Court of Criminal Appeals Opinions

Format: 12/09/2016
Format: 12/09/2016
State of Tennessee v. Lajuan Harbison
E2015-02170-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Lajuan Harbison, was convicted by a Knox County Criminal Court jury of attempt to commit second degree murder, a Class B felony, and employing a firearm during commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-210(a)(1) (2014) (second degree murder), 39-17-1324 (2014) (employing a firearm during the commission of a dangerous felony), 39-12-101(a) (2014) (criminal attempt). The Defendant received an effective sixteen-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by denying his motion for a judgment of acquittal, and (3) the trial court erred by classifying him as a dangerous offender and ordering consecutive service of his effective sentence with his sentence in a previous case. We affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 09/14/16
State of Tennessee v. Myron Pierre Walton
E2016-00210-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Defendant, Myron Pierre Walton, entered guilty pleas in case numbers 232819 and 232878 to two counts of possession of cocaine with intent to sell. The Defendant was sentenced to serve concurrent sentences of eight years on supervised probation. Later, in case number 242679, the Defendant pleaded guilty to aggravated assault. The trial court revoked the Defendant’s probation in cases 232819 and 232878 and sentenced him to serve three years concurrently to the previously-imposed eight-year sentences. On August 21, 2014, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct illegal sentences. The trial court summarily denied relief, and the Defendant appealed. This court reversed the judgment of the trial court and remanded the case for further proceedings. On remand, the trial court summarily denied relief because of changes in the controlling law. The Defendant appeals the trial court’s denial of relief. We affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 09/14/16
State of Tennessee v. Kenneth A. Jones
M2015-02045-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Kenneth A. Jones, was convicted of one count of robbery and sentenced to fifteen years.  On appeal, Defendant argues that the trial court erred by failing to grant a mistrial after a State’s witness made reference to other crimes of which Defendant was suspected.  Upon our review of the record, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 09/12/16
Jerome Sidney Barrett v. State of Tennessee
M2015-01143-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Jerome Sidney Barrett, appeals from the post-conviction court’s denial of relief from his conviction for first degree premeditated murder. In this appeal, the Petitioner argues that he received ineffective assistance of counsel and that the post-conviction court erred in denying his request for independent DNA testing.  Upon review, we are compelled to reverse the judgment of the post-conviction court and remand for new hearings to determine whether the Petitioner is entitled to post-conviction relief and independent DNA testing...

Davidson County Court of Criminal Appeals 09/12/16
State of Tennessee v. Antonio Champion
W2016-00675-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Kyle Atkins

The defendant, Antonio Champion, appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. Because the challenged sentences are expired, the defendant is not entitled relief. Accordingly, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 09/09/16
Danny R. Mays v. State of Tennessee
W2015-02237-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

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

Madison County Court of Criminal Appeals 09/09/16
Antonio Bonds v. State of Tennessee
W2015-02393-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge John Wheeler Campbell

The petitioner, Antonio Bonds, appeals the Shelby County Criminal Court’s preliminary order dismissing his third petition for post-conviction relief. The petitioner claims the post-conviction court erred in dismissing his petition as time-barred. Upon review, we affirm the post-conviction court’s preliminary order dismissing the petition.

Shelby County Court of Criminal Appeals 09/09/16
State of Tennessee v. Joe Willis
W2015-01839-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge John Wheeler Campbell

The Defendant-Appellant, Joe Willis, was convicted by a Shelby County jury as charged of two counts of aggravated assault, one count of aggravated burglary, one count of theft of property valued at $500 or less, and one count of evading arrest, and the trial court imposed an effective ten-year sentence. In his sole issue on appeal, Willis challenges the sufficiency of the evidence supporting his convictions. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/09/16
State of Tennessee v. Bakary Kassama
W2016-00084-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John W. Campbell

The defendant, Bakary Kassama, appeals the trial court’s summary dismissal of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. Because the defendant failed to state a colorable claim for Rule 36.1 relief, we affirm the summary dismissal of the motion pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 09/09/16
Johnny Parker v. State of Tennessee
W2015-01383-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Lee Moore, Jr.

The petitioner, Johnny Parker, acting pro se, appeals the post-conviction court's denial of his petitions for post-conviction relief, which, at his request, this court consolidated for the purposes of appeal. On appeal, as we understand, he argues as to both that his post-conviction counsel was ineffective. After review, we affirm the denial of the petitions.

Lake County Court of Criminal Appeals 09/09/16
State of Tennessee v. Robert Butler
W2015-01720-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey, Jr.

In consolidated cases, the defendant, Robert Butler, was convicted by a Shelby County Criminal Court jury of two counts of aggravated burglary, Class C felonies; theft of property valued at $1000 or more but less than $10,000, a Class D felony; and theft of property valued at $500 or less, a Class A misdemeanor. He was sentenced to ten years for each aggravated burglary conviction, six years for the theft of property valued at $1000 or more conviction, and eleven months and twenty-nine days for the theft of property valued at $500 or less conviction. The court ordered partial consecutive sentencing and imposed an effective term of twenty years in the Department of Correction. On appeal, the defendant argues that the trial court erred in allowing testimony from a State's witness that contained information from his statement in another case pending against him and that the court erred in sentencing. After review, we affirm the judgments of the trial court but remand for entry of corrected judgments in Counts 1 and 2 of Case No. 13-06085 to check the box indicating that the defendant was found guilty in those counts.

Shelby County Court of Criminal Appeals 09/09/16
John Barlow v. State of Tennessee
W2015-01647-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James C. Beasley, Jr.

A Shelby County jury convicted the Petitioner, John Barlow, of aggravated child abuse and aggravated child neglect, and the trial court sentenced the Petitioner to an effective sentence of twenty-five years. This Court affirmed the Petitioner's conviction for aggravated child abuse but reversed and dismissed his conviction for aggravated child neglect, noting that the holding did not change his sentence. State v. John Barlow, No. W2008-01128-CCA-R3-CD, 2010 WL 1687772, at *1 (Tenn. Crim. App., at Jackson, Apr. 26, 2010), perm. app. denied (Tenn. Sept. 24, 2010). The Petitioner filed a petition for post-conviction relief in which he alleged that that his trial counsel was ineffective. The post-conviction court, after a hearing, denied the petition. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition. After review, we affirm the post-conviction court's judgment.

Shelby County Court of Criminal Appeals 09/09/16
State of Tennessee v. Charles Ward, Jr.
M2016-00214-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Charles Ward, Jr., appeals as of right from the Davidson County Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence.  The defendant contends that the trial court erred in concluding that Rule 36.1 relief was not available because the alleged illegal sentences had expired prior to the filing of the motion. Following our review, we affirm the trial court’s denial of the defendant’s Rule 36.1 motion.

Davidson County Court of Criminal Appeals 09/09/16
Gordon Wayne Davis v. State of Tennessee
E2015-00772-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Bobby R. McGee

The Petitioner, Gordon Wayne Davis, pleaded guilty to multiple felony offenses including one count of possession with intent to sell a Schedule II narcotic in a park zone, two counts of sale of a Schedule II narcotic, one count of possession of a firearm during the commission of a dangerous felony, and one count of simple possession. In accordance with the plea agreement, the trial court sentenced the Petitioner, a Range II offender, to an effective sentence of fifteen years, to be served at 100%. The Petitioner filed a petition for post-conviction relief in which he alleged that he had received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered. After a hearing, the post-conviction court dismissed the petition. On appeal, the Petitioner maintains that his counsel was ineffective and that his guilty plea was not knowingly and voluntarily entered. After review, we conclude that the post-conviction court erred when it dismissed the Petitioner's petition for post-conviction relief. We therefore reverse the post-conviction court's judgment.

Knox County Court of Criminal Appeals 09/09/16
State of Tennessee v. Jayme Conkin
E2015-01286-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James F. Goodwin, Jr.

A Sullivan County Criminal Court jury convicted the Defendant-Appellant, Jayme Conkin, of first offense driving under the influence (DUI), a Class A misdemeanor, and she received a sentence of eleven months and twenty nine days, suspended to supervised probation after forty-eight hours' incarceration in the Sullivan County jail. On appeal, Conkin contends that (1) the evidence is insufficient to support her conviction; (2) the trial court erred in denying her motion in limine; (3) the Tennessee DUI statute is unconstitutionally vague; and (4) the State failed to disclose exculpatory evidence, requiring a new trial. Upon review, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 09/07/16
State of Tennessee v. Jerrico Lamont Hawthorne
E2015-01635-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Rebecca J. Stern
The Defendant, Jerrico Lamont Hawthorne, was convicted by a Hamilton County Criminal Court jury of first degree premeditated murder, first degree felony murder during the perpetration of or attempt to perpetrate a robbery, attempt to commit first degree murder, a Class A felony, especially aggravated robbery, a Class A felony, and attempt to commit especially aggravated robbery, a Class B felony. See T.C.A. §§ 39-13-202 (2014), 39-13-403 (2014), 39-12-101 (2014). The trial court merged the felony murder conviction with the premeditated murder conviction and sentenced the Defendant to life imprisonment. The court also sentenced the Defendant to concurrent sentences of twenty-five years for attempted first degree murder, twenty-five years for especially aggravated robbery, and twelve years for attempted especially aggravated robbery. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by denying his motion to suppress the pretrial identifications, (3) the trial court erred by permitting evidence of cell phone data, (4) the trial court erred by permitting evidence pursuant to the dying declaration exception to the rule against hearsay, and (5) the trial court erred by failing to provide jury instructions on the lesser included offenses of voluntary manslaughter, reckless homicide, and criminally negligent homicide. Although we affirm the Defendant's convictions for first degree premeditated and felony murder, attempted first degree murder, and especially aggravated robbery, we reverse the trial court's judgment for attempted especially aggravated robbery, vacate the conviction, and dismiss the charge because of insufficient evidence.
 
Hamilton County Court of Criminal Appeals 09/07/16
State of Tennessee v. Jordan Gregory Love-Dissent
M2015-00183-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

I agree with the majority’s conclusions regarding Mr. Pilarski’s testimony and the trial court’s committing reversible error by admitting the codefendants’ statements.  To me, the fact that the State even pursued charges against everyone in the home and the victim’s father is troubling.  I write separately, though, to dissent from the majority’s conclusion that the evidence is insufficient to support the Defendant’s convictions.

Davidson County Court of Criminal Appeals 09/07/16
State of Tennessee v. Jordan Gregory Love
M2015-00183-CCA-R3-CD
Authoring Judge: Jude Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Jordan Gregory Love, was convicted by a Davidson County Criminal Court Jury of two counts of aggravated child abuse of a child eight years of age or less, Class A felonies, and two counts of aggravated child neglect of a child eight years of age or less, Class A felonies.  See T.C.A. § 39-15-402 (2010) (amended 2011, 2012, 2016).  The trial court merged the aggravated child abuse convictions and merged the aggravated child neglect convictions and sentenced the Defendant to concurrent eighteen-year sentences at 100% service.  On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by limiting his cross-examination of a State’s witness, and (3) the trial court erred by admitting the non-testifying codefendants’ statements into evidence.  We conclude that although the evidence sufficiently established that the victim suffered bodily injury, the evidence is insufficient to show that the victim suffered serious bodily injury and that the victim’s injury was inflicted by a dangerous instrumentality.  Furthermore, we conclude that the trial court erred by admitting the non-testifying codefendants’ statements into evidence.  The Defendant’s convictions for aggravated child abuse and aggravated child neglect by inflicting serious bodily injury are reversed.  Because the trial court erred by admitting evidence at the trial, the case is remanded to the trial court for a new trial on the lesser charges of child abuse and child neglect.  The Defendant’s convictions for aggravated child abuse and aggravated child neglect by inflicting injury with a dangerous instrumentality are vacated, and the charges are dismissed

Davidson County Court of Criminal Appeals 09/07/16
State of Tennessee v. Pamela Moses
W2015-01240-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Weber McCraw

The Defendant-Appellant, Pamela Moses, entered guilty pleas to theft of merchandise worth $500 or less, tampering with or fabricating evidence, forgery, perjury, stalking, and escape in exchange for an effective sentence of seven years. Shortly after entry of these judgments, Moses filed a motion to withdraw her guilty pleas, which was denied by the trial court following a hearing. On appeal, Moses argues that the trial court abused its discretion in denying the motion to withdraw her plea. We affirm the trial court's denial of the motion to withdraw the guilty plea but remand for correction of clerical errors in the judgment forms.

Shelby County Court of Criminal Appeals 09/06/16
State of Tennessee v. Antoine Perrier
W2015-01642-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The Defendant-Appellant, Antoine Perrier, was convicted in the Shelby County Criminal Court of attempted voluntary manslaughter in Count 1, employment of a firearm during the attempt to commit a dangerous felony in Count 2, aggravated assault in Counts 3 through 7, and assault in Count 8. The trial court merged Count 3 with Count 1 before sentencing Perrier to an effective sentence of thirty years. In this delayed appeal, Perrier argues: (1) the trial court erroneously instructed the jury on self-defense; (2) the trial court committed plain error in failing to instruct the jury on possession of a firearm during the attempt to commit a dangerous felony as a lesser included offense of employment of a firearm during the attempt to commit a dangerous felony; (3) the employment of a firearm count is void because it fails to name the predicate felony for the firearm offense; (4) the trial court erred in declining to instruct the jury on the defense of necessity; and (5) the evidence is insufficient to sustain his conviction for assault. We conclude that although the self-defense instruction was erroneous, the error was harmless. Therefore, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/06/16
State of Tennessee v. Cordalle Benton
W2016-00323-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge John Wheeler Campbell

The Shelby County Grand Jury indicted Cordalle Benton (“the Defendant”) for one count of rape of a child that allegedly occurred between December 1, 2012, and July 16, 2013. Following a jury trial, the Defendant was convicted as charged and sentenced to thirty-two years’ incarceration. On appeal, he argues that the evidence was insufficient to support his conviction. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/06/16
Gregory L. Hatton v. State of Tennessee
M2015-01830-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge David L. Allen

Petitioner, Gregory L. Hatton, pleaded guilty on July 18, 1977, to armed robbery, first degree burglary, two counts of simple kidnapping, assault with intent to commit murder, grand larceny, and rape in the Giles County Circuit Court.  The offenses in this case occurred in Maury County, and Petitioner’s brief states that a motion for a change of venue had been filed in 1977.  Maury and Giles County are in the same judicial district. The trial court imposed an effective sentence of life plus thirty years. Gregory Hatton v. State, No. M2000-00756-CCA-R3-PC, 2001 WL 567845 (Tenn. Crim. App. May 25, 2001).  He filed a request pursuant to the Post-Conviction DNA Analysis Act of 2001 seeking testing of any physical evidence in his case.  The post-conviction court summarily denied relief based upon affidavits from the relevant authorities stating that no physical evidence remained for testing.  Upon review, we affirm the judgment of the post-conviction court.

Giles County Court of Criminal Appeals 09/06/16
State of Tennessee v. Joseph A. Cundiff
M2015-00563-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

Defendant, Joseph A. Cundiff, was indicted by a Sumner County Grand Jury for premeditated first degree murder of his wife and unlawful possession of a handgun by a felon.  After a jury trial, Defendant was found guilty of second degree murder.  Defendant pled guilty to unlawful possession of a weapon by a felon.  The trial court imposed concurrent sentences of twenty-five years for second degree murder and two years for unlawful possession of a handgun by a felon. On appeal, Defendant argues that:  1) the trial court erred by denying his motions for judgment of acquittal; 2) the evidence was not sufficient to support his second degree murder conviction; and 3) the trial court erred in sentencing him to the maximum sentence for second degree murder.  After a thorough review, we affirm the judgments of the trial court.

Sumner County Court of Criminal Appeals 09/06/16
Dyron Norm Yokley v. State of Tennessee
E2015-01386-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Petitioner, Dyron Norm Yokley, appeals the Hamilton County Criminal Court's denial of his petition for post-conviction relief from his second degree felony murder conviction and resulting thirty-five-year, Range II sentence. The Petitioner contends that the post-conviction court erred in denying his petition. We affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 09/06/16
State of Tennessee v. Randall Evans
E2015-01815-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Sandra Donaghy

The Defendant-Appellant, Randall Evans, was convicted by a Bradley County jury of one count of casual exchange of a controlled substance. See T.C.A. § 39-17-418. Evans received a sentence of eleven months and twenty-nine days, with fifteen days’ incarceration and the remainder on supervised probation, and a $750 fine. He subsequently filed a motion to reconsider his sentence, which the trial court interpreted as a motion for a reduction of sentence pursuant Tennessee Rule of Criminal Procedure 35, and, following a hearing, the motion was denied. The sole issue raised on appeal is whether the trial court improperly denied Evans’s motion for sentence reduction. Upon review, the judgment of the trial court is affirmed.

Bradley County Court of Criminal Appeals 09/02/16