State of Tennessee v. Michael Leon Caudle ( 2021 )


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  •                                                                                                                12/13/2021
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs October 19, 2021
    STATE OF TENNESSEE v. MICHAEL LEON CAUDLE
    Appeal from the Circuit Court for Montgomery County
    No. CC-2014-CR-1071      William R. Goodman, III, Judge
    No. M2020-01365-CCA-R3-CD
    The Defendant, Michael Leon Caudle, was convicted of two counts each of selling less
    than 0.5 gram of cocaine within a drug-free school zone and delivering less than 0.5 gram
    of cocaine within a drug-free school zone, and one count of possessing 0.5 gram or more
    of cocaine within a drug-free school zone with the intent to sell, deliver, or manufacture.
    The trial court merged the two delivery convictions with the corresponding sale convictions
    and imposed an effective sentence of sixty years’ incarceration. In this delayed appeal,1
    the Defendant challenges the sufficiency of the evidence. Following our review of the
    record, we affirm the judgments of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
    D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
    WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
    Gregory D. Smith (in first appeal, post-conviction petition, and present appeal) and
    Cleveland C. Turner (at trial), Clarksville, Tennessee, for the appellant, Michael Leon
    Caudle.
    Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
    Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C.
    Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.
    1
    After the Defendant’s trial, an error described by the trial court as an “oversight” on trial counsel’s part
    resulted in a failure to file a motion for new trial and timely notice of appeal. After the trial court attempted
    to remedy the situation by entering an agreed order granting a delayed appeal, this court remanded the case
    with instructions for the Defendant to request a delayed appeal by a post-conviction petition. The Defendant
    filed a post-conviction petition, which the trial court granted. This is the Defendant’s first appeal on the
    merits of his case. A detailed procedural history of this case may be found in this court’s opinion regarding
    the first delayed appeal, State v. Michael L. Caudle, No. M2018-01471-CCA-R3-CD, 
    2019 WL 5883678
    ,
    at *1-2 (Tenn. Crim. App. Nov. 12, 2019).
    OPINION
    FACTUAL BACKGROUND
    This case relates to a controlled drug purchase conducted by the Clarksville Police
    Department (“CPD”) on December 20, 2013, and a subsequent unplanned drug sale nearby.
    The Defendant was charged with alternate counts of selling and delivering less than 0.5
    gram of cocaine within a drug-free school zone in each incident (Counts2 3, 4, 5, and 6),
    Class B felonies; possession of 0.5 gram or more of cocaine within a drug-free school zone
    with the intent to manufacture, sell, or deliver, (indictment Count 7), a Class A felony; and
    resisting arrest (indictment Count 8), a Class B misdemeanor. See Tenn. Code Ann. §§ 39-
    16-602, -17-408, -17-417. The Defendant proceeded to a jury trial.
    At trial, CPD Patrol Sergeant Griffie Briggs testified that he was a narcotics agent
    with the department’s “Special Operations Unit.” He was the “case agent” assigned to a
    December 20, 2013 controlled drug buy involving a confidential informant (“CI”), James
    Nelson,3 whose nickname was “Bugs Bunny.” Sergeant Briggs stated that Mr. Nelson was
    paid $160 for his cooperation in the December 20 buy.
    Sergeant Briggs testified that generally, officers searched CIs and the vehicles they
    used to travel to and from a drug buy for drugs, weapons, and money. The CIs wore an
    audio device, which recorded the transaction and broadcasted it to officers in real time.
    The CIs contacted suspected drug sellers and once a location was arranged, the officers
    would surveille the CIs as they traveled to the location. After the sale, the CIs met the
    officers at a predetermined location and surrendered any narcotics. Officers searched the
    CIs and their vehicles again; afterward, the officers composed written statements.
    Sergeant Briggs testified that he followed standard procedure with Mr. Nelson
    during the December 20 buy, including searching Mr. Nelson before he left Sergeant
    Briggs’s office. Around 1:11 p.m., Mr. Nelson called a telephone number ending in 1685,
    but the person did not answer. About three minutes later, the same telephone number
    returned Mr. Nelson’s call. Sergeant Briggs affirmed that he gave Mr. Nelson cash to use
    in the controlled drug buy, and he identified a photocopy of the cash. He noted that the
    photocopy documented the bills’ serial numbers.
    2
    The indictment also charged the Defendant in Counts 1 and 2 with alternate counts of selling and
    delivering more than 0.5 gram of cocaine within a drug-free school zone on December 17, 2013. The State
    severed these counts of the indictment and eventually dismissed them. The remaining counts were
    renumbered for the jury at trial.
    3
    Mr. Nelson was deceased at the time of the Defendant’s trial.
    -2-
    Sergeant Briggs testified that his vehicle “kept primary surveillance on” Mr. Nelson
    and contained equipment that received Mr. Nelson’s audio transmission. Other police cars
    traveled in front of and behind Mr. Nelson’s car, and they all drove to a Hastings store
    parking lot. Sergeant Briggs identified an aerial photograph of the area and noted that New
    Providence Middle School was nearby. He stated that Mr. Nelson was under constant
    audio and visual surveillance during the drug buy and that Mr. Nelson never exited his car
    prior to the drug buy. Sergeant Briggs identified a series of photographs, which depicted
    Mr. Nelson in his car in the Hastings parking lot; a second, white car parked near Mr.
    Nelson’s car; Mr. Nelson exiting his car while speaking to the driver of the white car,
    whose driver’s side door was ajar; Mr. Nelson entering the front passenger seat of the white
    car; the white car’s license plate; and Mr. Nelson exiting the white car.
    Sergeant Briggs testified that the Defendant was the white car’s driver and that the
    officers could not see what occurred in the white car. He said, though, that Mr. Nelson’s
    audio device recorded a general conversation between the men about women and friends.
    Sergeant Briggs acknowledged that the men did not discuss a transaction; he did not recall
    whether they talked about a person’s owing someone else money. Sergeant Briggs stated
    that according to his notes, Mr. Nelson was inside the white car for about two minutes.
    After Mr. Nelson reentered his car and left the parking lot, the officers followed him to the
    prearranged meeting location. Sergeant Briggs affirmed that he never lost sight of Mr.
    Nelson. Mr. Nelson gave Sergeant Briggs a substance that field tested positive for cocaine.
    On cross-examination, Sergeant Briggs testified that he had used Mr. Nelson as a
    CI in one other controlled drug buy prior to the one involving the Defendant; he noted that
    Mr. Nelson was a CI for other officers in his department. Sergeant Briggs did not recall
    whether Mr. Nelson was paid for the previous drug buy or cooperated with police in
    exchange for a favorable agreement with the State related to pending criminal charges.
    Sergeant Briggs stated that if Mr. Nelson had not successfully bought drugs during the
    controlled buy, Sergeant Briggs’s supervisor would have determined whether Mr. Nelson
    would still be paid.
    Sergeant Briggs testified that Mr. Nelson brought up the Defendant as someone
    engaged in criminal activity during a meeting with the officers. Sergeant Briggs stated that
    they chose to pursue the Defendant for no particular reason, and he noted that the Defendant
    was one of the first people Mr. Nelson discussed that day.
    Sergeant Briggs testified that another officer searched Mr. Nelson before the
    controlled buy; Sergeant Briggs did not know how the other officer searched Mr. Nelson,
    although he denied that Mr. Nelson was strip-searched. Sergeant Briggs stated that he
    searched Mr. Nelson’s pockets, shoes, and car after the buy. Sergeant Briggs said that Mr.
    Nelson drove his own car during the controlled buy and that Sergeant Briggs searched the
    car “until [he] was comfortable” that the car contained no contraband, weapons, or cash.
    -3-
    When asked whether Mr. Nelson “dealt dope,” Sergeant Briggs testified that to his
    knowledge, Mr. Nelson only used drugs and that he did not know if Mr. Nelson ever sold
    drugs. Other officers “wired” Mr. Nelson’s person and his car. Sergeant Briggs denied
    that he and Mr. Nelson were ever separated in traffic while traveling to and from the
    controlled buy. Sergeant Briggs stated that if Mr. Nelson possessed drugs before the
    controlled buy, the officers would not have allowed it to proceed. He acknowledged,
    though, that it was possible for people to conceal drugs in their anal cavities and hide drugs
    “very, very well” to avoid detection. He agreed that he did not know how Mr. Nelson was
    searched before the drug buy because he did not participate in the search.
    The recordings related to the controlled drug buy were entered as exhibits. The first
    recording consisted of Sergeant Briggs’s stating the date and that CI Bugs Bunny was
    calling “M.C.” During the call on speakerphone, the recipient asked who was calling, and
    Mr. Nelson identified himself as “M.J.” The recipient stated that he would call M.J. back
    and hung up. The second recording contained Sergeant Brigg’s recitation of the date and
    that they anticipated a drug sale for $100 worth of crack cocaine from “M.C.” at Hastings.
    The final recording documented Mr. Nelson’s driving to Hastings; after about thirty-five
    minutes, the recording reflected Mr. Nelson’s entering an area in which loud music was
    playing. Mr. Nelson discussed women and social conflicts with a second man; the
    conversation was unclear due to the background music.
    CPD narcotics officer Robert Del Giorno testified that he searched Mr. Nelson’s car
    and “wired” it. Officer Del Giorno witnessed Mr. Nelson and the Defendant’s encounter
    in the Hastings parking lot, although he did not listen to the audio transmission in real time.
    He confirmed that Mr. Nelson was in the Defendant’s car for a couple of minutes. When
    the Defendant drove away from the parking lot, Officer Del Giorno watched him drive
    down the street to a nearby Kwik Stop tobacco store. Officer Del Giorno photographed
    the Defendant’s car as it left Hastings and when it parked at the tobacco store. When asked
    whether he was assigned to monitor the Defendant’s car after the controlled buy, Officer
    Del Giorno responded negatively and noted that “for whatever reason, [he] just took
    interest in” the Defendant’s car.
    Officer Del Giorno testified that he saw a woman he recognized, who was later
    identified as Ann Marie Mastele, exit a car and enter the passenger side of the Defendant’s
    white car; he noted that Ms. Mastele was a drug user who had previously worked as a CI
    for the police department. He stated that in his experience, Ms. Mastele was a reliable CI.
    Officer Del Giorno notified other officers in the area, but he was not involved in the
    subsequent arrest.
    On cross-examination, Officer Del Giorno testified that he searched the passenger
    compartment, glove compartment, and trunk of Mr. Nelson’s car. He acknowledged,
    though, that he did not “feel under the dash.” Officer Del Giorno did not find any hidden
    -4-
    compartments around the car’s windshield, and he did not recall the car’s having floor
    mats. He was not present when Mr. Nelson was searched before the buy. Officer Del
    Giorno did not note in his report whether the car had other containers inside it; he stated
    that if he had found contraband or money, he would have taken note of it. He did not
    photograph Mr. Nelson’s car.
    Officer Del Giorno testified that he had conducted “numerous” controlled drug buys
    with Ms. Mastele, whose nickname was “Easy Bake.” Although Officer Del Giorno did
    not know Ms. Mastele’s criminal record and was unaware that she had active arrest
    warrants, he knew that she was incarcerated at the time of trial. Ms. Mastele was paid
    between $100 and $150 for some drug buys, and she participated in others in exchange for
    consideration by the State.
    CPD Officer Jason Hankins testified that he and CPD Agent Will Evans served as
    “security” for the controlled drug buy to protect Mr. Nelson and that they were parked such
    that Officer Hankins did not see Mr. Nelson meet the Defendant. After the controlled buy,
    Officer Del Giorno advised him of the situation at the tobacco store involving Ms. Mastele,
    whom Officer Hankins also knew. Agent Evans pulled up behind the Defendant’s car, and
    Officer Hankins approached Ms. Mastele and asked, “[W]hat did you get, Ann?” He stated
    that Ms. Mastele looked at him “in disappointment” and answered that she “got some
    dope.” Upon request, Ms. Mastele set what appeared to be two unpackaged rocks of crack
    cocaine on the back of the Defendant’s car.
    Officer Hankins testified that he heard Agent Evans order the Defendant out of the
    car and “some commotion.” Officer Hankins elaborated that the Defendant was reaching
    under the driver’s seat, that the Defendant was not wearing a seatbelt and could not have
    been trying to unclasp it, and that Agent Evans told the Defendant to show his hands.
    Officer Hankins stated that Agent Evans began to pull the Defendant out of the car and that
    the Defendant turned away from Officer Hankins and continued to reach into the car.
    Officer Hankins shocked the Defendant with his Taser because he did not know whether
    the Defendant had a weapon and in his opinion, the Defendant was resisting arrest because
    he was using physical force to keep Agent Evans from pulling him out of the car.
    Officer Hankins testified that the Defendant asked why Officer Hankins shocked
    him, and Officer Hankins responded that the Defendant was reaching for something. The
    Defendant stated that he was “just trying to hide the bag,” that he “was a petty,” and that
    he was “just trying to make some Christmas money.” Officer Hankins stated that Agent
    Evans searched Ms. Mastele’s purse and found a “straight shooter” cocaine pipe.
    Ms. Mastele testified that she had pending charges for identity theft, forgery,
    possession of unlawful drug paraphernalia, and an unspecified charge related to
    methamphetamine. She stated that she was arrested the Friday before the Defendant’s trial
    -5-
    and that she had never spoken to the prosecutor before. She said that on December 20,
    2013, she met the Defendant in the tobacco store parking lot to buy two or three rocks of
    crack cocaine, for which she paid sixteen dollars. Ms. Mastele called the Defendant on his
    cell phone a few minutes before they met and told the Defendant that she wanted to buy
    cocaine. When the Defendant arrived, she entered the Defendant’s car for between five
    and ten minutes. As Ms. Mastele exited the Defendant’s car, Agent Evans and other
    officers pulled up behind the car.
    Ms. Mastele testified that she gave verbal and written statements; in the verbal
    statement, she told officers that she met with the Defendant while she was on her way to
    “WIC” and that she was “in a hurry.” In the written statement, she admitted to “buying
    from” the Defendant. The officers confiscated her cocaine and pulled her away from the
    car because the Defendant was “resisting.” She stated that although she worked for CPD
    as a CI, officers had not asked her to buy cocaine from the Defendant on this occasion.
    Ms. Mastele was charged with drug possession and placed on probation based upon the
    December 20 incident. She affirmed that no promises had been made to her in exchange
    for her testimony.
    On cross-examination, Ms. Mastele testified that she had no previous perjury
    charges, and she explained that her pending charges resulted from her attempting to obtain
    identification in another person’s name. She stated that she was a drug addict in December
    2013, but that she had been “clean” for almost one year at the time of trial.
    Ms. Mastele testified that on the day of the incident, she called the Defendant and
    was upset because a man nicknamed “Boney” cursed at her over the phone and called her
    names. She denied that she was angry with Boney for selling her drugs and taking her
    money. Ms. Mastele stated that the Defendant came “almost immediately” after her call
    and that the Defendant told her where to meet him.
    Ms. Mastele testified that the officers told the Defendant to exit the car, that he
    would not, that the officers said they would have to use force, and that she heard the
    Defendant scream about being shocked with a Taser. She denied that one of the officers
    told another officer to shoot the Defendant. Ms. Mastele stated that she had worked as a
    CI between fifteen and twenty times, or maybe more. She sometimes received between
    $100 and $150 in exchange for the CI work, and other times she received reduced criminal
    charges. She denied that she was arrested to ensure she testified at the Defendant’s trial
    and that anyone offered her help in exchange for her testimony.
    CPD Drug Agent Will Evans testified that he worked with Officer Hankins as
    security for the December 20, 2013 controlled drug buy. He stated that Officer Del Giorno
    advised them that the Defendant parked at the tobacco store and that Ms. Mastele got into
    the Defendant’s car. Agent Evans drove to the parking lot and talked to the Defendant
    -6-
    through a cracked window. The Defendant leaned forward and made “furtive movements”
    under the driver’s seat and near the driver’s side door. Agent Evans testified consistently
    with Officer Hankins about extracting the Defendant from the car; the Defendant
    complained of back pain, and Officer Hankins called an ambulance. Agent Evans searched
    the Defendant while he was on the ground handcuffed and found $188 in cash.
    Agent Evans testified that crack cocaine sold for about $100 per gram, meaning that
    the 4.1 grams of cocaine found in the Defendant’s car was worth about $400. Agent Evans
    identified photographs of the cash he found on the Defendant’s person and photographs of
    the cash compared to the photocopies of the controlled drug buy money the CPD provided
    Mr. Nelson. The photographs reflected that the serial numbers of five twenty-dollar bills
    matched the photocopies. Agent Evans recovered cocaine and an oxycodone pill from Ms.
    Mastele. After the Defendant was discharged from the hospital, he waived his rights and
    spoke to Agent Evans at the police station.
    An edited copy of the Defendant’s police interview was played for the jury and
    reflected various statements the Defendant made.4 In the first statement, the Defendant
    said that he was “just trying to get . . . some Christmas money.” In the second statement,
    the Defendant stated that he knew Ms. Mastele because his uncle “messed with” her. When
    asked if the Defendant sold Ms. Mastele “dope” that day, he responded that he was “trying
    to help [him]self.” When asked how often he sold drugs, the Defendant replied, “Well, I
    just thought because it’s Christmas time,” and he noted that he sometimes cut hair to make
    money and previously worked for a roofing and construction company. The Defendant
    also noted that he “tweaked” his back and that this was why he did not exit the car quickly
    enough for the officers. The Defendant admitted that when he moved around the car, he
    had drugs in his hand. He denied “cooking” crack cocaine and stated that he bought an “8
    ball” the day before. He estimated that he had about three grams left. When asked how
    much cocaine he sold per week, the Defendant stated, “No, this just now happened right
    here.” The Defendant said that the dealer from whom he bought cocaine would not tell the
    Defendant his name. The Defendant offered to “help [the police] get him” and noted that
    everyone knew the Defendant. Agent Evans identified a photograph of the Defendant’s
    cell phone call log, which reflected an incoming call at 1:14 p.m. and a 1:53 p.m. incoming
    call from a contact labeled “Anna.”
    On cross-examination, Agent Evans testified that he was Ms. Mastele’s “handler”
    and that he had conducted thirty-five controlled drug buys with her over a span of nine
    years. He affirmed that she was not working for the police on December 20, 2013. Agent
    Evans identified Boney as Kevin Gilmore, another drug dealer who had been arrested
    previously for selling cocaine and drug possession. Agent Evans stated that Ms. Mastele
    4
    An unedited version of the recording, which was hours long and included long periods of time in which
    the Defendant was alone in the interview room, was included in the appellate record.
    -7-
    tried to buy cocaine from Mr. Gilmore on December 20 and that he insulted her. Agent
    Evans agreed that Ms. Mastele was a drug user and that he believed that she was there to
    buy cocaine from the Defendant. The cocaine in Ms. Mastele’s possession tested positive
    for 1.6 grams of cocaine base, which would cost between $14 and $16.
    Tennessee Bureau of Investigation Special Agents Ella Carpenter, Lela Jackson, and
    Cassandra Ann Franklin-Beavers, experts in forensic chemistry, testified that they tested
    the substance collected in the Defendant’s car, the substance Mr. Nelson provided the
    police after the controlled buy, and the substance collected from Ms. Mastele, which were
    4.7 grams of cocaine base, 2.35 grams of cocaine base, and 0.16 gram cocaine base,
    respectively.
    CPD Crash Investigator Bill VanBeber III testified that he used a radar device to
    measure the distance between New Providence Middle School and the Hastings parking
    lot, which was 750 feet. He also measured between the middle school and two locations
    in front of the tobacco store, which were respectively 438 feet and 480 feet.
    Upon this evidence, the jury acquitted the Defendant of resisting arrest and
    convicted him as charged in the remaining counts. After a sentencing hearing, the trial
    court found that the Defendant was a career offender, merged the respective sale and
    delivery counts, ordered concurrent service of the sentences, and imposed an effective
    sixty-year sentence. After the above-referenced procedural issues and being granted post-
    conviction relief, the Defendant filed a delayed motion for new trial, which was denied,
    and timely filed this appeal.
    ANALYSIS
    The Defendant challenges the sufficiency of the evidence supporting the offenses
    related to the cocaine transactions, arguing relative to the transaction with Mr. Nelson that
    the evidence does not establish that a cocaine transaction actually occurred. The Defendant
    contends that the police did not thoroughly search Mr. Nelson and his car, theorizing that
    that Mr. Nelson could have secreted the cocaine on his person and framed the Defendant.
    Relative to the transaction with Ms. Mastele, the Defendant argues that the evidence
    established merely a casual exchange as opposed to a sale or delivery.5 He does not contest
    5
    The Defendant does not contest the sufficiency of the evidence related to his conviction for possession of
    0.5 gram or more of cocaine in a drug-free school zone with the intent to sell, manufacture, or deliver.
    -8-
    that the sales occurred within a drug-free school zone. The State responds that the evidence
    was sufficient to support the convictions.
    An appellate court’s standard of review when a defendant questions the sufficiency
    of the evidence on appeal 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). This
    court does not reweigh the evidence; rather, it presumes that the jury has resolved all
    conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
    of the State. See State v. Sheffield, 
    676 S.W.2d 542
    , 547 (Tenn. 1984); State v. Cabbage,
    
    571 S.W.2d 832
    , 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
    testimony, and the weight and value to be given to evidence were resolved by the jury. See
    State v. Bland, 
    958 S.W.2d 651
    , 659 (Tenn. 1997).
    A guilty verdict “removes the presumption of innocence and replaces it with a
    presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
    evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 
    639 S.W.2d 913
    , 914 (Tenn. 1982). The standard of proof is the same whether the evidence is direct
    or circumstantial. State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn. 2011). Likewise,
    appellate review of the convicting evidence “is the same whether the conviction is based
    upon direct or circumstantial evidence.” 
    Id.
     (quoting State v. Hanson, 
    279 S.W.3d 265
    ,
    275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is not to contemplate
    all plausible inferences in the [d]efendant’s favor, but to draw all reasonable inferences
    from the evidence in favor of the State.” State v. Sisk, 
    343 S.W.3d 60
    , 67 (Tenn. 2011).
    The Defendant was convicted of the sale and delivery of cocaine in violation of
    Tennessee Code Annotated section 39-17-417(b)(4), which makes it a crime to knowingly
    sell or deliver a controlled substance. “[A] person . . . acts knowingly with respect to the
    conduct or to circumstances surrounding the conduct when the person is aware of the nature
    of the conduct or that the circumstances exist.” Tenn. Code Ann. § 39-11-302(b). Cocaine
    is a Schedule II controlled substance. Tenn. Code Ann. § 39-17-406(c)(11). A violation
    of Tennessee Code Annotated section 39-17-417(a)(2) or (3) involving less than 0.5 gram
    of cocaine is a Class C felony. Tenn. Code Ann. § 39-17-417(c)(1). An enhanced criminal
    penalty is imposed if the drug transaction occurs within 1000 feet of a drug-free school
    zone. See Tenn. Code Ann. § 39-17-432(b)(1). Specifically, if a violation of Tennessee
    Code Annotated section 39-17-417 occurs “on the grounds or facilities of any school or
    within one thousand feet (1000') of the real property that comprises a public or private
    elementary school, middle school, [or] secondary school, . . . [the offender] shall be
    -9-
    punished one classification higher than is provided[.]”            Tenn. Code Ann. § 39-17-
    432(b)(1).
    Relative to the transaction involving Mr. Nelson, in the light most favorable to the
    State, the record reflects that Mr. Nelson named the Defendant to the CPD as a person who
    was selling crack cocaine. After Mr. Nelson called the Defendant’s cell phone, they
    arranged to meet at the Hastings parking lot. The CPD searched Mr. Nelson and his car in
    compliance with established protocol and gave him $100 in cash with which to make the
    drug purchase. The officers made photocopies of the bills to document their serial
    numbers. The CPD monitored Mr. Nelson as he drove to the appointed location, exited his
    car, entered the Defendant’s car, reentered his own car, and drove to a rendezvous point to
    surrender the purchased cocaine. When the Defendant was arrested a short time later, the
    serial numbers of several $20 bills found on his person matched those given to Mr. Nelson.
    We note that the Defendant references a handwritten note purportedly composed by
    the late Mr. Nelson, in which he confessed that the Defendant sold him no drugs that day.
    The note was witnessed by a woman named Misty Peak, who testified in an offer of proof
    during trial that Mr. Nelson asked her to witness the letter and deliver it to the Defendant’s
    family in an effort to make amends for having wronged the Defendant. The trial court
    excluded the note, finding that it was inadmissible hearsay. The Defendant notes in his
    brief that any issue related to the admissibility of the note “would be an issue for post-
    conviction, not direct appeal[.]” Because the note was not admitted or considered by the
    jury in rendering its verdict, it is irrelevant to our analysis of the sufficiency of the evidence.
    The Defendant’s argument about the thoroughness of Mr. Nelson’s pre-buy search
    relates to the weight of the evidence, not its sufficiency. The jury heard testimony from
    Sergeant Briggs about the department’s procedures with CIs, and defense counsel
    thoroughly cross-examined the police officers about how Mr. Nelson and his car were
    searched and monitored before the controlled drug buy. By its verdict, the jury credited
    the police testimony that they ensured Mr. Nelson had no drugs, weapons, or cash with
    him. Further, the Defendant told the police in his interview that he was trying to earn
    Christmas money by selling cocaine. The cash seized from the Defendant’s person
    included bills containing the same serial numbers as the ones Mr. Nelson received from
    the police for the controlled buy. In addition, the Defendant had a larger bag of cocaine in
    his car just after the sale to Mr. Nelson. The evidence is sufficient for a reasonable jury to
    have found that the Defendant sold or delivered crack cocaine to Mr. Nelson, and he is not
    entitled to relief on this basis.
    Relative to the transaction involving Ms. Mastele, in the light most favorable to the
    State, the record reflects that after selling Mr. Nelson cocaine, the Defendant drove to a
    nearby tobacco store, where Ms. Mastele got into his car. Ms. Mastele testified that she
    called the Defendant a few minutes prior to their meeting and asked if she could buy crack
    -10-
    cocaine from him. The testimony established that Ms. Mastele was upset during the call
    because she tried to buy cocaine from another dealer, who was rude to her. The Defendant
    told Ms. Mastele to meet him at the tobacco shop, where she paid sixteen dollars for two
    or three rocks of crack cocaine. As Ms. Mastele exited the Defendant’s car, Agent Evans
    and Officer Hankins confronted her, and she admitted to having bought drugs from the
    Defendant. After the Defendant was removed from his car, officers found a bag containing
    4.7 grams of crack cocaine underneath the driver’s seat. In his police interview, the
    Defendant described his activities that day as trying to earn money for Christmas.
    The offense of casual exchange is defined by Tennessee Code Annotated Section
    39-17-418(a), which provides: “It is an offense for a person to knowingly possess or
    casually exchange a controlled substance” without a valid prescription. Additionally, the
    inference of casual exchange is located in the second sentence of Tennessee Code
    Annotated section 39-17-419:
    It may be inferred from the amount of a controlled substance or
    substances possessed by an offender, along with other relevant facts
    surrounding the arrest, that the controlled substance or substances were
    possessed with the purpose of selling or otherwise dispensing. It may be
    inferred from circumstances indicating a casual exchange among individuals
    of a small amount of a controlled substance or substances that the controlled
    substance or substances so exchanged were possessed not with the purpose
    of selling or otherwise dispensing in violation of the provisions of § 39-17-
    417(a). The inferences shall be transmitted to the jury by the trial judge’s
    charge, and the jury will consider the inferences along with the nature of the
    substance possessed when affixing the penalty.
    An exchange means “to part with, give or transfer consideration of something
    received as an equivalent,” and the term casual means “without design.” State v. Helton,
    
    507 S.W.2d 117
    , 120 (Tenn. 1974). This court has concluded that the offense of casual
    exchange “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). A transaction will not be deemed a casual exchange if there was
    a design or previous plan to make the exchange. State v. Carey, 
    914 S.W.2d 93
    , 96 (Tenn.
    Crim. App. 1995); Loveday v. State, 
    546 S.W.2d 822
    , 826 (Tenn. Crim. App. 1976).
    Whether a transfer is a casual exchange is to be determined from all facts and
    circumstances of the case. Helton, 
    507 S.W.2d at 121
    .
    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
    -11-
    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) (internal 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 record contains no evidence that the Defendant was giving the drugs to Ms.
    Mastele out of friendship or as a friendly gesture; to the contrary, the evidence shows that
    the Ms. Mastele contacted the Defendant specifically to arrange a cocaine sale. Although
    Ms. Mastele confirmed that she was upset, she did not characterize the call as one between
    friends in which she sought consolation about the incident of rudeness. Likewise, during
    the Defendant’s police interview, he stated only that he was familiar with Ms. Mastele
    because his uncle “messed with” her, and he never asserted that he gave or sold her the
    cocaine in response to her emotional state. The Defendant arranged the meeting place for
    the sale, which was close in time and proximity to his other sale to Mr. Nelson. The
    Defendant’s argument about casual exchange is contradicted by his own statement that he
    was selling cocaine to earn money for Christmas. The evidence was sufficient for the jury
    to conclude that the Defendant intended the encounter with Ms. Mastele to be a business
    transaction rather than a casual exchange. He is not entitled to relief on this basis.
    CONCLUSION
    In light of the foregoing and the record as a whole, we affirm the judgments of the
    trial court.
    _________________________________
    D. KELLY THOMAS, JR., JUDGE
    -12-
    

Document Info

Docket Number: M2020-01365-CCA-R3-CD

Judges: Judge D. Kelly Thomas, Jr.

Filed Date: 12/13/2021

Precedential Status: Precedential

Modified Date: 12/13/2021