Court of Criminal Appeals Opinions

Format: 02/24/2018
Format: 02/24/2018
State of Tennessee v. Antonio Durham
W2016-02194-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James M. Lammey

A Shelby County Criminal Court Jury convicted the Appellant, Antonio Durham, of attempted rape, a Class C felony, and sexual battery, a Class E felony. After a sentencing hearing, the trial court merged the convictions and sentenced the Appellant to ten years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the convictions and that the trial court erred by failing to instruct the jury on Class B misdemeanor assault as a lesser-included offense of attempted rape. The State claims that the trial court erred by merging the convictions. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court committed plain error by merging the Appellant’s convictions and remand the case to the trial court for resentencing.

Shelby County Court of Criminal Appeals 12/14/17
State of Tennessee v. Michael Lee Hooper
E2016-02538-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David R. Duggan

The Defendant, Michael Lee Hooper, stipulated that he violated the terms of his probation by being arrested for possession of a Schedule II substance with the intent to sell or deliver it and for maintaining a dwelling for controlled substance use or sales, for stopping payment of his court costs, and for testing positive for cocaine. The trial court found that the Defendant had violated the terms of his probation and ordered that he serve his sentence in confinement. On appeal, the Defendant contends that the trial court erred when it sentenced him to serve his sentence because this was his first violation in thirteen years of probation. After review, we affirm the trial court’s judgment.

Blount County Court of Criminal Appeals 12/13/17
Michael Barnes v. State of Tennessee
E2017-00048-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lisa Rice

The Petitioner, Michael Barnes, appeals the denial of post-conviction relief from his 2013 Johnson County Criminal Court conviction of possession of contraband in a penal institution, for which he received a sentence of fifteen years. In this appeal, the Petitioner contends that he was denied the effective assistance of counsel because trial counsel failed to: (1) “object with regard to the chain of custody”; (2) “object with regard to the entry of exhibits into evidence”; (3) explain to the Petitioner the maximum sentence that he faced; and (4) address the issue of “selective prosecution.” Discerning no error, we affirm the denial of post-conviction relief.

Johnson County Court of Criminal Appeals 12/13/17
State of Tennessee v. Michael V. Morris
M2017-01229-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Monte Watkins

The Defendant, Michael V. Morris, appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Defendant alleges that he was incorrectly sentenced as a career offender. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Davidson County Court of Criminal Appeals 12/13/17
State of Tennessee v. Ray Armstrong
W2016-01996-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lee V. Coffee

A Shelby County Criminal Court Jury convicted the Appellant, Ray Armstrong, of four counts of possessing one-half gram or more of cocaine with intent to sell or deliver within a drug-free school zone, one count of destroying evidence, and one count of resisting arrest. The trial court merged the convictions of possessing cocaine, and the Appellant received an effective sentence of fifty and one-half years in confinement. On appeal, he contends that the evidence is insufficient to support the convictions, that the trial court erred by denying his motion to suppress evidence, that the trial court erred by allowing a witness to give testimony that was hearsay and violated Tennessee Rule of Evidence 404(b), that the trial court erred by refusing to instruct the jury on criminal attempt as a lesser-included offense of destroying evidence, that the State improperly mentioned a missing witness during closing argument, and that his four convictions and sentences for possessing cocaine violate double jeopardy. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 12/12/17
Randy Wayne Johnson v. State of Tennessee
E2017-00075-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lisa N. Rice

The petitioner, Randy Wayne Johnson, appeals the denial of post-conviction relief from his 2014 Carter County Criminal Court convictions of especially aggravated kidnapping and assault, for which he received a sentence of 25 years. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

Carter County Court of Criminal Appeals 12/12/17
State of Tennessee v. Dacey Pack
E2017-00287-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Jeffery H. Wicks

In this delayed appeal, the defendant, Dacey Pack, contends that the trial court erred by denying his request for judicial diversion based on his 2008 Morgan County Criminal Court guilty-pleaded conviction of statutory rape. Because the defendant has failed to prepare an adequate record for our review, we must presume that the trial court’s ruling was correct. We therefore affirm the trial court’s denial of judicial diversion.

Morgan County Court of Criminal Appeals 12/12/17
Robert Anthony Fusco v. State of Tennessee
M2016-00825-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Robert Anthony Fusco, filed a pro se petition for post-conviction relief, alleging various instances of ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. On appeal, the Petitioner contends that the post-conviction court erred by limiting his questioning of two police officers at the hearing. He also contends that his trial counsel was ineffective in a number of ways, including by failing to file motions to suppress, to ensure that the rule of sequestration was stringently enforced, to challenge the Petitioner’s convictions on double jeopardy grounds, to contest errors at the sentencing hearing, and to challenge acts of prosecutorial misconduct. Upon review, we affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 12/11/17
State of Tennessee v. Zachary Everett Davis - Concurring
M2016-01579-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Dee David Gay

I concur in the results reached by the majority but write separately to express my policy concerns regarding the Defendant’s sentence. With regard to the Defendant’s sentence of imprisonment for life, Judge Holloway, in the majority opinion, concludes that the Defendant’s sentence is constitutional because the United States Supreme Court’s precedents in Miller v. Alabama, 567 U.S. 460 (2012) and its progeny are not violated in that the Defendant did not receive a mandatory sentence of life without parole. I am compelled to agree that our statutory sentencing scheme for first degree murder does not violate the strict holdings of those cases. However, it is my fear that the reality of our sentencing provisions, when applied to juveniles, may run afoul the spirit of those opinions.

Sumner County Court of Criminal Appeals 12/11/17
State of Tennessee v. Zachary Everett Davis
M2016-01579-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Dee David Gay

When he was fifteen years old, the Defendant, Zachary Everett Davis, killed his mother by hitting her in the head with a sledgehammer numerous times and attempted to kill his brother by setting the family’s residence on fire. After determining that the Defendant was competent to stand trial, the juvenile court transferred the Defendant’s case to the Sumner County Criminal Court. The Sumner County Grand Jury indicted the Defendant on charges of first degree premeditated murder, attempted first degree premeditated murder, and aggravated arson. After a competency hearing, the trial court determined that the Defendant was competent to stand trial. After a suppression hearing, the trial court concluded that the Defendant knowingly and voluntarily waived his rights prior to an interview conducted by the Sumner County Sheriff’s Office. A Sumner County jury found the Defendant guilty as charged, and the trial court ordered the Defendant to serve a life sentence for his first degree murder conviction. After a sentencing hearing, the trial court ordered the Defendant to serve twenty years with a thirty percent release eligibility for attempted first degree murder and twenty years with a 100% release eligibility for aggravated arson; the trial court ordered the twenty-year sentences to run concurrently with each other but consecutively to the Defendant’s life sentence. On appeal, the Defendant argues that the trial court erred in: (1) denying the Defendant’s motions to be declared incompetent; (2) denying the Defendant’s motion to suppress his statement to the Sumner County Sheriff’s Office; (3) denying the Defendant’s motion for mistrial after the Defendant testified on direct and cross-examination that he did not commit the offense; and (4) sentencing the Defendant to a de facto sentence of life without parole in violation of the Eighth Amendment of the United States Constitution. After a thorough review of the record and applicable case law, we affirm.

Sumner County Court of Criminal Appeals 12/11/17
State of Tennessee v. Daniel Nesbit
W2016-00492-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge James M. Lammey

Defendant, Daniel Nesbit, was indicted for felony murder and attempted especially aggravated robbery for his role in the shooting death of the victim, Jernario Taylor. After a jury trial, Defendant was convicted as charged and sentenced to an effective sentence of life imprisonment. Defendant appeals, arguing that: (1) the trial court erred in granting the State a continuance over the objection of defense counsel; (2) the State failed to disclose exculpatory evidence; (3) the trial court erred by admitting a recording of a telephone call between the co-defendant and his girlfriend; (4) the trial court erred by failing to grant a mistrial; (5) the trial court erred by allowing the State to argue inconsistent theories; (6) the trial court erred by admitting evidence of Defendant’s arrest in Alabama; (7) the evidence was insufficient to support the convictions; (8) the trial court erred by failing to disclose a note received from the jury during deliberations; and (9) cumulative error necessitates a reversal of Defendant’s convictions. Having carefully reviewed the record before us and the briefs of the parties, we find no error and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 12/08/17
State of Tennessee v. Stephano Lee Weilacker
M2016-00546-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge William R. Goodman, III

Defendant, Stephano Lee Weilacker, was found guilty by a Montgomery County jury of especially aggravated kidnapping and aggravated robbery. He received an effective twenty-year sentence to be served consecutively to a previous sentence. In this, Defendant’s third direct appeal, he argues: that the evidence was insufficient; that the trial court permitted a reversible constructive amendment to the indictment; that the trial court erred by failing to instruct the jury as provided by White; that the trial court erred by denying his motion to suppress evidence found in his vehicle; that the State committed prosecutorial misconduct during closing arguments, and that consecutive sentencing was improper. We find that all of Defendant’s issues, except for the issues concerning the amendment to the indictment and the jury instruction, have been previously addressed by this court in Defendant’s two prior appeals and cannot be reconsidered. We find that the issue concerning the indictment is waived and that the trial court was not required to instruct the jury in accordance with White. Therefore, Defendant’s convictions are affirmed.

Montgomery County Court of Criminal Appeals 12/08/17
State of Tennessee v. Dale Albert Greca
E2017-00570-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge E. Shayne Sexton

A Campbell County Criminal Court jury convicted the defendant, Dale Albert Greca, of especially aggravated kidnapping, robbery, unlawfully carrying a firearm in a public place, and driving on a suspended license – second offense. As a result of his convictions, the defendant received an effective sentence of twenty-four years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to sustain his conviction for especially aggravated kidnapping. He argues the confinement and removal of the victim did not substantially interfere with the victim’s liberty and the confinement was simply incidental to the robbery. He also contends that the evidence is insufficient to support a finding that the kidnapping was accomplished with a deadly weapon because the jury found him guilty of the lesser-included offense of robbery rather than the indicted offense of aggravated robbery. Discerning no error, we affirm the judgments of the trial court.

Campbell County Court of Criminal Appeals 12/07/17
State of Tennessee v. Anthony J. Harris
E2016-01952-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Bobby R. McGee

Defendant, Anthony J. Harris, was convicted of two counts of facilitation of felony murder and one count of facilitation of attempted second degree murder. He received an effective sentence of twenty-two years. On appeal, Defendant argues that the evidence at trial was insufficient to support each of his convictions, that his due process and speedy trial rights were violated by the timing of the superseding indictment, that the trial court erred by not allowing Defendant’s expert witness to testify, that the State failed to properly preserve evidence, and that the State made improper remarks in their closing argument. After review, we hold that Defendant is not entitled to relief on any of his claims. The judgments of the trial court are affirmed.

Knox County Court of Criminal Appeals 12/07/17
State of Tennessee v. Lisa Kay Young
M2016-01149-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David A. Patterson

The Defendant, Lisa Kay Young, appeals as of right from her convictions for one count each of first degree premeditated murder, second degree murder, and aggravated assault. The Defendant contends (1) that the trial court erred by refusing to admit statements by Miranda Brown, one of the Defendant’s co-defendants; and (2) that this court should vacate or merge the Defendant’s convictions for second degree murder and aggravated assault with her conviction for first degree premeditated murder. Following our review, we conclude that the trial court erred in preventing the Defendant from admitting Ms. Brown’s statements as evidence and that this error was not harmless. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial. With respect to the Defendant’s remaining issue, we will address that issue so as not to pretermit it. See State v. Parris, 236 S.W.3d 173, 189 (Tenn. Crim. App. 2007) (following a similar procedure).

White County Court of Criminal Appeals 12/07/17
State of Tennessee v. Michelle D. Shoemaker
M2017-00026-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge John D. Wootten, Jr.

The defendant, Michelle D. Shoemaker, appeals from the entry of an amended judgment granting her 370 days of pretrial jail credit. The basis for the defendant’s appeal is her allegation that the trial court erred in calculating her jail credits and that she is actually entitled to 520 days of pretrial credit. Following our review, we conclude that the defendant failed to state a colorable claim and affirm the judgment of the trial court.

Jackson County Court of Criminal Appeals 12/07/17
State of Tennessee v. Jesse Charles Gerg
M2016-00601-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Jesse Charles Gerg, was sentenced to eight years in confinement by the trial court for his Class D felony conviction for child abuse. On appeal, the defendant argues the trial court improperly enhanced his sentence as a Range II offender from the minimum of four years to the maximum of eight years in violation of the purposes and principles of the Tennessee Criminal Sentencing Reform Act. The defendant also argues the trial court failed to properly consider his request for alternative sentencing. Following our review of the briefs, the record, and the applicable law, we affirm the eight-year sentence to be served in confinement.

Davidson County Court of Criminal Appeals 12/07/17
State of Tennessee v. Calvin Watkins
W2016-01808-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Lee V. Coffee

The pro se defendant, Calvin Watkins, appeals the revocation of his judicial diversion by the Shelby County Criminal Court. The defendant argues the trial court improperly revoked his diversion based upon an unindicted arrest. After our review, we affirm the trial court’s revocation pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 12/06/17
State of Tennessee v. Brandon Vance
W2016-01015-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Paula L. Skahan

Defendant, Brandon Vance, was convicted of first degree felony murder by a Shelby County jury. He received a life sentence. On appeal, Defendant argues that the evidence was insufficient to support his conviction. After a thorough review of the record, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/05/17
Ricco Williams v. State of Tennessee
W2016-02602-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Joe H. Walker, III

Ricco Williams, the Petitioner, was convicted of various charges, and on appeal, this court and the Tennessee Supreme Court affirmed three convictions of especially aggravated kidnapping of three minor victims accomplished with a deadly weapon, aggravated burglary, aggravated robbery accomplished with a deadly weapon, and aggravated assault. The Petitioner timely filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner asserts that trial counsel’s performance was deficient because he failed to: (1) request fingerprint testing on several items of evidence; (2) file a motion to suppress the introduction of these items at trial; (3) request a mistrial when two potential jurors stated during voir dire that they recognized the Petitioner from his prior incarceration; (4) allow the Petitioner to negotiate directly with the State regarding plea offers; and (5) move to dismiss the indictment "because one count contained an inaccurate conviction.” The Petitioner asserts that he was prejudiced by these deficiencies because “[t]he trial evidence circumstantially tied the [Petitioner] to the crime” and “anything trial counsel could do to refute the circumstantial evidence would be crucial for the jury to consider.” The Petitioner additionally asserts that, had he “prevailed in a Motion to Suppress or Motion to Dismiss the Indictment[,] he would have prevailed at trial.” After a thorough review of the facts and applicable case law, we affirm.

Lauderdale County Court of Criminal Appeals 12/05/17
Ronald Curry v. State of Tennessee
W2016-02158-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Chris Craft

The petitioner, Ronald Curry, pled guilty to rape of a child for which he received a sentence of twenty-five years. He filed the instant post-conviction petition, and following an evidentiary hearing, the post-conviction court denied relief. On appeal, the petitioner contends that trial counsel was ineffective for failing to adequately evaluate the mental health issues of the petitioner and for failing to secure and present evidence of his innocence. The petitioner also claims trial counsel coerced him into pleading guilty. Upon review of the record and the applicable law, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 12/05/17
State of Tennessee v. Coynick Boswell
W2016-02591-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

Following a jury trial, the defendant, Coynick Boswell, was convicted of the first-degree murder of the victim, Kadrian Woods. On appeal the defendant challenges the sufficiency of the evidence to support his conviction for premeditated murder and his request for and instruction on self-defense. Having thoroughly reviewed the record and although the evidence is sufficient to sustain the jury’s verdict, we conclude that the trial court erred when it failed to instruct the jury as to self-defense. Accordingly, we reverse the judgment of the trial court and remand the matter for a new trial.

Shelby County Court of Criminal Appeals 12/05/17
Monterious Bell v. State of Tennessee
W2016-01709-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Monterious Bell, appeals the dismissal of his post-conviction petition, arguing the post-conviction court erred in dismissing the petition as time-barred. Following our review, we conclude the petition was timely filed. The judgment of the post-conviction court is reversed and the matter remanded for consideration of the postconviction petition in accord with the Post-Conviction Procedure Act.

Shelby County Court of Criminal Appeals 12/05/17
in Re Estate of Eunice Katherine Sanders McCollum
M2015-02169-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael R. Meise

This is a probate case, and the parties are Decedent’s children. Appellant son filed a claim against Appellee daughter, alleging that she mishandled the Decedent’s financial affairs, both during Decedent’s life and after her death in 2007. In 2009, the trial court appointed a special master, who conducted two evidentiary hearings and filed two reports, which essentially exonerated Appellee from any wrong-doing. Two years later, the trial court ordered the Administrator of the estate to pay certain fees and file certain applications so that the estate could be closed, and dismissed all pending motions filed by the parties. Appellant filed a motion to alter or amend the judgment of the trial court that was denied. Concluding that the Appellant did not have standing to bring a claim against Appellee, we affirm and remand.  

Dickson County Court of Criminal Appeals 12/05/17
State of Tennessee v. Buford Cornell Williams
M2017-00507-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Monte Watkins

Defendant, Buford Cornell Williams, was convicted of selling 0.5 grams or more of cocaine. He received a fourteen-year sentence. On appeal, he argues that the evidence was insufficient to support his conviction. After review, we find that the evidence was sufficient to support his conviction. The judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 12/05/17