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State v. Woods

Court of Criminal Appeals of Tennessee, Nashville

April 19, 2018

STATE OF TENNESSEE
v.
JAMES KEVIN WOODS

          Session February 14, 2018

          Appeal from the Criminal Court for Wilson County No. 15-CR-17 John D. Wootten, Jr., Judge No. M2017-00800-CCA-R3-CD

         James Kevin Woods, the Defendant, was convicted by a Wilson County jury of three counts of sale of 0.5 grams or more of cocaine and received a total effective sentence of forty years as a Range II multiple offender. On direct appeal, he argues that (1) the evidence was insufficient for a rational juror to have found him guilty of sale of cocaine beyond a reasonable doubt; (2) the trial court improperly limited the Defendant's cross-examination of State witnesses; (3) the professional criminal and extensive criminal history factors in Tennessee Code Annotated section 40-35-115(b) are unconstitutionally vague; and (4) the trial court abused its discretion by ordering a partially consecutive sentence. After a thorough review of the facts and applicable case law, we affirm.

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

          Charles D. Buckholts, Nashville, Tennessee, for the appellant, James Kevin Woods.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Tom P. Thompson, Jr., District Attorney General; and Jason Lawson, 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 Robert W. Wedemeyer, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         I. Factual and Procedural History

         The Wilson County Grand Jury indicted the Defendant for sale of 0.5 grams or more of cocaine, a Schedule II controlled substance, in counts one, two, and three and sale of less than 0.5 grams of cocaine, a Schedule II controlled substance, in count four.[1]

         Jury Trial

         At trial, Detective Allen McPeak testified that he was currently the supervisor of the narcotics unit at the Wilson County Sheriff's Office ("WCSO"). Detective McPeak explained that a confidential informant ("CI") performed forty-one controlled buys for the WCSO. In exchange for his assistance, the WCSO paid the CI for his involvement in the controlled buys, and the State agreed to not charge the CI for selling cocaine to a different CI during a controlled buy in August 2013. Detective McPeak testified that he frequently worked as the CI's case agent. On January 29, 2014, the CI contacted Detective McPeak and asked to meet with him to discuss a controlled buy. Detective McPeak met at a secure location and searched the CI; other detectives searched the CI's vehicle. The detectives did not find any illegal substances on the CI or in his vehicle. The CI identified the Defendant as the targeted seller in the controlled buy. Detective McPeak issued $160 in money with recorded serial numbers to the CI to use during the controlled buy. Detective McPeak discussed the operational plan with the CI, who was going to attempt to purchase two grams of cocaine from the Defendant. Detective McPeak also issued an audio and a video recording device to the CI. Detective McPeak explained that the audio recording device transmitted a live feed to the detectives' vehicles during the controlled buy. Detective McPeak assigned other detectives to observe the CI during the controlled buy.

         Detective McPeak stated that the CI drove himself to the pre-arranged location of the controlled buy at Lebanon Chemical. The other detectives followed the CI from a short distance. However, the CI changed the location of the controlled buy to a nearby parking lot because a police cruiser was parked where the controlled buy was supposed to occur. Detective McPeak observed the CI arrive and depart from the location of the controlled buy. The CI then met with Detective McPeak at the secure location, and the CI gave Detective McPeak the controlled substance that he purchased from the Defendant and reported the details of the controlled buy to Detective McPeak. Detective McPeak again searched the CI, and the other detectives again searched the CI's vehicle. The other detectives gave Detective McPeak information about the vehicle driven by the seller in the controlled buy; when Detective McPeak researched the license tag number, he learned that the Defendant owned the vehicle. Detective McPeak paid the CI $100 for his assistance in the January 29, 2014, controlled buy.

         Detective McPeak was also the CI's case agent for a controlled buy on February 26, 2014. The CI informed Detective McPeak that he had arranged to purchase a controlled substance from the Defendant. Detective McPeak again met with the CI at a secure location, along with Chief Deputy Mike Owen and Detective Jeremy Reich. At the secure location, Detective McPeak searched the CI while Chief Deputy Owen and Detective Reich searched the CI's vehicle; the detectives did not find any illegal objects or substances. Detective McPeak issued $80 in marked bills and audio and video recording devices to the CI to use in the controlled buy. The CI informed Detective McPeak that the controlled buy was scheduled to occur on Cleveland Avenue. Detective McPeak observed the CI travel to and depart from the arranged location of the controlled buy. After the controlled buy, Detective McPeak met with the CI at the secure location, and the CI gave the detectives the controlled substance that he purchased from the Defendant. Detective McPeak then searched the CI, and Chief Deputy Owen and Detective Reich searched the CI's vehicle. Detective McPeak also retrieved the audio and video recording devices from the CI.

         On cross-examination, Detective McPeak testified that he did not physically observe the controlled buys on January 29 and February 26, 2014. He explained that he listened to the live audio feed of the controlled buys and later watched the video recording of the controlled buys. Detective McPeak agreed that the case number on the undercover operations report was different from the case number on the "Indictment Information and Discovery."[2] Detective McPeak agreed that the report and the discovery contained other minor inconsistencies.

         Sergeant Lane Mullins testified that, in 2014, he was a narcotics division sergeant with the WCSO. He stated that he assisted Detective McPeak with the controlled buy on January 29, 2014; he was "assigned to search the vehicle then conduct surveillance to and from and during, so from the secure location to the deal site, during the deal at the deal site, and then from the deal site back to the secure location." After he searched the CI's vehicle, he drove to the general area of the controlled buy and observed a white Explorer in the parking lot next to the agreed meeting spot. He explained that either he or Detective Reich noted the license tag number of the white Explorer. Sergeant Mullins observed the CI meet with an individual and then Sergeant Mullins followed the CI back to the secure location. He then searched the CI's vehicle again.

         On February 5, 2014, Sergeant Mullins served as the case agent for a second controlled buy that involved the CI; Chief Deputy Owen and Detective Reich assisted with this controlled buy. Sergeant Mullins and Detective Reich met with the CI at the secure location to discuss the controlled buy while Chief Deputy Owen proceeded to the location of the controlled buy to set up surveillance. Sergeant Mullins planned for the CI to meet the Defendant on Hill Street to purchase one gram of crack cocaine. Sergeant Mullins searched the CI and provided him with audio and visual recording devices and $70 in marked bills, and Detective Reich searched the CI's vehicle. Sergeant Mullins, Detective Reich, and the CI left the secure location. The CI parked behind a residence while Sergeant Mullins parked across the street. However, an individual came out of the residence and told the CI that he could not stay there. The CI called the Defendant and informed Sergeant Mullins that the location of the controlled buy had been moved. Sergeant Mullins, Detective Reich, and Chief Deputy Owen proceeded to set up surveillance at the new location. Sergeant Mullins observed the CI arrive at the new location and heard the CI have a conversation with two individuals over the live audio wire. Sergeant Mullins then observed the CI pull out of the location, followed by a white Explorer. Sergeant Mullins and the CI returned to the secure location where Sergeant Mullins searched the CI and Detective Reich searched his vehicle. The CI gave the crack cocaine that he purchased and the recording devices to Sergeant Mullins, and they reviewed the details of the controlled buy. Sergeant Mullins then paid the CI for his involvement in the controlled buy.

         On cross-examination, Sergeant Mullins testified that, on January 29, 2014, there were moments during the controlled buy when he lost sight of the CI. Sergeant Mullins agreed that there were inconsistencies between the "Indictment Information and Discovery" sheet and the undercover operations report. On redirect-examination, Sergeant Mullins explained that, although he may have lost sight of the CI at times during the January 29 controlled buy, another detective always had sight of the CI during the controlled buy.

         Detective Jeremy Reich testified that he had worked in the narcotics division of the WCSO for approximately nine years. On January 29, 2014, Detective Reich assisted with a controlled buy. He searched the CI's vehicle prior to the buy at the secure location. Detective Reich followed the CI to the location of the buy at Lebanon Chemical and set up surveillance. He stated that, as he "was pulling through, [he] passed a white Ford Explorer on [his] way to where [he] was go[ing] sit and watch." The driver of the white Explorer "appeared to match the description of the black male that [he] had seen a photo of -- which was [the Defendant] -- prior to the transaction taking place at the secure location." The white Explorer parked next to the CI's vehicle at the arranged location. After the controlled buy occurred, Detective Reich followed the CI back to the secure location, where he searched the vehicle again. On February 5, 2014, Detective Reich assisted with the second controlled buy that involved the Defendant. He searched the CI's vehicle at the secure location and proceeded to the location of the buy on Hill Street. He drove past the location and saw the CI turn into a driveway. Detective Reich later drove to another location on Market Street and listened to the live audio feed of the controlled buy. Detective Reich then returned to the secure location and searched the CI's vehicle. On February 26, 2014, Detective Reich assisted with the third controlled buy that involved the Defendant by searching the CI's vehicle at the secure location. He observed the controlled buy through the live audio feed and then searched the CI's vehicle again after the controlled buy.

         Chief Deputy Mike Owen testified that, prior to his current position, he worked as an agent and later as the supervisor of the narcotics unit of the WCSO. Chief Deputy Owen assisted with controlled buys that involved the Defendant on February 5 and February 26, 2014. On February 5, he assisted with preparing the CI for the controlled buy at the secure location. He then proceeded to Hill Street to set up surveillance in a nearby parking lot. Just before he heard the CI arrive at the designated location of the controlled buy, he "noticed a vehicle that appeared to be the same vehicle that the detectives had done a controlled buy operation on[.]" Chief Deputy Owen recognized the vehicle, a white Explorer, based on a photograph of the Defendant's vehicle and license tag. He observed the Defendant's vehicle make several passes by the CI's location. Later, the CI informed Chief Deputy Owen over the live audio feed that the location of the controlled buy had moved to the Market Street area. As Chief Deputy Owen drove to the new location, he observed the Defendant's vehicle driving in the area. After the CI completed the controlled buy, Chief Deputy Owen ensured that the CI was not followed to the secure location. At the secure location, Chief Deputy Owen searched the passenger side of the CI's vehicle.

         On February 26, 2014, Chief Deputy Owen assisted in the controlled buy by searching the CI's vehicle at the secure location. He then traveled to Cleveland Street, the arranged location of the controlled buy, to set up surveillance. After the CI completed the controlled buy, Chief Deputy Owen again ensured that the CI was not followed back to the secure location. When he returned to the secure location, Chief Deputy Owen conducted a second search of the CI's vehicle.

         On cross-examination, Chief Deputy Owen testified that he and other detectives researched the CI's criminal history before agreeing to use him as a CI. He stated that his researched showed that the CI did not have a valid driver's license at the time the CI worked for the WCSO.

         Special Agent Glen Jay Glenn testified that he had worked as a forensic scientist at the Tennessee Bureau of Investigation crime laboratory for approximately twenty-two years. After the trial court declared Special Agent Glenn to be an expert in the field of controlled substance identification, Special Agent Glenn stated that he conducted three different tests on the cocaine obtained during the controlled buy on February 26, 2014, and determined that it was 0.91 grams of cocaine base. He also stated that a second forensic analysist tested the cocaine obtained during the controlled buy on February 5, 2014, using the same tests and protocols that he used and determined that the substance was 0.85 grams of cocaine base. Additionally, Special Agent Glenn testified that another forensic analyst tested the substance obtained during the controlled buy on January 29, 2014, using the same tests and protocols that he used and determined that the substance was 1.95 grams of cocaine base.

         The CI testified that he was currently incarcerated for a probation violation. He stated that he knew the Defendant because he "[d]id a buy with him" by "[g]oing and purchasing crack cocaine and powder cocaine from [the Defendant]." The CI explained that he was working as a CI for the WCSO in 2014. He testified that he received $100 for each controlled buy. On January 29, 2014, the CI called the Defendant and asked him if he had any "work, " or cocaine. The Defendant informed the CI that he was "straight, " meaning he had powder cocaine, so the CI coordinated with the WCSO to set up a controlled buy. The CI met with Detectives Mullins and McPeak, who searched his person and vehicle. The detectives gave the CI $160 to purchase two grams of powder cocaine in the controlled buy, as well as a recording device. He then drove to Lebanon Chemical and met the Defendant, who was driving a white Explorer. An individual known as "Pancho" got out of the Defendant's vehicle and gave the CI two grams of powder cocaine. The CI then returned to the secure location and gave the powder cocaine and recording device to the detectives. The detectives searched the CI and gave him $100 for his participation in the controlled buy.

         On February 5, 2014, the CI participated in a second controlled buy from the Defendant. The CI called the Defendant and asked to purchase a gram of crack cocaine. He then met with the WCSO detectives, who searched him and gave him a recording device and money to make the purchase. The CI stated that he originally planned to meet the Defendant on Hill Street, but the Defendant moved the location to a location behind Market Street School. When he arrived at the location, he left his vehicle and got into the back seat of the Defendant's vehicle. The CI gave $70 to the Defendant, and the Defendant gave him crack cocaine. After he completed the transaction, the CI returned to his car and drove to the secure location. The WCSO searched his person and vehicle and paid the CI $100, and the CI returned the recording device and cocaine.

         On February 26, the CI called the Defendant and asked to purchase cocaine. He met with the WCSO detectives at a secure location, where they searched him and his car and gave him a recording device and buy money. The CI planned to meet the Defendant at a location on Cleveland Avenue. As he was driving to the location, the Defendant called him asking why he was not at the location; the CI told the Defendant that he could not speed because he did not have a valid driver's license. When the CI arrived at the location, he got into the Defendant's vehicle and purchased a gram of cocaine for $80. After the purchase, the CI returned to the secure location; the detectives retrieved the recording device and cocaine and searched the CI and his vehicle. The detectives paid the CI for his assistance with the controlled buy. The CI testified that, prior to trial, he went to defense counsel's office to discuss the Defendant's case. He admitted that he told defense counsel that he had never purchased a controlled substance from the Defendant, which was not a truthful statement. The CI agreed that he had previously been convicted of several misdemeanor offenses, including criminal impersonation and theft.

         On cross-examination, the CI testified that, in exchange for not being charged with sale of cocaine, he agreed to perform nine controlled buys for the WCSO. He agreed that, in January and February 2014, he did not have a valid driver's license.

         The Defendant elected to not testify. The jury found the Defendant guilty of sale of 0.5 grams or more of cocaine in counts one, two, and three.

         Sentencing Hearing

         Julie Raines testified that she worked in the Tennessee Department of Correction and conducted the presentencing investigation on the Defendant. She stated that the Defendant had previously been convicted of the following convictions:

         Case Offense Sentence Judgment Offense

Case Number

Offense

Sentence

Judgment Date

Offense Classification

3:07-00241-01

Distribution/possession with intent to distribute cocaine

Sixty months

01/08/2009

Federal conviction

02-0933

Sale of less than 0.5 grams of cocaine

Five years confinement

01/29/2004

Class C felony

02-1206

Sale of less than 0.5 grams of cocaine

Six years confinement

01/29/2004

Class C felony

2001-CR-7834

Simple possession of cocaine

12/04/2001

Class A misd.

2001-CR-7835

Resisting arrest

12/04/2001

Class B misd.

2001-CR-7836

Evading arrest

12/04/2001

Class A misd.

2001-CR-7837

Simple possession of cocaine

12/04/2001

Class A misd.

01-1535

Sale of less than 0.5 grams of cocaine

Three years of

community corrections

11/21/2001

Class C felony

99-1556

Attempted possession of cocaine

One year confinement

11/21/2001

Class E felony

2000-CR-10452

Criminal Trespass

12/12/2000

Class C misd.

2000-CR-10438

Reckless Endangerment (no weapon involved)

12/12/2000

Class A misd.


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