Court of Criminal Appeals Opinions

Format: 08/23/2017
Format: 08/23/2017
State of Tennessee v. Tony Edward Bigoms - separate opinion
E2015-02475-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

All members of the panel agree that the Defendant must receive a new trial, although we disagree, in part, about the reasons why a new trial is required. Specifically, Judge Easter and I disagree with Judge Thomas’s analysis regarding whether a jury separation occurred when the jurors were allowed to speak with family members by telephone while in the presence of court officers, and we conclude that no separation occurred. Likewise, Judge Easter and I depart from Judge Thomas’s analysis of the trial court’s admission of evidence related to the Defendant’s knowledge of DNA matters due to his presence at a prior judicial proceeding at which expert DNA proof was received. Although Judge Easter and I agree with Judge Thomas that the evidence was inadmissible, we disagree with his analysis pursuant to Tennessee Rule of Evidence 404(b) and believe, instead, that the proper framework for determining the admissibility of the evidence is provided by Rules 401, 402, and 403.

Hamilton County Court of Criminal Appeals 06/07/17
State of Tennessee v. Tony Edward Bigoms
E2015-02475-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Barry A. Steelman

Following a jury trial, the Defendant, Tony Edward Bigoms, was convicted of premeditated first degree murder and abuse of a corpse, a Class E felony. See Tenn. Code Ann. §§ 39-13-202, -17-312(a). The trial court imposed a total effective sentence of imprisonment for life plus four years. On appeal, the Defendant contends (1) that jury separations occurred when the sequestered jury members were allowed to go to their individual homes, unsupervised, to pack their belongings at the start of the trial, were allowed to make phone calls to family members during the trial, and were allowed to visit with family members the day before the trial concluded; (2) that the trial court erred in admitting testimony from a Tennessee Bureau of Investigation (TBI) special agent regarding that agent’s testimony during a previous murder trial at which the Defendant was acquitted; (3) that the trial court erred in admitting evidence found as a result of a warrantless search of the Defendant’s cell phone; (4) that the State failed to prove venue by a preponderance of the evidence; and (5) that the evidence was insufficient to sustain the Defendant’s convictions. Following our review, we conclude that jury separations occurred when the jurors were allowed to go home unsupervised and to make phone calls during the trial. Furthermore, we conclude that the State failed to meet its burden to show that no prejudice to the Defendant occurred during these separations. Additionally, we conclude that the admission of the TBI agent’s testimony regarding the Defendant’s previous murder trial violated Tennessee Rule of Evidence 404(b)’s prohibition against evidence of other bad acts and that this error was not harmless. Finally, we conclude that the trial court erred in admitting the evidence found on the Defendant’s cell phone as that evidence was not relevant. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial. With respect to the Defendant’s remaining issues, we will address those issues so as not to pretermit them. See State v. Parris, 236 S.W.3d 173, 189 (Tenn. Crim. App. 2007) (following a similar procedure).

Hamilton County Court of Criminal Appeals 06/07/17
Raina Fisher v. State of Tennessee
M2016-00594-CCA-R3-PC
Authoring Judge: Judge John Everett Williams, Jr.
Trial Court Judge: Judge Russell Parkes

The Petitioner, Raina Fisher, was convicted of three counts of theft of property valued over $1,000, one count of theft of property valued over $500, and one count of attempted theft of property valued over $1,000. The Petitioner filed a timely post-conviction petition, alleging that her trial counsel had provided ineffective assistance by failing to suppress evidence obtained through a judicial subpoena, failing to exclude evidence of her prior convictions, and failing to call certain witnesses who could have discredited the victim. She also alleged that appellate counsel was ineffective and that she was entitled to relief under a theory of cumulative error. The post-conviction court held a hearing and denied relief. After a thorough review of the evidence, we conclude that the Petitioner has not demonstrated prejudice resulting from any of her claims, and we affirm the judgment of the post-conviction court.

Maury County Court of Criminal Appeals 06/06/17
David Hearing v. Cherry Lindamood, Warden
M2016-02114-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

The Petitioner, David Hearing, filed a petition for a writ of habeas corpus, alleging that his concurrent sentences of life for his two convictions of felony murder were illegal and void. The habeas corpus court dismissed the petition upon finding that the issue had been raised and addressed in prior pleadings. On appeal, the Petitioner challenges the habeas corpus court’s ruling. Upon review, we affirm the judgment of the habeas corpus court.

Wayne County Court of Criminal Appeals 06/06/17
State of Tennessee v. Jeffery Dwight Ray
E2016-01533-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Jeffery H. Wicks

Following the Defendant’s, Jeffery Dwight Ray’s, guilty-pleaded conviction for aggravated statutory rape, the trial court imposed a sentence of three years’ incarceration. The Defendant appeals, arguing that he is a suitable candidate for alternative sentencing pursuant to the statutory considerations outlined in Tennessee Code Annotated section 40-35-103. Following our review, we affirm the trial court’s alternative sentencing decision.

Morgan County Court of Criminal Appeals 06/06/17
John Willie Stone v. State of Tennessee
M2016-01269-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge F. Lee Russell

A Bedford County Circuit Court jury convicted the defendant, John Willie Stone, of burglary of an automobile, theft of property valued at $500 or less, and aggravated assault, and the trial court imposed a total effective sentence of 21 years’ incarceration. Shortly after the conclusion of his trial and prior to the entry of his judgments or his sentencing hearing, the defendant filed a pro se motion seeking new counsel, which the trial court interpreted as a petition for post-conviction relief on the basis of ineffective assistance of counsel. Following a combined hearing on the defendant’s motion for new trial and his purported petition for post-conviction relief, the trial court denied all claims. In this appeal, the defendant challenges both the sufficiency of the convicting evidence and the length of his sentence in addition to the ineffectiveness of his trial counsel. Because the trial court erroneously treated the defendant’s motion for new counsel as a petition for post-conviction relief, we vacate the portion of the trial court’s judgment which denied post-conviction relief to the defendant. In all other respects, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 06/06/17
State of Tennessee v. George Joseph Raudenbush, III
E2015-00674-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jon Kerry Blackwood

In his first trial, Defendant, George Joseph Raudenbush, III, was convicted of driving on a suspended license, violating the financial responsibility law, speeding, felony evading arrest, misdemeanor evading arrest, assault, and reckless endangerment. The trial court merged the misdemeanor evading arrest conviction into the felony evading arrest conviction and imposed an effective four-year sentence. On appeal, this court reversed and remanded the case for a new trial because the trial court denied Defendant his Sixth Amendment right to counsel by requiring him to proceed pro se at trial. State v. George Joseph Raudenbush, III, No. E2012-02287-CCA-R3-CD, 2013 WL 62372011 (Tenn. Crim. App. Dec. 3, 2013). In his second trial, the subject of this appeal, Defendant was convicted of driving on a suspended license, violating the financial responsibility law, speeding, felony evading arrest, misdemeanor evading arrest, assault, and reckless endangerment. The trial court again imposed an effective four-year sentence to be served on supervised probation. On appeal, Defendant raises the following issues: (1) whether the trial court erred in overruling Defendant’s motion for judgment of acquittal; (2) whether the evidence was insufficient to support his convictions for felony evading arrest and assault; (3) whether the trial court erred by denying his motion for a change of venue; and (4) whether there was juror misconduct. Defendant is not entitled to relief on the issues presented. However, the trial court failed to merge the conviction for misdemeanor evading arrest with the conviction for felony evading arrest. We therefore remand the convictions for merger. In all other respects the judgments are affirmed.

Monroe County Court of Criminal Appeals 06/06/17
State of Tennessee v. Terry Trammell
E2016-01725-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Terry Trammell, was convicted by a Knox County Criminal Court jury of two counts of burglary, a Class D felony, and two counts of theft of property, a Class E felony. See T.C.A. §§ 39-14-402 (2014) (burglary), 39-14-103 (2014) (theft). The trial court merged the burglary and theft convictions and sentenced the Defendant to concurrent terms of twelve years for the burglary conviction and six years for the theft conviction, which were ordered to be served consecutively to a previously imposed sentence. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/05/17
State of Tennessee v. Martin E. Hughes
E2016-01415-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Alex E. Pearson

The Petitioner, Martin E. Hughes, pled guilty to two counts of aggravated assault; introducing contraband into a penal institution; facilitation of possession of a schedule II controlled substance; possession of marijuana with the intent to sell or deliver; possession of drug paraphernalia; a second offense of driving under the influence of an intoxicant; possession of a firearm while intoxicated; and vandalism of property valued under $500. The Petitioner received an aggregate five-year sentence, with credit for time he had served in prison and the remainder of the sentence to be served through the community corrections program. The Petitioner violated the terms of his alternative sentence, and he was sentenced to serve the remainder of the five years in prison. The Petitioner then filed a petition for post-conviction relief. At the hearing on the petition, the Petitioner sought to establish that he had received the ineffective assistance of counsel and that he was entitled to withdraw his guilty pleas as not knowingly and voluntarily entered based on newly discovered evidence in the form of a victim recanting an earlier statement. The post-conviction court found that the Petitioner was not entitled to relief because he received the effective assistance of counsel and because the victim’s testimony at the hearing established that the material elements of her statement to police were accurate. On appeal, the Petitioner argues that a delay in the post-conviction proceedings attributable to the State resulted in the loss of a witness’s testimony and that his due process right to present his post-conviction claims was violated. After a thorough review of the record, we conclude there is no basis to disturb the Petitioner’s guilty pleas, and we affirm the judgment of the post-conviction court.

Hamblen County Court of Criminal Appeals 06/05/17
Rathal Y. Perkins v. State of Tennessee
M2016-02047-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Rathal Y. Perkins, appeals the summary dismissal of his petition for writ of habeas corpus, which challenged his 1995 Haywood County Circuit Court jury conviction of first degree murder. Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 06/05/17
State of Tennessee v. Robert Guerrero
M2016-00481-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Robert Guerrero, appeals from the trial court’s summary denial of his Motion for Correction of Illegal Sentence filed pursuant to Tennessee Rule of Criminal Procedure (Tenn. R. Crim. P.) 36.1.  In his motion and on appeal, Defendant asserts that his nine consecutive fifteen-year sentences for nine convictions of attempted first degree murder are illegal.  He asserts that by imposing consecutive sentencing, the trial court failed to base its ruling on at least one of seven criteria found in Tennessee Code Annotated (T.C.A.) section 40-35-115.  After a thorough review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 06/05/17
Larry Peoples v. State of Tennessee
E2016-02315-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Bobby R. McGee

The Petitioner, Larry Peoples, appeals the denial of his petition for post-conviction relief, challenging his conviction of violation of sex offender registration and sentence of one year. On appeal, the Petitioner argues that he is entitled to post-conviction relief because the underlying sex offense was vacated and he is no longer required to register as a sex offender. After a review of the record and applicable law, we affirm the post-conviction court’s denial of relief.

Knox County Court of Criminal Appeals 06/02/17
Travarious White v. State of Tennessee
W2016-01773-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Kyle Atkins

The petitioner, Travarious D. White, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Madison County Court of Criminal Appeals 06/02/17
Paul Richardson v. State of Tennessee
W2016-02189-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Glenn Ivy Wright

The petitioner, Paul Richardson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 06/02/17
State of Tennessee v. Perry Mitchell Kirkman
M2016-02248-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Perry Mitchell Kirkman, pleaded guilty to two counts aggravated sexual battery in 2010 and received a fifteen-year sentence as a Range II offender. Six years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence because his sentence exceeds the sentencing range for a Range I offender convicted of a Class B felony. The trial court summarily dismissed the motion after determining that the Defendant knowingly and voluntarily pleaded guilty and agreed to a sentence outside the appropriate sentencing range pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997).1 On appeal, the Defendant contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 06/02/17
State of Tennessee v. Rafael Antonio Bush
M2016-01537-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David M. Bragg

The Appellant, Rafael Antonio Bush, appeals as of right from the Rutherford County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The gravamen of the Appellant’s complaint is that the trial court improperly enhanced his sentences based upon judicially determined facts in violation of Blakely v. Washington, 542 U.S. 296 (2004). Following our review, we affirm.

Rutherford County Court of Criminal Appeals 06/01/17
State of Tennessee v. Jerome Antonio McElrath
W2015-01794-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jeff Parham

The State appeals the suppression of evidence by the Obion County Circuit Court. The defendant, Jerome Antonio McElrath, was arrested on two separate occasions for criminal trespass. The searches of the defendant’s person incident to those arrests produced marijuana in the amounts of 10.1 grams and 4.0 grams, respectively. After an evidentiary hearing, the trial court granted the defendant’s motion to suppress the evidence seized incident to his arrests and dismissed the charges. The State argues that the arresting officer had probable cause to arrest the defendant and, therefore, the search incident to each arrest was lawful. Furthermore, the State contends that the evidence was legally obtained because the officer acted in good-faith reliance on information provided by dispatch. After review, we affirm the decision of the trial court.

Obion County Court of Criminal Appeals 05/31/17
State of Tennessee v. John Alfred Waters
M2016-00522-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Defendant, John Alfred Waters, appeals as of right from his convictions for aggravated assault, violation of an order of protection, and attempted aggravated burglary. The Defendant contends (1) that there was insufficient evidence to support his convictions for aggravated assault as charged in counts 6, 7, and 8; (2) that the trial court erred when it admitted evidence of the Defendant’s previous conviction for violating an order of protection; and (3) that the trial court erred in allowing a police officer to testify that one of the victims was the “most terrified” victim he had ever seen because such evidence was irrelevant and unduly prejudicial. Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 05/31/17
Antonio L. Fuller v. Blair Leibach, Warden
M2016-02514-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, Antonio L. Fuller, appeals as of right from the Trousdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that the petition stated a cognizable claim for habeas corpus relief. Discerning no error, we affirm the judgment of the habeas corpus court.

Trousdale County Court of Criminal Appeals 05/31/17
Davarius Smith v. State of Tennessee
W2016-00345-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Davarius Smith, appeals as of right from the Lauderdale County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that he was entitled to post-conviction relief based on the following alleged violations of his constitutional rights: (1) that the State withheld exculpatory evidence; (2) that, alternatively, he received ineffective assistance of trial and appellate counsel regarding this undisclosed evidence; (3) that he received ineffective assistance of trial counsel due to trial counsel’s failure to file a motion to suppress a witness’ prior identification of the Petitioner; and (4) that he received ineffective assistance of appellate counsel due to appellate counsel’s failure to challenge an allegedly impermissible comment by the prosecutor during closing arguments and to properly challenge a special jury instruction provided by the trial court. Following our review, we affirm the judgment of the postconviction court.

Lauderdale County Court of Criminal Appeals 05/31/17
State of Tennessee v. Ebony Marshall
W2015-01835-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The Defendant, Ebony Marshall, was convicted upon his guilty pleas of two counts of robbery, a Class C felony. He was sentenced to terms of twelve and thirteen years as a persistent, Range III offender for the offenses. The sentences were imposed to run consecutively, for an effective sentence of twenty-five years. The Defendant filed a motion to withdraw his guilty plea, which the trial court denied. On appeal, the Defendant contends that: (1) the trial court erred in denying his motion to withdraw his guilty pleas, (2) the trial court erred in imposing consecutive sentences, and (3) he was denied his rights to due process and self-representation in the trial court proceedings. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/31/17
Deadrick Garrett v. State of Tennessee
E2016-01519-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge G. Scott Green

Deadrick Garrett (“the Petitioner”) appeals the Knox County Criminal Court’s denial of post-conviction relief from his conviction for first-degree premeditated murder and resulting life sentence. On appeal, the Petitioner argues that he received ineffective assistance of counsel based on trial counsel’s failure to: (1) communicate with the Petitioner and adequately explain criminal and trial procedure; (2) review discovery with the Petitioner, including witness statements and forensic evidence; (3) have the Petitioner evaluated by a mental health expert and pursue a diminished capacity theory of defense; (4) anticipate that the trial court would deny a self-defense jury instruction and develop a viable alternative defense; and (5) object to the Petitioner’s demonstrating on crossexamination that he could open the knife used in the murder with one hand. The Petitioner further asserts that trial counsel improperly: (6) advised a defense witness to be hostile towards the victim; (7) instructed the Petitioner to “cry on cue”; and (8) fabricated the Petitioner’s trial testimony “so as to create some justification for [the Petitioner’s] stabbing [the victim].” After a thorough review of the appellate record and applicable law, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 05/31/17
David E. Scott v. State of Tennessee
E2016-01184-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

Defendant, Scottie R. Buckles, pled guilty in ten separate cases to a total of sixty-three separate offenses for which he received an effective sentence of fifteen years as a Range II, multiple offender. The trial court denied alternative sentencing after a hearing. Defendant appeals the denial of alternative sentencing on the basis that the trial court failed to consider whether Defendant should be sentenced under the special needs provision of the Community Corrections Act. After a review, we determine that the trial court did not abuse its discretion. Accordingly, the judgments of the trial court are affirmed.

Knox County Court of Criminal Appeals 05/30/17
State of Tennessee v. Scottie R. Buckles
E2016-01645-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge R. Jerry Beck

Defendant, Scottie R. Buckles, pled guilty in ten separate cases to a total of sixty-three separate offenses for which he received an effective sentence of fifteen years as a Range II, multiple offender. The trial court denied alternative sentencing after a hearing. Defendant appeals the denial of alternative sentencing on the basis that the trial court failed to consider whether Defendant should be sentenced under the special needs provision of the Community Corrections Act. After a review, we determine that the trial court did not abuse its discretion. Accordingly, the judgments of the trial court are affirmed.

Sullivan County Court of Criminal Appeals 05/30/17
State of Tennessee v. Charlene Trussell
E2016-00003-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Curtis Smith

The Defendant, Charlene Trussell, was found guilty by a Bledsoe County Circuit Court jury of three counts of delivery of a controlled substance, three counts of the attempted sale of a controlled substance, and felony possession of drug paraphernalia. See T.C.A. §§ 39-17-417 (Supp. 2013) (amended 2014) (sale and delivery); 39-17-425 (2014) (drug paraphernalia); 39-12-101 (criminal attempt) (2014). The trial court merged the delivery convictions into the attempted sale convictions and sentenced the Defendant to an effective three years’ probation. The court did not impose sentences or enter judgment forms for the delivery convictions. On appeal, the Defendant contends that (1) the evidence is insufficient to support her convictions and (2) as a matter of plain error, evidence of the confidential informant’s previous statements were inadmissible hearsay, violated the Defendant’s right to confront and cross-examine witnesses, and were inadmissible because the probative value was substantially outweighed by the prejudicial impact. Although we affirm the Defendant’s convictions, we remand the case to the trial court for the imposition of sentences and the entry of judgments for the delivery of a controlled substance convictions, merger of the attempted sale convictions into the delivery convictions, and entry of corrected judgments for the attempted sale convictions.

Bledsoe County Court of Criminal Appeals 05/30/17