Court of Criminal Appeals of Tennessee, Nashville
Session February 14, 2017
Appeal from the Criminal Court for Davidson County No.
2010-C-2083 Cheryl Blackburn, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
B. Russ, Nashville, Tennessee, for the appellant, Jeffrey
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.
W. Wedemeyer, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Timothy L. Easter, J.,
W. WEDEMEYER, JUDGE.
Facts and Procedural History
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. The Petitioner
was represented by different attorneys in each county and
pleaded guilty to varying drug and money laundering offenses
in each county.
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
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
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'
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); 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.
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. 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 ...