State of Tennessee v. Heather McMurray ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
August 20, 2013 Session
STATE OF TENNESSEE v. HEATHER McMURRAY
Appeal from the Criminal Court for Knox County
No. 95356 Jon Kerry Blackwood, Judge
No. E2012-02637-CCA-R3-CD - Filed December 16, 2013
The defendant, Heather McMurray, was convicted by a Knox County Criminal Court jury
of three counts of the sale of less than .5 grams of cocaine within 1000 feet of a school zone,
three counts of the delivery of less than .5 grams of cocaine within 1000 feet of a school
zone, possession of less than .5 grams of cocaine with the intent to sell within 1000 feet of
a school zone, and possession of less than .5 grams of cocaine with the intent to deliver
within 1000 feet of a school zone, all Class B felonies. The trial court merged the
convictions based on the same incidents and sentenced the defendant as a Range I, standard
offender to concurrent terms of twelve years for each conviction, with a mandatory eight-year
sentence in the Department of Correction due to the fact that the offenses were committed
in a drug-free school zone. The defendant raises three issues on appeal: (1) whether the
evidence is sufficient to sustain her convictions; (2) whether the trial court erred in allowing
a police officer to testify as an expert witness; and (3) whether the trial court erred by
denying her motion for a mistrial after the State played a redacted version of her statement
to police. Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
R OGER A. P AGE, J., joined.
Mike Whalen, Knoxville, Tennessee, for the appellant, Heather McMurray.
Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Phillip Morton, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
In July 2010, a confidential informant working for the Knoxville Police Department
made three controlled drug buys of crack cocaine from the defendant at her Knoxville
apartment. The defendant was arrested and her apartment searched, which resulted in the
discovery of a small amount of crack cocaine and some drug paraphernalia. The Knox
County Grand Jury subsequently returned a nine-count indictment charging the defendant
with three counts each of the sale and delivery of less than .5 grams of cocaine within 1000
feet of a school zone, possession of less than .5 grams of cocaine with the intent to sell and
deliver within 1000 feet of a school zone, and possession of drug paraphernalia. The
defendant pled guilty to the drug paraphernalia charge and proceeded to trial on the
remaining counts of the indictment.
The State’s first witness at trial was the confidential informant, who testified that for
the past five years he had occasionally worked as an informant for the Knoxville Police
Department by purchasing drugs from individuals about whom the police department had
received complaints. He estimated that he had engaged in 90 to 100 such transactions during
that time and said that he was paid in cash for each transaction. He had not, however, been
paid for his testimony against the defendant. He acknowledged that he had some criminal
history himself, having been convicted of aggravated assault and “some misdemeanors.”
The confidential informant testified that in June 2010, Investigator Jinks of the
Knoxville Police Department asked him to attempt to purchase some crack cocaine from the
defendant, whom he had not previously known. He explained that Investigator Jinks had him
do what was called a “cold walk-up,” in which he would approach someone about whom the
department had received a drug complaint and attempt to strike up a conversation to see if
he could buy whatever it was the person was alleged to be selling. Using that procedure, he
met the defendant sometime in June, and she gave him her telephone number. On July 2,
2010, he conducted the first of three controlled buys from her. The confidential informant
described the procedure employed during each controlled buy, testifying that he would meet
the officers at a predetermined location for them to search him and give him $40 in cash for
the drug purchase and outfit him with a transmitter and recorder, drive to the defendant’s
home in his vehicle while the officers accompanied and monitored him in separate unmarked
vehicles, make the drug purchase, and then meet the officers again at the predetermined
location to give them the drugs and be searched again. He said he was paid $100 for each
of the transactions. The confidential informant identified the audio recordings of the three
drug transactions, which were played for the jury and admitted as exhibits. During the
playing of the recordings, he narrated for the jury what was happening.
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The confidential informant testified that during the July 2 transaction he knocked on
the defendant’s door, asked the man who answered whether the defendant was home, and
was told that she was not. He said he encountered the defendant as he was leaving the porch,
and they had a discussion about his buying “40,” or $40 worth of crack cocaine from her.
She left to go get it, and he waited on the porch until she returned approximately twenty to
forty-five minutes later. He said she gave him the crack cocaine that was in her hand, along
with “a little bit extra” from the table because he had had to wait so long. He then drove
back to the predetermined spot to turn over the drugs to Investigator Jinks.
The confidential informant testified that during the next transaction on July 5 he
encountered the defendant as he was getting back into his vehicle at her residence after
knocking on the door and being informed that she was not there. He said he asked her if she
had found any and mentioned a “40,” meaning $40 worth of crack cocaine. He stated that
she told him to come around to the front and when he did so, she walked to someone inside
a vehicle in front of her residence, retrieved the drugs, and brought them to him. He paid her
and then returned to the predetermined location to turn the drugs over to Investigator Jinks.
The confidential informant testified that he returned to the defendant’s residence the
following day, July 6, for the third transaction. After knocking at her door and receiving no
answer, he called the defendant on the telephone to find out where she was and whether she
had $40 worth of crack cocaine available to sell to him. He then sat on her porch and waited
for her to return to her home. As he waited, a woman named Rita walked up to the house and
engaged him in conversation, telling him to call the defendant back to tell her that she had
$8.75 and wanted to buy some crack cocaine from the defendant as well. He called the
defendant back, and she informed him of her location and told him to tell Rita that she would
“get with [her] when she got there and take care of her.” He next saw the defendant driving
down the street in her Cadillac. She pulled up in the driveway, called him over to her
vehicle, and gave him some crack cocaine, for which he handed her $40 in cash. As she
handed him the crack cocaine that was already in her hand, he saw a baggie of crack cocaine
in the console of her vehicle. He then returned to the predetermined location, where he
turned the drugs and transmitter over to Officer Geddings of the Knoxville Police
Department, was searched, and received his $100 payment for the transaction.
On cross-examination, the confidential informant acknowledged that in each
transaction the defendant went somewhere to retrieve the drugs that she sold him. He also
testified that the drugs the defendant sold him were not packaged when the defendant handed
them to him.
Investigator Philip Jinks of the Knoxville Police Department testified that he was
assigned to the “repeat offender squad,” which did not necessarily investigate repeat
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offenders but rather primarily focused on “street level drug investigations.” He detailed his
training and experience as a street level drug investigator and described the investigative
procedure employed by his unit in response to citizen complaints about possible drug activity
in the community, including their use of confidential informants to perform “cold walk-
up[s]” in an attempt to make a drug buy from a suspected dealer. He testified that the
confidential informant in this case came to the attention of his unit after he had provided a
patrol officer responding to a call with some information. Investigator Jinks said that he then
met with the informant, who expressed an interest in becoming a paid confidential informant.
He said that he had used the informant in that capacity since 2005 or 2006, during which time
he had participated in approximately 90 to 100 controlled buys.
Investigator Jinks testified that his investigation of the defendant began with a citizen
complaint about her apartment, which prompted him to conduct surveillance at that location.
During the course of that surveillance, he observed people knocking on the defendant’s
apartment door, going inside, staying a minute, and then leaving. He also observed the
defendant coming and going from the apartment at “all hours.” He then contacted the
confidential informant and asked him to make the series of controlled buys from the
defendant. Investigator Jinks described the process he conducted with each controlled buy,
testifying that he first searched the confidential informant and his vehicle before providing
him with a digital audio recorder and transmitter and $40 in cash for each transaction, that
officers maintained surveillance on the informant as he drove to the defendant’s apartment,
that he monitored the informant’s conversations with the defendant during the transactions,
and that officers searched the informant and his vehicle again upon the completion of the
transactions. He testified that each of the substances that the informant turned over to the
officers after the controlled buys field-tested positive for cocaine and was later transported
to the Tennessee Bureau of Investigation (“TBI”) laboratory for analysis.
Investigator Jinks’s description of each controlled buy essentially corroborated the
accounts provided by the confidential informant, except that Investigator Jinks recalled that
the informant was paid $100 for the first controlled buy and $80 for each of the two
subsequent controlled buys. Investigator Jinks also provided the additional information that
when the informant drove off after the July 5 buy, he saw the defendant walk to the
automobile from which she had obtained the substances and hand the driver the money that
the informant had just given her. Investigator Jinks testified that upon the completion of the
July 6 transaction, he had other officers follow the informant back to the predetermined
location while he maintained surveillance of the defendant’s vehicle, following it to a nearby
Kroger. He said that as he did so, he called for a marked patrol unit to stop the vehicle in
order to make a positive identification of the defendant as the driver.
Investigator Jinks testified that on July 8, 2010, he and fellow officers went to the
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defendant’s apartment to conduct a search. He said that he was in plain clothes and
approached the apartment from one direction while uniformed officers approached it from
a different direction. He stated that the uniformed officers knocked on the apartment door
as he walked around the end of the building and that the defendant came out of the apartment
next to her apartment, made a motion to wave him away, and said, “The police are here. The
police are here.” At that point, he showed her his badge, identified himself as a police
officer, and told her that they needed to talk. She then invited him inside her apartment,
where he and his fellow officers conducted a search. During the search, they found a black
ceramic plate with several small rocks of crack cocaine and a razor blade on it and a crack
pipe and a blunt cutter. Investigator Jinks explained that the presence of the razor blade
indicated to him that larger pieces of crack cocaine were being cut into smaller pieces for
resale. He said he located the defendant’s Cadillac down the street and inside the vehicle
found the defendant’s purse with a “reloadable Visa card” in someone else’s name, as well
as an “EBT,” or food stamp, card in the name of “Rita Wampler.”
Investigator Jinks testified that he took the defendant into custody and interviewed her
at the Knoxville Police Department. He said the defendant told him she would buy $50
worth of crack cocaine and smoke some of it herself and sell the rest of it. She also spoke
of how she had for the past two months been “doubling up” on her transactions, which meant
that she would buy $50 worth of crack cocaine and try to sell the same amount for $100. She
acknowledged that when she first saw Investigator Jinks outside her apartment she thought
he was there to buy some crack cocaine. She also acknowledged that “Rita” had given her
her EBT card in exchange for some crack cocaine.
On cross-examination, Investigator Jinks acknowledged that someone could use a
razor blade to cut crack cocaine to put into a crack pipe to smoke, rather than to sell. He
further acknowledged that he did not find any digital scales, plastic baggies, or drug log
books inside the defendant’s apartment.
Officer Michael Geddings of the Knoxville Police Department testified that he was
assigned to the repeat offender unit and provided surveillance of the confidential informant
during the July 6, 2010 undercover drug operation. He said he searched the informant after
the transaction, placed in a sealed envelope the substance the informant purchased, which
field-tested positive for cocaine, and later had it sent to the TBI laboratory for analysis.
The parties agreed by stipulation that Sergeant Josh Schaffer of the Knoxville Police
Department would have testified that when he stopped the defendant’s vehicle on July 6,
2010, the defendant was driving it.
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Douglas Ryerkerk, an employee of Knox County School Security, testified that Belle
Morris School on Washington Pike had been an elementary school for over thirty years,
including during July 2010.
Craig McNew testified that he worked in the property management unit of the
Knoxville Police Department and that he transported to and from the TBI laboratory the
narcotics at issue in the case.
TBI Special Agent Forensic Scientist Jacob White, who analyzed the substances
obtained in the July 2 and July 5 transactions, testified that they consisted of, respectively,
.14 grams and .23 grams of cocaine base. The parties stipulated that the substances obtained
in the July 6 transaction and the July 8 search of the defendant’s home were analyzed by
other TBI forensic scientists who determined that they each consisted of .1 grams of cocaine
base.
James Brink, a web developer and programmer employed by KGIS, testified that he
determined that the distance between Belle Morris Elementary School and the defendant’s
home was 572 feet.
The defendant testified that she was forty-three years old and had been using crack
cocaine since 1991. She said that she obtained money to buy her drugs by shoplifting and
committing forgeries and that she had “a lot” of criminal history, having pled guilty
whenever she was charged with those offenses because she was guilty. She insisted,
however, that she was not guilty of the crimes with which she was currently charged, which
was why she had chosen to go to trial. The defendant explained that she first came into
contact with the confidential informant through Rita, who lived near her and panhandled for
a living. She said that Rita asked her to buy crack cocaine for someone who was at her house
and that she agreed, taking the money from Rita, driving to a housing project to buy some
crack cocaine, and returning to her apartment, where she gave some of the crack cocaine to
Rita and kept some to smoke herself. The defendant testified that at some point the
confidential informant approached her directly, telling her that Rita usually sent her to go get
his drugs and he wanted to know if she had any crack cocaine for him. The defendant said
she told the informant that she did not have any on her but would go get some for him.
The defendant testified that the traffic in and out of her apartment consisted of her
three teenaged daughters, their friends, and her own friends and that she used the crack pipe
and blunt cutter for her personal consumption of crack cocaine.
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ANALYSIS
I. Sufficiency of the Evidence
The defendant first contends that the evidence is insufficient to sustain her
convictions, arguing that the “minuscule amount” of drugs involved in the case, along with
the fact that she handed the money she received from the confidential informant to the
“actual drug dealer” in the vehicle, supports a finding that her actions consisted merely of a
casual exchange. The State responds that there is ample evidence in the record for a
reasonable jury to conclude that the defendant sold and delivered cocaine and possessed
cocaine with the intent to sell and deliver. We agree with the State.
In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).
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“A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
The defendant was convicted of three counts of the sale of less than .5 grams of
cocaine within 1000 feet of a school zone and one count of possession of less than .5 grams
of cocaine with the intent to sell within 1000 feet of a school zone. To sustain the sale
convictions, the State had to prove beyond a reasonable doubt that the defendant knowing
sold less than .5 grams of cocaine, a Schedule II controlled substance, and that the
transactions occurred within 1000 feet of a school. Tenn. Code Ann. §§ 39-17-417(a)(3),
(c)(2)(A), -432(b)(1). To sustain the possession conviction, the State had to prove beyond
a reasonable doubt that the defendant knowingly possessed less than .5 grams of cocaine with
the intent to sell and that the possession occurred within 1000 feet of a school. Tenn. Code
Ann. §§ 39-17-417(a)(4), (c)(2)(A), -432(b)(1).
The defendant argues that the evidence supports a casual exchange of drugs rather
than a sale. Tennessee Code Annotated section 39-17-418(a) provides that “[i]t is an offense
for a person to knowingly possess or casually exchange a controlled substance, unless the
substance was obtained directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of professional practice.” A “casual exchange”
generally “contemplates a spontaneous passing of a small amount of drugs, for instance, at
a party. Money may or may not be involved.” State v. Copeland, 983 S.W.2d 703, 708
(Tenn. Crim. App. 1998). As this court has previously explained:
“[w]hether a transfer is a casual exchange is to be determined from all the facts
and circumstances of the case. Facts and circumstances indicating that the
transaction is not a casual exchange include a lack of evidence that the
defendant gave the drugs to the buyer out of friendship or as a friendly gesture,
no evidence reflecting anything other than a pecuniary motive for the transfer
of the drugs, no prior relationship between the defendant and the buyer, and
no reason for the defendant and the buyer to be together, other than for the
buyer to purchase drugs.”
State v. Bernard Miguel Wallace, No. W2004-02124-CCA-R3-CD, 2006 WL 16315, at *4
(Tenn. Crim. App. Jan. 3, 2006) (citations omitted) (quoting State v. Donald L. Haynes, No.
E2000-00672-CCA-R3-CD, 2001 WL 416729, at *4 (Tenn. Crim. App. Apr. 24, 2001)).
The evidence, viewed in the light most favorable to the State, is more than sufficient
for a rational jury reasonably to find that the transactions constituted sales rather than casual
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exchanges of drugs. There was no evidence of any friendship between the defendant and the
informant, of any reason that they were together other than for the sale of the drugs, or of any
non-pecuniary motive on the part of the defendant for the transfer of the drugs. The evidence
is also sufficient for a rational jury reasonably to find that the defendant possessed the drugs
found in her home with the intent to sell them. Accordingly, we conclude that the evidence
is sufficient to sustain the defendant’s convictions.
II. Testimony by Investigator Jinks
The defendant next contends that the trial court erred by allowing Investigator Jinks
to testify as an expert witness. The State responds by arguing that the trial court committed
no error in this matter because the State did not tender, and the trial court did not declare,
Investigator Jinks as an expert witness and he did not offer any expert opinion in the case.
The record reflects that as the prosecutor was beginning to question Investigator Jinks
about his background, defense counsel offered to stipulate to his “qualifications as a police
officer.” When the prosecutor replied that he would like to qualify him as an expert in street
level drug crime, defense counsel objected on the basis that he had not been provided with
any notice of expert testimony. The trial court responded that the witness was “just giving
. . . his background,” and that it did not know whether he would be offering an expert opinion
but would rule on the issue when and if it came up. Thereafter, Investigator Jinks continued
his testimony without the prosecutor ever moving that he be qualified as an expert witness
or the trial court ruling on the motion. We, therefore, agree with the State that the defendant
is not entitled to relief on the basis of this issue.
III. Denial of Mistrial
Lastly, the defendant contends that the trial court erred by denying her motion for a
mistrial after the State played a redacted version of her statement in which Investigator Jinks
asked her who brought the gun to her apartment. The defendant argues that the information
about a gun, when she was not charged with a gun offense, constituted “incredibly prejudicial
and inadmissible evidence” that should have warranted a mistrial. The State responds by
arguing that the trial court did not abuse its discretion in declining to grant a mistrial,
asserting that “[t]he brief mention of a firearm . . . was not prejudicial and certainly did not
create a manifest necessity for a mistrial.”
The record reflects that defense counsel objected before the trial began to the playing
of the entire interview with the defendant, arguing that it was “chock-full of stuff that doesn’t
belong” in the trial, including information about the defendant’s probation violations,
previous prison experience, and her providing the investigator with names and phone
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numbers of her drug contacts. The prosecutor responded that he had not yet made the
decision about whether to play the statement, but if so he would redact it to avoid any
mention of the defendant’s criminal history. As the State points out, defense counsel raised
no objection at that point about the portion of the videotape that contained Investigator
Jinks’s gun discussion with the defendant, despite the fact that he had been provided with the
original videotaped statement, albeit not with a redacted version or a transcript of the
portions that the State intended to play.
The videotaped statement was later played for the jury during Investigator Jinks’s
testimony, with the prosecutor apparently fast-forwarding over objectionable parts and
stopping at various points to ask Investigator Jinks to explain the terminology.1 When the
videotape reached a portion of the interview in which Investigator Jinks asked the defendant,
“Who brought the gun in?” defense counsel objected and the following bench conference
was held:
[DEFENSE COUNSEL]: Here’s my problem with this. Now we’re going to
put in the gun stuff, and there’s no gun involved.
THE COURT: I can’t – I can’t –
[DEFENSE COUNSEL]: She – now we’re –
THE COURT: I can’t hardly understand what they’re talking about.
[DEFENSE COUNSEL]: Well, for one, this is a terrible quality. The quality
of the copy I was given is much better than this. They’ve digitized it, and
that’s what’s making it so screechy and bad, but now we’re talking about who
brought the gun over. There’s no allegation of gun in this charge–this thing.
Let’s just beat her up with it.
[PROSECUTOR]: And they clarify all that. There wasn’t a gun – there’s
been a gun in the past, and they’re not trying to charge her with a gun. They
found some bullets in this search. There wasn’t any gun found.
[DEFENSE COUNSEL]: Which makes it irrelevant as it shouldn’t be in trial.
1
Defense counsel states in his brief that at trial a transcript of the interview was “joined to the video”
with the “text running below the video.” However, neither the original copy of the videotape, which was
admitted for identification purposes only, nor the redacted version, which was admitted as a trial exhibit and
in which the conversation about the gun was removed, contains any text of the interview.
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That’s why I objected to playing this tape, and I haven’t been provided any
redacted version.
THE COURT: I mean, what is she saying right there? What is he saying
there?
After counsel provided the words for the court, the court suggested that they take a
ten-minute break and “move past the gun part.” During the break, defense counsel requested
a mistrial, arguing that the statement about the gun was inflammatory, irrelevant, and unfairly
prejudicial to his client’s case. The trial court ruled that the question about the gun was
irrelevant, ordered that the State fast forward past all mention of the gun and bullets before
resuming the playing of the videotape, and denied the request for a mistrial. The court
originally expressed its intention to issue a curative instruction to the jury to disregard the
conversation about the gun but changed its mind after defense counsel requested that no such
instruction be given so as not to draw the jury’s attention to the matter.
The decision of whether or not to declare a mistrial lies within the sound discretion
of the trial court. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A mistrial
should be declared in a criminal case only when something has occurred that would prevent
an impartial verdict, thereby resulting in a miscarriage of justice if a mistrial is not declared.
See id.; State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App. 1999); Arnold v. State, 563
S.W.2d 792, 794 (Tenn. Crim. App. 1977). “Generally a mistrial will be declared in a
criminal case only when there is a ‘manifest necessity’ requiring such action by the trial
judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold,
563 S.W.2d at 794). A manifest necessity exists when there is “no feasible alternative to
halting the proceedings.” State v. Knight, 616 S.W.2d 593, 596 (Tenn. 1981). The burden
to show the necessity for a mistrial falls upon the party seeking the mistrial. Land, 34 S.W.3d
at 527. This court will not disturb the trial court’s decision unless there is an abuse of
discretion. Id.
We agree with the State that the defendant has not shown any manifest necessity for
a mistrial based on the brief, almost inaudible, mention of a gun during the playing of the
videotaped statement. We conclude, therefore, that the trial court did not abuse its discretion
in denying the mistrial and that the defendant is not entitled to relief on the basis of this issue.
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CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.
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ALAN E. GLENN, JUDGE
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