Court of Criminal Appeals Opinions

Format: 05/29/2016
Format: 05/29/2016
State of Tennessee v. Harold McDuffie
W2015-00664-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Lee V. Coffee

Pro se petitioner, Harold McDuffie, appeals from the Shelby County Criminal Court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Upon review, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 03/31/16
State of Tennessee v. David William Lowery
E2015-00924-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald R. Elledge

An Anderson County jury convicted the Defendant-Appellant, David William Lowery, as charged of three counts of aggravated child abuse.  See T.C.A. § 39-15-402(a)(1) (Supp. 2007).  The trial court imposed concurrent twenty-five-year sentences with a release eligibility of one hundred percent for each count.  See id. § 40-35-501(i) (Supp. 2008).  Lowery’s sole issue on appeal is that the evidence is insufficient to sustain his convictions.  Upon review, we affirm Lowery’s convictions but remand the case for entry of corrected judgments in counts 1, 2, and 3 to reflect that he was charged with and convicted of three counts of aggravated child abuse and that these convictions are Class A felonies.    

Anderson County Court of Criminal Appeals 03/30/16
State of Tennessee v. Brandon Waire
M2014-02140-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Stella L. Hargrove

In December 2012, the Maury County Grand Jury indicted Brandon Waire (“the Defendant”) on three counts of sale of cocaine over .5 gram within a drug-free zone.  Following a trial, a jury convicted the Defendant as charged, and the trial court sentenced the Defendant to an effective eight years’ incarceration.  On appeal, the Defendant asserts that he is entitled to relief from his convictions because:  (1) the trial court erroneously denied the Defendant’s motion for mistrial after the State’s confidential informant testified that he had served prison time with the Defendant; (2) the Defendant’s right to a fair trial was violated when the State failed to preserve video evidence of statements made by the confidential informant in violation of State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (3) the trial court erred when it failed to exclude the State’s late-disclosed witness from testifying; and (4) the evidence was insufficient to support his convictions.  Upon review, we affirm the judgments of the trial court.

Maury County Court of Criminal Appeals 03/30/16
Paul Williams EL v. Sheriff Andy Dickson, Carroll County
W2015-01614-CCA-R3-HC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Charles C. McGinley

The Petitioner, Paul Williams el, filed a Petition for Writ of Habeas Corpus Relief, challenging his conviction for a second or subsequent offense of driving on a cancelled, suspended, or revoked license. The habeas court summarily dismissed the Petition. On appeal, we conclude that the Petition failed to meet the procedural requirements of Tennessee Code Annotated section 29-21-107. Additionally, the Petitioner's claim is based on a complete misreading of Tennessee Code Annotated section 55-50-504 and is without merit. The judgment of the habeas court is affirmed.

Carroll County Court of Criminal Appeals 03/30/16
Victor Clark v. State of Tennessee
W2015-00186-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

Victor Clark (“the Petitioner”) was indicted for two counts of attempted second-degree murder, two counts of aggravated assault, one count of reckless endangerment, and one count of employing a firearm during the commission of a dangerous offense. After a jury trial, the Petitioner was acquitted of both counts of attempted second-degree murder but convicted of all other charges. In this post-conviction proceeding, the Petitioner contends that he received ineffective assistance of counsel. The post-conviction court denied relief. Upon review of the record, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 03/30/16
Wesley Dawone Coleman v. State of Tennessee
W2015-00369-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jeff Parham

The Petitioner, Wesley Dawone Coleman, appeals from the denial of post-conviction relief by the Circuit Court for Obion County. He was convicted of aggravated burglary, theft over $500, and evading arrest, and received an effective sentence of ten years in the Tennessee Department of Correction. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that the cumulative effect of counsel’s errors denied his constitutional right to a fair trial. Upon our review, we affirm the judgment of the post-conviction court.

Obion County Court of Criminal Appeals 03/30/16
State of Tennessee v. Marico Means
W2015-00989-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Paula L. Skahan

Defendant, Marico Means, appeals his conviction of aggravated robbery and his sentence of eight years and six months at eighty-five percent. He argues that the trial court erred by denying his motion to suppress evidence of the victim's pre-trial identifications and that the trial court erred by considering improper evidence during sentencing. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 03/29/16
State of Tennessee v. Dwayne Moore
W2014-02432-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carolyn Wade Blackett

The defendant, Dwayne Moore, was convicted by a Shelby County jury of second degree murder and sentenced by the trial court as a Range I offender to twenty-two years at 100% in the Department of Correction. He raises two issues on appeal: (1) whether the trial court committed reversible error by allowing a police officer to offer improper opinion testimony about the appearance of a gun in a photograph and by admitting the photograph and the gun without a proper chain of custody; and (2) whether the evidence is sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 03/29/16
In re Chris Highers Bail Bonds, et al.
M2015-00801-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David M. Bragg

Appellants are ten bail bonding companies that each posted a portion of a defendant’s $1 million bond.  After the defendant failed to appear for trial and absconded from the state, the bond was forfeited.  When the defendant was apprehended almost two years later, some of the Appellants filed separate petitions for exoneration of the forfeited bond.  After a hearing, the trial court denied the petitions.  Upon our review of the record, it appears that three of the Appellants—Neal Watson Bonding, Lucky’s Bonding, and Anytime Bail Bonds—never filed petitions with the trial court; therefore, we dismiss their appeals.  As to the remaining seven Appellants, we affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 03/29/16
State of Tennessee v. Jose Lemanuel Hall, Jr.
M2015-00018-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Defendant, Jose Lemanuel Hall, Jr., was convicted of first degree murder and sentenced to life in prison.  On appeal, he argues (1) that the evidence was insufficient to support his conviction; (2) that the trial court erred in admitting evidence regarding his gang affiliation and gang rank; (3) that the trial court erred in admitting photographs; and (4) that the trial court erred by ordering consecutive sentencing.  We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/29/16
State of Tennessee v. Angela Faye Daniel
M2015-01073-CCA-R9-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Deanna Bell Johnson

In this interlocutory appeal, the appellant, State of Tennessee, appeals the Williamson County Circuit Court’s order granting a motion to suppress evidence filed by the appellee, Angela Faye Daniel.  The appellant claims that the trial court erroneously concluded that a police officer’s failure to deliver a copy of a search warrant to the appellee was not a “clerical error” under Tennessee Code Annotated section 40-6-108, the Exclusionary Rule Reform Act.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the order of the trial court.

Williamson County Court of Criminal Appeals 03/29/16
State of Tennessee v. Karloss Thirkill
W2015-00456-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Glenn Wright

Following a jury trial, the Defendant, Karloss Thirkill, was convicted of aggravated robbery, a Class B felony. See Tenn. Code Ann. § 39-13-402. The trial court subsequently imposed a ten-year sentence for the conviction. On appeal, the Defendant contends (1) that the trial court erred in admitting a video recording of the crime when the witness “did not have personal knowledge [of the contents of the video] nor was involved in the chain of custody”; and (2) that the evidence was insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 03/29/16
State of Tennessee v. Anthony Bailey
W2015-00784-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Glenn Wright

The defendant, Anthony Bailey, was convicted by a Shelby County Criminal Court jury of robbery, a Class C felony, and assault, a Class A misdemeanor. He was sentenced by the trial court as a Range I, standard offender to concurrent terms of five years in the workhouse for the robbery conviction and eleven months, twenty-nine days for the assault conviction. On appeal, he argues that the evidence is insufficient to sustain his robbery conviction, the trial court erred by denying his motion to suppress the victim's pretrial and in-court identifications, and the trial court erred by enhancing his sentence and by denying his request for probation. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 03/29/16
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