Court of Criminal Appeals Opinions

Format: 05/23/2017
Format: 05/23/2017
State of Tennessee v. Johnny Lynn a.k.a. Jerome Buss
M2015-02413-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Deanna B. Johnson

Defendant, Johnny Lynn, appeals the trial court’s denial of his motion under Tennessee Rule of Criminal Procedure 36.1 to correct an illegal sentence.  Defendant contends that the trial court erred by concluding that relief was not available because his sentence was legal and, thus, he failed to state a colorable claim under Rule 36.1. After a thorough review of the record and applicable law, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Perry County Court of Criminal Appeals 03/03/17
State of Tennessee v. Kelly Nicole Henderson
M2016-01325-CCA-R9-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Amanda J. McClendon

We granted this interlocutory appeal to review the trial court’s order granting the Defendant’s motion to suppress the results of a breath alcohol test.  Prior to trial, the Defendant filed a motion to suppress the results of the breath alcohol test based upon a violation of State v. Sensing,843 S.W.2d 412 (Tenn. 1992).  The trial court granted the Defendant’s motion to suppress, and the State filed for an interlocutory appeal.  After review of the record and applicable authority, we hold that the trial court erred in suppressing the results of the blood alcohol test because the State attempted to properly admit them through expert testimony in accordance with Tennessee Rules of Evidence 702 and 703.

Davidson County Court of Criminal Appeals 03/03/17
Bobby Dewayne Presley v. State of Tennessee - Dissent
M2015-00520-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge L. Craig Johnson

I agree with the majority that this case has a “mystifying” procedural history.  I write separately to express my concerns regarding the authority of the Petitioner’s mother, acting through a standard form durable power of attorney, to dismiss the Petitioner’s direct appeal of his 2011 conviction.  Equally concerning is the waiver by the Petitioner’s mother of appellate counsel’s conflict in representing the Petitioner during his direct appeal and post-conviction proceedings.  As the majority notes, the issue of the Petitioner’s mother authority to act on behalf of the Petitioner was not raised.

Coffee County Court of Criminal Appeals 03/03/17
Bobby Dewayne Presley v. State of Tennessee
M2015-00520-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge L. Craig Johnson

Petitioner sought post-conviction relief alleging that trial counsel’s ineffectiveness prevented him from seeking a direct appeal.  The post-conviction court denied relief after a hearing, finding that Petitioner failed to show he was prejudiced by trial counsel’s actions.  We determine that the record does not preponderate against the findings of the post-conviction court.  Therefore, we affirm the denial of post-conviction relief.

Coffee County Court of Criminal Appeals 03/03/17
State of Tennessee v. Tavis Bowers
W2016-01007-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Tavis Bowers, was convicted by a Madison County jury of two counts of assault by offensive or provocative touching, a Class B misdemeanor, and one count of resisting arrest, also a Class B misdemeanor. He was sentenced by the trial court to concurrent six-month sentences for the assault convictions, to be served consecutively to a six-month sentence for the resisting arrest conviction. On appeal, he challenges the sufficiency of the convicting evidence and argues that the trial court committed plain error by not instructing the jury on self-defense. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 03/02/17
Rodney Watkins v. State of Tennessee
W2016-00075-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee V. Coffee

The petitioner, Rodney Watkins, appeals the denial of post-conviction relief from his 2009 Shelby County Criminal Court jury conviction of second degree murder, for which he received a sentence of 25 years. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 03/02/17
Kenneth L. Langley v. State of Tennessee
E2016-01726-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge David A. Patterson

The Petitioner, Kenneth Leroy Langley, appeals the summary dismissal of his petition for writ of habeas corpus. The habeas corpus court found that it was without jurisdiction to hear the petition because the Petitioner filed the writ in the incorrect county. Although we hold that the habeas corpus court had jurisdiction, we nevertheless affirm the dismissal of the petition.

Cumberland County Court of Criminal Appeals 03/02/17
State of Tennessee v. Allan Wayne Bradberry
M2016-00501-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Suzanne Lockert-Mash

The defendant, Allan Wayne Bradberry, was convicted of twenty-five counts of especially aggravated sexual exploitation of a minor, Tenn. Code Ann. § 39-17-1005, three counts of statutory rape by an authority figure, Tenn. Code Ann. § 39-13-532, one count of sexual exploitation of a minor, Tenn. Code Ann. § 39-17-1003,one count of rape,Tenn. Code Ann. § 39-13-503,and three counts of incest, Tenn. Code Ann. § 39-15-302.  On appeal, the defendant argues the trial court failed to require the State to elect the offenses upon which it sought to convict the defendant.  The defendant also argues the trial court’s imposition of partial consecutive sentencing resulted in an excessive, eighty-four-year sentence.  Following our review, we affirm the judgments of the trial court.

Humphreys County Court of Criminal Appeals 03/02/17
Khaleefa Lambert v. State of Tennessee
M2016-01059-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge William R. Goodman, III

Khaleefa Lambert (“the Petitioner”) was found guilty of first degree murder and especially aggravated kidnapping by a Montgomery County jury, for which the Petitioner received a sentence of life plus eighteen years.  This court affirmed the Petitioner’s convictions and sentences, and our supreme court denied further review.  The Petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel, which the post-conviction court denied.  On appeal, the Petitioner argues that trial counsel rendered ineffective assistance based on trial counsel’s failure to: (1) investigate evidence and case law that would have contradicted the State’s argument of premeditation; (2) discuss jury selection with the Petitioner; and (3) discuss the decision to testify with the Petitioner.  After a thorough review of the record and applicable case law, we affirm.

Montgomery County Court of Criminal Appeals 03/02/17
Deangelo Moody v. State of Tennessee
M2015-02424-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Mark J. Fishburn

The State appeals the trial court’s granting the petitioner, Deangelo Moody, post-conviction relief from his conviction for first degree felony murder after finding that the petitioner received ineffective assistance of counsel.  After review, we reverse the post-conviction court’s grant of relief and reinstate the judgment against the petitioner.

Davidson County Court of Criminal Appeals 03/02/17
Willie C. Cole v. State of Tennessee
M2016-00625-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge William R. Goodman, III

Petitioner, Willie C. Cole, filed a pro se petition for post-conviction relief, challenging various aspects of trial counsel’s representation as ineffective, among other things.  After appointment of counsel and a hearing, the post-conviction court denied relief and dismissed the petition.  We affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 03/01/17
Kevin Lee Johnson v. State of Tennessee
M2015-02273-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Kevin Lee Johnson, entered a guilty plea on April 17, 2013, for failure to appear, a Class E felony. The Petitioner filed a post-conviction petition challenging his conviction for failure to appear and also challenging a 2012 conviction for operating a vehicle after having been declared a motor vehicle habitual offender (“MVHO”). The post-conviction court dismissed both claims. On appeal, this court affirmed the dismissal of the part of the petition related to the 2012 conviction but reversed and remanded for a hearing on the part of the petition related to the conviction for failure to appear. See Kevin Lee Johnson v. State (Kevin Lee Johnson I), No. M2014-01166-CCA-R3-PC, 2015 WL 2445817, at *3 (Tenn. Crim. App. May 22, 2015) no perm. app. filed. The post-conviction court held an evidentiary hearing on the allegation that the Petitioner received the ineffective assistance of counsel during his guilty plea to the charge of failure to appear, and the post-conviction court denied the petition, finding neither deficiency nor prejudice. Discerning no error, we affirm the denial of the petition.

Marshall County Court of Criminal Appeals 03/01/17
Gene E. Nevils a/k/a Gene E. Edwards v. State of Tennessee
M2016-00686-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James G. Martin, III

In 2014, the Petitioner, Gene E. Nevils a/k/a Gene E. Edwards, pleaded guilty to sale of 0.5 or more grams of cocaine and was sentenced to twelve years of incarceration.  In 2015, the Petitioner filed a pro se petition for post-conviction relief, alleging that he had not entered his guilty plea knowingly and voluntarily and that he had received the ineffective assistance of counsel.  The post-conviction court held a hearing on the petition and denied relief.  We affirm the post-conviction court’s judgment.

Williamson County Court of Criminal Appeals 03/01/17
Henry Thomas Johnson v. State of Tennessee
M2016-00820-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jill Bartee Ayers

A Montgomery County jury convicted the Petitioner, Henry Thomas Johnson, of premeditated first degree murder and aggravated burglary.  On appeal, this Court affirmed the sufficiency of the convicting evidence.  State v. Henry T. Johnson, No. M2010-02452-CCA-R3-CD, 2012 WL 1071809, at *1 (Tenn. Crim. App., at Nashville, Mar. 28, 2012), perm. app. denied (Tenn. May 16, 2012).  The Petitioner filed a timely petition for post-conviction relief in which he contended that he had received the ineffective assistance of counsel at trial.  After a hearing, the post-conviction court denied the petition.  On appeal, the Petitioner maintains his contention, arguing that his trial counsel was ineffective because his trial counsel failed to effectively cross-examine multiple witnesses.  After review, we affirm the post-conviction court’s judgment.

Montgomery County Court of Criminal Appeals 03/01/17
Billy Richard Hicks v. State of Tennessee
E2016-01437-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Billy Richard Hicks, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he challenged his convictions for driving under the influence (“DUI”), tenth offense; violation of the motor vehicle habitual offender (“MVHO”) statute; driving on a revoked license, second or subsequent conviction; and criminal impersonation. On appeal, the Petitioner contends that trial counsel was ineffective in failing to show the video of the Petitioner’s performance on the field sobriety tests to the Petitioner prior to trial. We affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 02/28/17
Rachel L. Calhoun v. State of Tennessee
E2016-00858-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Jerry Beck

The Petitioner, Rachel L. Calhoun, appeals the denial of her petition for post-conviction relief in which she challenged her guilty pleas to two counts of first degree murder, one count of especially aggravated robbery, one count of identity theft, and one count of fraudulent use of a credit card and her effective life sentence. On appeal, the Petitioner contends that she was denied her right to the effective assistance of counsel, arguing that trial counsel should have independently tested palm print evidence used against her. She also argues that her pleas were unknowing and involuntary. We affirm the post-conviction court’s denial of relief.

Sullivan County Court of Criminal Appeals 02/28/17
State of Tennessee v. Jesse James Somerville, IV
W2016-01128-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Joe H. Walker, III

The defendant, Jesse James Somerville, IV, appeals the order of the trial court revoking his probation and imposing his original sentence of eight years in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding that the defendant violated the terms of his probation. Accordingly, the judgment of the trial court is affirmed.

Tipton County Court of Criminal Appeals 02/28/17
State of Tennessee v. Darnell Keith Roberts
W2016-01542-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jeff Parham

The defendant, Darnell Keith Roberts, pled guilty to aggravated robbery. The trial court subsequently sentenced the defendant, a Range II, multiple offender, to fifteen years of imprisonment. On appeal, the defendant contends the trial court imposed an excessive sentence. Discerning no error, we affirm the judgment of the trial court.

Weakley County Court of Criminal Appeals 02/28/17
State of Tennessee v. Rickie Reed
W2016-02119-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

The pro se appellant, Rickie Reed, appeals as of right from the Shelby County Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The defendant contends his motion stated a colorable claim for relief, so the trial court erred in summarily denying it. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 02/28/17
State of Tennessee v. Chrystal Tollison
M2016-00593-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David Patterson

The defendant, Chrystal Tollison, appeals her White County Criminal Court guilty-pleaded conviction of child neglect, claiming that the trial court erred by denying her bid for judicial diversion.  Discerning no error, we affirm.

White County Court of Criminal Appeals 02/28/17
State of Tennessee v. Demarkus Montreal Taylor
M2016-00255-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge William R. Goodman, III

The Defendant, DeMarkus Montreal Taylor, appeals as of right from his conviction of first degree murder in the perpetration of or attempt to perpetrate aggravated child abuse, two counts aggravated child abuse, and one count of filing a false report.  SeeTenn. Code Ann.  §§ 39-13-202(a)(2); -15-402; -16-502.  On appeal, the Defendant contends (1) that the evidence was insufficient to sustain his conviction, arguing that the evidence presented to the jury was predominately circumstantial and that there was no direct proof that the Defendant committed the offenses for which he was charged; (2) that the trial court abused its discretion when it admitted autopsy photographs of the victim, specifically photographs of the victim’s brain and eyes; (3) that the trial court erred when it denied the Defendant’s motion for a new trial after counsel for the co-defendant attempted to introduce testimony regarding the Defendant’s prior drug sales; and (4) that the trial court erred in admitting the victim’s autopsy report, which contained un-redacted information regarding prior physical abuse.  Following our review, we affirm the Defendant’s convictions for first degree felony murder, aggravated child abuse, and false reporting.

Montgomery County Court of Criminal Appeals 02/28/17
State of Tennessee v. Fred Birchfield
E2016-00493-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The Defendant, Fred Birchfield, was found guilty by a Morgan County Criminal Court jury of second degree murder, a Class A felony, and reckless homicide, a Class D felony. See T.C.A. §§ 39-13-210 (2014) (second degree murder), 39-13-215 (2014) (reckless homicide). The trial court sentenced the Defendant to consecutive terms of eighteen years for second degree murder and three years for reckless homicide, for an effective twenty-one-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his second degree murder conviction and (2) the trial court erred by failing to grant his motion for a change of venue. We affirm the judgments of the trial court.

Morgan County Court of Criminal Appeals 02/27/17
State of Tennessee v. Gerald Lamont Byars
W2016-00005-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

Following a jury trial, the Defendant, Gerald Lamont Byars, was convicted of attempted possession of 0.5 grams or more of cocaine with intent to sell, attempted possession of 0.5 grams or more of cocaine with intent to deliver, simple possession of marijuana, and possession of drug paraphernalia. The jury also found that the two attempted cocaine possession offenses constituted criminal gang offenses, and the Defendant received enhanced punishment—a sixteen-year sentence, with the attempted cocaine possession counts and the gang enhancement counts all being merged into a single conviction. He now appeals as of right, arguing (1) that the evidence was insufficient to support his attempted cocaine possession convictions and the gang enhancement violations; (2) that the trial court erred by qualifying a Haywood County Sheriff's Officer as an expert in gang activity; (3) that the gang enhancement statute, Tennessee Code Annotated section 40-35-121, is unconstitutional, entitling him to plain error relief; and (4) that his sixteen-year sentence is excessive. Following our review of the record, we ascertain no error in the guilt phase of the trial on the underlying attempted cocaine possession offenses in Counts 1 and 2. However, because the criminal gang enhancement statute as employed by the State in the guilt phase of the trial on Counts 5 and 6 violates the Due Process Clause of the Fourteenth Amendment and is facially unconstitutional, plain error requires us to reverse the judgments of the trial court in Counts 1, 2, 5, and 6, vacate and dismiss the criminal gang enhancements in Counts 5 and 6, and remand for modification of the judgments in Counts 1 and 2 and a new sentencing hearing on those counts. Because the Defendant does not challenge his misdemeanor convictions or sentences in Counts 3 and 4, those judgments are affirmed.

Madison County Court of Criminal Appeals 02/27/17
Gloria House v. State of Tennessee
E2016-01259-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Barry A. Steelman

The petitioner, Gloria House, appeals the summary dismissal of her motion to reopen her petition for post-conviction relief or, in the alternative, petition for writ of error coram nobis, which pleading challenged her 1993 convictions of nine counts of aggravated burglary, three counts of felony theft, and seven counts of misdemeanor theft. Discerning no error, we affirm the summary dismissal of the petition.

Hamilton County Court of Criminal Appeals 02/27/17
State of Tennessee v. Henri Brooks
W2015-00833-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Paula L. Skahan

The Defendant, Henri Brooks, entered a guilty plea to a charge of making a false entry on an election document, a Class D felony. The Defendant, who was completing a term as a County Commissioner for Shelby County at the time of the offense, listed an incorrect address on a document related to her bid for the position of Shelby County Juvenile Court Clerk. The trial court held a sentencing hearing during which the primary contested issue was the Defendant‘s request for judicial diversion. The trial court ultimately denied diversion and instead sentenced the Defendant to two years of probation. On appeal, the Defendant argues that the trial court abused its discretion in denying diversion because it failed to weigh the factors it was required to consider in denying diversion, because it relied on improper evidence in making the decision, and because the denial was in part based on the Defendant‘s exercise of her First Amendment rights. After a thorough review of the record, we conclude that the trial court improperly relied on evidence outside the record in reaching its decision. Accordingly, we reverse the denial of diversion, and we remand for a new sentencing hearing.

Shelby County Court of Criminal Appeals 02/27/17