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State v. Hartwell

Court of Criminal Appeals of Tennessee, Knoxville

April 24, 2018

STATE OF TENNESSEE
v.
CHRISTOPHER JOEL HARTWELL

          Session February 27, 2018

          Appeal from the Circuit Court for Blount County Nos. C22683, C22684, C22685, C23659 Tammy Harrington, Judge.

         The Defendant, Christopher Joel Hartwell, pleaded guilty in the Blount County Circuit Court pursuant to a negotiated plea agreement in case number C22683 to conspiracy to commit money laundering, a Class C felony, maintaining a dwelling where controlled substances are used, a Class D felony, two counts of possession with the intent to deliver a controlled substance in a drug-free zone, a Class D felony, two counts of possession with the intent to manufacture a controlled substance in a drug-free zone, a Class D felony, and possession of a firearm during the commission of a non-dangerous felony, a Class E felony. See T.C.A. §§ 39-14-903 (Supp. 2013) (amended 2014), 53-11-401 (2008) (amended 2010), 39-17-417 (Supp. 2013) (amended 2014), 39-17-1307 (Supp. 2013) (amended 2014). The Defendant also pleaded guilty in case number C22684 to the sale or delivery of a controlled substance in a drug-free zone, a Class D felony. See id. § 39-17-417 (Supp. 2013) (amended 2014). The Defendant pleaded guilty in case number C22685 to the sale or delivery of a controlled substance in a drug-free zone, a Class D felony. See id. § 39-17-417 (Supp. 2013) (amended 2014). Finally, the Defendant pleaded guilty in case number C23659 to two counts of the delivery of a controlled substance in a drug-free school zone, a Class C felony. See id. § 39-17-417 (Supp. 2013) (amended 2014). After the appropriate merger of the offenses, the trial court sentenced the Defendant as a Range I, standard offender to an effective five-year sentence of which three years were to be served at 100%. On appeal, the Defendant contends that the trial court erred by (1) denying judicial diversion, (2) allowing confidential informants to testify at the sentencing hearing, and (3) not requiring the State to produce discovery materials related to the confidential informants. We affirm the judgments of the trial court.

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

          Robert W. White, Maryville, Tennessee, for the appellant, Christopher Joel Hartwell.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Mike L. Flynn, District Attorney General; and Matthew Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         The case arises from the Defendant's manufacturing and distributing stanozolol, a schedule III controlled substance. According to the State's recitation of the facts at the guilty plea hearing,

[O]n March 20[th] of 2014, this is specifically in regard to C-22683, agents of the Fifth Judicial Drug Task Force did conduct a search warrant on the Defendant's residence. Defendant's residence did abut next to a Blessings Daycare for the purposes of the drug-free zone. In the course of the search warrant, . . . schedule three controlled substances, specifically stanozolol . . . commonly referred to as steroids were found in the . . . Defendant's possession. In addition, [the] Defendant had what is called a pill press used for the manufacture of pills. And he had binders and the drugs in concentrated form for the purposes of making pills for these controlled substances.
During this investigation, . . . account information in [the] Defendant's e-mails were found . . . and they did indicate that the Defendant had been acquiring drugs from an individual in Hangzhou in the People's Republic of China, and that he had been in fact manufacturing them as well. And this would be in regard to the offenses . . . stemming from April 1[st], 2013 to March 31[st], 2014 . . . . [H]e did have other individuals who were working on his behalf in the distribution of these steroids.
As to C-22684, . . . on April 23[rd] of 2013, a confidential informant working at the direction of the Drug Task Force was equipped with an audio and video recording device and did proceed to the Defendant's residence, again located in a drug-free zone, and, at that time, did purchase a schedule three controlled substance from the Defendant. And . . . one of these includes . . . testosterone propionate as a schedule three controlled substance.
In C-22685, . . . four days prior to the one that was previously announced on April 19[th] of 2013, a confidential informant working at the direction of the Drug Task Force did proceed to the residence of the Defendant, again located within a drug-free zone, and did purchase oxandrolone, a schedule three controlled substance from the Defendant.
And then . . . in C-23659, this was on March 13[th], 2014, and this sale also served as the basis of the search warrant that was conducted on March 20[th] of 2014, Agent Aycocke with the Blount County Drug Task Force did have a confidential informant to purchase controlled substances from the Defendant, specifically this schedule three controlled substance, methandrostenolone[, ] and stanozolol, a schedule three substance. Agent Aycocke did observe the Defendant leave his residence . . . and that he did go and drive to a prearranged location set by the Defendant, where the controlled substances were sold. And during the course of that, the Defendant did proceed through a [school] zone.

         At the sentencing hearing, the presentence report was received as an exhibit and showed that the thirty-four-year-old Defendant had no previous convictions. Although the report noted that the Defendant had previous arrests in North Carolina, it did not reflect that the Defendant had previous convictions. The Defendant graduated from high school, and he obtained a college degree in 2014. The Defendant reported having excellent overall health, good family relations, and a good childhood. He reported being an "'A and B' honors course student" throughout high school, playing soccer throughout his primary education, and receiving multiple college athletic scholarships. The Defendant admitted periodic alcohol and marijuana consumption as a teenager and said he used steroids from age fifteen until 2013. The report showed that the Defendant had mostly steady employment since 2012 and that, at times, the Defendant had multiple jobs simultaneously.

         Blount County Sheriff's Investigator Matthew Gilmore testified that on March 20, 2014, he assisted in executing a search warrant at the Defendant's home, which was located behind a childcare center. Investigator Gilmore said that he video recorded the search, and the recording was received as an exhibit and played for the trial court. The recording showed that the Defendant's property and the daycare facility's property shared a fence and that children were playing outside at the time of the search.

         Blount County Sheriff's Officer and Fifth Judicial Drug Task Force Agent Rusty Aycocke testified that before 2014, the Drug Task Force received information that the Defendant was involved in a large-scale steroid distribution operation. Agent Aycocke said that he utilized a confidential informant, who learned about the steroid operation, and that the informant identified Eric McGhee as the Defendant's friend. Agent Aycocke said that the informant was not able to purchase steroids from the Defendant, that the informant bought steroids twice from Mr. McGhee in 2012, and that the informant learned the Defendant provided Mr. McGhee steroids for sale.

         Agent Aycocke testified that in 2013, he told Mr. McGhee about the police investigation, that he told Mr. McGhee that the police had bought steroids from him twice, and that he asked Mr. McGhee to cooperate with the police investigation. Agent Aycocke said that Mr. McGhee cooperated and was never charged with a criminal offense because Mr. McGhee was not a distributor of steroids but was "[m]ore of a sharer." Agent Aycocke said the focus of the investigation was on the "bigger picture, the large-scale distributor" in the area.

         Agent Aycocke testified that Alex Spelce was involved with the Defendant in the "steroid distribution business." Agent Aycocke said that after March 20, 2014, he and Postal Inspector Agent Wendy Boles went to Mr. Spelce's home, "laid everything out" for Mr. Spelce, and asked Mr. Spelce to cooperate with the police investigation. Agent Aycocke said that Mr. Spelce cooperated and that as a result, Mr. Spelce was never charged with a crime.

         On cross-examination, Agent Aycocke testified that he learned of Mr. McGhee during a 2010 or 2011 "debriefing of another individual, " who was not identified, that two controlled drug purchases between the confidential informant and Mr. McGhee were arranged in January and March 2012, and that steroid tablets and injectable-type steroids were purchased. Agent Aycocke recalled that the informant purchased between fifty and 150 steroid tablets and one bottle of injectable steroids. Agent Aycocke said that he spoke to Mr. McGhee in March or April 2013 but that he never promised Mr. McGhee would not be charged. Agent Aycocke said the controlled purchases involving Mr. McGhee were recorded.

         Agent Aycocke testified that Mr. McGhee identified Mr. Spelce about one or two months before the search warrant was executed at the Defendant's home. Agent Aycocke said that the Defendant provided initial information about Mr. Spelce at the time of the search and additional information on April 20, 2014. Agent Aycocke said that Mr. Spelce's role in the distribution enterprise included receiving packages of steroids for the Defendant, distributing steroids for the Defendant, giving the Defendant money from the sale of steroids, and transferring money electronically to China at the Defendant's direction. Agent Aycocke said that he confirmed the information provided to him.

         Eric McGhee testified that he first met the Defendant in late 2008 through mutual friends and that he bought steroids from the Defendant to aid his weight-lifting activities. He said that steroids were taken in a cycle, during which the substance was taken for four weeks followed by one or two weeks without taking the substance. Mr. McGhee said that he took about three to five steroid tablets per day and three to four injections when he took the substance. He said that the quantity he purchased from the Defendant depended on the cost and that the transactions were made at the Defendant's home or Mr. McGhee's home. Mr. McGhee said that he began purchasing steroids from the Defendant near the time they met and that he bought steroids from the Defendant for approximately three or four years.

         Mr. McGhee testified that Agent Aycocke came to his house and wanted to talk about steroids. Mr. McGhee said that he admitted to Agent Aycocke that he had steroids inside his home for personal use and that he obtained them from the Defendant. Mr. McGhee said that Agent Aycocke asked for his assistance in investigating the Defendant and that Mr. McGhee agreed. Mr. McGhee said that he bought steroids from the Defendant at Agent Aycocke's direction.

         Mr. McGhee testified that he provided Agent Aycocke with information about Mike Franklin's supplying the steroids to the Defendant. Mr. McGhee said that he and the Defendant spoke about the Defendant's efforts to sell the steroids, including the price and shipment dates. Mr. McGhee said that the Defendant ordered the steroids, although Mr. McGhee did not know with whom the orders were placed. Mr. McGhee said that the Defendant ordered tablet and injectable steroids, including "Sustanon, Test 250, Test 400[, and] . . . Deca, " and paid cash through Western Union. Although Mr. McGhee did not know to whom the Defendant sent money electronically, Mr. McGhee recalled California was mentioned. Mr. McGhee said that the Defendant noted making a lot of money selling steroids and recalled that the Defendant said "HGH was a big seller" and "mention[ed] six figures." Mr. McGhee said that the Defendant paid cash for a boat, a home, vehicles, and clothes. Mr. McGhee said that the Defendant previously lived in North Carolina and that the Defendant reported "some trouble" in North Carolina as a reason he moved to Tennessee.

         Mr. McGhee testified that he had either seen or heard the Defendant discuss selling steroids to approximately ten people. Mr. McGhee said that although he heard the Defendant previously mention "ordering powder" to make steroids, Mr. McGhee did not know whether the Defendant manufactured steroids for sale.

         On cross-examination, Mr. McGhee testified that he first used legalized steroids from GNC in the early 2000s and that he first began taking "real" steroids in 2005 or 2006. He denied selling steroids and did not recall trading something of value in exchange for steroids. He said that he had only purchased steroids from the Defendant, although he admitted Lee Radford had "picked up" steroids on his behalf.

         Mr. McGhee disagreed with Agent Aycocke's testimony that Mr. McGhee had sold steroids. Mr. McGhee clarified, though, that he had "picked . . . up" steroids for his friends. He said he last used steroids on the day Agent Aycocke came to his home. Mr. McGhee said his incentive to work with Agent Aycocke was to prevent being charged with a crime and agreed he had not been charged at the time of the Defendant's sentencing hearing.

         On redirect examination, Mr. McGhee clarified that Agent Aycocke stated Mr. McGhee transported steroids through a drug-free zone, that Mr. McGhee transported steroids though the drug-free zone because he was "picking [steroids] up" for other people, and that Mr. McGhee did not profit from the sale. He said that if he were going to buy steroids for his personal use and a friend wanted to purchase steroids, as well, he ...


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