Court of Criminal Appeals Opinions

Format: 10/16/2018
Format: 10/16/2018
State of Tennessee v. Gdongalay P. Berry
M2017-00867-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County Criminal Court Jury convicted the Appellant, Gdongalay P. Berry, of two counts of first degree premeditated murder, two counts of first degree felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery. The jury imposed sentences of death for the murder convictions, and the trial court ordered an effective fifty-year sentence for the remaining convictions, which was to be served consecutively to the death sentences. Subsequently, the post-conviction court vacated the Appellant’s death sentences and ordered a new sentencing hearing for the murder convictions. After the new hearing, the trial court resentenced the Appellant to consecutive life sentences. On appeal, the Appellant contends that the trial court erred by ordering consecutive sentencing for the murder convictions because the trial court failed to give “meaningful” consideration to his rehabilitation during his twenty-one years in prison. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/15/18
Darrell Tate v. State of Tennessee
E2017-02104-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John F. Dugger

The Petitioner, Darrell Tate, appeals from the Hawkins County Criminal Court’s dismissal of his petition for post-conviction relief from his 2015 guilty pleas to initiating the manufacture of methamphetamine, possession of drug paraphernalia, and failure to appear, for which he is serving a sixteen-year sentence. The Petitioner contends that his guilty pleas were involuntary. We affirm the judgment of the post-conviction court.

Hawkins County Court of Criminal Appeals 08/15/18
Juan LaSean Perry v. State of Tennessee
M2018-00207-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, Juan LaSean Perry, appeals from the Trousdale County Circuit Court’s dismissal of his petition for a writ of habeas corpus from his 2005 conviction for second degree murder and his twenty-five-year sentence. The Petitioner contends that the habeas corpus court erred by dismissing his petition. We affirm the judgment of the habeas corpus court.

Trousdale County Court of Criminal Appeals 08/15/18
State of Tennessee v. Robert Taylor
W2017-00765-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The defendant, Robert Taylor, appeals his Shelby County Criminal Court jury convictions of second degree murder and possession of a firearm by a convicted felon, claiming that the trial court erred by excluding certain evidence, that the evidence was insufficient to sustain his convictions of second degree murder, and that the sentence imposed was excessive. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 08/14/18
Daetrus Pilate v. State of Tennessee
W2017-02060-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lee V. Coffee

Petitioner, Daetrus Pilate, filed a pro se petition for post-conviction relief claiming that his confession was coerced and that he received the ineffective assistance of counsel in Case No. 11-05220. After appointment of counsel, an amended petition was filed claiming that Petitioner received ineffective assistance of counsel in Case No. 11-05220 and in Case No. 12-01054. Following a hearing, the post-conviction court denied relief. After a thorough review of the record, we affirm.

Shelby County Court of Criminal Appeals 08/14/18
State v. A.B. Price Jr. and Victor Tyrone Sims - Dissent
W2017-00677-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald E. Parish

The posture of this matter is that, as the Defendant arrived in the trial court to enter his plea of guilty and be placed on probation, the trial court announced to the parties that the court wanted to be “educated” as to the workings of the PSA, to which the Defendant would be subject. As the majority opinion in this matter explains, the practical effect of the PSA is that certain alleged infractions of the probation requirements would not go to the court but, rather, would be handled by a probation officer. Subsequently, a hearing was held in this matter at which a probation officer testified regarding the general workings of the PSA. The Defendant, having not yet pled guilty, was not yet subject to the PSA provisions; and defense counsel had not questioned its constitutionality. One week later, the trial court filed its lengthy and detailed order, finding that the constitutionality of the PSA was ripe for the court’s consideration, and concluding that, were the Defendant subject to its provisions, his rights to due process and equal protection of the law would be violated.

Henry County Court of Criminal Appeals 08/14/18
State v. A.B. Price Jr. and Victor Tyrone Sims - Concurring
W2017-00677-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Donald E. Parish

I fully concur with Judge McMullen’s opinion. I write separately in order to elaborate on some of the details on the Public Safety Act of 2016 (“Public Safety Act”) which this court concludes violates the Tennessee Constitution. I do not take any pleasure when, after a thorough review of the statutes, the Tennessee Constitution, and applicable case law, I am compelled to conclude that statutes passed by the General Assembly and signed into law by the Governor violate provisions of our state’s constitution. I do not doubt the good intentions of the executive and legislative branches of our state government in establishing Section 14 of the Public Safety Act. Only the portion of the Public Safety Act found presently in T.C.A. § 40-28-301-306 pertaining to probation is deemed unconstitutional by this court. The provisions are contained solely in Section 14 of ch. 906 of the 2016 Public Acts.

Henry County Court of Criminal Appeals 08/14/18
State v. A.B. Price Jr. and Victor Tyrone Sims
W2017-00677-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald E. Parish

This consolidated appeal comes to us following the passage of the Public Safety Act (“the PSA”), which, as relevant here, see Tenn. Code Ann. §§ 40-28-301,-306, changed how non-criminal or “technical” violations of probation are handled in Tennessee. These provisions require the Tennessee Department of Probation and Parole (“the department”) to develop, among other things, a single system of graduated sanctions for technical violations of community supervision and an administrative review process for objections by the probationer to imposition of such sanctions. Prior to accepting the Defendants’ guilty pleas, the trial court expressed concern regarding the implementation of the PSA, as these consolidated cases were the first in its district to which the graduated sanctions of the PSA would apply. The Defendants then objected to the imposition of the PSA as a mandatory condition of their probation and “request[ed] that the Court find certain of the provisions of T.C.A. § 40-28-301 through § 40-28-306, relative to sentences of probation, to be facially unconstitutional, and, therefore, decline to incorporate them within the judgment.” Specifically at issue are the provisions (1) mandating trial courts to include as a condition of probation that the department supervising the individual may impose graduated sanctions for violations of probation; and (2) the extent to which the department’s administrative process to review graduated sanctions contested by supervised individuals complies with principles of due process. After a hearing, the trial court issued an extensive order finding these sections of the PSA violated the separation of powers doctrine and principles of due process and equal protection. It is from this order that the State appeals. For the reasons that follow, we affirm the judgments of the trial court.

Henry County Court of Criminal Appeals 08/14/18
State of Tennessee v. William Shannon Gresham
M2017-00672-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

Defendant, William Shannon Gresham, was indicted by the Sumner County Grand Jury for one count of especially aggravated sexual exploitation of a minor, two counts of rape of a child, and two counts of aggravated sexual battery. The trial court dismissed one count of rape of a child upon motion of the State at the close of the State’s proof, and the trial court dismissed one count of aggravated sexual battery at the close of the defense’s proof. The jury found Defendant not guilty of aggravated sexual battery, and Defendant was convicted on one count each of the lesser-included offenses of sexual exploitation of a minor and child abuse. The trial court sentenced Defendant to four years’ incarceration for sexual exploitation of a minor and two years’ incarceration for child abuse, to be served concurrently. Following a hearing on Defendant’s “Motion for Judgment of Acquittal and/or New Trial,” the trial court granted a judgment of acquittal on Defendant’s sexual exploitation of a minor conviction, concluding that the photographs of the victim did not depict “lascivious exhibition” as defined in State v. Whited, 506 S.W.3d 416 (Tenn. 2016). In this appeal as of right, Defendant challenges the sufficiency of the evidence to sustain his conviction for child abuse and the trial court’s denial of probation. Following a careful review of the record and the briefs of the parties, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 08/14/18
Martin Dean "Cub" Meeks v. State of Tennessee
M2017-01887-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Thomas W. Graham

The Petitioner, Martin Dean “Cub” Meeks, appeals the post-conviction court’s denial of his petition seeking to overturn his conviction for first degree premeditated murder. The Petitioner alleged that trial counsel was deficient in failing to obtain expert evidence, but he did not present any expert testimony at the post-conviction hearing. Because the Petitioner has not shown that he received ineffective assistance of counsel, we affirm the denial of post-conviction relief.

Grundy County Court of Criminal Appeals 08/14/18
State of Tennessee v. William H. Young
E2017-00913-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Thomas C. Greenholtz

The Defendant, William H. Young, appeals as of right from the Hamilton County Criminal Court’s denial of his request for judicial diversion. The Defendant was convicted following a bench trial of criminally negligent homicide, and he was sentenced to eighteen months of supervised probation. On appeal, the Defendant contends that the trial court abused its discretion by relying solely on the circumstances of the offense in its decision to deny judicial diversion to the exclusion of other supporting factors. According to the Defendant, the trial court’s decision to deny his request for judicial diversion was based on the offense that he was convicted of rather than the applicable factors. Discerning no error, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 08/13/18
Sterling Davis v. State of Tennessee
E2017-01308-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Sandra Donaghy

A Monroe County jury convicted the Petitioner, Sterling Davis, of possession of 300 grams or more of cocaine with intent to sell, possession of more than half an ounce of marijuana with intent to sell, and possession of drug paraphernalia. The trial court imposed an effective sentence of forty years, and this court affirmed the judgments on appeal. State v. Sterling Jerome Davis, No. E2012-01398-CCA-R3-CD, 2013 WL 6047558, at *1 (Tenn. Crim. App., at Knoxville, Nov. 14, 2013), perm. app. denied (Tenn. May 13, 2014). In a petition for post-conviction relief, the Petitioner raised multiple issues not relevant to this appeal. The post-conviction court denied relief after a hearing. On appeal, the Petitioner raises the following issues: (1) the State failed to disclose facts that would be classified as Brady material; (2) the State willfully omitted facts which would have invalidated the search warrant in this case; and (3) the post-conviction court abused its discretion when it quashed a subpoena. We affirm the post-conviction court’s judgment.

Monroe County Court of Criminal Appeals 08/13/18
State of Tennessee v. Maurice Baxter aka Maurice Gross - Concurring
W2016-01088-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

I write separately for the sole purpose of reiterating my belief that a prosecutor’s error in arguments to a jury should not be designated as “prosecutorial misconduct” or other words of similar import. See State v. Timothy McKinney, No. 2016-00834-CCA-R3-CD, 2018 WL 1055719 (Tenn. Crim. App. Feb. 23, 2018), Woodall, dissenting.

Shelby County Court of Criminal Appeals 08/10/18
State of Tennessee v. Maurice Baxter aka Maurice Gross
W2016-01088-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

A Shelby County Criminal Court Jury convicted the Appellant, Maurice Baxter, of aggravated rape, aggravated burglary, and theft of property valued more than $1,000, and he received an effective sentence of fifty-eight years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the convictions, that the trial court erred by allowing the jury to hear that his DNA profile was in the CODIS database, that the trial court erred by allowing the defense’s DNA expert to testify for the State, and that the State committed prosecutorial misconduct during its rebuttal closing argument. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the defense expert’s testifying for the State constitutes reversible error. We also conclude that the State committed prosecutorial misconduct and that the cumulative effect of that error further warrants reversal. Accordingly, the Appellant’s convictions must be reversed and the case remanded to the trial court for further proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 08/10/18
Allen Booker v. State of Tennessee
W2017-01662-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Allen Booker, appeals the denial of his petition for post-conviction relief, arguing that he failed to receive due process at his trial or in the post-conviction evidentiary hearing and the post-conviction court erred in finding that he received effective assistance of trial counsel. Following our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/10/18
State of Tennessee v. Marlon Boyd
W2017-00791-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Lee V. Coffee

Defendant, Marlon Boyd, was convicted of first degree murder, aggravated assault, and possession of a firearm by a convicted felon. The trial court imposed a total effective sentence of life without parole plus 30 years. On appeal, Defendant argues (1) that the trial court erred in denying his motion to sever the count of the indictment alleging possession of a firearm by a convicted felon from the other charges; (2) that the trial court abused its discretion in allowing the State to use Defendant’s prior convictions for impeachment purposes; and (3) that the evidence is insufficient to support his convictions. Upon our review of the record, we find no reversible error and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/10/18
James Michael Naive v. State of Tennessee
M2017-00278-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joseph Woodruff

A Williamson County jury convicted Petitioner, James Michael Naive, of the first degree premeditated murder of his sister. The trial court sentenced Petitioner to life imprisonment. On appeal, this court affirmed the judgment of the trial court. State v. James Michael Naive, No. M2012-00893-CCA-R3-CD, 2013 WL 4505395 (Tenn. Crim. App. Aug. 21, 2013), perm. app. denied (Tenn. Dec. 11, 2013). Petitioner filed a postconviction petition, and the post-conviction court denied relief following an evidentiary hearing. On appeal, Petitioner maintains that he received the ineffective assistance of counsel in that trial counsel’s defense strategy was unlikely to be successful, and trial counsel failed to advise Petitioner that his testimony was essential to his defense. After review, we affirm the post-conviction court’s judgment.

Williamson County Court of Criminal Appeals 08/10/18
Roy Smith v. State of Tennessee - Dissent
M2017-00321-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Royce Taylor

I respectfully disagree with the conclusion reached by the majority in this case. In this appeal, the Petitioner contends that he received ineffective assistance of counsel at the plea negotiation stage. Specifically, the Petitioner argues that trial counsel was deficient in proceeding to trial based on an erroneous jurisdictional argument. As a result, the Petitioner argues that, but for trial counsel’s erroneous advice, he would have accepted the State’s more favorable plea offer. The State argues that the Petitioner has failed to overcome the presumption that trial counsel exercised reasonable judgment in all strategic decisions. Moreover, the State asserts that because the Petitioner has failed to prove he would have accepted the ten-year offer extended to him instead of the twentyyear offer, he has failed to prove prejudice. For the reasons that follow, I would have reversed the judgment of the post-conviction court and remanded this matter for a rehearing. The facts underlying the Petitioner’s convictions stem from the execution of a search warrant upon his home resulting in the discovery of oxycodone and several hundred dihydrocodeinone pills. State v. Roy Allen Smith, No. M2014-01172-CCA-R3- CD, 2015 WL 3550106, at *1 (Tenn. Crim. App. June 8, 2015) perm. app. denied (Tenn. Oct. 15, 2015). The Petitioner was ultimately convicted after a jury trial of simple possession of a Schedule II controlled substance, possession of a Schedule III controlled substance with the intent to manufacture, deliver, or sell, maintaining a dwelling used for keeping or selling controlled substances, and possession of drug paraphernalia, for which he received an effective twelve-year sentence. Id. The trial court ordered the Petitioner’s twelve-year sentence to be served consecutively to six prior convictions with an aggregate sentence of thirty-seven years for which the Petitioner had been on probation at the time that the instant offenses were committed. Roy Allen Smith, at *3. In total, it appears that the Petitioner received an effective forty-nine-year sentence, the bulk of which is for driving offenses.

Rutherford County Court of Criminal Appeals 08/09/18
Roy Smith v. State of Tennessee
M2017-00321-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Royce Taylor

Petitioner, Roy Smith, was convicted at trial of several drug-related offenses and sentenced to twelve years to be served consecutively to a prior aggregate sentence of thirty-seven years. Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel when trial counsel advised him to reject a favorable plea offer in favor of attempting to have the charges dismissed at trial based on a jurisdictional argument. The post-conviction court denied relief. Petitioner now appeals, asking this Court, among other things, to require the State to re-extend the alleged plea offer pursuant to Lafler v. Cooper, 566 U.S. 156, 174 (2012). We decline and affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 08/09/18
State of Tennessee v. Geremy Paul Mathis
M2017-00166-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge L. Craig Johnson

The Appellant, Geremy Paul Mathis, was convicted by a Coffee County Circuit Court Jury of initiating a process intended to result in the manufacture of methamphetamine, a Class B felony. The trial court sentenced the Appellant as a Range I, standard offender to eleven years in the Tennessee Department of Correction. On appeal, the Appellant contends that the trial court erred by (1) denying his motion to suppress the “meth lab” discovered after an officer ordered the Appellant to exit the vehicle in which he was a passenger, (2) denying his motion for mistrial after a defense witness made repeated references to the Appellant’s previous incarceration, and (3) refusing to grant the alternative sentence of community corrections. The Appellant further contends that the evidence was not sufficient to sustain his conviction. Upon review, we affirm the judgment of the trial court.

Coffee County Court of Criminal Appeals 08/09/18
State of Tennessee v. Larry Franklin Mann
M2017-01929-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Buddy D. Perry

The Defendant, Larry Franklin Mann, appeals his convictions following a jury trial in 2001 for attempted first degree murder, aggravated assault, and especially aggravated kidnapping, for which he received an effective sentence of twenty-five years. On appeal, the Defendant maintains that the trial court erred in failing to instruct the jury in accordance with State v. White, 362 S.W.3d 559 (Tenn. 2012). We conclude that the trial court’s failure to issue the instruction was harmless beyond a reasonable doubt, and we, therefore, affirm the judgments of the trial court.

Grundy County Court of Criminal Appeals 08/09/18
State of Tennessee v. Michael A. Flippen, Jr.
M2017-01288-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge William R. Goodman, III

The Defendant, Michael A. Flippen, Jr., entered a guilty plea to second degree murder, with the length of his sentence to be determined by the trial court. Following a hearing, the Defendant received a twenty-year sentence to be served in the Tennessee Department of Correction. On appeal, the Defendant challenges the length of his sentence, arguing that the trial court abused its discretion in applying certain enhancement factors. After review of the record and applicable law, we affirm the judgment of the trial court.

Montgomery County Court of Criminal Appeals 08/09/18
State of Tennessee v. Dedrick Wiggins
W2017-00926-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Dedrick Wiggins (“Defendant”) was convicted by a Shelby County jury of second degree murder and sentenced to thirty-five years’ incarceration. In this direct appeal, Defendant contends that the trial court erred in admitting the victim’s statement under the dying declaration hearsay exception and that the evidence presented at trial was insufficient to support his conviction. Following a thorough review, we affirm the judgment of the criminal court.

Shelby County Court of Criminal Appeals 08/08/18
State of Tennessee v. Andrea Spencer
W2017-02475-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Lee V. Coffee

The Appellant, Andrea Spencer, appeals as of right from the Shelby County Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Appellant contends that the trial court erred because his motion stated a colorable claim for sentencing outside the statutory ranges and a Blakely v. Washington violation. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/08/18
Joshua L. Carter v. State of Tennessee
M2017-02401-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Mark J. Fishburn

Joshua L. Carter, Petitioner, was convicted in separate jury trials of sale of less than .5 grams of cocaine in a drug-free zone; possession with the intent to sell or deliver more than .5 grams of cocaine in a drug-free zone; simple possession of marijuana; and evading arrest in case number 2011-B-1648 and of voluntary manslaughter, attempted especially aggravated robbery, and felony murder in case number 2011-D-3013. Petitioner received a total effective sentence of forty years as a multiple offender in case number 2011-B-1648 and received a life sentence in case number 2011-D-3013, to be served consecutively to his forty-year sentence. These cases were consolidated on appeal, and this court affirmed Petitioner’s convictions. Petitioner filed petitions for post-conviction relief. The post-conviction court consolidated the petitions and denied relief. On appeal, Petitioner asserts that: (1) trial counsel in case number 2011-D-3013 failed to call an alibi witness; (2) trial counsel in case numbers 2011-B-1648 and 2011-D- 3013 failed to properly investigate the cases; and (3) trial counsel in case number 2011- B-1648 failed to withdraw. After a thorough review of the facts and applicable case law, we affirm the post-conviction court’s denial of relief.

Davidson County Court of Criminal Appeals 08/08/18