Last week, the CCA reversed a conviction out of Wayne County – finding that there was insufficient evidence to convict the defendant of manufacturing meth and “crooks with guns.” Since these cases don’t come along too often – here’s the breakdown.
In State v. Christopher Hammack, the Defendant was charged with three counts: manufacturing meth, possession of a firearm during the commission of a dangerous felony, and felon in possession of a firearm. Possession of a firearm during the commission of a dangerous felony, or “Crooks with Guns” as it is colloquially known, requires mandatory consecutive time, so Hammack was looking at a lengthy sentence after conviction.
Hammack was arrested after Waynesboro police executed a search warrant on the home of a man named McClain. Hammack and McClain were associates and the affidavit to the search warrant indicates that Hammack had assisted McClain in selling guns, but doesn’t give additional details. Police executed the search warrant, knocking on the exterior doors of the house for 15 to 20 minutes. After a period of knocking, they saw Hammack and a large pit bull in the living room of the house. Police instructed Hammack to secure the dog, he did so, and they entered the house. They found six guns in various locations around the house. Many of the guns were in plain view – one on the dining room table and several on a bed in a bedroom.
Police completed the search of the house and turned their attention to the outbuilding, which contained remnants of a recent meth cook. It had all the typical goodies: salt, coffee filters, plastic gloves, ammonia nitrate, generators, batteries, Sudafed, funnels, aluminum foil, etc. The lab was believed to be “a couple of days old.” Hammack admitted he knew meth was being cooked in the shed, that he had smoked meth the day before, but denied any knowledge about where the guns came from.
During cross-examination, police admitted they had not seen Hammack anywhere beside the living room and that he was unable to access any of the guns from where he was seen. Police didn’t know if Hammack was present several days earlier when the cook actually occurred or if he had been involved. No items from the cook were found in the residence. Police acknowledged Hammack did not live with McClain, and they did not fingerprint any of the recovered weapons.
Hammack told another officer that he had come over to take a shower. The Defendant’s father testified that Hammack lived with his parents and he relied on Mr. and Mrs. Hammack for transportation. He knew his son went to McDonald’s and the store to buy milk almost every day leading up to his son’s arrest, but that his son didn’t go anywhere other than to visit a neighbor. (The Opinion doesn't say whether Mr. Hammack was asked if the family had a working shower - that would have been my FIRST question.)
There was some discussion between the Judge and counsel regarding whether a guilty verdict in the Crooks with Guns charge would automatically result in a guilty verdict for being a Felon in Possession.
In Tennessee, the Initiation of the Process to Manufacture Meth statute reads as follows: “It is an offense for a person to knowingly initiate a process intended to result in the manufacture of any amount of methamphetamine.” T.C.A. 39-17-435 (a). Facilitation has the following definition: “A person is criminally responsible for the facilitation of a felony, if, knowing that another intended to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.” T.C.A. 39-11-403. The Sentencing Commission has clarified that a facilitator “lacks the intent to promote or assist in, or benefit from, the felony’s commission.”
The CCA found that there was no proof that Hammack substantially assisted in the manufacture of meth, because the evidence showed that the meth was made approximately two days prior to the execution of the search warrant. Even if he knew it was being made on the property, there was no proof Hammack had been in the shed where the cook occurred. From there, the rest of the charges fall like dominoes. If there was insufficient proof that Hammack was promoting meth, then he couldn’t have possessed a firearm during the course of that felony. The court declined to examine whether the FACILITATION of the initiation of meth would be a dangerous felony. Lastly, because count 3 wasn’t sent back to the jury for deliberation, and because the Court simply ruled that if count 2 was sustained, then count 3 must also be sustained, the Defendant was not entitled to a jury finding on that case, and therefore it must be reversed. And, Double Jeopardy protections mean that Hammack cannot be re-tried on count 3.
This was only an eleven-page opinion, but it gave concise logic on an issue that the court really could have skimmed over. Read the full opinion HERE.
P.S. – If you loved or hated the bluebook, you might be interested in this article. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/03/judge-richard-posner-says-we-should-burn-all-copies-of-the-bluebook/
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