Court of Criminal Appeals Opinions

Format: 11/27/2014
Format: 11/27/2014
Lonnie Lanorris Holland, Jr. v. State of Tennessee
M2013-00124-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl Blackburn

The petitioner, Lonnie Lanorris Holland, Jr., appeals the Davidson County Criminal Court’s denial of post-conviction relief from his 2012 guilty-pleaded conviction of second degree murder.  In the petition for post-conviction relief, the petitioner claimed that his guilty plea was unknowing or involuntary and stemmed from the ineffective assistance of his counsel.  Because the record supports the post-conviction court’s denial of relief, we affirm its order.

Davidson County Court of Criminal Appeals 10/03/14
State of Tennessee v. Andrea Kelly Jones
M2013-02720-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David Patterson

The defendant, Andrea Kelly Jones, appeals her Class D felony, guilty-pleaded convictions of two counts of vehicular assault entered by the Dekalb County Criminal Court.  The trial court ordered that the agreed four-year sentence be served in the Tennessee Department of Correction.  On appeal, the defendant challenges the trial court’s denial of a sentencing alternative to incarceration.  We affirm the manner of service of the sentences imposed by the trial court.

DeKalb County Court of Criminal Appeals 10/03/14
State of Tennessee v. Concetta Long aka Concetta Walton
M2014-00565-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David Bragg

The defendant appeals the order of the Rutherford County Circuit Court revoking her probation and ordering her to serve the balance of her sentence in confinement.  In this appeal, she argues that the trial court erred by ordering her to serve the balance of her sentence.  Discerning no error, we affirm.

Rutherford County Court of Criminal Appeals 10/03/14
State of Tennessee v. Gregory Lamont Hall
M2013-02841-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mark Fishburn

The Defendant, Gregory Lamont Hall, was indicted for one count of manufacturing .5 grams or more of cocaine within 1,000 feet of a school, a Class B felony; one count of possession with intent to sell 26 grams or more of cocaine within 1,000 feet of a school, a Class B felony; one count of possession of a firearm with the intent to go armed during the commission of a dangerous felony, a Class D felony; and tampering with evidence, a Class C felony.  See Tenn. Code Ann. §§ 39-16-503, -17-417, -17-1324(a).  The Defendant filed a suppression motion which the trial court denied.  The Defendant subsequently entered into a plea agreement with the State and reserved a certified question of law for appellate review pursuant to Tennessee Rule of Criminal Procedure 37(b)(2).  The Defendant pled guilty to one count of possession with intent to sell 26 grams or more of cocaine within 1,000 feet of a school and received a ten-year sentence to be served consecutively to a prior sentence.  The remaining charges were dismissed.  In this appeal, the Defendant contends that there was not sufficient probable cause to justify the issuance of a warrant to search the residence in question.  Following our review, we reverse, vacate the judgment of the trial court, and dismiss the charge.

Davidson County Court of Criminal Appeals 10/03/14
State of Tennessee v. Allen Dale Spicer
W2013-01446-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Weber McCraw

The defendant, Allen Dale Spicer, was convicted by a Fayette County Circuit Court jury of aggravated assault with serious bodily injury, a Class C felony. See Tenn. Code Ann. § 39-13-102(a)(1)(A) (2010). The trial court sentenced the defendant as a Range II, multiple offender to ten years’ confinement and ordered the sentence be served consecutively to the sentence in another case. On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2) his sentence is excessive. We affirm the judgment of the trial court.

Fayette County Court of Criminal Appeals 10/02/14
State of Tennessee v. Roderick Jermaine McAlpin
E2013-02267-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steven Sword

Defendant, Roderick Jermaine McAlpin, was indicted by the Knox County Grand Jury for possession with intent to sell more than .5 grams of cocaine within 1,000 feet of a public school; possession with intent to deliver more than .5 grams of cocaine within 1,000 feet of a public school; possession with intent to sell more than .5 grams of cocaine within 1,000 feet of a child care agency; possession with intent to deliver more than .5 grams of cocaine within 1,000 feet of a child care agency; criminal trespass, and public intoxication. Due to an error in the indictment, the trial court dismissed the public intoxication charge at the State’s request. Defendant was convicted by a jury of the remaining offenses. The four felony drug convictions were merged into one Class A felony conviction of possession with intent to sell more than .5 grams of cocaine within 1,000 feet of a public school. The trial court sentenced Defendant to serve 16 years’ incarceration for this conviction and 30 days, concurrently, for the conviction of criminal trespass. On appeal, Defendant contends that the trial court erred by denying his motion to suppress the crack cocaine, and that the evidence was insufficient to support his convictions. Finding no error, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 10/02/14
James David Shell v. State of Tennessee
M2014-00381-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Petitioner, James David Shell, pled guilty to two counts of possession with intent to sell or deliver a Schedule II controlled substance and one count of driving under the influence.  During plea negotiations, Petitioner was offered two alternate sentences by the State: either one year to serve with ten years of probation or seven years to serve with no probation.  After consulting with his attorney, Petitioner chose the seven-year sentence.  Subsequently, Petitioner filed a petition for post-conviction relief, alleging that his guilty plea was not knowing and voluntary because he was under the influence of several prescribed medications at the time he pled.  He also claimed that he received ineffective assistance of counsel.  After a hearing, the post-conviction court denied relief, finding that Petitioner failed to prove his claims by clear and convincing evidence.  Petitioner appealed.  Upon thorough review of the record, we affirm the decision of the post-conviction court.

Davidson County Court of Criminal Appeals 10/02/14
Willie Douglas Johnson v. State of Tennessee
E2013-02826-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Mary Beth Leibowitz

The Petitioner, Willie Douglas Johnson, appeals the post-conviction court’s denial of post-conviction relief from his convictions for attempted second degree murder and unlawful possession of a weapon. On appeal, the Petitioner argues that he received ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 09/30/14
State of Tennessee v. Victor James
W2013-02643-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the Defendant, Victor James, of one count of driving on a revoked license. The Defendant also pleaded guilty to an additional count of driving on a revoked license, prior offender, and the trial court sentenced him to eleven months and twenty-nine days in jail. On appeal, the Defendant contends that the evidence presented is insufficient to support his conviction. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgment.

Madison County Court of Criminal Appeals 09/30/14
State of Tennessee v. Pamela Taylor
W2012-02535-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Otis Higgs Jr.

The Defendant, Pamela Taylor, was indicted for the first degree premeditated murder of her husband, Michael Taylor. Following a jury trial, she was convicted of second degree murder. The trial court sentenced her as a Range I, violent offender to twenty-one years in the Tennessee Department of Correction. On appeal, the Defendant argues: (1) the trial court erred in declining to suppress her statement to police; (2) the trial court erred in abbreviating voir dire and jury selection, which prevented her from properly questioning prospective jurors and kept her from invoking her last two peremptory challenges; (3) the ex parte communication between two senior attorneys with the district attorney’s office and the trial judge created an appearance of impropriety; (4) the successor judge erred in finding that the presiding judge had satisfied her duty as the thirteenth juror; (5) the trial court erred in admitting opinion testimony requiring specialized and/or expert knowledge; (6) the trial court erred in admitting evidence of her character and her prior bad acts; (7) the State committed pervasive prosecutorial misconduct; (8) the trial court erred in excluding evidence of the victim’s violence, anger, and aggression, which were offered as corroborative evidence that the victim was the first aggressor; (9) the evidence was insufficient to sustain her conviction for second degree murder; and (10) the trial court erred in imposing an excessive sentence. Upon review, the judgment of the trial court is affirmed.

Shelby County Court of Criminal Appeals 09/30/14
State of Tennessee v. Curtis Keller
W2012-01457-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris Craft

The defendant, Curtis Keller, was convicted of three counts of aggravated robbery, three counts of especially aggravated kidnapping, four counts of attempted aggravated robbery, four counts of aggravated assault, one count of aggravated burglary, and one count of intentionally evading arrest in a motor vehicle. For these convictions, he was given an effective sentence of three hundred years. The defendant filed a direct appeal with this court raising multiple issues. This court concluded that the defendant’s claims lacked merit and affirmed the judgments of the trial court, including the convictions for especially aggravated kidnapping. Thereafter, the defendant filed an application for permission to appeal with the Tennessee Supreme Court. The application was granted in part, and the case was remanded to this court to be reconsidered in light of State v. White, 362 S.W.3d 559 (Tenn. 2012) and State v. Cecil, 409 S.W.3d 599 (Tenn. 2013). Upon remand, we conclude that, contrary to the asserted argument, the White jury instruction was given to the jury. Thus, we are limited to a simple sufficiency of the evidence review, the same review we conducted during the direct appeal. Having already concluded that the evidence was sufficient, we again affirm the judgments of conviction.

Shelby County Court of Criminal Appeals 09/29/14
State of Tennessee v. James William Tawater
M2013-02126-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Michael R. Jones

Defendant, James William Tawater, was indicted for one count of Class D felony theft of property of $1,000.00 or more in value.  A jury found him guilty as charged.  The trial court imposed a sentence of six years as a Range II multiple offender.  The manner of service of the sentence was ordered to be an alternative sentence of probation, served by split confinement pursuant to Tennessee Code Annotated section 40-35-306, with one year to be served in the county jail followed by five years of probation under the supervision of Community Corrections.  Defendant presents three issues in his appeal: (1) the evidence was insufficient to support the conviction; (2) the trial court abused its discretion by imposing the sentence ordered; and (3) the trial court abused its discretion when it determined the amount of restitution owed by Defendant and by failing to ascertain Defendant’s ability to pay restitution.  We affirm the conviction and the length and manner of service of the sentence.  However, we reverse the restitution portion of the sentence and remand for a new hearing regarding restitution.

Robertson County Court of Criminal Appeals 09/29/14
Melissa L. Grayson v. State of Tennessee
M2013-02842-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Melissa L. Grayson, appeals as of right from the Davidson County Criminal Court’s dismissal of her petition for post-conviction relief.  The Petitioner contends that her trial counsel was ineffective (1) for failing to effectively communicate with her and prepare her for trial and (2) for failing to call several witnesses “that would have been beneficial” to her defense.  Following our review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 09/26/14
Bruce Rishton v. State of Tennessee
M2013-02817-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Thomas W. Graham

The Petitioner, Bruce Rishton, appeals the Sequatchie County summary dismissal of his petition for habeas corpus relief. He contends that the trial court’s failure to inform him of the “direct and punitive consequences” of his accepting a guilty plea requiring community supervision for life renders his guilty plea void and that habeas corpus relief should have been granted. Upon consideration of the record and the applicable authorities, we affirm the judgment of the habeas corpus court.

Sequatchie County Court of Criminal Appeals 09/26/14
James Oscar Mason v. State of Tennessee
M2013-01998-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee Russell

The petitioner, James Oscar Mason, appeals the denial of post-conviction relief from his 2012 Bedford County Circuit Court jury conviction of delivery of a Schedule II controlled substance, for which he received a sentence of 10 years’ incarceration.  In this appeal, the petitioner contends that he was denied the effective assistance of counsel.  Discerning no error, we affirm.

Bedford County Court of Criminal Appeals 09/26/14
State of Tennessee V. Minlando Cordell Young
M2014-00115-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge F. Lee Russell

The Defendant, Minlando Cordell Young, was indicted for one count of selling less than .5 grams of cocaine, a Class C felony; one count of delivering less than .5 grams of cocaine, a Class C felony; two counts of selling one-half ounce or more but less than ten pounds of marijuana, a Class E felony; two counts of delivering one-half ounce or more but less than ten pounds of marijuana, a Class E felony; one count of selling .5 grams or more of cocaine, a Class B felony; one count of delivering .5 grams or more of cocaine, a Class B felony; possession of .5 grams or more of cocaine “for resale,” a Class B felony; and possession of .5 grams or more of cocaine with intent to deliver, a Class B felony.  See Tenn. Code Ann. § 39-17-417.  Following a jury trial, the Defendant was convicted of one count of delivery of .5 grams or more of cocaine and one count of the lesser-included offense of simple possession, a Class A misdemeanor.  See Tenn. Code Ann. § 39-17-418.  The jury acquitted the Defendant of all the remaining charges.  The trial court sentenced the Defendant as a Range I, standard offender to twelve years for the felony conviction and eleven months and twenty-nine days for the misdemeanor conviction.  The trial court ordered the two sentences to be served consecutively.  On appeal, the Defendant contends that the trial court erred in imposing an excessive sentence for his felony conviction.  Following our review, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 09/26/14
Caleb J. Belcher v. State of Tennessee
E2013-00649-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Carroll L. Ross

Petitioner, Caleb J. Belcher, pleaded guilty to four counts of rape and one count of aggravated sexual battery, all Class B felonies, and two counts of willful abuse, neglect, or exploitation of an adult, Class E felonies. He received concurrent sentences of ten years for each Class B felony and concurrent two-year sentences for the remaining convictions. He filed the instant petition for post-conviction relief, which was summarily dismissed by the post-conviction court. In this appeal from the dismissal, petitioner seeks DNA testing of physical evidence pursuant to the Post-Conviction DNA Analysis Act of 2001 and raises claims of ineffective assistance of counsel and other constitutional violations. Following our review, we affirm the judgment of the post-conviction court.

Monroe County Court of Criminal Appeals 09/25/14
State of Tennessee v. John Valentine
W2013-01002-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carolyn Wade Blackett

The defendant, John Valentine, was convicted of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony. On appeal, the defendant contends that: (1) the State’s election of an undated offense failed to ensure a unanimous jury verdict as to the rape of a child charge and that the evidence was insufficient to support a conviction for the elected offense; (2) the trial court abused its discretion by permitting certain witnesses to testify; (3) the trial court abused its discretion by allowing photographs of the victim into evidence; (4) the trial court abused its discretion by prohibiting counsel from questioning witnesses about the victim’s prior allegations of sexual abuse; and (5) the cumulative errors of the trial court warrant a reversal of the defendant’s conviction. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/25/14
State of Tennessee v. J.W. Causey
W2013-01432-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Defendant-Appellant, J.W. Causey, was convicted by a Shelby County jury of first degree premeditated murder, for which he received a life sentence in the Department of Correction. The sole issue presented for our review is whether the evidence was sufficient to support his conviction. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/25/14
State of Tennessee v. Gene Luigi Atkins
W2013-02544-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Lee Moore Jr.

The defendant, Gene Luigi Atkins, was convicted of one count of initiation of methamphetamine manufacture process, a Class B felony. On appeal, he contends that the evidence is insufficient to support his conviction; that the trial court erred by permitting a police officer to testify as an expert beyond the scope of Tennessee Code Annotated section 39-17-435(d) (2010); that the trial court erred by not subjecting the officer’s testimony to the requirements of Tennessee Rules of Evidence 702 and 703; and that the failure to specify the parameters in which an officer was treated as an expert amounted to plain error because the trial court found that the expert testimony was sufficient corroboration to support a codefendant’s testimony. Following our review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 09/25/14
Richard Lynn Norton v. State of Tennessee
E2014-01033-CCA-R3-ECN
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge John F. Dugger, Jr.

According to petitioner, Richard Lynn Norton, in 1990, he pleaded guilty to escape and to a violation of the Motor Vehicle Habitual Offenders Act. Subsequently, he filed the instant petition for writ of error coram nobis in 2013, claiming that the Tennessee Supreme Court’s decision in State v. Walls, 62 S.W.3d 119 (Tenn. 2001), constitutes newly discovered evidence that renders his escape conviction void. The coram nobis court summarily dismissed the petition. Following our review, we affirm the judgment of the coram nobis court.

Greene County Court of Criminal Appeals 09/25/14
State of Tennessee v. Dorothy Denise Cross
E2013-02133-CCA-R3-CD
Authoring Judge: Thomas T. Woodall
Trial Court Judge: Judge Bobby R. McGee

Following a jury trial in the Knox County Criminal Court, Defendant, Dorothy Denise Cross, was found guilty as charged of four counts of misdemeanor assault of the victim, who we identify as “E.V.” or “the victim.” All four counts of the indictment related to the same incident, and each count charged misdemeanor assault under one of the alternative legal bases found in Tennessee Code Annotated section 39-13-101. The trial court merged counts 2, 3, and 4 with count 1, sentenced Defendant to serve 11 months and 29 days in the Knox County Jail, suspended the incarceration, and placed Defendant on supervised probation for 11 months and 29 days. In her sole issue on appeal, Defendant challenges the sufficiency of the evidence to support her conviction. After a thorough review, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 09/25/14
State of Tennessee v. Charles McClain, Lavino Horne and Leterpa Mosley
W2013-00328-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley Jr.

Defendants, Charles McClain, Lavino Horne, and Leterpa Mosley were indicted by the Shelby County Grand Jury, charged with one count of premeditated murder, one count of felony murder, and one count of especially aggravated robbery. A jury found all three defendants guilty as charged in the indictment. The trial court merged the felony murder conviction with the premeditated murder conviction for each defendant and sentenced all three defendants to life in prison for first degree murder and 25 years for especially aggravated robbery. The trial court ordered the sentences to be served concurrently. On appeal, Defendants Mosley and Horne contend that the trial court erred by failing to sever their cases. All three defendants contend that the evidence was insufficient to support their convictions. Defendant Mosley contends that the trial court erred by allowing into evidence a video taken from the library where the incident occurred and by suppressing Defendant McClain’s statements to police. Defendant McClain contends that he was prejudiced by the State’s use of a hypothetical during voir dire and that the trial court improperly denied him the opportunity to rehabilitate a prospective juror. Having carefully reviewed the record before us and the briefs of all the parties, we find no error and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/24/14
State of Tennessee v. Brian Caswell McGrowder
M2013-01184-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County Criminal Court Jury convicted the appellant, Brian Caswell McGrowder, of statutory rape by an authority figure, a Class C felony, and aggravated statutory rape, a Class D felony.  The trial court merged the latter conviction into the former and sentenced him to three years in confinement.  On appeal, the appellant challenges (1) the trial court’s refusal to grant a fourteen-day continuance after the court granted the State’s motion to amend the superseding indictment, (2) the sufficiency of the evidence for statutory rape by an authority figure, (3) the trial court’s failure to define “position of trust” for the jury, and (4) the State’s commission of prosecutorial misconduct during its opening statement and closing arguments.  Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 09/23/14
State of Tennessee v. Jerry Brandon Phifer
M2013-01401-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Jerry Brandon Phifer, was convicted of one count of aggravated robbery, a Class B felony, and one count of aggravated burglary, a Class C felony.  On appeal, the defendant argues that the trial court erred by: (1) denying his motion to suppress the results of a traffic stop that occurred two weeks prior to his arrest; (2) denying the motion to suppress evidence seized as a result of the warrantless installation of a GPS tracking device; (3) finding that the State had probable cause to arrest the defendant; (4) finding that the defendant’s waiver of his Miranda rights was knowing and voluntary; (5) declaring Jongho Lim an unavailable witness pursuant to Tennessee Rule of Evidence 804 and admitting his prior testimony as substantive evidence; (6) imposing consecutive sentences; and (7) violating the defendant’s due process rights based upon the cumulative effect of the errors.  After review of the record and the applicable law, we affirm the trial court’s findings in issues 1, 4, 5, and 6.  We conclude that the warrantless use of the GPS tracking device constituted an illegal search, and the evidence obtained therefrom, including the defendant’s arrest and statements to police, must be suppressed.  We reverse the trial court’s denial of the motion to suppress the evidence and remand the case for a new trial.      

Davidson County Court of Criminal Appeals 09/23/14