State v. Williamson

368 S.W.3d 468

STATE of Tennessee

v.Guy Alvin WILLIAMSON.

No. W2011–00049–SC–R11–CD.

Supreme Court of Tennessee, at Jackson.

April 4, 2012 Session.

May 31, 2012.

Gary Antrican, District Public Defender; and Parker O. Dixon, Assistant Public Defender, for the appellant, Guy Alvin Williamson.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; David H. Findley, Senior Counsel; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

GARY R. WADE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

GARY R. WADE, J.

After an investigatory stop and frisk, the defendant was charged with the unlawful possession of a handgun after a felony conviction and the unlawful possession of a handgun while under the influence of alcohol and was convicted on both counts. The trial court imposed probationary sentences of three years and eleven months, twenty-nine days, respectively. The defendant appealed, arguing that his motion to suppress evidence should have been granted. The Court of Criminal Appeals affirmed. This Court granted the defendant's application for permission to appeal. Because the investigatory stop and frisk of the defendant was not supported by specific and articulable facts establishing reasonable suspicion that a criminal act was being or about to be committed, the trial court erred by failing to suppress the handgun found by the police and presented as evidence at trial. The judgments of conviction are, therefore, reversed and the cause dismissed.

At 1:25 a.m. on May 31, 2009, officers with the Covington Police Department were dispatched to the Baxter Motel in response to an anonymous 911 telephone call. Six different police officers responded to the dispatch from the department, some going to the second floor, while others remained at the first floor level. Guy Alvin Williamson (the “Defendant”) and other individuals were on the second floor balcony near the door to room 21. One officer, who saw a white male leaving room 21, stopped and frisked the individual but found no weapon. Meanwhile, another officer, prompted by an unnamed person at the scene, frisked the Defendant, who was standing three doors away from room 21, and found a .22 caliber Rossi revolver. After observing that the Defendant had slurred speech and smelled of alcohol, the officer placed the Defendant under arrest. Later, a grand jury indicted the Defendant on two counts: (1) the unlawful possession of a handgun after being convicted of a felony, Tenn. Code Ann. § 39–17–1307(c)(1) (Supp.2008); and (2) the unlawful possession of a handgun while under the influenceof alcohol, Tenn. Code Ann. § 39–17–1321(a) (2006).

Suppression Hearing

Officer William Nelson, who had driven to the scene in a marked police vehicle and arrived “in a minute or less” after the dispatch, was the only witness at the hearing on the Defendant's motion to suppress the revolver as evidence. On direct examination by the State, he testified that the dispatcher reported “[a]n armed party and possible robbery in progress” at the motel, which, he claimed, was “a place where local prostitutes, addicts, and sellers hang out.” Officer Nelson stated that the dispatch included “a possible description of two subjects” and asserted that the Defendant, an African–American, met one of the descriptions provided by the dispatcher. When asked specifically whether the Defendant's clothes matched the description in the dispatch, the officer answered, “Yes, sir.” He testified that Michael Short, one of the other five officers at the scene, patted down an individual whose surname was Yarbrough, but found nothing. Yarbrough was later determined to be a guest at the motel. Officer Nelson recalled that Officer Short, one of several officers responding to the anonymous tip, then frisked the Defendant and found a “small revolver” in his right front pocket.¹ He stated that when the weapon was discovered, the Defendant exclaimed, “I don't know whose it is and I don't know how it got there.”

On cross-examination, Officer Nelson acknowledged that the arrest warrant he had prepared did not contain any reference to “an armed robbery in progress” and did not include any reference to the description of any suspect from the police dispatch. He explained that he did not include the information regarding a possible robbery in the warrant because he and the other officers had been unable to “validate it” at the scene. While conceding that he had not heard the original 911 call to the department and had no knowledge of its content, Officer Nelson nevertheless insisted that the dispatch, his only source of information, was for “an armed robbery in progress.” When confronted during his cross-examination with a recording of the dispatch,² however, he admitted that the dispatcher did not mention a possible robbery and speculated that he must have received that information from someone after he arrived at the scene. The officer also admitted that the recording of the dispatch did not include a description of the weapon, any information about the ethnicity, gender, or physical appearance of the suspect or suspects, or any reference to the clothing worn. Officer Nelson, who denied drawing his weapon when he arrived at the scene, could not recall whether any of the other officers had done so. There was no testimony at the hearing regarding the Defendant's use of alcohol, although the arrest warrant, which was made an exhibit, included allegations that the Defendant smelled of alcohol and had slurred speech.

Based upon this testimony, the trial court denied the motion to suppress the revolver as evidence. While mistakenly concluding that Officer Nelson had frisked the Defendant when the only testimony was that Officer Short had done so, the trial court ruled that the circumstances warranted an investigatory stop and frisk of the Defendant for possible weapons.

Trial

Officer Short testified that he arrived less than a minute after receiving the dispatch. The five others responding to the scene were Officers Garrian, Baskin, Parker, Nelson, and McCurrie. Officer Short recalled that he first patted down a white male walking out of room 21, but found no weapons or contraband. He then checked the inside of the room, which was empty. When he returned to the balcony, he observed Officer McCurrie frisk the Defendant, who was standing three doors away, and saw him remove a .22 caliber Rossi revolver from the Defendant's pocket. Officer Short had no recollection of the Defendant's demeanor or his condition. On cross-examination, he acknowledged that the revolver taken from the Defendant was not capable of firing a bullet, as the trigger was inoperable, the hammer would not fully recoil, and the cylinder did not rotate.

Officer McCurrie, who was employed by the 25th Judicial District Drug Task Force, also responded to the Baxter Motel dispatch. He confirmed that there was no reference in the dispatch to a “robbery in progress”—only a report of “an armed party.” When he arrived at the scene and observed that Officer Garrian was pointing his service weapon toward “a subject on the balcony” of the second floor, Officer McCurrie exclaimed, “Aw, man!” He then saw a white male, who was being questioned by Officer Short, and two black males “standing up there.” After being “nudg[ed]” by an unidentified black male who indicated that the Defendant had a gun, Officer McCurrie walked up the stairs, patted down the Defendant, and found the revolver. During the search, the officer noticed that the Defendant had “slurred speech,” was “loud,” and “smelled of alcohol.” On cross-examination, Officer McCurrie acknowledged that the dispatch did not include the race or the gender of the “armed party,” although there were no women at the motel when he arrived.

The State also introduced as evidence a certified copy of a judgment dated October 1, 1993, which established that the Defendant had previously been convicted of possession of contraband in a penal institution, Tenn. Code Ann. § 39–16–201(a)(2) (1991), a Class C felony. The Defendant offered no proof. After deliberations, the jury returned guilty verdicts for each of the two counts as charged in the indictment. The trial court imposed probationary sentences of three years for felony possession of a handgun, a Class E felony, and eleven months, twenty-nine days for possession of a handgun while under the influence, a misdemeanor.

Appeal

On appeal, the Court of Criminal Appeals affirmed, holding that the investigatory stop and frisk of the Defendant was based upon reasonable suspicion. State v. Williamson, No. W2011–00049–CCA–R3–CD, 2011 WL 3655135, at *4 (Tenn.Crim.App. Aug. 19, 2011). Although finding that the trial court had mistakenly concluded that Officer Nelson, rather than Officer Short or Officer McCurrie, had conducted the frisk of the Defendant, the Court of Criminal Appeals classified the error as inconsequential because the totality of the circumstances established the requisite reasonable suspicion, supported by specific and articulable facts, that a criminal offense was being committed:

The defendant was in the close vicinity of the motel room given in the dispatch, and he was pointed out to Officer McCurrie by an African–American male at the scene as the armed individual. Even though it was an anonymous tip which directed the police officers to the area, the detention of the defendant was fully justified by what the officers learned and observed once they arrived at the scene.

Id.

In the application for permission to appeal to this Court, the Defendant asserted that because Officer Nelson, upon being confronted with the contents of the recorded dispatch at the suppression hearing, recanted his testimony about having...