Court of Criminal Appeals Opinions

Format: 05/04/2016
Format: 05/04/2016
State of Tennessee v. Hester Croy
E2014-02406-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Jerry Beck

The defendant, Hester Croy, was convicted of theft of property under $500, a Class A misdemeanor. On appeal, she argues that the trial court erred by ruling that her prior convictions for theft of property would be admissible for impeachment purposes if she testified. Following our review, we conclude that this issue is waived due to the defendant‟s failure to file a motion for new trial and that plain error review is not warranted. We affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 03/17/16
John David Luther v. State of Tennessee
M2014-02465-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Monte Watkins

The Petitioner, John David Luther, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his convictions of voluntary manslaughter, aggravated assault, and reckless aggravated assault, and resulting effective seventeen-year sentence.  On appeal, the Petitioner contends that he received the ineffective assistance of trial and appellate counsel.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 03/17/16
State of Tennessee v. Deangelo Key
W2015-00135-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The defendant, Deangelo Key, was convicted of aggravated robbery, a Class B felony, and sentenced to nine years at 85% in the Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 03/16/16
Reggie Carnell James v. State of Tennessee
W2015-01640-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The petitioner, Reggie Carnell James, was convicted in 2007 of first degree murder and tampering with evidence. He was sentenced to life with the possibility of parole for the murder conviction and ten years for the tampering with evidence conviction, with the sentences to be served consecutively. This court affirmed his convictions on direct appeal. State v. Reggie Carnell James, No. W2007-00775-CCA-R3-CD, 2009 WL 636726, at *1 (Tenn. Crim. App. Mar. 10, 2009), perm. app. denied (Tenn. Aug. 17, 2009). In April 2010, he filed a petition for post-conviction relief, arguing that trial counsel had been ineffective for not filing a motion to suppress a statement the petitioner had made to police officers. Following a hearing on April 11, 2011, the post-conviction court entered an order on January 31, 2012, denying the petition. The notice of appeal for this decision was not filed until August 27, 2015. The State argues on appeal that the notice of appeal was untimely and that, as a result, the appeal should be dismissed. We conclude that the interest of justice does not require our waiving the late filing of the notice of appeal and, therefore, dismiss the appeal.

Madison County Court of Criminal Appeals 03/16/16
Terrance Heard v. State of Tennessee
W2015-00447-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Mark Ward

The petitioner, Terrance Heard, appeals the denial of his petition for post-conviction relief, which petition challenged his August 2001 Shelby County Criminal Court jury convictions of first degree murder and especially aggravated kidnapping. Because the petitioner failed to prepare an adequate record for our review, we presume the ruling of the post-conviction court is correct and, therefore, affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/16/16
State of Tennessee v. Adam Moates
E2014-02405-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steven W. Sword

The appellant, Adam Moates, was convicted in the Knox County Criminal Court of two counts of attempted first degree premeditated murder, three counts of attempted second degree murder, and five counts of employing a weapon during the commission of a dangerous felony. After a sentencing hearing, the appellant received an effective twenty-six-year sentence. On appeal, he contends that the evidence is insufficient to support his attempted first degree murder convictions because it fails to show premeditation. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 03/16/16
State of Tennessee v. Lakeith Moody
W2014-01056-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Carolyn W. Blackett

Following a jury trial, Defendant, LaKeith Moody, was convicted of first degree premeditated murder and first degree felony murder of the victim, with whom Defendant had a long-time romantic relationship. He received a sentence of life imprisonment. On appeal, Defendant argues that (1) the trial court erred by admitting acts of prior domestic violence committed by Defendant against the victim; (2) the evidence was insufficient to support his convictions; and (3) the trial court failed to merge Defendant's convictions for premeditated and felony murder into one judgment for first degree murder. After a thorough review, we affirm the convictions for first degree premeditated murder and felony murder and remand the case for entry of corrected judgment forms noting merger of the two convictions as set forth herein.

Shelby County Court of Criminal Appeals 03/15/16
State of Tennessee v. Roy Thomas Rogers
W2015-00988-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Clayburn L. Peeples

Following a jury trial, the Defendant, Roy Thomas Rogers, was convicted of initiating the manufacture of methamphetamine, a Class B felony; promoting the manufacture of methamphetamine, a Class D felony; possession of drug paraphernalia, a Class A misdemeanor; and criminal impersonation, a Class B misdemeanor. See Tenn. Code Ann. §§ 39-16-301, -17-425, -17-433, -17-435. The trial court imposed a total effective sentence of twelve years. On appeal, the Defendant contends (1) that the trial court erred by admitting evidence from a garbage bag found near his residence and (2) that the evidence was insufficient to sustain his convictions. However, the Defendant failed to timely file his motion for new trial, and, subsequently, his notice of appeal. Because we conclude that the interest of justice does not require us to hear the appeal, we dismiss it as untimely.

Gibson County Court of Criminal Appeals 03/15/16
Huston Foley Lloyd, Jr. v. State of Tennessee
M2015-00295-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge John Wootten, Jr.

The petitioner, Huston Foley Lloyd, Jr., appeals the summary dismissal of his petition for post-conviction relief, and the State concedes that summary dismissal was improper.  Because the petitioner stated a colorable claim for post-conviction relief, the post-conviction court erred by summarily dismissing the petition.  Accordingly, the judgment of the post-conviction court is reversed, and the case is remanded for an evidentiary hearing on the petitioner’s claims.

Putnam County Court of Criminal Appeals 03/15/16
State of Tennessee v. Ann Dodd
M2015-01469-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Joseph Woodruff

The petitioner, Ann Dodd, appeals the Williamson County Criminal Court’s denial of her petition to expunge the record of her 2009 Williamson County General Sessions Court guilty-pleaded conviction of simple possession of cocaine.  Because we conclude that the petitioner failed to satisfy the requirements of Tennessee Code Annotated section 40-32-101(g), we affirm the trial court’s order.

Williamson County Court of Criminal Appeals 03/15/16
State of Tennessee v. Ricky Flamingo Brown
M2015-01754-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl Blackburn

The defendant, Ricky Flamingo Brown, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence.  Because the grounds for relief raised by the defendant have been previously determined and because the defendant failed to state cognizable grounds for relief under Rule 36.1, the interests of justice do not require the waiver of the timely filing of the notice of appeal in this case.  Accordingly, the appeal is dismissed.

Davidson County Court of Criminal Appeals 03/15/16
State of Tennessee v. Brenda Haynes Jackson Claughton
M2015-01467-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Suzanne Lockert-Mash

The appellant, Brenda Haynes Jackson Claughton, pled guilty in the Dickson County Circuit Court to two counts of felony theft and received concurrent, four-year sentences to be served on supervised probation.  The trial court also ordered that she pay $36,000 restitution.  On appeal, the appellant argues that the trial court abused its discretion by revoking probation for her failure to pay restitution when the evidence shows that she had no ability to pay it.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Dickson County Court of Criminal Appeals 03/15/16
State of Tennessee v. Tyler Fitzgerald Raybon-Tate
M2015-00992-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The defendant, Tyler Fitzgerald Raybon-Tate, pled guilty to five counts of aggravated burglary; one count of theft of property valued at $10,000 or more; two counts of theft of property valued at $500 or less; one count of carjacking; one count of kidnapping; two counts of felony evading arrest in a motor vehicle; and one count of driving on a suspended license.  The defendant had agreed to be sentenced as a Range II offender, and the court was to determine the alignment of the sentences.  Subsequently, the court imposed eight-year sentences for each of the five counts of aggravated burglary; seven years for the theft of property over $10,000; eleven months and twenty-nine days for each of the two counts of theft of property $500 or less; seventeen years for carjacking; nine years for kidnapping; three years for one evading arrest charge and six years for the other; and six months for driving on a suspended license.  Concluding that the defendant had an extensive record of criminal behavior and was a dangerous offender, the trial court ordered that the sentences for the carjacking conviction and for two aggravated burglaries be served consecutively, for a total effective sentence of thirty-three years.  The defendant appealed, arguing that consecutive sentences should not have been imposed, for he was not a dangerous offender.  Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 03/14/16
State of Tennessee v. Charles Owens
M2015-01361-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Charles Owens, filed an unsuccessful Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence, the alleged illegality being that he was not present, either in person or by video, at his sentencing.  He asks that his conviction and sentence be declared illegal and void.  The trial court concluded, without a hearing, that the motion failed to state a colorable claim for relief, and this appeal followed. Following our review, we affirm the dismissal of the motion, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Davidson County Court of Criminal Appeals 03/14/16
State of Tennessee v. Tiffany Clegg
E2015-01134-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Tammy M. Harrington

The Defendant-Appellant, Tiffany Clegg, appeals the trial court’s revocation of her probation and reinstatement of her effective eight-year sentence in the Department of Correction. On appeal, the Defendant-Appellant argues that the trial court abused its discretion by reinstating a sentence of full confinement. Upon review, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 03/14/16
State of Tennessee v. James Holmes
W2015-00537-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge W. Mark Ward

The Defendant, James Holmes, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder, felony murder during the attempt to perpetrate a robbery, attempted especially aggravated robbery, attempted first degree murder, attempted carjacking, and employing a firearm during the attempt to commit a dangerous felony. See T.C.A. §§ 39-13-202(a) (2014) (first degree murder), 39-13-202(b) (2014) (first degree felony murder), 39-13-403 (2014) (especially aggravated robbery), 39-12-101 (2014) (criminal attempt), 39-13-404 (2014) (carjacking), 39-17-1324(i)(1) (2014) (dangerous felony), 39-17-1324(b) (2014) (employing a firearm during the attempt to commit a felony). On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court and remand for correction of the judgments.

Shelby County Court of Criminal Appeals 03/11/16
State of Tennessee v. Dana Yearwood
M2014-01622-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Larry B. Stanley, Jr.

The Defendant-Appellant, Dana N. Yearwood, appeals the trial court’s revocation of her probation and reinstatement of her effective five-year, eleven-month, and twenty-nine day sentence in the Department of Correction.  In this appeal, Yearwood argues that the trial court improperly reinstated a sentence of confinement without consideration of her presentence report and improperly revoked her probation. Upon our review, we affirm the judgment of the trial court.

Van Buren County Court of Criminal Appeals 03/11/16
State of Tennessee v. Michael Orlando Freeman
E2014--02054-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Rebecca J. Stern

Following a jury trial, the Defendant, Michael Orlando Freeman, was convicted of attempted second degree murder, as a lesser included offense of attempted first degree murder; aggravated assault by infliction of serious bodily injury; and attempted aggravated rape by use of a deadly weapon. See Tenn. Code Ann. §§ 39-13-202, -13-102, -13-502. He was acquitted of especially aggravated kidnapping. See Tenn. Code Ann. § 39-13-305. The Defendant received an effective sentence of twelve years as a Range I, standard offender with release eligibility at thirty percent. In this appeal as of right, the Defendant contends that: (1) the evidence is insufficient to support each of his convictions; (2) the trial court erred in denying his motion to dismiss based on the State's failure to preserve evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (3) the prosecutor committed prosecutorial misconduct during closing argument, which prejudiced the outcome of his trial; and (4) the trial court erred in denying his motion for a new trial. Following our review, we conclude that the Defendant's issues are without merit, and the judgments of the trial court are affirmed in all respects.

Hamilton County Court of Criminal Appeals 03/10/16
State of Tennessee v. Bobby Lynch
E2015-01512-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Bobby Lynch, was convicted by a Knox County Criminal Court jury of third offense simple possession or casual exchange of a controlled substance, a Class E felony. See T.C.A. § 39-17-418 (2010) (amended 2014). The trial court sentenced the Defendant as a career offender to six years' confinement. On appeal, the Defendant contends that the trial court erred by denying him alternative sentencing. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 03/09/16
State of Tennessee v. Branden Michael Toth
E2015-00022-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jon Kerry Blackwood

Defendant, Branden Michael Toth, appeals after a jury found him guilty of one count of theft of property valued at $60,000 or more and five counts of theft of property valued at $10,000 or more. Defendant was sentenced to an effective sentence of twelve years in incarceration. On appeal, Defendant challenges the trial court‘s failure to charge lesser-included offenses, the trial court‘s handwritten notations on the verdict forms, the trial court‘s failure to dismiss Count 4 of the indictment, the sufficiency of the evidence, and his sentence. After a review, we determine that the trial court dismissed the original Count 5, renumbered the remaining counts of the indictment (Count 7 became Count 6, Count 6 became Count 5) and submitted Count 4 to the jury on a lesser-included offense. Consequently, we affirm the convictions. On remand, the trial court should correct the judgment form in Count 3 to reflect a conviction of theft of property valued at $60,000 or more, hold a hearing on restitution, and correct the offense dates in Counts 5 and 6 to December 16, 2009 and January 2, 2010, respectively. Accordingly, the convictions are affirmed and remanded.

Washington County Court of Criminal Appeals 03/09/16
State of Tennessee v. Marvin E. Potter, Jr.
E2015-00013-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

The Defendant, Marvin E. Potter, Jr., was convicted by a Washington County Criminal Court jury of two counts of premeditated first degree murder, for which he is serving consecutive life sentences. On appeal, he contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erred in admitting hearsay evidence as statements of co-conspirators, (3) the trial court erred in denying the Defendant's motion for a mistrial due to an absent material witness, and (4) the State's use of visual aids during closing argument constituted prosecutorial misconduct. We affirm the judgments of the trial court.

Washington County Court of Criminal Appeals 03/08/16
State of Tennessee v. Garrick Graham
E2014-01267-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert H. Montgomery, Jr.
Defendant, Garrick Graham, and his Co-Defendant, Bashan Murchison, were convicted of numerous drug offenses by a Sullivan County Jury. Specifically, Defendant Graham was convicted of three counts of delivery of .5 grams or more of cocaine (counts 1,3,5), three counts of sale of .5 grams or more of cocaine (counts 2, 4, 6), delivery of .5 grams or more of cocaine within 1,000 feet of a recreation center (count 7), sale of .5 grams or more of cocaine within 1,000 feet of a recreation center (count 8), facilitation of delivery of .5 grams or more of cocaine within 1,000 of a school (count 9), facilitation of .5 grams or more of cocaine within 1,000 feet of a school (count 10), facilitation of delivery of .5 grams or more of cocaine within 1,000 feet of a daycare (count 11), facilitation of sale of .5 grams or more of cocaine within 1,000 feet of a daycare (count 12), delivery of .5 grams or more of cocaine (count 13), facilitation of sale of .5 grams or more of cocaine (count 14), 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). The trial court merged counts 1 and 2, counts 3 and 4, counts 5 and 6, counts 7 and 8, counts 9 and 10, counts 11 and 12, counts 13 and 14, and counts 21 and 22. Defendant Graham received twelve-year sentences for the resulting convictions in counts 1, 3, 7, 9, and 13. He received a six-year sentence for count 11, and a 25-year sentence for count 21. The trial court imposed concurrent sentences for counts 1, 3, 5, 11, 13, and 21 to be served consecutively to concurrent sentences in counts 7 and 9 for an effective 37-year sentence. On appeal, Defendant Graham raises the following issues: (1) the trial court erred by denying Defendant Graham's motion for severance of offenses; (2) the trial court erred in denying Defendant Graham's motion for election of theories and/or bill of particulars; (3) the trial court erred in denying Defendant Graham's Batson challenge; (4) the trial court erred in denying Defendant Graham's request to determine the competency of the CI; (5) whether the evidence was sufficient beyond a reasonable doubt to support Defendant's Graham's conspiracy convictions; and (6) whether the trial court correctly sentenced Defendant Graham. Defendant Murchison 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 03/08/16
Billy Cook v. Doug Cook, Warden
M2015-01886-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Dee David Gay

The petitioner currently is serving an effective seventy-year sentence following his 2013 guilty pleas to fifty counts of especially aggravated sexual exploitation of a minor, ten counts of rape of a child, and seventeen counts of aggravated rape of a child. Following an unsuccessful petition for post-conviction relief based upon the alleged ineffectiveness of trial counsel, Billy Jack Cook v. State, No. M2014-00616-CCA-R3-PC, 2015 WL 2445868, at *1 (Tenn. Crim. App. May 22, 2015), perm. app. denied (Tenn. Aug. 12, 2015), he filed a petition for writ of habeas corpus, which appears to be a confusing and convoluted rehash of his post-conviction petition, claiming this time that his trial counsel had “[m]ade up evidence along with the state DA to get [a] guilty plea” and, without providing any details, that his “due process rights were violated.” He has appealed the trial court’s order denying the petition because he had failed to show that the judgments were facially void. Following our review, we affirm the denial of relief, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Sumner County Court of Criminal Appeals 03/08/16
State of Tennessee v. Anthony Blake Wisdom
M2015-00099-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Anthony Blake Wisdom, was convicted by a Davidson County Criminal Court jury of aggravated robbery, a Class B felony. See T.C.A. § 39-13-402(a)(1) (2014). The Defendant was sentenced as a Range II, multiple offender to fourteen years. On appeal, the Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/08/16
State of Tennessee v. Timothy Damon Carter
M2014-01532-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl Blackburn

A Davidson County jury convicted the Defendant, Timothy Damon Carter, of theft of property valued over $60,000 and of being a felon in possession of a handgun.  The trial court sentenced the Defendant as a career offender to a total effective sentence of thirty years in confinement.  On appeal, the Defendant contends that: (1) the trial court erred when it determined that he had forfeited his right to counsel; (2) the trial court erred when it denied his motion to suppress evidence seized from his vehicle; (3) the trial court erred when it determined that the State had not committed a Brady violation; (4) the evidence is insufficient to sustain his conviction for theft of property valued over $60,000; (5) the trial court erred when it admitted into evidence a business record and an out-of-court statement pursuant to hearsay exceptions; (6) the trial court erred when it declined to bifurcate the felon in possession of a weapon charge; and (7) the trial court erred when it limited the Defendant’s ability to call witnesses to testify.  After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

Davidson County Court of Criminal Appeals 03/08/16