State v. Robinson, M2009–02450–SC–R11–CD.
| Court | Supreme Court of Tennessee |
| Writing for the Court | JANICE M. HOLDER |
| Citation | 400 S.W.3d 529 |
| Parties | STATE of Tennessee v. Bobby Lee ROBINSON et al. |
| Docket Number | No. M2009–02450–SC–R11–CD.,M2009–02450–SC–R11–CD. |
| Decision Date | 19 April 2013 |
400 S.W.3d 529
STATE of Tennessee
v.
Bobby Lee ROBINSON et al.
No. M2009–02450–SC–R11–CD.
Supreme Court of Tennessee,
at Nashville.
Oct. 4, 2012 Session.
April 19, 2013.
[400 S.W.3d 530]
L. Willis Jones, Nashville, Tennessee, for the appellant, Bobby Lee Robinson.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Leslie E. Price, Assistant Attorney General, for the appellee, State of Tennessee.
JANICE M. HOLDER, J.
Police utilized a confidential informant to arrange a drug buy from a co-defendant.
[400 S.W.3d 531]
At the scheduled time and location, the co-defendant arrived in his truck with the defendant and another passenger. A police takedown resulted in the arrest of the three men. A consensual search of the truck yielded approximately 153 grams of cocaine and 8.6 grams of marijuana in close proximity to where the defendant had been seated. A subsequent consensual search of the co-defendant's residence, located several miles away, yielded an additional 293.5 grams of cocaine and various items of drug paraphernalia. The State consolidated the weight of the cocaine and charged the defendant with possession with intent to sell 300 grams or more of cocaine, a Class A felony; possession of marijuana; and possession of drug paraphernalia. The jury convicted the defendant of possession with intent to sell 300 grams or more of cocaine and possession of drug paraphernalia. We hold that although the evidence was sufficient to support a finding that the defendant constructively possessed the cocaine in the co-defendant's truck, the evidence was insufficient to support a finding that he constructively possessed either the cocaine or the drug paraphernalia in the co-defendant's residence. Accordingly, we reduce the conviction for possession with intent to sell 300 grams or more of cocaine to possession with intent to sell 26 to 299 grams of cocaine, a Class B felony, and we vacate the conviction for possession of drug paraphernalia. The case is remanded to the trial court for re-sentencing on the reduced offense.
In April 2007, a Davidson County grand jury indicted the defendant, Bobby Lee Robinson, on possession with intent to sell 300 grams or more of a substance containing cocaine, possession of marijuana, and possession of drug paraphernalia. SeeTenn.Code Ann. §§ 39–17–417 to 39–17–418, 39–17–425 (2006). The indictment resulted from contraband discovered after a police “takedown” of Mr. Robinson and his co-defendants, Jamie Grimes and Anthony Collier.1 A jury trial was held from July 20 through July 23, 2009.
At trial, Detective Justin Fox of the Metropolitan Nashville Police Department testified on behalf of the State. He explained that a confidential informant with whom he had worked in the past approached him and indicated she could purchase cocaine from a man named Jamie Grimes. Under the supervision of Detective Fox, the informant contacted Mr. Grimes to arrange a drug buy. Five successive telephone conversations between the confidential informant and Mr. Grimes about the details of the scheduled buy were recorded. During the first recorded telephone conversation, Mr. Grimes told the informant that he would call her back in about twenty minutes. Detective Fox identified Mr. Robinson's voice in the background of the recording, but Mr. Robinson's statements were unintelligible. In a second recorded telephone conversation initiated by the confidential informant, Mr. Grimes instructed the informant to meet him at a Ruby Tuesday restaurant in Donelson, Tennessee, to complete the drug buy.
Once the drug buy location was established, Detective Fox directed Detective Curtis Watkins to set up surveillance of Mr. Grimes' residence. Detective Watkins positioned his vehicle across the street from the residence, where he eventually observed Mr. Grimes, Mr. Robinson, and Mr. Collier exit the residence and enter Mr. Grimes' truck. Mr. Grimes sat in the driver's seat, Mr. Robinson sat in the front
[400 S.W.3d 532]
passenger seat, and Mr. Collier sat in the right rear passenger seat. Detective Watkins did not see the men carrying anything as they left Mr. Grimes' residence. He could not recall how long he had been conducting surveillance before the men exited the house and left in Mr. Grimes' truck. Detective Watkins followed Mr. Grimes' vehicle for a short distance but was instructed to return to the residence.
The confidential informant placed the third and fourth recorded telephone calls to keep Mr. Grimes informed of her location and to inquire into Mr. Grimes' location. In the final recorded telephone conversation, the confidential informant informed Mr. Grimes she had arrived at the Ruby Tuesday restaurant, and Mr. Grimes changed the location to a nearby Backyard Burger restaurant. The three men arrived at the Backyard Burger restaurant and circled the parking lot. When a “takedown” signal was given by police, Mr. Grimes attempted to drive away, but his truck struck another vehicle in the Backyard Burger parking lot. Officer Johnnie Melzoni testified that he saw Mr. Robinson throw a bag that appeared to contain a white, rock-like substance into the back seat of the truck. All three men were arrested.
During a pat-down of the men, police found a bag containing a white, rock-like substance in the groin area of Mr. Collier's pants. Police found nothing on Mr. Robinson's person. Mr. Grimes consented to a search of his truck. During the search, police found a blue bag in the middle of the front floorboard between the driver side and the seat Mr. Robinson had occupied. The blue bag contained two small bags, one containing 10 1.3 grams of crack cocaine and another containing 51.2 grams of powder cocaine. Police found a small bag containing approximately one gram of crack cocaine on the back floorboard. Detective Fox estimated the street value of the cocaine found in Mr. Grimes' truck to exceed $6000. Police also found 8.6 grams of marijuana in the center console.
Detective Fox testified that while the truck was being searched, he placed Mr. Robinson and Mr. Collier in the back seat of his patrol car along with a recording device. Mr. Robinson and Mr. Collier were recorded using various slang terms prevalent in the drug trade. Although much of the recording is unintelligible, Mr. Robinson can be heard telling Mr. Collier that the police tried to convince him to work with them but that he was no “rat.” Mr. Robinson also stated, “They know I'm the one ... I got the plug,” and he later commented that he would have to get his “bird man.” Detective Fox explained that a “plug” is the person responsible for obtaining the drugs, a “bird” is a kilogram, and a “birdman” is someone who has the ability to procure a kilogram of cocaine.
Mr. Grimes also consented to a search of his residence. During the search, police found a bag containing 11.4 grams of crack cocaine on the refrigerator in the kitchen and a large plastic bag containing three more plastic bags of cocaine with a combined weight of 282.1 grams in a clothing hamper in the living room. Police also found various items of drug paraphernalia in the kitchen, including digital scales, which were in plain view; a pipe with residue in a kitchen drawer; and various other items with white residue in either a kitchen drawer or a kitchen cabinet. Police also found a black pan, a measuring cup, and a knife in the sink. Detective Fox explained that these items are consistent with those used in cooking crack cocaine. Detective Fox acknowledged that because no fingerprints were lifted from the items, there was no evidence that Mr. Robinson had touched any of the items. Although mail and other personal items
[400 S.W.3d 533]
were seized from the residence, nothing connected Mr. Robinson to the residence other than Detective Watkins' observance of Mr. Robinson leaving the location with Mr. Grimes and Mr. Collier on the day of the scheduled drug buy.
The jury convicted Mr. Robinson of possession with intent to sell 300 grams or more of a substance containing cocaine, a Class A felony, and possession of drug paraphernalia. The trial court sentenced Mr. Robinson to seventeen years for possession with intent...
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...actual possession of the drugs was not required. Under Tennessee law, "[p]ossession may be actual or constructive." State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)). Constructive possession depends on the totality of the circumstanc......
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