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State v. Gunn

Court of Criminal Appeals of Tennessee, Jackson

October 26, 2017


          Assigned on Briefs February 7, 2017

         Appeal from the Criminal Court for Shelby County No. 09-02072 W. Mark Ward, Judge

         Defendant, 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 court.

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

          Gregory D. Allen, Memphis, Tennessee, for the appellant, Benjamin Gunn.

          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.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Camille R. McMullen, and J. Ross Dyer, JJ., joined.



         Procedural Background

         In his 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).


         Officer 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 house[.]"

         Officer 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 house.

         Officer 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.

         Once 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 said:

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 then.

         Defendant 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.

         Officer 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. . ."

         Officer 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 your recollection?
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.
A. Okay.
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.

         Officer 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.

         Defendant, 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.

         Defendant 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?
A. Uh-huh
Q. Okay. What did you find out about [Defendant] in the background check?
[PROSECUTOR]: Judge, may we approach?
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[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 question.
[PROSECUTOR]: I don't think he wants him to.
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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.

         On 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 tip?
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.

         On recross-examination, Defendant asked Officer Robinson additional questions about a previous search warrant:

Q. You said that you were, you were familiar with [Defendant]?
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.

         Officer 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.

         On 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.

         Officer 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 expert.

         Officer 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.

         Officer 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.

         Officer 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."

         Concerning 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.
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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 the ...

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