Court of Criminal Appeals Opinions

Format: 07/24/2016
Format: 07/24/2016
Marlon Yarbro v. State of Tennessee
W2015-01195-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge C. Creed McGinley

The petitioner, Marlon Yarbro, was convicted of selling .5 grams or more of a Schedule II controlled substance within 1000 feet of a school zone, a Class A felony; simple possession of a controlled substance, a Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced to twenty-five years at 100% for the Class A felony; two years for the simple possession conviction, and eleven months and twenty-nine days for the drug paraphernalia conviction, with all sentences to be served concurrently. On direct appeal, this court affirmed the convictions and remanded for correction of the judgment for simple possession to reflect the conviction as a Class A misdemeanor and a sentence of eleven months, twenty-nine days. Following his convictions, but while his direct appeal was pending, he filed a pro se petition for writ of habeas corpus, arguing, as best we can understand, that he was being illegally detained because his Class A felony conviction should be served at 35%, rather than 100%; the indictment was defective in stating the offenses with which he was charged; the indictment was defective because it failed “to state the facts of the crime scene;” the judgment violates the plain language requirement of Tennessee Supreme Court Rule 17; and the judgment is “absent of Counsel,” resulting in the trial court’s losing jurisdiction and voiding the judgment. The trial court dismissed the motion, determining that the petitioner could not simultaneously maintain a direct appeal and a petition for writ of habeas corpus. We agree and affirm the dismissal of the petition, according to Rule 20, Rules of the Court of Criminal Appeals.

Hardin County Court of Criminal Appeals 02/26/16
Jay Earl Haynes v. State of Tennessee
W2015-00919-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee Moore

The petitioner, Jay Earl Haynes, appeals the denial of his petition for post-conviction relief from his two rape convictions, arguing he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Dyer County Court of Criminal Appeals 02/26/16
Charles Everett Lowe-Kelley v. State of Tennessee
M2015-00138-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

Petitioner, Charles Everett Lowe-Kelley, appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel.  He also argues that his consecutive life sentences violate Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012).  We conclude that Petitioner has not proven that he received ineffective assistance of counsel and that his effective sentence does not violate Miller.  Accordingly, the decision of the post-conviction court is affirmed.

Maury County Court of Criminal Appeals 02/24/16
State of Tennessee v. John W. Smith
M2015-01616-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl A. Blackburn

Defendant, John W. Smith, appeals the trial court’s denial of his motion for correction of an illegal sentence under Tennessee Rule of Criminal Procedure Rule 36.1.  Because Defendant has failed to state a colorable claim for relief, we affirm the dismissal of the motion.

Davidson County Court of Criminal Appeals 02/24/16
Gary W. Robinson, III v. State of Tennessee
E2015-00038-CCA-R3-PC
Authoring Judge: Judge John Everett Williams,
Trial Court Judge: Judge Bobby R. McGee

The petitioner, Gary W. Robinson, III, appeals the summary dismissal of his petition for post-conviction relief. He contends that the post-conviction court erroneously found that his petition was untimely filed. Following our review of the briefs of the parties, the record, and the applicable law, we conclude that the post-conviction court erred by dismissing the petition.

Knox County Court of Criminal Appeals 02/24/16
State of Tennessee v. Jeffery Yates
W2015-01075-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey

The defendant, Jeffery Yates, appeals the summary dismissal of his motion to correct an illegal sentence under Rule 36.1 of the Tennessee Rules of Criminal Procedure, arguing that he stated a colorable claim for relief in that he received concurrent sentences when consecutive sentences were statutorily required. After review, we affirm the summary dismissal of the defendant’s motion.

Shelby County Court of Criminal Appeals 02/23/16
State of Tennessee v. Travis Seiber
W2015-00221-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Mark Ward

Aggrieved of his Shelby County Criminal Court jury convictions of three counts of aggravated robbery, the defendant, Travis Seiber, appeals, arguing that he was deprived of the right to a trial by a fair and impartial jury, that the trial court erred by permitting the State to use as a demonstrative aid a gun that had not been entered into evidence, and that the evidence was insufficient to support his convictions. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 02/23/16
Jurico Readus v. State of Tennessee
W2015-00338-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Carolyn Wade Blackett

The petitioner, Jurico Readus, appeals the denial of his petition for post-conviction relief, which petition challenged his Shelby County Criminal Court jury convictions of felony murder and attempted especially aggravated robbery. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 02/23/16
Courtney R. Logan v. State of Tennessee
M2015-00725-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The petitioner, Courtney R. Logan, filed a petition for the writ of habeas corpus challenging the legality of his extradition from Tennessee to Mississippi nearly four years after the extradition.  The trial court summarily dismissed the petition, and the petitioner now appeals.  Following our review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 02/23/16
State of Tennessee v. Bobby Joe Campbell
M2015-00704-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Lee Russell

The Defendant, Bobby Joe Campbell, entered guilty pleas to two counts of aggravated assault, a Class C felony, and two counts of failure to appear, a Class E felony, with the manner and service of his sentence to be determined by the trial court.  See T.C.A. §§ 39-13-102, -13-111, -16-609(e).  The trial court merged the aggravated assault convictions and imposed a consecutive term of five years’ incarceration for aggravated assault and one and a half years’ incarceration for each count of failure to appear.  Each count of failure to appear was also ordered to be served consecutively to the other for an effective sentence of eight years in the Tennessee Department of Correction.  The sole issue presented in this appeal is whether the Defendant’s sentence is excessive and contrary to law.  Upon our review, we must remand this matter to the trial court for a new sentencing hearing for the limited purpose of considering the factors outlined in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), and determining the propriety of consecutive sentencing for the failure to appear convictions.  In all other respects, we affirm the sentence imposed by the trial court.

Marshall County Court of Criminal Appeals 02/23/16
State of Tennessee v. Joseph Thomas
W2015-00157-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Joseph Thomas, appeals his Shelby County Criminal Court jury convictions of aggravated robbery, aggravated assault, aggravated burglary, and employing a firearm during the commission of a dangerous felony, claiming that the trial court erred by denying his motion to dismiss for failure to prosecute and by instructing the jury on criminal responsibility, that the evidence was insufficient to sustain his convictions, and that the trial court erred by classifying the defendant as a career offender. We affirm the convictions and sentences but remand for correction of a clerical error in one of the judgments.

Shelby County Court of Criminal Appeals 02/22/16
Alicia Williams v. State of Tennessee
W2015-00539-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The petitioner, Alicia Williams, appeals the summary dismissal of her petition for writ of habeas corpus, which petition challenged her 2012 Shelby County Criminal Court guilty-pleaded conviction of second degree murder. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 02/22/16
State of Tennessee v. Leslie Kennedy
W2015-00458-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Mark Ward

The defendant, Leslie Kennedy, appeals her Shelby County Criminal Court jury convictions of second offense driving under the influence and reckless driving, claiming that the evidence was insufficient to support her convictions. Discerning no error, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/22/16
State of Tennessee v. Zachary James Pence
E2015-00476-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Donald Ray Elledge

The Defendant, Zachary James Pence, was found guilty by an Anderson County Circuit Court jury of aggravated rape of a child, a Class A felony, aggravated child abuse, a Class A felony, and child abuse, a Class D felony. See T.C.A. §§ 39-13-531 (2014), 39-15-402 (2010) (amended 2011, 2012), 39-15-401 (2010) (amended 2011). The trial court sentenced the Defendant to concurrent terms of sixty years for the aggravated rape of a child conviction, twenty-five years for the aggravated child abuse conviction, and two years for the child abuse conviction. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erroneously permitted inadmissible hearsay evidence, (3) the trial court improperly commented on the evidence, (4) the trial court permitted improper opinion testimony, (5) the trial court improperly instructed the jury, (6) his sentence for the aggravated rape of a child conviction is excessive, and (7) the cumulative effect of the errors entitle him to relief. We affirm the judgments of the trial court.

Anderson County Court of Criminal Appeals 02/22/16
Donald Wayne McCall v. State of Tennessee
W2015-01171-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Clayburn Peeples

Donald Wayne McCall (“the Petitioner”) filed a Petition for Post-Conviction Relief, alleging ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief. Discerning no error, we affirm the judgment of the post-conviction court.

Crockett County Court of Criminal Appeals 02/19/16
State of Tennessee v. Keith Trammell
W2014-02433-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Keith Trammell, was convicted by a Shelby County jury of theft over $1000, a Class D felony; vandalism over $500, a Class E felony; and two counts of coercion of a witness, a Class D felony. The trial court sentenced him as a career offender to twelve years for the theft conviction, six years for the vandalism conviction, and twelve years for each of the coercion convictions. The court ordered the theft and vandalism sentences to be served concurrently to each other and the coercion sentences to be served concurrently to each other but consecutively to the theft and vandalism sentences, for a total effective sentence of twenty-four years at 60% in the Department of Correction. On appeal, the defendant argues that the trial court erred by sentencing him as a career offender and by allowing the State to introduce evidence of uncharged crimes. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/19/16
Bobby J. Croom v. State of Tennessee
W2015-01000-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Bobby J. Croom, appeals the denial of his petition for post-conviction relief from his rape of a child and aggravated sexual battery convictions. The petitioner argues that he is entitled to relief because: (1) the State failed to make a proper election of offenses at trial; (2) his convictions violate double jeopardy; (3) his conviction for aggravated sexual battery violates due process; and (4) he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Madison County Court of Criminal Appeals 02/19/16
State of Tennessee v. Keyvin Lanier Glass
M2015-00895-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Vanessa Jackson

Appellant, Keyvin Lanier Glass, pleaded guilty to aggravated assault and failure to appear.  He received an effective sentence of four years, one year in confinement with the remainder suspended to supervised probation.  His probation officer filed a probation violation report based on his breaking three probationary rules, and the trial court subsequently entered an order revoking appellant’s probation and ordering him to serve his full sentence in confinement.  On appeal, appellant argues that the trial court abused its discretion.  Following our review, we affirm the judgment of the trial court.

Coffee County Court of Criminal Appeals 02/19/16
Curtiss Carlos Talley v. State of Tennessee
W2015-00658-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carolyn Wade Blackett

The petitioner, Curtiss Carlos Talley, pled guilty in 2002 to aggravated assault and was sentenced to serve five years concurrently with a federal sentence which, apparently, was later imposed. Twelve years later, in 2014, he filed a petition for writ of error coram nobis, asking, as we understand, that the court “vacat[e] his state judgment/conviction on the merits and in the interest of justice.” The trial court determined that he had failed to state a claim for coram nobis relief, and we agree. Accordingly, we affirm the dismissal of the petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 02/18/16
State of Tennessee v. Timothy Lambert
W2015-00893-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, Timothy Demond Lambert, appeals from the trial court's dismissal, without an evidentiary hearing, of Defendant's motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. After review of the record and the briefs, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 02/18/16
Tony Fulton Wells v. State of Tennessee
E2015-00463-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge E. Shayne Sexton

The petitioner, Tony Fulton Wells, was initially charged with first degree (premeditated) murder, and he later pled guilty to second degree murder, a Class A felony. He filed a petition for post-conviction relief, which was denied. On appeal, he argues that his guilty plea was not knowing and voluntary because it was coerced. He also argues that he received the ineffective assistance of counsel because trial counsel failed to have a hearing to suppress his written confessions; failed to obtain more time for him to consider the plea agreement; failed to interview the petitioner's neighbor; failed to investigate the crime scene; and failed to explain adequately the law or to listen to the petitioner. Following our review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the post-conviction court.

Union County Court of Criminal Appeals 02/17/16
State of Tennessee v. Michael Lee Priest
M2014-01476-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Buddy D. Perry

The appellant, Michael Lee Priest, pled guilty in the Sequatchie County Circuit Court to robbery in case number 2013CR84 and received a four-year sentence with the manner of service to be determined by the trial court.  As a result of his guilty plea, the trial court revoked a four-year sentence of probation for aggravated assault in case number 2012CR136.  After a sentencing hearing, the trial court ordered that the appellant serve both sentences in confinement.  On appeal, the appellant contends that the trial court erred by allowing the State to cross-examine his mother about conduct that occurred as a juvenile and by not granting his requests for alternative sentencing.  Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Sequatchie County Court of Criminal Appeals 02/17/16
State of Tennessee v. Bashan Murchison
E2014-01250-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert H. Montgomery, Jr.
Defendant, Bashan Murchison and his Co-Defendant, Garrick Graham, were convicted by a Sullivan County Jury of numerous drug offenses. Specifically, Defendant Murchison was convicted of delivery of .5 grams or more of cocaine within 1,000 feet of a school zone (count 9), sale of .5 grams or more of cocaine within 1,000 feet of a school zone (count 10), delivery of .5 grams or more of cocaine within 1,000 feet of a daycare (count 11), sale of .5 grams or more of cocaine within 1,000 feet of a daycare (count 12), facilitation of the delivery of .5 grams or more of cocaine (count 13), sale of .5 grams or more of cocaine (count 14), sale of .5 grams or more of cocaine within 1,000 feet of a school (count 15), delivery of .5 grams or more of cocaine within 1,000 of a school (count 16), conspiracy to sell more than 26 grams of cocaine within 1,000 feet of a school (count 21) and conspiracy to deliver more than 26 grams of cocaine within 1,000 feet of a school (count 22). Count 10 charging Defendant Murchison with sale of more than .5 grams of cocaine within 1,000 feet of a school was dismissed by the trial court upon motion by the State. The trial court merged counts 11 and 12, counts 13 and 14, counts 15 and 16, and counts 21 and 22. Defendant Murchison received twelve-year sentences for counts 11, and 14. He received twenty-five-year sentences for counts 9, 15, and 21. The trial court imposed concurrent sentences for counts 11, 14, 15, and 21 to be served consecutively to the twenty-five-year sentence in count 9 for an effective fifty-year sentence. On appeal, Defendant Murchison raises the following issues: (1) that the trial court erred by admitting laboratory reports prepared by the TBI forensic scientists and forensic drug chemists concerning testing on the substances purchased by Mr. Dukes from Defendants Murchison and Graham; (2) the evidence was insufficient to support Defendant Murchison's convictions; (3) the trial court erred in denying Defendant Murchison's Batson challenge; (4) the trial court erred in denying Defendant Murchison's request to determine the competency of the CI; (5) the trial court erred by allowing the State to “repeatedly” show the CI his statement to refresh his recollection; (6) the State committed prosecutorial misconduct; (7) the trial court erred by not severing the offenses; and (8) the trial court incorrectly sentenced Defendant Murchison. Defendant Graham also filed an appeal which is addressed in a separate opinion of this court. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court.
 
Sullivan County Court of Criminal Appeals 02/12/16
Ernest Lee Jennings v. Gerald McAllister, Warden
E2015-01805-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lisa N. Rice
A jury convicted the petitioner of three counts of rape of a child, a Class A felony, and one count of sexual exploitation of a minor, a Class B felony. In this petition for the writ of habeas corpus, the petitioner alleges that various errors at trial and on post-conviction render his convictions void. The trial court dismissed the petition without a hearing, and the petitioner appeals the dismissal. We conclude that the trial court did not err in dismissing the petition, and we affirm the judgment of the trial court.
Johnson County Court of Criminal Appeals 02/12/16
State of Tennessee v. Joseph Jordan
W2014-01568-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Joseph Jordan, was convicted of rape, a Class B felony, two counts of false imprisonment, Class A misdemeanors, and one count of domestic assault, a Class A misdemeanor. On appeal, he argues that the trial court erred by not requiring the State to make an election of offenses; that the evidence is insufficient to sustain his convictions; that the testimony of a witness did not open the door to his prior conviction for domestic assault; that the trial court erred in restricting the testimony of a second witness to impeach the victim; that the trial court erred by instructing the jury regarding the mens rea of recklessness for the crime of rape; that the trial court should have instructed the jury regarding the defense of voluntary intoxication; that the trial court erred in admitting evidence of his prior bad acts; that the State committed prosecutorial misconduct in its opening statement; that it was plain error to allow the victim to testify that the defendant was incarcerated; and that his convictions should be reversed under the doctrine of cumulative error. Following our thorough review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/12/16