Court of Criminal Appeals Opinions

Format: 05/04/2016
Format: 05/04/2016
Kearn Weston v. State of Tennessee
W2015-00460-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner, Kearn Weston, appeals the denial of his petition for post-conviction relief. Petitioner argues that he received ineffective assistance of counsel when trial counsel failed to file a pre-trial motion to dismiss the charge based on the loss of a surveillance video. Upon our review, we affirm the decision of the post-conviction court.

Shelby County Court of Criminal Appeals 03/29/16
State of Tennessee v. David Reed
W2015-01740-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, David Reed, appeals the trial court's denial of his motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Defendant argues that the trial court's failure to award post-judgment jail credit for time he spent incarcerated out-of-state prior to the revocation of his probation renders his sentence illegal. Upon our review of the record and applicable authorities, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 03/29/16
Reginald Rome v. State of Tennessee
W2015-01399-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge W. Mark Ward

Petitioner, Reginald Rome, appeals the dismissal of his petition for a writ of error coram nobis which alleged newly discovered evidence. The coram nobis court found that due process principles did not require tolling the statute of limitations and that Petitioner had failed to prove that he was without fault in failing to present this evidence at the proper time. Upon our review, we affirm the judgment of the coram nobis court.

Shelby County Court of Criminal Appeals 03/29/16
Derrick Rice v. State of Tennessee
W2015-00226-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Derrick Rice, appeals as of right from the post-conviction court’s denial of his petition for post-conviction relief wherein he challenged his convictions for first degree premeditated murder and attempted first degree murder. In this appeal, the Petitioner contends that he received ineffective assistance of counsel in the following ways: (1) general sessions counsel failed to consult with the Petitioner regarding a plea offer from the State and to explain the consequences of declining that offer; (2) trial counsel failed to investigate and subpoena witnesses; (3) general sessions counsel and trial counsel failed to adequately communicate with the Petitioner; and (4) trial counsel failed to adequately investigate and prepare the case for trial. Discerning no error, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/29/16
State of Tennessee v. Darrel Pathrice McNeal
W2015-00316-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

Following a jury trial, the Defendant, Darrel Pathrice McNeal, was convicted of aggravated robbery, a Class B felony, and evading arrest, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-13-402, -16-603(a)(1). On appeal, the Defendant challenges only the sufficiency of the evidence underlying his conviction for aggravated robbery. However, because the Defendant filed an untimely notice of appeal and the interest of justice does not favor waiver of the timely filing requirement in this case, this appeal is dismissed.

Madison County Court of Criminal Appeals 03/29/16
State of Tennessee v. Gerald Davis Thomas
E2014-01157-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge E. Eugene Eblen


The Defendant, Gerald Davis Thomas, was convicted by a Loudon County jury of one count of first degree premeditated murder. The trial court sentenced the Defendant to life imprisonment, which was to be served consecutively to a separate federal sentence. In this appeal, the Defendant raises the following issues for our review:  (1) whether the evidence is sufficient to sustain his conviction for first degree premeditated murder; (2) whether the State engaged in improper closing arguments; (3) whether the trial court erred in allowing expert testimony regarding a forensic ballistic match; (4) whether the admission of the victim’s autopsy report violated his right of confrontation; (5) whether the State failed to produce potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (6) whether trial counsel was ineffective; and (7) whether the trial court erred in denying his motion for additional DNA testing.Upon our review, we dismiss without prejudice the Defendant’s claim of ineffective assistance of counsel.  We also remand this matter to the trial court for entry of an order for additional DNA testing; specifically, the interior of the FUBU pants alleged to have been worn by the Defendant on the night the victim was killed and the substance recovered from underneath the victim’s nails.  In all other respects, we affirm the judgments of the trial court.

Loudon County Court of Criminal Appeals 03/28/16
State of Tennessee v. Christopher Scottie Itzol-Deleon - Dissent
M2014-02380-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mark J. Fishburn

Defendant argues on appeal that dual convictions for attempted aggravated sexual battery in Count 1 and rape of a child in Count 3, both stemming from the Lemonade Mouth incident, violate due process because they a part of a “single continuous criminal episode.”  Defendant asks this Court to utilize the five-factor test adopted by the supreme court in State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999).  The State, on the other hand, argues that the analysis in Barney is no longer controlling law because the supreme court relied on cases which have since been abrogated.  Because I believe the issue is more properly one of double jeopardy, I respectfully dissent.

Davidson County Court of Criminal Appeals 03/28/16
State of Tennessee v. Christopher Scottie Itzol-Deleon
M2014-02380-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Christopher Scottie Itzol-Deleon, was found guilty by a Davidson County Criminal Court jury of attempted aggravated sexual battery, a Class C felony, four counts  of aggravated sexual battery, a Class B felony, and three counts of rape of a child, a Class A felony. See T.C.A. §§ 39-13-504 (2014) (aggravated sexual battery), 39-13-522 (2010,  2014) (rape of a child), 39-12-101 (2014) (criminal attempt).  He received an effective forty-year sentence.  On appeal, the Defendant contends that (1) the evidence is insufficient to establish the element of penetration for rape of a child in Counts 3 and 4, (2) the trial court erred in allowing separate convictions for attempted aggravated sexual battery and rape of a child in Counts 1 and 3 and for rape of a child in Counts 4 and 5, (3) the court erred in permitting testimony regarding the Defendant’s excessive drinking, (4) the court erred in admitting a letter written by the victim to her mother, (5) the court erred in not redacting a portion of the Defendant’s statement to the police, (6) the court erred in admitting the victim’s school photograph, (7) the court erred in sentencing the Defendant as a Range II offender relative to his rape of a child convictions, and (8) the judgment in Count 6 contains a clerical error.  We merge Count 1, attempted aggravated sexual battery, with Count 3, rape of a child.  Although we affirm the convictions, we remand the judgments for Counts 1 and 3 for entry of amended judgments reflecting merger of the offenses.  We also modify the Defendant’s sentences relative to Counts 3, 4, and 5 to twenty-five years in each count at 100% service.  Finally, we remand the judgment in Count 6 for the correction of clerical errors.

Davidson County Court of Criminal Appeals 03/28/16
John N. Moffitt v. Grady Perry, Warden
W2015-01763-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, John N. Moffitt was sentenced on September 15, 2014, to four years in the Department of Correction for reckless aggravated assault. He filed a pro se petition for writ of habeas corpus, claiming that his indictment was so defective that his restraint was unlawful. We affirm the dismissal of his habeas corpus petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Hardeman County Court of Criminal Appeals 03/24/16
State of Tennessee v. Belinda Potter
W2015-01164-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Senior Judge Paul G. Summers

The defendant, Belinda Potter, pled guilty to theft of property valued at $60,000 or more, a Class B felony, and was sentenced as a Range I, standard offender to nine years in the Department of Correction and ordered to pay $55,809.69 in restitution. On appeal, she argues that the trial court erred in denying alternative sentencing. After review, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 03/24/16
State of Tennessee v. Marcus Grady Hodge
M2015-01225-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The appellant, Marcus Grady Hodge, filed a motion to correct an illegal sentence in the Davidson County Criminal Court pursuant to Tennessee Rule of Criminal Procedure 36.1.  The trial court summarily denied the motion, and the appellant appeals the ruling. Based upon our review of the record and the parties’ briefs, we affirm the trial court’s denial of the motion but remand the case for correction of a clerical error on the judgments of conviction.

Davidson County Court of Criminal Appeals 03/24/16
State of Tennessee v. Timothy L. Jefferson
M2015-01321-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Amanda McClendon

Timothy L. Jefferson (“the Petitioner”) appeals from the summary dismissal of his Petition for Writ of Certiorari and Supersedeas (“the Petition”) for failure to make partial payment of the initial filing fee.  Upon review, we hold that the Petitioner filed sufficient documentation to show that he was unable to make partial payment of the initial filing fee.  However, we conclude that the trial court properly dismissed the Petition because the writ of certiorari is not available in this case.  Therefore, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/23/16
Gdongalay P. Berry v. State of Tennessee
M2015-00052-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Gdongalay P. Berry (“the Petitioner”) was convicted of two of counts of first-degree premeditated murder, two counts of first-degree felony murder, two of counts especially aggravated kidnapping, and two of counts especially aggravated robbery in connection with the deaths of D’angelo McKinley Lee and Gregory Lanier Ewing. In this coram nobis proceeding, the Petitioner claims that a previously undisclosed videotaped interview of Yakou Murphy might have led to a different result had that interview been disclosed prior to trial.  After a hearing, the coram nobis court denied relief.  Discerning no error, we affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 03/23/16
Patrick Rico Edwards v. State of Tennessee
M2014-01839-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge Monte Watkins

Patrick Rico Edwards (“the Petitioner”) appeals from the denial of his petition for post-conviction relief.  On appeal, the Petitioner argues (1) that his trial counsel was ineffective for failing to present at the sentencing hearing expert testimony about the Petitioner’s mental health; and (2) that his plea was unknowing and involuntary.  Additionally, the Petitioner contends that the post-conviction court’s failure to make findings of fact and conclusions of law about the voluntariness of his plea constitutes reversible error.  We conclude that the post-conviction court erred when it failed to make findings of fact and conclusions of law regarding the voluntary and intelligent nature of the Petitioner’s plea but such error was harmless in this case.  Further, we conclude that the Petitioner has failed to prove that he is entitled to post-conviction relief for either of his claims.  The judgment of the post-conviction court is affirmed.

Davidson County Court of Criminal Appeals 03/23/16
State of Tennessee v. Tyler Alexis Dixon
M2015-00543-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Forest A. Durard, Jr.

The appellant, Tyler Alexis Denton, pled guilty in the Lincoln County Circuit Court to three counts of selling less than one-half gram of cocaine within a drug-free zone and three counts of delivering less than one-half gram of cocaine within a drug-free zone, Class C felonies.  The trial court merged each count of delivering cocaine into its corresponding count of selling cocaine and sentenced the appellant to three, concurrent sentences of five and one-half years.  On appeal, the appellant contends that the length of his sentences is excessive.  Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.  However, we remand the case to the trial court for correction of the judgments.

Lincoln County Court of Criminal Appeals 03/23/16
State of Tennessee v. Stephanie Lynn Bickford
M2015-00628-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Gary McKenzie

The defendant, Stephanie Lynn Bickford, pled guilty to statutory rape, a Class E felony, in exchange for a one-year sentence on probation.  The trial court ordered that the defendant was required to register as a sex offender, a decision the defendant now appeals.  On appeal, the defendant also argues that this court should review the trial court’s decision using a de novo with a presumption of correctness standard of review, rather than an abuse of discretion with a presumption of reasonableness standard.  After review, we affirm the judgment of the trial court.

White County Court of Criminal Appeals 03/23/16
State of Tennessee v. Gary Wayne Garrett
M2015-01390-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The defendant, Gary Wayne Garrett, is serving an effective sentence of 119 years, following his convictions in 1986 for sixteen felonies.  Pursuant to Tennessee Rule of Criminal Procedure 36.1, the defendant filed a motion to correct what he views as sentences which are illegal because the trial court failed to award proper jail credits, and the court then entered an order providing the defendant with jail credits from October 31, 1985, until October 10, 1986.  The defendant appealed, arguing that he was entitled to additional credits, and we note that the State did not appeal the awarding of these credits. We conclude that the defendant has failed to present a colorable claim for relief in asking for additional credits, pursuant to Rule 36.1, and affirm the order of the court awarding only these credits.

Davidson County Court of Criminal Appeals 03/23/16
State of Tennessee v. Christopher Fralix
E2015-01115-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Jerry Beck

The defendant, Christopher Fralix, pled guilty to one count of robbery, a Class C felony, and one count of aggravated burglary, a Class C felony, in exchange for an effective sentence of six years. The trial court denied all forms of alternative sentencing and ordered the defendant to serve his sentence in incarceration. He now appeals, arguing that the trial court abused its discretion in denying an alternative sentence. Following our review, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 03/22/16
State of Tennessee v. Kendall Joy
W2015-01765-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Kendall Joy, appeals the trial court's denial of his petition for writ of habeas corpus. 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 03/22/16
Joseph B. Thompson v. State of Tennessee
W2015-01563-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Joseph B. Thompson, appeals the trial court's denial of his petition for writ of habeas corpus. 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.

Lake County Court of Criminal Appeals 03/21/16
Kentavis Jones v. State of Tennessee
W2015-00459-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the Petitioner, Kentavis Jones, of two counts of aggravated assault, one count of reckless endangerment, and one count of employing a firearm during the commission of a dangerous felony. The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the Petitioner maintains that he received the ineffective assistance of counsel. The State contends that the Petitioner's appeal is untimely and that he is not entitled to post-conviction relief. After review, we conclude there exists no error. We affirm the post-conviction court's judgment.

Madison County Court of Criminal Appeals 03/18/16
State of Tennessee v. Derek Burgess
W2015-00196-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The defendant, Derek Burgess, committed new criminal offenses while on probation, and the trial court revoked his probation and ordered him to serve the remainder of his sentence in prison. The defendant appeals the trial court’s order sentencing him to serve his sentence in incarceration, arguing that the trial court incorrectly calculated the length of his remaining sentence. Following our review, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 03/18/16
State of Tennessee v. Charles Speed
W2015-00473-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Charles Speed, appeals the denial of his Rule 36.1 motion to correct what he alleges is an illegal sentence. He argues that his sentence is illegal because the State never filed a noticed to seek an enhanced sentence within ten days of the entry of his guilty plea. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 03/18/16
State of Tennessee v. Anne Elizabeth Cushing
E2015-00462-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Don W. Poole

On appeal, the defendant, Anne Elizabeth Cushing, has presented a certified question of law for our review. Following the denial of her motion to suppress, the defendant entered a guilty plea to one count of driving under the influence (“DUI”) but reserved a certified question. In the question, she challenges the denial of the motion to suppress because, according to the defendant, the results of the field sobriety tests should be inadmissible because she was entitled to be Mirandized when she was placed in the backseat of the police officer's patrol car while he conducted an investigation at the accident scene. She contends she was not free to leave and that, as such, the right to Miranda warnings had attached. Following our review of the record, we conclude that the question, as presented, is not dispositive of the case. Accordingly, we must dismiss the appeal.

Hamilton County Court of Criminal Appeals 03/18/16
Christopher Kinsler v. State of Tennessee
E2015-00862-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Thomas J. Wright

The petitioner, Christopher Kinsler, appeals the denial of his petition for post-conviction relief. He argues that he received the ineffective assistance of counsel when trial counsel elicited inadmissible hearsay testimony on cross-examination and then failed to object to the testimony. Following our thorough review, we affirm the judgment of the post-conviction court.

Hamblen County Court of Criminal Appeals 03/17/16