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King v. State

Court of Criminal Appeals of Tennessee, Nashville

September 8, 2017

JEFFREY KING
v.
STATE OF TENNESSEE

          Assigned on Briefs August 8, 2017

         Appeal from the Circuit Court for Sumner County No. 2-2015 Dee David Gay, 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.

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

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Brent C. Chery, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          J. ROSS DYER, 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

         On direct appeal, 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 [(XXX)-XXX]-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 [(XXX)-XXX]-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 [c]ourt"), 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 [(XXX)-XXX]-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 Sumner . . . county, as follows:
Sumner County: One count of conspiracy to possess over seventy pounds of marijuana, a Class B felony, with a sentence of twenty years in the TDOC; three counts of the delivery of over ten pounds of marijuana, a Class D felony, with concurrent sentences of six years' incarceration for each offense; one count of the possession of over seventy pounds of marijuana, a Class B felony, with a consecutive sentence of twenty years in the TDOC; one count of possessing a firearm during the commission of a felony, a Class E felony, with a concurrent sentence of two years' incarceration; and seven counts of money-laundering, a Class B felony, each with a concurrent 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 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 ...

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