Assigned on Briefs February 7, 2017
from the Criminal Court for Shelby County No. 09-02072 W.
Mark Ward, Judge
Benjamin Gunn, was convicted of unlawful possession of
cocaine with intent to sell, unlawful possession of cocaine
with intent to deliver, and third offense unlawful possession
of marijuana. The trial court merged the two cocaine
convictions and imposed a sentence of twelve years. Defendant
was sentenced to two years for possession of marijuana to be
served consecutively to the possession of cocaine conviction
for an effective fourteen-year sentence. On appeal, Defendant
raises the following issues: (1) whether the evidence was
sufficient to support his convictions for unlawful possession
of cocaine with intent to sell and unlawful possession of
cocaine with intent to deliver; (2) whether the trial court
erred by allowing testimony concerning prior search warrants;
(3) whether Defendant was properly sentenced for third
offense possession of marijuana; (4) whether the trial court
erred by allowing the State's expert witness to testify
concerning the characteristics of a drug dealer; (5) whether
the State committed prosecutorial misconduct; (6) whether the
trial court improperly commented on the legality of the
search warrant; and (7) cumulative error. After a thorough
review of the record, we affirm the judgments of the trial
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Gregory D. Allen, Memphis, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel; Amy P. Weirich, District Attorney
General; and Meghan Taylor, Assistant District Attorney
General, for the appellee, State of Tennessee.
T. Woodall, P.J., delivered the opinion of the court, in
which Camille R. McMullen, and J. Ross Dyer, JJ., joined.
T. WOODALL, PRESIDING JUDGE
first trial concerning these charges, Defendant was convicted
of possession of more than .5 grams of cocaine with intent to
sell, possession of more than .5 grams of cocaine with intent
to deliver, and felony possession of marijuana. This court
reversed the judgments of the trial court on appeal and
remanded the case for a new trial because the trial court
erroneously allowed into evidence prior searches of
Defendant's residence by law enforcement officers.
State v. Benjamin Gunn, No. 2013-0206-CCA-R3-CD
2015, WL 847431 (Tenn. Crim. App. Jan. 30, 2015).
Kittrel Robinson of the Memphis Police Department testified
that in 2007-2008 he was assigned to the Organized Crime
Unit, Narcotics Division. He said: "Our assignments over
there were to infiltrate, get information on drug houses,
drug rings, any type of organized crime, that was our job to
pretty much infiltrate, get information and then bring those
people to justice." Officer Robinson said that in 2008
he was assigned to "Team 7" whose responsibility it
was to target "street level" drug sales in Shelby
County. He explained that street level drugs sales "are
basically person A, person B selling drugs out of a
Robinson testified that on February 29, 2008, he and Team 7
executed a search warrant at Defendant's residence
located at 1432 May Street. Officer Robinson had been to the
residence within five days prior to the search warrant.
Concerning the "traffic" going in and out of
Defendant's residence, Officer Robinson testified:
This is a neighborhood that's the way it is designed is
that houses are set up on the east side of the street, so the
west side of the street it's no, it's no houses on
that side. It's kind of like a what you call a bayou or
ditch or kind of sitting like that, so it's only houses
on one side.
From my surveillance and day-to-day activity over there most
of the houses are older people. And that that meant for me as
a narcotics officer is older people don't usually have a
lot of traffic coming in and out the house, they kind of lock
up, 6:00 they're in, door locked, lights off.
This particular house that I received the information on that
I was collaborating [sic] was the total opposite. Lights on,
people in and out of the house all day. Gentlemen would pull
up in the driveway, meet the gentleman known to me to be
[Defendant] in the driveway, talk maybe thirty seconds, go
inside stay thirty seconds to a minute, come back out, get in
the car and leave. And from my trained experience that's
known to me to be hand-to-hand drug transactions from his
Robinson testified that Team 7 consisted of 11 officers both
male and female, and they took six unmarked patrol cars and
two marked patrol cars to execute the search warrant at
Defendant's residence. Officer Robinson testified that
each officer had various assignments for entering
Defendant's house and executing the search. Officer
Robinson was assigned to be the "shield man." This
meant that he would be one of the first officers to the door,
and he carried a big Plexiglas shield, and the other officers
lined up behind him. Officer Robinson testified that they
approached the door to Defendant's residence, knocked on
it, and announced "Memphis Police" and "search
warrant." He noted that the "storm door" to
the residence was locked, and the inner wooden door was open.
Even though there were bars on the storm door, Officer
Robinson could see directly inside the residence, and he saw
Defendant jump up from the couch. He said:
After he jumped up he looked at us at the door and then he
started to proceed to come out of the living room and run. So
I then yelled to my team, since we [were] so close, runner,
runner, so that's where the ram man then comes up and he
hits the ram with the pick. So basically it pushes into the
groove of a door and now all he has to do was push and we get
leverage and the door pops open.
they were inside the house, Officer Robinson saw Defendant
run and throw what appeared to be cocaine out of a clear bag.
Officer Robinson pursued Defendant to the back of the house,
and Defendant dove onto a bed in one of the bedrooms. He
So now I'm throwing the shield as he's diving to
catch him while he's on the bed because now is my only
chance because he's going on the bed but he's going
toward the edge where the bed pushes up to the wall. So then
I kind of dive on top of him and that's when he was
trying to get what we retrieved from him was a bag of cocaine
was then handcuffed and taken into the living room to sit
down. Officer Robinson testified that because he was the case
officer, he was also the custodian of any evidence taken from
Defendant's residence. Concerning drugs found in the
house, Officer Robinson testified:
We were able to backtrack and pick up the crumb that led
right back to the bedroom and the crack - - well, the powder
cocaine was retrieved from his right hand, so it was right
there toward the edge of the bed where he was trying to get
rid of that. And I remember another officer calling my name
saying that he found something on the living room table.
Robinson testified that marijuana was found on the table. He
noted that the crack cocaine was wrapped in aluminum foil.
Officer Robinson testified that the drugs found at the scene
were field-tested and later taken to the property room where
they were tested and weighed by the custodian of the property
room. Officer Robinson testified that he personally observed
the testing. He said: "So we have positive for crack
cocaine weighing 8.7 grams. Positive for cocaine weighing 1.8
grams. Positive for marijuana weighing 8.5 grams. . ."
Robinson was asked by the State if there had been anyone else
at the residence on May Street when the search warrant was
executed. The following exchange took place between Officer
Robinson and the prosecutor:
A. You know what, I want to say it was but I remember more of
[Defendant] because that's who my search warrant was on,
that was my target. So it could have been, so other officers
could of [sic] completed that arrest ticket, something like
that. If I can reflect back to the case that would help me
out on the arrest ticket or anything like that.
Q. Well, I'm happy to pass back the arrest ticket. Would
it - - you said the - - would the case report help refresh
A. Yes. Ma'am.
Q. Now you had said that you more remember [Defendant], why
is that, what is that you remember [Defendant]?
A. This is not our first encounter on a - -
Q. And I'm just going to stop you right there.
Q. If I ask you if Forrest Jones was on the scene that day
would that sound familiar to you?
A. Yes, ma'am.
Q. And what about Kimberly Clark?
A. Yes, ma'am.
Q. If Forrest Jones was given a citation would that sound
right to you?
A. Yes, ma'am.
Robinson testified that the police report indicated that Mr.
Jones was located in the kitchen, and he had a small package
of aluminum foil with one rock of crack cocaine, and there
was a crack pipe in his front left pocket. Mr. Jones was
issued a citation. Officer Robinson said that to his
knowledge, neither Mr. Jones nor Ms. Clark lived at the
residence. Defendant lived there.
acting pro se, questioned Officer Robinson on
cross-examination. Officer Robinson testified that he worked
with a confidential informant in Defendant's case but he
did not bring the informant to trial. He agreed that
confidential informants give tips on "drug buys and
stuff, " and the confidential informant in
Defendant's case gave Officer Robinson a tip about
Defendant. Officer Robinson testified that he had received
the tip from the informant within five days of executing the
search warrant. He made sure that all of the information from
the informant was verified before the search warrant was
executed. Defendant asked Officer Robinson several detailed
questions about how and when the search warrant was obtained.
The trial court intervened and said, "I've already
ruled the warrant, the warrant that was actually involved in
this case I have ruled was legal. So your questions about
this warrant are over with. Move on to another topic."
Officer Robinson testified that he did not have any audio or
video of drug transactions at Defendant's house.
asked Officer Robinson if he did a criminal background check
on Defendant. The following exchange then took place:
Q. Don't have the witness, don't have the audio and
video. You did a background check on [Defendant]; right?
Q. Okay. What did you find out about [Defendant] in the
[PROSECUTOR]: Judge, may we approach?
THE COURT: Sure.
[PROSECUTOR]: I'm happy for him to answer that question.
THE COURT: All right, go ahead.
THE COURT: He can go ahead and ask him. You can ask him the
[PROSECUTOR]: I don't think he wants him to.
Q. (BY [DEFENDANT]) What did you find out in your background
check on [Defendant]?
A. That we have previously did [sic] a search warrant at your
house, [Defendant]. Your ties to the house as far as you
being there and me seeing you come in and out of the location
with a key, being there at different times of the day.
redirect examination, the following exchange took place
between Officer Robinson and the prosecutor:
Q. So you got a tip from [a] confidential informant and
instead of acting on that tip you went and double checked it?
A. Yes, ma'am.
Q. And you said in your testimony you had actually executed a
search warrant at [Defendant's] house before?
A. Yes, ma'am.
Q. So, so this wasn't the first time you had gotten such
A. No, ma'am, it a - - no, he wasn't new to me and
the operation wasn't new to me also. I just like to
verify the information that I'm given.
recross-examination, Defendant asked Officer Robinson
additional questions about a previous search warrant:
Q. You said that you were, you were familiar with
A. Yes, sir.
Q. Through a previous case?
A. Yes, sir.
Q. On that previous case did you have a search warrant then?
A. Yes, sir.
Q. Was [Defendant] named on the search warrant?
A. No, sir.
Q. So your information, your previous involvement really
didn't involve [Defendant], did it?
A. Yes, sir, it did.
Q. It did?
A. Yes, sir. On the previous search warrant at your house, if
I can remember right, when we came into the house you then
had hands on drugs at that time also.
Star Handley of the Memphis Police Department testified that
in 2007-2008, he was assigned to the "Organized Crime
Unit Drug Response Team 7" of the police department.
Officer Handley participated in the execution of the search
warrant at Defendant's residence on February 29, 2008. He
said, "I was a member of the raid/entry team and my job
was the breacher of the door, also know[n] as the ram
man." Officer Handley testified that he was the last
officer to enter the residence; therefore, he did not see
Defendant until Defendant was handcuffed and brought from
another part of the residence. Officer Handley participated
in the search and located a bag of marijuana on a table in
the living room. He was present when the marijuana was field
tested, which tested positive for THC, and he said that it
weighed a total of 8.5 grams.
cross-examination, Officer Handley testified that he
remembered Defendant and a female being present in the house
at the time of the search. He did not recall if Forrest Jones
was also there.
Michael Gibbs of the Memphis Police Department was recognized
by the trial court as an expert in the field of street-level
drug sales in Memphis due to his work as a "deep
undercover" agent for two and a half years "both
buying and selling on the streets of Memphis[.]"
Defendant stipulated to Officer Gibbs being declared an
Gibbs viewed the drugs at trial that were seized from
Defendant's house, and he said: "One hundred percent
that they are packaged to sell." He further explained:
Because, as I said before, the quantity by themselves, I
mean, there are drugs users don't carry this amount of
drugs on them. They are buying the drugs to use immediately.
They don't - - as drugs users and if they'd been
caught with a million rocks on them and they don't use -
- they're trying to chase a high that they can't - -
that they achieved the first time they can't reach again.
So they are always constantly - - it's like an itch that
you can't scratch. They're always smoking, smoking.
This is no way that a normal user would possess this much
because they are in the habit of just smoking it up. They
don't save and invest and say I'm going to save and
open a saving account and I'm going to go get a little
bit of crack here and there.
Gibbs also noted that only a seller of crack cocaine would
have the quantity of rocks that were found in Defendant's
possession. When asked what "packaged for resale"
meant, Officer Gibbs testified:
It means that they're in - - they're individually
wrapped. Each one of these if, say a user, if I'm going -
- I'm going to buy dope, I'm not going to buy,
I'm going to get what I can afford at that time.
And sellers are different. If I'm a seller and I'm
going to buy dope, I don't want all of these individually
wrapped because that adds weight on to my total. I'm
going there to purchase a certain amount of drugs that weigh
that so much. And trust me, sellers are very accurate on
their weight. If they're - - this aluminum foil wrapped
around each piece adds weight on to those pieces which mean
that I'm buying foil, not drugs. As a seller that's
no good to me.
If I'm selling each one of these pieces, which are
relatively large pieces at that, then I make more money. I
can buy this amount in one solid piece and break it up and
make twice, the three, four times as much as I would of made
or as I would of made selling it as one rock.
Gibbs estimated that there were "[a]nywhere between
forty and fifty rocks" of crack cocaine, including the
"crumbs, " in the package recovered from
Defendant's residence. He weighed a couple of the rocks
of crack cocaine in front of the jury and testified as to the
street value of the cocaine recovered from Defendant's
residence. He testified that Defendant could have made
"like three thousand dollars off of it." Officer
Gibbs noted that because Defendant had powder cocaine, crack
cocaine, and marijuana in his house that Defendant was
probably "selling to different people, different
clientele." He said, "Somebody might come to his
location to buy weed. Somebody might come to his location to
buy powder. Somebody might be coming to buy crack."
the appearance of crack cocaine users and drug dealers,
Officer Gibbs testified:
You would see they - - the pipes get really hot. You'd
see what we call the ring from the glass or metal pipe. You
can't smoke it in plastic because you can't get it
hot enough, well the plastic starts to melt so that's why
they use glass pipes and or metal pipes. They put Chore Boy
in the end of it and they smoke and get a burn sometimes on
their fingers, severe burns on their fingers and they get a,
if their lips touch the pipe, they'll get a U shape.
Crack users also it, as I say, it looks as if their losing
like weight. Those guys who are addicted to crack they start
to change physical appearances. You start to look like
you're getting older and you could be, you know, a
younger guy. It takes, it takes away your youth. It takes
away your vitality.
Drug dealers, I mean, they come in all shapes and sizes.
We've had an older lady who could have been my
grandmother selling this stuff. But they tend to be normal
looking people. Healthier people. They don't have the
char - - they don't have, like I said, the crack, the
burnt lips, the fingers from where they've been holding