IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 20, 2013 Session

STATE OF TENNESSEE v. HEATHER McMURRAY 

Appeal from the Criminal Court for Knox County

No. 95356 Jon Kerry Blackwood, Judge

No. E2012-02637-CCA-R3-CD - Filed December 16, 2013

The defendant, Heather McMurray, was convicted by a Knox County Criminal Court jury

of three counts of the sale of less than .5 grams of cocaine within 1000 feet of a school zone,

three counts of the delivery of less than .5 grams of cocaine within 1000 feet of a school

zone, possession of less than .5 grams of cocaine with the intent to sell within 1000 feet of

a school zone, and possession of less than .5 grams of cocaine with the intent to deliver

within 1000 feet of a school zone, all Class B felonies. The trial court merged the

convictions based on the same incidents and sentenced the defendant as a Range I, standard

offender to concurrent terms of twelve yearsfor each conviction, with a mandatory eight-year

sentence in the Department of Correction due to the fact that the offenses were committed

in a drug-free school zone. The defendant raises three issues on appeal: (1) whether the

evidence is sufficient to sustain her convictions; (2) whether the trial court erred in allowing

a police officer to testify as an expert witness; and (3) whether the trial court erred by

denying her motion for a mistrial after the State played a redacted version of her statement

to police. Following our review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ALAN E. GLENN,J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., and

ROGER A. PAGE, J., joined.

Mike Whalen, Knoxville, Tennessee, for the appellant, Heather McMurray.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and Phillip Morton, Assistant

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

FACTS

In July 2010, a confidential informant working for the Knoxville Police Department

made three controlled drug buys of crack cocaine from the defendant at her Knoxville

apartment. The defendant was arrested and her apartment searched, which resulted in the

discovery of a small amount of crack cocaine and some drug paraphernalia. The Knox

County Grand Jury subsequently returned a nine-count indictment charging the defendant

with three counts each of the sale and delivery of less than .5 grams of cocaine within 1000

feet of a school zone, possession of less than .5 grams of cocaine with the intent to sell and

deliver within 1000 feet of a school zone, and possession of drug paraphernalia. The

defendant pled guilty to the drug paraphernalia charge and proceeded to trial on the

remaining counts of the indictment.

The State’s first witness at trial was the confidential informant, who testified that for

the past five years he had occasionally worked as an informant for the Knoxville Police

Department by purchasing drugs from individuals about whom the police department had

received complaints. He estimated that he had engaged in 90 to 100 such transactions during

that time and said that he was paid in cash for each transaction. He had not, however, been

paid for his testimony against the defendant. He acknowledged that he had some criminal

history himself, having been convicted of aggravated assault and “some misdemeanors.”

The confidential informant testified that in June 2010, Investigator Jinks of the

Knoxville Police Department asked him to attempt to purchase some crack cocaine from the

defendant, whom he had not previously known. He explained that InvestigatorJinks had him

do what was called a “cold walk-up,” in which he would approach someone about whom the

department had received a drug complaint and attempt to strike up a conversation to see if

he could buy whatever it was the person was alleged to be selling. Using that procedure, he

met the defendant sometime in June, and she gave him her telephone number. On July 2,

2010, he conducted the first of three controlled buys from her. The confidential informant

described the procedure employed during each controlled buy, testifying that he would meet

the officers at a predetermined location for them to search him and give him $40 in cash for

the drug purchase and outfit him with a transmitter and recorder, drive to the defendant’s

home in his vehicle while the officers accompanied and monitored him in separate unmarked

vehicles, make the drug purchase, and then meet the officers again at the predetermined

location to give them the drugs and be searched again. He said he was paid $100 for each

of the transactions. The confidential informant identified the audio recordings of the three

drug transactions, which were played for the jury and admitted as exhibits. During the

playing of the recordings, he narrated for the jury what was happening.

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The confidential informant testified that during the July 2 transaction he knocked on

the defendant’s door, asked the man who answered whether the defendant was home, and

was told that she was not. He said he encountered the defendant as he was leaving the porch,

and they had a discussion about his buying “40,” or $40 worth of crack cocaine from her.

She left to go get it, and he waited on the porch until she returned approximately twenty to

forty-five minutes later. He said she gave him the crack cocaine that was in her hand, along

with “a little bit extra” from the table because he had had to wait so long. He then drove

back to the predetermined spot to turn over the drugs to Investigator Jinks.

The confidential informant testified that during the next transaction on July 5 he

encountered the defendant as he was getting back into his vehicle at her residence after

knocking on the door and being informed that she was not there. He said he asked her if she

had found any and mentioned a “40,” meaning $40 worth of crack cocaine. He stated that

she told him to come around to the front and when he did so, she walked to someone inside

a vehicle in front of her residence, retrieved the drugs, and brought them to him. He paid her

and then returned to the predetermined location to turn the drugs over to Investigator Jinks.

The confidential informant testified that he returned to the defendant’s residence the

following day, July 6, for the third transaction. After knocking at her door and receiving no

answer, he called the defendant on the telephone to find out where she was and whether she

had $40 worth of crack cocaine available to sell to him. He then sat on her porch and waited

for her to return to her home. As he waited, a woman named Rita walked up to the house and

engaged him in conversation, telling him to call the defendant back to tell her that she had

$8.75 and wanted to buy some crack cocaine from the defendant as well. He called the

defendant back, and she informed him of her location and told him to tell Rita that she would

“get with [her] when she got there and take care of her.” He next saw the defendant driving

down the street in her Cadillac. She pulled up in the driveway, called him over to her

vehicle, and gave him some crack cocaine, for which he handed her $40 in cash. As she

handed him the crack cocaine that was already in her hand, he saw a baggie of crack cocaine

in the console of her vehicle. He then returned to the predetermined location, where he

turned the drugs and transmitter over to Officer Geddings of the Knoxville Police

Department, was searched, and received his $100 payment for the transaction.

On cross-examination, the confidential informant acknowledged that in each

transaction the defendant went somewhere to retrieve the drugs that she sold him. He also

testified that the drugs the defendant sold him were not packaged when the defendant handed

them to him.

Investigator Philip Jinks of the Knoxville Police Department testified that he was

assigned to the “repeat offender squad,” which did not necessarily investigate repeat

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offenders but rather primarily focused on “street level drug investigations.” He detailed his

training and experience as a street level drug investigator and described the investigative

procedure employed by his unit in response to citizen complaints about possible drug activity

in the community, including their use of confidential informants to perform “cold walkup[s]” in an attempt to make a drug buy from a suspected dealer. He testified that the

confidential informant in this case came to the attention of his unit after he had provided a

patrol officer responding to a call with some information. Investigator Jinks said that he then

met with the informant, who expressed an interest in becoming a paid confidential informant.

He said that he had used the informant in that capacity since 2005 or 2006, during which time

he had participated in approximately 90 to 100 controlled buys.

Investigator Jinks testified that his investigation of the defendant began with a citizen

complaint about her apartment, which prompted him to conductsurveillance at that location.

During the course of that surveillance, he observed people knocking on the defendant’s

apartment door, going inside, staying a minute, and then leaving. He also observed the

defendant coming and going from the apartment at “all hours.” He then contacted the

confidential informant and asked him to make the series of controlled buys from the

defendant. Investigator Jinks described the process he conducted with each controlled buy,

testifying that he first searched the confidential informant and his vehicle before providing

him with a digital audio recorder and transmitter and $40 in cash for each transaction, that

officers maintained surveillance on the informant as he drove to the defendant’s apartment,

that he monitored the informant’s conversations with the defendant during the transactions,

and that officers searched the informant and his vehicle again upon the completion of the

transactions. He testified that each of the substances that the informant turned over to the

officers after the controlled buys field-tested positive for cocaine and was later transported

to the Tennessee Bureau of Investigation (“TBI”) laboratory for analysis.

Investigator Jinks’s description of each controlled buy essentially corroborated the

accounts provided by the confidential informant, except that Investigator Jinks recalled that

the informant was paid $100 for the first controlled buy and $80 for each of the two

subsequent controlled buys. Investigator Jinks also provided the additional information that

when the informant drove off after the July 5 buy, he saw the defendant walk to the

automobile from which she had obtained the substances and hand the driver the money that

the informant had just given her. Investigator Jinks testified that upon the completion of the

July 6 transaction, he had other officers follow the informant back to the predetermined

location while he maintained surveillance of the defendant’s vehicle, following it to a nearby

Kroger. He said that as he did so, he called for a marked patrol unit to stop the vehicle in

order to make a positive identification of the defendant as the driver.

Investigator Jinks testified that on July 8, 2010, he and fellow officers went to the

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defendant’s apartment to conduct a search. He said that he was in plain clothes and

approached the apartment from one direction while uniformed officers approached it from

a different direction. He stated that the uniformed officers knocked on the apartment door

as he walked around the end of the building and that the defendant came out of the apartment

next to her apartment, made a motion to wave him away, and said, “The police are here. The

police are here.” At that point, he showed her his badge, identified himself as a police

officer, and told her that they needed to talk. She then invited him inside her apartment,

where he and his fellow officers conducted a search. During the search, they found a black

ceramic plate with several small rocks of crack cocaine and a razor blade on it and a crack

pipe and a blunt cutter. Investigator Jinks explained that the presence of the razor blade

indicated to him that larger pieces of crack cocaine were being cut into smaller pieces for

resale. He said he located the defendant’s Cadillac down the street and inside the vehicle

found the defendant’s purse with a “reloadable Visa card” in someone else’s name, as well

as an “EBT,” or food stamp, card in the name of “Rita Wampler.”

InvestigatorJinkstestified that he took the defendant into custody and interviewed her

at the Knoxville Police Department. He said the defendant told him she would buy $50

worth of crack cocaine and smoke some of it herself and sell the rest of it. She also spoke

of how she had for the past two months been “doubling up” on her transactions, which meant

that she would buy $50 worth of crack cocaine and try to sell the same amount for $100. She

acknowledged that when she first saw Investigator Jinks outside her apartment she thought

he was there to buy some crack cocaine. She also acknowledged that “Rita” had given her

her EBT card in exchange for some crack cocaine.

On cross-examination, Investigator Jinks acknowledged that someone could use a

razor blade to cut crack cocaine to put into a crack pipe to smoke, rather than to sell. He

further acknowledged that he did not find any digital scales, plastic baggies, or drug log

books inside the defendant’s apartment.

Officer Michael Geddings of the Knoxville Police Department testified that he was

assigned to the repeat offender unit and provided surveillance of the confidential informant

during the July 6, 2010 undercover drug operation. He said he searched the informant after

the transaction, placed in a sealed envelope the substance the informant purchased, which

field-tested positive for cocaine, and later had it sent to the TBI laboratory for analysis.

The parties agreed by stipulation that Sergeant Josh Schaffer of the Knoxville Police

Department would have testified that when he stopped the defendant’s vehicle on July 6,

2010, the defendant was driving it.

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Douglas Ryerkerk, an employee of Knox County School Security, testified that Belle

Morris School on Washington Pike had been an elementary school for over thirty years,

including during July 2010.

Craig McNew testified that he worked in the property management unit of the

Knoxville Police Department and that he transported to and from the TBI laboratory the

narcotics at issue in the case.

TBI Special Agent Forensic Scientist Jacob White, who analyzed the substances

obtained in the July 2 and July 5 transactions, testified that they consisted of, respectively,

.14 grams and .23 grams of cocaine base. The parties stipulated that the substances obtained

in the July 6 transaction and the July 8 search of the defendant’s home were analyzed by

other TBI forensic scientists who determined that they each consisted of .1 grams of cocaine

base.

James Brink, a web developer and programmer employed by KGIS, testified that he

determined that the distance between Belle Morris Elementary School and the defendant’s

home was 572 feet.

The defendant testified that she was forty-three years old and had been using crack

cocaine since 1991. She said that she obtained money to buy her drugs by shoplifting and

committing forgeries and that she had “a lot” of criminal history, having pled guilty

whenever she was charged with those offenses because she was guilty. She insisted,

however, that she was not guilty of the crimes with which she was currently charged, which

was why she had chosen to go to trial. The defendant explained that she first came into

contact with the confidential informant through Rita, who lived near her and panhandled for

a living. She said that Rita asked her to buy crack cocaine for someone who was at her house

and that she agreed, taking the money from Rita, driving to a housing project to buy some

crack cocaine, and returning to her apartment, where she gave some of the crack cocaine to

Rita and kept some to smoke herself. The defendant testified that at some point the

confidential informant approached her directly, telling her that Rita usually sent her to go get

his drugs and he wanted to know if she had any crack cocaine for him. The defendant said

she told the informant that she did not have any on her but would go get some for him.

The defendant testified that the traffic in and out of her apartment consisted of her

three teenaged daughters, their friends, and her own friends and that she used the crack pipe

and blunt cutter for her personal consumption of crack cocaine.

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ANALYSIS

I. Sufficiency of the Evidence

The defendant first contends that the evidence is insufficient to sustain her

convictions, arguing that the “minuscule amount” of drugs involved in the case, along with

the fact that she handed the money she received from the confidential informant to the

“actual drug dealer” in the vehicle, supports a finding that her actions consisted merely of a

casual exchange. The State responds that there is ample evidence in the record for a

reasonable jury to conclude that the defendant sold and delivered cocaine and possessed

cocaine with the intent to sell and deliver. We agree with the State.

In considering this issue, we apply the rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in

criminal actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);

State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,

604 (Tenn. Crim. App. 1992).

All questions involving the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the

trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our

supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)).

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“A jury conviction removes the presumption of innocence with which a defendant is

initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has

the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).

The defendant was convicted of three counts of the sale of less than .5 grams of

cocaine within 1000 feet of a school zone and one count of possession of less than .5 grams

of cocaine with the intent to sell within 1000 feet of a school zone. To sustain the sale

convictions, the State had to prove beyond a reasonable doubt that the defendant knowing

sold less than .5 grams of cocaine, a Schedule II controlled substance, and that the

transactions occurred within 1000 feet of a school. Tenn. Code Ann. §§ 39-17-417(a)(3),

(c)(2)(A), -432(b)(1). To sustain the possession conviction, the State had to prove beyond

a reasonable doubt that the defendant knowingly possessed less than .5 grams of cocaine with

the intent to sell and that the possession occurred within 1000 feet of a school. Tenn. Code

Ann. §§ 39-17-417(a)(4), (c)(2)(A), -432(b)(1).

The defendant argues that the evidence supports a casual exchange of drugs rather

than a sale. Tennessee Code Annotated section 39-17-418(a) provides that “[i]t is an offense

for a person to knowingly possess or casually exchange a controlled substance, unless the

substance was obtained directly from, or pursuant to, a valid prescription or order of a

practitioner while acting in the course of professional practice.” A “casual exchange”

generally “contemplates a spontaneous passing of a small amount of drugs, for instance, at

a party. Money may or may not be involved.” State v. Copeland, 983 S.W.2d 703, 708

(Tenn. Crim. App. 1998). As this court has previously explained:

“[w]hether a transfer is a casual exchange is to be determined from all the facts

and circumstances of the case. Facts and circumstances indicating that the

transaction is not a casual exchange include a lack of evidence that the

defendant gave the drugs to the buyer out of friendship or as a friendly gesture,

no evidence reflecting anything other than a pecuniary motive for the transfer

of the drugs, no prior relationship between the defendant and the buyer, and

no reason for the defendant and the buyer to be together, other than for the

buyer to purchase drugs.”

State v. Bernard Miguel Wallace, No. W2004-02124-CCA-R3-CD, 2006 WL 16315, at *4

(Tenn. Crim. App. Jan. 3, 2006) (citations omitted) (quoting State v. Donald L. Haynes, No.

E2000-00672-CCA-R3-CD, 2001 WL 416729, at *4 (Tenn. Crim. App. Apr. 24, 2001)).

The evidence, viewed in the light most favorable to the State, is more than sufficient

for a rational jury reasonably to find that the transactions constituted sales rather than casual

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exchanges of drugs. There was no evidence of any friendship between the defendant and the

informant, of any reason that they were together other than for the sale of the drugs, or of any

non-pecuniary motive on the part of the defendant for the transfer of the drugs. The evidence

is also sufficient for a rational jury reasonably to find that the defendant possessed the drugs

found in her home with the intent to sell them. Accordingly, we conclude that the evidence

is sufficient to sustain the defendant’s convictions.

II. Testimony by Investigator Jinks

The defendant next contends that the trial court erred by allowing Investigator Jinks

to testify as an expert witness. The State responds by arguing that the trial court committed

no error in this matter because the State did not tender, and the trial court did not declare,

Investigator Jinks as an expert witness and he did not offer any expert opinion in the case.

The record reflects that as the prosecutor was beginning to question Investigator Jinks

about his background, defense counsel offered to stipulate to his “qualifications as a police

officer.” When the prosecutor replied that he would like to qualify him as an expert in street

level drug crime, defense counsel objected on the basis that he had not been provided with

any notice of expert testimony. The trial court responded that the witness was “just giving

. . . his background,” and that it did not know whether he would be offering an expert opinion

but would rule on the issue when and if it came up. Thereafter, Investigator Jinks continued

his testimony without the prosecutor ever moving that he be qualified as an expert witness

or the trial court ruling on the motion. We, therefore, agree with the State that the defendant

is not entitled to relief on the basis of this issue.

III. Denial of Mistrial

Lastly, the defendant contends that the trial court erred by denying her motion for a

mistrial after the State played a redacted version of her statement in which Investigator Jinks

asked her who brought the gun to her apartment. The defendant argues that the information

about a gun, when she was not charged with a gun offense, constituted “incredibly prejudicial

and inadmissible evidence” that should have warranted a mistrial. The State responds by

arguing that the trial court did not abuse its discretion in declining to grant a mistrial,

asserting that “[t]he brief mention of a firearm . . . was not prejudicial and certainly did not

create a manifest necessity for a mistrial.”

The record reflects that defense counsel objected before the trial began to the playing

of the entire interview with the defendant, arguing that it was “chock-full of stuff that doesn’t

belong” in the trial, including information about the defendant’s probation violations,

previous prison experience, and her providing the investigator with names and phone

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numbers of her drug contacts. The prosecutor responded that he had not yet made the

decision about whether to play the statement, but if so he would redact it to avoid any

mention of the defendant’s criminal history. As the State points out, defense counsel raised

no objection at that point about the portion of the videotape that contained Investigator

Jinks’s gun discussion with the defendant, despite the fact that he had been provided with the

original videotaped statement, albeit not with a redacted version or a transcript of the

portions that the State intended to play.

The videotaped statement was later played for the jury during Investigator Jinks’s

testimony, with the prosecutor apparently fast-forwarding over objectionable parts and

stopping at various points to ask Investigator Jinks to explain the terminology. When the

1

videotape reached a portion of the interview in which Investigator Jinks asked the defendant,

“Who brought the gun in?” defense counsel objected and the following bench conference

was held:

[DEFENSE COUNSEL]: Here’s my problem with this. Now we’re going to

put in the gun stuff, and there’s no gun involved.

THE COURT: I can’t – I can’t –

[DEFENSE COUNSEL]: She – now we’re –

THE COURT: I can’t hardly understand what they’re talking about.

[DEFENSE COUNSEL]: Well, for one, this is a terrible quality. The quality

of the copy I was given is much better than this. They’ve digitized it, and

that’s what’s making it so screechy and bad, but now we’re talking about who

brought the gun over. There’s no allegation of gun in this charge–this thing.

Let’s just beat her up with it.

[PROSECUTOR]: And they clarify all that. There wasn’t a gun – there’s

been a gun in the past, and they’re not trying to charge her with a gun. They

found some bullets in this search. There wasn’t any gun found.

[DEFENSE COUNSEL]: Which makes it irrelevant as it shouldn’t be in trial.

Defense counsel states in his brief that at trial a transcript of the interview was “joined to the video” 1

with the “text running below the video.” However, neither the original copy of the videotape, which was

admitted for identification purposes only, nor the redacted version, which was admitted as a trial exhibit and

in which the conversation about the gun was removed, contains any text of the interview. 

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That’s why I objected to playing this tape, and I haven’t been provided any

redacted version.

THE COURT: I mean, what is she saying right there? What is he saying

there?

After counsel provided the words for the court, the court suggested that they take a

ten-minute break and “move past the gun part.” During the break, defense counsel requested

a mistrial, arguing that the statement about the gun wasinflammatory, irrelevant, and unfairly

prejudicial to his client’s case. The trial court ruled that the question about the gun was

irrelevant, ordered that the State fast forward past all mention of the gun and bullets before

resuming the playing of the videotape, and denied the request for a mistrial. The court

originally expressed its intention to issue a curative instruction to the jury to disregard the

conversation about the gun but changed its mind after defense counsel requested that no such

instruction be given so as not to draw the jury’s attention to the matter.

The decision of whether or not to declare a mistrial lies within the sound discretion

of the trial court. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A mistrial

should be declared in a criminal case only when something has occurred that would prevent

an impartial verdict, thereby resulting in a miscarriage of justice if a mistrial is not declared.

See id.; State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App. 1999); Arnold v. State, 563

S.W.2d 792, 794 (Tenn. Crim. App. 1977). “Generally a mistrial will be declared in a

criminal case only when there is a ‘manifest necessity’ requiring such action by the trial

judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold,

563 S.W.2d at 794). A manifest necessity exists when there is “no feasible alternative to

halting the proceedings.” State v. Knight, 616 S.W.2d 593, 596 (Tenn. 1981). The burden

to show the necessity for a mistrial falls upon the party seeking the mistrial. Land, 34 S.W.3d

at 527. This court will not disturb the trial court’s decision unless there is an abuse of

discretion. Id.

We agree with the State that the defendant has not shown any manifest necessity for

a mistrial based on the brief, almost inaudible, mention of a gun during the playing of the

videotaped statement. We conclude, therefore, that the trial court did not abuse its discretion

in denying the mistrial and that the defendant is not entitled to relief on the basis of this issue.

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CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the trial

court.

_________________________________

ALAN E. GLENN, JUDGE

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