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Dunn v. State

Court of Criminal Appeals of Tennessee, Nashville

November 20, 2017

BRIAN CHRISTOPHER DUNN
v.
STATE OF TENNESSEE

          Assigned on Briefs August 8, 2017

          Appeal from the Circuit Court for Williamson County No. CR-119258 James G. Martin, III, Judge

         A Williamson County jury convicted the Petitioner, Brian Christopher Dunn, of initiating a process intended to result in the manufacture of methamphetamine and driving with a suspended, canceled, or revoked license, which the trial court then found to be his sixth offense. The trial court sentenced the Petitioner to an effective sentence of 11 months and 29 days, and this court affirmed the Petitioner's convictions on direct appeal. State v. Brian Christopher Dunn, No. M2015-00759-CCA-R3-CD, 2016 WL 1446113, at *1 (Tenn. Crim. App., at Nashville, Apr. 12, 2016), perm. app. denied (Tenn. Aug. 17, 2016). The Petitioner filed a petition for post-conviction relief in which he alleged that his trial counsel was ineffective for failing to move to suppress the evidence against him, failing to file a Ferguson motion, and failing to file a motion for a new trial. After a hearing, the post-conviction court denied the petition. The Petitioner maintains these issues on appeal, and we affirm the post-conviction court's judgment.

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

          Jonathan W. Turner, Franklin, Tennessee, for the appellant, Brian Christopher Dunn.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Kim R. Helper, District Attorney General; and Tammy J. Rettig, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts

         This case arises from evidence a police officer found in a vehicle that the Petitioner had been driving before it crashed. With regard to this evidence, a Williamson County grand jury indicted the Petitioner for initiating the process to manufacture methamphetamine, driving with a suspended, cancelled, or revoked license, and driving with a suspended, cancelled, or revoked license-6th offense. A co-defendant, Chelsea Ladd, who had been a passenger in the vehicle at the time of the accident, was also indicted for initiating the process to manufacture methamphetamine.

         A. Trial

         After conviction, the Petitioner appealed to this court arguing that the evidence was insufficient to sustain his conviction. We summarized the facts presented as follows:

         State's Proof:

At trial, Fairview Police Department Officer Russell Bernard testified that he responded to a single-vehicle crash in Williamson County. When he arrived on the scene, Officer Bernard saw a Chevy Tahoe in a wooded area with damage to the front end of the vehicle. Both the [Petitioner] and Ms. Ladd were standing outside the vehicle and did not appear to have serious injuries. The [Petitioner] informed Officer Bernard that he had been driving the Tahoe and claimed that he had fallen asleep at the wheel. The Defendant was not able to produce any identification and told Officer Bernard that his license had been revoked. The [Petitioner] admitted that he had smoked marijuana "just prior to driving, " and Officer Bernard stated that the [Petitioner] smelled of marijuana. Officer Bernard also noted that both the [Petitioner] and Ms. Ladd appeared to be nervous- they were pacing in the roadway and could not stand still. The [Petitioner] also appeared "slow-moving, kind of lethargic almost where he just was kind of slow to respond sometimes to [Officer Bernard's] questions." Ms. Ladd also appeared to be "under the influence of something."
Officer Bernard asked both the [Petitioner] and Ms. Ladd if they had any illegal drugs in the Tahoe, but they said they did not. Based on the odor of marijuana and the [Petitioner's] admission that he had smoked marijuana prior to driving, Officer Bernard decided to search the Tahoe. In the "cargo area" of the Tahoe, Officer Bernard found a pile of clothes and a clear, plastic bag "with a funnel sticking out of it." Officer Bernard stated that he believed the pile contained a mixture of men's and women's clothes. Officer Bernard picked up the bag and saw that it contained a yellow funnel, two crumpled coffee filters inside the funnel, plastic tubing attached to a plastic bottle cap, lithium batteries, a pack of unused coffee filters, and a cold compression pack that had been cut open. Officer Bernard stated that the plastic bag contained items used to manufacture methamphetamine. Officer Bernard noted that the plastic tubing was discolored. He also stated that the open cold compression pack should have contained ammonium nitrate pellets and a small ampule of water, which when broken reacts with the ammonium nitrate and causes the bag to become cold. However, there was no water ampule inside the cold compression pack, and only a small amount of ammonium nitrate remained at the bottom of the bag. It did not appear that the water ampule had been broken to cause a reaction with ammonium nitrate and "activate" the cold compression pack. The only time Officer Bernard had seen a cold compression pack open in such a manner was in association with methamphetamine labs. He also stated that ammonium nitrate is one of the ingredients used to make methamphetamine. He did not find any methamphetamine in the Tahoe.
Officer Bernard also stated that the plastic bag contained a sewing kit, head bands, and a hair brush with some hair that appeared to match the length and color of Ms. Ladd's hair. However, Officer Bernard said that, because the bag was in the back of the Tahoe, he could not "directly connect" the bag to either Ms. Ladd or the [Petitioner].
After securing the bag in his vehicle, Officer Bernard spoke with the [Petitioner] and Ms. Ladd separately and asked each of them if they had smoked methamphetamine. Both of them admitted that they had used methamphetamine "within the last day or two." Without telling the [Petitioner] what he had found in the Tahoe, Officer Bernard asked the [Petitioner] if there was anything else in the car. The [Petitioner] responded, "Whatever's been found in that car is not mine, I don't know what it is." Ms. Ladd also denied "any knowledge or possession of the items that were in her car." Ms. Ladd informed Officer Bernard that the [Petitioner] had been driving the Tahoe for the last four days and that she did not know what he was doing during that time. However, the [Petitioner] told the officer that Ms. Ladd "had just picked him up that day in the vehicle."
Eventually, Ms. Ladd was taken to the hospital to receive treatment for an ankle injury. As she was leaving the scene, the [Petitioner] "started yelling at her so she could hear him and said that-told her not to [']take a charge, ['] that the items were his." Officer Bernard asked the [Petitioner] which items belonged to him, and the [Petitioner] said that "he didn't know, but they were his."
Officer Bernard transported the evidence to the police department to be photographed and stored. All the evidence, except the cold compression pack, was stored in the evidence locker.
On cross-examination, Officer Bernard stated that the Tahoe was registered to Ms. Ladd. Officer Bernard also stated that he did not know when the items were last used to make methamphetamine and that he did not know how long those items were in the Tahoe. Officer Bernard reiterated that, because the plastic bag was found in the back of the Tahoe, Officer Bernard could not definitively say that either the Defendant or Ms. Ladd possessed the bag.
Sharon Taylor testified that she was the evidence technician at the Fairview Police Department. Ms. Taylor noted that she refused to accept the opened cold compression pack because it was considered an explosive and that the City of Fairview did not have a locker to store explosives. Ms. Taylor also noted that she sent the evidence to the Tennessee Bureau of Investigation ("TBI") for analysis.
Deputy Brad Fann, of the Williamson County Sheriff's Office, explained how methamphetamine is manufactured. He testified that a person making methamphetamine can buy cold compression packs from a drug store, cut open the pack, discard the water ampule, and use the ammonium nitrate in the methamphetamine cooking process. Deputy Fann stated that approximately one cup of ammonium nitrate is needed to make methamphetamine and that a cold compression pack contains approximately one cup of ammonium nitrate. Deputy Fann stated that he was not aware of any lawful use for a cold compression pack that had been cut open. Based on his training, Deputy Fann opined that the items found in the back of the Tahoe were used to manufacture methamphetamine.
Laura Cole, a chemist with the TBI, testified that the funnel, tubing, and coffee filters found in the Tahoe were submitted to her for testing to determine whether they contained traces of methamphetamine. Ms. Cole noted that she did not find a sufficient amount of residue to test.

         [Petitioner's] Proof:

Ms. Ladd testified that she was also charged with initiating the process to manufacture methamphetamine. Ms. Ladd recalled that "some nitrate . . . some batteries, a bottle, [and] some tubing" were found in the Tahoe. When asked if she knew how the items came to be in the car, Ms. Ladd stated, "I just know that they was in my car earlier that day from where me and some of my friends had messed around." She said she did not know who opened the cold compression pack. However, she said she knew it was not opened by the [Petitioner] "[b]ecause [she] wasn't with [the Petitioner] earlier that day like [she] was with some other friends. The only reason [the Petitioner] was there in the first place was because [she] had asked him to drive [her]." Ms. Ladd said that the items in the plastic bag belonged to her.
On cross-examination, Ms. Ladd denied a romantic relationship with the [Petitioner] but said that they were close friends. Ms. Ladd admitted that she paid the [Petitioner's] bail. She also stated, "I feel like it's my fault [the Petitioner] was ever there. I asked him to drive me and if he wouldn't have been driving-if I wouldn't never asked him to drive me he wouldn't have been there and that's a fact." Ms. Ladd said she did not recall denying on the night of the wreck that the items belonged to her, and she said she "was pretty sure [she] didn't say anything." Ms. Ladd thought the [Petitioner] told her not to say a word because he was looking out for her and not because he knew about any of the items in the car. She denied that the [Petitioner] claimed the items as his.
Ms. Ladd admitted that she had been using methamphetamine in the days before the wreck, but she said the [Petitioner] had not used methamphetamine. When asked if she would be surprised if the [Petitioner] told Officer Bernard that he had used methamphetamine, Ms. Ladd said, "Yeah, I'd be surprised. I don't believe that he did unless you have some type of proof." Ms. Ladd denied telling Officer Bernard that the [Petitioner] had possession of her Tahoe for the four days prior to the wreck. She insisted that the items did not belong to the [Petitioner]. Ms. Ladd stated that she pleaded guilty to attempting to initiate the manufacture of methamphetamine. She thought "that pretty much says that [she] was the person responsible." Ms. Ladd also reported that she had been sentenced to drug court after her plea but had since been "kicked out" of drug court and was serving her sentence in confinement.

Dunn, 2016 WL 1446113, at *1-3. This Court affirmed the Petitioner's convictions. Id. at *1.

         B. Post-Conviction Facts

         While the Petitioner's appeal was pending in this court, he filed a petition for post-conviction relief, alleging that he had received the ineffective assistance of counsel because his trial counsel failed to move to suppress the evidence against him, failed to file a Ferguson motion, and failed to file a motion for a new trial. The post-conviction court held a hearing, and the parties presented the following evidence: Russell Bernard, a state trooper with the Tennessee Highway Patrol ("THP"), testified that he had been employed with the THP for about four months before he encountered the Petitioner in May 2013. He said that he responded to an accident at around 1:00 a.m. He saw that the crash scene was in the ramp area of ...


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