McNair v. State, E2021-00219-CCA-R3-PC

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtNORMA MCGEE OGLE, JUDGE
Decision Date13 June 2022
Docket NumberE2021-00219-CCA-R3-PC


No. E2021-00219-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Knoxville

June 13, 2022

Assigned on Briefs December 21, 2021

Appeal from the Criminal Court for Knox County No. 108077 Kyle A. Hixson, Judge

The Petitioner, Joseph Sanford McNair, Jr., filed a petition for post-conviction relief from his convictions of possession of cocaine with intent to deliver, possession of cocaine with intent to sell, and possession of marijuana and the accompanying effective twelve-year sentence. In the petition, the Petitioner alleged that trial counsel was ineffective (1) by failing to pursue a Sixth Amendment claim regarding the racial composition of the jury pool; (2) by failing to pursue a claim regarding the "constructive amendment in the indictment"; and (3) by failing to fully pursue the Petitioner's Fourth Amendment rights during a motion to suppress. The Petitioner also raises two free-standing claims: (1) his Sixth Amendment right to a jury composed of a fair cross-section of the community was violated because black people were underrepresented in the jury pool; and (2) his rights against double jeopardy were violated when the trial court allowed the indictment to be constructively amended after the jury rendered its verdict. The post-conviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Joseph Sanford McNair, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Senior Assistant Attorney General; Charme P. Allen, District Attorney General; and Jordan H. Murray and Sean F. McDermott, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Norma McGee Ogle, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.




I. Factual Background

On direct appeal, this court summarized the facts adduced at trial as follows:

This case relates to the seizure of approximately 36 grams of crack cocaine during a police encounter with the [Petitioner]. At the trial, Knoxville Police Officer Brian Baldwin testified that on December 8, 2009, at 1:30 p.m., he and Officer Brandon Stryker were parked in their respective police cruisers at the corner of Minnesota and Sherman Avenues near a park when he saw an Oldsmobile with very dark windows traveling eastbound. The entire front windshield was tinted. Officer Baldwin followed the Oldsmobile and saw it turn left into a residence on Minnesota Avenue, and he "pulled [his] police car all the way in." Officer Stryker parked his police cruiser beside Officer[] Baldwin's police cruiser. As Officer Baldwin exited his car, the [Petitioner] exited the driver's door of the Oldsmobile. Officer Baldwin and the [Petitioner] made eye contact, and the [Petitioner] removed a leather jacket he was wearing, placed it inside the car, and closed the door. The [Petitioner] walked toward Officer Baldwin, and Officer Baldwin identified himself and told the [Petitioner] he stopped him because of excessive window tint. The [Petitioner] was unable to provide identification, and Officer Baldwin went to his cruiser to verify the [Petitioner's] identity while Officer Stryker remained with the [Petitioner]
Officer Baldwin testified that he returned to the [Petitioner] and Officer Stryker and that he asked the [Petitioner] if anything illegal was inside the car and requested permission to search the car. The [Petitioner] consented to a search of the car, unlocked the passenger-side door, and offered to unlock the trunk. During the search Officer Baldwin found two bags of what he believed was crack cocaine and one bag of marijuana inside a pocket of the leather jacket the [Petitioner] removed previously. He placed the [Petitioner] under arrest and continued the search Inside the trunk, Officer Baldwin found digital scales with what he believed was cocaine residue. Officer Baldwin said the [Petitioner] did not display any signs of being a cocaine user and was not intoxicated, and he did not request the [Petitioner] perform
field sobriety tests. He found no pipes, syringes, or other paraphernalia used to ingest crack cocaine inside the car.
Officer Baldwin described photographs taken at the scene, which depicted the Oldsmobile, the crack cocaine, the marijuana, the scales, and the leather jacket. Relative to the photograph of the car driven by the [Petitioner], Officer Baldwin noted that Sam E. Hill Preschool was in the background. Officer Baldwin weighed the crack cocaine at the scene, and a photograph of the police-issued scales showed a total weight of 36.2 grams. Officer Baldwin weighed the marijuana at the scene, and a photograph of the police-issued scales showed a total weight of 1.9 grams. A photograph of the scales found inside the trunk showed a white residue. Another photograph showed $233 in cash in the [Petitioner's] possession. Another photograph showed a comparison between the car door window tint and the state-issued tint card. Officer Baldwin stated that he measured the distance between the [Petitioner's] car and the preschool property, which was 74 feet.
On cross-examination, Officer Baldwin . . . agreed Aaron Roper was the registered owner of the car. . . .
Knoxville Police Officer Brandon Stryker, an expert in the field of drug trafficking investigations, testified that on December 8, 2009, he and Officer Baldwin were parked in their respective police cruisers near Brittany Daniels Park at the intersection of Sherman and Minnesota Avenues. He observed the car driven by the [Petitioner] turn onto Minnesota Avenue and said that Officer Baldwin followed the car and that he followed Officer Baldwin. Officer Baldwin stopped the car, and Officer Stryker provided assistance. Officer Stryker said the [Petitioner] parked the car at 1715 Minnesota Avenue.
Officer Stryker testified that the [Petitioner] consented to a search of the car. Officer Stryker identified the white substance found inside the car as crack cocaine. . . . He agreed the crack cocaine found inside the [Petitioner's] jacket weighed 36.2 grams . . . . He explained that crack cocaine was usually smoked using a "crack pipe" and said no pipe was found in the [Petitioner's] possession or inside his car.
. . . .
Tennessee Bureau of Investigation (TBI) Special Agent Sharon Norman, an expert in forensic chemistry, testified that she analyzed the substances in this case. She concluded that the white, rock-like substance contained cocaine base and weighed 35.9 grams. . . . Relative to the plant material, she concluded that the substance was marijuana and weighed 0.8 grams.
. . . .
The [Petitioner] testified that he was not a drug dealer and that he had never sold drugs, although he had purchased drugs. He said that on December 8, 2009, the police stopped him after he arrived at Kevin Thronberg's residence on Minnesota Avenue. He said Jay Rock asked him to pick up the Oldsmobile and drive it to Mr. Thronberg's residence because Mr. Rock was incarcerated and because Mr. Rock's girlfriend was moving and did not want the car towed. He denied previously driving or being inside the car and said he did not inspect the car before driving it. He denied owning the scales found inside the trunk and knowing the scales were there.
The [Petitioner] testified that although he was employed at the time of the trial, he was only "working . . . jobs from here to there" at the time of his arrest, including concrete-related work and cooking at a restaurant. In 2009, he lived with his fiancée, who supported him.
The [Petitioner] admitted he possessed about one ounce of crack cocaine on the day of his arrest. Regarding the large amount, he stated that sometimes the quality of crack cocaine was poor and that he needed a larger amount to "get a good high[.]" He said he paid about $400 for it on the day of his arrest. He denied that he would have paid more if the crack cocaine would have been divided into "little tiny quantities." He said he paid for the crack cocaine with money provided to him by his father. He said he bought the crack cocaine from someone he knew as "C. Bone" about ten minutes before the officers stopped him. He met C. Bone to obtain the drugs at
the location where he picked up Mr. Rock's car. He said that he intended to "get[ ] high" with the crack cocaine but that the items he planned to use to ingest it were inside the residence where the police stopped him.
The [Petitioner] testified that he had purchased crack cocaine fifteen times previously and that the largest quantity he had purchased was worth about $280 to $290. He said that the quality of the drugs he bought on December 8 was poor and that the drugs would have lasted him about one day. He said he stopped using drugs in 2009 because his drug use hurt his family.
On cross-examination, the [Petitioner] testified that he was driving the Oldsmobile, that the police stopped him when he was in the car, that he parked the car at the location identified by Officers Baldwin and Stryker, and that he was wearing a leather jacket, which he removed and placed inside the car. The [Petitioner] agreed that Sam E. Hill Preschool was nearby and identified the preschool's swings and jungle gym in a previously admitted photograph. Although the [Petitioner] did not know the distance between the car and the preschool, he agreed the distance was within 1000 feet. The [Petitioner] admitted that he possessed the crack cocaine and that it was a large amount. He said he had no reason to dispute the

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