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State v. Singer

Court of Criminal Appeals of Tennessee, Nashville

October 11, 2019

STATE OF TENNESSEE
v.
LEONARD SINGER

          Assigned on Briefs July 24, 2019

          Appeal from the Circuit Court for Rutherford County No. F-74991 David M. Bragg, Judge

         A Rutherford County Circuit Court jury convicted the Defendant-Appellant, Leonard Singer, of tampering with evidence, simple possession of cocaine, and possession of drug paraphernalia. See Tenn. Code Ann. §§ 39-16-503, 39-17-418, 39-17-425. On appeal, Singer argues: (1) he received ineffective assistance of counsel from his preliminary hearing through trial; (2) his confession to ingesting a marijuana joint was coerced; (3) his arrest was not supported by probable cause and the police did not have authority to search his person or his truck; (4) the State withheld exculpatory evidence; (5) his indictment was defective; (6) the police, his attorneys, the prosecutors, and the trial judge conspired against him by making materially false statements and representations and by concealing and fabricating government documents; and (7) the Tennessee Board of Probation and Parole violated Code section 40-35-207 and violated his due process rights. We affirm the judgments of the trial court.

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

          Leonard Singer, Pikeville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant Attorney General; Jennings H. Jones, District Attorney General; and Shawn Puckett and Matthew Westmoreland, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Camille R. MCMULLEN, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On January 5, 2016, Singer was indicted for tampering with evidence, simple possession of cocaine, possession of drug paraphernalia, and resisting arrest. He was appointed a public defender to represent him.

         First Motion to Suppress.

         On June 21, 2016, Singer, through counsel, filed a motion to suppress, arguing there was no valid basis for his stop. At the May 6, 2016 suppression hearing, Officer Aaron Price of the Murfreesboro Police Department testified that he stopped Singer on October 27, 2015 for a light law violation because Singer failed to activate his headlights when it was raining and dark outside. Officer Price said that when he saw Singer driving toward him without his headlights on, he immediately turned around, activated his blue lights, and began following him. Despite the actions taken by Officer Price, Singer did not stop his truck and continued to drive for 100 to 200 yards into a parking lot. During this time, Officer Price said Singer "lifted up out of his seat, appeared to be digging under his seat[, and] was digging in his center console." Because Officer Price was concerned that Singer was concealing something or retrieving a weapon, he called for backup, and Singer eventually came to a stop in the parking lot. When Officer Price approached the truck, Singer "turned and looked at [him] but continued to go through the center console area."

         Officer Price then asked Singer "what he was doing," and Singer responded that he was looking for his wallet. However, he could see that Singer was holding his wallet in his left hand. When Officer Price informed Singer that he was holding his wallet, Singer continued to dig in the area of his center console. At that point, Officer Price became "very concerned." He grabbed Singer's left wrist, leaned into Singer's truck, and ordered Singer to exit his vehicle. Singer then mentioned something about his cigarettes, which Officer Price had seen next to the center console, and Singer continued to dig through his center console. When Officer Price ordered him to get out of his truck again and attempted to pull him out of his truck, Singer resisted, and Officer Price placed his arms around Singer and pulled him out of his truck. Officer Price noticed Singer attempting to hide something in his right hand, and Officer Price took Singer to the ground. As they hit the ground, Singer landed face-down, and Officer Price ended up on top of Singer's back and observed a crack pipe roll out from underneath Singer. Officer Price also observed Singer chewing on something. When Officer Price attempted to pull both of Singer's hands behind his back, Singer refused to cooperate.

         Officer Price said that although he gave Singer verbal commands to stop, relax, and put his hands behind his back, Singer refused to do these things, and they continued to struggle for three to four minutes until two other officers arrived on the scene. During this struggle, Officer Price repeatedly ordered Singer to spit out whatever he was chewing, and Singer finally spit out a bag. Officer Price said this bag was "like paper rolled up with . . . cooking wrap or something, a clear wrap wrapped around it." Despite Officer Price's repeated orders to spit out whatever he had in his mouth, Singer continued to chew on something. Officer Price then saw Singer spit out a second bag that was "wrapped the exact same way," and noticed that Singer "continu[ed] to chew on something."

         Although Officer Price did not know what Singer was chewing, he did not want him swallowing it because it was obvious that Singer did not want him to know what it was. Officer Price said that once Singer was arrested, he asked Officer Palmer Gibbs to advise Singer of his Miranda rights, which Officer Gibbs did before interviewing Singer and accompanying him to the hospital. Thereafter, Officer Price processed the scene and found the crack pipe that had fallen out of Singer's truck during the struggle. He and other officers also found crack cocaine inside a rolled up dollar bill that was hidden above the driver's side window of Singer's truck, a Brillo pad in Singer's center console, and a homemade crack pipe made of tinfoil as well as a roll of tinfoil inside Singer's truck. After Singer was released from the hospital, Officer Price encountered him as he was being booked, and Singer admitted that he had been chewing on a "marijuana joint."

         Officer Price acknowledged that prior to stopping Singer, his own windshield wipers, as verified by the dashboard camera in his patrol car, were on the intermittent setting. He stated that when he first encountered Singer, Singer had pulled out of the dead end area of North Maple, a known drug area, and Singer did not have his headlights activated. He also said that although he was familiar with many of the vehicles driven by people who lived in that particular area, he had never seen Singer's truck before. Officer Price admitted that Singer was not speeding or swerving before he initiated the stop.

         The video recording of Singer's stop was admitted as an exhibit at the suppression hearing and was viewed by the trial court. This recording showed that it was raining and dark at the time of the stop, that Singer did not have his taillights activated, and that Singer immediately moved into the right lane in an effort to evade Officer Price's patrol car that had pulled in behind him. Once Officer Price initiated Singer's stop by turning on his blue lights, Singer activated his brake lights and turned into an Office Depot parking lot. Singer continued through this parking lot without stopping, and Officer Price asked for backup because Singer failed to stop and because Singer appeared to be "digging around" for something in his truck. Officer Price activated his siren, and Singer finally stopped his truck.

         When Officer Price approached the driver's side of the truck, he asked Singer, "What are we doing?" He then repeated this question and told Singer to "hop out," and Singer replied that he was getting his wallet. Officer Price told Singer that he already had his wallet in his hand and that he needed to exit his truck. When Singer said that he was getting his cigarettes, a struggle ensued between Officer Price and Singer. While the audio from this recording showed that this struggle occurred, the video portion of the recording did not depict the struggle because Singer's truck blocked the camera's view. During this struggle, Officer Price ordered Singer several times to relax and to place his hands behind his back. He also repeatedly ordered Singer to "spit it out."

         The recording shows that two other officers appeared at the scene and ran to the driver's side of Singer's truck, where they were out of the camera's view. One of the officers can be heard asking if another officer had Singer's arm, and an officer can be heard ordering Singer to stand up. During this struggle, Singer dramatically and repeatedly screamed, "My back," and one of the officers commented that Singer had spit something out of his mouth. Additional officers arrived at the scene, who noted that a pipe had been found inside Singer's truck and that a second pipe had been found outside his truck on the ground.

         At the conclusion of the suppression hearing, the trial court denied Singer's motion on the basis that Officer Price's stop of Singer was valid. The court stated that in addition to considering Officer Price's testimony and the video recording from the stop, it had also reviewed Code section 55-9-406(b)(1), which requires a driver's headlights to be activated "during any time when rain, mist, or other precipitation, including snow, necessitates the constant use of windshield wipers by motorists." The court found that it was raining at the time of Singer's stop and that Officer Price's "windshield wipers were on constantly." After determining that the weather conditions that day required drivers to have their headlights activated, the court held that Officer Price's stop of Singer was valid.

         On August 16, 2016, the public defender representing Singer filed a motion to withdraw after Singer lodged a formal criminal complaint against her alleging that she had "act[ed] in concert with the prosecutor and other persons to deprive [him] of his rights and due process," that she "ha[d] failed to file legal claims on his behalf," that she "ha[d] concealed exculpatory evidence," that she "ha[d] edited the video of the traffic stop," and that she had provided "unprofessional, inadequate" representation.

         On August 19, 2016, the trial court appointed trial counsel[1] to represent Singer. However, on November 18, 2016, the court appointed successor trial counsel to represent Singer. On April 17, 2017, successor trial counsel filed his first motion to withdraw.

         Second Motion to Suppress.

         On May 8, 2017, Singer, with the assistance of successor trial counsel, filed a second motion to suppress, arguing that any evidence associated with his alleged confession should be suppressed because he did not give a knowing, voluntary, and intelligent waiver of his Miranda rights. Singer specifically claimed that his waiver was involuntary because he had suffered a back injury, his confession had been secretly recorded, and he had been threatened several times that his stomach would be pumped if he did not "advise the interrogating officer satisfactorily" about what he had ingested.

         At the May 15, 2017 suppression hearing, Officer Gibbs of the Murfreesboro Police Department testified that he encountered Singer at the scene on October 27, 2015, after Officer Price called for backup. Shortly after arriving at the scene, Officer Gibbs advised Singer of his Miranda rights. He acknowledged that Singer had complained several times about his back hurting while at the scene. Officer Gibbs acknowledged telling Singer that, for medical reasons, he needed to disclose what he had consumed or his stomach might be pumped; however, he denied giving Singer this information in a threatening manner. He explained that he told Singer this because "[d]epending on the type of drug and the amount, [the person] could overdose and die." Officer Gibbs said he later accompanied Singer to the hospital, where he made two video recordings of Singer on his cell phone. He acknowledged that Singer seemed to be in a fair amount of distress about his back when he arrived at the hospital and was confused about why he had been arrested. However, Officer Gibbs stated that Singer was able to answer most, if not all, of his questions. In the first video, Singer falsely told Officer Gibbs that there were drugs in his anus, and Officer Gibbs accused Singer of giving him this false information as a way to divert his attention from what Singer was chewing. In the second video, Singer admitted to Officer Gibbs that he ingested a partially smoked marijuana joint. While Officer Gibbs acknowledged that Singer was calmer during the second video where he made the admission, he could not explain the reason for Singer's change in demeanor, other than he had talked with Singer for a while, which seemed to calm him. Officer Gibbs could not recall whether Singer had been given any medication by the hospital staff prior to admitting that he ingested the marijuana joint. He acknowledged that he did not give Singer his Miranda rights again on the way to the hospital or at the hospital before Singer gave this admission. While he acknowledged that Singer initially told him several times that he had not consumed any drugs, Officer Gibbs noted that "there was an odor of marijuana" coming from Singer's person, which was noticed by several other officers. He also said Singer had green residue in his mouth and on his teeth from whatever he had been chewing, which indicated that Singer had consumed the marijuana "very recently." Officer Gibbs stated that Singer was obviously chewing on something both at the scene and during the ambulance ride to the hospital.

         The video recording of Officer Gibbs' conversation with Singer at the scene was played for the court. In it, Officer Gibbs advised Singer of his Miranda rights, and Singer stated that he was willing to talk to him. The video recordings that Officer Gibbs made of Singer at the hospital were also played for the court. Officer Price also testified at this hearing and provided similar testimony to what he had given at the earlier suppression hearing.

         At the conclusion of this hearing, the trial court stated that it had considered the testimony presented and had reviewed the relevant videos showing Singer at the scene and at the hospital. The court found that Singer had been given his Miranda rights at the scene and that from the time of Singer's initial stop to the time Singer confessed to ingesting the marijuana joint, he was able to engage in conversation with all of the officers present. The court then held that because all of Singer's statements "were made willingly and voluntarily," they would not be suppressed.

         On March 14, 2018, successor trial counsel filed a second motion to withdraw, asserting that Singer insisted on taking action that the attorney considered repugnant and that Singer himself was so repugnant to successor trial counsel that it likely impaired the attorney-client relationship and counsel's ability to represent Singer. Thereafter, the trial court granted the motion to withdraw on the condition that successor trial counsel remain as "elbow counsel" for Singer. On April 18, 2018, and May 3, 2018, Singer filed two pro se motions to dismiss, alleging in part that his indictment was defective and that the court was without jurisdiction because the count charging him with tampering with the evidence pursuant to Code section 39-16-503 used the word "substance."

         Trial.

         At the jury trial on July 30, 2018, Singer represented himself with successor trial counsel acting as "elbow counsel." Officer Price provided testimony similar to the testimony he had provided at the suppression hearings. In addition, Officer Price asserted that he pulled Singer out of his truck because he was concerned that Singer was looking for a weapon. As he and Singer fell to the ground, some items also fell to the ground, including a glass pipe used to smoke crack cocaine. Officer Price said that despite giving Singer repeated commands, Singer continued to try to stand up while Officer Price was on his back. Officer Price observed that Singer was continuously chewing on something, and when he told him to spit it out because he was concerned that Singer had ingested something that could hurt him, Singer refused. Officer Price then tried to pull Singer's arms behind his back, but Singer refused to cooperate. They continued to struggle until two other officers arrived on the scene, and then all three officers worked together to place Singer's hands behind his back so they could arrest him.

         Officer Price said that once Singer was handcuffed, Singer's person was searched incident to his arrest. He said that during the entirety of the struggle and even after he was placed in custody, Singer continued to chew on something, despite his repeated commands for Singer to spit it out. Officer Price also smelled the odor of raw marijuana coming from Singer's mouth and noted that Singer's tongue and mouth looked green. He said that other officers at the scene also commented that they smelled marijuana on Singer's breath. Officer Price stated that although Singer eventually spit out two packs of gauze wrapped in cellophane, he continued to chew something. He asserted that he did not collect these gauze packs because they did not contain drugs. A video recording of Singer's stop was played for the jury.

         Officer Price and other officers then searched Singer's truck and found a rolled dollar bill containing cocaine wedged in the frame of the driver's side door. They also found a tinfoil crack pipe and a Brillo pad, which acts as ...


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