Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 14, 2017
Appeal from the Circuit Court for Rutherford County No.
F-73101, F-63586D Royce Taylor, Judge
B. Russ, Nashville, Tennessee, for the appellant, Jeffrey
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Jennings H.
Jones, District Attorney General; and John C. Zimmerman,
Assistant District Attorney General, for the appellee, State
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 Circuit
W. Wedemeyer, J., delivered the opinion of the court, in
which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
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
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:
Rutherford County: One count of conspiracy to sell over
seventy pounds of marijuana, a Class B felony, with a
sentence of twenty years in the Tennessee Department of
Correction ("TDOC"), and one count of possession
with intent to sell or deliver over seventy pounds of
marijuana, a Class B felony, with a consecutive sentence of
twenty 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
(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