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State v. Linsey

Court of Criminal Appeals of Tennessee, Nashville

January 24, 2018


          Assigned on Briefs January 17, 2018

         Appeal from the Circuit Court for Montgomery County No. CC15-CR-544 William R. Goodman, III, Judge

         In May 2015, the Montgomery County Grand Jury indicted the Defendant, Christopher D. Linsey, for possession of 0.5 grams or more of cocaine with the intent to sell or deliver, simple possession of marijuana, possession of drug paraphernalia, and resisting arrest. Following a jury trial, the Defendant was convicted as charged, and the trial court sentenced the Defendant, as a Range III persistent offender, to a total effective sentence of twenty-three years. On appeal, he contends that the evidence presented at trial was insufficient to support his conviction for possession of 0.5 grams or more of cocaine with the intent to sell or deliver, and he challenges his sentence as excessive. Upon review, we affirm the judgments of the trial court.

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

          Gregory D. Smith (on appeal); and Melissa King, Clarksville, Tennessee (at trial), for the appellant, Christopher D. Linsey.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Counsel; John W. Carney, District Attorney General; and Dan Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.



         I. Factual and Procedural Background

         On February 24, 2015, Officer Jack Williams of the Clarksville Police Department (CPD) responded to a call of a "possible trespasser" at a residence on Wesley Drive in Clarksville. Upon arrival, Officer Williams met with the caller, David Reed, III, and walked around Mr. Reed's property looking for evidence of the trespasser. While walking through the back yard of Mr. Reed's residence, Officer Williams noticed the smell of burnt marijuana. Although Mr. Reed said that he did not smell anything, other officers on the scene stated that they too smelled marijuana. Officer Williams walked toward the house next door, and the smell of burnt marijuana became stronger. Finding no evidence of a trespasser, the officers left Mr. Reed's residence.

         Later that evening, Officer Williams and two other officers conducted a knock and talk at the residence next door to Mr. Reed's. As he approached the front door, Officer Williams again smelled the odor of marijuana and noticed someone looking out the front window at him. At that time, the owner of the residence, Tiffany Holliday, came out of the house and quickly closed the front door behind her. When Ms. Holliday asked what the officers were doing there, Officer Williams asked her about the smell of marijuana and asked for consent to search the house, which Ms. Holliday denied. Officer Williams asked, "Who else [is] in the residence?" Ms. Holliday stated that her brother, Timothy Holliday, and her five children were inside. Officer Williams asked if he could step inside the house to speak with her, but Ms. Holliday stated that "she could bring everybody outside" and told the officer that her friend "Crook" was also in the residence. Officer Williams again asked to step inside to talk because the weather was "below freezing" and he did not want her to bring her children outside in the cold weather, and Ms. Holliday allowed the officers into the residence. Once inside, Officer Williams could smell the odor of burnt marijuana and asked Ms. Holliday to gather the occupants of the residence into the living room. The Defendant and four other men came out of a "bonus room, " which was a converted garage at the back of the residence. Officer Williams obtained consent from Ms. Holliday for a "protective sweep" of the residence to ensure that no one else was inside the home. He then contacted the CPD's "on-call drug agent, " Agent Robert DelGiorno, and advised him of the situation. Agent DelGiorno said that he would apply for a search warrant and requested that Officer Williams wait with the occupants of the residence in the living room.

         Based on his discussions with Officer Williams, Agent DelGiorno prepared an application for a search warrant, which was granted by a judge. The search warrant covered not only the residence but also included a search of the individuals inside the residence, including the Defendant. Agent DelGiorno and three other drug agents-Will Evans, Griffie Briggs, and Lon Chaney-arrived at Ms. Holliday's residence with a search warrant. Agent DelGiorno initially spoke to Ms. Holliday and explained to her that he had a search warrant. He then instructed the other agents to search the residence. While searching the bonus room, the agents looked under the chairs and couches in the room. Agent Evans found a small baggie containing a "white powdery substance, " which had been "stuffed" in the side of a couch. The agents also found a "marijuana grinder, " a digital scale, and five or six marijuana "roaches."[1] In the back bedroom, a second digital scale was recovered. Agent DelGiorno took photographs of the contraband, and he conducted a field test of the roaches, which indicated that the roaches contained marijuana. Agent DelGiorno stated that the baggies found in the jacket worn by the Defendant were commonly used in the distribution or sale of narcotics, specifically crack cocaine and marijuana. One of the digital scales was found in the bonus room. He testified that digital scales are commonly used to weigh narcotics.

         After the agents completed their search of every room except the living room, Agent DelGiorno asked Officer Williams to move the occupants to the bonus room. Before moving the Defendant, Officer Williams briefly searched him and found nothing on the Defendant's person. However, Officer Williams then searched a jacket lying on top of a table that the Defendant had been wearing when officers first arrived. Officer Williams found "multiple clear plastic baggies" in a front pocket of the jacket. Based on his training, Officer Williams knew that the baggies were commonly used to package narcotics and turned them over to Agent DelGiorno. He then escorted the Defendant to the bonus room.

         Because of the number of potential defendants at the residence, Agent DelGiorno decided to conduct strip searches[2] of the occupants before transporting anyone to the police department. Agent DelGiorno and Agent Chaney conducted a strip search of the Defendant first. They instructed the Defendant to remove one piece of clothing at a time until he was "completely disrobed." At this time, Agent Evans entered the bonus room and "saw [a] plastic baggie protruding from [the Defendant's] butt cheeks." Agent Evans knew from his training that defendants commonly conceal narcotics between their butt cheeks. He told the Defendant, ". . . I can see it sticking out of your butt cheeks, just go ahead and pull it out for us." Agent DelGiorno also saw the baggie and reached over to detain the Defendant, but the Defendant pulled away from Agent DelGiorno and lunged towards the back door. Hearing "a commotion, " Agent Briggs and Officer Williams entered the bonus room and saw the Defendant on the ground with three officers attempting to handcuff the Defendant. The Defendant had "locked up his hands up against his body so the agents could not put his hands into handcuffs." Additionally, the Defendant's "buttocks area was clenched very tightly and then he was kicking . . . his lower extremity of his legs." After a short struggle, the Defendant was placed into handcuffs, and Agent Briggs observed "a small bag containing a white crystalline substance[, ]" laying on the ground in the area of the couch that had just been searched. Agent Briggs photographed and collected the baggie and the Defendant's cell phone. The officers helped the Defendant put back on his clothes, but they "duck taped his pants" at the ankles because they believed that "there may still be contraband inside his butt cheeks." The Defendant was then transported to the jail, where another strip search was conducted.

         The evidence recovered in the execution of the search warrant was sent to the Tennessee Bureau of Investigation (TBI) Crime Laboratory for testing. Special Agent William Stanton analyzed the small baggie containing a white crystalline substance that was found on the ground under the couch after the Defendant's strip search. Agent Stanton determined that the substance inside the baggie contained cocaine base and weighed 1.98 grams.[3]

         CPD Detective Deborah Kolofsky obtained a search warrant for the Defendant's cell phone. Detective Kolofsky performed a forensic examination of the cell phone and prepared an extraction report, which included text messages sent from and received by the Defendant's cell phone. Agent Chaney, who in the course of his work as a narcotics agent was familiar with "street slang" associated with drug sales, reviewed the extraction report provided by Detective Kolofsky. Upon review, he identified several text message exchanges that contained slang words associated with the drug trade. In one exchange, the Defendant received a text message that stated, "Bring me a 40 of the new when we get there. If not, long." Agent Chaney testified at trial that the request for "a 40" meant that a buyer wanted four-tenths of a gram of crack cocaine for forty dollars. There was a second message several days later from the same person again stating, "Bring me a 40[.]" Agent Chaney explained that it was typical for drug customers to request the same amount from a dealer each time. Another text message sent to the Defendant contained the phrase "loud 900." According to Agent Chaney, "'Loud' is a common slang term for high-grade marijuana and nine hundred would indicate a half pound price for that." Another incoming message asked the Defendant, "What you letting[sic] 3 5 go for?" Agent Chaney explained that the term "3 5" referred to the weight of an eight-ball, which was commonly used in the selling of marijuana and cocaine. In another exchange, an incoming message asked the Defendant, "You got some smoke?" According to Agent Chaney, "smoke" referred to marijuana. Finally, the extraction report contained an exchange in which the Defendant asked, "How was it?" The Defendant received a response that said, "It wasn't bad. It wasn't any p***y work." Agent Chaney stated that the term "work" referred to crack cocaine.

         Agent Chaney was familiar with the street value of crack cocaine in Clarksville based on his training and experience. He testified that crack cocaine is priced on a ten-scale, with a tenth (0.1) of a gram costing ten dollars. He stated that in Clarksville the most common and popular order for crack cocaine a twenty dollar crack rock-or 0.2 grams. Agent Chaney said that possessing 2.0 grams was "generally indicative of sales where they can break that rock up and sell [twenty] rocks out of it." He stated that the 1.98 grams of crack cocaine found in the Defendant's possession had a street value of about $200. Agent Chaney also testified that the baggies found in the Defendant's jacket were consistently used in drug transactions and, specifically, in the sale of crack cocaine. Based on this evidence, a jury convicted the Defendant of possession of 0.5 grams or more of cocaine with the intent to sell or deliver, simple possession of marijuana, possession of drug paraphernalia, and resisting arrest on November 24, 2015.

         At a sentencing hearing conducted December 17, 2015, the State introduced a copy of the Defendant's presentence report and certified judgments of conviction establishing the ...

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