Court of Criminal Appeals Opinions

Format: 01/31/2015
Format: 01/31/2015
State of Tennessee v. Frederic A. Crosby
W2013-02610-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge William B. Acree

Appellant, Frederic A. Crosby, stands convicted of possession of 0.5 grams or more of cocaine with the intent to deliver, a Class B felony, and simple possession of marijuana, a Class A misdemeanor. The trial court sentenced appellant to twelve years for his cocaine conviction and eleven months, twenty-nine days for his marijuana conviction, to be served concurrently. On appeal, appellant argues that: (1) the trial court erred by failing to grant his motion to suppress because the arresting officer did not have probable cause to search him; (2) that the evidence was insufficient to support his conviction for possession of 0.5 grams or more of cocaine with the intent to deliver; and (3) that the trial court erred by imposing the maximum sentence within appellant’s sentencing range for his conviction for possession of 0.5 grams or more of cocaine with the intent to deliver. Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Weakley County Court of Criminal Appeals 09/09/14
State of Tennessee v. Tan Vo
W2013-02118-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Paula Skahan

The Defendant, Tan Vo, was convicted by a Shelby County Criminal Court jury of sexual battery and incest. The trial court imposed concurrent sentences of two years and six years for the sexual battery and incest convictions, respectively, to be served in the county workhouse. The sole issue presented for our review is whether the trial court abused its discretion in denying the Defendant’s request for probation and imposing an effective sentence of six years to be served in the county workhouse. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/09/14
State of Tennessee v. Allen Lebron Tucker
E2013-02727-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Barry A. Steelman

A Hamilton County jury found the Defendant, Allen Lebron Tucker, guilty of possession with intent to sell one-half gram or more of cocaine. The trial court ordered the Defendant to serve a fifteen-year sentence for this conviction. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress the evidence obtained during the execution of a search warrant and when it excluded evidence of his girlfriend’s prior drug conviction. After a thorough review of the record and relevant law, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 09/09/14
State of Tennessee v. Michael L. Hufford
E2012-02162-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Robert H. Montgomery

In his first trial, appellant, Michael L. Hufford, was convicted of eleven counts of harassment involving two victims. He was convicted in a second trial of driving with a suspended or revoked license, possession of marijuana, and possession of drug paraphernalia. Appellant represented himself during the first trial. However, on the morning of the second trial, he indicated a desire to have the trial continued so he could retain counsel. The trial court assented but conditioned the continuance upon raising appellant’s bond. Appellant withdrew his request for a continuance, proceeded to trial, and was found guilty on all counts. The trial court imposed an effective sentence of seven consecutive terms of eleven months, twentynine days at seventy-five percent release eligibility with three terms to serve and four to be suspended to probation. Appellant raises the following issues in this direct appeal: (1) whether appellant’s waiver of his right to counsel was valid; (2) whether the trial court prohibited appellant from presenting legal issues to the jury; (3) whether the evidence was sufficient to sustain appellant’s convictions for harassment; and (4) whether the trial court erred in sentencing him. Following our review, we affirm the judgments and sentences for the eleven counts of harassment for which he is incarcerated. However, because appellant’s right to counsel was violated in the second trial, we must reverse appellant’s convictions for driving with a suspended or revoked license, possession of marijuana, and possession of drug paraphernalia and remand for proceedings consistent with this opinion.

Sullivan County Court of Criminal Appeals 09/08/14
Franklin D. Fish v. State of Tennessee
M2014-00385-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David Earl Durham

The petitioner, Franklin D. Fish, pro se, appeals the Wilson County Criminal Court’s summary dismissal of his petition for post-conviction relief for failure to state a colorable claim.  The State concedes that summary dismissal was erroneous.  Upon our review, we reverse the decision of the post-conviction court and remand for proceedings consistent with the Post-Conviction Procedure Act.

Wilson County Court of Criminal Appeals 09/08/14
State of Tennessee v. Stephano L. Weilacker
M2013-01532-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Michael R. Jones

The appellant, Stephano L. Weilacker, was convicted in the Montgomery County Criminal Court of especially aggravated kidnapping, a Class A felony, and aggravated robbery, a Class B felony, and received an effective twenty-year sentence to be served consecutively to a previous sentence.  In this delayed appeal, the appellant contends that the evidence is insufficient to support the convictions, that the trial court erred by denying his motion to suppress evidence, that the State committed prosecutorial misconduct during closing arguments, that the trial court erred by failing to instruct the jury as provided by State v. White, 362 S.W.3d 559 (Tenn. 2012), and that consecutive sentencing was improper. However, because no timely motion for new trial was filed in this case, we can only review sufficiency of the evidence and sentencing and the other issues for plain error.  Moreover, because this court addressed sufficiency and sentencing in the appellant’s first direct appeal of his convictions, they cannot be reconsidered.  Finding no plain error in the remaining issues, the appellant’s convictions are affirmed.

Montgomery County Court of Criminal Appeals 09/08/14
State of Tennessee v. Gary Brian Berry
M2014-00043-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Timothy L. Easter

The defendant, Gary Brian Berry, appeals his Hickman County Circuit Court guilty-pleaded convictions of manufacturing methamphetamine, possession of methamphetamine with the intent to sell, and four counts of promoting the manufacture of methamphetamine, claiming that the 12-year sentence imposed by the trial court is excessive.  We affirm the judgments of the trial court.

Hickman County Court of Criminal Appeals 09/08/14
State of Tennessee v. Devon Brown
W2013-00182-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Lee V. Coffee

A Shelby County Jury returned an indictment against Defendant, Devon Brown, Defendant’s brother, Kenneth Brown, and David Richardson, charging them with first degree premeditated murder, thirteen counts of attempted first degree murder, thirteen counts of aggravated assault, one count of employing a firearm during the commission of a dangerous felony, and one count of reckless endangerment. Orders of dismissal were entered as to one count of attempted first degree murder and one count of aggravated assault. He was convicted of the lesser-included offense of facilitation of employing a firearm during the commission of a dangerous felony. He was convicted as charged of the remaining offenses. The trial court imposed a sentence of life imprisonment for first degree murder and imposed a mid-range sentence for each of the remaining convictions. The court merged the convictions for aggravated assault into the convictions for attempted first degree murder. The trial court further found Defendant to be a dangerous offender and ordered all sentences to run consecutively for an effective sentence of life plus two-hundred and forty-four years in confinement. On appeal, Defendant argues: (1) that the trial court erred in denying the motion to suppress his statement; (2) that the evidence was insufficient to support his convictions for first degree murder and the attempted first degree murder and aggravated assault of Kenneth Baker and Chymia Baker; and (3) that the trial court improperly sentenced him by ordering his sentences to be served consecutively. After a thorough review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/05/14
Barry L. Price v. State of Tennessee
W2013-02547-CCA-R3-ECN
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roy B. Morgan Jr.

The petitioner, Barry L. Price, appeals the denial of his petition for the writ of error coram nobis. In 1991, the petitioner pled guilty to three counts of the sale of cocaine, one count of driving on a revoked license, and one count of obtaining money by false pretenses. Adopting the State’s recommendation, the trial court imposed an effective ten-year sentence. In 2013, the petitioner filed a petition for the writ of error coram nobis alleging that his sentence was unlawfully imposed because the trial court did not engage in the appropriate sentencing colloquy or make appropriate sentencing findings. The coram nobis court denied the petition finding that it was time-barred and failed to raise issues cognizable in a coram nobis petition. The petitioner contends that the denial was error. Following review of the record and applicable law, we affirm the judgment of the coram nobis court.

Madison County Court of Criminal Appeals 09/05/14
State of Tennessee v. Steven Davis
W2013-01486-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris Craft

The defendant, Steven Davis, was convicted of especially aggravated robbery, aggravated robbery, and aggravated burglary. He is currently serving an effective twenty-six year sentence in the Department of Correction. On appeal, the defendant contends that the trial court erred by failing to suppress statements he made to police while in custody. Following review of the record, we conclude that the defendant has waived review of that issue by failing to provide an adequate record to establish that he adequately raised the issue before the trial court. The judgment of the trial court is affirmed.

Shelby County Court of Criminal Appeals 09/05/14
State of Tennessee v. Dominique Davon Holmes
W2013-01878-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald H. Allen

The Defendant-Appellant, Dominique Davon Holmes, entered guilty pleas to aggravated burglary, robbery, aggravated criminal trespass, and two counts of assault. Pursuant to the plea agreement, he received an effective five-year sentence with the manner of service to be determined by the trial court. After the sentencing hearing, the trial court ordered the Defendant to serve his five-year sentence in the Tennessee Department of Correction. On appeal, he argues that the trial court abused its discretion in denying him an alternative sentence. Upon review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 09/05/14
State of Tennessee v. Mark Elihu Cooper
W2013-02530-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge William B. Acree Jr.

Pursuant to a plea agreement, the Defendant, Mark Elihu Cooper, pled guilty to sexual battery by an authority figure, statutory rape by an authority figure, incest, and rape, and the trial court imposed an effective eighteen-year sentence for those convictions. In this appeal as of right, he contends that the trial court erred by enhancing his sentences above the range minimums “without the support of a single enhancement factor.” He also argues that consecutive sentencing was improper due to the absence of proof of “residual[] physical and mental damage” to the victim presented at the sentencing hearing. Finally, he submits that the trial court used an “inappropriate consideration[,]” specifically, an ex parte communication with the police chief, in rendering its decisions in both of these regards. Following our review, we affirm the trial court’s imposition of an eighteen-year sentence.

Weakley County Court of Criminal Appeals 09/05/14
State of Tennessee v. Joseph Anthony Saitta, Jr.
M2013-01947-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Larry B. Stanley, Jr.

Warren County Circuit Court Jury convicted the appellant, Joseph Anthony Saitta, Jr., of rape of a child, and the trial court sentenced him to fifty-eight years in confinement to be served at 100%.  On appeal, the appellant claims that the trial court erred by denying his motion to suppress evidence when an investigator from the Our Kids Center had been improperly informed that the appellant had a prior juvenile adjudication for a sexual offense and that the evidence is insufficient to support the conviction.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

Warren County Court of Criminal Appeals 09/05/14
State of Tennessee V. Jose Lemanuel Hall, Jr.
M2013-02090-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Randall Wyatt, Jr.

The defendant, Jose Lemanual Hall, Jr., was convicted of first degree murder and especially aggravated robbery.  He received an effective sentence of life imprisonment with the possibility of parole.  On appeal, he challenges the sufficiency of the convicting evidence.  Within that general challenge, he specifically contends that he was convicted solely on the uncorroborated testimony of an accomplice and an uncorroborated confession he made to a fellow inmate.  Following review, we conclude that both were sufficiently corroborated and properly considered in the sufficiency determination.  We further conclude that the evidence presented at trial was more than sufficient to support the conviction.  As such, we affirm.  However, we remand for entry of corrected judgments of conviction reflecting the appropriate merger of the two murder convictions.

Davidson County Court of Criminal Appeals 09/05/14
James Alfred Reed, Jr. v. State of Tennessee
E2014--00227-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Amy A. Reedy

A Monroe County jury convicted the Petitioner, James Alfred Reed, Jr., of one count of the sale of one-half gram or more of cocaine within 1000 feet of a school and one count of the sale of less than one-half gram of cocaine within 1000 feet of a school. The trial court sentenced him as a Range II, multiple offender and ordered the Petitioner to serve an effective sentence of forty years. The Petitioner appealed, and this Court affirmed the judgments of the trial court. State v. James Alfred Reed, Jr., No. E2010-01138-CCA-R3-CD, 2011 WL 2766766, at *5 (Tenn. Crim. App., at Knoxville, July 18, 2011), perm. app. denied (Tenn. Dec. 13, 2011). The Petitioner subsequently filed a petition for post-conviction relief in which he alleged that his trial counsel was ineffective for failing to file a motion to compel the State to disclose its confidential informant at trial and that his Momon hearing was improperly conducted. 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.

Monroe County Court of Criminal Appeals 09/04/14
State of Tennessee v. Mark Lipton
E2012-02197-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Richard R. Vance

The Defendant, Mark Lipton, was convicted by a Sevier County jury of aggravated assault and received a five-year sentence. On appeal, the Defendant raises the following issues for our review: (1) whether the evidence was sufficient to support his conviction, citing to the inconsistencies in witnesses’ testimony and to the “physical facts rule”; (2) whether the trial court erred in the admission of improper character evidence, alleging both procedural and substantive errors in that ruling; and (3) whether the trial court properly denied his petition for error coram nobis relief by concluding that the new witness’s testimony was not credible.1 After reviewing the record and applicable authorities, we affirm the judgment of the trial court.

Sevier County Court of Criminal Appeals 09/04/14
State of Tennessee v. Morris Marsh
E2013-01343-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert E. Cupp

The Defendant, Morris Marsh, was convicted by a jury of first degree premeditated 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 trial court erred in denying the Defendant’s motion to suppress his statement given to an investigator; (2) that the trial court erred in denying the Defendant’s motion to dismiss the presentment against him; (3) that the trial court erred in denying the Defendant’s pro se motion to remove his appointed trial counsel; (4) that the State failed to disclose an incriminating statement made by the Defendant to a witness; (5) that the trial court erred in admitting audio recordings of prison phone calls made by the Defendant; (6) that the trial court erred in admitting an autopsy photograph of the victim; (7) that the trial court erred in determining that a witness was unavailable and allowing the witness’s preliminary hearing testimony to be presented at trial; (8) that the evidence was insufficient to sustain the Defendant’s conviction; and (9) that the State committed prosecutorial misconduct during its closing argument. 1 Following our review, we affirm the judgment of the trial court.

Johnson County Court of Criminal Appeals 09/04/14
State of Tennessee v. James Cody Burnett
E2013-01369-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steven Sword

The Defendant, James Cody Burnett, pleaded guilty to one count of vehicular homicide by intoxication with an agreed sentence of eight years and the manner of the service of the sentence to be determined by the trial court. After a hearing, the trial court ordered the Defendant to serve his sentence in confinement. The Defendant filed a Rule 35 motion to reduce his sentence, which the trial court denied. The Defendant filed an appeal of both the trial court’s sentence of confinement and its denial of his Rule 35 motion to reduce his sentence. We consolidated those two appeals. After a thorough review of the record and applicable authorities, we affirm the trial court’s sentencing of the Defendant and its denial of his motion to reduce his sentence.

Knox County Court of Criminal Appeals 09/03/14
State of Tennesee v. Troy James Keith Reynolds
E2013-02777-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Tammy Harrington

The defendant, Troy James Keith Reynolds, appeals his Blount County Circuit Court jury convictions of burglary, theft, and possession of burglary tools, claiming that the evidence was insufficient to support his convictions. Because the judgment in count two erroneously reflects a conviction of Class C felony theft, we remand that judgment to the trial court for entry of a corrected judgment reflecting a conviction of Class D felony theft. In addition, we remand for correction of other clerical errors in the judgments. In all other respects, the judgments of the trial court are affirmed.

Blount County Court of Criminal Appeals 09/02/14
State of Tennessee v. Steven Gregg Barker
E2013-02721-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Amy F. Reedy

Appellant, Steven Gregg Barker, pleaded guilty to 23 counts of the initiation of the process to manufacture methamphetamine and received an eight year sentence, suspended to supervised probation. As a condition of the plea agreement, appellant reserved the right to certify three questions of law challenging the trial court's denial of a
motion to suppress. Upon our review of the record and applicable law, we hold that the Defendant is not entitled to relief. Accordingly, we affirm the judgment of the trial court.

Bradley County Court of Criminal Appeals 09/02/14
State of Tennessee v. Dewoyne Gwynn
W2012-01865-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John T. Fowlkes Jr.

Defendant, Dewoyne Gwynn, and two co-defendants, Ms. Chronda Walker, and Mr. Markhayle Jackson, were charged in a six-count indictment with (1) premeditated first degree murder of Kelvin Cooper; (2) felony murder of Kelvin Cooper during the perpetration of kidnapping; (3) felony murder of Kelvin Cooper during the perpetration of robbery; (4) especially aggravated kidnapping of Kelvin Cooper by use of a deadly weapon; (5) especially aggravated kidnapping of Kelvin Cooper wherein the victim suffered serious bodily injury; and (6) especially aggravated robbery of Kelvin Cooper. Defendant was tried by himself in a jury trial. The jury acquitted Defendant of all three counts of first degree murder and of especially aggravated robbery. On each of the two remaining counts, the jury convicted Defendant of the lesser included offense of facilitation of especially aggravated kidnapping. At sentencing the trial court merged the two convictions and sentenced Defendant to serve twelve years’ incarceration. Defendant raises three issues on appeal; (1) the evidence was insufficient to support the conviction of facilitation of especially aggravated kidnapping; (2) the trial court failed to properly charge the jury; and (3) the trial court erred in sentencing Defendant. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/29/14
Justin Michael Nunnery v. State of Tennessee
M2013-01841-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge David Earl Durham

Petitioner, Justin Michael Nunnery, appeals the dismissal of his pro se petition for post-conviction relief.  The trial court summarily dismissed the petition on the basis that it failed to state a colorable claim.  On appeal, Petitioner argues that the trial court erred in dismissing his petition without holding an evidentiary hearing.  The State concedes that the trial court erred in summarily dismissing the petition because if Petitioner’s claims are true, they would entitle him to post-conviction relief. Following a review of the record, we agree and accordingly reverse the order of dismissal and remand this case to the post-conviction court for an evidentiary hearing pursuant to all provisions of Tenn. Code Ann.  § 40-30-107 and Tenn. Sup. Ct. R. 28, § 6(B)(2)-(3).  Furthermore, the trial judge is recused from further proceedings in this case.

Trousdale County Court of Criminal Appeals 08/29/14
Robert Faulkner v. State of Tennessee
W2012-00612-CCA-R3-PD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Otis Higgs Jr.

The Petitioner, Robert Faulkner, appeals the denial of his petition for post-conviction relief from his conviction of first degree premeditated murder and resulting sentence of death. On appeal, the Petitioner contends that (1) the jury foreperson demonstrated bias and violated the Petitioner’s right to a fair and impartial jury; (2) he is intellectually disabled and, thus, ineligible for the death penalty; (3) he received the ineffective assistance of counsel during the guilt and penalty phases of trial; (4) the prosecution failed to disclose exculpatory evidence; (5) the prosecution presented false and misleading testimony; (6) the trial court demonstrated bias; (7) the “acquittal-first instruction” violated his due process rights; (8) Tennessee’s death penalty scheme is unconstitutional; and (9) cumulative error warrants a new trial. We conclude that due to the jury foreperson’s false statements about past domestic violence, the Petitioner was denied his constitutional right to a fair and impartial jury. Accordingly, we reverse the judgment of the post-conviction court, vacate the Petitioner’s conviction and death sentence, and remand the case to the trial court for a new trial.

Shelby County Court of Criminal Appeals 08/29/14
State of Tennessee v. James Chesteen
W2012-01998-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Mark Ward

A Shelby County Criminal Court Jury convicted the appellant, James Chesteen, of rape of a child, and the trial court imposed a sentence of twenty-five years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the trial court’s decision to admit a photograph of the victim taken by a nurse practitioner at the Our Kids Center. Upon review, we conclude that the evidence is sufficient but that the trial court’s admission of the photograph was reversible error. Accordingly, the appellant’s conviction and sentence are reversed, and the case is remanded for a new trial.

Shelby County Court of Criminal Appeals 08/29/14
Frank Taylor v. State of Tennessee
W2012-01993-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James M. Lammey

The petitioner, Frank Taylor, was convicted of one count of first degree felony murder, a Class A felony, and criminal attempt: especially aggravated robbery, a Class B felony. He appeals the denial of his petition for post-conviction relief. On appeal, the petitioner contends that he received ineffective assistance of counsel when: (1) trial counsel failed to investigate and pursue as a defense the petitioner’s absence from his juvenile detention hearing, his lack of representation at the hearing, and the fact that he did not receive advice regarding the ability to appeal the detention order; (2) trial counsel failed to pursue the denial of a meaningful transfer hearing; and (3) trial counsel failed to challenge the probable cause of the petitioner’s arrest warrant. After a review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/28/14