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State v. Ashford

Court of Criminal Appeals of Tennessee, Nashville

September 1, 2017

STATE OF TENNESSEE
v.
JOHNNIE RAY ASHFORD

          Assigned on Briefs May 10, 2017

         Appeal from the Criminal Court for Davidson County No. 2016-B-537 Cheryl Blackburn, Judge

         A Davidson County Criminal Court Jury convicted the Appellant, Johnnie Ray Ashford, of possession of a Schedule II controlled substance with intent to sell or deliver, a Class C felony, and attempting to sell a Schedule II controlled substance, a Class D felony, and he received an effective three-year sentence to be served on supervised probation. On appeal, the Appellant contends that the trial court erred by denying his motion to suppress evidence, that the trial court improperly limited his cross-examination of a State witness regarding the witness's potential bias, that the evidence is insufficient to support the convictions, and that the prosecutor committed prosecutorial misconduct during closing arguments. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

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

          Emma Rae Tennent (on appeal) and Patrick Hakes and Julie Bigsby (at trial), Nashville, Tennessee, for the appellant, Johnnie Ray Ashford.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

          In May 2016, the Appellant was tried for selling oxycodone, a Schedule II controlled substance, and possessing oxycodone with intent to sell or deliver. At trial, Lonnie Tomberlind testified that about 10:00 a.m. on October 3, 2014, he met Debra Hudson at Hudson's mother's house. Denise Ryan joined them, and the three of them went to a "strip mall" at Briley Parkway and Glastonbury Road in Nashville. Ryan was driving, Hudson was sitting in the front passenger seat, and Tomberlind was sitting in the back seat. He said they went there to buy pills from the Appellant.

         Tomberlind testified that when they arrived, the Appellant got into the back seat of Ryan's car and that he bought three oxycodone pills from the Appellant for nine dollars each. He said that he also gave the Appellant six dollars he owed the Appellant for a loan and that he thought Hudson paid the Appellant forty-five dollars for nine pills. Tomberlind saw the police "running up" and swallowed his three pills with Red Bull. He said that the police questioned him and that he eventually told them he bought oxycodone from the Appellant.

         On cross-examination, Tomberlind acknowledged that he and the Appellant were friends. He also acknowledged that he told David Zoccola, an investigator from the prosecutor's office, that he had not been in trouble since October 3, 2014, the day of the drug buy. That statement was incorrect, though, because he had been charged with shoplifting. He described the shoplifting charge as "a little misdemeanor" and said he pled guilty to theft in December 2015. Tomberlind also acknowledged telling Zoccola that the five pills Hudson bought from the Appellant "disappeared from the scene" and that he thought the police gave the pills to a "whore." He said the police also "could have ate them themselves." Tomberlind said he did not remember telling Zoccola that the pills he bought from the Appellant cost seven or eight dollars each, and he acknowledged telling defense counsel before trial that he went to the strip mall on October 3 to pay the Appellant money he owed for a loan. Tomberlind said that he and the Appellant did not talk about any health problems on October 3 but acknowledged telling the police that the Appellant asked him some questions about cancer.

         Tomberlind testified that after he bought pills from the Appellant, the police wrote him a citation for simple possession and let him go. He said that he later pled guilty to the charge but that it was expunged from his record. He acknowledged that the officers threatened to take him to jail if he did not tell them the Appellant sold him pills.

         On redirect examination, Tomberlind testified that he told the officers the truth about buying pills from the Appellant. He acknowledged lying to defense counsel about why he went to the strip mall on October 3 but explained, "I really wanted to be on [the Appellant's] side. He had cancer, and I really didn't want to see him go to jail. And that's why I said that." He acknowledged that he was subpoenaed to testify by the State and that he did not want to testify against the Appellant.

         Debra Hudson testified that Tomberlind and Ryan met her at her mother's home on the morning of October 3, 2014. Hudson then telephoned the Appellant "to get drugs." She specifically wanted Percocet, also known as oxycodone. When Hudson, Ryan, and Tomberlind arrived at the strip mall in Ryan's car, the Appellant got into the car with them and sold Hudson five pills for nine dollars each. The Appellant also sold pills to Ryan, but Hudson did not know if he sold any pills to Tomberlind. Hudson acknowledged that police officers approached the car after the sale and that she spoke with them.

         On cross-examination, Hudson acknowledged telling defense counsel that the Appellant never sold her any pills. She said she lied to defense counsel. She also acknowledged telling Zoccola, the State's investigator, on the telephone on April 26, 2016, that she did not get any pills from the Appellant. Later that day, Zoccola came to Hudson's house, and she told him the truth about buying pills from the Appellant. She said she changed her story because Zoccola explained that she would go to jail if she perjured herself. Hudson acknowledged that after the police approached Ryan's car, she threw the five pills she had bought onto the floor. She said she did so because she was scared and thought the police would believe the pills belonged to Ryan. The police cited Hudson for simple possession.

         On redirect examination, Hudson testified that when she spoke with Zoccola on April 26, 2016, she also told him that Tomberlind owed money to the Appellant, which was true. However, the main reason she, Ryan, and Tomberlind met with the Appellant on October 3, 2014, was to buy drugs from him. Hudson acknowledged that she was subpoenaed to the Appellant's trial and that she did not want to testify against him.

         Detective Andrew Grega of the Metropolitan Nashville Police Department (MNPD) testified that in October 2014, he was working in an "undercover capacity" in the Hermitage Crime Suppression Unit. He explained that the Unit "hit the hot spots in the precinct. We did parking lot surveillance, we did drug buys, we did quote unquote buy busts. We focused on the heavy crime areas." On the morning of October 3, 2014, Detective Grega went to a strip mall parking lot at the intersection of Briley Parkway and Glastonbury Road to meet with his fellow team members. He was driving an unmarked black Ford pickup truck, and Detective Jonathan Spurlock was riding with him. The officers were in plain clothes but were wearing tactical vests marked with police badges and logos.

         Detective Grega testified that he and Detective Spurlock parked in the parking lot and began watching a Mercedes[1] and a Buick. He said that the two cars were parked on the side of the building and that "that side of the building was vacant, so there really wasn't any reason for anybody to be parking over there." Three people were in the Mercedes, and one person was in the Buick. Detective Grega said that based on his experience, he believed the people in the Mercedes were "waiting on drugs."

         Detective Grega testified that he was parked to the right of the Mercedes and that he could see down into the car. The Appellant got out of the Buick, which was parked to the left of the Mercedes, and got into the back seat of the Mercedes, behind the driver. Detective Grega stated, "There was an exchange of quick talk, and then everybody [was] focused -- everybody that was already in the vehicle was focused on [the Appellant] who was in the backseat. You could see an exchange of money for some sort of item. You couldn't tell what it was." Detective Grega saw Hudson, who was sitting in the front passenger seat, and Tomberlind, who was sitting in the back seat with the Appellant, hand money to the Appellant. The Appellant then got out of the Mercedes. He had money in his hand and walked back toward the Buick. Detective Grega said the transaction was "quick, " lasting only thirty seconds to one minute.

         Detective Grega testified that at that point, he and Detective Spurlock exited the truck and "made contact with everybody involved." Detective Grega approached the Mercedes. He said that he and Tomberlind looked at each other; that Tomberlind had an "oh, crap, moment"; and that Tomberlind "took a pill that was in his hand and put it directly into his mouth and swallowed it." Detective Grega also saw a pill in a clear cigarette wrapper. The wrapper was "stuffed" between the front passenger seat and the center console. Detective Grega stated that "[p]ills don't belong in cigarette wrappers" and that "you see that a lot in narcotics transactions."

         Detective Grega testified that he and Detective Spurlock had the three people in the Mercedes get out of the vehicle because "I believed we [had] just witnessed a narcotics transaction, and Mr. [Tomberlind's] actions started to verify that." The detectives read Miranda warnings to Ryan, Hudson, and Tomberlind, and Detective Grega determined that the pill in the cigarette wrapper was Percocet. He read Miranda warnings to the Appellant, whom he had never seen before that day, and the Appellant agreed to talk with him. The Appellant told Detective Grega that he was sick, needed money, and met Hudson, Tomberlind, and Ryan at the strip mall in order to sell them pills for nine dollars per pill. Detective Grega searched the Buick and found a prescription bottle for Percocet in the glove box. According to the label on the bottle, the Appellant had filled the prescription for ninety pills the previous day. Fifty-four pills remained in the bottle, and thirty-six pills were missing. Detective Grega calculated that if the Appellant had sold thirty-six pills for nine dollars each, the Appellant would have had $324. Detective Grega found $320 on the Appellant's person and arrested him. Detective Grega issued citations to Hudson and Tomberlind for simple possession. He did not issue a citation to Ryan because she was "just driving."

         On cross-examination, Detective Grega testified that he was not conducting surveillance on the parking lot on October 3 and that the parking lot was not in a high-crime area. He acknowledged that he filled out the incident report for this case and that he did not mention the hand-to-hand drug transaction or the Appellant's admission about selling pills in the report. Detective Grega testified at a hearing two months after the incident and also did not mention the hand-to-hand transaction during the hearing. However, he testified at the hearing that he saw money in the Appellant's hand. Defense counsel asked if Detective Grega was parked "right next to" the Mercedes, and he answered, "Not right next to them, no. . . . A couple of spots over." He said he did not recall testifying at a previous hearing that he did not remember where he was parked.

         On redirect examination, Detective Grega testified that he also filled out forfeiture and arrest warrants in this case. In the forfeiture warrant, he stated that he saw the Appellant conduct a transaction with the passengers in the back seat and the front seat and that the Appellant said he sold oxycodone pills to the two passengers for nine dollars per pill. Detective Grega stated in the arrest warrant that the Appellant admitted to selling pills.

         Detective Jonathan Spurlock testified that he and Detective Grega went to the strip mall parking lot on the morning of October 3, 2014, but that they were not there to conduct surveillance. When they pulled into the parking lot, they saw a Mercedes with four people in the car. A Buick was parked to the left of the Mercedes, and no one was in the Buick.

         Detective Spurlock testified that he and Detective Grega began watching the Mercedes and that the people in the car could have been dealing narcotics or "simply there hanging out." Detective Grega's truck was "one spot over from the Mercedes, " and Detective Spurlock could see into the car. The Appellant, who was in the back seat, had money in his hand and was talking to the driver and the front passenger. Detective Spurlock saw "several hand movements back and forth" and saw the Appellant receive money from the front passenger. Detective Spurlock did not see any other exchange and thought he had just witnessed a drug deal.

         Detective Spurlock testified that the Appellant got back into the Buick and that "[a]t that time we said, let's just make contact." Detective Spurlock approached the Appellant and began speaking with him. He told the Appellant his name and asked what the Appellant was doing in the area. The Appellant seemed nervous and could not give Detective Spurlock a "straight" answer. During their conversation, Detective Spurlock heard Detective Grega say that pills were in the Mercedes. At that point, the officers began "making the scene safe" and had everyone get out of the cars. Detective Grega read Miranda warnings to the Appellant, and the Appellant agreed to talk with him. The Appellant told Detective Grega that "he was there to sell the prescription that he had to make money." The Appellant said he had cancer and needed to sell the pills. Detective Spurlock searched the Appellant and found $320 on his person. The money consisted of fourteen twenty-dollar bills and four ten-dollar bills; no five- or one-dollar bills were found.

         On cross-examination, Detective Spurlock testified that he thought he saw money in the Appellant's hand when the Appellant got out of the Mercedes. However, he acknowledged testifying at a prior hearing that he did not see money in the Appellant's hand.

         At the conclusion of Detective Spurlock's testimony, the parties stipulated that the pill found in the Mercedes and the pills found in the prescription bottle were oxycodone. The State rested its case.

         Denise Ryan testified that on October 3, 2014, she "gave some people a ride to pay [the Appellant] some money they owed him." Ryan did not drive Hudson and Tomberlind to the parking lot in order for them to buy drugs, and she did not buy prescription medication from the Appellant. At that time, Ryan had her own prescription for Percocet due to cancer, and her pill bottle was in her purse.

         On cross-examination, Ryan denied telling Detective Grega that she drove Hudson and Tomberlind to the parking lot to buy drugs. She said she told him that she drove them there to pay a debt they owed. She denied knowing the police found a pill inside a cigarette wrapper in her car.

         Toni Ashford, the Appellant's wife, identified the prescription bottle found in his car on October 3, 2014, and testified that she "fix[ed]" the Appellant's medication every week by filling his seven-day pill container. The Appellant filled his prescription for Percocet on October 2 and consumed three pills that day as prescribed. Mrs. Ashford removed another twenty-one pills from the bottle and put them into the Appellant's weekly pill container. In October 2014, the Appellant and Mrs. Ashford lived in an apartment and paid $625 per month in rent. The Appellant paid $300 in the first part of the month when he received his Social Security check, and Mrs. Ashford paid the remaining $325 on the fifteenth day of the month. She said that they paid their rent with money orders and that the Appellant "was going to get his money order there at the [little Mexican store]" when he was arrested. She said she had never known the Appellant to sell drugs.

         On cross-examination, Mrs. Ashford testified that their home was small and that the Appellant's Percocet bottle was in the Buick's glove box on October 3 so that their grandchildren would not find the pills. The police seized the Appellant's rent money that day, so Mrs. Ashford had to borrow $300 to pay the rent. She denied that their financial situation was "tight." She acknowledged that she did not see what happened in the Mercedes.

         At the conclusion of the proof, the jury found the Appellant guilty as charged of possession with intent to sell or deliver oxycodone, a Class C felony, and attempting to sell oxycodone, a Class D felony, as a lesser-included offense of selling oxycodone. After a sentencing hearing, the trial court ordered that the Appellant serve concurrent sentences of three and two years, respectively, and ordered that he serve the sentences on supervised probation.

         A. Motion to Suppress

         The Appellant contends that the trial court erred by denying his pretrial motion to suppress the ninety-count prescription bottle for oxycodone, which contained fifty-four pills. He also contends that the statements he made to Detectives Grega and Spurlock after his arrest should be suppressed. He claims that while the officers' initial contact with him may have been a brief investigatory stop, it quickly escalated into a full-scale arrest for which they had no probable cause. The State argues that the trial court properly denied the motion because the officers' initial interaction with the Appellant was a brief police-citizen encounter that did not implicate constitutional protections. The State also argues that Detective Grega's seeing Tomberlind swallow pills quickly provided the officers with reasonable suspicion to detain the Appellant and that Detective Grega's speaking with the occupants of the Mercedes resulted in probable cause for the Appellant's arrest. We conclude that the trial court properly denied the motion to suppress.

         At the suppression hearing, Detective Grega testified that on the morning of October 3, 2014, he and his fellow Unit members were to meet in a strip mall parking lot on Briley Parkway. Sergeant James King arrived first, contacted Detectives Grega and Spurlock, and told them about "what he was observing." When the two detectives arrived in the parking lot, they conducted surveillance on two cars, a Buick and a Mercedes, that were parked beside each other. The Appellant exited the Buick and got into the back seat of the Mercedes. Detective Grega stated as follows: "There was a transaction of an item between the backseat passenger and the front seat passenger. He gave those individuals an item, and they returned to him currency." The transaction lasted thirty seconds to one minute, and the Appellant got out of the Mercedes. He had money in his hand and walked back to the Buick. The State asked if the parking lot was in a high-crime area, and Detective Grega said no. He acknowledged that based upon his training and experience, he thought he had just witnessed a drug transaction.

         Detective Grega testified that he got out of his unmarked vehicle and approached the Mercedes. Two females and one male were in the car, and Detective Grega was clearly marked as a police officer. When the male occupant saw Detective Grega, he swallowed a pill in his hand. Detective Grega also saw a pill in a clear cigarette wrapper, and the wrapper looked as if it had just been stuffed between the center console and the front passenger seat. Detective Grega stated that after he saw the pill, he had the three people exit the Mercedes and gave them Miranda warnings. The female driver told him that she brought the two passengers to the parking lot to buy oxycodone from the Appellant, and the two passengers told him they bought pills from the Appellant for nine dollars per pill.

         Detective Grega testified that he also gave Miranda warnings to the Appellant and that the Appellant agreed to speak with him. The Appellant told the officer that he sold the two passengers oxycodone pills for nine dollars per pill. The Appellant said he had just been diagnosed with lung cancer and was trying to make some extra money. Detective Grega arrested the Appellant, searched him, and found $320 on his person. He also searched the Buick and found an oxycodone prescription bottle that had been filled with ninety pills on October 2. Detective Grega stated, "$9 a pill from that fifty-four comes out to be about [$]320, [$]324."

         On cross-examination, Detective Grega testified that he was in his vehicle less than ten minutes before he got out and approached the Mercedes. At first, he stated that he was "maybe" parked a couple of spaces from the Mercedes. However, he then acknowledged that he did not remember where he was parked but said he had a clear line of sight to the Mercedes. Detective Grega could not see the item that was exchanged between the Appellant and the passengers or the amount of money involved. He also could not hear the conversation in the Mercedes. After the transaction, the Appellant got out of the Mercedes and walked, not ran, back to the Buick, and Detective Grega did not see the Appellant with any drugs or drug paraphernalia. Detectives Grega and Spurlock got out of their vehicle, and Detective Grega walked to the Mercedes while Detective Spurlock walked to the Buick.

         Detective Grega testified that when he approached the Mercedes, the male passenger put a pill in his mouth, which immediately attracted the detective's attention. Detective Grega got everyone out of the Mercedes and read Miranda warnings to the three of them at the same time. Detective Grega then turned his attention to the Appellant. He did not remember the Appellant's telling him that the money on his person was "rent money." Detective Grega told the Appellant that he had spoken with the people in the Mercedes. However, he did not think he told the Appellant that the passengers in the Mercedes would go to jail if the Appellant did not cooperate. Detective Grega said that he did not want to take the Appellant to jail because the Appellant was elderly but that "I had reason to believe he had just sold pills to somebody." Detective Grega said ...


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