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State v. Allison

Court of Criminal Appeals of Tennessee, Nashville

August 29, 2019

STATE OF TENNESSEE
v.
ROBERT JASON ALLISON

          Session January 17, 2019

          Appeal from the Criminal Court for Davidson County No. 2010-C-2264 Mark J. Fishburn, Judge

         Defendant, 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 trial court.

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

          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 Tennessee.

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

          OPINION

          THOMAS T. WOODALL, JUDGE.

         Pretrial motions

         Motions to suppress

         Prior 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.

         At a 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.

         Detective 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.

         On 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.

         Lisa 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.

         Motion for speedy trial

         No 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 case."

         Trial court's order

         In a 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.

         Trial

         Detective 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.

         Detective 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.

         Detective 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 Defendant.

         Detective 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."

         Special 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.

         Steven 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.

         Lisa 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.

         Heather 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.

         Defendant did not testify or present any other evidence.

         Sentencing hearing

         At the 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 person.

         Phillip 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."

         Defendant did not testify or present any proof at the sentencing hearing.

         At the 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 convictions.

         The 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.

         The 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 ...


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