State v. Desirey

• Decision Date: 05 April 1995
• Citation: 909 S.W.2d 20
• Parties: STATE of Tennessee, Appellee, v. Jimmy L. DESIREY, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 20

909 S.W.2d 20

STATE of Tennessee, Appellee, v. Jimmy L. DESIREY, Appellant.

Court of Criminal Appeals of Tennessee at Nashville.

April 5, 1995 Permission to Appeal Denied by Supreme Court Aug. 28, 1995.

Peter J. Strianse, Nashville, for the Appellant.

Charles W. Burson, Attorney General of Tennessee and John B. Nisbet, III, Assistant Attorney General of Tennessee, Nashville, Victor S. Johnson, III, District Attorney General and John Zimmerman, Roe Ellen Coleman, Assistant District Attorneys General, Nashville, for the Appellee.

OPINION

TIPTON, Judge.

The defendant, Jimmy L. Desirey, was convicted by a jury in the Davidson County Criminal Court on four counts of bribing a public servant, a Class C felony. He was sentenced as a Range I, standard offender to four consecutive four-year, six-month sentences for an effective sentence of eighteen years. He received fines totalling $20,000. In this appeal as of right, the defendant presents the following issues for review:

(1) Whether the defendant's convictions should be vacated pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), because a state prosecutor was exposed to immunized information concerning the defendant's prior gambling stamp and wagering tax returns.

(2) Whether the trial court erred in failing to consolidate the four counts of bribery of a public servant.

(3) Whether the trial court erred in ordering the defendant to serve consecutive sentences.

The defendant was originally indicted on one count of conspiracy to engage in aggravated gambling promotion, four counts of bribing a public servant, one count of bribing a witness, and forty counts of aggravated gambling promotion. During the trial, the trial court dismissed the count of bribing a witness and thirty-four counts of aggravated gambling. The jury acquitted the defendant of the conspiracy and remaining aggravated gambling promotion charges, but convicted him on the remaining bribery counts.

At trial, Metro Police Department Officers Terry Watts, Rick Laymance, and Sergeant David Elmore testified that on numerous occasions they had raided Eastside Market, located at 709 to 713 North First Street, because it had been known as a "numbers house" that involved illegal gambling. Specifically, the officers focused their testimony on a series of raids that began on November 13, 1990, and continued for two consecutive nights and a fourth night. Cash amounts of $486.83, $102.22, $298.34 and $45.00 were seized.

During the fourth raid, a door to the back side of the market was damaged when the officers used forced entry. The following day, Officer Laymance and Officer Jeff Livers, while riding on patrol, noticed that several people were standing around the back of the market and one individual was putting up a new door. The officers conducted a field interview to determine who ran the business and Officer Laymance later testified that it had been on this date that he had first met the defendant, who was standing behind a black pickup truck watching the repairs being made.

Officer Laymance spoke with the defendant and heated words were exchanged. The defendant told the officers that they "didn't know who [they] were messing with," and then turned to Officer Livers and said something about "meet[ing] halfway." As the conversation became more subdued, the defendant openly stated that he needed some relief and asked what he could do to meet the officers halfway.

After leaving the market, Officer Laymance immediately contacted his superior, Sergeant Jolley, and advised him of the bribery attempt. The sergeant told Laymance to make sure he carried a pocket recorder for recording any future conversations with the defendant.

The following day, Officer Laymance was dispatched to a Mrs. Winner's restaurant located on North First Street, about one block from Eastside Market. A person known to Laymance as "Big Mike" approached him while he was in the restaurant and informed him that the defendant would like to talk to him about the market. Officer Laymance contacted Sergeant Jolley who, in turn, contacted Lieutenant Jim Blackmore. The decision was made to inform Police Chief Kirchner and Assistant District Attorney General John Zimmerman of the bribery attempt and to seek their assistance in the investigation. It was decided that Officer Laymance would be equipped to tape-record a meeting with the defendant.

The first of a series of four relatively lengthy conversations between Officer Laymance and the defendant occurred on November 20, 1990. After discussing past raids and the defendant's status on a federal indictment, the parties engaged in the following conversation:

LAYMANCE: You know, I guess the bottom line is, if you're asking if I'd take something, I probably would, but then again, that's gonna be between me and you.

* * * * * *

LAYMANCE: Well, tell me what you want. We'll see if we can work it out.

DESIREY: Well, all I, like I just told you, I, just a little relief. I'm not asking you to leave us alone. I mean, I want the alley cleaned out. I mean, I'm gonna keep that son of a bitch [the numbers house] if I have to end up running them [loiterers] off, run em all off, I might run the business off doing it. But I mean, I don't know. You tell me what it'll take. I mean, I know you. You're in an awkward position. I realize that, just like I'm in, I mean. Is a couple of hundred dollars a week fair?

LAYMANCE: I think that'll work.

Officer Laymance and the defendant then arranged for weekly money pick-ups at the defendant's son's used car lot. As Laymance started to leave, the defendant gave him a piece of paper with the phone number of the market on it. Two $100.00 bills were folded inside the paper.

The second taped conversation took place exactly one week later. At this meeting the defendant stated that in the past he had managed "thirty-five numbers operations at one time." As he explained the procedure for picking up tickets and running routes, the following conversation was recorded:

LAYMANCE: But you had to go through each one of them tickets.

DESIREY: Every f------ ticket at 35 stops. Just like this one, and Eastside was just one of them, one of 35. We had some boys out there at the time, back when things were going good, about two years ago, that was making $150,000 a year.

LAYMANCE: Doing what; counting tickets?

DESIREY: Checking them f------ tickets.

LAYMANCE: Just counting them?

DESIREY: Working 22 hours a week.

Throughout the conversation the defendant bragged about his role in the management of the numbers business and the lucrative nature of the operation. The following statements of the defendant were recorded:

DESIREY: Now, I'm furnishing all the money. I was furnishing all the money....

DESIREY: Well, I'm gonna tell you what. When we got caught in August, the government got the tickets to back this up. They said, according to their figure, that we was doing $300,000 a month. We was doing a little over $200,000 a week, when we got caught. And I was the littlest man in town compared to Resha and them others. Sam Simms and these others. I mean, you know, there's all these estimates in here. But I'm gonna say the last number on a given day, the first part of the month, there's probably three to five million dollars a week played in the numbers business. I mean, I know you think them are ungodly figures, but....

* * * * * *

DESIREY: But, I mean that's the reason they're on my ass. But, see, they didn't get but about $60,000 off of me that day. And f---, but hell, the sad part about mine is, though two nights before we got caught, I paid one mother f----- $158,000.

The defendant then explained that the reason Laymance and the other officers had collected only small amounts of money in their raids on the market was because the money had not been kept at the market but had been picked up on a regular basis. As the conversation ended, the defendant shook hands with Officer Laymance and passed him two $100.00 bills.

The third taped conversation occurred on December 4, 1990. At this meeting the defendant encouraged Officer Laymance to assist him further by raiding his competition (other markets) in the numbers business. As Laymance prepared to leave, the defendant handed him a brown paper bag containing $200.00 in cash.

The last taped conversation between the defendant and Officer Laymance occurred on December 6, 1990. Before this meeting, Laymance, Lieutenant Blackmore, and General Zimmerman had decided to wind up the investigation, but in doing so, they wanted to see how far the defendant would go and if he would offer Laymance more money to lie to federal officials.

According to the plan, a message from I.R.S. Special Agent Mike Thomas was fabricated and left with Officer Laymance, telling him to produce all of his files on Eastside Market. Laymance took the message to the defendant and called Agent Thomas from the market. Within earshot of the defendant, Laymance was supposedly told to bring the files on the market to Agent Thomas' office.

The defendant became very concerned and began telling Laymance what he should or should not disclose to Agent Thomas. Officer Laymance pretended to become concerned about his own involvement in a federal I.R.S. investigation, and he eventually asked the defendant whether it would "be asking too much for a one time bonus to" answer questions the way the defendant wanted them answered. Officer Laymance quoted a figure of $1,000.00 and asked if that was too much. The defendant said that amount would be fine. Laymance followed the defendant into the garage and the defendant gave him $1,000.00 in cash.

I

KASTIGAR

VIOLATION

The defendant contends that his Fifth Amendment and statutory rights were violated when immunized tax information regarding his prior gambling activity was disclosed to local authorities and such information was used to prosecute the defendant for non-tax related crimes. The...