying a concurrent sentence of twenty years' incarceration; two counts of money-laundering, Class B felonies, with each count carrying a concurrent sentence of twenty-years' incarceration; one count of the delivery of over seventy pounds of marijuana, a Class B felony, with a concurrent sentence of twenty years' incarceration; one count of the delivery of over ten pounds of marijuana, a Class D felony, with a concurrent sentence of eight years' incarceration; one count of the possession with intent to sell over ten pounds of marijuana, a Class D felony, with a concurrent sentence of eight years' incarceration; and one count of possession with intent to sell over three hundred pounds of marijuana, a Class A felony, with a concurrent sentence of forty years' incarceration.
In conjunction with [his] plea, the [Petitioner] reserved the following certified questions of law:
In the trial court, the [Petitioner] moved to suppress the fruits of electronic surveillance on numerous grounds: (1) that the initial wiretap Applications lacked probable cause to justify interception in violation of T.C.A. §§ 40-6-304(c) and 40-6-305, specifically including the Applications' failure to demonstrate the statutorily required nexus between the phone to be intercepted and the alleged illegal activity sought to be intercepted; (2) that the initial Applications failed to demonstrate a constitutionally sufficient requisite necessity for the use of electronic surveillance pursuant to T.C.A. § 40-6-304(a)(3) and 18 U.S.C. § 2518(1)(c); (3) that all subsequent wiretaps were the fruits of the prior illegal wiretap interceptions and therefore, were fruits of the poisonous tree; (4) that the notarized but unsigned affidavit requesting a second extension of the wiretap for telephone number (615) 584-6075 was statutorily deficient to support interception; (5) that, in addition to being a fruit of the prior illegal interceptions, the subsequent interception of telephone (615) 653-2294 lacked probable cause to justify interception in violation of T.C.A. §§ 40-6-304(c) and 40-6-305 because they [sic] failed to make a sufficient link between the phone and suspected criminal activity or the targets of the investigation; (6) that, in addition to being a fruit of the prior illegal interceptions, the subsequent interception of telephone (615) 818-2839 lacked probable cause to justify interception in violation of T.C.A. §§ 40-6-304(c) and 40-6-305 because they [sic] failed to make a sufficient link between the phone and suspected criminal activity or the targets of the investigation; (7) that the Applications for extensions of the wiretaps failed to articulate a statutorily sanctioned purpose justifying continuing interception; (8) that the issuing Court neglected its duty as a neutral and detached magistrate and acted as an impermissible rubber stamp for law enforcement; and, (9) that the Applications contain omissions and material misstatements that undercut any showing of requisite necessity for the wiretaps.
The [Petitioner] timely appealed from [his] convictions, and this Court ordered that the appeals from the judgments of conviction entered in the Rutherford County, Davidson County, and Sumner County prosecutions be consolidated.

King, 437 S.W.3d at 860-64 (footnotes omitted). On appeal, this court determined that the Petitioner was not entitled to relief on the basis of the certified questions of law. It concluded that several of the questions were not dispositive, limiting review to: whether the wiretap applications provided a substantial basis for probable cause in accordance with the standard recited at Tennessee Code Annotated section 40-6-304(c)(4);[2] whether the wiretap applications satisfied the requisite necessity requirement found at section 40-6-304(a)(3); if the wiretap applications contained errors that invalidated the applications' validity; and whether subsequent wiretaps, after the wiretap of the initial phone, were "illegal as fruits of the poisonous tree." Id. 870-86. This court declined to rule on the remaining questions, stating "[the Petitioner] fails to explain how, in light of the State's other evidence, [his] convictions must be reversed and [his] cases dismissed were we to determine that the Issuing Court erred in granting the Allegedly Invalid Applications." Id. at 888. For this reason, the court deemed not dispositive the Petitioner's remaining certified questions of law. Id. at 886-89. Accordingly, the convictions in each county were affirmed. Id. at 889.

         B. Post-Conviction Proceedings

         The Petitioner then filed a petition for post-conviction relief, pro se, in which he alleged that he had received the ineffective assistance of counsel and that his guilty pleas were not knowingly and voluntarily entered.[3] He argued that counsel was ineffective for failing to address on appeal the legality of Tennessee Code Annotated section 40-6-304(c)(2). He further argued that he entered his guilty pleas under the impression that his nine certified questions would be addressed in turn by the appellate court, would be deemed dispositive because of the agreement of the parties, and that a determination in his favor on any of the questions would result in his convictions being reversed. The post-conviction court appointed an attorney and subsequently held a hearing, during which the following evidence was presented: Counsel testified that she worked as a criminal defense attorney for fifteen years and had handled hundreds of drug cases throughout her career. She stated that she had dealt with eighty to one hundred cases that had wiretapping issues and that she had "actively litigated" forty to fifty wiretap cases. She testified that she was "very experienced" at the time she represented the Petitioner. Counsel recalled that the Petitioner was charged in multiple counties and ...


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