Court of Criminal Appeals Opinions

Format: 12/14/2017
Format: 12/14/2017
John Moffitt v. State of Tennessee
W2017-02487-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

A jury convicted the Petitioner, John Moffitt, of reckless aggravated assault, and the trial court sentenced him to four years of incarceration. The Petitioner appealed, and this court affirmed his conviction and sentence. State v. John Moffitt, No. W2014-02388-CCA-R3-CD, 2016 WL 369379, at *1 (Tenn. Crim. App., at Jackson, Jan. 29, 2016), perm. app. denied (Tenn. June 24, 2016). The Petitioner filed a petition for postconviction relief, alleging that he had received the ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition. On appeal, we affirm the post-conviction court’s judgment.

Henderson County Court of Criminal Appeals 09/18/17
State of Tennessee v. Henry Lee Jones
W2015-02210-CCA-R3-DD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge W. Mark Ward

Defendant, Henry Lee Jones, was convicted of two counts of premeditated first degree murder and two counts of felony murder for his role in the 2003 murders of two Shelby County citizens. The jury sentenced Defendant to death for each murder. Defendant now appeals from these convictions and sentences. Defendant argues that the trial court erred by allowing Defendant to represent himself and committed other errors with regard to the provision of elbow counsel; the trial court erred by declaring a witness unavailable and allowing testimony from that witness regarding a prior bad act; the trial court erred by admitting photographs of the victims’ bodies and wounds; the State utilized improper closing argument; the evidence was insufficient to support the convictions; the trial court erred in denying Defendant a mitigation expert or investigator in preparation for sentencing; and the death sentence is arbitrary and disproportionate. After a thorough review of the record and the applicable law, we affirm Defendant’s convictions and sentences of death.

Shelby County Court of Criminal Appeals 09/18/17
State of Tennessee v. Kenneth Darrin Fisher
E2016-01333-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Donald R. Elledge

The Defendant, Kenneth Darrin Fisher, was convicted by an Anderson County Circuit Court jury of attempted first degree murder, a Class A felony, for which he is serving an eighteen-year sentence as a Range I, standard offender. See T.C.A. §§ 39-12-101 (2014) (criminal attempt), 39-13-202 (2014) (first degree murder). On appeal, he contends that (1) the indictment is deficient, (2) the evidence is insufficient because the State failed to prove the offense occurred before the return of the indictment, (3) the trial court erred in failing to require the State to provide an election of the offense, and (4) the trial court erred in admitting testimony of a law enforcement officer regarding what the officer thought the Defendant would have done if the Defendant had not been stopped by the police. We affirm the judgment of the trial court.

Anderson County Court of Criminal Appeals 09/15/17
Jerome Johnson v. State of Tennessee
W2016-02349-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Lee V. Coffee

Petitioner, Jerome Johnson, was convicted of reckless endangerment, aggravated assault, and solicitation of the filing of a false police report. His convictions and effective sentence of fifteen years, eleven months, and twenty-nine days were affirmed on direct appeal. See State v. Jerome Johnson, No. W2012-01754-CCA-R3-CD, 2013 WL 5488522, at *1 (Tenn. Crim. App. Sept. 30, 2013), perm. app. denied (Tenn. Feb. 11, 2014). Petitioner subsequently sought post-conviction relief for ineffective assistance of both trial counsel and appellate counsel. The post-conviction court denied relief after a hearing. On appeal, we hold that Petitioner failed to show that counsels’ actions were deficient and that Petitioner was prejudiced thereby. Accordingly, the judgment of the
post-conviction court is affirmed.

Shelby County Court of Criminal Appeals 09/15/17
State of Tennessee v. Rico Carter Whisnet
W2016-02173-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Weber McCraw

The Defendant, Rico Carter Whisnet, was convicted by a Hardeman County Circuit Court jury of delivery of less than 0.5 gram cocaine, a Class C felony, and delivery of 0.5 gram or more of cocaine, a Class B felony. See T.C.A. § 39-17-417 (2014). The trial court sentenced the Defendant as a Range II, multiple offender to concurrent terms of eight and sixteen years in confinement. On appeal, the Defendant contends that the trial court erred in its application of the mitigating and enhancement factors and by imposing more than the minimum sentence. We affirm the judgments of the trial court.

Hardeman County Court of Criminal Appeals 09/15/17
State of Tennessee v. Paul Buchanan
W2017-00160-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The Appellant, Paul Buchanan, was convicted of aggravated robbery, two counts of felon in possession of a firearm, and one count of convicted felon in possession of handgun. The trial court merged the convicted felon in possession of handgun and one of the felon in possession of a firearm convictions into the remaining felon in possession of a firearm conviction and sentenced the Appellant to thirty years for aggravated robbery and to ten years for convicted felon in possession of a firearm, to be served consecutively. 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.

Shelby County Court of Criminal Appeals 09/14/17
State of Tennessee v. Chad E. Henry
W2016-01439-CCA-R9-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Kyle Atkins

We granted this interlocutory appeal to review the trial court’s suppression of the results of a mandatory blood draw from the Defendant, Chad E. Henry, conducted pursuant to Tennessee Code Annotated section 55-10-406(d)(5) (Supp. 2014) (also referred to herein as the mandatory blood draw provision for individuals with a prior conviction for driving under the influence) of the implied consent statute. Henry was arrested and a mandatory blood draw was conducted without a warrant after his car struck the rear of another car. Henry was subsequently indicted by the Chester County Circuit Court for one count of driving under the influence (DUI), one count of third offense DUI, one count of violating the financial responsibility law, and one count of aggravated assault. Following his indictment, Henry moved to suppress the results from the mandatory blood draw, asserting that the warrantless blood test violated his constitutional rights to be free from unreasonable searches and seizures. After a hearing, the trial court granted the motion to suppress, holding that the blood draw was illegal because the officers failed to advise Henry, pursuant to Code section 55-10-406(c) (Supp. 2014), that his refusal to submit to the test would result in the suspension of his driver’s license. The State filed a motion for an interlocutory appeal challenging the suppression of the evidence, which the trial court granted, and this court granted the State’s application for a Rule 9 appeal. In this appeal, the State argues (1) Henry’s implied consent to blood testing, by virtue of Tennessee’s implied consent statute, operates as an exception to the warrant requirement, (2) the good-faith exception to the exclusionary rule, as outlined in State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016), applies in this case because the officers acted pursuant to the binding authority of State v. Humphreys, 70 S.W.3d 752 (Tenn. 2001), and the implied consent statute when they required Henry to submit to a warrantless blood test, and (3) motorists with prior DUI convictions, like Henry, have a reduced expectation of privacy under the Fourth Amendment when arrested for a subsequent DUI. Because nonexception to the warrant requirement justifies the warrantless blood draw in this case and because the good-faith exception does not apply, we affirm the trial court’s suppression of the evidence.

Chester County Court of Criminal Appeals 09/14/17
Billy Tate v. State of Tennessee
E2016-01554-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Don W. Poole
The Petitioner filed for post-conviction relief, arguing that he received ineffective
assistance of counsel. The post-conviction court denied relief. On appeal, the Petitioner
argues that trial counsel’s failure to discover evidence of the investigating detective’s
DUI arrest, subsequent reckless driving conviction, and internal affairs investigation to
use to impeach the detective’s reputation for honesty was deficient and prejudicial. After
a thorough review of the facts and applicable case law, we affirm the denial of post-conviction
relief.
Hamilton County Court of Criminal Appeals 09/13/17
State of Tennessee v. Jimmy Williams
W2016-00946-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County jury convicted the Defendant, Jimmy Williams, of aggravated assault. The trial court sentenced the Defendant as a career offender to fifteen years in prison. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction and that the trial court erred in sentencing him as a career offender. After review, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 09/13/17
State of Tennessee v. Anthony L. Moore
W2016-02601-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Donald H. Allen

The defendant, Anthony L. Moore, moved the trial court, pursuant to Tennessee Rule of Criminal Procedure 36, to correct a clerical error with regard to the reflection of pretrial jail credits on the judgment for his 2000 Madison County Criminal Court jury conviction of aggravated burglary. Discerning no error, we affirm.

Madison County Court of Criminal Appeals 09/13/17
Patrick L. Maliani v. State of Tennessee
M2017-00265-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.
The Petitioner, Patrick L. Maliani, appeals as of right from the Davidson County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance of trial counsel because trial counsel failed to raise a hearsay objection to a portion of a witness’ testimony. Discerning no error, we affirm the judgment of the post-conviction court.
 
Davidson County Court of Criminal Appeals 09/13/17
State of Tennessee v. David Brian Howard
M2016-02256-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge David L. Allen
The Defendant, David Brian Howard, was convicted by a jury of aggravated assault, a Class C felony, and received a three-year sentence, to be served on probation. The Defendant appeals, asserting that the evidence is insufficient to uphold the verdict due to perjured testimony; that the trial court improperly refused to function as thirteenth juror to overturn his conviction; that the trial court erred in not excusing a juror who made a statement during the trial regarding defense counsel’s questions to a witness; and that the trial court improperly admitted evidence during sentencing regarding an offense of which the Defendant was acquitted. After a thorough review of the record, we affirm judgment of the trial court.
 
Giles County Court of Criminal Appeals 09/13/17
Kwaku Aryel Okraku v. State of Tennessee
M2016-02545-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steve R. Dozier

Kwaku Aryel Okraku, the Petitioner, was convicted of two counts of aggravated child neglect and one count of reckless homicide. He received an effective sentence of sixty years. Trial counsel did not file a timely motion for new trial or notice of appeal, and after filing a petition for post-conviction relief, the Petitioner was granted a delayed direct appeal. On direct appeal, this court merged the aggravated child neglect convictions but otherwise affirmed the Petitioner’s convictions. The Petitioner then renewed his petition for post-conviction relief and alleged that trial counsel’s performance was deficient because he “neglected to use the strongest piece of impeachment evidence available to him—evidence that could have discredited the State’s theory that the cocaine ingested by the victim belonged to [the Petitioner].” 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 09/12/17
Anthony D. Washington v. Randy Lee, Warden
E2017-00497-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Lisa Rice

Pro se petitioner, Anthony D. Washington, appeals the summary dismissal of his petition for writ of habeas corpus by the Johnson County Criminal Court. In this appeal, the Petitioner makes several claims, all of which are rooted in the duplicitous nature of his indictment. The State asserts that the Petitioner failed to show that his judgment was void. Upon review, we affirm the judgment of the habeas corpus court.

Johnson County Court of Criminal Appeals 09/12/17
State of Tennessee v. Richard W. Shelton
M2017-00240-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

Richard W. Shelton, the Defendant, was charged with one count of sale and one count of delivery of a Schedule II controlled substance. A Marshall County jury found the Defendant guilty as charged, and the trial court sentenced the Defendant to fifteen years with release eligibility after service of forty-five percent of the sentence in the Department of Correction. On appeal, the Defendant argues that there was insufficient evidence for a rational juror to have found him guilty of the offenses beyond a reasonable doubt and that his sentence is excessive and contrary to law. After a thorough review of the facts and applicable case law, we affirm.

Marshall County Court of Criminal Appeals 09/11/17
State of Tennessee v. Billy Joe Hodge
W2016-01009-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Kyle Atkins

Defendant, Billy Joe Hodge, was indicted by the Madison County Grand Jury for one count of possession of 0.5 grams or more of methamphetamine with intent to sell; possession of 0.5 grams or more of methamphetamine with intent to deliver; possession of marijuana; and possession of drug paraphernalia. Defendant filed a pretrial motion to suppress the evidence seized during a search of his home and person. Following a hearing, the trial court denied Defendant’s motion, and Defendant entered guilty pleas to all four counts. The possession of methamphetamine with intent to sell and the possession of methamphetamine with intent to deliver were “merged” by the trial court, but the merger was not done in compliance with State v. Berry, 503 S.W.3d 360 (Tenn. 2015). Defendant reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the search of his home by law enforcement was lawful. After review, we conclude that exigent circumstances did not justify the warrantless search of Defendant’s home. However, we conclude that there was probable cause for the issuance of a subsequent search warrant. Accordingly, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 09/08/17
Larry McNutt v. State of Tennessee
W2016-01086-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Glenn Ivy Wright

Petitioner, Larry McNutt, appeals the post-conviction court’s denial of relief from his convictions for reckless endangerment and aggravated assault. On appeal, Petitioner argues that he received ineffective assistance of counsel. After a thorough review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 09/08/17
Everett Russ v. State of Tennessee
W2017-00133-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris Craft

The petitioner, Everett Russ, appeals the denial of his petition for post-conviction relief from his 2012 Shelby County Criminal Court jury convictions of two counts of aggravated sexual battery. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 09/08/17
State of Tennessee v. Kevin Watkins, III
W2016-02481-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

The Defendant, Kevin Watkins, III, pleaded guilty to two counts of aggravated burglary and agreed to allow the trial court to determine the length and manner of service of his sentence. The trial court subsequently ordered the Defendant to serve concurrent six-year and three-year sentences in confinement. On appeal, the Defendant contends that the trial court erred when it applied two enhancement factors to his sentence and when it denied him alternative sentencing. After review, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 09/08/17
Brooke Whitaker v. Trinity Minter, Warden
W2017-00127-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Joseph Walker

Petitioner, Brooke Whitaker, appeals the Lauderdale County Circuit Court’s dismissal of her petition for writ of habeas corpus. Because we determine that Petitioner has failed to file a timely notice of appeal or provide a reason as to why the timely filing of the notice of appeal should be waived, the appeal is dismissed.

Lauderdale County Court of Criminal Appeals 09/08/17
State of Tennessee v. Kevin Lynn Morris
W2017-00126-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Kyle Atkins

The Defendant, Kevin Lynn Morris, was convicted by a Chester County jury of aggravated burglary, theft of property valued at $500 or less, vandalism, and evading arrest. His sole issue on appeal is that the trial court erred by denying his motion for new trial based on newly discovered evidence. Upon review, we affirm the judgment of the trial court.

Chester County Court of Criminal Appeals 09/08/17
State of Tennessee v. Marcus Jermaine Brooks
W2016-02071-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County Circuit Court Jury convicted the Appellant, Marcus Jermaine Brooks, of aggravated assault by strangulation, a Class C felony, and the trial court sentenced him as a Range II, multiple offender to eight years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 09/08/17
Jeffrey King v. State of Tennessee
M2016-02166-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Dee David Gay

The petitioner, Jeffrey King, pleaded guilty to multiple drug and money laundering crimes, and the trial court sentenced him to forty years of incarceration to be served at 100%. The petitioner attempted to reserve certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether wiretaps used in the investigation of the crime were lawful. This Court determined that the petitioner was not entitled to relief on the basis of the certified questions and affirmed the judgments on appeal. State v. King, 437 S.W.3d 856, 889 (Tenn. Crim. App. 2013). In 2015, the petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel and, after a hearing, the post-conviction court denied relief. After review, we affirm the post-conviction court’s judgment.

Sumner County Court of Criminal Appeals 09/08/17
Joseph Anthony Saitta, Jr. v. State of Tennessee
M2017-00081-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Larry B. Stanley, Jr.

The petitioner, Joseph Anthony Saitta, Jr., appeals the denial of post-conviction relief from his Warren County Circuit Court conviction for rape of a child. The petitioner alleges he received ineffective assistance of counsel and that the cumulative effect of trial counsel’s errors resulted in the denial of a fair trial. Discerning no error, we affirm the judgment of the post-conviction court.

Warren County Court of Criminal Appeals 09/08/17
State of Tennessee v. Robin Kathern Burton
E2016-01597-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Alex E. Pearson

The Defendant, Robin Kathern Burton, was indicted by a Hawkins County grand jury of one count of possession of a controlled substance with the intent to deliver and received a sentence of four years, with six months to be served in confinement. In this appeal as of right, the Defendant argues that the trial court abused its discretion in ordering her to serve a portion of her sentence in confinement. Upon review, we affirm the judgment of the trial court.

Hawkins County Court of Criminal Appeals 09/07/17