State v. Best, No. E2007-00296-CCA-R3-CD (Tenn. Crim. App. 9/25/2008)
| Decision Date | 25 September 2008 |
| Docket Number | No. E2007-00296-CCA-R3-CD.,E2007-00296-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. TONY BEST. |
| Court | Tennessee Court of Criminal Appeals |
Norma McGee Ogle, J., delivered the opinion of the court, in which, Joseph M. Tipton, P.J., and D. Kelly Thomas, Jr., J., joined.
Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Tony Best.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and J. Chalmers Thompson and James Stutts, Assistant District Attorneys General, for the appellee, State of Tennessee.
A Monroe County Criminal Court jury convicted the appellant, Tony Best, of attempt to manufacture methamphetamine and felony possession of drug paraphernalia. The trial court sentenced him as a Range I, standard offender to two years and one year, respectively, to be served concurrently on probation following a thirty-day jail term. On appeal, the appellant contends that (1) the warrantless search of boxes allegedly belonging to him and the seizure of his person violated the Fourth Amendment; (2) the State's destruction of evidence violated due process; (3) the evidence is insufficient to support his convictions; (4) his convictions for attempt to manufacture methamphetamine and felony possession of drug paraphernalia place him in double jeopardy for the same conduct; (5) the State erroneously failed to provide a bill of particulars after being ordered to do so; (6) the prosecutor committed prosecutorial misconduct in closing argument; and (7) his fines are excessive. Based upon the record and the parties' briefs, we affirm the appellant's judgment of conviction for felony possession of drug paraphernalia but reverse his conviction for attempt to manufacture methamphetamine because the evidence is insufficient to support the conviction.
This case arises from the discovery of three boxes containing the ingredients and equipment necessary to manufacture methamphetamine in a trailer belonging to Roy Worley and the subsequent stop and seizure of the appellant upon his arrival in Worley's driveway. Detective Jeb Brown, a narcotics agent with the Monroe County Sheriff's Department, testified that he had been trained and certified by the Drug Enforcement Administration (DEA) to recognize and safely dismantle methamphetamine laboratories. According to Detective Brown, ephedrine or pseudoephedrine, which is found in cold and allergy tablets such as Actifed, is a necessary ingredient for methamphetamine. Individuals use gas-line antifreeze such as Heat to separate the ephedrine from the binder in the pills. The ephedrine is combined with iodine crystals, which are made by mixing iodine with hydrogen peroxide and muriatic acid, and with red phosphorus, which is obtained from scraping the striking plates on matchbook covers or soaking them in acetone. The mixture of ephedrine, iodine crystals, and red phosphorus creates a three-layer "meth oil." The top layer of the oil is removed and subjected to a "gassing off" procedure in which balls of aluminum foil are added to muriatic acid, producing a gas that turns the oil into the finished product. Detective Brown stated that once a methamphetamine laboratory is located, dismantled, and logged, he calls a hazardous waste contractor to dispose of the chemicals.
Detective Brown testified that on May 3, 2004, he went to Roy Worley's mobile home on Little Notchy Creek Road. When he and the other officers arrived, Worley, Mary Kerr, Pam Sloan, and another male were in the yard. After speaking with all of them, Detective Brown searched the residence and found in a bedroom two green plastic "packers" or containers and a cardboard box. All three contained items used to make methamphetamine. One of the plastic containers had a lid. The containers and the box were carried outside, and their contents were set out in Worley's yard and photographed. They contained camp fuel, acetone, coffee filters, Heat, numerous matchbooks, hydrogen peroxide, muriatic acid, Red Devil lye, Pyrex glassware, a beaker, tubing, aluminum foil, sandwich bags, a wire strainer, and Mason jars, some of which contained sludge. Detective Brown explained that in making methamphetamine, camp fuel can be used as a substitute for acetone to break substances down or it can be used to "wash" the final product. Coffee filters are used to filter the various liquids once they are separated. Red Devil lye is used to increase the pH level of the mixture and to cause the three-part liquid to separate. Pyrex glassware is used to heat and dry the ephedrine "pill wash." The corners of sandwich bags are cut off and used to package the methamphetamine for sale. The wire strainer found in the boxes would have been used in the filtering process and contained a red stain. Detective Brown also found in the boxes a container holding eight balls of aluminum foil.
Detective Brown testified that he found butane and around forty tablets of cold medicine in the residence. He stated that depending upon the milligram measure of the pills, it generally takes large quantities of pills to produce methamphetamine. He also found items used to take drugs—needles, pipes and a spoon—in the residence. According to Brown, iodine was the only substance necessary to manufacture methamphetamine that was missing from the scene.
Detective Brown testified that after he searched the residence, Worley and Kerr were arrested and taken to jail. Before the officers removed the boxes of items from the residence, the appellant turned into the driveway driving a Nissan 240. Detectives Morgan and Shaw approached him and removed him from his car. Detective Shaw walked with the appellant to the top of the hill, while Detective Morgan drove the appellant's car to the top of the driveway, where the appellant was frisked and his car was searched. Detective Brown searched the appellant's car and found an open box of Actifed. Although the package stated that the box contained twelve pills, he found ninety-six pills in the box. The package also revealed that the pills each contained sixty milligrams of pseudoephedrine. Each of the individual blister packs in which the pills were contained listed pseudoephedrine as an ingredient. Detective Brown also found a digital scale in the appellant's car that would measure amounts as small as .1 gram. Based upon his training and experience, he believed these scales were used to measure drugs. The box containing the scales had traces of an off-white substance in it, but he did not have the substance tested. Detective Brown also found an electronic body wire detector in the appellant's car. This device would emit a whistling noise when placed near a police wire.
Detective Brown testified that the appellant was frisked, and officers found a syringe, a box cutter, razor blades, and a match holder containing small Ziploc-style bags of the size normally used for jewelry or coins on the appellant's person. Detective Brown stated that methamphetamine can be eaten, snorted, smoked, or injected with a needle. He also testified that razor blades can be used to scrape matchbooks as well as dried ephedrine and that the small bags like the mini-Ziplocs can be used to package methamphetamine. After finding these items, Detective Brown arrested the appellant and charged him with attempting to manufacture methamphetamine and felony possession of drug paraphernalia.
On cross-examination, Detective Brown testified that Worley's trailer was located on top of a hill and that his driveway was about forty yards long. The appellant pulled into the bottom of the driveway. At that time, officers were probably carrying items out of the trailer but had not set them out to be photographed. The police had been at the residence at least thirty minutes before the appellant arrived, and Worley and Kerr had already been taken into custody. Detective Brown acknowledged that the police did not identify the appellant's fingerprints in the residence or on any of the items in the boxes. Also, no methamphetamine was found in the residence. He agreed that each of the products taken from the residence, except for some marijuana, had a legitimate use.
On redirect examination, Detective Brown testified that the majority of items he found at methamphetamine laboratories were turned over to a hazardous waste contractor rather than taken to the police station. Some items from laboratories were sent to the crime laboratory for testing. Although the appellant did not have all of the ingredients necessary to manufacture methamphetamine in his car, all of the items taken from his car could be used to make or sell methamphetamine. On recross-examination, Detective Brown agreed that manufacturing methamphetamine was not the exclusive use of the items found in the appellant's car.
At the conclusion of the proof, the trial court granted a judgment of acquittal to the appellant's codefendant, Mary Kerr. The jury convicted the appellant of attempt to manufacture methamphetamine and felony possession of drug paraphernalia. The jury also assessed fines of $5,000 and $3,000, respectively, for the two convictions.
The appellant contends that the trial court should have suppressed the evidence located in the boxes found in Worley's bedroom because Worley did not have authority to consent to a police search of the boxes, which Worley claimed belonged to the appellant. The appellant also asserts that the police lacked reasonable suspicion or probable cause to stop or search him when he pulled into Worley's driveway. The State maintains that the appellant had no expectation of privacy in...
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