Court of Criminal Appeals Opinions

Format: 11/20/2017
Format: 11/20/2017
State of Tennessee v. Kristie Louis McLerran
M2016-02005-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge David A. Patterson

The Defendant, Kristie Louise McLerran, entered a plea of nolo contendere to attempted aggravated child neglect, a Class B felony, as a Range I, standard offender and to serve an eight-year term with manner of service to be determined by the trial court. At the sentencing hearing, the trial court imposed a term of incarceration, finding that confinement was necessary to avoid depreciating the seriousness of the offense. The Defendant appeals the trial court’s denial of alternative sentencing. We conclude that the trial court did not err in sentencing the Defendant to a term of imprisonment. Accordingly, we affirm the judgment of the trial court.

Clay County Court of Criminal Appeals 08/16/17
State of Tennessee v. Atlanta Pearl Hardy
M2017-00537-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt

Defendant, Atlanta Pearl Hardy, was convicted of second degree murder in 2004 and now appeals the trial court's denial of her motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1. Upon review of the record, this Court affirms the trial court's denial of relief under Rule 36.1.

Davidson County Court of Criminal Appeals 08/15/17
State of Tennessee v. Marquis Devann Churchwell
M2016-02218-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Marquis Devann Churchwell, pled guilty to one count of robbery and two counts of assault with the sentence to be determined by the trial court. After a sentencing hearing, the trial court imposed a total effective sentence of eight years, eleven months and twenty-nine days. On appeal, Defendant argues that the trial court abused its discretion by imposing a sentence of confinement. Upon our review, we affirm the judgments of the trial court. However, we remand the case for entry of judgment forms for each count of the indictment in case number 2015-D-2352.

Davidson County Court of Criminal Appeals 08/15/17
State of Tennessee v. Marcus Deangelo Lee
W2016-02208-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John W. Campbell

The Defendant, Marcus Deangelo Lee, pleaded guilty in 1997 to escape from felony incarceration, and the trial court sentenced him to one year and ordered that his sentence run consecutively to a three-year sentence the Defendant received for drug-related and firearm convictions in 1995. Since that time, the Defendant has been arrested and convicted on other charges unrelated to this case. Almost seventeen years later, the Defendant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 with regard to jail credits for his 1997 felony escape conviction. The trial court summarily dismissed the motion, and the Defendant appeals. On appeal, he contends that the trial court erred when it summarily dismissed his motion because the trial court improperly amended his judgment to reflect 103 days of jail credit, which he argues resulted in his sentences running concurrently rather than consecutively as mandated by statute. We affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 08/15/17
State of Tennessee v. Mario Bowles
W2016-00496-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge J. Robert Carter, Jr.

Defendant, Mario Bowles, was convicted by a Shelby County jury of two counts of aggravated rape and one count of aggravated kidnapping. The trial court sentenced Defendant to twenty-three years at one-hundred percent for each count of aggravated rape, which the trial court merged, and twenty-three years at one-hundred percent for aggravated kidnapping. The sentences were ordered to be served concurrently with one another and consecutively with an unrelated case. On appeal, Defendant argues that the evidence was insufficient to support his convictions for aggravated rape and that the trial court erred by failing to instruct the jury on the lesser-included offense of attempted aggravated rape. After a thorough review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/15/17
State of Tennessee v. Montreal Lyons
W2016-00929-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

Defendant, Montreal Lyons, appeals from the trial court’s dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Defendant contends that his sentence is illegal because the trial court imposed the sentence for offenses that occurred in 2002 under the 2005 amendments to the sentencing act without an ex post facto waiver signed by Defendant. The State responds that the trial court properly dismissed Defendant’s motion because he failed to state a colorable claim for relief. We agree with the State. Accordingly, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/15/17
State of Tennessee v. Michael Harris
W2016-01964-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge J. Robert Carter, Jr.

Defendant, Michael Harris, appeals from an order of the trial court denying his petition to suspend the remainder of his sentence. Following our review of the record, we conclude that the trial court did not err by denying the petition. We affirm the order of the trial court in accordance with Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Shelby County Court of Criminal Appeals 08/15/17
State of Tennessee v. Demarcus Lashawn Blackman
M2016-01828-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Franklin Lee Russell
The Defendant, Demarcus Lashawn Blackman, was convicted by a Marshall County Circuit Court jury of aggravated criminal trespass and evading arrest, Class A misdemeanors. See T.C.A. §§ 39-14-406 (2014) (aggravated criminal trespass), 39-16-603 (2014) (amended 2016) (evading arrest). The trial court sentenced him to consecutive terms of eleven months, twenty-nine days for each conviction and ordered the sentence to be served consecutively to an unrelated twelve-year sentence. On appeal, he contends that his sentence is excessive. We affirm the judgments of the trial court.
 
Marshall County Court of Criminal Appeals 08/15/17
Tut Mayal Tut v. State of Tennessee
M2016-01673-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl Blackburn
Petitioner, Tut Mayal Tut, appeals the denial of his petition for post-conviction relief from his guilty-pleaded convictions for two counts of especially aggravated kidnapping, two counts of especially aggravated robbery, and four counts of aggravated rape.  Petitioner alleges that he received ineffective assistance of counsel during both the juvenile court transfer hearing and the criminal court plea proceedings. Upon our review, we affirm the judgment of the post-conviction court.
 
Davidson County Court of Criminal Appeals 08/15/17
State of Tennessee v. Jonathan C. Buckner
M2016-01162-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Suzanne Lockert-Mash

The Defendant, Jonathan C. Buckner, was convicted by a Houston County Circuit Court jury of theft of property valued at $1,000 or more but less than $10,000, a Class D felony.  See T.C.A. § 39-14-103 (2014).  The trial court sentenced the Defendant as a Range III, persistent offender to twelve years’ confinement and ordered that his sentence be served consecutively to a sentence in an unrelated case.  On appeal, the Defendant contends that the trial court erred (1) by failing to provide witnesses and prospective jurors proper instructions before jury selection, (2) by admitting inadmissible hearsay evidence, (3) by denying his two motions for a mistrial, (4) by overruling defense objections during the prosecutor’s opening statement and closing argument, and (5) during sentencing.  We affirm the judgment of the trial court.

Houston County Court of Criminal Appeals 08/14/17
Cleveland Frazier v. State of Tennessee
E2016-02441-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Bob R. McGee

The Petitioner, Cleveland Frazier, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his 2015 guilty pleas to possession of less than 0.5 gram of cocaine in a school zone and possession of a firearm during the commission of a dangerous felony and his effective eleven-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the postconviction court.

Knox County Court of Criminal Appeals 08/14/17
State of Tennessee v. Lucas Potter
E2016-02268-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Tammy M. Harrington

The defendant, Lucas Potter, pled guilty to attempted aggravated robbery, attempted robbery, and theft of property under $500. Tenn. Code Ann. §§ 39-13-401, -402, 39-14- 103. After a sentencing hearing, the trial court denied the defendant’s request for judicial diversion and imposed an effective five-year sentence of split confinement with community corrections after 270 days of service. On appeal, the defendant argues the trial court failed to properly consider his request for judicial diversion and erred in allowing the State to present rebuttal proof at the sentencing hearing. Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 08/14/17
Charzelle Lamontez Swafford v. State of Tennessee
M2017-00082-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl A. Blackburn

Petitioner, Charzelle Lamontez Swafford, was convicted of first degree murder, four counts of attempted first degree murder, and employing a firearm during the commission of a dangerous offense. His convictions and effective sentence of life plus fifty-six years were affirmed on direct appeal. See State v. Charzelle Lamontez Swafford, No. M2014-00421-CCA-R3-CD, 2015 WL 1543251, at *1 (Tenn. Crim. App. Apr. 2, 2015), perm. app. denied (Tenn. Aug. 12, 2015). Petitioner subsequently sought post-conviction relief on the basis of ineffective assistance of counsel. The post-conviction court denied relief after a hearing. On appeal, we determine that Petitioner failed to show that he was prejudiced by counsel’s actions. Accordingly, the judgment of the post-conviction court is affirmed.

Davidson County Court of Criminal Appeals 08/14/17
Jerry Phillips v. State of Tennessee
E2016-01083-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Paul G. Summers

The Petitioner, Jerry Phillips, appeals the denial of his request for post-conviction relief from his four convictions for aggravated sexual battery. The Petitioner contends that trial counsel’s failure to object to the trial court’s jury selection procedures in this case, which deviated from Tennessee Rule of Criminal Procedure 24, as recognized in State v. Frausto, 463 S.W.3d 469 (Tenn. 2015), amounted to ineffective assistance and that appellate counsel was likewise ineffective for failing to argue for plain error review of this issue on appeal. He further submits that the jury selection process violated his rights to due process of law, to a fair and impartial jury, and to intelligently exercise his peremptory challenges. After a thorough review of the record and the applicable authorities, we affirm the judgment of the post-conviction court.

Campbell County Court of Criminal Appeals 08/14/17
David Keen v. State of Tennessee
W2016-02463-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The Petitioner, David Keen, raped and murdered the eight-year-old daughter of his girlfriend in March 1990, later discarding the body by throwing it into the Wolf River in Memphis. He pled guilty in 1991 to first degree murder and aggravated rape and was sentenced, respectively, to death and imprisonment for twenty years. See Keen v. State, 398 S.W.3d 594, 597-98 (Tenn. 2012). In his latest of many post-conviction filings, he argues that the Tennessee Supreme Court erred in its decision in Payne v. State, 493 S.W.3d 478 (Tenn. 2016), which denies relief for his claims; that his coram nobis petition was not time-barred; and that he is entitled to relief under Tennessee Rule of Criminal Procedure 36.1 because his sentence is illegal. He additionally seeks advice from this court as to what other avenues he may utilize in seeking relief. The coram nobis court denied relief, and we affirm that decision and decline to provide the advisory opinion sought by the Petitioner.

Shelby County Court of Criminal Appeals 08/11/17
Michael Eugene Sample v. State of Tennessee
W2016-02479-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Paula Skahan

The Petitioner, Michael Eugene Sample, was convicted in 1982 of two counts of felony murder and was sentenced to death. Following his unsuccessful direct appeal, he began filing, over the next twenty years, a series of various types of post-conviction petitions, all of which were unsuccessful. This appeal followed his claim, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, that he is intellectually disabled and not eligible to be executed. Thus, in his view, his sentence is illegal and void; and he is entitled to a hearing on his claim. Further, he argues that he is entitled to a writ of error audita querela and a writ of error coram nobis. The coram nobis court denied relief as to each of these claims and we affirm the judgment of that court.

Shelby County Court of Criminal Appeals 08/11/17
State of Tennessee v. Angela Carrie Payton Hamm and David Lee Hamm - Dissent
W2016-01282-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jeff Parham

I dissent from the majority opinion for reasons which I will explain. The majority is correct that there is a split of authority as to whether reasonable suspicion must exist before a search may be made pursuant to a probation order providing that, as a condition of probation, the probationer is subject to warrantless searches. See Jay M. Zitter, Validity of Requirement That, as Condition of Probation, Defendant Submit to Warrantless Searches, 99 A.L.R.5th 557 (2002). However, I do not believe it is necessary for this court to make a determination as to this question, for it is clear that the officers had reasonable suspicion to search Angela Hamm’s residence.

Obion County Court of Criminal Appeals 08/11/17
State of Tennessee v. Angela Carrie Payton Hamm and David Lee Hamm - Concurring
W2016-01282-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jeff Parham

I concur in the majority opinion, but I write separately to express my views regarding the additional issues that arise from warrantless, suspicionless searches of probationers conducted pursuant to a condition of probation. I believe that at a minimum, reasonable suspicion is required before the State may conduct a warrantless search of a probationer who is subject to a warrantless search requirement as a condition of probation. While neither the United States Supreme Court nor the Tennessee Supreme Court have addressed whether something less than reasonable suspicion would permit searches of probationers, both courts have addressed the issue as it related to parolees. See Samson v. California, 547 U.S. 843 (2006); State v. Turner, 297 S.W.3d 155 (Tenn. 2009).

Obion County Court of Criminal Appeals 08/11/17
State of Tennessee v. Angela Carrie Payton Hamm and David Lee Hamm
W2016-01282-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jeff Parham

The State appeals the trial court’s order granting the Defendants’ motions to suppress evidence seized as a result of a warrantless search of their house. The trial court found that, although Defendant Angela Hamm was on probation at the time of the search and was subject to warrantless searches as a condition of her probation, the search was invalid because the police officers did not have reasonable suspicion to justify the search. On appeal, the State contends that (1) the search was supported by reasonable suspicion; (2) the search was reasonable based upon the totality of the circumstances; (3) Angela Hamm consented to the search by agreeing to the warrantless search probation condition; and (4) the warrant search was valid as to Defendant David Lee Hamm under the doctrine of common authority. Upon review, we affirm the judgment of the trial court.

Obion County Court of Criminal Appeals 08/11/17
State of Tennessee v. Marcus Gergish
E2016-00279-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Lisa Rice

Defendant, Marcus Gergish, was found guilty by a jury of one count of criminally negligent homicide and two counts of attempted aggravated robbery and was sentenced to serve an effective twenty-one-year sentence in the Department of Correction. In this appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the prosecutor committed prosecutorial misconduct by destroying evidence; (3) that the prosecutor committed prosecutorial misconduct by misleading the jurors and misstating evidence; (4) that the trial court’s denial of a motion to continue, motion for expert funding, and refusal to allow the defense to call a witness on Defendant’s behalf denied Defendant a fair trial; (5) that the trial court failed to instruct the jury on the issues of dying declarations and lost or destroyed evidence; (6) that the trial court failed to act as the Thirteenth Juror; and (7) that the cumulative effect of all the errors denied Defendant a fair trial. Following a careful review of the record, we find that Defendant’s motion for new trial was not timely filed. Therefore, all of Defendant’s issues except for sufficiency of the evidence are waived, and we decline to exercise our discretion to review the waived issues for plain error. Defendant’s convictions are affirmed.

Washington County Court of Criminal Appeals 08/11/17
Marvin Hurst, Jr. v. State of Tennessee
E2016-02387-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Scott Green

The petitioner, Marvin Hurst, Jr., appeals the denial of his post-conviction petition. The petitioner argues he received ineffective assistance of counsel and that, by his actions, counsel overbore the petitioner’s will resulting in the petitioner pleading guilty rather than going to trial. Following our review, we affirm the denial of the petition.

Knox County Court of Criminal Appeals 08/11/17
State of Tennessee v. Francisco G. Parvin
E2016-01196-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John F. Dugger, Jr.

Defendant, Francisco G. Parvin, was indicted by the Greene County Grand Jury for aggravated assault resulting in serious bodily injury in Count 1 and aggravated assault by the use of a deadly weapon in Count 2. Following a jury trial, Defendant was convicted in Count 2 of the lesser-included offense of assault and sentenced to 11 months and 29 days, with 120 days to be served in jail and the remainder to be suspended on probation. The record does not contain a judgment form in Count 1, but the record indicates that only Count 2 was submitted for trial. Presumably, Count 1 was dismissed. The offenses in both counts were against the same victim. In this appeal as of right, Defendant contends that the evidence was insufficient to support his conviction in Count 2. After a careful review of the entire record and the parties’ briefs, we conclude that the evidence was sufficient to sustain Defendant’s conviction. Accordingly, we affirm the judgment of the trial court.

Greene County Court of Criminal Appeals 08/10/17
State of Tennessee v. Roy Allen Carey
E2016-01125-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Sandra Donaghy

Defendant, Roy Allen Carey, was convicted of hindering a secured creditor. He received an alternative sentence of two years’ probation after serving ten days in incarceration. On appeal, he argues that (1) the evidence was insufficient to support his conviction; (2) the amended indictment was void; (3) the bill of particulars was insufficient; (4) the trial court committed error by not providing the requested jury instructions; and (5) the lack of notice as to the prohibited conduct violated his due process rights. After review, we find that the evidence was insufficient to support a conviction for hindering a secured creditor and that the trial court erred by not providing a jury instruction on the creation of a security interest. The judgment of the trial court is reversed and vacated.

McMinn County Court of Criminal Appeals 08/09/17
Barry N. Waddell v. State of Tennessee
M2016-02509-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl Blackburn

The pro se Petitioner, Barry N. Waddell, appeals the denial of his second motion to reopen his petition for post-conviction relief.  Following our review, we dismiss the appeal for lack of jurisdiction because the Petitioner failed to comply with the statutory requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings.    

Davidson County Court of Criminal Appeals 08/09/17
James Edward Bostic, Jr. v. State of Tennessee
M2017-00087-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, James Edward Bostic, Jr., appeals from the Davidson County Criminal Court’s summary dismissal of his petition for post-conviction relief from his guilty plea conviction of possession with intent to manufacture, deliver, or sell less than one-half gram of cocaine, a Class C felony, for which he is serving a twelve-year sentence as a Range III, persistent offender. Because the post-conviction court erred in summarily dismissing his petition as untimely, we reverse its judgment and remand the case for further proceedings.

Davidson County Court of Criminal Appeals 08/09/17