Court of Criminal Appeals Opinions

Format: 05/25/2016
Format: 05/25/2016
State of Tennessee v. Joseph Harris
W2015-00500-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The Defendant, Joseph Harris, appeals as of right from his jury conviction for aggravated robbery. On appeal, the Defendant contends (1) that the evidence is insufficient to support his conviction because violence was only used after the taking of the automobile had been completed; (2) that the trial court should have declared a mistrial when an alleged violation of Bruton v. United States, 391 U.S. 123 (1968), took place by a witness's reference to a co-defendant's statement that incriminated the Defendant; (3) that the trial court should have instructed the jury on joyriding as lesser-included offense of theft; and (4) that the trial court should have issued a special instruction on when a “taking” occurred by including additional language from State v. Swift, 308 S.W.3d 827 (Tenn. 2010). Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 05/03/16
State of Tennessee v. Randy Jackson
W2015-02021-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Chris Craft

The Defendant, Randy Jackson, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, and attempt to commit aggravated robbery, a Class C felony. See T.C.A. §§ 39-13-402 (2014), 39-12-101 (2014). The trial court sentenced the Defendant to consecutive terms of eleven years for aggravated robbery and nine years for attempted aggravated robbery, for an effective twenty-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/29/16
State of Tennessee v. Justin Tyler
W2015-00161-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The defendant, Justin Tyler, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony, and was sentenced to twenty-five years and ten years, respectively, to be served consecutively in the Tennessee Department of Correction. On appeal, the defendant argues that: (1) the trial court erred in admitting the video of the victim's forensic interview, (2) the prosecutor committed prosecutorial misconduct during closing argument, and (3) the cumulative effect of the errors warrants reversal. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/29/16
State of Tennessee v. Alexander Carney - Dissenting
W2015-01265-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Donald H. Allen

I respectfully dissent from the majority’s conclusion that the appeal should be dismissed. However, when the issue is addressed on its merits, the convictions should be affirmed. The trial court found that Defendant was not wearing his seatbelt, which was a violation of the law, and that fact gave the trooper legal grounds to stop Defendant. By the limited issue in the certified question of law, Defendant (who presumably drafted the certified question) challenged only the stop and seizure of his vehicle on the ground that he was driving without wearing his seatbelt. The State could have insisted that the certified question include the issue relied upon by the majority in order to justify the seizure of the drug evidence, but did not. Thus, neither the State nor this court can go beyond the precise issue presented. The appellate court is “limited to consideration of the question preserved.” State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008).

Madison County Court of Criminal Appeals 04/29/16
State of Tennessee v. Alexander Carney
W2015-01265-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The defendant, Alexander K. Carney, pled guilty in the Madison County Circuit Court to possession of less than .5 grams of cocaine with the intent to sell or deliver, a Class C felony; possession of marijuana, a Class A misdemeanor; resisting arrest, a Class B misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor, for which he received an effective sentence of five years in the Department of Correction, to be served consecutively to his sentence for a conviction in a separate case. As a condition of his guilty plea, the defendant attempted to reserve a certified question of law regarding the legality of the traffic stop that led to the discovery of the drugs. Because we agree with the State that the certified question of law is not dispositive of the case, we dismiss the appeal for lack of jurisdiction.

Madison County Court of Criminal Appeals 04/29/16
State of Tennessee v. Nicholas Grace
W2015-01177-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James C. Beasley, Jr.

The Defendant, Nicholas Grace, was convicted by a Shelby County jury of aggravated robbery, a Class B felony. See T.C.A. § 39-13-402. The sole issue presented for our review is whether the evidence is sufficient to sustain the conviction. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/16
State of Tennessee v. Ricky Duvil Lunsford
W2014-01926-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Nathan B. Pride

A Madison County jury convicted the Defendant, Ricky Duvil Lunsford, of attempted voluntary manslaughter and employing a deadly weapon during the commission of a dangerous felony. On appeal, the Defendant contends that the trial court erred when it: (1) failed to properly instruct the jury; (2) excluded an email from the Defendant to the victim about the decline of their marriage; (3) prevented the Defendant from testifying about the victim's prior aggressive tendencies; and (4) excluded evidence of the victim's prior domestic assault charge. After a thorough review of the record and the applicable law, we conclude that the trial court erred when it failed to instruct the jury as to self-defense. We reverse the judgments of conviction and remand for a new trial.

Madison County Court of Criminal Appeals 04/29/16
Kevin Anthony Dickson Junior v. State of Tennessee
E2015-01443-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Richard R. Vance

Petitioner, Kevin Anthony Dickson Junior, appeals the denial of his petition for post-conviction relief. Petitioner's primary contention is that the trial court lacked jurisdiction because he is a sovereign citizen who is not subject to the laws of the State of Tennessee, though he also includes an allegation of ineffective assistance of counsel as well as other alleged constitutional violations. Upon our review of the record, we affirm the judgment of the post-conviction court.

Sevier County Court of Criminal Appeals 04/29/16
Tiffany Amos v. State of Tennessee
W2015-01727-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Tiffany Amos, appeals the post-conviction court’s denial of relief from her theft and criminal impersonation convictions, arguing that she received ineffective assistance of counsel and that her guilty pleas were unknowingly and involuntarily entered. After review, we affirm the denial of the petition.

Madison County Court of Criminal Appeals 04/28/16
Lona Parker v. State of Tennessee
W2015-02233-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

The petitioner, Lona Parker, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 04/28/16
Alonza Grace v. State of Tennessee
E2015-01392-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Rebecca J. Stern

The petitioner, Alonza Grace, appeals from the denial of post-conviction relief, arguing that his guilty plea was not knowingly, voluntarily, and intelligently entered because he was under the influence of prescription medication. He further contends that trial counsel was ineffective in failing to request a forensic evaluation to determine his competency and in failing to investigate alleged missing evidence. Upon our review, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 04/28/16
Paul David Childs v. State of Tennessee
M2015-00994-CCA-R3-PC
Authoring Judge: Judge D. Kelly thomas, Jr.
Trial Court Judge: Judge Cheryl Blackburn

The Petitioner, Paul David Childs, appeals as of right from the Davidson County Criminal Court’s dismissal of his petition for post-conviction relief.  The Petitioner contends that he received ineffective assistance from his trial counsel.  Specifically, the Petitioner alleges that trial counsel was ineffective (1) for failing to “adequately inform” the Petitioner about “his rights regarding a preliminary hearing” and failing to request a preliminary hearing; (2) for failing to impeach the victim with an alleged prior inconsistent statement; (3) for preventing the Petitioner from testifying at trial; (4) for failing to sufficiently prepare for the trial, failing to present any witnesses at trial, and pursuing a “highly questionable” trial strategy; and (5) for advising the Petitioner to waive his right to appeal his conviction.  Discerning no error, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 04/28/16
Dalton B. Lister v. State of Tennessee
E2015-01325-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Andrew Mark Freiberg

The Petitioner, Dalton B. Lister, appeals the Bradley County Criminal Court's denial of his petition for post-conviction relief from his convictions for first degree felony murder, attempt to commit aggravated robbery, and conspiracy to commit aggravated robbery and his effective life sentence. The Petitioner contends that the State destroyed evidence, withheld exculpatory evidence, and concealed the existence of an agreement with a codefendant, and that the cumulative effect of the misconduct deprived him of his constitutional right to a fair trial. We affirm the judgment of the post-conviction court.

Bradley County Court of Criminal Appeals 04/27/16
Saidrick T. Pewitte v. State of Tennessee
W2015-00883-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The petitioner, Saidrick T. Pewitte, appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 04/27/16
State of Tennessee v. Michael Bonsky - Concurring
W2014-00675-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

In this case, the jury eschewed the charge of first degree murder and convicted the defendant of the lesser included offense of second degree murder. I write separately because I thought it worth pointing out why this circumstance did not cause the instructional error to be harmless.

Shelby County Court of Criminal Appeals 04/27/16
State of Tennessee v. Michael Bonsky
W2014-00675-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James M. Lammey, Jr.

The Appellant, Michael Bonsky, was convicted by a jury in the Shelby County Criminal Court of second degree murder, attempted second degree murder, and especially aggravated robbery. The trial court imposed a total effective sentence of sixty years in the Tennessee Department of Correction. On appeal, the Appellant raises the following issues: (1) whether the trial court erred by drafting its own jury instruction regarding diminished capacity; (2) whether the trial court erred by admitting evidence regarding the Appellant‘s presence at a casino and committing a robbery in Mississippi within hours of the instant offenses; (3) whether the trial court erred by admitting a recording of the telephone call one of the victims made to 911; (4) whether the trial court erred by admitting the Appellant‘s statement into evidence; (5) whether the trial court erred by not allowing an expert witness to testify regarding the Appellant‘s level of intoxication and his ability to form the requisite intent; (6) whether the trial court erred in sentencing the Appellant; and (7) whether the evidence was sufficient to sustain the Appellant‘s convictions. Upon review, we conclude that the trial court‘s instruction to the jury regarding diminished capacity was error and that the error was not harmless; therefore, the Appellant‘s convictions are reversed, and the case is remanded for a new trial.

Shelby County Court of Criminal Appeals 04/27/16
State of Tennessee v. Cordricus Arnold
W2015-00702-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Mark Ward

The defendant, Cordricus Arnold, was convicted of first degree (felony) murder. On appeal, he argues that the evidence was insufficient to sustain his conviction and that the trial court erred by failing to instruct the jury regarding the offense of voluntary manslaughter. Following our review of the briefs of the parties, the record, and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/26/16
State of Tennessee v. John T. Davis
W2015-00445-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Joe H. Walker, III

Defendant, John T. Davis, filed a motion under Tennessee Rule of Criminal Procedure 36.1 alleging that his concurrent sentences in case numbers 8050, 8452, and 9171 were illegal because he was released on parole in case numbers 8050 and 8452 at the time he committed the offenses in case number 9171. The trial court summarily dismissed the motion. After review of the record and the briefs, we affirm the judgment of the trial court.

Lauderdale County Court of Criminal Appeals 04/26/16
State of Tennessee v. Domnick Doria
M2014-01318-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Michael R. Jones

Defendant, Domnick Doria, was indicted by the Montgomery County Grand Jury for 39 counts of sexual exploitation of a minor.  Defendant was convicted as charged in counts two, three, four, and six.  Defendant was convicted of a lesser-included offense in counts one, five, and seven through thirty-nine. Defendant received an effective sentence of 13 years for all his convictions.  In this appeal as of right, Defendant contends that the trial court erred by denying his motions to suppress his statement to police and evidence collected from his home during the execution of a search warrant; that the evidence is insufficient to support his convictions; that the trial court improperly admitted hearsay testimony; that the trial court erred by admitting previously excluded evidence; that Defendant’s convictions violate the double jeopardy clause; and that the trial court erred by imposing consecutive sentencing.  Having reviewed the entire record and the briefs of the parties, we conclude that the judgments of the trial court should be affirmed.

Montgomery County Court of Criminal Appeals 04/26/16
Victor Andrea Askew v. State of Tennessee
M2014-02346-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Senior Judge Paul G. Summers

Victor Andrea Askew, the Petitioner, filed a Petition for Post-Conviction Relief alleging a single claim that counsel was ineffective for failing to argue that the judge ruling on the motion for new trial should apply the version of Tennessee Code Annotated section 17-1-305 that was in effect at the time of the Petitioner’s offense.  The post-conviction court denied relief.  Upon review, we affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 04/26/16
State of Tennessee v. Johnathan Dale Abernathy
M2014-02350-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Robert L. Jones

Defendant, Johnathan Dale Abernathy, was found not guilty of the charge of domestic assault.  At his arraignment, pursuant to T.C.A. §  40-14-202(e), the trial court had found that he could pay a portion of his attorney fees even though the public defender was appointed to represent him.  He had only paid a portion of the fees prior to trial.  Subsequent to the trial, Defendant filed a motion to remit some or all of the fees.  At the motion hearing, and without prior notice of contempt charges to be answered, the trial court summarily held Defendant in civil contempt with the contempt to be purged when he paid the balance owed.  Defendant appealed, and we reverse the judgment of the trial court and dismiss all contempt charges.

Giles County Court of Criminal Appeals 04/26/16
State of Tennessee v. Stevean Wilson - dissenting
E2015-01446-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Scott Green
I dissent from the majority conclusion affirming the trial court’s imposition of confinement in this case. The trial court did not engage in any findings of fact to support its determination of confinement as required by law. See Tenn. Code Ann. § 40-35-103(1)(A)-(C) (2014) (whether confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct; whether confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant); see also Shannon Ann Maness and Daryl Wayne Maness, No. W2012-02655-CCA-R3-CD, 2014 WL 350429, at *16-17 (Tenn. Crim. App. Jan. 23, 2014) (noting that the trial is still required to place on the record its reasons for imposing the specific sentence and remanding for new sentencing hearing because the record did not support the trial court’s finding of confinement based on deterrence); State v. Robert Joseph Harr, No. W2011-02735-CCA-R3CD, 2013 WL 5422801, at *10 (Tenn. Crim. App. Sept. 27, 2013) (Tipton, P.J., concurring and dissenting) (noting that he did not believe “our supreme court intended in Bise or Caudle to do away, in wholesale fashion, with Tennessee jurisprudence developed over the last thirty years upon which the Sentencing Act is based and in which the Act’s provisions are interpreted”).
Knox County Court of Criminal Appeals 04/22/16
State of Tennessee v. Stevean Wilson
E2015-01446-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Scott Green

The Defendant, Stevean Wilson, pleaded guilty to aggravated assault, and the trial court entered the agreed sentence of six years with the manner of service of the sentence to be determined after a hearing. After the hearing, the trial court denied the Defendant an alternative sentence and ordered that he serve his sentence in confinement. On appeal, the Defendant contends that the trial court erred when it denied his request for an alternative sentence. After review, we affirm the trial court's judgment.

Knox County Court of Criminal Appeals 04/22/16
State of Tennessee v. Terrell Hayes
W2015-00661-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Robert Carter, Jr.

Defendant, Terrell Hayes, was convicted of two counts of aggravated robbery after a jury trial. Defendant was sentenced to an effective sentence of ten years. After the denial of a motion for new trial, Defendant timely sought an appeal. The following issues are presented for our review: (1) whether the trial court improperly prohibited Defendant from introducing evidence about codefendant Timothy Williams‘s prior robbery charge; and (2) whether the trial court erred in failing to grant a mistrial and/or allowing counsel to testify as a witness for the defense. After a review, we determine the trial court erred in refusing to allow Defendant to question witnesses about the prior robbery. However, we determine the error was harmless. Defendant failed to raise the issue with regard to counsel‘s testimony in the motion for new trial. This issue is waived. Accordingly, the judgments of the trial court are affirmed.

Shelby County Court of Criminal Appeals 04/22/16
State of Tennessee v. Christopher Wilson - Concurring
W2015-00699-CCA-R9-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge W. Mark Ward

I concur in the majority opinion. Since the State requested that this court defer its ruling until our state supreme court issues a ruling in a separate case where the State has urged adoption of a “good faith exception” to Art. I, section 7 of the Constitution of Tennessee, I feel compelled to respectfully express my opinion on this issue. I respectfully believe that the United States Supreme Court participated in a most egregious example of judicial activism when it filed its opinion in United States v. Leon, 468 U.S. 897, 82 L.Ed.2d 677 (1984). I agree that it is well settled that the exclusionary rule as it applies to the Fourth Amendment of the United States Constitution is not a personal constitutional right to the man or woman whose Fourth Amendment rights are violated by the government. Leon, 468 U.S. at 906. It is, instead, a judicially created remedy to protect the Fourth Amendment rights of individuals. Id. However, it is obvious that a constitutional right without an effective remedy for violation of that right is nothing more than an unenforceable objective on a piece of paper.

Shelby County Court of Criminal Appeals 04/21/16