State v. Hunt

• Decision Date: 25 January 1984
• Parties: STATE of Tennessee, Appellee, v. Danny HUNT, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 751

665 S.W.2d 751

STATE of Tennessee, Appellee, v. Danny HUNT, Appellant.

Court of Criminal Appeals of Tennessee at Nashville.

Jan. 25, 1984.

James R. Omer (on appeal), Nashville, John Wesley Jones (at trial), Gallatin, for appellant.

William M. Leech, Jr., Atty. Gen., David M. Himmelreich, Asst. Atty. Gen., Nashville, C. Wayne Hyatt, Dist. Atty. Gen., Gallatin, for appellee.

OPINION

DWYER, Judge.

A jury convicted, appellant of possessing cocaine, a Schedule II controlled substance, with intent to sell and possessing marijuana, a Schedule VI controlled substance. The punishment was set at imprisonment for not less than six nor more than ten years on the cocaine conviction and thirty days confinement on the marijuana conviction. The sentences were ordered to be served concurrently.

Appellant has challenged the sufficiency of the evidence to support the conviction for possession of cocaine with intent to sell. With this in mind, we will narrate the evidence.

In February of 1982, the Sumner County Sheriff's Department borrowed an undercover officer named Ron Parker from the Gallatin Police Department in order to make a drug buy from the appellant. Detective Parker was given money to make the purchase and directed to contact a John Maynard. Mr. Maynard introduced Parker to a Dennis Hannah. The three men proceeded to appellant's home on High Cliff Drive in Sumner County. Appellant had known Hannah for several years and asked him to come by himself. Hannah was let out near appellant's home and returned in a few minutes with a plastic bag containing a white powder later identified as cocaine. Parker examined the contents and gave Hannah the agreed price of $1,150. The money was in twenty dollar bills except for one ten dollar bill. Hannah showed the agent a small .25 caliber pistol. While they were examining the substance, appellant drove by in a pick-up truck. Hannah took the money to appellant's home and paid him $1,050, keeping $50 for himself and $50 for Maynard. The trio drove from the scene and stopped at a grocery store, where Parker managed to alert the police. The men were arrested in short order, and the controlled substance was recovered from Parker.

A warrant was obtained to search appellant's home. Officers uncovered more cocaine, marijuana, a roll of twenty dollar bills in the amount of $980, a .25 caliber pistol resembling the one Hannah had shown Parker, and an assortment of drug paraphernalia.

A forensic chemist testified for the State that the white powder recovered from Parker consisted of 13 grams of 34 percent pure cocaine. The contraband recovered from appellant's residence included 5.56 grams of 62 percent pure cocaine, 2.4 grams of 34 percent pure cocaine, and 10.9 grams of marijuana.

The appellant, testifying in his own behalf, related that he sold the cocaine to Hannah as a favor and made no profit from the deal. He admitted being a cocaine user but denied being a drug dealer. He stated that the contraband found at his residence was for his own personal use.

Appellant challenges the sufficiency of the evidence to support the cocaine conviction on the ground that there was no proof that he intended to sell the substance. With proof that appellant transferred 13 grams of cocaine to Hannah in return for money and that he possessed an additional 7.96 grams of cocaine in his home, the jury could infer that appellant possessed the controlled substances with the intent to sell. T.C.A. § 39-6-417(a)(2). Appellant also urges that the evidence fails to show that he made a profit from the sale. No such evidence is required. See T.C.A. § 39-6-417(a)(1)(B). The jury by its verdict obviously accredited Hannah's testimony that appellant sold him the contraband. The evidence amply meets the requirements of T.R.A.P. 13(e). This issue is overruled.

In his second issue, appellant attacks the sufficiency of the affidavit filed by Officer Parker in support of his request for a search warrant. He argues that there was no probable cause to believe that the criminal activity was then taking place because no time period was specified in the warrant. He further contends that the reliability of the informant was not established.

Officer Parker testified at the suppression hearing that he filed the affidavit in support of the search warrant after the police picked him up along with Hannah and Maynard. Although he did not personally know the informant, he called Officer Donnie Gillespie in Nashville in order to ascertain the informant's reliability. Parker stated in the affidavit that he observed the following:

"Dennis Hannah coming from the above described premises and then at the end of the driveway to the above described premises, this affiant received from Dennis Hannah a plastic bag containing a white substance, sold to this affiant as cocaine. This affiant then gave Dennis Hannah $1,150.00, the agreed price and said money was given to Hannah all in twenty dollar bills, with the exception of one ten dollar bill. Hannah then went back up the driveway of the above described premises and returning (sic) a short time later. Lt. George Farmer of the Sumner County Sheriff Department field tested the said white substance and said test proved positive for cocaine.

"Furthermore, this affiant was told by a police informant that said informant was inside of the above described premises within the past 72 hours and while there saw Danny Hunt in possession of at least an ounce of a white substance, known to the informant as cocaine. This affiant talked to Donnie Gillespie of Metro Police's Vice Squad and Gillespie stated to this affiant that the above informant has given him information on several occasions and Gillespie has personally checked said information and said information had lead (sic) to some arrests."

With the statement in the affidavit that the informant saw at least an ounce of cocaine on the premises to be searched within the past 72 hours, the affidavit is sufficient with regard to specificity of time. State v. McCormick, 584 S.W.2d 821, 822 (Tenn.Cr.App.1979). As to the question of the informant's reliability, the proper standard for evaluating the affidavit is found in Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in which the Supreme Court abandoned the two-prong test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1963) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In its stead, our highest court has brought into play the "totality of the circumstances analysis". The court described the issuing magistrate's duty in this manner:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay...