State of Tennessee v. Johnnie Ray Ashford

09/01/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 10, 2017
STATE OF TENNESSEE v. JOHNNIE RAY ASHFORD
Appeal from the Criminal Court for Davidson County
No. 2016-B-537 Cheryl Blackburn, Judge
No. M2016-01558-CCA-R3-CD
A Davidson County Criminal Court Jury convicted the Appellant, Johnnie Ray Ashford,
of possession of a Schedule II controlled substance with intent to sell or deliver, a Class
C felony, and attempting to sell a Schedule II controlled substance, a Class D felony, and
he received an effective three-year sentence to be served on supervised probation. On
appeal, the Appellant contends that the trial court erred by denying his motion to suppress
evidence, that the trial court improperly limited his cross-examination of a State witness
regarding the witness’s potential bias, that the evidence is insufficient to support the
convictions, and that the prosecutor committed prosecutorial misconduct during closing
arguments. Based upon the record and the parties’ briefs, we affirm the judgments of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT H. MONTGOMERY, JR., JJ., joined.
Emma Rae Tennent (on appeal) and Patrick Hakes and Julie Bigsby (at trial), Nashville,
Tennessee, for the appellant, Johnnie Ray Ashford.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In May 2016, the Appellant was tried for selling oxycodone, a Schedule II
controlled substance, and possessing oxycodone with intent to sell or deliver. At trial,
Lonnie Tomberlind testified that about 10:00 a.m. on October 3, 2014, he met Debra
Hudson at Hudson’s mother’s house. Denise Ryan joined them, and the three of them
went to a “strip mall” at Briley Parkway and Glastonbury Road in Nashville. Ryan was
driving, Hudson was sitting in the front passenger seat, and Tomberlind was sitting in the
back seat. He said they went there to buy pills from the Appellant.
Tomberlind testified that when they arrived, the Appellant got into the back seat of
Ryan’s car and that he bought three oxycodone pills from the Appellant for nine dollars
each. He said that he also gave the Appellant six dollars he owed the Appellant for a loan
and that he thought Hudson paid the Appellant forty-five dollars for nine pills.
Tomberlind saw the police “running up” and swallowed his three pills with Red Bull. He
said that the police questioned him and that he eventually told them he bought oxycodone
from the Appellant.
On cross-examination, Tomberlind acknowledged that he and the Appellant were
friends. He also acknowledged that he told David Zoccola, an investigator from the
prosecutor’s office, that he had not been in trouble since October 3, 2014, the day of the
drug buy. That statement was incorrect, though, because he had been charged with
shoplifting. He described the shoplifting charge as “a little misdemeanor” and said he
pled guilty to theft in December 2015. Tomberlind also acknowledged telling Zoccola
that the five pills Hudson bought from the Appellant “disappeared from the scene” and
that he thought the police gave the pills to a “whore.” He said the police also “could have
ate them themselves.” Tomberlind said he did not remember telling Zoccola that the pills
he bought from the Appellant cost seven or eight dollars each, and he acknowledged
telling defense counsel before trial that he went to the strip mall on October 3 to pay the
Appellant money he owed for a loan. Tomberlind said that he and the Appellant did not
talk about any health problems on October 3 but acknowledged telling the police that the
Appellant asked him some questions about cancer.
Tomberlind testified that after he bought pills from the Appellant, the police wrote
him a citation for simple possession and let him go. He said that he later pled guilty to
the charge but that it was expunged from his record. He acknowledged that the officers
threatened to take him to jail if he did not tell them the Appellant sold him pills.
On redirect examination, Tomberlind testified that he told the officers the truth
about buying pills from the Appellant. He acknowledged lying to defense counsel about
why he went to the strip mall on October 3 but explained, “I really wanted to be on [the
Appellant’s] side. He had cancer, and I really didn’t want to see him go to jail. And
that’s why I said that.” He acknowledged that he was subpoenaed to testify by the State
and that he did not want to testify against the Appellant.
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Debra Hudson testified that Tomberlind and Ryan met her at her mother’s home
on the morning of October 3, 2014. Hudson then telephoned the Appellant “to get
drugs.” She specifically wanted Percocet, also known as oxycodone. When Hudson,
Ryan, and Tomberlind arrived at the strip mall in Ryan’s car, the Appellant got into the
car with them and sold Hudson five pills for nine dollars each. The Appellant also sold
pills to Ryan, but Hudson did not know if he sold any pills to Tomberlind. Hudson
acknowledged that police officers approached the car after the sale and that she spoke
with them.
On cross-examination, Hudson acknowledged telling defense counsel that the
Appellant never sold her any pills. She said she lied to defense counsel. She also
acknowledged telling Zoccola, the State’s investigator, on the telephone on April 26,
2016, that she did not get any pills from the Appellant. Later that day, Zoccola came to
Hudson’s house, and she told him the truth about buying pills from the Appellant. She
said she changed her story because Zoccola explained that she would go to jail if she
perjured herself. Hudson acknowledged that after the police approached Ryan’s car, she
threw the five pills she had bought onto the floor. She said she did so because she was
scared and thought the police would believe the pills belonged to Ryan. The police cited
Hudson for simple possession.
On redirect examination, Hudson testified that when she spoke with Zoccola on
April 26, 2016, she also told him that Tomberlind owed money to the Appellant, which
was true. However, the main reason she, Ryan, and Tomberlind met with the Appellant
on October 3, 2014, was to buy drugs from him. Hudson acknowledged that she was
subpoenaed to the Appellant’s trial and that she did not want to testify against him.
Detective Andrew Grega of the Metropolitan Nashville Police Department
(MNPD) testified that in October 2014, he was working in an “undercover capacity” in
the Hermitage Crime Suppression Unit. He explained that the Unit “hit the hot spots in
the precinct. We did parking lot surveillance, we did drug buys, we did quote unquote
buy busts. We focused on the heavy crime areas.” On the morning of October 3, 2014,
Detective Grega went to a strip mall parking lot at the intersection of Briley Parkway and
Glastonbury Road to meet with his fellow team members. He was driving an unmarked
black Ford pickup truck, and Detective Jonathan Spurlock was riding with him. The
officers were in plain clothes but were wearing tactical vests marked with police badges
and logos.
Detective Grega testified that he and Detective Spurlock parked in the parking lot
and began watching a Mercedes1 and a Buick. He said that the two cars were parked on
1
Detective Grega testified at trial that the car was a Volvo or Mercedes and testified at the
hearing on the motion to suppress that the car was a Volvo. However, Denise Ryan, the driver of the car,
testified at trial that it was a Mercedes. Therefore, we will refer to the car as a Mercedes.
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the side of the building and that “that side of the building was vacant, so there really
wasn’t any reason for anybody to be parking over there.” Three people were in the
Mercedes, and one person was in the Buick. Detective Grega said that based on his
experience, he believed the people in the Mercedes were “waiting on drugs.”
Detective Grega testified that he was parked to the right of the Mercedes and that
he could see down into the car. The Appellant got out of the Buick, which was parked to
the left of the Mercedes, and got into the back seat of the Mercedes, behind the driver.
Detective Grega stated, “There was an exchange of quick talk, and then everybody [was]
focused -- everybody that was already in the vehicle was focused on [the Appellant] who
was in the backseat. You could see an exchange of money for some sort of item. You
couldn’t tell what it was.” Detective Grega saw Hudson, who was sitting in the front
passenger seat, and Tomberlind, who was sitting in the back seat with the Appellant,
hand money to the Appellant. The Appellant then got out of the Mercedes. He had
money in his hand and walked back toward the Buick. Detective Grega said the
transaction was “quick,” lasting only thirty seconds to one minute.
Detective Grega testified that at that point, he and Detective Spurlock exited the
truck and “made contact with everybody involved.” Detective Grega approached the
Mercedes. He said that he and Tomberlind looked at each other; that Tomberlind had an
“oh, crap, moment”; and that Tomberlind “took a pill that was in his hand and put it
directly into his mouth and swallowed it.” Detective Grega also saw a pill in a clear
cigarette wrapper. The wrapper was “stuffed” between the front passenger seat and the
center console. Detective Grega stated that “[p]ills don’t belong in cigarette wrappers”
and that “you see that a lot in narcotics transactions.”
Detective Grega testified that he and Detective Spurlock had the three people in
the Mercedes get out of the vehicle because “I believed we [had] just witnessed a
narcotics transaction, and Mr. [Tomberlind’s] actions started to verify that.” The
detectives read Miranda warnings to Ryan, Hudson, and Tomberlind, and Detective
Grega determined that the pill in the cigarette wrapper was Percocet. He read Miranda
warnings to the Appellant, whom he had never seen before that day, and the Appellant
agreed to talk with him. The Appellant told Detective Grega that he was sick, needed
money, and met Hudson, Tomberlind, and Ryan at the strip mall in order to sell them
pills for nine dollars per pill. Detective Grega searched the Buick and found a
prescription bottle for Percocet in the glove box. According to the label on the bottle, the
Appellant had filled the prescription for ninety pills the previous day. Fifty-four pills
remained in the bottle, and thirty-six pills were missing. Detective Grega calculated that
if the Appellant had sold thirty-six pills for nine dollars each, the Appellant would have
had $324. Detective Grega found $320 on the Appellant’s person and arrested him.
Detective Grega issued citations to Hudson and Tomberlind for simple possession. He
did not issue a citation to Ryan because she was “just driving.”
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On cross-examination, Detective Grega testified that he was not conducting
surveillance on the parking lot on October 3 and that the parking lot was not in a high-
crime area. He acknowledged that he filled out the incident report for this case and that
he did not mention the hand-to-hand drug transaction or the Appellant’s admission about
selling pills in the report. Detective Grega testified at a hearing two months after the
incident and also did not mention the hand-to-hand transaction during the hearing.
However, he testified at the hearing that he saw money in the Appellant’s hand. Defense
counsel asked if Detective Grega was parked “right next to” the Mercedes, and he
answered, “Not right next to them, no. . . . A couple of spots over.” He said he did not
recall testifying at a previous hearing that he did not remember where he was parked.
On redirect examination, Detective Grega testified that he also filled out forfeiture
and arrest warrants in this case. In the forfeiture warrant, he stated that he saw the
Appellant conduct a transaction with the passengers in the back seat and the front seat
and that the Appellant said he sold oxycodone pills to the two passengers for nine dollars
per pill. Detective Grega stated in the arrest warrant that the Appellant admitted to
selling pills.
Detective Jonathan Spurlock testified that he and Detective Grega went to the strip
mall parking lot on the morning of October 3, 2014, but that they were not there to
conduct surveillance. When they pulled into the parking lot, they saw a Mercedes with
four people in the car. A Buick was parked to the left of the Mercedes, and no one was in
the Buick.
Detective Spurlock testified that he and Detective Grega began watching the
Mercedes and that the people in the car could have been dealing narcotics or “simply
there hanging out.” Detective Grega’s truck was “one spot over from the Mercedes,” and
Detective Spurlock could see into the car. The Appellant, who was in the back seat, had
money in his hand and was talking to the driver and the front passenger. Detective
Spurlock saw “several hand movements back and forth” and saw the Appellant receive
money from the front passenger. Detective Spurlock did not see any other exchange and
thought he had just witnessed a drug deal.
Detective Spurlock testified that the Appellant got back into the Buick and that
“[a]t that time we said, let’s just make contact.” Detective Spurlock approached the
Appellant and began speaking with him. He told the Appellant his name and asked what
the Appellant was doing in the area. The Appellant seemed nervous and could not give
Detective Spurlock a “straight” answer. During their conversation, Detective Spurlock
heard Detective Grega say that pills were in the Mercedes. At that point, the officers
began “making the scene safe” and had everyone get out of the cars. Detective Grega
read Miranda warnings to the Appellant, and the Appellant agreed to talk with him. The
Appellant told Detective Grega that “he was there to sell the prescription that he had to
make money.” The Appellant said he had cancer and needed to sell the pills. Detective
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Spurlock searched the Appellant and found $320 on his person. The money consisted of
fourteen twenty-dollar bills and four ten-dollar bills; no five- or one-dollar bills were
found.
On cross-examination, Detective Spurlock testified that he thought he saw money
in the Appellant’s hand when the Appellant got out of the Mercedes. However, he
acknowledged testifying at a prior hearing that he did not see money in the Appellant’s
hand.
At the conclusion of Detective Spurlock’s testimony, the parties stipulated that the
pill found in the Mercedes and the pills found in the prescription bottle were oxycodone.
The State rested its case.
Denise Ryan testified that on October 3, 2014, she “gave some people a ride to
pay [the Appellant] some money they owed him.” Ryan did not drive Hudson and
Tomberlind to the parking lot in order for them to buy drugs, and she did not buy
prescription medication from the Appellant. At that time, Ryan had her own prescription
for Percocet due to cancer, and her pill bottle was in her purse.
On cross-examination, Ryan denied telling Detective Grega that she drove Hudson
and Tomberlind to the parking lot to buy drugs. She said she told him that she drove
them there to pay a debt they owed. She denied knowing the police found a pill inside a
cigarette wrapper in her car.
Toni Ashford, the Appellant’s wife, identified the prescription bottle found in his
car on October 3, 2014, and testified that she “fix[ed]” the Appellant’s medication every
week by filling his seven-day pill container. The Appellant filled his prescription for
Percocet on October 2 and consumed three pills that day as prescribed. Mrs. Ashford
removed another twenty-one pills from the bottle and put them into the Appellant’s
weekly pill container. In October 2014, the Appellant and Mrs. Ashford lived in an
apartment and paid $625 per month in rent. The Appellant paid $300 in the first part of
the month when he received his Social Security check, and Mrs. Ashford paid the
remaining $325 on the fifteenth day of the month. She said that they paid their rent with
money orders and that the Appellant “was going to get his money order there at the [little
Mexican store]” when he was arrested. She said she had never known the Appellant to
sell drugs.
On cross-examination, Mrs. Ashford testified that their home was small and that
the Appellant’s Percocet bottle was in the Buick’s glove box on October 3 so that their
grandchildren would not find the pills. The police seized the Appellant’s rent money that
day, so Mrs. Ashford had to borrow $300 to pay the rent. She denied that their financial
situation was “tight.” She acknowledged that she did not see what happened in the
Mercedes.
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At the conclusion of the proof, the jury found the Appellant guilty as charged of
possession with intent to sell or deliver oxycodone, a Class C felony, and attempting to
sell oxycodone, a Class D felony, as a lesser-included offense of selling oxycodone.
After a sentencing hearing, the trial court ordered that the Appellant serve concurrent
sentences of three and two years, respectively, and ordered that he serve the sentences on
supervised probation.
A. Motion to Suppress
The Appellant contends that the trial court erred by denying his pretrial motion to
suppress the ninety-count prescription bottle for oxycodone, which contained fifty-four
pills. He also contends that the statements he made to Detectives Grega and Spurlock
after his arrest should be suppressed. He claims that while the officers’ initial contact
with him may have been a brief investigatory stop, it quickly escalated into a full-scale
arrest for which they had no probable cause. The State argues that the trial court properly
denied the motion because the officers’ initial interaction with the Appellant was a brief
police-citizen encounter that did not implicate constitutional protections. The State also
argues that Detective Grega’s seeing Tomberlind swallow pills quickly provided the
officers with reasonable suspicion to detain the Appellant and that Detective Grega’s
speaking with the occupants of the Mercedes resulted in probable cause for the
Appellant’s arrest. We conclude that the trial court properly denied the motion to
suppress.
At the suppression hearing, Detective Grega testified that on the morning of
October 3, 2014, he and his fellow Unit members were to meet in a strip mall parking lot
on Briley Parkway. Sergeant James King arrived first, contacted Detectives Grega and
Spurlock, and told them about “what he was observing.” When the two detectives
arrived in the parking lot, they conducted surveillance on two cars, a Buick and a
Mercedes, that were parked beside each other. The Appellant exited the Buick and got
into the back seat of the Mercedes. Detective Grega stated as follows: “There was a
transaction of an item between the backseat passenger and the front seat passenger. He
gave those individuals an item, and they returned to him currency.” The transaction
lasted thirty seconds to one minute, and the Appellant got out of the Mercedes. He had
money in his hand and walked back to the Buick. The State asked if the parking lot was
in a high-crime area, and Detective Grega said no. He acknowledged that based upon his
training and experience, he thought he had just witnessed a drug transaction.
Detective Grega testified that he got out of his unmarked vehicle and approached
the Mercedes. Two females and one male were in the car, and Detective Grega was
clearly marked as a police officer. When the male occupant saw Detective Grega, he
swallowed a pill in his hand. Detective Grega also saw a pill in a clear cigarette wrapper,
and the wrapper looked as if it had just been stuffed between the center console and the
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front passenger seat. Detective Grega stated that after he saw the pill, he had the three
people exit the Mercedes and gave them Miranda warnings. The female driver told him
that she brought the two passengers to the parking lot to buy oxycodone from the
Appellant, and the two passengers told him they bought pills from the Appellant for nine
dollars per pill.
Detective Grega testified that he also gave Miranda warnings to the Appellant and
that the Appellant agreed to speak with him. The Appellant told the officer that he sold
the two passengers oxycodone pills for nine dollars per pill. The Appellant said he had
just been diagnosed with lung cancer and was trying to make some extra money.
Detective Grega arrested the Appellant, searched him, and found $320 on his person. He
also searched the Buick and found an oxycodone prescription bottle that had been filled
with ninety pills on October 2. Detective Grega stated, “$9 a pill from that fifty-four
comes out to be about [$]320, [$]324.”
On cross-examination, Detective Grega testified that he was in his vehicle less
than ten minutes before he got out and approached the Mercedes. At first, he stated that
he was “maybe” parked a couple of spaces from the Mercedes. However, he then
acknowledged that he did not remember where he was parked but said he had a clear line
of sight to the Mercedes. Detective Grega could not see the item that was exchanged
between the Appellant and the passengers or the amount of money involved. He also
could not hear the conversation in the Mercedes. After the transaction, the Appellant got
out of the Mercedes and walked, not ran, back to the Buick, and Detective Grega did not
see the Appellant with any drugs or drug paraphernalia. Detectives Grega and Spurlock
got out of their vehicle, and Detective Grega walked to the Mercedes while Detective
Spurlock walked to the Buick.
Detective Grega testified that when he approached the Mercedes, the male
passenger put a pill in his mouth, which immediately attracted the detective’s attention.
Detective Grega got everyone out of the Mercedes and read Miranda warnings to the
three of them at the same time. Detective Grega then turned his attention to the
Appellant. He did not remember the Appellant’s telling him that the money on his person
was “rent money.” Detective Grega told the Appellant that he had spoken with the
people in the Mercedes. However, he did not think he told the Appellant that the
passengers in the Mercedes would go to jail if the Appellant did not cooperate. Detective
Grega said that he did not want to take the Appellant to jail because the Appellant was
elderly but that “I had reason to believe he had just sold pills to somebody.” Detective
Grega said he later helped the Appellant by requesting that the commissioner not set a
high bond. He acknowledged that he did not mention seeing a hand-to-hand transaction
during the Appellant’s preliminary hearing.
At the conclusion of Detective Grega’s testimony, the following exchange
occurred:
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THE COURT: I’m trying to find out your articulable
facts about why you stopped Mr. Ashford. What about the
behavior other than he got in a car, you saw him getting out
with cash, that would lead you to believe it was a crime as
opposed to selling something from Craigslist or something
like that? People do that in parking lots all the time to their
detriment sometimes but -- do you see what I’m saying?
THE WITNESS: I see what you’re saying.
THE COURT: I’m saying what is your articulable fact
that this was a crime?
THE WITNESS: He -- he got into the vehicle with
nothing in his hands and got out of the vehicle with money in
his hands.
THE COURT: Okay.
THE WITNESS: We walk up to the vehicle -- I walk
up to the [Mercedes] and see --
THE COURT: Okay. But I’m talking about the time
he was stopped. I want to know what you knew when he was
stopped.
....
THE WITNESS: I don’t know that I knew anything
when he was stopped.
Detective Spurlock testified that on October 3, 2014, Sergeant King reported on
the radio that two vehicles were in a parking lot at Briley Parkway and Glastonbury
Road, that the cars were “side by side” or in close proximity to each other, and that he
saw the occupant of one car get into the other car. Detective Spurlock said that based on
Sergeant King’s information, he and Detective Grega “went to investigate” and “sat on it
for a minute.” The detectives could see clearly into the Mercedes and saw the Appellant
sitting in the back seat, behind the driver. They also saw “the money and hand exchange
within that vehicle.” Subsequently, the Appellant got out of the car, went back to his
vehicle, and got into the vehicle. Detective Spurlock stated that “we pulled to the right of
him, not blocking him in, got out, made contact with him.” Detective Spurlock asked
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what the Appellant was doing in the area, and the Appellant seemed nervous. Detective
Spurlock said, “At that point I think Detective Grega observed something in the other
vehicle and said, let’s get them out and start talking to them. I later found out that he saw
some pills in plain view and somebody swallowed some from the other vehicle.” The
officers got the Appellant out of his car and read Miranda warnings to him. The
Appellant told the officers that “he was there to sell those pills that he recently got for $9
a piece.”
On cross-examination, Detective Spurlock testified that he and Detective Grega
watched the two cars for five or six minutes. Regarding the exchange inside the
Mercedes, Detective Spurlock saw “[j]ust money and something else.” The Appellant
returned to his car after the exchange, and Detective Spurlock did not see any money in
the Appellant’s hands. After the Appellant got back into his car, Detective Grega pulled
up to the right of the Mercedes, not to the left of the Appellant’s car. Detective Spurlock
approached the Appellant’s vehicle while Detective Grega approached the Mercedes.
Defense counsel then asked, “Mr. Ashford was not free to leave once you encountered
him?” Detective Spurlock answered, “No, ma’am.” He acknowledged that he never saw
any drugs exchange hands but said, “I had reasonable suspicion something illegal [had
occurred].”
Upon being questioned by the trial court, Detective Spurlock testified that while
he was speaking with the Appellant, he heard Detective Grega say “[t]hat he observed
something in plain view, a pill.” Detective Spurlock got the Appellant out of his car and
“patted him down.” Defense counsel resumed its questioning of the witness, and the
following exchange occurred:
Q. . . . Just to be clear, Detective, you approached Mr.
Ashford once he exited the [Mercedes]?
A. Correct.
Q. And you went up to his car?
A. Yes, ma’am.
Q. And you told him to get out of his car?
A. Not initially but eventually, yes.
Q. Upon your approach to the car Mr. Ashford was
not free to leave?
[THE STATE]: Your Honor --
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THE WITNESS: Yes. I mean, at a point -- it was
really quick at the time. Detective Grega saw what he saw,
and I just started talking to him. It was maybe within a few
seconds.
Q. . . . But you talked to Mr. Ashford first?
A. Uh-huh.
Q. And then you heard on the radio that there may be
pills in the other car?
A. It wasn’t on the radio. It was like just a few feet
away.
Q. Then you heard Detective Grega say [there] were
pills?
A. Yeah. After me walking up to him, he was free to
leave at the initial first couple of words that came out of my
mouth. But then it was several seconds later that he saw
something.
Q. It’s your testimony today that you didn’t grab him?
A. No.
Q. Okay. And you didn’t know about the pills upon
your initial approach at the point of the initial conversation?
A. Just reasonable suspicion.
Q. But you didn’t know?
A. No.
The Appellant testified that he was diagnosed with lung cancer in 2014. On the
morning of October 3, he was on his way to get a money order for his rent. The
Appellant always paid $300 in rent from his Social Security check, and his wife paid
$300. The Appellant pulled into the parking lot at the strip mall on Briley Parkway and
waited for the Mercedes because he wanted to ask the people in the Mercedes about the
kind of pain medication he should be taking for his cancer. The Appellant’s bottle of
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pain medication was in the console of his car, and he did not have any pills in his pocket.
The Appellant said he did not go to the strip mall to sell pills.
The Appellant testified that when his friends arrived in the Mercedes, he got into
the Mercedes for six or seven minutes. While he was in the car, Tomberlind paid him
five dollars Tomberlind owed him. The Appellant got out of the Mercedes and started to
put the money into his pocket with his rent money. However, he never made it back to
his car because Detective Spurlock immediately grabbed him, “shook [him] up,” and
wanted to know what he was doing there. The detective was wearing civilian clothes,
and the Appellant did not know he was a police officer.
The Appellant testified that another officer “drove up,” started talking to him, and
asked if he was willing to make a “buy.” The Appellant told the officer that he did not
know what a “buy” was, and the officer said the Appellant was going to jail. The officers
handcuffed the Appellant, and he did not hear them read Miranda warnings. The
Appellant said that he did not tell the officers he had sold pills and that he heard the
officers “badgering” Tomberlind by telling Tomberlind that “you’re going to tell me this
or you’re going to jail with him.”
On cross-examination, the Appellant testified that he was disabled, was
unemployed, and had obtained the cash for his rent that morning at Walmart. After
Detective Spurlock grabbed him, the Appellant told Detective Spurlock that he was sick.
The Appellant said that Detective Spurlock “[s]lung” him around and that he did not see
a police vest on the officer. The Appellant denied telling the officers that he sold pills to
the passengers of the Mercedes for nine dollars each. He said that after the officers
seized his pill bottle, they took the bottle to their truck and started counting the pills. The
Appellant saw the officers drop at least five pills on the ground but did not see them pick
up the pills.
Upon being questioned by the trial court, the Appellant said that prior to his arrest
that morning, he was on his way to a liquor store to get the money order for his rent. He
said he did not know why he did not get the money order while he was at Walmart.
In a written order, the trial court denied the motion to suppress. The court found
that Detective Spurlock initially made a brief investigatory stop of the Appellant and that
the officers’ witnessing “a hand-to-hand [drug] transaction” in the Mercedes provided
them with reasonable suspicion for the stop. The court also found that even though the
stop quickly turned into a full detention, the detention was supported by probable cause
because Detective Grega witnessed Tomberlind swallow a pill and saw a pill in plain
view in the Mercedes.
In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
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resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review the trial court’s application of
law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Furthermore, the prevailing party is “entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. We note
that “in evaluating the correctness of a trial court’s ruling on a pretrial motion to
suppress, appellate courts may consider the proof adduced both at the suppression
hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect citizens against “unreasonable searches and seizures.”
In general, warrantless searches and seizures are presumptively unreasonable and any
evidence obtained as a result of the warrantless action is subject to suppression. State v.
Richards, 286 S.W.3d 873, 878 (Tenn. 2009). However, if the State “demonstrates by a
preponderance of the evidence that the search or seizure was conducted pursuant to an
exception to the warrant requirement,” the evidence will not be suppressed. State v.
Keith, 978 S.W.2d 861, 865 (Tenn. 1998). Our courts have thus articulated three
categories of police-citizen interaction and their corresponding evidentiary requirements:
“(1) full-scale arrest, which must be supported by probable cause; (2) brief investigatory
detention, which must be supported by reasonable suspicion of criminal activity; and (3)
brief police-citizen encounter that requires no objective justification.” State v. Hanning,
296 S.W.3d 44, 48 (Tenn. 2009) (citations omitted).
An “officer may approach an individual in a public place and ask questions
without implicating constitutional protections” even when there is no basis for suspecting
criminal activity. State v. Daniel, 12 S.W.3d 420, 425 (Tenn. 2000). “‘Only when the
officer, by means of physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a ‘seizure’ has occurred.’” Id. at 424 (quoting
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). In other words, “a ‘seizure’ implicating
constitutional concerns occurs only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he or she was not free to leave.”
Id. at 425. In determining when an encounter becomes a seizure, a court should consider
all of the circumstances pertaining to the encounter. Id. Some relevant factors are as
follows:
the time, place and purpose of the encounter; the words used
by the officer; the officer’s tone of voice and general
demeanor; the officer’s statements to others who were present
during the encounter; the threatening presence of several
officers; the display of a weapon by an officer; and the
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physical touching of the person of the citizen.
Id. at 426.
“Reasonable suspicion” for a detention is “a particularized and objective basis for
suspecting the subject of a stop of criminal activity.” State v. Binette, 33 S.W.3d 215,
218 (Tenn. 2000) (citing Ornelas v. United States, 517 U.S. 690, 696 (1996)). “The
specific and articulable facts must be judged by an objective standard, not the subjective
beliefs of the officer making the stop.” State v. Norword, 938 S.W.2d 23, 25 (Tenn.
Crim. App. 1996) (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
Accordingly, in evaluating the validity of an investigatory stop, a court must consider the
totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989); State v.
Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).
A full-scale arrest
is more specifically defined as the “taking, seizing, or
detaining of the person of another, either by touching or
putting hands on him, or by any act which indicates an
intention to take him into custody and subjects the person
arrested to the actual control and will of the person making
the arrest.” An arrest may be affected without formal words
or a station house booking. However, there must be actual
restraint on the arrestee’s freedom of movement under legal
authority of the arresting officer.
State v. Crutcher, 989 S.W.2d 295, 301-02 (Tenn. 1999) (citations omitted). “Probable
cause for an arrest without a warrant exists if, at the time of the arrest, the facts and
circumstances within the knowledge of the officers, and of which they had reasonably
trustworthy information, are ‘sufficient to warrant a prudent man in believing that the
[defendant] had committed or was committing an offense.’” State v. Bridges, 963
S.W.2d 487 (Tenn. 1997) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
Turning to the instant case, Detective Spurlock testified that he approached the
Appellant, who was sitting in his car, and asked what he was doing in the area. The
officer did not draw his weapon, use any physical force or show of authority, or block the
Appellant’s car with the officer’s truck. Although the Appellant testified that Detective
Spurlock approached him as soon as he got out of the Mercedes and grabbed him,
Detective Spurlock testified that he approached the Appellant after the Appellant got
back into his car and that he did not touch the Appellant. The trial court obviously
accredited the officer’s testimony over that of the Appellant. Accordingly, based upon
our de novo review, we conclude that the Appellant was not seized or detained when
Detective Spurlock initially approached the Appellant.
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Almost immediately thereafter, though, Detective Grega saw Tomberlind swallow
a pill and saw a pill in plain view in the Mercedes. Detective Grega’s observations
confirmed that the item exchanged in the Mercedes was drugs. Detective Spurlock
testified at the suppression hearing and at trial that he heard Detective Grega call out
something about what he had seen. At that point, Detective Spurlock’s brief police-
citizen encounter with the Appellant turned into a full-scale arrest as he got the Appellant
out of the Buick, read Miranda warnings to the Appellant, and questioned the Appellant
further. However, Detective Spurlock had probable cause for the Appellant’s arrest.
Thus, we affirm the trial court’s denial of the motion to suppress.
B. Cross-examination of Lonnie Tomberlind
The Appellant contends that the trial court erred by preventing him from cross-
examining Lonnie Tomberlind about an unrelated pending charge because the charge
related to Tomberlind’s potential bias in favor of the State. The State acknowledges that
the trial court erred but argues that the error was harmless. We agree with the State.
During a jury-out hearing, defense counsel advised the trial court that he wanted to
question Tomberlind in front of the jury about Tomberlind’s having a pending
harassment charge. Defense counsel stated, “That’s the only thing I will ask, that it’s
here in Davidson County and it’s with the same office that is prosecuting this case, and
that will be it.” The trial court stated that while bias was always relevant, a witness’s
merely having a pending charge did not necessarily show bias. The trial court refused to
let defense counsel question Tomberlind, stating that “you haven’t shown anything other
than he’s been charged.”
Tennessee Rule of Evidence 616 provides that a party “may offer evidence by
cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or
prejudiced against a party or another witness.” As noted by the Advisory Commission
Comment, “[b]ias is an important ground for impeachment.” “The right to explore or
examine witnesses for bias is a fundamental right.” State v. Sayles, 49 S.W.3d 275, 279
(Tenn. 2001). Furthermore, “[a]n undue restriction of this right may violate a defendant’s
right to confrontation under the Sixth Amendment of the United States Constitution and
Article I, Section 9, of the Tennessee Constitution.” Id. We will uphold the trial court’s
decision absent an abuse of discretion. Id.
As this court has explained, the potential for bias exists “[i]f a witness has a
pending criminal charge in the same jurisdiction in which he or she is testifying at trial . .
. [because] there is certainly possibility that the prosecutor’s office is going to take
favorable testimony into account when subsequently prosecuting the witness’s pending
charge.” State v. Eric James Taylor, No. E2002-00966-CCA-R3-CD, 2003 WL
21542464, at *5 (Tenn. Crim. App. at Knoxville, July 9, 2003). Therefore, the court
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should have allowed defense counsel to ask Tomberlind about his having a pending
criminal charge in Davidson County.
Next, we must determine the effect of the trial court’s error. Like other
Confrontation Clause errors, the trial court’s failure to allow the Appellant to question
Tomberlind about his potential bias is a non-structural constitutional error. Delaware v.
Van Arsdall, 475 U.S. 673, 681 (1986); Sayles, 49 S.W.3d 275 at 280. Such errors do
not require automatic reversal and are subject to harmless error analysis. State v.
Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). “However, the burden on the State to
demonstrate that a non-structural constitutional error is harmless remains quite stringent.
The existence of a non-structural constitutional error requires reversal unless the State
demonstrates beyond a reasonable doubt that the error is harmless.” Id. The test to be
applied is “whether it appears ‘beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.’” Id. (quoting State v. Allen, 69 S.W.3d 181,
190 (Tenn. 2002)).
As noted by the State, Debra Hudson also testified that the Appellant sold her pills
on October 3, 2014. Furthermore, Detectives Grega and Spurlock testified that the
Appellant admitted to selling pills to the passengers in the Mercedes; that a pill-count of
the Appellant’s prescription bottle, filled just the previous day, revealed thirty-six pills
were missing; and that a calculation of the missing pills being sold for nine dollars each
was almost the exact amount of money found on the Appellant’s person. Finally, defense
counsel still exposed Tomberlind’s potential for bias by revealing that he was charged
only with and pled guilty to simple possession, which was expunged from his record, and
by having Tomberlind admit on cross-examination that the officers threatened to take him
to jail if he did not tell them the Appellant sold him pills. Thus, we agree with the State
that the error was harmless.
C. Sufficiency of the Evidence
The Appellant contends that the evidence is insufficient to support the convictions
because neither detective saw the item that was exchanged for money, no five- or one-
dollar bills were found on the Appellant’s person even though he allegedly was selling
pills for nine dollars each, the detectives found only one pill in the Mercedes, Tomberlind
gave “confusing and inconsistent” testimony regarding his purpose for meeting the
Appellant, and the Appellant’s wife explained to the jury why many pills were missing
from his prescription bottle. The State argues that the evidence is sufficient. We agree
with the State.
When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate 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
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U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the
same whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
Taken in the light most favorable to the State, the evidence shows that the
Appellant got into the back of the Mercedes and that he exchanged an item for money
with at least one of the passengers. He then got out of the car and had the money in his
hand. Both Tomberlind and Hudson testified that they bought oxycodone pills from the
Appellant, Detective Grega saw Tomberlind swallow pills, and Detective Grega found
one oxycodone pill in the Mercedes. When the officers questioned the Appellant, he told
them that he had sold pills to the passengers for nine dollars per pill and that he needed
the money because he had cancer. Moreover, the Appellant had a prescription for
oxycodone, which he had filled the previous day for ninety pills. However, thirty-six
pills were already missing from the bottle, and the Appellant had almost the exact amount
of money on his person for having sold thirty-six pills for nine dollars per pill. It was the
jury’s duty to evaluate the credibility of the witnesses, to determine the weight given to
their testimony, and to resolve all conflicts in the evidence. See State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). We note that the jury found the Appellant guilty as charged
of possessing oxycodone with intent to sell or deliver but found him guilty of attempting
to sell oxycodone as a lesser-included offense of selling oxycodone. We conclude that
the evidence is sufficient to support the Appellant’s convictions.
D. Prosecutorial Misconduct
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Finally, the Appellant contends that the State committed prosecutorial misconduct
during closing arguments because the prosecutor “twice assailed the integrity of defense
counsel, and in so doing, improperly argued matters outside of the record and injected
into the trial issues broader than the guilt or innocence of the accused.” The State argues
that the Appellant has waived this issue and that, in any event, the prosecutor’s
statements do not constitute prosecutorial misconduct. We conclude that the Appellant is
not entitled to relief.
Specifically, the Appellant takes issue with the following statements made during
the prosecutor’s rebuttal closing argument:
The only thing you’re here to do and the only thing we need
you [to] do is determine what the facts were on the date in
question. That’s your only job. What [defense counsel has]
done, talking about the defendant’s health, the family
situation, is insulting to the judicial process, and it’s insulting
to you. And when you don’t have a defense to fall back on,
oftentimes defense attorneys go to these non issues and talk
about things that we call jury nullification. . . .
Later, the prosecutor stated as follows:
Also with all due respect to [defense counsel] he says that the
defense counsel is not trying to say that anybody is a bad
person, that the police, we’re not trying to say they’re bad
people. With all due respect yes, they are because --
[Defense Counsel]: Objection.
THE COURT: Overruled.
[The State]: They are trying to say they’re bad people.
Because here’s the thing, to vote not guilty is to say the
officers who testified and for Officer Grega, who at least
testified at two prior court proceedings, and Officer Spurlock,
who testified in at least one prior court proceeding, all under
oath lied each and every time.
In order to prevail on a claim of prosecutorial misconduct, the Appellant must
demonstrate that the conduct committed by the prosecution was so inflammatory or
improper that it affected the verdict to his detriment. Harrington v. State, 385 S.W.2d
758, 759 (Tenn. 1965); State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App. 1997). In
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making this determination, this court is guided by five factors:
1. The conduct complained of viewed in context and in light
of the facts and circumstances of the case.
2. The curative measures undertaken by the court and the
prosecution.
3. The intent of the prosecutor in making the improper
statement.
4. The cumulative effect of the improper conduct and any
other errors in the record.
5. The relative strength or weakness of the case.
Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also State v. Buck,
670 S.W.2d 600, 609 (Tenn. 1984). We note that “the Judge factors should only be
applied to claims of improper prosecutorial argument,” as in this case, not claims of
unconstitutional prosecutorial comment. State v. Jackson, 444 S.W.3d 554, 591 n.50
(Tenn. 2014). “[T]he State bears the burden of proving unconstitutional prosecutorial
comment or argument harmless beyond a reasonable doubt, whereas a defendant bears
the burden of proving prejudice when prosecutorial argument is merely improper.” Id.
Regarding prosecutorial misconduct during closing arguments, it is well-
established that closing argument is an important tool for both parties during a trial; thus,
counsel is generally given wide latitude during closing argument, and the trial court is
granted wide discretion in controlling closing arguments. See State v. Carruthers, 35
S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such, arguments must
be temperate, based upon the evidence introduced at trial, relevant to the issues being
tried, and not otherwise improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5
(Tenn. Crim. App. 2003). Furthermore, “[t]he prosecution is not permitted to reflect
unfavorably upon defense counsel or the trial tactics employed during the course of the
trial.” State v. Garner Dwight Padgett, No. M2003-00542-CCA-R3-CD, 2004 WL
2359849, at *12 (Tenn. Crim. App. at Nashville, Oct. 21, 2004).
In Goltz, 111 S.W.3d at 6, this court outlined “five general areas of prosecutorial
misconduct” that can occur during closing argument: (1) intentionally misleading or
misstating the evidence; (2) expressing a personal belief or opinion as to the truth or
falsity of the evidence or defendant’s guilt; (3) making statements calculated to inflame
the passions or prejudices of the jury; (4) injecting broader issues than the guilt or
innocence of the accused; and (5) intentionally referring to or arguing facts outside the
record that are not matters of common public knowledge. “In determining whether
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statements made in closing argument constitute reversible error, it is necessary to
determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).
Initially, we note that defense counsel did not make a contemporaneous objection
to the prosecutor’s first comments regarding defense counsel’s insulting the judicial
process and not having a defense to fall back on. A defendant’s failure “to proffer
contemporaneous objections to the challenged remarks” waives the issue on appeal.
State v. Robinson, 146 S.W.3d 469, 518 (Tenn. 2004); see Tenn. R. App. P. 36(a).
Nevertheless, we can review the issue for plain error. Tenn. R. App. P. 36(b); see State v.
Knowles, 470 S.W.3d 416, 423 (Tenn. 2015). We may consider an issue to be plain error
when all five of the following factors are met:
(a) the record must clearly establish what occurred in the trial
court; (b) a clear and unequivocal rule of law must have been
breached; (c) a substantial right of the accused must have
been adversely affected; (d) the accused did not waive the
issue for tactical reasons; and (e) consideration of the error is
“necessary to do substantial justice.”
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);
see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “‘plain error’ must be of such a great
magnitude that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at
642 (quoting United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).
Turning to the instant case, the defense did not address the Appellant’s having
cancer or his “family situation” during its closing argument. Therefore, the prosecutor
must have been referring to the evidence presented during the trial. We do not think
defense counsel’s presenting evidence of the Appellant’s having cancer was insulting to
the judicial process or the jury. While the evidence may have strategically garnered some
sympathy for the Appellant, it was also an important aspect to his defense in that it
provided him with a legitimate reason for possessing oxycodone. Moreover, defense
counsel presented a logical defense by arguing that the detectives did not see the actual
item passed from the Appellant to Tomberlind and Hudson, that there was a reasonable
explanation for pills to be missing from the pill bottle, and that the denominations of
currency found on the Appellant’s person did not support his selling pills for nine dollars
apiece. Thus, there was no basis for the prosecutor’s comments, and we agree with the
Appellant that the comments were improper. That said, we must conclude that the
prosecutor’s comments do not rise to the level of plain error. The passengers in the
Mercedes and the Appellant himself admitted to his selling the pills. Thus, we conclude
that the prosecutor’s error did not change the outcome of the trial.
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As to the prosecutor’s comments regarding defense counsel’s accusing Detectives
Grega and Spurlock of being “bad people” and lying, the State argues that the Appellant
has waived this issue because he failed to specify the reason for his objection. We
disagree. As noted by the State, the party making an objection should state “the specific
ground of objection if the specific ground was not apparent from the context.” Tenn. R.
Evid. 103(a)(1). In our view, the specific ground, i.e., that the prosecutor’s comment was
improper, was apparent. Therefore, the issue has not been waived.
The prosecutor was addressing the following statements made by the defense
during its closing argument:
Now, let me make myself crystal clear. This is not
about anyone on this table being a bad person. It’s not about
the State being evil. It’s not about, I don’t know, officers
being evil. That is not at all what this is about. That is not
what I’m trying to tell you. . . .
....
The testimony today is that Detective Grega pulls up in an
elevated truck and that he’s able to see things crystal clear.
But the multiple times that he’s testified before, that’s never
come up. He never said I was in an elevated truck. See,
that’s another inconsistency. He didn’t bother in his narrative
to say that he saw a hand-to-hand. He swore to tell the truth
just weeks after this happened. He sat on a witness stand very
similar to today, and at that time he did not mention under
oath with his right hand up that there was a hand-to-hand. He
didn’t say it. . . . He swore under oath to tell the whole truth
and nothing but the truth. . . . The issue is that’s inconsistent,
and it clouds the case. And the same goes for Mr. Ashford’s
statement that he admitted to selling the pills. Ya’ll heard
that Mr. Ashford was in handcuffs and that he was --
essentially he was under arrest, right? And I asked Detective
Grega, you could have taken him to the precinct? Yes. You
could have recorded his statement? Yes. He didn’t refuse to
talk to you, did he? No. He just didn’t do that. [The State]
will tell you that’s not policy. This isn’t about policy. It’s
about whether that statement was actually said. And the only
person who told you that today were the two officers,
Detectives Spurlock and Grega.
The Appellant contends that the prosecutor’s comments were disparaging of
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defense counsel, were designed to discredit counsel, and “cast [counsel] in a poor light.”
In our view, though, the prosecutor’s statements were not improper. Although defense
counsel initially said that he was not accusing the State’s witnesses of being “bad
people,” counsel went on to make statements that could be interpreted as accusing
Detectives Grega and Spurlock of lying at trial. Thus, we think the prosecutor was
responding to defense counsel’s argument and conclude that the prosecutor did not
commit prosecutorial misconduct.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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