        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 August 24, 2010 Session

               STATE OF TENNESSEE v. JOANN WILLIAMSON

                Appeal from the Criminal Court for Campbell County
                       No. 14061    E. Shayne Sexton, Judge


               No. E2009-02363-CCA-R3-CD - Filed February 28, 2011


The Defendant, Joann Williamson, pled guilty to facilitation of the manufacture of
methamphetamine, a Class C felony, and two counts of child abuse and neglect, a Class D
felony. See T.C.A. § 39-17-417 (2010); T.C.A. § 39-15-401 (Supp. 2008) (amended 2009).
She was sentenced as a Range I, standard offender to six months’ incarceration and three
years, six months’ probation for the facilitation conviction and four years’ probation for each
of the child abuse convictions, to be served consecutively to the facilitation conviction for
an effective twelve-year sentence. The Defendant’s plea agreement reserved a certified
question of law regarding the legality of the warrantless search of her home. The Defendant
contends that the trial court erred in denying her motion to suppress evidence and that the
State should not be allowed to rely on more than one exception to the warrant requirement.
The State contends that the Defendant did not properly reserve the certified question. We
hold that the Defendant’s certified question was not properly reserved. The appeal is
dismissed.

                     Tenn. R. App. 3 as of Right; Appeal Dismissed

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

David M. Pollard, Jacksboro, Tennessee, for the appellant, Joann Williamson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; William Paul Phillips, District Attorney General; Michael O. Ripley,
Senior Assistant District Attorney General; and Leif Jeffers, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                         OPINION

       At the hearing on the motion to suppress, Josh Goins testified that he was an agent
with the Eighth Judicial Drug Task Force and that at the time of the Defendant’s arrest, he
was a detective with the Campbell County Sheriff’s Office. He said he had worked in law
enforcement approximately six years, attended the Tennessee Methamphetamine Task Force
basic laboratory technician school, and investigated approximately one hundred
methamphetamine laboratories. He said he was familiar with the hardware used in and odors
associated with methamphetamine production.

        Agent Goins testified that on January 3, 2009, he went to the Defendant’s home after
he received an anonymous tip from a male that someone was “cooking” methamphetamine
in the basement. He said that Detective Jamie Hall was with him and that neither was
wearing a uniform. He said that he knocked on the front door and that the Defendant came
to the door. He said he showed her his identification and explained why he was there.

       Agent Goins testified that when the Defendant opened the door, he could smell the
distinctive odor of methamphetamine manufacturing and could see children in the living
room. He said he told the Defendant that the children could be in danger from what was
happening downstairs. He said that the Defendant stepped back and opened the door and that
he understood her action as an invitation to enter and check the home.

       Agent Goins testified that another adult, Amy Cody, was upstairs and that she was
also charged with offenses related to the incident. He said that when he entered the home,
the Defendant asked who had called with the tip and that he said he could not tell her. He
said the Defendant did not ask if he had a search warrant and did not ask to see one. He said
that he told the children to move to the back of the home and that he opened a door for
ventilation. He said he was concerned about the children’s safety.

        Agent Goins testified that he opened the basement door and that the smell intensified.
He said that as he investigated the basement, the Defendant remained upstairs with the
children. He said the Defendant said nothing about the methamphetamine lab. He said that
in the basement, he saw an individual, later identified as David LeMarr, standing beside a
methamphetamine lab that was on a door laid across two sawhorses. He said the
methamphetamine was cooking, with visible gases coming from containers on the door. He
said the gases formed a thick smoke, requiring him to kneel down to see. He said that he
called for other methamphetamine technicians and equipment and that the investigation took
approximately six hours. He said he did not talk to the Defendant again during that time.




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        On cross-examination, Agent Goins testified that he thought it was raining on the
night of the incident but that he was not sure. He said he smelled the methamphetamine
cooking as soon as he left his car, which was parked in the driveway. He agreed he did not
see smoke when he was outside or at the front door. He said that when he saw the children,
they were standing in the living room and watching the door. He agreed the children were
not in any obvious distress, but he said he felt the children were in danger. He said that he
did not obtain oral or written consent to search the home but that he interpreted the
Defendant’s body language as consent.

       On redirect examination, Agent Goins testified that he did not draw his gun, bang on
the door, or threaten the Defendant when he arrived at the home. He said he did not think
he needed a search warrant due to the circumstances and the danger to the children.

       On recross-examination, Agent Goins testified that the children tested negative for
methamphetamine exposure. He agreed he was not at the Defendant’s home to pursue a
fleeing suspect, protect himself from harm, or prevent the destruction of evidence.

       The Defendant testified that on January 3, 2009, she and her husband lived with their
two grandsons in the home they had occupied for thirty-five years. She said she answered
a knock on the door and met Agent Goins, who identified himself. She said that she asked
him what he wanted and that he said he smelled a strange odor coming from her house as he
passed by. She said that he asked to come in and search and that she told him he needed a
search warrant. She said he told her that he did not need a search warrant because he smelled
the odor. She said that she repeated her request for a warrant and that he pushed the door
open with his foot and put his hand on his holster.

        The Defendant testified that when Agent Goins entered the house, her grandsons were
playing with their PlayStation and that the detective stepped over the PlayStation to ask what
was in the next room. She said that he went from room to room and then to the basement
door and that he wanted her to unlock the door. She said that she unlocked the door but that
she told him she did not know anyone was in the basement. She said she stood at the top of
the stairs and saw Agent Goins standing on the bottom landing before the step into the
basement. She said Agent Goins drew his gun and said, “If anybody is down there, they
better come out before I go to shooting.” She said she did not see any smoke coming from
the basement and did not go down the stairs.

       On cross-examination, the Defendant testified that she was scared when Agent Goins
entered the house. She said that the only other detective she saw that night was Detective
Hall and that she first saw Detective Hall standing in the hallway when Agent Goins came
up the basement stairs. She said Detective Hall told her and Ms. Cody to take the children

                                             -3-
into the kitchen and open the door. She agreed she did not tell Detective Hall that Agent
Goins had threatened or frightened her.

       The Defendant testified that the basement door was locked from the inside and that
it was the only way in or out of the basement. She said that the only person she could
identify being in the basement that day was Mr. LeMarr because the police later brought him
upstairs. She said that she had never smelled methamphetamine but that she had used it one
time. She denied using methamphetamine on the day her home was searched and said she
was sick that day. She denied smelling methamphetamine in her house or knowing that
anyone was manufacturing it.

        The Defendant testified that the police took her to jail that night. She said that they
arrested her husband, son, and other people who were in the basement, but she denied
knowing that those people were in the house. She said that the children were taken into state
custody and that three of them were her son Keith’s children. She said she knew Keith was
in the house on January 3, 2009, because he was looking for his father.

       After receiving the evidence, the trial court found the following:

                       [T]he consent issue is not favorable for the State. I don’t
              think that . . . you have enough consent to make entry into a
              home by–if you take the State’s proof where the defendant
              merely stepped away. That’s, in my opinion, not sufficient.
              There needs to be some greater consent, in particular, when
              we’re talking about entry into a home. That’s–that is a person’s
              castle and before any law enforcement can enter a home, it must
              be . . . clear and equivocal–unequivocal consent–an intelligent
              and knowing consent at any rate. But in this case, the State has
              failed to show that there was a valid consent, and that’s
              not–that’s without weighing the credibility of the defendant in
              that analysis.

              ...

              I don’t think there is any question the knock and talk theory
              would allow the officer to go to the porch and ask and seek
              information based on the tip and based on the smell. What
              happens after that becomes very sketchy.

              ...

                                              -4-
        The pervasive issue in this case is whether or not the
arresting officer had exigent circumstances to make entry into
the home. In reviewing the testimony and weighing the
credibility of each witness, the Court finds that the defendant’s
testimony was highly incredible noting primarily the lack of
knowledge that other people were in the house. I–in the setting
that as–as was explained to me, that is not likely nor is it
probable, and it cuts against her credibility.

       If you completely discount the credibility of the Defense
witness, then you have, of course, the State’s witness, the
only–the sole witness called by the State. There is still a
grave–a great issue concerning whether . . . there [are] sufficient
exigent circumstances.

...

       In this particular case, the officer has not been–it’s
certainly not disputed the officer was in a spot that was within
the knock and talk permissive area. His approach to the home
which was initiated by an anonymous tip and also the smell that
he has now come to associate with the manufacture of
Methamphetamine took him straight to the door and from that
spot, that spot alone is where after consulting with the
defendant, saw the children inside the home and at that point
decided that exigent circumstances exist for his entry.

...

       I find there was no consent given in any form or fashion.
So, this question is smell and viewing the children–is that
sufficient exigent circumstance. I didn’t–of course, I don’t have
the luxury of a great–of a lot of cases to go by, but our courts
have accepted the . . . proposition that warrantless entry can be
made into homes to protect human life.

       This officer has testified that through his training, [he]
knows that the gases are dangerous and knows the smell through
the hundred plus times he’s been on Methamphetamine labs.

                                -5-
              [Defense counsel] points out that there was no–it was a negative
              test. What happens after entry is really of no consequence. It
              may well go toward the vouching for the credibility of his
              witness–of the defendant’s witness. But in my opinion–and this
              is a close call . . . there was sufficient exigent circumstance to
              make entry, given the knock and talk spot was established and
              appropriate from that spot outside the home looking in, smelling
              the Methamphetamine components which were cooking and
              seeing the children, that there [were] exigent circumstances for
              the purpose of looking out for the safety of those children. And
              because of that, I’m going to uphold the search, and the items
              that were seized and viewed at the time of the arrest and entry
              are admissible at the trial.

        Following the trial court’s denial of the motion to suppress, the Defendant entered her
guilty plea at a hearing on October 26, 2009. The following passage was handwritten above
the signature lines on the waiver of jury trial and request for acceptance of guilty plea form:

              Defendant, pursuant to TRCP. (37)(b)(2)(D), has reserved a
              question for appeal. State agrees that pending appeal, all
              sentencing issues shall be stayed. (specifically, payment of costs
              & jail service)

Also on October 26, 2009, the trial court filed the Defendant’s certified question of law as
a separate document signed by the trial court and counsel for the Defendant. The prosecutor
did not sign the document but wrote, “N/A per T.R. Crim. Pro. 37(b)(2)(D)” on the State’s
signature line. The trial court signed the final judgments on October 29, 2009, but the
judgments failed to incorporate by reference the document stating the certified question. The
Defendant filed her notice of appeal on November 17, 2009. The trial court clerk did not file
the judgments until February 9, 2010.

        The State contends that the Defendant did not properly reserve the certified question
because a contemporaneously filed order incorporating the question does not satisfy the
procedural requirements of Tennessee Rule of Criminal Procedure 37(b)(2) and State v.
Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The State concedes that this court addressed
the issue in a June 8, 2010 order denying the State’s motion to dismiss the appeal. The order
contained the following analysis:

                     Even without the consent of the State, a defendant may
              appeal from a judgment entered pursuant to a plea agreement if

                                              -6-
              he or she, “with the consent of the court[,] explicitly reserve[s]
              the right to appeal a certified question of law that is dispositive
              of the case, and the requirements of [Tenn. R. Crim. P.] 37(b)(2)
              are met.” Tenn. R. Crim. P. 37(b)(2)(D). The dispositive
              certified question must be stated in the judgment or incorporated
              by reference into the judgment from a separately filed document
              and must clearly identify the scope and limits of the legal issue
              reserved. See State v. Irwin, 962 S.W.2d 477, 479 (Tenn.
              1998); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988).

                     The State relies on State v. Kristen A. Wilson, No.
              M2008-01243-CCA-R3-CD, slip op. (Tenn. Crim. App.,
              Nashville, Feb. 10, 2010), in support of its argument for
              dismissal. In Wilson, a panel of this court determined that the
              requirements for reserving a question of law were not met where
              an Agreed Order stating the substance of the certified question
              was entered on the same day as the judgment but not specifically
              referred to in the judgment. See id. at 2-4. However, the result
              in Wilson appears at odds with the supreme court’s opinion in
              State v. Armstrong, 126 S.W.3d 908 (Tenn. 2003). In
              Armstrong, the supreme court held that a corrective order stating
              the substance of the reserved question, which order was filed
              two days after the judgment nunc pro tunc to the date of entry of
              the judgment and before the filing of the notice of appeal, was
              sufficient to correct the fact that the judgment had made no
              reference to the certified question. See id. at 912. In fact, a
              panel of this court in State v. Bethany R. Mercer, No. E2009-
              00003-CCA-R3-CD, slip op. (Tenn. Crim. App., Knoxville,
              Dec. 22, 2009), followed Armstrong and determined that the
              requirements for reserving a certified question of law were met
              where the order stating the substance of the question was filed
              on the same date as the judgment, but not incorporated into the
              judgment by reference. See id. at 2-3. Because this court
              concludes that the requirements for reserving a certified
              question of law were met in this case, the State’s motion is not
              well-taken.

       The State argues that this court’s analysis is in error because Armstrong is
distinguishable from both Bethany R. Mercer and this case in that the document in
Armstrong containing the certified question was the trial court’s corrective order and thus

                                              -7-
replaced the original order before the Defendant filed a notice of appeal and while the trial
court still had jurisdiction to correct omissions in the record. See Tenn. R. Crim. P. 36;
Armstrong, 126 S.W.3d at 912. We note that despite the trial court clerk’s delay in filing the
judgments in this case, the trial court maintained jurisdiction until the judgments were filed,
and the Defendant’s notice of appeal was premature until that time. See T.R.C.P. 4(c). We
conclude that the distinction the State makes between Armstrong and Bethany R. Mercer is
unavailing.

        We note, however, that the State’s contention and our previous order deal only with
whether the certified question was properly reserved. Further review of the record reflects
that the Defendant failed to include a statement that the certified question is dispositive on
either the judgment or the document containing the question. For this reason, we must
conclude that the Defendant failed to meet the requirements for reserving a certified question
of law.

       Our supreme court has strictly construed the Preston requirements. See Armstrong,
126 S.W.3d at 911; State v. Irwin, 962 S.W.2d 477, 478-79 (Tenn. 1998); State v.
Pendergrass, 937 S.W.2d 834, 835 (Tenn. 1996). These requirements include that the final
order or judgment must contain a statement of the dispositive certified question of law and
that

              the order must state that the certified question was expressly
              reserved as part of a plea agreement, that the State and the trial
              judge consented to the reservation and that the State and the trial
              judge are of the opinion that the question is dispositive of the
              case.

Preston, 759 S.W.2d at 650. As this court noted in its June 8, 2010 order, the Defendant may
reserve the certified question without the consent of the State as long as all other
requirements are met pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(D).

        In this case, the trial court filed the order containing the certified question of law on
the same day that the trial court judge signed the final judgments. If the contemporaneous
order and judgment met all of the Preston requirements, the certified question would be
properly reserved. First, the judgment states that the Defendant has reserved a question for
appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(D), satisfying the
requirement that the certified question be expressly reserved on a plea of guilty. Second, the
trial court judge’s signature on the document and the judgment indicate that the question was
reserved with his consent, satisfying the second requirement. However, the final requirement
is not met because neither the document nor the judgment state that the trial court judge is

                                               -8-
“of the opinion that the question is dispositive of the case.” See Preston, 759 S.W.2d at 650;
Pendergrass, 937 S.W.2d at 835 (holding that judgments were insufficient to reserve a
certified question of law because they did not meet Preston requirements and noting that a
statement that the question was dispositive was “explicitly required by Preston”); State v.
Scott Eric McDonald, No. E2006-02568-CCA-R3-CD, Hamblen County, slip op. at 3 (Tenn.
Crim. App. Dec. 20, 2007) (holding that the defendant failed to reserve a certified question
because there was no indication of the trial court’s or State’s consent or agreement that the
question was dispositive).

       We conclude that we are without jurisdiction to consider the merits of the Defendant’s
claim because the Defendant has failed to meet the requirements for reserving a certified
question of law. In consideration of the foregoing and the record as a whole, the appeal is
dismissed.




                                               ___________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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