Court of Criminal Appeals of Tennessee, Nashville
Session March 20, 2019
from the Criminal Court for Fentress County No. 2017-CR-50 E.
Shayne Sexton, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Reversed; Case Remanded
E. Wright, Jamestown, Tennessee, for the appellant, Gregory
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
Ross Dyer, J., delivered the opinion of the court. Norma
McGee Ogle, J., filed a concurring opinion, in which Robert
W. Wedemeyer, J., joined.
ROSS DYER, JUDGE.
and Procedural History
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
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
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.
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."
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.
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.
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
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.
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.
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 ...