State of Tennessee v. Jermaine Mitchell Gray

07/25/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 9, 2024

STATE OF TENNESSEE v. JERMAINE MITCHELL GRAY

Appeal from the Circuit Court for Hardin County

No. 20-CR-79 J. Brent Bradberry, Judge

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No. W2023-01158-CCA-R3-CD

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The Appellant, Jermaine Mitchell Gray, appeals his conviction of the sale of 0.5 grams or

more of methamphetamine for which he received a sentence of ten years’ imprisonment.

He argues: (1) the evidence is insufficient to support his conviction; (2) the State failed to

reveal the existence and identity of a second confidential informant in violation of Brady

v. Maryland, 373 U.S. 83 (1963); and (3) the trial court denied his right of allocution before

sentencing. We additionally deny appointed counsel’s July 18 motion to withdraw as

counsel in this case. After review, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and JOHN W. CAMPBELL, SR., JJ., joined.

Jamie L. Lowrance, Selmer, Tennessee, for the appellant, Jermaine Mitchell Gray.

Jonathan Skrmetti, Attorney General and Reporter; Johnny Cerisano, Assistant Attorney

General; Matthew F. Stowe, District Attorney General; and Morgan B. Reynolds, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

This case stems from a controlled buy in which Agent Alex Davis provided a

confidential informant, N.T., with one hundred and twenty dollars and instructed her to

purchase drugs from the Appellant.1 While recording using a cell phone, N.T. purchased

a bag containing a white powdery substance from the Appellant. Later testing identified

1

We will refer to the confidential informants by their initials.

the substance as 1.92 grams of methamphetamine. The Appellant was charged with the

sale of 0.5 grams or more of methamphetamine. Tenn. Code Ann. § 39-17-434(a)(3).

At trial, Alex Davis, formerly a drug task force agent for the Twenty-Fourth Judicial

District, testified that N.T. became a confidential informant to “work off” a criminal

charge. After “working off” her charge, she continued to work as a confidential informant

in exchange for payment. On October 8, 2018, he arranged a controlled buy in which N.T.

purchased methamphetamine from the Appellant. B.I., another confidential informant, was

with N.T. Agent Davis and another officer met with N.T. and B.I. at a secure location.

They searched both informants and their vehicle before fitting them with audio and video

equipment. They provided them with one hundred and twenty dollars to purchase the

methamphetamine and told them the route to drive to the Appellant’s location.

After the informants left the secure location, Agent Davis watched a live feed of the

controlled buy. The live feed showed the Appellant selling the substance to the informants.

The informants returned to the secure location. Agent Davis secured the substance and

searched the informants and their vehicle. He did not find any additional drugs or money.

The recording of the live feed was admitted into evidence and played for the jury.

At the beginning of the recording, an officer stated he was giving one hundred and twenty

dollars to a confidential informant for a controlled buy from the Appellant. He provided

the phone and money to the two informants. Shortly after, the camera was covered and

remained covered for most of the drive to the location of the controlled buy. Music was

playing loudly. The informants arrived at the location and entered an apartment. They

approached a man and said, “one twenty,” and he responded, “sure, sure, sure.” They

followed the man into the kitchen. He placed an item in one of their hands, though the

item is not visible in the recording. The informants left the apartment. They returned to

the vehicle, and the camera was again covered for a portion of the drive with the music

playing loudly. The camera then remained on a bag containing a white powdery substance

for most of the drive back to the secure location.

Agent Davis testified that he conducted a field test of the substance, which indicated

it was methamphetamine. He then submitted the substance to the Tennessee Bureau of

Investigation (“TBI”) lab, which confirmed that the substance was 1.92 grams of

methamphetamine. The TBI lab report was admitted into evidence.

On cross examination, Agent Davis testified that he believed the original charge

N.T. was “working off” was fraud. He did not remember how much N.T. was paid in this

case but estimated it was between one hundred and one hundred and fifty dollars. He

acknowledged that he wrote in his report that he met with one informant, even though there

were two. N.T. and B.I. were kind of “a package deal” because they were in a relationship.

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B.I. was with N.T. for the majority of the controlled buys N.T. participated in, but B.I. was

not being paid or “working off” charges.

Agent Davis said the recording of the controlled buy was created by a cell phone

N.T. was holding. While the informants were driving to and from the Appellant’s location,

the camera was covered up for part of the time. The radio was also playing, so he could

not hear what they were saying. He identified the Appellant as the man shown in the

recording. Though the Appellant had a twin brother, he could tell the difference between

them. He acknowledged that he did not search the informant’s “underwear area” because

the department’s policy prohibited a male officer from doing so and they did not have any

female officers in the city. Because he had worked with N.T. and B.I. before, they would

have known how they were going to be searched.

N.T. testified that she became an informant because she was told her pending

forgery and theft charges would be dismissed. She did approximately ten controlled buys,

and her fiancé, B.I., was typically with her. On October 8, 2018, she was instructed to buy

drugs from the Appellant, who sold methamphetamine out of his apartment and whom she

knew as “Arab.” She was paid one hundred dollars. When asked about the buy, she stated

she did not remember “the actual going down.” However, she never bought drugs from

anyone other than the named target during controlled buys. Though Agent Davis searched

her and B.I. after the controlled buy, she was “pretty sure” B.I. stole methamphetamine

from the bag because they had methamphetamine the next day that they had not purchased.

She said she was not receiving any benefit in exchange for her testimony. She did not want

to testify because she feared potential repercussions and because she “[knew] people that

[knew] [the Appellant],” and she did not believe he deserved to go to jail.

On cross-examination, N.T. said she was previously convicted of identity theft and

possession of a schedule V drug with intent. She acknowledged that when she conducted

the controlled buy in this case, she was using drugs. She also acknowledged she had

“several” sexual encounters with the Appellant. She did not tell the police about these

encounters because B.I. was always with her. She also testified that she had previously

stayed at the apartment where she bought the methamphetamine from the Appellant. The

apartment belonged to her son’s father’s aunt and was “the only place [she] was able to see

[her] son.” When asked how B.I. hid the methamphetamine while Agent Davis searched

her, she responded that women “were born with a personal purse” that Agent Davis could

not search. N.T. played the radio loudly so the officers could not hear her and B.I. talking

and covered up the camera so B.I. could take some of the methamphetamine from the bag.

She acknowledged she had no personal memory of buying drugs from the Appellant.

The jury convicted the Appellant as charged. The trial court conducted a sentencing

hearing, during which the Appellant testified but did not make an allocution statement. He

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did not express a desire to make an allocution statement, and the trial court did not ask

whether he wished to do so. The trial court sentenced the Appellant to ten years’

imprisonment. The Appellant filed an unsuccessful motion for new trial, and this timely

appeal followed.

ANALYSIS

I. Sufficiency of the Evidence. The Appellant argues that the evidence is

insufficient to support his conviction because the State failed to establish: (1) that a sale

occurred; and (2) the Appellant’s identity as the perpetrator. He argues that the recording

does not show an exchange and N.T. had no specific memory of the exchange. Regarding

identity, he mentions that he has a twin brother but acknowledges that Agent Davis testified

that he could distinguish between them. The State responds, and we agree, that the

evidence is sufficient.

When evaluating the sufficiency of the evidence, this court must determine

“whether ‘any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Because a guilty verdict removes the

presumption of innocence and imposes a presumption of guilt, the Appellant bears the

burden of showing why the evidence is insufficient to support the verdict. Id. (citing State

v. Rice, 184 S.W.3d 646, 661 (Tenn. 2006)). The State is entitled to the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn from that evidence.

State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850,

857 (Tenn. 2010)). The jury evaluates the credibility of witnesses, determines the weight

given to their testimony, and reconciles all conflicts in the evidence. State v. Campbell,

245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn.

Crim. App. 1978)). This court “neither re-weighs the evidence nor substitutes its

inferences for those drawn by the jury.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn.

2012) (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

Tennessee Code Annotated section 39-17-434(a)(3) provides that “[i]t is an offense

for a defendant to knowingly . . . sell methamphetamine.” “[A] sale consists of two

components: a bargained-for offer and acceptance, and an actual or constructive transfer

or delivery of the subject matter property.” State v. Holston, 94 S.W.3d 507, 510 (Tenn.

Crim. App. 2002) (citing State v. Wilkerson, No. 03C01-9708-CR-00336, 1998 WL

379980, at *3 (Tenn. Crim. App. July 9, 1998)). “One who accepts payment in exchange

for property is involved in a sale.” Id. (citing Wilkerson, 1998 WL 379980, at *3). When

the amount of methamphetamine sold is 0.5 grams or more, the offense is a Class B felony.

Tenn. Code Ann. §§ 39-17-434(e)(1), 39-17-417(c)(1).

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In addition to the statutory elements, “[t]he identity of the perpetrator is an essential

element of any crime.” Rice, 184 S.W.3d at 662 (citing State v. Thompson, 519 S.W.2d

789, 793 (Tenn. 1975)). The identity of the defendant as the perpetrator may be established

by direct evidence, circumstantial evidence, or a combination of the two. State v. Thomas,

158 S.W.3d 361, 387 (Tenn. 2005). The identification of the defendant as the perpetrator

is a question for the trier of fact after considering all the relevant proof. Id. at 388.

Viewed in the light most favorable to the State, the evidence is sufficient to support

the Appellant’s conviction. Agent Davis testified that he arranged for N.T. to purchase

drugs from the Appellant. According to N.T., she had previous sexual encounters with the

Appellant and was therefore familiar with him. Agent Davis provided N.T. with one

hundred and twenty dollars and a cell phone to record the exchange. The recording shows

N.T. arriving at the apartment and approaching a man. She stated, “one twenty,” which

constituted an offer, and he responded, “sure, sure, sure,” which constituted an acceptance.

She then gave the money to the man, and he placed an item in her hand. Though the item

is not visible in the recording, N.T. returned with a bag containing a white powdery

substance that the TBI confirmed was 1.92 grams of methamphetamine. Agent Davis

confirmed that the man in the recording was the Appellant and specifically stated that he

could distinguish between the Appellant and his twin brother. Though N.T. testified that

she had no specific memory of the exchange, she confirmed that Agent Davis directed her

to buy drugs from the Appellant and that she never bought drugs from anyone other than

the named target during controlled buys. This evidence established that the Appellant sold

1.92 grams of methamphetamine to N.T., and the Appellant is therefore not entitled to

relief.

II. Brady Violation. The Appellant argues the State committed a Brady violation

by failing to reveal the existence and identity of a second confidential informant, B.I. He

contends that Agent Davis excluded mention of B.I. from his report and wrote that he met

with “a confidential informant” to conceal her participation. Because of this intentional

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exclusion, the Appellant did know about her participation until trial. According to the

Appellant, B.I.’s testimony “would directly contradict [the testimony of] Agent Davis,

[N.T.], or possibly both.” The State responds that the Appellant has waived his claim by

failing to raise it at trial or in his motion for new trial. The State argues the Appellant is

not entitled to plain error relief because he has not requested it and because he has not

shown a breach of a clear and unequivocal rule of law.

We note that the Appellant did not frame this issue as a Brady violation in his motion

for new trial; however, he did argue that the State failed to disclose this witness prior to

trial. We conclude that the issue is waived because, though it was raised in the motion for

new trial, it was not raised before or during trial. See Tenn. R. App. P. 36(a) (“Nothing in

this rule shall be construed as requiring relief be granted to a party . . . who failed to take

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whatever action was reasonably available to prevent or nullify the harmful effect of an

error.”); see also State v. Shumacker, No. E2019-01297-CCA-R3-CD, 2021 WL 684877,

at *9 (Tenn. Crim. App. Feb. 23, 2021), perm. app. denied (Tenn. June 9, 2021)

(concluding that the Appellant waived his Brady issue by failing to raise it in the trial court

or in his motion for new trial). Though it is within this court’s discretion to address waived

errors under the plain error doctrine, we decline to exercise such discretion in this case.

See Tenn. R. App. P. 36(b). The Appellant failed to request plain error review and failed

to file a reply brief responding to the State’s waiver argument. See State v. Thompson,

No. W2022-01535-CCA-R3-CD, 2023 WL 4552193, at *5 (Tenn. Crim. App. July 14,

2023) (“Where a defendant fails to respond to a waiver argument, only particularly

compelling or egregious circumstances could typically justify our sua sponte consideration

of plain error relief.”). Accordingly, we conclude that the Appellant has waived this issue

and is not entitled to relief.

III. Right of Allocution. The Appellant argues he was denied his right of

allocution before sentencing because the trial court failed to inquire whether he wished to

provide an allocution statement. The State responds, and we agree, that the trial court was

not required to inquire whether the Appellant wished to provide an allocution statement.

An allocution statement is “an unsworn statement from a convicted defendant to the

sentencing judge or jury in which the defendant can ask for mercy, explain his or her

conduct, apologize for the crime, or say anything else in an effort to lessen the impending

sentence. This statement is not subject to cross-examination.” State v. Keathly, 145

S.W.3d 123, 125 (Tenn. Crim. App. 2003) (quoting Black’s Law Dictionary 75 (7th ed.

1999)). Tennessee Code Annotated section 40-35-210(b)(7) allows for such a statement.

Section 40-35-210(b)(7) provides that in determining a defendant’s sentence, the court

shall consider “[a]ny statement the defendant wishes to make on the defendant’s own

behalf about sentencing.” It does not, however, impose on the trial court an affirmative

duty to inquire whether the defendant wishes to provide an allocution statement. See, e.g.,

Buchanan v. State, No. M2022-00190-CCA-R3-PC, 2023 WL 3476879, at *12 (Tenn.

Crim. App. May 16, 2023), no perm. app. filed; Johnson v. State, No. M2014-01419-CCA-

R3-PC, 2015 WL 832328, at *4 (Tenn. Crim. App. Feb. 26, 2015) (“Although a trial court’s

refusal to allow allocution is reversible error, trial courts are not required to inquire whether

the defendant wishes to make any such statement.”), perm. app. denied (Tenn. June 15,

2015); State v. Crawford, No. E2012-00001-CCA-R3-CD, 2013 WL 4459009, at *27

(Tenn. Crim. App. Aug. 19, 2013), no perm. app. filed (denying relief because though the

trial court “did not specifically ask the Defendant if he wished to allocute, [it] did not deny

the Defendant the opportunity to do so”).

The Appellant was not denied his right of allocution because he had the opportunity

to make an allocution statement. The Appellant relies solely on State v. Tucker, wherein

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this court concluded that the defendant was denied her statutory right of allocution when,

after expressing her desire to allocute rather than testify, “the [d]efendant was placed under

oath, read her statement, and was cross-examined by the prosecutor.” No. W2019-01368-

CCA-R3-CD, 2020 WL 9171957, at *1, *5 (Tenn. Crim. App. Nov. 25, 2020), perm. app.

denied (Tenn. Apr. 8, 2021). In this case, however, the Appellant did not express a desire

to allocute. Though the trial court did not specifically ask the Appellant whether he wished

to make an allocution statement, it did not prevent him from doing so. See Crawford, 2013

WL 4459009, at *27. Accordingly, the Appellant is not entitled to relief.

Finally, we acknowledge that on July 18, 2024, appointed counsel filed a motion to

withdraw with an attached memorandum of law. Tenn. Sup. Ct. R. 13, § 1(e)(5)

(“Appointed counsel shall continue to represent an indigent party throughout the

proceedings, including any appeals, until the case has been concluded or counsel has been

allowed to withdraw by a court.”). As grounds, counsel asserted a conflict of interest based

on Tennessee Supreme Court Rule 8, Rules of Professional Conduct 1.6(b)(1), 1.7(a)(2),

and 1.16(a)(1). The motion to withdraw further asserted that counsel had consulted with

the Tennessee Board of Professional Responsibility and “discussed the specifics of the

situation” as provided for by the Rules and was advised to seek permission to withdraw for

cause. However, neither the motion to withdraw nor the attached memorandum assert any

facts in support of counsel’s purported conflict of interest.

In addressing the motion to withdraw as counsel, we note that it was filed well after

the briefing in this matter was complete and almost simultaneously with the filing of the

opinion affirming the Appellant’s conviction. Under Court of Criminal Appeals Rule 12,

counsel will only be allowed to withdraw for good cause shown and if application is made

to this Court when counsel is not delinquent in his or her duties. Although Counsel is not

delinquent in his duties, he has not provided this Court with any facts upon which to grant

his motion, and nothing presently before this Court establishes an actual conflict of interest

or any other basis that would allow either mandatory or permissive withdrawal of counsel.

See State v. Branam, 855 S.W.2d 563, 566 (Tenn. 1993); State v. Street, 768 S.W.2d 703,

708 (Tenn. Crim. App. 1988).

That said, appointed counsel’s remaining obligations to the Appellant are limited to

compliance with the requirements of Tennessee Supreme Court Rule 14. Upon review of

this opinion and given the purported conflict of interest, if counsel determines he is unable

to pursue discretionary second tier review, he must provide written notification to the

Appellant of his withdrawal and the Appellant’s ability to proceed pro se. Rule 14 further

requires counsel to file a motion to withdraw within fourteen (14) days of this opinion:

The motion shall state that: (1) based upon counsel’s review of the opinion

of the intermediate appellate court, the brief filed on behalf of the indigent

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party in that court presents such issues as are available for second-tier

appellate review if sought by the party acting pro se, and (2) the written

notification prescribed by this Rule and a copy of the intermediate court’s

opinion have been forwarded to the indigent party.

The motion shall be accompanied by a copy of the written notification

forwarded to the indigent party. The written notification shall state: (1) that

counsel does not intend to file an Application for Permission to Appeal and

that counsel is asking the intermediate court for permission to withdraw; (2)

that the party may file a pro se Application for Permission to Appeal with the

Clerk of the Supreme Court if filed within sixty (60) days after entry of final

judgment in the intermediate appellate court; (3) the date on which the

intermediate court’s opinion was released; and (4) the date on which an

Application for Permission to Appeal is due. The written notification must

also reflect the party’s mailing address to which the notice was forwarded.

Tenn. Sup. Ct. R. 14.

Accordingly, the motion to withdraw as counsel is DENIED, pending compliance

with Rule 14 of the Tennessee Supreme Court Rules.

CONCLUSION

Based on the foregoing reasons and authority, we affirm the trial court’s judgment.

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CAMILLE R. MCMULLEN, PRESIDING JUDGE

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