Court of Criminal Appeals Opinions

Format: 03/30/2017
Format: 03/30/2017
State of Tennessee v. Justin T. Knox
W2016-00617-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Petitioner, Justin T. Knox, appeals the trial court's dismissal of his “Motion to Correct Sentence Calculation.” The trial court found both sentences had expired and thus the motion was moot. Upon our review of the record, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 12/28/16
State of Tennessee v. Joshua Johnson
E2016-00334-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James F. Goodwin

The defendant, Joshua Johnson, appeals his Sullivan County Criminal Court jury convictions of 34 counts of sexual exploitation of a minor, see T.C.A. § 39-17-1003, claiming that the trial court erred by refusing to suppress the defendant's pretrial statement to the police, that the evidence was insufficient to support his convictions, and that the four-year effective sentence is excessive. Discerning no error, we affirm.

Sullivan County Court of Criminal Appeals 12/28/16
State of Tennessee v. Darrell E. Childress
M2016-00799-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert Jones

A Maury County jury convicted the Defendant, Darrell E. Childress, of Driving Under the Influence (“DUI”), fourth offense, and the trial court sentenced him to 150 days of incarceration followed by two years of supervised probation.  On appeal, the Defendant contends that: (1) the trial court erred when it allowed the State to impeach him with his prior conviction for public intoxication; (2) the trial court erred when it allowed the State to ask the arresting officer about the results of a field sobriety task; (3) the evidence is insufficient to sustain his conviction.  After review, we affirm the trial court’s judgment.

Maury County Court of Criminal Appeals 12/28/16
State of Tennessee v. Marty E. Hughes
E2015-01907-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Thomas J. Wright

The Defendant-Appellant, Marty E. Hughes, was convicted by a Hawkins County jury of two counts of aggravated assault. Although he was represented by appointed counsel at trial, Hughes signed a waiver of his right to appointed counsel prior to his sentencing hearing. He was subsequently sentenced as a Range III, persistent offender to concurrent sentences of ten and fifteen years for his convictions. Thereafter, Hughes filed a pro se notice of appeal before filing an untimely pro se motion for new trial. On appeal, Hughes argues: (1) the trial court violated his due process rights and committed plain error when it failed to expand the jury instruction on self-defense to include the rights of a person in a dwelling; (2) the evidence is insufficient to sustain his convictions for aggravated assault; (3) the trial court imposed an excessive sentence; and (4) his due process rights were violated when he proceeded to the sentencing hearing as a pro se defendant who was unaware and improperly advised of his right to file a motion for new trial. Because the record shows that Hughes did not knowingly, voluntarily, and intelligently waive his right to counsel prior to his sentencing hearing, we vacate the judgments of the trial court and remand the case for appointment of new counsel and a new sentencing hearing.

Hawkins County Court of Criminal Appeals 12/23/16
State of Tennessee v. Gerald E. Thomas, Jr.
E2016-00372-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword
The Defendant, Gerald E. Thomas, Jr., pleaded guilty to two counts of aggravated assault, Class C felonies. See T.C.A. § 39-13-102 (2014). The trial court sentenced the Defendant to an effective seven years’ confinement. On appeal, the Defendant contends that the trial court erred by denying his request for alternative sentencing. We affirm the judgments of the trial court.
 
Knox County Court of Criminal Appeals 12/23/16
State of Tennessee v. Kathy Bell Noble
M2015-02288-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Walter C. Kurtz

Following a jury trial, Defendant, Kathy Bell Noble, was convicted of driving on a suspended license, violation of the vehicle registration law, and failure to obey a traffic control device.  The trial court imposed a sentence of six months and the jury’s fine of $500 for driving on a suspended license and concurrent sentences of thirty days each for violation of the vehicle registration law and failure to obey a traffic control device.  Defendant was ordered to serve forty-eight hours for driving on a suspended license with the remainder of the sentence subject to supervised probation.  The thirty-day sentences for violation of the vehicle registration law and failure to obey a traffic control device were suspended.  On appeal, Defendant argues that the evidence was insufficient to support her convictions.  After a thorough review, we affirm the judgments of the trial court.

Williamson County Court of Criminal Appeals 12/22/16
State of Tennessee v. Travis Dewayne Melton
M2015-02421-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge David A. Patterson

Travis Dewayne Melton (“the Defendant”) appeals his Overton County convictions for reckless homicide and assault, for which the Defendant received an effective sentence of four years’ incarceration.  The Defendant contends that: (1) the trial court erred by instructing the jury on lesser included offenses when the Defendant requested that the trial court not charge any lesser included offenses; (2) his dual convictions for assault and reckless homicide violated double jeopardy principles; and (3) the evidence was insufficient to support his convictions.  After a thorough review, we affirm the judgments of the trial court.

Overton County Court of Criminal Appeals 12/22/16
Gai D. Kuot v. State of Tennessee
M2016-00485-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Monte Watkins

A Davidson County jury convicted the Petitioner, Gai D. Kuot, of first degree premeditated murder, first degree felony murder, and especially aggravated robbery.  On appeal, this Court affirmed his convictions and sentence.  State v. Gai D. Kuot, No. M2012-01884-R3-CD, 2013 WL 4539020, at *1 (Tenn. Crim. App., at Nashville, Aug. 26, 2013), perm. app. denied (Tenn. Dec. 11, 2013).  The Petitioner filed a petition for post-conviction relief in which he alleged that he had received the ineffective assistance of counsel because his trial counsel had failed to obtain a translator to explain to him his rights.  After a hearing, the post-conviction court denied the petition.  We affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 12/21/16
Martez D. Matthews v. State of Tennessee
M2015-02422-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury convicted the Petitioner, Martez D. Matthews, of first degree felony murder, and a life sentence was imposed.  On appeal, this Court affirmed the trial court’s judgments.  See Deangelo M. Moody and Martez D. Matthews, No. M2011-01930-CCA-R3-CD, 2013 WL 1932718, at *1 (Tenn. Crim. App., at Nashville, May 9, 2013), perm. app. denied (Tenn. Oct. 17, 2013).  Subsequently, the Petitioner filed a petition for writ of error coram nobis, which the trial court denied.  On appeal, this Court affirmed the trial court’s denial of relief.  See Martez D. Matthews v. State, No. M2014-01663-CCA-R3-ECN, 2015 WL 3814164, at *1 (Tenn. Crim. App., at Nashville, June 19, 2015), perm. app. denied (Tenn. Oct. 15. 2015).  The Petitioner also filed a post-conviction petition, and the post-conviction court denied relief following a hearing.  On appeal, the Petitioner maintains that he received the ineffective assistance of counsel and that his sentence is unconstitutional pursuant to Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012).  After review, we affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 12/21/16
State of Tennessee v. Daniel McCaig
W2015-01842-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge R. Lee Moore, Jr.

Following a jury trial in the Dyer County Circuit Court, Defendant, Daniel McCaig, was found guilty of misdemeanor theft. Defendant appeals this conviction. The theft charge was in Circuit Court by virtue of Defendant’s appeal from a conviction for the offense following a bench trial in the Dyersburg Municipal Court. The Dyersburg Municipal Court also partially revoked Defendant’s probation in an unrelated offense. Defendant appealed both judgments to the Circuit Court for de novo review. Defendant was sentenced by the Circuit Court to serve 11 months and 29 days in the Dyer County Jail for the theft conviction. The Circuit Court judge (hereinafter “trial judge”) also revoked his probation on the other case and ordered him to serve that sentence concurrently with the sentence for theft. Defendant has also appealed to this court the revocation of probation. In this appeal, Defendant raises the following issues for our review: 1) the evidence was insufficient to support his theft conviction; and 2) his due process rights were violated by the State’s failure to provide written notice of the allegation against him which was the basis for the trial court’s revocation of probation. Having reviewed the record and the briefs of the parties, we conclude that the evidence was sufficient to support Defendant’s conviction for theft. We also conclude that the written notice to Defendant of his probation violation did not include the theft charge, and therefore, that ground cannot be a basis to revoke probation. Furthermore, the trial court failed to base its decision on a de novo review. Therefore, we affirm Defendant’s theft conviction and reverse the trial court’s revocation of Defendant’s probation, and dismiss the probation violation warrant.

Dyer County Court of Criminal Appeals 12/19/16
State of Tennessee v. Timothy Andrew Bishop
M2015-00314-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Timothy Andrew Bishop, appeals his convictions for two counts of child abuse, a Class D felony.  The Defendant challenges the trial court’s admission of lay opinion testimony from a detective regarding the victim’s bruises, the prosecutor’s statements during closing argument, and the admission of a hearsay statement under the then existing state of mind exception. He also asserts on appeal that the trial court erred in admitting, under the excited utterance exception to the rule against hearsay, the victim’s statements at school that the Defendant was responsible for his bruises.  After a thorough review, we conclude that the hearsay statements admitted as excited utterances were admitted in error and that the error was not harmless.  Accordingly, we reverse and remand for a new trial.

Davidson County Court of Criminal Appeals 12/16/16
Maurice Dotson v. State of Tennessee
W2016-00344-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Petitioner, Maurice Dotson, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief from his convictions of possessing marijuana with intent to sell and deliver, possessing a firearm during the commission of a dangerous felony, possessing drug paraphernalia, and theft of property valued under five hundred dollars and resulting effective eleven-year sentence. On appeal, the Petitioner contends that his guilty pleas were involuntary and that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 12/15/16
Larry Hunt v. State of Tennessee
W2015-01836-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Glenn Wright

The Petitioner, Larry Hunt, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his aggravated robbery, aggravated kidnapping, and aggravated rape convictions, for which he is serving an effective thirty-two-year sentence. He contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 12/15/16
State of Tennessee v. Jakeil Malik Waller
W2015-02361-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

In December 2014, the Madison County Grand Jury indicted Jakeil Malik Waller (“the Defendant”) and the Defendant’s brother, Jernigal Blackwell, for second degree murder and aggravated assault. Following a trial, a jury convicted the Defendant of second degree murder and felony reckless endangerment, as a lesser included offense of aggravated assault, and the trial court sentenced the Defendant to an effective sentence of twenty-seven years’ incarceration. On appeal, the Defendant contends that: (1) the evidence was insufficient to support his conviction for second degree murder; (2) the prosecutor committed misconduct during closing argument; and (3) the trial court abused its discretion by admitting two photographs of the victim that were not relevant to any issue at trial. Upon review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/15/16
Charles T. Hartley v. State of Tennessee
E2015-01445-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Donald Ray Elledge

The petitioner, Charles T. Hartley, appeals the denial of his petition for post-conviction relief. The petitioner, originally indicted for rape of a child, entered an Alford plea to the lesser offense of attempted aggravated sexual battery and received a sentence of ten years to be served on supervised probation. The petitioner filed a petition for post-conviction relief arguing: (1) the judgments in his case were illegal because they did not reflect the sentence of mandatory supervision for life; and (2) he received ineffective assistance of counsel. The post-conviction court dismissed the petition finding that it was barred by the statute of limitations and also ruled that if an appellate court concluded that the petition was not barred, that the petitioner received effective assistance of counsel. On appeal, the petitioner argues that the trial court erred when it dismissed his petition. Following our review, the judgment of the post-conviction court is affirmed.

Anderson County Court of Criminal Appeals 12/15/16
State of Tennessee v. Sherry Ann Claffey
W2016-00356-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Joe H. Walker, III

Sherry Ann Claffey (“the Defendant”) entered a no contest plea to two counts of vehicular homicide as a result of reckless conduct. Following a hearing, the trial court denied judicial diversion, sentenced the Defendant to concurrent terms of five years on each count, and ordered the Defendant to serve 200 days in confinement and to serve the balance of her sentence on probation. On appeal, the Defendant argues that because the trial court failed to properly consider the factors  applicable to judicial diversion, no presumption of reasonableness should apply to the trial court’s denial of judicial diversion, and this court should conduct a de novo review of the record and grant judicial diversion. After a review of the record and applicable law, we conclude that because the trial court unduly considered irrelevant facts concerning the death  of victims and facts not supported by the proof concerning the Defendant’s prescription drug usage to support the three factors on which it relied to deny judicial diversion, no presumption of reasonableness applies. After reviewing the record de novo, we hold that judicial diversion should be granted to the Defendant and reverse the judgments of the trial court.

Tipton County Court of Criminal Appeals 12/14/16
Harvey Eugene Taylor v. State of Tennessee
M2016-00933-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Monte Watkins

The trial court summarily dismissed the Appellant’s “motion for new trial or evidentiary hearing on the grounds of ineffective assistance of counsel.”  The trial court properly treated the pleading as a subsequent petition seeking post-conviction relief and denied the same without a hearing.  The trial court’s ruling is hereby affirmed.

Davidson County Court of Criminal Appeals 12/14/16
State of Tennessee v. Angela Ayers
W2014-00781-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Tennessee Supreme Court has remanded this case for reconsideration in light of State v. Willie Duncan, --- S.W.3d. ---, No. W2013-02554-SC-R11-CD, 2016 WL 6024007 (Tenn. Oct. 14, 2016). See State v. Angela Ayers, No. W2014-00781-CCA-R3-CD, 2015 WL 4366633 (Tenn. Crim. App. July 16, 2015) (“Ayers I”), perm. app. filed, case remanded (Tenn. Oct. 31, 2016). Relevant to the current remand, this court concluded in the previous appeal that the State‟s failures to identify the underlying dangerous felony in the indictment count related to employing a firearm during the commission of a dangerous felony and to charge a separate offense that was an enumerated dangerous felony rendered the indictment count relative to the employing a firearm during the commission of a dangerous felony defective. Upon further review, we conclude that in lieu of identifying the enumerated dangerous felony in the indictment count charging employing a firearm during the commission of a dangerous felony, the indictment must charge separately at least one enumerated dangerous felony in order to provide a defendant with adequate notice of the charged offense. Under the circumstances in this case, we conclude that the count charging employing a firearm during the commission of a dangerous felony is defective because it failed to provide the Defendant adequate notice of the charged offense. We affirm the judgments of the trial court relative to the voluntary manslaughter and false report convictions, but we reverse the employing a firearm during the commission of a dangerous felony judgment, vacate the conviction, and dismiss the charge.

Shelby County Court of Criminal Appeals 12/13/16
State of Tennessee v. Mark Brian Dobson a/k/a Mark B. Martin
M2015-00818-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, Mark Brian Dobson, of five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony.  After a sentencing hearing, he received an effective seventy-year sentence.  On appeal, the Appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court improperly denied his motion for a continuance, (3) the trial court erred by admitting into evidence a recorded telephone call in which his mother mentioned a stolen firearm, (4) the indictment for the charge of employing a firearm during the commission of a dangerous felony was defective for failing to name the underlying dangerous felony, (5) the trial court improperly instructed the jury on employing a firearm during the commission of a dangerous felony, and (6) his effective sentence is excessive.  Based upon the record and the parties’ briefs, we conclude that the Appellant’s sentence for employing a firearm during the commission of a dangerous felony in count eleven must be modified and remand the case to the trial court for correction of that judgment and to correct a clerical error on the judgment for count twelve.  The judgments of the trial court are affirmed in all other respects.

Davidson County Court of Criminal Appeals 12/13/16
State of Tennessee v. Hayden Daniel Rutherford
M2016-00014-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Thomas W. Graham

The defendant, Hayden Daniel Rutherford, appeals his Sequatchie County Circuit Court guilty-pleaded conviction of robbery, claiming that the trial court erred by ordering that he serve his six-year sentence in confinement.  Discerning no error, we affirm.

Sequatchie County Court of Criminal Appeals 12/13/16
In Re: A-River City Bail Bond, Inc.
W2015-01578-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Lee V. Coffee

The appellant, A-River City Bail Bond, Inc., appeals its suspension from writing bonds in the Thirtieth Judicial District due to its failure to comply with the local rules. The appellant argues that a local rule requiring the posting of at least $75,000 in cash or certificate of deposit with the Criminal Court Clerk does not apply to it and that the trial court failed to provide it with procedural due process when suspending its ability to write bonds. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/12/16
Jimmy Newell v. Tamara Ford, Warden
W2016-00941-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge H. Walker, III

The Petitioner, Jimmy Newell, appeals the dismissal of his habeas corpus petition in which he challenged the legality of his two convictions for theft of property between $1,000 and $10,000 and his effective four-year sentence concurrently and with parole eligibility after service of thirty percent of his sentence. After a thorough review of the record, we conclude that the petition was properly dismissed, and we affirm the judgment of the habeas corpus court.

Hardeman County Court of Criminal Appeals 12/12/16
Heather McMurry v. State of Tennessee
E2016-00158-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Heather McMurry, appeals the post-conviction court's denial of her petition for post-conviction relief from her convictions of numerous drug offenses within 1,000 feet of a school zone and resulting effective twelve-year sentence with a mandatory eight years to be served in confinement. On appeal, the Petitioner contends that she received the ineffective assistance of trial counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 12/12/16
Rodney Glover v. State of Tennessee
M2016-00619-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Rodney Glover, was convicted of conspiracy to commit aggravated burglary, aggravated burglary, conspiracy to commit theft of property over $10,000, aggravated robbery, aggravated kidnapping, and theft of property under $500 and was sentenced to fifty years of incarceration to be served at 100%. This Court affirmed the judgments and sentence on appeal. State v. Rodney Glover, No. M2011-00854-CCA-R3-CD, 2012 WL 1071716, at *1 (Tenn. Crim. App., at Nashville, Mar. 28, 2012), no perm. app. filed. In 2013, the Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. We affirm the post-conviction court’s judgment.

Montgomery County Court of Criminal Appeals 12/12/16
State of Tennessee v. Candace Renee Bennett
M2016-00287-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth Norman

The Defendant, Candace Renee Bennett, pleaded guilty to attempted aggravated child neglect in exchange for an agreed eight-year sentence. The trial court ordered that the Defendant serve her sentence on probation and that her sentence run concurrently with a sentence in another case. The Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 contending that her sentence was illegal. She asked to withdraw her guilty plea and have the charges dismissed. The trial court denied her motion. On appeal, the Defendant contends that her sentence is illegal because it is not authorized by, and directly contravenes the criminal responsibility statute. After review, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 12/12/16