State v. Johnson

1

STATE OF TENNESSEE v. DERRICK JOHNSON

No. W2022-00425-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Jackson

August 24, 2023

Session March 7, 2023

Appeal from the Criminal Court for Shelby County No. 18-01743 C1802846 Glenn Wright, Judge

A Shelby County Criminal Court jury convicted the Defendant Derrick Johnson, of conspiracy to possess with the intent to sell 150 grams or more of heroin in Count 1 and conspiracy to possess with the intent to deliver 150 grams or more of heroin in Count 2, and the trial court imposed an effective sentence of eighteen years. On appeal, the Defendant argues (1) the evidence is insufficient to sustain his convictions (2) the trial court abused its discretion in allowing the State to present evidence of the November 19, 2017 phone conversations on redirect examination; (3) the trial court abused its discretion in failing to replay the October 25, 2017 phone recordings for the jury; (4) the trial court abused its discretion in denying his motion for a mistrial after the prosecutor, during its rebuttal closing argument, improperly commented on the Defendant's constitutional right to remain silent; and (5) the trial court abused its discretion in imposing an effective eighteen-year sentence. After review, we remand the case for entry of corrected judgment forms in Counts 1 and 2 as specified in this opinion. In all other respects, the judgments of the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed; Case Remanded for Entry of Corrected Judgments

Lance R. Chism (on appeal) and Thomas Hansom (at trial), Memphis, Tennessee, for the Defendant-Appellant, Derrick Johnson.

Jonathan Skrmetti, Attorney General and Reporter; Katharine K. Decker, Senior Assistant Attorney General; Steven J. Mulroy, District Attorney General; and Chris Scruggs, Assistant District Attorney General, for the Appellee, State of Tennessee.

CAMILLE R. MCMULLEN, P.J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

OPINION

CAMILLE R. MCMULLEN, PRESIDING JUDGE

In 2018, the Shelby County Grand Jury indicted the Defendant and twenty-four coconspirators for the offenses of conspiracy to possess with intent to sell more than 150 grams of heroin in a school zone and conspiracy to possess with intent to deliver more than 150 grams of heroin in school zone.

At trial, Lieutenant Michael Jackson testified that in 2017 he was assigned to the Memphis Police Department's Organized Crime Unit (OCU), an undercover unit that investigated long-term cases. Around that time, the OCU began receiving complaints that a man called "Pharaoh" was selling fentanyl and heroin in the medical district of Memphis. As a part of the investigation, the OCU obtained several warrants allowing it to monitor different cell phones. Lieutenant Jackson explained that around thirteen phones were monitored in this investigation, with two of these phones belonging to the Defendant, Derrick Johnson. Over the course of the investigation, the OCU determined that "Pharaoh" was Courtney Malone, a street-level drug dealer who belonged to the "Dixie Homes group." The OCU then obtained a search warrant to monitor Malone's phone and over the course of nearly two years worked their way up the drug distribution chain, which resulted in the OCU monitoring the other phones that were involved in this drug operation. Lieutenant Jackson said that over the course of his investigation, he discovered that the Defendant and Rodney Chism were supplying more than 150 to 200 grams of heroin to the Dixie Homes group.

On cross-examination, Lieutenant Jackson said he observed Stanley Durham go to the Defendant's home two or three times. He was able to determine that the two phone numbers belonged to the Defendant by listening to calls from Stanley Durham to the Defendant and by conducting visual surveillance of the two men. He also said that he observed the Defendant using one of the cell phones at issue. Lieutenant Jackson confirmed that Stanley Durham was the only co-conspirator in contact with the Defendant.

Detective Courtney Hendricks testified that in 2017 she worked as an undercover officer for the OC U.She purchased heroin and fentanyl from Courtney Malone, who went by the name of "Pharaoh," more than ten times. Detective Hendricks acknowledged that although different people answered Malone's cell phone, the Defendant never answered Malone's phone.

Officer Dennis Evans testified that he managed the Memphis Police Department's wiretapping system. He stated that he set up a wiretap to monitor the phone conversations of Courtney Malone, Demarqual Jackson, Carlos Royal, and Stanley Durham.

Detective Ian James, with the OCU, testified as an expert in the "field of narcotics investigation." He stated that he was the case agent who managed this case and that the investigation began in spring 2017 and ended in December 2017. Detective James said that this investigation initially began when he received complaints of people overdosing on drugs sold by Courtney Malone in the "Dixie Homes area." He said the OCU undercover agent assigned to this case started buying drugs from Malone and once the OCU obtained enough evidence to establish probable cause, it obtained a search warrant and began listening to Malone's phone conversations. After conducting additional investigation, the unit began listening to the phone conversations of Demarqual Jackson, Carlos Royal, and Stanley Durham.

Detective James said that on September 1, 2017, at 6:29 p.m., Demarqual Jackson called Courtney Malone and asked whether any of Malone's customers had complained about the quality of the drugs. Malone replied that the product smelled like "spoiled baby milk" but that no one had complained. Detective James explained that Jackson was "cutting the heroin or fentanyl with an unknown substance," which was "why it smelled like [spoiled] baby milk." He stated that individuals will often "use a variety of different other powder substance[s] that look similar to [the drugs] to stretch [the drugs] out so they can make more money." Detective James stated that 100 grams of heroin is worth approximately $10,000.

On September 1, 2017, at 9:19 p.m., Jackson called Malone a second time, and they again discussed the quality of the drugs. During this conversation, one of them talked about waiting on "Unc" to get back. Detective James explained that "Unc" is the "street term for an older somebody that they're using to get supply from." He added that the "Unc" referred to in this case was "Rodney Chism on part of it and [the Defendant] on another part of it."

On September 1, 2017, at 9:33 p.m., Malone called Jackson and asked how much of the product he had left. When Jackson replied that he had "a hundred" grams left, Malone told him to save that for him. Jackson told Malone he would "give it to [him] tomorrow." Detective James explained that Jackson wanted to save the 100 grams of drugs for Malone to distribute it to his customers because Malone's customers were not complaining about the drugs.

On September 2, 2017, at 1:11 p.m., Jackson called Malone and asked if he still wanted "that whole th[i]ng," meaning did he want the whole 100 grams. Malone said he only had "7000" but that he still wanted to get the "whole th[i]ng[.]" Detective James said this meant that although Malone was a little short on cash, he still wanted the entire 100 grams of drugs.

On September 3, 2017, at 1:57, Malone called Jackson and said that he could not get his other money but had about "6 thousand" on him now, and Jackson replied that he could give him the rest of it later. Detective James interpreted this to mean that Jackson would give him the 100 grams of drugs and that Malone could pay him the rest back later.

On September 6, 2017, at 3:09 p.m., Jackson called Malone and asked where he was, and Malone replied that he was "in the room" at "Quality." Jackson asked if Malone wanted him to "bring it up there," and Malone told Jackson that he would meet him "at the house with Vikki." Detective James explained that dealers often liked to meet their customers in hotel rooms to sell them narcotics because it kept the police guessing where they would be.

Also on September 6, 2017, at 3:34 p.m., Malone called Jackson and told him to meet him "at the white junt." Jackson informed Malone that he was already in front of Malone's home, and Malone told him to "pull in the back." Detective James stated that Malone did not have to give an address or street name because Jackson knew where "the white junt" was located. He said that the white junt was Malone's family's home, where he commonly distributed narcotics, and that Malone's own home was located in the medical district off of Poplar and Decatur in Memphis.

On October 19, 2017, at 12:45 p.m., Jackson called Malone and asked if he wanted to "down the rest of the s[--]t," and Malone replied, "What[']s that a trick question[?]" Jackson said you "don't want to have too much," and Malone stated, "I[']m ready to get on what I can get." Jackson said that he could give Malone the "rest of" it, which was "like 84 left," which would be "200[.]" Detective Jackson explained that Malone was "confident and cocky" and knew he could sell whatever drugs Jackson brought him.

On October 23, 2017, at 3:41 p.m., Royal called Jackson and said that "Stan" wanted to know what time he thought it would happen, and Jackson responded that "Cor Cor just said tomorrow." Royal then said that "Unc ain[']t answer[ing] the phone," and Jackson stated "Just tell him tomorrow," and then said, "Unless you want to give him some of Unc s[--]t and put it with it. Until they get st[r]aight...