Court of Criminal Appeals Opinions

Format: 12/19/2014
Format: 12/19/2014
State of Tennessee v. Kenneth Paul Colvett
M2013-02488-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge F. Lee Russell

Following a jury trial, the Defendant, Kenneth Paul Colvett, was convicted of premeditated first degree murder and sentenced to life imprisonment with the possibility of parole. See Tenn. Code Ann. § 39-13-202. In this appeal as of right, the Defendant contends (1) that the jury erred by rejecting the defense of insanity; (2) that the trial court erred by not allowing defense counsel to take home prior written statements made by a witness and by not admitting extrinsic evidence of the statements of two witnesses during trial; (3) that the State failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963); (4) that the trial court erred by refusing to provide the Defendant with a transcript of a prior hearing in this case; (5) that the State committed prosecutorial misconduct during the cross-examination of the Defendant’s expert witness; (6) that the trial court erred by questioning the Defendant about his decision not to testify at trial; (7) that the State committed prosecutorial misconduct during its closing argument by commenting on the Defendant’s decision not to testify; and (8) that the Defendant is entitled to a new trial based upon cumulative error.1 Following our review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 12/19/14
State of Tennessee v. Clifton Swift
W2013-02182-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Glenn Wright

The defendant, Clifton Swift, appeals his Shelby County Criminal Court jury conviction of rape of a child, claiming that the trial court abused its discretion by permitting impeachment of the defendant by his prior conviction for attempting to violate the sexual offender registry act and by admitting into evidence the victim’s rape kit. In addition, the defendant contends that the evidence was insufficient to support his conviction of rape of a child. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/18/14
State of Tennessee v. David A. Brimmer
E2014-01393-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dnald Ray Elledge

In 1999, Appellant, David A. Brimmer, pled guilty to aggravated kidnapping in relation to the October 1989 disappearance and death of the  victim, for which he had been previously found guilty of first degree murder and sentenced to death. His death sentence was remanded by this Court. See Brimmer v. State, 29 S.W.3d 497 (Tenn. Crim. App. 1998). At resentencing, Appellant agreed to plead to aggravated kidnapping as a Class A felony with a sentence of 60 years to be served at 100%, consecutively to a life sentence for first degree murder, in exchange for the State not seeking the death penalty. Appellant subsequently filed a petition to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1, alleging that his sentence for aggravated kidnapping is in contravention of the 1989 Sentencing Reform Act. The trial court summarily dismissed the petition for failing to state a colorable claim. Upon our review of the record and applicable authorities, we affirm the judgment of the trial court.

Anderson County Court of Criminal Appeals 12/18/14
Tamir Clark v. State of Tennessee
M2014-00618-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge M. Keith Siskin

The Petitioner, Tamir Clark, pleaded guilty to especially aggravated kidnapping, arson, especially aggravated robbery, and attempted robbery, and the trial court sentenced him to serve twenty-five years in the Tennessee Department of Corrections.  The Petitioner filed a petition for post-conviction relief, in which he alleged that he had received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered.  The post-conviction court dismissed the petition after a hearing.  On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition, maintaining that he received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered.  After a thorough review of the record and applicable law, we  affirm the post-conviction court’s judgment.

Rutherford County Court of Criminal Appeals 12/18/14
State of Tennessee v. Oren Ray Johnson
M2014-00908-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Forest Durard

The Defendant, Oren Ray Johnson, pleaded guilty to simple assault, and the trial court ordered a probationary sentence of eleven months and twenty-nine days.  Thereafter, the Defendant was arrested for aggravated domestic assault, an offense to which he pleaded guilty.  The trial court issued a probation violation warrant and, after a hearing, revoked the Defendant’s probation sentence.  On appeal, the Defendant contends that the trial court improperly ordered him to serve the remainder of his sentence in confinement for violating the terms of his probation.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Marshall County Court of Criminal Appeals 12/18/14
Gabriel Kimball v. State of Tennessee
M2014-00182-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Gabriel Kimball, pleaded guilty to rape of a child in Bradley County Criminal Court, and the trial court sentenced him to serve fifteen years.  The Petitioner unsuccessfully sought post-conviction relief.  Gabriel Kimball v. State, No. E2006-01562-CCA-R3-PC, 2007 WL 2757634, at *1 (Tenn. Crim. App. Sept. 24, 2007), perm. app. denied (Tenn. Feb. 4, 2008).  The Petitioner then sought state habeas corpus relief alleging that the judgment of conviction entered was void and that his attorney rendered ineffective assistance.  The habeas corpus court summarily dismissed the petition finding that the Petitioner had failed to raise a cognizable habeas corpus claim.  The Petitioner appeals this dismissal, maintaining that the judgment is void and that he received the ineffective assistance of counsel.  After a thorough review of the record and applicable law, we affirm the habeas corpus court’s judgment.

Davidson County Court of Criminal Appeals 12/18/14
Secdrick L. Booker v. State of Tennessee
M2014-00846-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve Dozier

The Petitioner, Secdrick L. Booker, appeals the Davidson County Criminal Court’s dismissal of his motion to correct an illegal sentence.  The Petitioner contends that his convictions are void because he was sentenced in direct violation of Tennessee statutory law.  Upon a review of the record in this case, we are persuaded that the trial court properly denied the motion.  Accordingly, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 12/18/14
State of Tennessee v. Rafael Antonio Bush
M2014-01193-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David M. Bragg

The Petitioner, Rafael Antonio Bush, was convicted of especially aggravated robbery, aggravated burglary, and aggravated assault.  On direct appeal, this Court affirmed his convictions and sentence.  State v. Rafael Antonio Bush, No. M2002-02390-CCA-R3-CD, 2004 WL 794755 (Tenn. Crim. App., at Nashville, April 14, 2004), no Tenn. R. App. P. 11 application filed.  Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel at trial.  The trial court denied the petition after a hearing, and this Court affirmed the post-conviction court’s judgment denying relief.  Rafael Antonio Bush v. State, No. M2005-02967-CCA-R3-PC, 2006 WL 2682825 at *1 (Tenn. Crim. App., at Nashville, Sept. 7, 2006), perm. app. denied (Tenn. Dec. 27, 2006).  On April 24, 2014, the Petitioner filed a motion to reopen his petition for post-conviction relief.  The post-conviction court denied the motion to reopen, and the Petitioner appeals that decision.  After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 12/18/14
State of Tennessee v. Charles Anderson Clark Jr.
W2014-00445-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan Jr.

The Defendant-Appellant, Charles Anderson Clark, Jr., was convicted by a Henderson County jury as charged of rape, see T.C.A. § 39-13-503, and sentenced as a Range III, persistent offender to a term of twenty-five years’ imprisonment. In this direct appeal, the Defendant-Appellant challenges the sufficiency of the evidence and the sentence imposed by the trial court. Following our review, we affirm the judgment of the trial court.

Henderson County Court of Criminal Appeals 12/17/14
William Carter King v. State of Tennessee
M2014-00512-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge E. Shayne Sexton

The Petitioner, William Carter King, appeals the Fentress County Criminal Court’s denial of his petition for post-conviction relief from his 2011 guilty plea to possession of a controlled substance in a penal institution and his five-year sentence.  The Petitioner contends that (1) he received the ineffective assistance of counsel and (2) his guilty plea was unknowingly and involuntarily entered.  We affirm the judgment of the post-conviction court.

Fentress County Court of Criminal Appeals 12/17/14
State of Tennessee v. Karl P. Cooper
M2013-01084-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James G. Martin, III

A Williamson County Circuit Court Jury convicted the appellant, Karl P. Cooper, of driving under the influence (DUI), second offense; speeding; and violating the open container law.  The appellant received a total effective sentence of eleven months and twenty-nine days and was ordered to spend sixty days of the sentence in jail before being released on probation.  On appeal, the appellant contends that the trial court erred by allowing the State to violate the rule of witness sequestration, that the trial court erred by sustaining the State’s objection to the appellant’s request to have the arresting officer demonstrate a field sobriety test, and that the evidence was insufficient to sustain his DUI conviction.  The State concedes that the trial court erred by allowing the violation of the rule of sequestration but contends the error was harmless.  Upon review, we conclude that the violation of the rule of sequestration was reversible error; accordingly, the judgment of the trial court is reversed, and the case is remanded for a new trial.

Williamson County Court of Criminal Appeals 12/17/14
Leon Flannel v. State of Tennessee
W2014-00181-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Carolyn W. Blackett

The Petitioner, Leon Flannel, was convicted of murder in the perpetration of a theft and premeditated murder. In this appeal from the trial court’s denial of his petition for writ of error coram nobis, the Petitioner argues that the individual tests performed by the defense’s expert witness, along with their results, should have been introduced at trial to bolster the Petitioner’s diminished capacity defense. Upon review, we find that the petition for writ of error coram nobis is barred by the statute of limitations. Additionally, we find that the trial court did not abuse its discretion when it denied relief on the merits.

Shelby County Court of Criminal Appeals 12/17/14
Carlos Eaton v. State of Tennessee
W2014-00791-CCA-R3-ECN
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Mark Ward

The appellant, Carlos Eaton, appeals the denial of his petition for writ of error coram nobis in which he challenged his 1995 guilty plea to first degree murder and his life sentence. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/17/14
Sean William Lee v. State of Tennessee
W2014-00335-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The petitioner, Sean William Lee, pled guilty in 2004 to attempted aggravated sexual battery and was sentenced to three years, which then was suspended to six years probation. In 2013, after a probation violation warrant was filed against him, he filed a pleading styled “Motion to Revoke Probation and Impose a Sentence in Absentia.” He followed this pleading by filing a petition for writ of error coram nobis, based upon what he saw as newly discovered evidence. The coram nobis court dismissed the petition without a hearing, concluding that the statute of limitations for such a pleading had expired eight years earlier and no issues were raised which could be the basis for coram nobis relief. Following our review, we affirm the order of the coram nobis court dismissing the petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 12/17/14
State of Tennessee v. Terrence Wooden, also known as Terrence Wooten
W2014-00173-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee V. Coffee

The defendant, Terrance Wooden, also known as Terrence Wooten, was convicted of the rape of the victim, who was confined to a wheelchair, and sentenced to confinement for twelve years at 100%. On appeal, he argues that the evidence is insufficient to support the conviction. Following our review, we affirm the judgment pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 12/17/14
Tarrence Parham v. State of Tennessee
W2013-01437-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Paula Skahan

The petitioner, Tarrence Parham, appeals the post-conviction court’s denial of his petition for post-conviction relief from his convictions for attempted second degree murder and reckless aggravated assault. On appeal, he argues that he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 12/17/14
Michael Brandon Adams v. State of Tennessee
M2014-01025-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Dee David Gay

The Petitioner, Michael Brandon Adams, appeals the Sumner County Criminal Court’s dismissal of his motion to correct an illegal sentence.  The Petitioner contends that the trial court erred when it dismissed his motion without appointing counsel and without conducting an evidentiary hearing.  In his motion, the Petitioner asserts that his sentence is illegal on the grounds that his guilty plea was not entered knowingly and voluntarily because he received the ineffective assistance of counsel.  Upon a review of the record in this case, we are persuaded that the trial court properly denied the motion.  Accordingly, the judgment of the trial court is affirmed.

Sumner County Court of Criminal Appeals 12/17/14
William Lance Walker v. State of Tennessee
M2014-01305-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert Crigler

A Marshall County jury convicted the Petitioner, William Lance Walker, of the sale of .5 grams or more of cocaine and the delivery of .5 grams or more of cocaine.  The Petitioner appealed, and this Court affirmed the judgments of the trial court.  State v. William Lance Walker, No. M2012-01319-CCA-R3-CD, 2013 WL 1799988, at *6 (Tenn. Crim. App., at Nashville, April 29, 2013), no Tenn. R. App. P. 11 filed.  The Petitioner subsequently filed a petition for post-conviction relief in which he alleged that his trial counsel was ineffective on multiple grounds.  The post-conviction court dismissed the petition after a hearing.  After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Marshall County Court of Criminal Appeals 12/17/14
State of Tennessee v. Antonio Gale
W2013-02772-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Chris Craft

Defendant, Antonio Gale, was indicted by the Shelby County Grand Jury for two counts of aggravated rape. After a jury trial, Defendant was found guilty of the lesser-included offenses of rape in Count One and assault in Count Two. The trial court merged the convictions and sentenced Defendant to eleven years at 100% for the rape conviction. After the denial of a motion for new trial, Defendant seeks resolution of the following issues on appeal: (1) whether the evidence was sufficient to support the conviction of rape; and (2) whether the trial court abused its discretion in sentencing Defendant. After a thorough review of the record and applicable authorities, we determine that the evidence was sufficient to support the conviction for rape and that the trial court did not abuse its discretion in sentencing Defendant to eleven years for the conviction. Accordingly, the judgment of the trial court is affirmed.

Shelby County Court of Criminal Appeals 12/16/14
John Brunner v. State
W2013-02120-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Glenn Ivy Wright

John Brunner (“the Petitioner”) was indicted for first degree murder and domestic assault. After a trial, a jury convicted him of the lesser-included offense of second degree murder and domestic assault. In this appeal from the denial of post-conviction relief, the Petitioner argues that he was denied effective assistance of counsel. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 12/15/14
Michael Deshawn Smith v. State of Tennessee
W2013-01344-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Weber McCraw

The Petitioner, Michael Deshawn Smith, appeals the Fayette County Circuit Court’s denial of post-conviction relief from his conviction for second degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel based on counsel’s failure to include a transcript of the plea submission hearing in the record on direct appeal. Upon review, we affirm the judgment of the post-conviction court.

Fayette County Court of Criminal Appeals 12/15/14
Shairiq Seabrooks v. State of Tennessee
W2013-02321-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey, Jr.

The petitioner, Shairiq Seabrooks, was convicted of second degree murder and sentenced to confinement for twenty-two years. His conviction was affirmed by this court, and our supreme court denied his application for permission to appeal. State v. Shairiq Seabrooks, No. W2008-00443-CCA-R3-CD, 2009 WL 3103792, at *1 (Tenn. Crim. App. Sept. 29, 2009), perm. app. denied (Tenn. Mar. 15, 2010). Thereafter, he filed a timely petition for post-conviction relief, alleging ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied relief, and the petitioner timely appealed. Following our review, we affirm the denial of relief by the post-conviction court.

Shelby County Court of Criminal Appeals 12/15/14
State of Tennessee v. Reginald Dewayne Tumlin
E2013-01452-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Rebecca J. Stern

A Hamilton County jury convicted the Defendant, Reginald Dewayne Tumlin, of two counts of child abuse, one count of criminally negligent homicide, and one count of aggravated child neglect. The trial court imposed an effective sentence of sixty years in the Tennessee Department of Correction. The Defendant asserts that: (1) the trial court erred when it failed to compel the State to make an election of offenses; (2) the trial court failed to instruct the jury that reckless endangerment and attempted aggravated child neglect are lesser-included offenses of aggravated child neglect; (3) the evidence is insufficient to sustain his convictions; (4) the trial court improperly admitted medical testimony about the victim’s injuries; (5) the State engaged in prosecutorial misconduct; (6) the trial court improperly instructed the jury on flight; and (7) the cumulative effect of these errors deprived the Defendant of a fair trial. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Hamilton County Court of Criminal Appeals 12/15/14
Christopher Jake Reynolds v. State of Tennessee
M2013-02658-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jim T. Hamilton

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals.  Petitioner, Christopher Jake Reynolds, has appealed the Giles County Circuit Court order dismissing his third petition for post-conviction relief in which Petitioner alleged that he received ineffective assistance of counsel and that due process required the tolling of the statute of limitations.  Upon a review of the record in this case, we are persuaded that the post-conviction court was correct in dismissing the petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals.  Accordingly, the State’s motion is granted, and the judgment of the post conviction court is affirmed.

Giles County Court of Criminal Appeals 12/15/14
Rodricko Thomas v. Jerry Lester, Warden
W2014-00686-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Rodricko Thomas, received an effective sentence of fourteen years after pleading guilty to an included offense of aggravated robbery and nolo contendere to the charged offenses of aggravated robbery, aggravated burglary, and employing a firearm during the commission of a dangerous felony. Two years after being sentenced, he filed a petition for writ of habeas corpus, alleging the firearm conviction was void because the indictment had not specified a predicate felony. The habeas corpus court summarily dismissed the petition, and this court affirmed that dismissal because the petition did not include a copy of the assailed indictment. Rodricko O. Thomas v. Jerry Lester, Warden, No. W2013-02522-CCA-R3-HC, 2014 WL 2442272, at *1 (Tenn. Crim. App. May 23, 2014). Subsequently, he filed a second petition, making the same allegations and, with this petition, included a copy of the indictment. The habeas corpus court determined that the indictment was sufficient to apprise the petitioner of the employing a firearm offense and dismissed the petition. Because the petitioner has failed to state a cognizable claim for habeas corpus relief, we affirm the summary dismissal of the petition pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Lauderdale County Court of Criminal Appeals 12/12/14