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Belk v. State

Court of Criminal Appeals of Tennessee, Jackson

November 8, 2017

CHARLES D. BELK
v.
STATE OF TENNESSEE

          Assigned on Briefs September 7, 2017

         Appeal from the Circuit Court for Obion County No. CC-16-CR-47 Jeff Parham, Judge

         The Petitioner, Charles D. Belk, appeals the Obion County Circuit Court's denial of his petition for post-conviction relief from his convictions of introducing a controlled substance into a penal institution, a Class C felony; Class C felony unlawful possession of a weapon; Class D felony unlawful possession of a weapon; possessing marijuana with intent to sell or deliver, a Class E felony; and simple possession, a Class A misdemeanor, and resulting effective sentence of twelve years in confinement. On appeal, the Petitioner claims that he received the ineffective assistance of trial and appellate counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Kent F. Gearin, Martin, Tennessee, for the appellant, Charles D. Belk.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Russell Johnson, District Attorney General; and James Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         This case relates to a search of the Petitioner's home in Union City. According to the affidavit used to obtain the search warrant, a confidential informant (CI) bought crack cocaine from Jalissa McFall on three separate occasions. The first two purchases occurred at McFall's home. For the third purchase, McFall told the CI to drive her to the residence of "dopeman, " who was her supplier, on East Florida Street. McFall entered the residence, returned to the CI's car, and sold him the specified amount of cocaine he had ordered. The affiant observed and electronically monitored the transaction between the CI and McFall. Later, the CI rode with the affiant to East Florida Street and pointed out the exact residence from which McFall had obtained the cocaine. The residence turned out to be that of the Petitioner. On April 26, 2013, police officers executed a search warrant at the Petitioner's home. As a result of the evidence found in the search, the Obion County Grand Jury indicted the Petitioner for possession of cocaine with intent to sell or deliver, a Class B felony, in count one; possession of marijuana with intent to sell or deliver, a Class E felony, in count two; tampering with evidence, a Class C felony, in count three; Class C unlawful possession of a weapon in count four; Class D felony unlawful possession of a weapon in count five; misdemeanor theft in count six; and introducing a controlled substance into a penal institution, a Class C felony, in count seven.

         The following relevant facts, as stated in this court's direct appeal opinion of the Petitioner's convictions, are summarized as follows:

The defendant filed a motion to suppress the evidence obtained pursuant to the search warrant, arguing that the information the officer relied on to obtain the search warrant was based on hearsay. Specifically, he asserted that the officer relied on information given to him by a criminal informant who relied on hearsay from a third party, whose basis of knowledge was never verified. After hearing the testimony of the officer affiant and reviewing the matter, the trial court denied the motion to suppress, finding there was a sufficient basis of knowledge for the issuance of the search warrant.
At the defendant's trial, Officer Stan Haskins with the Union City Police Department testified that he assisted with the execution of the search warrant at issue in this case. Upon entering the residence, Officer Haskins saw an African-American male, identified as the co-defendant Michael Genes, in the hallway by the bathroom. Genes did not comply with Officer Haskins' order to get on the ground, and the officer had to physically subdue and handcuff Genes. Meanwhile, the defendant emerged from a bedroom next to the bathroom, and other officers placed him on the ground. After Officer Haskins had secured Genes, he noticed that the tank of the toilet was refilling. He secured the area and saw a torn plastic shopping bag containing a few smaller bags of marijuana beside the toilet.
Officer Derrick O'Dell with the Union City Police Department also assisted with the execution of the search warrant in this case. Officer O'Dell testified that he found crack cocaine on top of a plate that was sitting on cans of soup in a kitchen cabinet, as well as "wadded-up baggies" on top of the microwave. The cocaine was packaged in the corner of a plastic bag, tied off in a knot, and there was residue on the plate. He surmised that the amount of residue and how the cocaine appeared to have been chopped up indicated that it had been processed to sell. After photographing the evidence, Officer O'Dell contacted [Officer Shawn] Palmer, the case agent, who collected the evidence.
Officer O'Dell testified that, in the defendant's bedroom, he photographed a gun, money in a shoe, and two bags of marijuana in the top drawer of a dresser. He also photographed personal paperwork belonging to the defendant and Genes, indicating that both men lived at the address, as well as three bags of marijuana inside a torn white bag on the bathroom floor by the toilet. He noted that the marijuana appeared to be packaged for resale, and each of the three bags contained approximately ...

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