Court of Criminal Appeals of Tennessee, Knoxville
Session February 27, 2018
from the Circuit Court for Blount County Nos. C22683, C22684,
C22685, C23659 Tammy Harrington, Judge.
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
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
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.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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 ...