Court of Criminal Appeals of Tennessee, Nashville
Session January 17, 2019
from the Criminal Court for Davidson County No. 2010-C-2264
Mark J. Fishburn, Judge
Robert Jason Allison, was indicted for two counts of delivery
of marijuana; possession with intent to distribute over ten
pounds of marijuana in a drug-free school zone; possession of
a firearm during the commission of a dangerous felony; and
two counts of money laundering. Following a jury trial, at
which Defendant represented himself, he was convicted as
charged. Following a sentencing hearing, the trial court
imposed partial consecutive sentencing resulting in an
effective 25-year sentence. In this appeal as of right,
Defendant contends that: 1) the evidence was insufficient to
support his convictions for money laundering; 2) the
indictment conflated two subsections of the money laundering
statute; 3) the trial court failed to instruct the jury on
all of the elements of money laundering; 4) Defendant's
convictions for money laundering violate double jeopardy; 5)
the money laundering statute is unconstitutionally vague; 6)
Defendant was deprived his right to a speedy trial; 7) the
trial court erred by denying Defendant's motion to
suppress evidence seized as a result of his warrantless
arrest; 8) the trial court erred by denying Defendant's
motion to suppress evidence seized as a result of a search
warrant; 9) the trial court erred in finding that Defendant
waived his right to the assistance of counsel at trial; 10)
the trial court abused its discretion in ordering consecutive
sentencing; and 11) Defendant's fines are excessive.
Having reviewed the entire record and the briefs of the
parties, we find no error and affirm the judgments of the
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Richard C. Strong, Nashville, Tennessee (on appeal) and
Robert Jason Allison, Pro Se, (at trial).
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Andrea Green, Assistant
District Attorney General, for the appellee, State of
T. Woodall, J., delivered the opinion of the court, in which
Robert L. Holloway, Jr. and Timothy L. Easter, JJ., joined.
T. WOODALL, JUDGE.
to trial, Defendant filed pro se motions to suppress
his statement to police and evidence seized during the search
of a home associated with one of the drug buys. Defendant
argued that the search warrant was not supported by probable
cause because the confidential informant was not credible and
because Defendant's sister, not Defendant, was the owner
of the property to be searched. In one of his pro se
motions to suppress, Defendant asserted that his statement to
police should be suppressed because he requested an attorney
"at le[a]st (5) five times" during the interview.
In his motion for new trial, however, Defendant argued that
his statement should have been suppressed because it was made
following a warrantless arrest.
hearing on Defendant's motions, Detective Scott Cothran
testified that a confidential informant bought marijuana from
Defendant on two separate occasions. On both occasions,
Defendant also fronted additional marijuana to the informant
with the expectation that the informant would pay Defendant
after the fronted marijuana was sold. The informant later
paid Defendant for the fronted marijuana using money provided
by the police. The transactions involving Defendant occurred
either at a home on Elkins Avenue or a home on James Avenue.
The transactions were monitored and recorded. Detective
Cothran testified that Defendant lived at the home on Elkins
Avenue and that Defendant's girlfriend lived at the home
on James Avenue.
Cothran obtained a search warrant for the home on Elkins
Avenue. He testified that surveillance teams watched the home
for an hour before the warrant was executed. Defendant was
standing "at the back of the property" behind the
house. Detective Cothran did not see Defendant arrive, but as
soon as police saw Defendant behind the house, Defendant was
placed under arrest. During a search of Defendant's
person, police found "around $2, 400" that was used
to purchase marijuana in the controlled buys. During a search
of the residence, police found approximately 47 pounds of
marijuana in a Rubbermaid tub in the garage. They found
"several pistols, one of which was stolen" in a
bedroom in the home. Defendant gave a statement to police.
The interview, which was recorded, occurred in the garage,
and Defendant was handcuffed during the interview. Detective
Cothran testified that Defendant was "absolutely"
forthcoming in the interview. Defendant admitted that he knew
what was inside the Rubbermaid tub. Defendant told the police
that the guns belonged to his sister, and he kept them in his
closet because he had heard threats that he might be robbed.
cross-examination, Detective Cothran acknowledged that he did
not have a warrant for Defendant's arrest. He also
acknowledged that Defendant was near the trash cans in an
alley behind the house, and Detective Cothran could not say
whether Defendant "had a foot" on the property.
Detective Cothran advised Defendant of his Miranda
rights outside by the trash cans when he was handcuffed.
Detective Cothran was present when the search warrant was
signed, but the judge waited to give it to another officer,
Andrae Starling, who was at the Elkins Avenue residence
during the execution of the search warrant.
Smithson, Defendant's sister, testified that she
inherited the Elkins Avenue property from her mother. She
wrote a check to pay the property taxes on it about a week
after the search. She testified that the guns found inside
the home belonged to her. On cross-examination, Ms. Smithson
testified that she did not know why Metro tax assessor
records, dated about two months before the search, listed
Defendant as one of the property owners.
for speedy trial
proof was presented at the hearing on Defendant's motion
to dismiss based on a violation of his right to a speedy
trial. Defense counsel argued, "I don't know what
the problem has been with [Defendant] and the other
attorneys. He has been nothing but a gentleman with
[co-counsel] and myself, maybe it's in part he just
needed someone who would be willing to listen to him and
would be willing to file motions that have merit in the
written order denying both of Defendant's motions, the
trial court found the testimony of Detective Cothran to be
credible. The court found that Defendant "was within
sufficient boundary of the residence to include him as an
individual on the premises subject to arrest by virtue of the
search warrant." The trial court also found that there
was sufficient independent corroboration of the
informant's information to justify the issuance of a
search warrant. Regarding Defendant's speedy trial
violation motion, the trial court noted that Defendant had
"demanded continuances and new counsel on at least eight
occasions." The court found that the "entirety of
the delay in this matter has been caused by the Defendant
himself." The court also found that Defendant was not
prejudiced by the delay.
Scott Cothran testified that police used an informant to make
two controlled purchases of marijuana from Defendant. The
first purchase occurred on January 9, 2009. It was supposed
to happen at the home on Elkins Avenue, but Defendant became
suspicious and the location was changed to the home on James
Avenue. The informant was given $5, 000 to purchase five
pounds of marijuana from Defendant. Defendant
"fronted" the informant three additional pounds,
which the informant was expected to sell and return the money
from the sale to Defendant. Detective Cothran arranged to
have the informant pay $3, 000 to Defendant for the
"fronted" drugs on January 13, 2009, at the Elkins
Avenue home, which was across the street from a school.
Cothran testified that Detective Steve Parks arranged the
second controlled buy, which occurred on January 16, 2009, at
the Elkins Avenue address. The informant purchased six pounds
of marijuana, and Defendant "fronted" her an
additional four pounds. Payment was made to Defendant for the
"fronted" amount at the James Avenue address on
January 20, 2009.
Cothran testified that during one of the controlled buys,
Defendant told the informant that he expected "another
load [to be] coming in." Police obtained search warrants
for the Elkins Avenue and James Avenue addresses. The search
warrants were executed on January 21, 2009. A surveillance
team at the Elkins Avenue address reported seeing Defendant
arrive in a truck and carry a green tub into a detached
garage at the back of the property. The search warrant was
executed, and Detective Cothran and another officer took
Defendant into custody. During a search incident to arrest,
they discovered $2, 460 of the controlled buy money on
Cothran testified that the Elkins Avenue home had belonged to
Defendant's mother, who had passed away. Inside one of
the bedrooms, police found two pistols. The plastic tub
inside the garage contained approximately 46 pounds of
marijuana. Defendant waived his Miranda rights and
gave a recorded statement to police. He told police that the
guns belonged to his sister, and he had them in his closet
because he had recently been threatened. Detectives asked
Defendant what he did for a living, and Defendant said,
"I ain't got nothing [sic] going on right now."
Agent Glen Glenn, of the Tennessee Bureau of Investigation
(TBI) Crime Lab, testified regarding the chain of custody
requirements when evidence was submitted for testing. Agent
Glenn testified that the State's exhibits were delivered
to his lab on May 14, 2009. He issued his reports on July 13,
2009. The initial report erroneously stated the amount in
grams instead of pounds, and it was amended in 2013 to
correct the error. Agent Glenn testified that the green tub
contained ten "bricks" of marijuana, weighing 44.6
pounds total. A separate bag inside the tub contained 0.8
pounds of marijuana. Agent Glenn also examined the contents
of ten bags, containing 9.5 total pounds of marijuana that
was purchased by the informant from Defendant in the second
controlled buy on January 16, 2009. Agent Brett Trotter, of
the TBI, testified that he examined the marijuana that was
purchased by the Defendant in the first controlled buy on
January 9, 2009, and he determined that it weighed slightly
less than eight pounds.
Keel, director of security for Metro Nashville Public
Schools, testified that Park Avenue Elementary School was
located at 3703 Park Avenue. David Kline, of the Metro
Planning Department, prepared a map using information from
the tax assessor's office that showed that the Elkins
Avenue home was within 1, 000 feet of the school.
Smithson, Defendant's sister, testified it was not her
signature on an affidavit of heirship filed with the tax
assessor's office. She testified that she lived at the
Elkins Avenue address where the search warrant was executed.
She testified that Defendant had his own house and that he
did not stay at her house. Ms. Smithson testified that she
was home on January 21, 2009, when "at least probably
20" police vehicles surrounded her house. She testified
that police exited their vehicles with guns drawn. She
testified that Defendant arrived with roofing materials for
her home. She testified that there were people working on her
roof, and they had been going in and out of the garage. Ms.
Smithson saw Defendant get arrested in the alley behind her
house. She testified that Defendant was "actually more
towards the house across the street." Ms. Smithson
testified that officers used "a lot of force" and
that they broke the ribs of another person, Joe Keyes. An
audio recording that Ms. Smithson made during a visit to the
tax assessor's office, in which an employee stated that
Defendant's name was not listed as an owner of the Elkins
Avenue home, was admitted into evidence.
Johnson testified that she was at Ms. Smithson's house on
the day of Defendant's arrest. She testified that the
arrest occurred in the alley behind Ms. Smithson's home.
She testified that officers had their guns drawn.
did not testify or present any other evidence.
sentencing hearing, the presentence report was admitted into
evidence. Detective Cothran testified that he interviewed
Defendant following Defendant's arrest. Detective Cothran
asked Defendant how he was employed, and Defendant answered,
"I don't have anything going on right now."
Police seized over $2, 000 in cash from Defendant's
Taylor, a drug task force investigator, testified that
Defendant had been under investigation since 2002. Between
2002 and 2005, Defendant was associated with 17 different
vehicles. In October, 2002, an informant made a controlled
buy of a quarter of a kilo of cocaine for $7, 000 from
Defendant and another man, Trey Hines. On another occasion,
in 2005, an informant purchased two pounds of marijuana from
Defendant. During that transaction, Defendant gave the
informant "samples" to give away "to get
customers interested in buying marijuana."
did not testify or present any proof at the sentencing
conclusion of the sentencing hearing, the trial court noted
that the jury imposed fines of $2, 500 for each of
Defendant's two convictions for delivery of marijuana;
$90, 000 for Defendant's conviction for possession with
intent to distribute over ten pounds of marijuana in a school
zone; and $15, 000 for each of Defendant's two money
laundering convictions. The trial court stated on the record
that it had considered the evidence presented at trial and at
the sentencing hearing, the presentence report, the
principles and purposes of the Sentencing Act, the arguments
of both parties, the nature and characteristics of the
criminal conduct involved, the evidence offered as to
enhancement and mitigating factors, Defendant's
statements, and his potential for rehabilitation. The trial
court determined that Defendant's prior convictions made
him a Range III offender in counts one through four and a
Range II offender for the two Class B felony money laundering
trial court found that Defendant had prior convictions in
addition to those necessary to establish his range and that
Defendant was a leader in the commission of the offenses.
See T.C.A. § 40-35-114(1) and (2). In
mitigation, the trial court found that Defendant's crimes
neither caused nor threatened serious bodily injury.
See T.C.A. § 40-35-113(1). The trial court
noted that Defendant refused to provide information for the
presentence report. The trial court also noted that
"since 2002, [Defendant's] primary activity seems to
have been related to drug sales in one form or another."
The trial court found that Defendant was a professional
criminal who has knowingly devoted much of his adult life to
criminal acts as a major source of livelihood, that his
record of criminal activity is extensive, and that Defendant
showed a clear disregard for the laws and morals of society
and a low probability of being rehabilitated.
trial court imposed sentences of five years for each of
Defendant's delivery of marijuana convictions; ten years
for his conviction for possession with intent to distribute
over ten pounds of marijuana in a school zone; three years
for his firearm conviction; and 15 years for each of his
money laundering convictions. The court ordered ...