Court of Criminal Appeals Opinions

Format: 05/26/2017
Format: 05/26/2017
Jackie F. Curry v. State of Tennessee
E2016-01893-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Bobby R. McGee

Petitioner, Jackie F. Curry, appeals the trial court’s denial of his motion to reopen post-conviction proceedings. Petitioner argues that the United States Supreme Court’s decision in Lafler v. Cooper, 566 U.S. 156 (2012), established a new rule of constitutional law that should be applied retroactively to his case. Because Petitioner failed to follow the statutory requirements to seek discretionary review of a motion to reopen, this Court does not have jurisdiction, and we dismiss the appeal.

Knox County Court of Criminal Appeals 05/26/17
Courtney R. Logan v. Shawn Phillips, Warden
E2016-01535-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Jeffrey H. Wicks

The Petitioner, Courtney R. Logan, appeals as of right from the Morgan County Circuit Court’s dismissal of his petition for writ of habeas corpus. The Petitioner challenges his long-ago extradition to the state of Mississippi. Discerning no error, we affirm the judgment of the habeas corpus court.

Morgan County Court of Criminal Appeals 05/26/17
Kenneth J. Cradic v. State of Tennessee
E2016-01082-CCA-R3-ECN
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge R. Jerry Beck

The Petitioner, Kenneth J. Cradic, appeals as of right from the Sullivan County Criminal Court’s denial of his petition for writ of error coram nobis relief. The Petitioner contends that the coram nobis court erred in denying his petition because he presented newly discovered evidence of his actual innocence through a new witness who would discredit the victim’s trial testimony and evidence that the victim recanted her trial testimony on numerous occasions since the trial. Discerning no error, we affirm the judgment of the coram nobis court.

Sullivan County Court of Criminal Appeals 05/26/17
State of Tennessee v. Nathan Bernard Lalone
E2016-00439-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Rebecca J. Stern

Defendant, Nathan Bernard Lalone, was convicted of one count of first degree murder and one count of attempted first degree murder. He raises the following issues on appeal: (1) the trial court erred in denying a motion to suppress his statement to police because he had invoked his right to remain silent; (2) the trial court erred in denying a motion for leave to file an interlocutory appeal of the suppression issue; (3) the trial court erred in denying a motion for judgment of acquittal and motion for new trial because the accomplice testimony was not sufficiently corroborated; (4) the trial court erred in allowing the State to play a videotaped interview of a witness as a prior inconsistent statement; and (5) the evidence is insufficient to support his convictions. Upon our review of the record and applicable authorities, we conclude that the trial court erred in denying Defendant’s motion to suppress and that the error was not harmless. Furthermore, we conclude that the trial court committed plain error in admitting a witness’s recorded statement into evidence without following the Rules of Evidence with regard to prior inconsistent statements. For these two reasons, we reverse Defendant’s convictions and remand the case for a new trial.

Hamilton County Court of Criminal Appeals 05/25/17
State of Tennessee v. Eric Dwayne Wilson
M2016-00822-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Larry B. Stanley, Jr.

Defendant, Eric Dwayne Wilson, in a jury trial, was convicted of third offense driving under the influence of an intoxicant (DUI), and of violating the implied consent law following a bench trial. Defendant pleaded nolo contendere to failure to stop at a stop sign and failure to have each required lamp and stoplight in operating condition. Defendant received a sentence of eleven months, twenty-nine days, with three hundred days of confinement in the county jail and the remainder of the sentence on supervised probation. He was also ordered to pay a $5,000 fine, and his license was revoked for six years. Concerning the implied consent violation, the judgment form indicates that Defendant’s driver’s license was revoked for one year “consecutive to any revocation or suspension currently in effect.” Defendant was also sentenced to thirty days each for failure to stop at a stop sign and failure to have each required lamp and stoplight in operating condition to be served concurrently with the DUI charge. On appeal, Defendant contends that the evidence was insufficient to support his conviction for DUI and that there was no proof relating to the implied consent form and the search warrant. After a thorough review of the record, we affirm the judgments of the trial court.

Warren County Court of Criminal Appeals 05/25/17
Stephen Wayne Shreve v. State of Tennessee
E2016-01743-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Richard R. Vance

The Petitioner, Stephen Wayne Shreve, appeals the denial of his petition for post-conviction relief in which he challenged his guilty pleas to two counts of aggravated burglary, one count of attempted aggravated burglary, and two counts of theft and his effective ten-year sentence. On appeal, the Petitioner contends that he was given an illegal sentence and that he entered his guilty pleas involuntarily and unknowingly. We affirm the post-conviction court’s denial of relief.

Sevier County Court of Criminal Appeals 05/24/17
State of Tennessee v. Gregory T. Phelps
E2016-00918-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Gregory T. Phelps, appeals from the Knox County Criminal Court’s revocation of his probation for his convictions for felony drug possession and unlawful possession of a firearm and order that he serve his effective four-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 05/24/17
State of Tennessee v. Christopher Wilson-Concurring
W2015-00699-CCA-R9-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge W. Mark Ward

My general disdain for the so-called “good faith exception” is fully set forth in my concurring opinion the first time that this case was before this panel. State v. Christopher Wilson, W2015-00699-CCA-R9-CD, 2016 WL 1627145, at *1 (Tenn. Crim. App., at Jackson, April 21, 2016) (Woodall, P.J., concurring opinion). In light of our supreme court’s embracing of the “good faith exception” in State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016), there is no need to repeat my firm belief that the “good faith exception” should never be recognized in Tennessee. As a judge of an intermediate court, I am required to follow specific precedent of a higher court, in this case, the Tennessee Supreme Court. State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995). I fully accept the principle of law that requires me to follow controlling legal authority even when I do not agree. With all due respect, I concur in results only.

Shelby County Court of Criminal Appeals 05/24/17
State of Tennessee v. Christopher Wilson
W2015-00699-CCA-R9-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Mark Ward

The Defendant, Christopher Wilson, filed a Rule 9 interlocutory appeal seeking our review of the trial court’s denial of his motion to suppress evidence. The Defendant filed a motion to suppress the results of his blood alcohol test based upon a violation of Missouri v. McNeely, 133 S. Ct. 1552 (2013). The trial court conducted an evidentiary hearing and found that a “good faith exception” to the Defendant’s forced blood draw existed and denied the Defendant’s motion. The Defendant filed an application for an interlocutory appeal, which the trial court granted. On appeal, the Defendant contended that the trial court erred when it denied the Defendant’s motion to suppress based upon a “good faith exception” to the exclusionary rule. After review, we concluded that the trial court erred when it denied the Defendant’s motion to suppress because, at that time, there was not a good faith exception to the exclusionary rule. State v. Christopher Wilson, W2015-00699-CCA-R9-CD, 2016 WL 1627145, at *1 (Tenn. Crim. App., at Jackson, April 21, 2016). On November 22, 2016, the Tennessee Supreme Court granted Defendant’s application for permission to appeal and remanded the case to this court for reconsideration in light of the supreme court’s recent opinion in State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016). Upon reconsideration in light of Reynolds, we conclude that the officer acted with reasonable good-faith reliance on binding precedent in effect at the time. Accordingly, we reinstate and affirm the trial court’s denial of the Defendant’s motion to suppress.

Shelby County Court of Criminal Appeals 05/24/17
State of Tennessee v. Carl Adkins
W2015-01810-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Roy B. Morgan

Defendant, Carl Adkins, was found guilty by a jury of the offense of rape of a child and was sentenced to serve twenty-five years in the Department of Correction. In this appeal, Defendant challenges the legal sufficiency of the evidence to support his conviction, specifically asserting that (1) his identity as the perpetrator was not proven beyond a reasonable doubt because the victim could not identify him in court, and (2) the victim gave contradictory testimony at trial under oath. Following a careful review of the record, we affirm the judgment of the trial court.

Henderson County Court of Criminal Appeals 05/24/17
State of Tennessee v. Doyan Anderson
W2015-02405-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge W. Mark Ward

The Defendant, Doyan Anderson, was indicted for aggravated assault involving the use or display of a deadly weapon, a Class C felony; aggravated assault based on violation of a court order, a Class C felony; domestic assault, a Class A misdemeanor; and unlawful possession of a firearm after having been convicted of a felony involving the use or attempted use of violence, a Class C felony. See Tenn. Code Ann. §§ 39-13-102(a)(1)(A)(iii), -13-102(c), -13-111, -17-1307. Following a jury trial, the Defendant was convicted of domestic assault and both counts of aggravated assault. The jury acquitted the Defendant of the unlawful possession of a firearm charge. The trial court merged the domestic assault conviction into the aggravated assault conviction based on violation of a court order. The trial court sentenced the Defendant as a career offender and imposed a total effective sentence of thirty years’ incarceration. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction for aggravated assault involving the use or display of a deadly weapon and (2) that the trial court committed plain error by failing to require the State to make an election of the distinct conduct it was relying upon regarding the charge of aggravated assault based on violation of a court order. After the initial filing of this opinion, we granted the State’s Tennessee Rule of Appellate Procedure 39 petition to rehear to allow for supplemental briefing on the issue of whether the Defendant’s aggravated assault convictions should be merged. Following our review, we affirm the Defendant’s convictions. However, we merge the Defendant’s two convictions for aggravated assault and remand the case to the trial court for entry of corrected judgment forms reflecting said merger and the resulting sentence of fifteen years’ incarceration.

Shelby County Court of Criminal Appeals 05/24/17
State of Tennessee v. Rudy Vincent Dunn
M2016-01935-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Forrest A. Durard

The Defendant, Rudy Vincent Dunn, appeals from the Marshall County Circuit Court’s revocation of his probation for his conviction for felony drug possession and order that he serve the remainder of his one-year, three-month sentence in confinement. The Defendant contends that the trial court abused its discretion by ordering him to serve his sentence. We affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 05/24/17
State of Tennessee v. Jonathan Gutierrez
M2015-01235-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The Appellant, Jonathan Gutierrez, was convicted in the Davidson County Criminal Court of one count of first degree premeditated murder and four counts of aggravated assault and received an effective sentence of life plus sixteen years in confinement. On appeal, he contends that the evidence is insufficient to support his murder conviction and two of his aggravated assault convictions, that the trial court committed plain error by failing to declare a mistrial when the State did not produce a codefendant’s statement before trial, that the State committed plain error by giving improper closing argument, that the trial court erred by ordering consecutive sentencing, and that his life sentence is unconstitutional. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 05/24/17
State of Tennessee v. Michael C. Bolden
E2016-01266-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The defendant, Michael C. Bolden, appeals his Morgan County Criminal Court jury conviction of aggravated rape of a child, claiming that the evidence was insufficient to support his conviction and that the trial court erred by failing to instruct the jury on rape of a child as a lesser included offense. We affirm the conviction and sentence but remand for correction of a clerical error in the judgment.

Morgan County Court of Criminal Appeals 05/23/17
State of Tennessee v. Joshua D. Ketchum
M2016-00685-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Robert L. Jones

In February 2015, a Maury County jury convicted Joshua D. Ketchum (“the Defendant”) of attempted robbery, for which he received a sentence of seven years’ incarceration. On appeal, the Defendant asserts that: (1) the evidence presented at trial was insufficient to support his conviction; (2) his sentence is excessive; and (3) the trial court committed plain error by questioning the Defendant during his allocution. Following a thorough review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 05/23/17
State of Tennessee v. Dewayne D. Fleming
M2015-01774-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

Defendant, Dewayne D. Fleming, was indicted for one count of aggravated burglary, two counts of especially aggravated kidnapping, one count of aggravated rape, and two counts of aggravated robbery. Defendant was convicted by a jury as charged. The trial court sentenced Defendant to six years for the aggravated burglary conviction; 12 years for each aggravated robbery conviction; 25 years for the aggravated rape conviction; and 25 years for each of the two especially aggravated kidnapping convictions. The trial court found Defendant to be a dangerous offender and imposed partial consecutive sentencing. The court ordered Defendant’s aggravated robbery sentences to run concurrently with each other and his especially aggravated kidnapping sentences to run concurrently with each other. However, the court ordered that Defendant’s sentences for aggravated robbery, especially aggravated kidnapping, and aggravated rape run consecutively, for an effective sentence of 62 years. In this appeal as of right, Defendant asserts that: 1) the evidence was insufficient to support his convictions because the accomplice testimony was uncorroborated; 2) the trial court erred by instructing the jury on theories of criminal liability that were not included in the indictment; 3) Defendant’s convictions for especially aggravated kidnapping violate due process because the State failed to establish that the confinement was greater than necessary to commit the other felonies; and 4) the trial court erred in imposing consecutive sentencing. Having reviewed the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Sumner County Court of Criminal Appeals 05/23/17
Charles Brenden Davis v. State of Tennessee
M2016-02512-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner’s convictions were affirmed by this court on direct appeal and no Tennessee Rule of Appellate Procedure 11 application for permission to appeal was filed. The Petitioner filed an untimely petition for post-conviction relief, alleging that he received the ineffective assistance of counsel and requesting that he be allowed to file a delayed Rule 11application. The post-conviction court summarily dismissed the petition. On appeal, the Petitioner argues that the post-conviction court erred in summarily dismissing his petition because the statute of limitations should be tolled under due process. After a thorough review of the record and applicable case law, we affirm.

Davidson County Court of Criminal Appeals 05/23/17
Emmett Lamon Roseman v. State of Tennessee
M2016-01051-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Franklin L. Russell

The Petitioner, Emmett Lamon Roseman, appeals the denial of post-conviction relief from his 2013 Marshall County Circuit Court convictions of possession of marijuana with intent to sell, sale of 0.5 grams or more of crack cocaine, delivery of 0.5 grams or more of crack cocaine, and three counts of failure to appear, for which he received an effective sentence of twenty years. In this appeal, the Petitioner contends that he was denied the effective assistance of counsel and that his guilty pleas were not knowingly and voluntarily entered. Discerning no error, we affirm the denial of post-conviction relief.

Marshall County Court of Criminal Appeals 05/23/17
State of Tennessee v. Melvin King
E2016-01043-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

Defendant, Melvin King, was convicted by a Knox County jury of first degree murder, aggravated burglary, employing a firearm during the commission of a dangerous felony, three counts of especially aggravated kidnapping, reckless aggravated assault, attempted especially aggravated robbery, and aggravated animal cruelty. He was sentenced to an effective life sentence. On appeal, he argues that the evidence is insufficient to support dual convictions for especially aggravated kidnapping and attempted especially aggravated robbery, that the trial court improperly allowed the State to admit autopsy photographs into evidence, and that the trial court improperly gave the jury an instruction on flight. After a review of the record, we affirm the judgments of the trial court. However, because the trial court did not enter judgment forms disposing of each count of the indictment, we remand the matter to the trial court for entry of a separate judgment form for each count of the indictment.

Knox County Court of Criminal Appeals 05/22/17
In Re Lewis Bonding Company
W2016-02171-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

The appellant, Lewis Bonding Company, appeals the denial of its “Petition to Allow Lewis Bonding Company to Use Real Property as Security Collateral,” arguing the trial court abused its discretion by denying the appellant’s request to pledge real property to underwrite bonds in lieu of a cash deposit with the clerk of court. The State contends the trial court’s denial of the petition was a proper use of its broad discretion to regulate bondsmen. Following our review of the record and pertinent authorities, we agree with the State and affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 05/19/17
Kelvin Winn v. State of Tennessee
W2016-02200-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The Petitioner, Kelvin Winn, was convicted of first degree felony murder and received a life sentence. He filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner argues that trial counsel’s performance was deficient for failing to: (1) obtain an enhanced version of the surveillance video of the gas station; (2) proffer actual evidence of the Petitioner’s height to the jury; (3) submit the Petitioner’s clothing to be tested for blood; and (4) investigate the State’s jailhouse informant for possible impeachment evidence. The Petitioner asserts that he was prejudiced by trial counsel’s deficient performance because, absent these deficiencies, the jury would not have convicted the Petitioner. Discerning no error in the post-conviction court’s decision, we affirm.

Shelby County Court of Criminal Appeals 05/19/17
State of Tennessee v. James Courtney Shane
W2016-01976-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jeffrey W. Parham

The Defendant, James Courtney Shane, was convicted by a Weakley County Circuit Court jury of facilitation of robbery, a Class D felony, and was sentenced by the trial court as a Range II offender to five years in the Department of Correction, to be served consecutively to his sentence in a federal case. On appeal, the Defendant challenges the sufficiency of the evidence of his identity and argues that the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

Weakley County Court of Criminal Appeals 05/19/17
State of Tennessee v. Kevin Scott Burris
E2016-01508-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Tammy M. Harrington

Kevin Scott Burris’ (“the Defendant”) community corrections officer filed an affidavit, alleging that the Defendant had violated the conditions of community corrections. Following two hearings, the trial court revoked the Defendant’s community corrections supervision and ordered him to serve the balance of his sentence in confinement. On appeal, the Defendant argues that the trial court abused its discretion by ordering him to serve his sentence in confinement. After a review of the record and applicable law, we conclude that the trial court did not abuse its discretion. The judgment of the trial court is affirmed.

Blount County Court of Criminal Appeals 05/19/17
State of Tennessee v. Bruce Wayne Sutton
M2016-00284-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, Bruce Wayne Sutton, pled guilty to attempted initiation of a process to manufacture methamphetamine and received a sentence of nine years and six months.  As part of his plea agreement, Defendant reserved two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A) with regard to the trial court’s denial of his motion to suppress evidence obtained during a warrantless search of a residence.  Upon our review of the record and applicable authorities, we determine that based upon his disclaimer of interest in the property, Defendant was without standing to complain about the search.  Therefore, we affirm the judgment of the trial court.

Lincoln County Court of Criminal Appeals 05/19/17
State of Tennessee v. Torian Dillard
W2016-01551-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Torian Dillard, appeals from the Shelby County Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The defendant contends his sentences are illegal because the State failed to provide proper notice of its intent to seek enhanced punishment pursuant to Tennessee Code Annotated § 40-35-202(a). The defendant also argues the trial court improperly relied on two prior theft convictions in classifying him as a career offender. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 05/18/17