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State v. Armstrong

Court of Criminal Appeals of Tennessee, Jackson

December 12, 2017


          September 6, 2017 Session

         Appeal from the Criminal Court for Shelby County No. 15-02553 Lee V. Coffee, Judge

         A Shelby County Criminal Court Jury convicted the Appellant, Ray Armstrong, of four counts of possessing one-half gram or more of cocaine with intent to sell or deliver within a drug-free school zone, one count of destroying evidence, and one count of resisting arrest. The trial court merged the convictions of possessing cocaine, and the Appellant received an effective sentence of fifty and one-half years in confinement. On appeal, he contends that the evidence is insufficient to support the convictions, that the trial court erred by denying his motion to suppress evidence, that the trial court erred by allowing a witness to give testimony that was hearsay and violated Tennessee Rule of Evidence 404(b), that the trial court erred by refusing to instruct the jury on criminal attempt as a lesser-included offense of destroying evidence, that the State improperly mentioned a missing witness during closing argument, and that his four convictions and sentences for possessing cocaine violate double jeopardy. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgments of the trial court.

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

          Harry E. Sayle, III (on appeal) and Thomas Paul Pera, Jr., and Katherine Oberembt (at trial), Memphis, Tennessee, for the appellant, Ray Armstrong.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree, 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.



         I. Factual Background

         In May 2015, the Shelby County Grand Jury indicted the Appellant for count one, possession of one-half gram or more of cocaine with intent to sell within 1, 000 feet of a private school, a Class A felony; count two, possession of one-half gram or more of cocaine with intent to deliver within 1, 000 feet of a private school, a Class A felony; count three, possession of one-half gram or more of cocaine with intent to sell within 1, 000 feet of a daycare, a Class B felony; count four, possession of one-half gram or more of cocaine with intent to deliver within 1, 000 feet of a daycare, a Class B felony; count five, destroying evidence, a Class C felony; and count six, resisting arrest, a Class A misdemeanor. The indictment alleged that all of the offenses occurred on June 13, 2014.

         At trial, Benjamin Daugherty testified that in June 2014, he was an officer with the Memphis Police Department (MPD) and worked in a "high crime" area of the city where "we have a lot of drug problems, aggravated assaults, car robberies, and car break-ins." On the afternoon of June 13, Officer Daugherty and his partner, Officer Brandon Cockman, were riding bicycles "just to patrol that area and be visible, try to keep crime down through presence." He described their clothing as "bright yellow, high visibility, name, badge, police on it and everything" and acknowledged that they were armed.

         Officer Daugherty testified that when he got into the middle of the intersection at Fourth and Vance, he saw the Appellant on the southwest corner "making what appeared to be a hand-to-hand drug transaction" with two males. Officer Daugherty saw the Appellant receive money from one of the males and hand "something" to the male. However, Officer Daugherty could not identify the item. He stated that he did not know the two males but that he knew the Appellant because he used to come into contact with the Appellant "at least once a week." He said that the Appellant had "advised me before that he sells drugs, but that I would never catch him."

         Officer Daugherty testified that he and Officer Cockman approached the Appellant and the two males and that "[t]hey immediately turned away from us as if they were trying to hide something." Officer Daugherty then testified,

I asked the individuals, you know, "What's going on?" Just tried to have a casual conversation. Asked them if they were exchanging drugs or anything. They advised, "No." I asked them if they minded if I patted them down for any weapons, because weapons are usually in the same area as drugs. [The two males agreed.] So we continued to do a frisk of the two individuals, me on one, and my partner, Cockman, on the other.

         Officer Daugherty said that the Appellant was wearing clean clothes, that the Appellant's body was clean, and that he did not see anything to indicate the Appellant was a drug user. The two males, though, were wearing dirty clothes, smelled like they had not had a bath in days, and had long fingernails and "maybe some scruffy beard."

         Officer Daugherty testified that while he was frisking one of the males, he continued talking to the Appellant. The Appellant was "trying not to talk much" and "just mumbling" and then refused to answer the officers' questions. Officer Daugherty said that he noticed plastic baggies containing crack cocaine in the Appellant's mouth, that he knew the substance in the baggies was cocaine "through experience, " and that he told the Appellant to spit out the baggies. At that point, the Appellant "began chewing and trying to swallow" and tried to get away from the officers. Officer Daugherty grabbed the Appellant and struggled with him. Officer Daugherty said that the Appellant "[k]icked at us and swung at us with his fists" and that he had to resort to "hard techniques" by hitting the Appellant with his fist. During the altercation, the Appellant spit out two baggies and told the officers that he "had swallowed." The Appellant stopped resisting, and Officer Daugherty handcuffed him. Officer Daugherty called for an ambulance due to his use of force on the Appellant and because Officer Daugherty had received some scrapes and bruises during the struggle. The Appellant refused medical treatment, and the officers put him into the back of a patrol car.

         Officer Daugherty testified that he found two small plastic bags on the ground and that the bags were wet with the Appellant's saliva. The first bag was "torn open or chewed open with just [residue] in it, . . . no actual rocks." The second bag contained crack cocaine, a white rock-like substance. Officer Daugherty said that he thought the Appellant may have swallowed some of the cocaine from the open bag and that he did not know exactly how much cocaine the Appellant swallowed. Therefore, a police officer transported the Appellant to a hospital. Officer Daugherty collected the two plastic bags and gave them to Officer Darrell Cherry.

         On cross-examination, Officer Daugherty testified that he was armed with a forty-caliber Sig Saur handgun, pepper spray, and an expandable baton at the time of the Appellant's arrest. He acknowledged that he had "stopped and checked" the Appellant many times previously but denied searching the Appellant on prior occasions, stating, "We wouldn't search him, but we'd pat him down, yes. You don't search somebody unless you have probable cause." Officer Daugherty had never arrested the Appellant for selling drugs prior to June 13 but had "observed Mr. Armstrong make what appeared to be hand-to-hand transactions with other individuals, and we have arrested other individuals on the scene in possession of drugs." Officer Daugherty said that he had never seen the Appellant hand drugs to other people previously and that he did not remember when the Appellant told him that the Appellant "sells drugs." The Appellant driver's license was suspended, and Officers Daugherty and Cockman cited him one time for driving on a suspended license. However, Officer Daugherty did not remember citing or arresting the Appellant for any other crime prior to June 13.

         Officer Daugherty testified that he did not see what the Appellant did with the money the Appellant received on June 13 because the Appellant turned his back to the officers. Officer Daugherty acknowledged that he "detained" and patted-down the two males who were with the Appellant. He did not obtain their names, though, and they left the scene during the officers' struggle with the Appellant. Officer Daugherty acknowledged that during a prior hearing on March 4, 2016, he testified that he did not remember what the two males looked like. He also acknowledged testifying at the Appellant's preliminary hearing on August 24, 2014, that he did not need medical attention after struggling with the Appellant. He stated at trial that he received "minor" injuries and that he hit the Appellant's face with his fist five to seven times.

         Officer Daugherty acknowledged that the Appellant claimed to have swallowed cocaine and that doing so was dangerous. However, the Appellant did not exhibit any symptoms of having ingested cocaine, such as nausea or vomiting. Officer Daugherty did not find a cellular telephone, beeper, or anything needed to make crack cocaine on the Appellant's person.

         Officer H. Cockman testified that in June 2014, he was "assigned to the north Main task force, which is a crime suppression unit." On June 13, he and Officer Daugherty were working downtown in a high-crime area and were there "to be visible" in order to deter crime. They were riding bicycles and wearing yellow shirts with "police" across the back. Officer Cockman said that he saw three males, one of whom turned out to be the Appellant, on the southwest corner of Fourth and Vance and that they were "engaged in a hand-to-hand drug transaction." He stated that he saw "a hand-to-hand movement" and that one of the males "pass[ed]" money to the Appellant.

         Officer Cockman testified that he and Officer Daugherty "started over there and went to basically detain all three of them." He said that the officers began a "pat-down for weapons, asking them who they were" and that the Appellant drew Officer Cockman's attention because the Appellant was talking "funny" and had slurred speech. Officer Cockman noticed a cellophane bag in the Appellant's mouth; a white substance was in the bag. He asked the Appellant, who was sitting down, what was in the Appellant's mouth and "went to put [his] hand on" the Appellant. The Appellant kicked Officer Cockman and tried to pull "baggies" out of his mouth and tear them. Officer Cockman said, "I could physically see he was eating the baggies, attempting to, you know. I don't know how much cocaine he did eat, but he was eating what was in those bags." Officer Cockman said he hit the Appellant to "stop his aggression toward us" and to "stop him from destroying evidence." The officers took the Appellant into custody and put him into a patrol car. Officer Cockman said he and Officer Daugherty called an ambulance for the Appellant because "I have seen people eat crack cocaine and just stroke out."

         Officer Cockman testified that the Appellant hit him multiple times during the altercation but that Officer Cockman did not seek medical attention. The two males who were with the Appellant left during the struggle, and Officer Cockman never obtained their names. He said that he did not see anything about the Appellant that caused him to think the Appellant was a drug user but that he was "ninety-nine percent [sure]" the two males were users. The Appellant had money, but not drug paraphernalia, on his person, and his girlfriend's car was parked nearby. A K-9 "check[ed]" the vehicle, but the dog did not indicate drugs were present.

         On cross-examination, Officer Cockman testified that he was armed with a Glock firearm, pepper spray, and a baton on June 13. He said that he saw one of the males hand money to the Appellant and acknowledged that he did not see the Appellant actually hand drugs to the male. He said, though, that "as many times as I have dealt with that, yes, and due to the area, it was a drug transaction." He acknowledged that he detained the Appellant and the two males based upon his seeing a hand-to-hand drug transaction and that he conducted a "quick" pat-down of one of the males. He also acknowledged that if he had felt contraband or drugs during the pat-down, he would have removed the object and examined it. He did not find any drugs or contraband during the pat-down in this case but explained as follows:

There's a difference between a safety pat-down and an "I'm looking for narcotics [pat-down], " especially when it comes to crack cocaine, because you can hide it anywhere. A lot of times, they tear the lining of their jacket, and it will fall inside of the lining of their jacket. A little, bitty five-, ten- to twenty-dollar rock is extremely small. So, on initial pat-downs, you might not find that. You might not find their shooter, which could be in their shoe, or in the lining of their jacket, or their push rod, or their Chore Boy on an initial pat-down.

         Officer Cockman testified that while he was struggling with the Appellant, the Appellant "was tearing into the bag. Put it back up to his mouth. Tear into the bag. Put it up to his mouth. Tear [into the bag]." Officer Cockman hit the Appellant's face. He said that he did not know how many times he hit the Appellant but that he hit him "[a]s many times as it took to place him in custody." Officer Cockman said he did not know the Appellant and did not have any recollection of having seen the Appellant prior to June 13, 2014.

         Officer Clinton Langham of the MPD testified that he responded to the scene after the Appellant had been arrested and that he transported the Appellant to the hospital because "[t]hey told me he swallowed dope." En route, Officer Langham did not ask the Appellant any questions, but the Appellant "talked a lot." The Appellant told Officer Langham that he "swallowed most of it, " that he had plenty of money, and that he had "just bought his girl two Infinities." On cross-examination, Officer Langham testified that the Appellant did not exhibit any symptoms of having swallowed cocaine.

         Officer Darrell Cherry of the MPD testified that he arrived at the scene and "tagged" crack cocaine and $237 in cash. The cocaine was wet, and Officer Cherry took the evidence to the police department. Robert Paige, the property room attendant for the MPD, testified that he received the evidence from Officer Cherry. Paige weighed the crack cocaine, and the cocaine and the plastic baggie it was in weighed a total of 2.1 grams. The $237 was in the following denominations: nine twenty-dollar-bills, four ten-dollar-bills, one five-dollar-bill, and twelve one-dollar bills.

         Peter Hall, a special agent forensic scientist with the Tennessee Bureau of Investigation (TBI), testified as an expert in forensic drug analysis that he received evidence related to this case. The evidence consisted of one plastic bag containing a rock-like substance. According to Hall's notes, the bag was "torn in half.'" The weight of the rock-like substance without any packaging was 1.25 grams, and the substance tested positive for cocaine base.

         The parties stipulated that St. Patrick School, a private school, and Unique Downtown Learning, a daycare, were operating on June 13, 2014. William D. Merritt, an investigator with the Shelby County District Attorney's Office, testified that he used a rolling tape measure to determine the distance from the location of the Appellant's arrest to the two facilities. The distance to St. Patrick School was 450 feet, and the distance to Unique Downtown Learning was 934 feet.

         Ruben Ramirez of the Shelby County Sheriff's Office testified that he was an investigator assigned to inmate telephone monitoring. At the State's request, he obtained recorded jailhouse telephone calls made to and from the Appellant between June 13, 2014, and July 1, 2014. Ramirez obtained seventy calls, and the State played three of them for the jury. In the first call, which was recorded at 11:14 p.m. on June 13, 2014, the day of the Appellant's arrest, the Appellant told an unidentified female that he got "caught with some dope" and that "B.B." needed "to come get the car keys" so B.B. could get the car. The Appellant also stated that "they took half my money" but that he kept "three hundred." In the second call, which was recorded on June 14, 2014, the Appellant talked with another unidentified female, whom he repeatedly called "Baby." During their conversation, he referred to "dope" and told her, "All the customers come to me." He also told her that he "had the [sh**] in [his] hand" and that he "had to put the [sh**]" in [his] mouth." She asked if "they got some dope off you, " and he told her, "Yeah, they got two grams." In the third call, which was recorded at 7:35 p.m. on June 29, 2014, an unidentified female told the Appellant that she "sold two shirts" and that "it was keeping [her] going." The Appellant, who repeatedly called her "Baby, " told her that "they know for sure I'm selling dope." He also told her that he was not going to keep any "dope" in the car and that, from now on, he was going to "keep it in [his a**]."

         Detective Ian James of the MPD testified as an expert in narcotics that he worked for eleven years as a narcotics officer and that he spent two of those years working undercover. He explained that drug users snorted powder cocaine but smoked or injected crack cocaine and that he expected to find a crack pipe on a user but not a seller. Cocaine often was referred to as "white girl, T-shirts, [and] China white" on the street. A seller usually started with a one-ounce rock of crack cocaine and then broke the rock into smaller pieces to sell to users. Detective James said the seller could store crack rocks in baggies and then hide the baggies in his or her mouth or anus to conceal them from the police. Addicts who bought the crack rocks did not care where the baggies came from. Detective James said sellers often parked their cars within walking distance and stood in a location where users could find them. The usual transaction on the street was two-tenths of a gram for ten to twenty dollars. Detective James said that he had never had any prior dealings with the Appellant but that, in his opinion, the Appellant was "definitely" selling crack cocaine on June 13, 2014.

         On cross-examination, Detective James testified that he personally had engaged in hundreds of hand-to-hand drug transactions while working undercover in Memphis but that he had not done so since 2012. He said that some users smoked crack cocaine by mixing it with marijuana and that a user did not need a crack pipe to smoke the mixture, also known as "primo." He noted that a user probably would not resist arrest and stated that drug dealers, knowing he was a police officer, had bragged to him about selling drugs and making money. He stated that after reviewing the evidence in this case, he concluded that the Appellant possessed "a dealer amount" of crack cocaine. At the conclusion of Detective James' testimony, the State rested its case.

         Thirty-seven-year-old Norvil Moore testified that he owned a tire shop in Memphis and that he had known the Appellant most of Moore's life. He stated that he and the Appellant used to spend a lot of time together and that in 2012, "we was in this same Courtroom for a prior case that me and him was -- I was stealing. Couple more guys, doing drugs, sitting in the same seat, a couple of years ago." He said he and the Appellant used to steal "stuff out of stores, " such as clothes and cigarettes, and then use the money from selling the items to get "high." In June 2014, the Appellant worked for Moore at Moore's tire shop. The Appellant worked about three days per week, and Moore paid him daily in cash. Moore said that on a "good" day, the Appellant would earn $75 to $150.

         Moore testified that he had seen the Appellant use marijuana, cocaine, and crack cocaine previously and that the Appellant's drug of choice when he was with Moore was crack cocaine or "primo." Moore described primo as "crack cocaine and a cigarette" or "crack cocaine and weed" inside two rolling papers. Moore went to jail in July 2011, and the Appellant went to jail in 2012. Moore got out of jail prior to the Appellant and stopped using drugs. However, the Appellant continued using drugs, so Moore "stopped dealing with him." Moore last saw the Appellant use drugs in March or April 2014. He said that the Appellant "has broke the law in a lot of different ways" but that he had never known the Appellant to sell drugs. He said he had never heard crack cocaine referred to as a "shirt."

         On cross-examination, Moore testified that the Appellant did not work a regular schedule at the tire shop in June 2014. Moore acknowledged that he was on probation for theft in Mississippi and that he had been convicted of several crimes, including robbery in September 2012. The State asked if the Appellant also went to jail for that robbery, and Moore said no. He then stated, "But we was co-defendants in different other cases because they -- it was seven of us, and they had all us together because all [of] us had committed these types of crimes." Moore acknowledged that he was not with the Appellant on June 13, 2014. On redirect examination, Moore testified that he had never known the Appellant to sell drugs and that he knew the Appellant to be a thief, not a drug dealer.

         The thirty-three-year-old Appellant testified that he was schizophrenic and bipolar, that he took three medications for his mental illness, and that he left school after the seventh grade because he could not read. He received a disability check for $720 and $189 in food stamps every month, and he stole and sold Polo shirts and worked at Norvil Moore's tire shop when he needed money. His girlfriends also gave him money. The Appellant did not have a bank account and kept his money in his pocket.

         The Appellant testified that he had a drug problem and that he used his money to buy drugs. His drug of choice was crack cocaine, but he also used powder cocaine. The Appellant began using powder cocaine when he was sixteen years old and crack cocaine when he was twenty-one. He said he had never sought treatment for his drug addiction.

         The Appellant testified that in June 2014, he was living in an apartment with his girlfriend, Shamika "B.B." Ball. Ball drove an Infiniti, and she let the Appellant drive it when he needed it. The Appellant was dating two other girls while he was living with Ball. He said that he was using crack cocaine three to four times per day and that he bought it in North Memphis and at Fourth and Vance. His preferred method of smoking the crack cocaine was to make primo by combining "dope and weed" and to "roll it up." He said he would "go stealing" when he did not have the money to buy cocaine and acknowledged that he had prior arrests for theft, robbery, aggravated assault, and burglary. He said he committed the crimes in order to get money for drugs.

         The Appellant testified that he had seen Officers Daugherty and Cockman "[a] lot" prior to June 13, 2014, but that they had never arrested him. They cited him one time, though, for driving on a suspended license. He said that when he would encounter the officers, they would pat him down and "ask what I got on me." On June 13, the Appellant went to the area of Fourth and Vance to sell "T-shirts." He drove his car, which also was an Infiniti, and parked it nearby. The Appellant bought "[a] little over a gram" of crack cocaine from a drug dealer for sixty dollars, and the cocaine was in one plastic bag. The dealer also wanted a Polo shirt, so the Appellant gave him one. After the drug buy, the Appellant walked to a store. He had the crack cocaine in his hand and about $400 in his pocket.

         The Appellant testified that he bought chips and a drink at the store and then walked across the street. At that point, his "partner, " who was named "Staley, " called his name. The Appellant said that he and Staley talked at the bus stop and that "some other dude" he did not know also was present. While the Appellant and Staley were talking, Officers Daugherty and Cockman approached. The Appellant saw them and put the crack cocaine in his mouth. The officers asked, "'What you doing, Mr. Armstrong?'" The Appellant answered, "'I ain't doing nothing. I'm just over here hollering at my partner.'" He said that Officer Daugherty searched him, that Officer Cockman asked what he had in his mouth, and that Officer Cockman told him, "'Give it to me.'" The Appellant said that before he could give the crack cocaine to Officer Cockman, Officer Cockman grabbed him and hit him. He said that the officers began "constantly just hitting me" and that one of them hit his head with a blackjack while the other hit him with a fist. Defense counsel asked if he tried to chew up the crack cocaine, and he said no. He also said that he did not swallow any crack cocaine and that "I think I would have died." The Appellant spit out the crack cocaine and fell onto the ground, and the officers "stomped" him. The officers handcuffed the Appellant and put him into a patrol car, and Officer Langham took him to the hospital. The Appellant denied telling Officer Langham that he swallowed most of the cocaine. He said he did not allow the officers to search his car because stolen t-shirts were in the car.

         The Appellant testified that he did not receive treatment at the hospital because he was too scared to get out of the patrol car due to "what they done to me." The Appellant had a swollen eye, a "busted" lip, two knots on his head, and a blood clot in his eye and received antibiotics in jail. He said that after he was booked into jail, he telephoned his sister and Ball. Neither of them knew the Appellant smoked crack cocaine. The Appellant admitted to Ball on the telephone that he smoked crack, and she broke up with him. The Appellant said that he did not sell drugs to Staley and that Staley did not hand money to him on June 13, 2014. He also said that ...

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