                                                                                          08/21/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               January 17, 2019 Session

                STATE OF TENNESSEE v. JAMES MITCHELL

                  Appeal from the Circuit Court for Wayne County
                      No. 15744 Stella L. Hargrove, Judge
                     ___________________________________

                           No. M2018-00368-CCA-R3-CD
                       ___________________________________

Defendant, James Mitchell, entered a plea of guilty to possession with intent to sell more
than .5 grams of methamphetamine. The trial court sentenced Defendant as a Range I,
standard offender, to eight years. Defendant attempted to reserve a certified question of
law under Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, challenging
the trial court’s denial of his motion to suppress the evidence seized after a search of his
person that occurred when he arrived by car at another person’s home which was being
searched pursuant to a search warrant. After review, we conclude that this Court does not
have jurisdiction to address the certified question because the certification did not meet
the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The appeal is,
therefore, dismissed.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Brandon E. White, Columbia, Tennessee (on appeal) and Hershell Koger, Pulaski,
Tennessee (at trial) for the appellant, James Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Brent A. Cooper, District Attorney General; and Beverly
White, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

   I.     Factual Background

      Defendant filed a motion to suppress the evidence seized during a search of his
person, alleging the following grounds:
        Defendant submits that the search of Defendant’s person was unlawful
        on the following bases to wit: The search was warrantless, the search
        was beyond the scope of the search warrant; the search warrant was
        overbroad; the search warrant did not apply to the Defendant’s person;
        the detention of the Defendant was unlawful; the search of the Defendant
        was unlawful; the degree of the search of the Defendant was unlawful.

Following a hearing, the trial court denied Defendant’s motion to suppress.

       At the suppression hearing, Investigator Dusty Malugen of the Wayne County
Sheriff’s Office testified that on July 7, 2015, he obtained a search warrant for the
residence of Arnold Stevens located at 199 Jennifer Lane in Collinwood. Investigator
Malugen noted that a confidential informant (“CI”) had previously gone to the residence
on July 6, 2015, and purchased “illegal narcotics” from Mr. Stevens and Jodie Cox. He
said that “approximately nine pounds of marijuana, Schedule I LSD acid, several drug
paraphernalia, firearms, et cetera” were found during the search. Investigator Malugen
noted that Defendant was not at the residence when they began executing the warrant.
He said that Defendant pulled into the driveway during the search in a red Ford Bronco
II, and Ms. Cox was in the vehicle with him. Investigator Malugen testified that the
property was “in the middle of nowhere,” and the residence was at a “dead end.” He had
no doubt that Defendant was going to the home since it was highly unlikely a person
would inadvertently drive to the home. Another female, Bailey Atkinson, was also in the
vehicle with Defendant and Ms. Cox. Deputy Malugen knew that Ms. Cox had
outstanding warrants for her arrest.

       Investigator Malugen testified that Ms. Cox was removed from the vehicle and
taken into custody. He also had Defendant get out and stand next to his Bronco. He said:
“For officer safety, I did a pat down on [Defendant].” To his knowledge, he did not place
his hands inside Defendant’s pockets. Investigator Malugen further testified: “I have
made it a common habit to ask them if they have any weapons, firearm, anything like that
on them. [Defendant] said he did have a knife in his pocket.” He asked Defendant to
remove the knife very slowly. Defendant then pulled the knife out along with a bag of
methamphetamine that was later determined to weigh five grams. Investigator Malugen
believed that another deputy checked Ms. Atkinson for weapons.

       On cross-examination, Investigator Malugen testified that they had just begun
executing the search warrant when Defendant pulled up. He said that Steven Stults also
arrived in another vehicle. He noted that Ms. Cox had outstanding warrants. Investigator
Malugen testified that he did not find anything when he did a “pat-down search” of
Defendant but he did feel something. He said that at that point he was “not digging.” He
then asked Defendant about any weapons, and Defendant pulled out the knife along with
the bag of methamphetamine. Investigator Malugen asked Defendant to empty all of his

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pockets, and Defendant had $1,148.00 in his left front pocket. He agreed that $260 of
that amount was identified as “marked buy money from some previous transaction[.]”
Investigator Malugen acknowledged that while the bag of methamphetamine and money
were noted on the inventory sheet, the knife was not. He said that the inventory of
Defendant’s vehicle included a radio, floor mats, wheel covers, and a knife. Investigator
Malugen did not know if the knife was the same one that Defendant removed from his
pocket. He admitted that his report of the incident indicated that he conducted a pat
down, and drugs were found in Defendant’s right pocket, and the money was found in
Defendant’s left pocket. There was no mention of a knife or a conversation about
weapons in the report. Investigator Malugen testified that he did not find the bag of
drugs during the pat-down search of Defendant.

       On redirect examination, Investigator Malugen denied putting his hands inside
Defendant’s pockets. He agreed that his paperwork from the incident was sloppy.
Investigator Malugen testified that he placed Defendant under arrest after seeing the
drugs.

        Defendant testified that he pulled into the driveway on Jennifer Lane, and Ms. Cox
was riding in the front seat. Another female was in the back seat. He said that the
driveway to the house was “pretty isolated, and at least a quarter of a mile long.”
Defendant said that he did not immediately see any police vehicles or officers as he
approached the residence. He testified that he stopped his vehicle, and “[t]hey came from
all directions, from both sides of the truck and opened the doors, pulled us out, and told
me we was under arrest and handcuffed us.” Defendant said that the officers came out of
the ditch on each side of the vehicle with their guns drawn. He further said that the
officers “turned me around up against the vehicle and handcuffed me behind my back.”
He was told that the officers had a search warrant. Defendant testified that one of the
officers patted him down and then pulled money from his left pocket and a bag of
methamphetamine from his right pocket. He admitted that he also had a Case knife in his
right pocket.

       Defendant testified that he did not recall Investigator Malugen asking if he had
any weapons. Defendant also said that he did not reach into his own pocket and pull out
the knife along with the bag of methamphetamine. He said that everyone else in the
vehicle was also handcuffed, but he did not see if they were searched as well. Officers
did not arrest the other woman in the vehicle with him.

       The trial court denied Defendant’s motion to suppress. Thereafter, on February 7,
2018, Defendant entered into a negotiated plea agreement under Rule 11(c) of the
Tennessee Rules of Criminal Procedure, in which he pled guilty to possession with intent
to sell more than .5 grams of methamphetamine. The plea was accepted by the trial
court.


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       As part of his plea, Defendant attempted to reserve the right to appeal a certified
question of law dispositive of the case pursuant to Rule 37(b)(2)(A) of the Tennessee
Rules of Criminal Procedure. The judgment of conviction form entered on February 7,
2018, contained the following notation within the special conditions section: “Parties
agree to reserve certified question of law. Incorporated by reference into the judgment is
the ‘Agreed Order Reserving Certified Question of Law’ and the agreements stated
therein.” The agreed order contains the following, designated as the certified question of
law:

         Did the trial court err in overruling the Defendant’s Motion to Suppress
         – Unlawful Search? Specifically, did the trial court err in ruling that the
         search of Defendant was not beyond the scope of the search warrant; that
         the search warrant was not overbroad; that the search warrant did apply
         to the Defendant’s person; that the detention of the Defendant was not
         unlawful; that the search of the Defendant was not unlawful; that the
         degree of the search of the Defendant was not unlawful; and, that the
         search of the Defendant was not warrantless?

        The State argues initially on appeal that the question is not properly before this
Court because Defendant has failed to comply with the prerequisites for reserving a
certified question of law. We agree.

   II.     Reservation of Certified Question of Law

        Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure provides that a
defendant may appeal from any judgment of conviction occurring as a result of a guilty
plea if the following requirements are met:

         (i)     the judgment of conviction or order reserving the certified
                 question that is filed before the notice of appeal is filed contains a
                 statement of the certified question of law that the defendant
                 reserved for appellate review;
         (ii)    the question of law as stated in the judgment or order reserving
                 the certified question of law identifies clearly the scope and limits
                 of the legal issue reserved;
         (iii)   the judgment or order reserving the certified question reflects that
                 the certified question was expressly reserved with the consent of
                 the state and the trial judge; and
         (iv)    the judgment or order reserving the certified question reflects that
                 the defendant, the state, and the trial court are of the opinion that
                 the certified question is dispositive of the case[.]



                                              -4-
See also State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003); State v. Preston, 759
S.W.2d 647, 650 (Tenn. 1988).

       Additionally, in Preston, our supreme court explicitly provided prerequisites to
appellate consideration of a certified question of law under Rule 37(b)(2)(A), stating:

        Regardless of what has appeared in prior petitions, orders, colloquy in
        open court or otherwise, the final order or judgment from which the time
        begins to run to pursue a T.R.A.P. 3 appeal must contain a statement of
        the dispositive certified question of law reserved by defendant for
        appellate review and the question of law must be stated so as to clearly
        identify the scope and the limits of the legal issue reserved. For
        example, where questions of law involve the validity of searches and the
        admissibility of statements and confessions, etc., the reasons relied upon
        by defendant in the trial court at the suppression hearing must be
        identified in the statement of the certified question of law and review by
        the appellate courts will be limited to those passed upon by the trial
        judge and stated in the certified question, absent a constitutional
        requirement otherwise. Without an explicit statement of the certified
        question, neither the defendant, the State nor the trial judge can make a
        meaningful determination of whether the issue sought to be reviewed is
        dispositive of the case. Most of the reported and unreported cases
        seeking the limited appellate review pursuant to [Tennessee Rule of
        Criminal Procedure] 37 have been dismissed because the certified
        question was not dispositive. Also, 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.

        Failure to properly reserve a certified question of law pursuant to Preston will
result in the dismissal of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn.
1996). The burden is on the defendant to see that the prerequisites are in the final order
and that the record brought to the appellate court contains all of the proceedings below
that bear upon whether the certified question of law is dispositive and the merits of the
question certified. Preston, 759 S.W.2d at 650.

       In Armstrong, our supreme court reiterated that strict compliance with Preston is
required:



                                           -5-
        [O]ur prior decisions demonstrate that we have never applied a
        substantial compliance standard to the Preston requirements as urged by
        the defendant in this case. To the contrary, we have described the
        requirements in Preston for appealing a certified question of law under
        Rule 37 of the Tennessee Rules of Criminal Procedure as “explicit and
        unambiguous.” Moreover, we agree with the State that a substantial
        compliance standard would be very difficult to apply in a consistent and
        uniform manner, and therefore would conflict with the very purpose of
        Preston. We therefore reject the defendant’s argument that substantial
        compliance with the requirements set forth in Preston is all that is
        necessary in order to appeal a certified question of law.

Armstrong, 121 S.W.3d at 912 (citations omitted).

       The certified question fails to clearly state the actual reasons the trial court denied
the motion to suppress. The trial court denied the motion on the basis that there was
reasonable suspicion to conduct a warrantless investigatory stop of Defendant’s vehicle
and to pat down Defendant for the safety of law enforcement officers.

        Despite this limited ruling by the trial court, Defendant’s “scatter gun” approach to
drafting a certified question of law utterly failed to hit the target. Four of the submitted
“issues” dealt with the search warrant, which was not part of the trial court’s basis to
deny the suppression motion. The two remaining “issues” were overbroad and/or vague
assertions that the trial court erred by finding that: (1) the detention of Defendant was not
unlawful and (2) the search of Defendant was not unlawful. Defendant’s drafting of the
issue leaves this court to determine whether he is referencing the initial stop, the length of
time between the stop and the arrest, or whether removing Defendant from his vehicle
was an unlawful detention. A general assertion that a search is unlawful, without any
further specificity, is inadequate. A lawful search of a person can be accomplished by a
valid search warrant or pursuant to one or more of the multiple exceptions allowing for
warrantless searches. From the wording of the purported certified question, Defendant
wants this court to comb the record and find a reason to give him relief. We cannot do
this.

       Defendant bears the burden of “reserving” articulating, and identifying the issue.”
Pendergrass, 937 S.W.2d at 838. “[T]he [certified] question of law must be stated so as
to clearly identify the scope and the limits of the legal issue reserved.” Preston, 759
S.W.2d at 650 (emphasis added).

       We are without jurisdiction to review the merits of Defendant’s claim because he
has failed to properly reserve his certified question of law. Pendergrass, 937 S.W.2d at
838. Accordingly, the appeal is dismissed.


                                            -6-
                                    CONCLUSION

       Because of Defendant’s failure to properly frame his certified question of law, this
Court is unable to reach the merits of Defendant’s claim as this Court has no jurisdiction
to entertain this appeal. See Tenn. R. Crim. P. 37(b)(2)(A)(ii). Accordingly, this appeal
is dismissed.

                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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