Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. South

Court of Criminal Appeals of Tennessee, Nashville

September 30, 2019

STATE OF TENNESSEE
v.
GREGORY RANDALL SOUTH

          Session March 20, 2019

          Appeal from the Criminal Court for Fentress County No. 2017-CR-50 E. Shayne Sexton, Judge

         Following a jury trial, the defendant, Gregory Randall South, was convicted of two counts of selling morphine, a Schedule II controlled substance. On appeal, the defendant contends the prosecutor improperly commented on his right not to testify and used an improper hypothetical during closing argument. Having thoroughly reviewed the record, we conclude the prosecutor's comments on the defendant's right not to testify constitute reversible non-structural constitutional error. Accordingly, we reverse the judgments of the trial court and remand the matter for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed; Case Remanded

          Emily E. Wright, Jamestown, Tennessee, for the appellant, Gregory Randall South.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Jared R. Effler, District Attorney General; and Philip Kazee, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court. Norma McGee Ogle, J., filed a concurring opinion, in which Robert W. Wedemeyer, J., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         This case arises from the defendant's involvement in controlled buys conducted by the Fentress County Sheriff's Department on September 19 and September 20, 2016. The defendant was indicted with two counts of selling morphine, a Schedule II controlled substance, and two counts of delivering morphine. The following evidence was presented at trial.

         In June of 2016, the Fentress County Sheriff's Department began working with confidential informant Debbie Lee on several controlled drug transactions. Ms. Lee was paid for each controlled buy and received $200 for two transactions occurring on September 19 and 20, 2016, and additional payments for other unrelated transactions. Ms. Lee agreed to be a confidential informant because she was a recovering drug addict and wanted to help rid Fentress County of drug trafficking. Although Ms. Lee was on unsupervised probation at the time of the controlled buys, she denied receiving a reduction in her sentence for her work as a confidential informant.

         On September 19, 2016, Ms. Lee's girlfriend called the defendant and asked to purchase two sixty-milligram morphine tablets. Once Ms. Lee confirmed the narcotics were available, she met Detective Brian Franklin and Detective Lance Stephens, both narcotics detectives with the Fentress County Sheriff's Department, in preparation for the transaction. Because he did not want to "get[] physical [with] a lady, " Detective Stephens searched Ms. Lee by asking her to pull out her pockets and shake out her shirt. He also searched Ms. Lee's vehicle for money and illegal narcotics prior to the transaction. Detective Franklin placed an electronic listening device on Ms. Lee that allowed the detectives to monitor the transaction in real time. He also gave her a cell phone, which was equipped with a video recording application. Before leaving for the defendant's home, Ms. Lee was given $80 to purchase the morphine pills.

         When Ms. Lee arrived at the defendant's home, someone other than the defendant answered the door. The defendant was standing in the kitchen and laid down two morphine tablets on the kitchen island. Ms. Lee placed the $80 on the island and picked up the morphine pills. She asked the defendant if he had anything to wrap the pills in and was given a piece of cellophane. Ms. Lee then wrapped the pills in the cellophane and placed them in her bra. As Ms. Lee was leaving, the defendant told her to come back the next day because "he would have the hundred milligrams."

         During the controlled buy, Detectives Franklin and Stephens parked their vehicle within eyesight of the defendant's house, and the detectives listened to the transaction through the audio equipment. The State introduced both the audio and video recordings of the transaction and played them for the jury at trial. Although there were several voices on the audio recording, Detective Stephens, who was familiar with the defendant, testified "one of the first voices [he] recognized" was the defendant's.

         After the transaction, Ms. Lee travelled to a prearranged location to meet Detectives Franklin and Stephens. When she pulled into the parking lot, Ms. Lee gave Detective Franklin the pills, and Detective Franklin placed them in an evidence bag. Detective Stephens then searched Ms. Lee and her vehicle for money, weapons, and illegal narcotics.

         On September 20, 2016, Ms. Lee's girlfriend set up another drug buy with the defendant, this time for a one-hundred-milligram morphine tablet. Ms. Lee again met with Detectives Franklin and Stephens in preparation for the transaction. Detective Stephens searched Ms. Lee and her vehicle, and Detective Franklin gave her $60 to purchase the morphine. He also equipped her with a recording device and cell phone.

         When Ms. Lee arrived at the defendant's home, she was again let in by someone other than the defendant. The defendant was sitting on a couch in the living room and did not get up during the transaction. Ms. Lee handed the defendant $60, and he gave her the morphine pill.

         As before, Detectives Franklin and Stephens parked a short distance from the defendant's house and listened to the audio of the transaction as it occurred. The audio and video recordings of this transaction were also introduced at trial. At the conclusion of the transaction, Ms. Lee met the detectives at a predetermined location. Detective Franklin took the pill from Ms. Lee and placed it in an evidence bag while Detective Stephens searched Ms. Lee and her vehicle.

         Special Agent Erica Stone with the Tennessee Bureau of Investigation tested the evidence collected from the September 19 and September 20, 2016, controlled buys for the presence of narcotics. She identified the pills purchased on September 19 and September 20, 2016, as morphine. However, she was unable to verify the milligram amount of each pill because laboratory policy does not allow agents to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.