Court of Criminal Appeals Opinions

Format: 12/02/2016
Format: 12/02/2016
Brian Garrett Wallace v. State of Tennessee
M2015-02163-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge John H. Gasaway, III

Petitioner, Brian Garrett Wallace, entered an open guilty plea to five counts of attempted especially aggravated exploitation of a minor and one count of attempted sexual battery.  The trial court imposed an effective eighteen-year sentence to be served at 35 percent as a Range II offender which included consecutive sentencing.  On appeal, this Court upheld the sentence.  State v. Brian Garrett Wallace, No. M2013-01172-CCA-R3-CD, 2014 WL 1883704 (Tenn. Crim. App. May 12, 2014).   Petitioner filed a petition for post-conviction relief alleging that his trial counsel provided ineffective assistance and that Petitioner’s guilty plea was unknowingly and involuntarily entered.  Following an evidentiary hearing, the post-conviction court denied relief.  Following a careful review of the record, we affirm the judgment of the post-conviction court.

Robertson County Court of Criminal Appeals 11/18/16
State of Tennessee v. Christopher Michael Ferrell
M2015-01011-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steve R Dozier

The Defendant, Christopher Michael Ferrell, was convicted by a jury of second degree murder, a Class A felony.  See Tenn. Code Ann. § 39-13-210.  The trial court imposed a sentence of twenty years’ incarceration to be served at one hundred percent.  In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction, specifically arguing that he should have been acquitted for acting in self-defense or convicted instead of voluntary manslaughter; (2) that the trial court erred in denying his request for a special jury instruction regarding the State’s failure to preserve evidence; (3) that the trial court committed several errors when instructing the jury on self-defense; (4) that the trial court abused its discretion in setting the length of his sentence; and (5) that he is entitled to a new trial based upon cumulative error.  Following our review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 11/18/16
State of Tennessee v. Terry L. Brazzell
M2016-00603-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David Wolfe

In this appeal, the defendant, Terry L. Brazzell, challenges the denial of his pre-sentencing motion to withdraw his guilty plea to one count of vehicular homicide and challenges his Range II, 20-year sentence imposed for that conviction.  Discerning no error, we affirm.

Dickson County Court of Criminal Appeals 11/17/16
William George Cox v. State of Tennessee
M2016-00012-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Mark Fishburn

The petitioner, William George Cox, appeals the denial of post-conviction relief from his 2008 Davidson County Criminal Court guilty-pleaded convictions of aggravated burglary and theft of property, for which he received an effective sentence of 10 years.  In this appeal, the petitioner contends only that he was denied the effective assistance of counsel.  We affirm the judgment of the post-conviction court but remand for correction of clerical errors in the judgment forms.

Davidson County Court of Criminal Appeals 11/17/16
Charles Graham aka Charles Stevenson v. Grady Perry, Warden
W2016-00411-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Charles Graham a/k/a Charles Stevenson, appeals as of right from the Hardeman County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. In his petition, the Petitioner argued that his conviction for simple possession was improperly enhanced and that his conviction for tampering with evidence was invalid because the evidence was not destroyed. On appeal, the Petitioner contends that his conviction for simple possession is void because the trial court unlawfully relied on forty-year-old convictions from other states to enhance his sentence. Also, he argues that the trial court clerk's failure to include the judgment form for his simple possession charge in the record on direct appeal denied the Petitioner consideration of the merits of his direct appeal. Finally, the Petitioner argues that the cumulative effect of these two errors results in structural constitutional error, which invalidates his conviction for tampering with evidence. Following our review, we affirm the dismissal order of the habeas corpus court.

Hardeman County Court of Criminal Appeals 11/16/16
Daryl Bobo v. State of Tennessee
W2016-00477-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Chris B. Craft

The Petitioner, Daryl Bobo, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective (1) in failing to adequately explain to him the terms of a plea offer made by the State; (2) in failing to adequately meet with and prepare him for trial; and (3) for failing to adequately cross-examine the State’s witnesses. Following our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/16/16
State of Tennessee v. David T. Morrow
W2016-00914-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Glenn Ivy Wright

The appellant, David T. Morrow, appeals the summary denial of his Motion to Correct Illegal Sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The appellant's sentences have expired. He argues, however, that he is entitled to relief because he received concurrent sentences instead of statutorily required consecutive sentences, and the trial court erred in summarily denying his motion without a hearing. Following our review, we conclude the appellant does not state a colorable claim for relief, and we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/16/16
Marvin Davis v. State of Tennessee
W2015-02129-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Marvin Davis, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his rape of a child conviction, for which he is serving a twenty-five-year sentence. He contends that he received the ineffective assistance of counsel and that the post-conviction judge erred in denying the Petitioner’s motion to recuse. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/16/16
State of Tennessee v. Grace Ann Blair
M2015-01231-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John H. Gasaway, III

The Defendant, Grace Ann Blair, was charged in a two-count indictment with driving under the influence (“DUI”) and DUI per se, Class A misdemeanors.  See T.C.A. § 55-10-401(1), (2). She moved to dismiss the charges after discovering that her blood sample was destroyed a little over one year after her arrest.  The trial court granted the dismissal, finding that the sample contained potentially exculpatory evidence which could have shown that the Defendant’s actions were involuntarily undertaken while she was under the influence of Ambien.  The State appeals.  Because we have determined that the Defendant’s due process rights were not violated by the destruction of the sample, we reverse the dismissal of the charges and remand for further proceedings consistent with this opinion.

Montgomery County Court of Criminal Appeals 11/16/16
Courtney Bishop v. State of Tennessee
W2015-02064-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James M. Lammey

The Petitioner, Courtney Bishop, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his convictions of first degree felony murder and attempted aggravated robbery and resulting effective sentence of life plus three years. On appeal, the Petitioner contends that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/15/16
State of Tennessee v. Ytockie Fuller aka Yteikie Washington
W2015-00965-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Ytockie Fuller aka Yteikie Washington, was convicted of first degree murder, Tenn. Code Ann. § 39-13-202, and possession of a firearm after a felony conviction, Tenn. Code Ann. § 39-17-1307(b)(1)(A). On appeal, the defendant challenges the sufficiency of the evidence supporting the first degree murder conviction arguing that the State failed to prove premeditation. Additionally, the defendant contends that statements made by the victim in a recorded telephone call prior to his death were inadmissible hearsay and that the State's multiple playing of the recording served to inflame the jury. After our review, we conclude that the defendant's arguments are without merit. Accordingly, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 11/15/16
State of Tennessee v. Alphonso Bowen
W2015-01316-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Lee V. Coffee

Defendant, Alphonso Bowen, was indicted by the Shelby County Grand Jury for one count of aggravated robbery. Following a jury trial, Defendant was convicted as charged. Following a sentencing hearing, the trial court ordered Defendant to serve 12 years in the Tennessee Department of Correction. In this appeal as of right, Defendant raises the following issues for our review: 1) whether the trial court erred by allowing testimony regarding the hearsay contents of an anonymous note; 2) whether the trial court erred by allowing the State to impeach Defendant with evidence of a prior conviction; 3) whether the trial court erred by allowing testimony in violation of its ruling on a motion in limine precluding discussion of Defendant's arrest; 4) whether the trial court erred by asking questions of the State's expert witness; 5) whether it was plain error for the trial court to allow a lay witness to give an expert opinion regarding Defendant's fingerprints; 6) whether the trial court erred by excluding testimony by Defendant regarding a photograph; 7) whether the evidence was sufficient to support Defendant's conviction; and 8) whether the cumulative effect of the trial court's errors require a reversal of Defendant's conviction. Having reviewed the entire record and the parties' briefs, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/15/16
Darren Brown v. State of Tennessee
W2016-00719-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Chris Craft

Petitioner, Darren Brown, appeals the dismissal of his petition for writ of error coram nobis after the coram nobis court determined that the petition was untimely. We affirm the judgment of the coram nobis court.

Shelby County Court of Criminal Appeals 11/15/16
Calvin E. Bartlett v. State of Tennessee
W2016-00616-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Petitioner, Calvin E. Bartlett, received an effective ten-year sentence as the result of a January 2015 plea agreement that disposed of two felonies and six misdemeanors in two different cases in the Madison County Criminal Court. Petitioner subsequently filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that his guilty pleas were made unintelligently. The post-conviction court denied relief, and Petitioner timely appealed. Because Petitioner failed to prove that he received ineffective assistance of counsel, the decision of the post-conviction court is affirmed.

Madison County Court of Criminal Appeals 11/15/16
State of Tennessee v. Jeremy L. Saxton
M2015-01380-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Defendant, Jeremy L. Saxton, was convicted of one count of assault and one count of resisting arrest.  As a result of the convictions, Defendant received judicial diversion with probation for eleven months and twenty-nine days.  After the denial of a motion for new trial, Defendant filed a timely notice of appeal.  Upon our review we determine that Defendant was not entitled to an evidentiary hearing on the motion to suppress because there was no evidence to suppress.  Further, we conclude that the record on appeal is incomplete, precluding our review of the sufficiency of the evidence.  Consequently, the judgments of the criminal court are affirmed and the matter is remanded for correction of a clerical error.

Sumner County Court of Criminal Appeals 11/15/16
State of Tennessee v. Antonio J. Beasley, Sr.
E2016-00852-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Tom Greenholtz

The defendant, Antonio J. Beasley, Sr., appeals the summary denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36, to correct perceived clerical errors in the challenged judgments. Discerning no error, we affirm.

Hamilton County Court of Criminal Appeals 11/14/16
Christopher D. Neighbours v. State of Tennessee
M2015-01904-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Christopher D. Neighbours (“the Petitioner”) appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief.  The Petitioner contends that: (1)his due process rights were violated when the State failed to disclose a “potential plea deal” between the State and a cooperating co-defendant, who testified against the Petitioner at trial; (2) he received ineffective assistance of counsel based upon trial counsel’s failure to object to the prosecutor’s vouching for a witness during closing argument; (3) appellate counsel was ineffective based upon counsel’s failure to appeal the imposition of consecutive sentencing; and (4) appellate counsel had an actual conflict of interest when he represented the Petitioner on direct appeal.  Upon review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 11/14/16
State of Tennessee v. Amilcar Crabeal Butler
M2016-00789-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Amilcar Crabeal Butler, appeals the trial court’s dismissal of his motion to correct an illegal sentence.  On appeal, the Petitioner asserts that the trial court’s dismissal was improper because the trial court relied on State v. Brown, 479 S.W.3d 200 (Tenn. 2015), which the Petitioner argues was wrongly decided.  After a thorough review of the record, we affirm the dismissal of the petition in accordance with Rule 20, Rules of the Court of Criminal Appeals.

Davidson County Court of Criminal Appeals 11/14/16
State of Tennessee v. Antonio Terrell Pewitte - Concurring Opinion
M2015-02103-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Randall Wyatt, Jr.

I join the majority in affirming Defendant’s conviction of child neglect.  However, I write separately because I conclude that the trial court erred by allowing Ms. Donnell to testify about statements made to her by the victim and the victim’s mother.

Davidson County Court of Criminal Appeals 11/14/16
State of Tennessee v. Antonio Terrell Pewitte
M2015-02103-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Defendant, Antonio Terrell Pewitte, was convicted of aggravated child neglect and received a sentence of twenty years.  Defendant raises the following issues in his direct appeal: (1) whether the trial court erred by failing to require the State to make an election of offenses; (2) whether the evidence is sufficient to support his conviction; (3) whether the trial court abused its discretion by admitting multiple photographs of the victim’s injuries; (4) whether the trial court erred by admitting hearsay testimony; (5) whether the trial court abused its discretion by not granting a mistrial based on prosecutorial misconduct during closing argument; and (6) whether the trial court abused its discretion during sentencing.  Following a careful review of the record, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 11/14/16
Jeffery W. Dean v. State of Tennessee
M2015-01581-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Jeffery W. Dean, filed for post-conviction relief from his convictions of aggravated kidnapping and carjacking, alleging that his trial counsel was ineffective by failing to explain the State’s evidence against the Petitioner and counsel’s trial strategy and by failing to prepare the Petitioner to testify at trial.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

Robertson County Court of Criminal Appeals 11/14/16
Shane Seth Ghorley v. Brandi Lynn Ghorley
E2015-02051-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

This appeal, which stems from a divorce action, involves issues of child support and an award of attorney’s fees. The father asserts error in the trial court’s decision to award to the mother attorney’s fees in the amount of $25,000 as alimony in solido. The father also argues that his co-parenting time with the children was not properly calculated when setting his child support obligation. Following our thorough review of the evidence in light of the statutory factors, we conclude that the trial court properly awarded $25,000 for attorney’s fees to the mother as alimony in solido. We also determine, however, that the permanent parenting plan order entered by the trial court contains an internal inconsistency. We therefore vacate the permanent parenting plan order and remand to the trial court for entry of an appropriate and internally consistent permanent parenting plan order.

Monroe County Court of Criminal Appeals 11/10/16
William James Watt v. State of Tennessee
M2015-02411-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The petitioner, William James Watt, appeals the denial of his petition for post-conviction relief, which challenged his 2012 Davidson County Criminal Court jury convictions of three counts of rape of a child and three counts of aggravated sexual battery, claiming that he was deprived of the effective assistance of counsel at trial and on appeal.  Discerning no reversible error, we affirm the denial of post-conviction relief.

Davidson County Court of Criminal Appeals 11/10/16
State of Tennessee v. Sherry Dewitt
M2015-00816-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steve R. Dozier

Following a jury trial, the Defendant, Sherry Dewitt, was acquitted of aggravated child abuse but convicted of aggravated child neglect.  She now appeals as of right from that conviction, challenging the sufficiency of the evidence supporting the requisite mental state for that crime and that the child suffered an adverse effect to her health and welfare from the Defendant’s alleged neglect as statutorily required.  Following our review, we conclude that the evidence was sufficient to support a knowing mens rea, but we reverse the Defendant’s conviction because there was insufficient proof that the Defendant’s delay in informing the parents about the child’s injuries or in seeking medical help had an actual, deleterious effect on the child’s health and welfare.  Therefore, the judgment is vacated, and the charge is dismissed.

Davidson County Court of Criminal Appeals 11/10/16
State of Tennessee v. James Allen Gooch
M2016-00359-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Dee David Gay

The Appellant, James Allen Gooch, is appealing the trial court’s order dismissing his motion to correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Sumner County Court of Criminal Appeals 11/09/16