Court of Criminal Appeals Opinions

Format: 02/01/2015
Format: 02/01/2015
Howard G. Bruff v. State of Tennessee
E2013-02223-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Leon Burns, Jr.

The petitioner, Howard G. Bruff, appeals the Cumberland County Criminal Court’s denial of his timely petition for post-conviction relief, which petition challenged his 2005 convictions of first degree murder and especially aggravated robbery on the grounds that his trial counsel was ineffective. Because the record supports the decision of the post-conviction court, we affirm that court’s order.

Cumberland County Court of Criminal Appeals 12/10/14
State of Tennessee v. Rothes Taylor
W2013-02520-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway Jr.
Trial Court Judge: Judge Donald H. Allen

The Appellant was convicted of burglary and theft over $500 and sentenced to four years. On appeal, the Appellant argues that there was insufficient evidence to support the convictions. After reviewing the record and the applicable law, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/10/14
Ricky Frith v. State of Tennessee
W2013-02435-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway Jr.
Trial Court Judge: Judge Chris Craft

The Petitioner, Ricky Frith, appeals the denial of post-conviction relief, arguing that he received ineffective assistance of counsel based upon trial counsel’s failure to: (1) adequately communicate, investigate, and prepare for trial by obtaining “exonerating records”; (2) raise a Fourth Amendment challenge to the Petitioner’s illegal arrest; (3) subpoena the officer who took the victim’s initial suspect description; and (4) file a timely motion for new trial. Additionally, the Petitioner contends that he received ineffective assistance of appellate counsel based upon appellate counsel’s advice that there was no legitimate basis for an appeal, and appellate counsel’s failure to request a delayed appeal. After our review, we conclude that the Petitioner has failed to establish that he is entitled to post-conviction relief and affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 12/10/14
State of Tennessee v. Calvin Ellison
W2013-02786-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway Jr.
Trial Court Judge: Judge Roy B. Morgan Jr.

Calvin Ellison (“Defendant”) was indicted on one count of attempted first degree murder, two counts of aggravated assault, and one count of employing a firearm during the commission of or attempt to commit a dangerous felony - attempted first degree murder. A jury returned verdicts convicting the Defendant of misdemeanor reckless endangerment as a lesser-included charge of attempted first degree murder, one count of aggravated assault, and employing a firearm during the commission of or attempt to commit a dangerous felony. On appeal, the Defendant challenges the trial court’s ruling excluding a portion of his expert witness’s testimony; argues that his conviction for employing a firearm during the commission of or attempt to commit a dangerous felony should be overturned in light of the jury’s verdict in the first count of the indictment; and challenges the sufficiency of the evidence supporting his convictions. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/10/14
Rodney Braden v. State of Tennessee
W2013-02767-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James M. Lammey

The Petitioner, Rodney Braden, appeals the post-conviction court’s denial of relief from his conviction for second degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel in connection with his guilty plea. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 12/09/14
State of Tennessee v. Vanessa Coleman - separate concurring opinion
E2013-01208-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

I write separately because I feel it is necessary to adequately address the federal grand jury issue as presented by the Defendant in her appellate brief. The majority notes that the Defendant moved to dismiss the presentment under Rule 6(j)(6) of the Tennessee Rules of Criminal Procedure, arguing that her subpoena to testify before the federal grand jury barred her state court prosecution. I do not disagree that Rule 6(j) 6) “applies only to proceedings in state grand juries within the State of Tennessee.” However, the Defendant’s argument both in her interlocutory appeal, and as presented in this direct appeal, is that the federal authorities were acting as agents of the Knox County District Attorney General’s office. Specifically, she notes that the charges against her arose from a joint investigation between State and federal authorities. She continues, by virtue of this joint investigation, the federal authorities were acting as agents of the Knox County District Attorney General when they subpoenaed her to testify before the federal grand jury regarding her knowledge and participation in the crimes against the victims, thereby, triggering the immunity protection afforded by Rule 6(j)(6). In my opinion, to ignore the agency issue, ignores the issue presented by the Defendant.

Knox County Court of Criminal Appeals 12/09/14
State of Tennessee v. Vanessa Coleman
E2013-01208-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jon Kerry Blackwood

In this case both victims were sexually assaulted. Accordingly, we will identify them by their initials. Defendant, Vanessa Coleman, was one of four defendants charged by presentment for offenses which occurred in January 2007, involving the deaths of the victims, C.N. and C.C. In her first trial, Defendant was acquitted of all charges alleging the murder, kidnapping, and rape of victim C.N. She was convicted of several counts of the lesserincluded offense of facilitation of charges alleging the murder, kidnapping, and rape of victim C.C. Defendant was granted a new trial by the trial court based upon structural error in the proceedings of the first trial. Following the second trial, a jury found Defendant guilty of the following offenses against victim C.C.: three counts of facilitation of first degree murder, one count of facilitation of second degree murder, two counts of facilitation of aggravated kidnapping, six counts of facilitation of rape, and one count of facilitation of misdemeanor theft. Following a sentencing hearing, the trial court merged Defendant’s convictions for facilitation of first degree murder and second degree murder into one conviction and imposed a sentence of 25 years for that conviction. The trial court also merged Defendant’s two convictions for facilitation of aggravated kidnapping and imposed a sentence of six years to be served consecutively to Defendant’s 25-year sentence. The trial court merged Defendant’s six convictions for facilitation of rape into three convictions and imposed a sentence of four years for each conviction, to be served concurrently with each other but consecutively to Defendant’s remaining sentences. For Defendant’s facilitation of misdemeanor theft conviction, the trial court imposed a sentence of six months to be served concurrently with the remaining sentences. Thus, Defendant received a total effective sentence of 35 years for her convictions. In this appeal as of right, Defendant raises the following issues for our review: 1) whether the evidence at trial was sufficient to sustain her convictions; 2) whether the trial court should have dismissed the presentment because Defendant was subpoenaed to testify before a federal grand jury before the filing of the presentment in this case; 3) whether the trial court erred by admitting testimony of Defendant’s statements made during unrecorded interviews; 4) whether the trial court should have excluded photographs of the victims’ bodies; 5) whether all of Defendant’s convictions for facilitation of rape should have been merged into one conviction; and 6) whether the trial court erred by imposing consecutive sentences. After a thorough review of the record before us, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 12/09/14
Derrick Campbell v. State of Tennessee
M2013-02567-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Mitchell Keith Siskin

Petitioner, Derrick Devon Campbell, pleaded guilty to second degree murder with an agreed sentence of thirty years at Range II to be served at one-hundred percent as a violent offender. Petitioner now appeals the trial court’s denial of his petition for post-conviction relief, in which he alleged that his trial counsel was ineffective for failing to properly explain his plea agreement and the consequences of the plea.  Having reviewed the record before us, we affirm the judgment of trial court.

Rutherford County Court of Criminal Appeals 12/09/14
State of Tennessee v. Rohman M. Harper
M2014-00944-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge George C. Sexton

The Defendant, Rohman M. Harper, was found guilty by a Cheatham County Circuit Court jury of aggravated sexual battery, a Class B felony.  See T.C.A. § 39-13-504 (2014).  Before the trial, the Defendant pleaded guilty to resisting arrest, a Class B misdemeanor, and to public intoxication, a Class C misdemeanor.  See id. §§ 39-16-602 (2014), 39-17-310 (2014).  The trial court sentenced the Defendant to concurrent terms of eight years at 100% service for aggravated sexual battery, six months for resisting arrest, and thirty days for public intoxication.  On appeal, he contends that the evidence is insufficient to support his aggravated sexual battery conviction.  Although we affirm the aggravated sexual battery conviction, we remand the case for entry of corrected judgments relative to the resisting arrest and public intoxication convictions.

Cheatham County Court of Criminal Appeals 12/09/14
State of Tennessee v. Donald Terrell
W2014-00340-CCA-R3-CO
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge Glenn Wright

The Appellant, Donald Terrell, filed a pro se motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1. The trial court summarily dismissed the Appellant’s motion, and he appealed. Following our review of the record, we conclude that the Appellant’s motion presented a colorable claim that his sentences were illegal. We therefore reverse the trial court’s summary dismissal and remand for further proceedings.

Shelby County Court of Criminal Appeals 12/08/14
State of Tennessee v. Jason Braden
E2014-00572-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David Reed Duggan

Defendant, Jason Braden, pled guilty to aggravated burglary, false imprisonment, and assault in Blount County in May of 2011. In exchange for the guilty plea, Defendant received a five-year sentence to be served on supervised probation. In October of 2011, a warrant was filed alleging a robation violation. Simultaneously, Defendant was in state custody, facing a new charge and probation violation in Anderson County. The revocation hearing in Blount County did not take place until March 2014. After hearing the evidence, the trial court found a material violation and ordered Defendant to serve the balance of his sentence in confinement. Defendant appeals. After a review, we determine that the trial court did not abuse its discretion in ordering Defendant to serve the balance of his sentence.

Blount County Court of Criminal Appeals 12/08/14
State of Tennessee v. Lee Michael Gianaro
E2014-01200-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Rebecca J. Stern

Defendant, Lee Michael Gianaro, was indicted by the Hamilton County Grand Jury for one count of aggravated burglary, one count of theft of property valued over $1,000, and one count of vandalism. Defendant pled guilty to aggravated burglary in exchange for a sentence of three years, to be served on probation, and payment of $1,500 restitution to the victim. The remaining charges were dismissed. Defendant violated the terms of his probation. The trial court partially revoked probation, ordering Defendant to Community Corrections until restitution was paid in full before returning Defendant to supervised probation. A second probation violation report was filed alleging Defendant violated the terms of his probation. After a hearing, the trial court revoked Defendant’s probation and ordered him to serve his sentence in incarceration. Defendant appeals, arguing that the trial court abused its discretion in revoking probation. After a review of the record, we conclude that substantial evidence supported the revocation of probation. The judgment of the trial court is affirmed.

Hamilton County Court of Criminal Appeals 12/08/14
State of Tennessee v. William Whitlow Davis, Jr.
E2013-02073-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge John F. Dugger, Jr.

The defendant, William Whitlow Davis, Jr., pleaded guilty to first offense driving under the influence of an intoxicant with a blood alcohol level of .08 percent or more and reserved as a certified question the propriety of the vehicle stop leading to his arrest. Determining that the evidence does not preponderate against the trial court’s findings in its order denying the motion to suppress, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 12/08/14
William T. Johnson v. State of Tennessee - separate opinion
E2014-00828-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Don W. Poole

I fully concur in the majority opinion in this case. I only write separately to express a view that counsel’s absence from court – even during jury deliberations and verdict announcement – for reasons no more substantial than coaching a basketball game presents a closer question than our opinion may suggest. It may be that a certain casualness has permeated the practice of law, and courts and lawyers should be vigilant in maintaining standards of regularity and professionalism

Hamilton County Court of Criminal Appeals 12/08/14
William T. Johnson v. State of Tennessee
E2014-00828-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Don Poole

The Petitioner, William T. Johnson, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief. On appeal, the Petitioner claimed (1) he was denied effective assistance of counsel because his trial counsel was absent during a portion of jury deliberation and when the jury returned its verdict, and (2) because the trial court failed to secure the Petitioner’s waiver of counsel’s presence. Following our review, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 12/08/14
Jerry Rommell Gray v. State of Tennessee
E2014-00849-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

Petitioner, Jerry Rommell Gray, was convicted in Knox County of felony murder, attempted especially aggravated robbery, and attempted gravated robbery. Trial counsel filed a premature notice of appeal and failed to file a timely motion for new trial. On direct appeal, this Court reviewed Petitioner’s issues, other than sufficiency of the evidence, for plain error. State v. Jerry Rommell Gray, No. E2010-00637-CCA-R3-CD, 2012 WL 2870264, at *1 (Tenn. Crim. App. July 13, 2012). Petitioner’s convictions were affirmed. Petitioner subsequently filed an untimely petition for post-conviction relief in which he sought a delayed appeal based on ineffective assistance of counsel, specifically alleging that trial counsel’s failure to file a timely motion for new trial was presumptively prejudicial. Without ruling on the timeliness of the petition, the post- onviction court determined Petitioner was entitled to a delayed appeal but instructed Petitioner that he was not permitted to file an additional motion for new trial. After a review of the record and authorities, we reverse the decision of the post-conviction court and remand the matter for a hearing, during which the post-conviction court should first determine whether the statute of limitations for postconviction petitions should be tolled. If the post-conviction court determines that the statute should be tolled for due process considerations, the court should then determine if Petitioner received ineffective assistance of counsel and is entitled to a delayed appeal under Tennessee Code annotated section 40-30-113, which authorizes the filing of a motion for new trial when no motion for new trial was filed in the original proceeding. Consequently, the judgment of the post-conviction court is reversed and remanded.

Knox County Court of Criminal Appeals 12/05/14
Adrian Lamont Henry v. State of Tennessee
M2013-00034-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Adrian Lamont Henry, pled guilty to second degree murder, a Class A felony, and was sentenced to forty years in confinement.  The petitioner filed the instant petition for post-conviction relief, in which he alleged that he received the ineffective assistance of counsel and that his guilty plea was involuntary.  Following an evidentiary hearing, the post-conviction court denied relief.  On appeal, the petitioner argues that his constitutional rights were violated when he was not given proper Miranda warnings and when he was interviewed while under the influence of marijuana.  The petitioner also argues that he received ineffective assistance of counsel when trial counsel: (1) failed to communicate the defense strategy, defenses, or theory of the case with the petitioner; (2) failed to file a motion to suppress the petitioner’s statements to law enforcement; (3) failed to utilize important witnesses; and (4) pressured the petitioner into pleading guilty.  The petitioner argues that due to these errors, his guilty plea was not knowingly and voluntarily entered.  After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 12/05/14
State of Tennessee v. Travis Meadows
M2013-01646-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge David Alan Patterson

Appellant, Travis Meadows, pleaded guilty to two counts of attempted aggravated sexual battery, Class C felonies.  The trial court sentenced him to four years on each count, to be served consecutively, for an effective eight-year sentence.  The effective eight-year sentence was suspended, and appellant was placed on supervised probation.  As part of the plea agreement, appellant reserved a certified question of law challenging the denial of his motion to suppress.  On appeal, appellant argues that the State failed to include the certified question in the judgment form and filed the judgment form without notice to appellant; therefore, the State violated the terms of the plea agreement.  Appellant also argues that the trial court erred by denying his motion to suppress his statement to law enforcement due to the coercive and misleading nature of the interrogation.  Following our review of the briefs, the record, and the applicable law, we dismiss appellant’s appeal.

Putnam County Court of Criminal Appeals 12/05/14
State of Tennessee v. Jonathan Womack
M2013-02743-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Vanessa A. Jackson

The Defendant, Jonathan Womack, pled guilty to possession of less than .5 grams of methamphetamine with intent to sell or deliver. He agreed to a sentence of six years, all of which was suspended after sixty days’ incarceration. As part of the plea agreement, the Defendant reserved a certified question of law challenging the trial court’s denial of his motion to suppress the evidence obtained during the warrantless search of his residence, which was conducted following a “knock and talk” encounter and claimed exigent circumstances. After a thorough review of the applicable law, we conclude that the officers encroached upon the curtilage of the Defendant’s home to conduct the “knock and talk” at the backdoor of his residence and that they, thereafter, created any exigent circumstances. However, we further conclude that the evidence found on the Defendant’s person was obtained pursuant to an independent source—a valid warrant for his arrest. Therefore, the order of the trial court denying the motion to suppress is affirmed.

Coffee County Court of Criminal Appeals 12/05/14
State of Tennessee v. Randall Wayne Cagle
M2013-02271-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

Defendant, Randall Wayne Cagle, appeals from the trial court’s judgment revoking his probation.  Defendant pled guilty in the Hickman County Circuit Court to four counts of sexual exploitation of a minor.  The judgments are not in the appellate record, but according to other documents and testimony at the probation violation hearing, the trial court imposed  an effective sentence of eight years to be served entirely on supervised probation.  Approximately five months later, a violation of probation warrant was filed and served on Defendant.  Following a hearing, the trial court concluded that Defendant had violated probation.  The trial court deemed its ruling as a “partial revocation” and ordered Defendant to serve sixty days in the Hickman County Jail and to thereafter be placed back on supervised probation.  Defendant has appealed the trial court’s revocation order.  The trial court erroneously allowed testimony of Defendant’s failure to pass a polygraph test. Therefore, we reverse the judgment of the trial court and remand this matter for a new probation violation hearing in which the results of any polygraph test, any evidence of Defendant’s refusal (or willingness) to submit to a polygraph examination, and any statements made by Defendant as to why he would not submit to a polygraph examination are not to be admitted into evidence or otherwise relied upon by the trial court.

Hickman County Court of Criminal Appeals 12/05/14
State of Tennessee v. Lonta Montrell Burress, Jr. and Darius Jerel Gustus
E2013-01697-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Don W. Poole, Jr.


The Defendant-Appellant, Lonta Montrell Burress, Jr., was convicted as charged by a Hamilton County jury of three counts of aggravated assault, one count of possession of a deadly weapon during the commission of an offense not defined as a dangerous offense, one count of theft of property, one count of felony evading arrest, and one count of misdemeanor evading arrest. The trial court sentenced Burress to an effective sentence 1 of six years. The other Defendant-Appellant, Darius Jerel Gustus, who was tried jointly with Burress, was convicted as harged of three counts of aggravated assault, one count of possession of a deadly weapon during the commission of an offense not defined as a dangerous offense, one count of felony reckless endangerment, and one count of misdemeanor evading arrest. The trial court also sentenced Gustus to an effective sentence of six years. On appeal, Burress argues: (1) the evidence is insufficient to sustain his aggravated assault convictions and his theft conviction; (2) the trial court erred in denying a mistrial based on the admission of gang testimony; (3) the trial court erred in denying a mistrial based on a Bruton violation; and (4) the trial court erred in determining that LaJuana Woods was an unavailable witness pursuant to Tennessee Rule of Evidence 804 and erred in allowing the State to have Woods read her testimony from the juvenile court transfer hearing transcript at trial. On appeal, Gustus contends: (1) the evidence is insufficient to sustain his aggravated assault conviction regarding victim Frederick Jones, Jr.; (2) the trial court erred in denying a mistrial based on the admission of gang testimony; and (3) the trial court erred in admitting two bandanas because there was an improper chain of custody. Upon review, we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 12/04/14
State of Tennessee v. Joshua Lee Steele
E2014-00321-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Amy A. Reedy

The Defendant, Joshua Lee Steele, pleaded guilty to second degree murder, agreeing to allow the trial court to determine his sentence. The trial court sentenced him to serve twenty-five years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court erred when it sentenced him because it did not properly consider the mitigating factor that the Defendant assisted authorities in tecting or apprehending other persons who had committed the offenses. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgment

Monroe County Court of Criminal Appeals 12/04/14
State of Tennessee v. Joe Travis Northern Jr.
W2013-02757-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan Jr.

The defendant, Joe Travis Northern, Jr., was convicted by a Madison County Criminal Court jury of possession of more than one-half ounce of marijuana with the intent to sell or deliver, a Class E felony; possession of a firearm during the commission of a dangerous felony with a prior felony, a Class D felony; possession of a firearm by a convicted felon, a Class E felony; tampering with evidence, a Class D felony; and possession of drug paraphernalia, a Class A misdemeanor, and was sentenced by the trial court as a Range II, multiple offender to an effective term of eighteen years in the Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence in support of his convictions and argues that the trial court imposed an excessive sentence. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/03/14
State of Tennessee v. Devaughn Edwards
W2013-02009-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter Jr.

The defendant, Devaughn Edwards, was convicted of three counts of facilitation of kidnapping, two of which subsequently were merged; two counts of facilitation of robbery, and one count of facilitation of aggravated burglary, for which he received an effective sentence of sixteen years. On appeal, he argues that the evidence was not sufficient to sustain the convictions for facilitation of kidnapping and that the court erred in imposing consecutive sentencing. Following our review, we affirm the judgments.

Shelby County Court of Criminal Appeals 12/03/14
State of Tennessee v. Latickia Tashay Burgins
E2014-02110-CCA-R8-CO
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Bobby R. McGee

The defendant, Latickia Tashay Burgins, through counsel, sought automatic review of the trial court’s revocation of bail pursuant to Tennessee Rule of Appellate Procedure 8. The defendant argues that the trial court’s reliance upon Tennessee Code Annotated section 40-11-141(b) to revoke and deny pretrial bail following her garnering additional charges violates Article I, section 15 of the Tennessee Constitution. Upon full consideration of the defendant’s motion for review and the State’s response, we conclude that Code section 40-11-141(b) violates the constitutional guarantee to pretrial bail by permitting a trial court to hold a defendant without bail pending trial. Accordingly, we reverse the judgment of the trial court denying the appellant pretrial bail and remand the case for further proceedings consistent with this opinion.

Knox County Court of Criminal Appeals 12/03/14