State v. McCulloch
| Decision Date | 29 June 2022 |
| Docket Number | E2021-00404-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. LESA ANNETTE WHITE MCCULLOCH |
| Court | Tennessee Court of Criminal Appeals |
STATE OF TENNESSEE
v.
LESA ANNETTE WHITE MCCULLOCH
No. E2021-00404-CCA-R3-CD
Court of Criminal Appeals of Tennessee, Knoxville
June 29, 2022
Session March 29, 2022
Appeal from the Criminal Court for Monroe County No. 16-010CRM Sandra N.C. Donaghy, Judge
The Defendant, Lesa Annette White McCulloch, appeals her convictions for one count of initiating the manufacture of methamphetamine, three counts of simple possession of a controlled substance, one count of possession of marijuana with the intent to sell, and one count of possession of unlawful drug paraphernalia, and her resulting sixteen-year sentence. The Defendant argues that (1) the trial court erred by denying the Defendant's motion to suppress the evidence seized as a result of the search of the Defendant's home; (2) the trial court erred by denying the Defendant's motion to dismiss for the State's failure to preserve material evidence and by declining to issue a special jury instruction; (3) the trial court erred by failing to instruct the jury on the lesser-included offense of facilitation of possession of marijuana with the intent to sell; (4) the trial court erred by admitting evidence of the Defendant's prior bad acts; (5) the State committed prosecutorial misconduct during closing arguments by commenting on the Defendant's intelligence; (6) the evidence was insufficient to support her convictions; and (7) the trial court erred in determining her sentencing range and by ordering partial consecutive sentencing. Following our review, we affirm; however, we remand the case for entry of a corrected judgment in Count 1 due to a clerical error.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed; Case Remanded
Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Lesa Annette White McCulloch.
Herbert H. Slatery III, Attorney General and Reporter; T. Jonathan H. Wardle, Assistant Attorney General; Stephen D. Crump, District Attorney General; Ashley M. Ervin (at pretrial motion hearings), and Shari L. Tayloe and Matthew L. Dunn (at trial), Assistant District Attorneys General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.
OPINION
D. KELLY THOMAS, JR., JUDGE
FACTUAL BACKGROUND
On July 6, 2015, members of the Madisonville Police Department (MPD) and Monroe County Sheriff's Office (MCSO) initiated a knock and talk interaction at the Defendant's trailer. After the Defendant consented to a search for evidence of methamphetamine manufacture, the officers found materials and equipment used to manufacture methamphetamine, and a subsequent search of the Defendant's purse yielded two baggies of marijuana, forty pseudoephedrine pills, eleven alprazolam pills, nine hydrocodone pills, and an oxycodone pill.
The January 2016 term of the Monroe County Grand Jury charged the Defendant with the following offenses: initiation of methamphetamine manufacture (Count 1); possession of hydrocodone, a Schedule II controlled substance (Count 2); possession of oxycodone, a Schedule II controlled substance (Count 3); possession of alprazolam, a Schedule IV controlled substance (Count 4); possession of marijuana, a Schedule VI controlled substance, in an amount of more than 0.5 ounces but less than ten pounds with the intent to sell or deliver[1] (Count 5); and possession of unlawful drug paraphernalia (Count 6). See Tenn. Code Ann. §§ 39-17-408, -17-412, -17-415, -17-417, -17-418, -17-425, -17-435.
At trial, MPD Detective David Wear, MCSO Deputy Denny Graham, and MPD Sergeant Daniel Dockery testified regarding the circumstances of the July 6, 2015 search and its outcome. At the time of the incident in this case, Detective Wear had recently been promoted and had been working drug cases for about two weeks. At 10:30 p.m., the three officers and two MPD patrol officers drove to the Defendant's one bedroom, one bathroom single-wide trailer. They encountered the Defendant's live-in boyfriend, David Jacobs, who was working on a car in the driveway. Detective Wear asked him if the Defendant was home, and Mr. Jacobs went inside to get her. Detective Wear did not recall if Mr. Jacobs told him that the Defendant was asleep.
Detective Wear and Deputy Graham testified that they stood on the small front porch and that Detective Wear spoke with the Defendant through the open front doorway. Sergeant Dockery stood in the yard and did not hear the conversation. Although neither Detective Wear nor Deputy Graham recalled the exact wording of the exchange, Detective
Wear stated that he asked the Defendant for consent to search the trailer for "any active meth labs and/or any items used in the manufacture of methamphetamine." Deputy Graham stated that Detective Wear discussed with the Defendant "their activity that had been going on at the residence." The officers agreed that the Defendant gave verbal consent to search; although Detective Wear said that he probably had a consent to search form in his truck, he did not have the Defendant provide written consent. Detective Wear noted that he was not required to obtain written consent to search and that he asked the Defendant for consent because he knew her to be the main tenant or owner of the trailer. None of the officers were equipped with body cameras, and because none of the police cruisers had their lights activated, no dashboard cameras recorded the relevant events.
The Defendant's trailer consisted of a living area partitioned by a bar style counter into the living room and kitchen, a bathroom, and a bedroom. The relevant items in this case were all found in the living room, kitchen, and bathroom. The living room contained a black sofa, a coffee table, and a beige recliner.
Detective Wear, Deputy Graham, and Sergeant Dockery conducted the search. Within minutes of entering the living room, the officers found a spent or inactive "one-pot meth lab," which consisted of a small soda bottle underneath a coffee table, at which point the Defendant was removed from the trailer for her safety. The Defendant and Mr. Jacobs were the only people in the trailer.
The quality and number of crime scene photographs was addressed several times during trial. Detective Wear was the only officer who took photographs, and he attributed any deficiencies in the photographs or crime scene documentation to his relative inexperience with drug investigations at the time. The officers generally acknowledged that they had moved some items to photograph them, although no one could provide detail other than that they moved the coffee table away from the couch before they found the meth lab. Even so, the coffee table was pictured within arm's reach of the couch. They similarly agreed that not all of the evidence was photographed.
The meth lab was originally found on its side, but the officers stood the bottle upright for photographs. In addition, Sergeant Dockery was photographed holding the bottle while wearing gloves before he took it outside. The meth lab contained a dark material and a white crystalline residue, which were identified as lithium strips from batteries and ammonium nitrate[2] from cold packs, respectively. The officers all noted that a spent meth lab had completed the chemical reaction necessary to produce methamphetamine oil, of which there was none remaining in the bottle.
The testimony and photographs established that on the coffee table, the officers found digital scales containing a white powder and a "leafy" residue, two unopened cold packs, a funnel, coffee filters, a small pink bag,[3] a small purple and pink striped bag, "burnt" aluminum foil, an unused roll of aluminum foil, pliers, and a pill crusher. One of the coffee filters had a math equation written in pencil on it, which Detective Wear identified as quantities commonly associated with methamphetamine use. A letter addressed to Mr. Jacobs was also on the coffee table. A pack of razor blades, plastic baggies, and an extension cord were sitting on the beige recliner.
The small striped bag contained pens, a straw used to ingest narcotics, a health card and prescription savings card in two different women's names who were not the Defendant, and a credit card. The small pink bag contained corner-cut baggies, a pen, a flashlight, razor blades, small scissors, coffee filters, and three glass smoking pipes. A third pink bag, which was not pictured on the coffee table, contained coffee filters; Detective Wear noted that he found three glass methamphetamine pipes wrapped in the filters.[4]
Among a variety of items strewn across the carpet, the officers found baggies, empty boxes of allergy medication containing pseudoephedrine, another pair of pliers, and metallic detritus, some of which was attributed to batteries having been opened in order to access lithium strips. A plastic shopping bag held plastic bottle caps and a quantity of green plastic tubing. Detective Wear stated that the bottle caps and tubing were used in "the gassing process." "[O]pened" lithium batteries and an emptied cold pack were in a garbage can, and camp fuel and three bottles of lye, one of which had been opened, were in shopping bags on the floor.
In the kitchen, a square blue Pyrex dish, two open glass mason jars, and a funnel with a coffee filter fitted inside it were on the stovetop. One of the glass jars contained a clear liquid identified by Sergeant Dockery as camp fuel. A hairdryer was plugged in on the countertop; Detective Wear testified that in the gassing process, the methamphetamine solids were filtered using a funnel and coffee filter and that typically, a hair dryer could be used to dry the strained solids. He also stated that in the kitchen, he saw a coffee grinder "that [was] used to grind up pseudoephedrine pills" and an open box of pseudoephedrine.
A photograph...
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