Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 03/27/2015
Format: 03/27/2015
State of Tennessee v. Ashley Wheeler
W2013-02765-CCA-R3-CD

Defendant, Ashley Wheeler, was indicted by the Shelby County Grand Jury for two counts of forgery valued at $1,000 or more, but less than $10,000, in Counts 1 and 2. In Count 3, Defendant was indicted for attempted theft of property valued at $1,000 or more, but less than $10,000. Following a jury trial, Defendant was convicted as charged. Following a sentencing hearing, the trial court merged Count 1 with Count 2 and sentenced Defendant to two years for her forgery conviction and one year for her attempted theft conviction. The trial court ordered Defendant’s sentences to be served concurrently and suspended on probation. In this appeal as of right, Defendant asserts that: 1) the prosecutor committed prosecutorial misconduct by making improper comments during closing argument; 2) the evidence was insufficient to support her convictions; and 3) the trial court abused its discretion by denying her requests to be granted judicial diversion and to be sentenced as an especially mitigated offender. Having carefully reviewed the record before us, we conclude that the comments of the prosecutor during closing argument constitute prosecutorial misconduct rising to the level of plain error. We therefore reverse the judgments of the trial court and remand this case for a new trial.

Shelby County Court of Criminal Appeals 03/11/15
State of Tennessee v. Thomas Lee Carey, Jr.
M2013-02483-CCA-R3-CD

1998, Thomas Lee Carey, Jr. (“the Defendant”) was indicted in connection with the 1996 death of Michael Dickerson. The State entered a nolle prosequi as to the charges in 1999. In 2010, the Defendant was re-indicted for the same incident. After a trial, the jury returned guilty verdicts of first degree felony murder, second degree murder, and especially aggravated kidnapping. The Defendant raises four issues on appeal: (1) whether the evidence is sufficient to support his conviction for felony murder; (2) whether the trial court erred in denying the Defendant’s motion for speedy trial; (3) whether the trial court erred in admitting the testimony of a medical examiner who did not conduct the autopsy of the victim; and (4) whether the trial court erred by allowing the State to recall a witness. After a review of the M2013-02483-CCA-R3-CDrecord and applicable law, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 03/10/15
State of Tennessee v. Thomas Lee Carey, Jr. - Concurring
M2013-02483-CCA-R3-CD

I concur in the results reached in the majority opinion. I do not join in that portion of the opinion which holds that admission into evidence of the autopsy report itself was not a violation of the Confrontation Clause.

Davidson County Court of Criminal Appeals 03/10/15
Edwin P. Osborne v. Tennessee State Board of Accountancy
M2014-01050-COA-R3-CV

An accountant appeals the dismissal of his petition for judicial review of an order of the Tennessee State Board of Accountancy. The trial court dismissed the petition for review for lack of subject matter jurisdiction. Because we find the petition for review was not timely filed, we affirm.

Davidson County Court of Appeals 03/10/15
Frank Manning, et al v. Amy Emmitt Manning
M2014-01149-COA-R3-CV

In this grandparent visitation case, the trial court awarded grandparents visitation with the child at issue, finding that there was “some deprivation” of visitation by the child’s mother. We vacate the judgment of the trial court and remand for further proceedings to determine whether the child’s mother opposed visitation, as that phrase is defined in Huls v. Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219 (Tenn. Ct. App. Oct. 22, 2008).

Maury County Court of Appeals 03/10/15
State of Tennessee v. Donnell Tunstall
W2014-00257-CCA-R3-CD

Defendant, Donnell Tunstall, was convicted of attempted second degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault. He received an effective sentence of thirty-two years for these crimes. Defendant now appeals his convictions, claiming insufficient evidence and improper admission of unfairly prejudicial evidence regarding his previous arrest for the murder of the victim’s brother. After careful review, we conclude that the evidence was sufficient to support all of the convictions but that the admission of specific pieces evidence was improper and not harmless. Accordingly, the convictions are reversed and remanded for a new trial.

Shelby County Court of Criminal Appeals 03/10/15
Dennis Smith v. George Testerman, M.D. et al.
E2014-00956-COA-R9-CV

This is a case alleging negligence by the defendants which resulted in injury to a patient, Dennis Smith. Following hernia surgery, Mr. Smith was fitted for a wound vacuum because an infection had developed at the surgical site. A sponge was placed to absorb the infection. The defendants removed the wound vacuum when the infection dissipated, but they failed to remove the sponge, which later caused the wound to burst. Mr. Smith filed suit, and the defendants asserted that dismissal was appropriate because Mr. Smith had not complied with the filing requirements of the health care liability statute. Mr. Smith 1 responded that his complaint sounded in ordinary negligence, not health care liability. The trial court agreed and denied the motions but also granted permission for the defendants to pursue an interlocutory appeal. We granted the application for permission to appeal and now reverse the decision of the trial court.

Sullivan County Court of Appeals 03/10/15
Stephen Michael West, et al v. Derrick D. Schofield, et al
M2014-00320-SC-R11-CV

We granted the State of Tennessee permission to appeal from the Court of Appeals’ decision on interlocutory appeal in which the intermediate appellate court affirmed the trial court’s order compelling discovery in this declaratory judgment action. The Plaintiffs are seeking a declaration that the lethal injection protocol in place for the execution of convicted criminal defendants sentenced to death is unconstitutional. In conjunction with pursuing their claim, the Plaintiffs sought to discover the identity of persons involved in facilitating and carrying out executions. Over the State’s objection, the trial court ordered the State to provide these identities to the Plaintiffs, and the Court of Appeals affirmed the trial court’s order. Upon due consideration, we reverse and remand this matter for further proceedings consistent with this Opinion and in compliance with the timelines set forth in the judgment order filed contemporaneously with this Opinion.

Davidson County Supreme Court 03/10/15
State of Tennessee v. James Stubblefield, III
M2014-01178-CCA-R3-CD

The defendant, James Stubblefield, III, appeals the sentencing decision of the trial court following the revocation of his community corrections sentence. The defendant pled guilty to aggravated burglary, forgery, and driving on a revoked license. He was subsequently sentenced to an effective four-year community corrections sentence as a Range I, standard offender. A violation warrant issued alleging that the defendant had violated the terms and conditions of his community corrections agreement. Following a hearing, the trial court found the defendant to be in violation and revoked the community corrections sentence, ordering that the balance of the four-year sentence be served in incarceration. On appeal, the defendant does not contest the revocation of community corrections itself. Instead, he challenges only the trial court’s decision to order service of the entire sentence in confinement. Following review of the record, the decision of the trial court is affirmed.

Robertson County Court of Criminal Appeals 03/10/15
State of Tennessee v. Lemaricus Devall Davidson
E2013-00394-CCA-R3-DD

The defendant, Lemaricus Devall Davidson, appeals the Knox County Criminal Court jury convictions of two counts of first degree murder, two counts of especially aggravated robbery, two counts of especially aggravated kidnapping, three counts of aggravated rape, and one count of facilitation of aggravated rape that he received for his role in the January 2007 deaths of C.N. and C.C. The defendant claims that: the trial court 2 erred by refusing to suppress evidence obtained during the searches of his residence, his statements to the police following his arrest, and evidence obtained during searches of his person; the trial court erred by admitting into evidence postmortem photographs of the victims; the trial court should have excluded testimony and evidence regarding fingerprint examination and ballistics testing; the trial court erred by permitting courtroom spectators to wear buttons emblazoned with photographs of the victims during the guilt phase; the State violated his constitutional rights by intercepting and examining privileged communications to and from his attorneys; structural constitutional error occasioned by the out-of-court behavior of the trial judge entitles him to a new trial; the second successor trial judge erred by concluding that he could fulfill the statutory duty of thirteenth-juror review; the evidence was insufficient to support his convictions; errors related to the presentment require dismissal of the charges; the trial court erred by permitting jurors to submit questions for the witnesses; the trial court erred by allowing spectators to remain in the courtroom while jurors reviewed the defendant’s videotaped statement as part of their deliberations; the trial court should have dismissed the presentment due to constitutional deficiencies in the jury venire; the trial court erred by refusing to allow him to present evidence of the economic costs associated with the implementation of the death penalty; and the trial court erred by excusing those jurors who were not “death qualified.” The defendant also raises a number of challenges to the death penalty in general and its application in this case specifically. Because we conclude that no reversible error attends the convictions or sentences in this case and because it is our view, after a mandatory review, that the sentences of death imposed in this case were not disproportionate, we affirm the judgments of the trial court. We detect, however, clerical errors that require that the case be remanded for entry of corrected judgment forms.

Knox County Court of Criminal Appeals 03/10/15
Stephen Michael West, et al v. Derrick D. Schofield, et al - Concurring in the judgment only
M2014-00320-SC-R11-CV

I concur in the conclusion reached by my colleagues that the identities of the John Doe defendants are not discoverable under Tennessee Rule of Civil Procedure 26.02(1). In my view,however, the majority opinion contains dicta that unnecessarily addresses several issues with far-reaching implications in death penalty litigation. Therefore, I must respectfully concur in the result only.

Davidson County Supreme Court 03/10/15
Leisa Reed v. Randell Thurman et al.
E2014-00769-COA-R3-CV

This appeal stems from the trial court’s finding that an implied partnership existed between Plaintiff and one of the Defendants with respect to a cattle-raising venture. Despite finding that the parties had already entered into a complete settlement regarding the partnership checking account and remaining partnership cattle, the trial court found that certain partnership assets had not been settled. The trial court’s final decree directed that Plaintiff be paid one- half of the fair market value of these assets, and stated that if no agreement could be reached concerning their value, the items should be sold and the proceeds divided equally. We affirm in part, reverse in part, and remand the case for further proceedings as are necessary and consistent with this Opinion.

Rhea County Court of Appeals 03/10/15
State of Tennessee v. Gary D. Scales
M2014-01094-CCA-R3-CD

Defendant, Gary D. Scales, was indicted by the Davidson County grand jury for one count of robbery.  A jury found Defendant guilty of the charged offense, and the trial court sentenced Defendant to serve 15 years in the Tennessee Department of Correction as a Persistent offender.  Defendant appeals his conviction and asserts that the evidence was insufficient to support his conviction.  Having carefully reviewed the record before us, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/09/15
State of Tennessee v. Brian Allen Osborne
M2014-00352-CCA-R3-CD

In October 2011, the Macon County Grand Jury indicted Brian Allen Osborne (“the Defendant”) for aggravated arson, a Class A felony.  Following a jury trial, the Defendant was convicted as charged and sentenced to 20 years in the Department of Correction.  In this direct appeal, the Defendant contends:  (1) the trial court erred by ruling that proffered testimony from a defense witness was inadmissible hearsay; (2) the trial court provided misleading and prejudicial jury instructions on the defense of intoxication; (3)  the trial court erroneously instructed the jury that aggravated arson was both a result-of-conduct and nature-of-conduct offense; (4) the evidence was insufficient to sustain his conviction; and (5) the trial court erred in its application of enhancement and mitigating factors, resulting in an unjust and improper sentence.  Upon review, we affirm the judgment of the trial court.

Macon County Court of Criminal Appeals 03/09/15
State of Tennessee v. James Allen Ballew
M2014-00378-CCA-R3-CD

Defendant, James Allen Ballew, was indicted by the White County Grand Jury for one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony, from White County Lumber Company.  On January 29, 2013, Defendant entered a guilty plea to theft of property valued at $500 or more but less than $1,000, a Class E felony.  Pursuant to a negotiated plea agreement, Defendant received a two-year sentence to be served on probation and agreed to pay restitution, with the amount to be determined at a subsequent hearing.  A restitution hearing was conducted.  At the conclusion of the hearing, the trial court took the matter under advisement and requested that the State provide the court with a revised pecuniary loss list, including items recovered by the victim.  All that is contained in the transcript from the subsequent hearing is a brief colloquy wherein the trial court said, “we’ve agreed that an order will be submitted on restitution?” and the prosecutor replied, “Yes, your honor.”  The appellate record does not contain a separate order for restitution.  However, an amended judgment was entered, which states that Defendant is ordered to pay restitution in the amount of $11,000 to White County Lumber.  The amended judgment is silent as to the time or manner of payment.  Defendant appeals, arguing that the amount of restitution was unreasonable and unsupported by the evidence and that the trial court did not consider Defendant’s ability to pay restitution.  The State argues that the record is inadequate to allow for appellate review, and therefore, the trial court’s order of restitution should be presumed correct.  We conclude that there is nothing in the record to indicate whether the trial court made a ruling as to the amount of restitution or if an agreement was reached.  Defendant’s ability to pay restitution was apparently not considered by the trial court, and the trial court failed to include the repayment terms on the judgment form.  It is problematic that there is no indication that Defendant’s counsel was present in open court when the trial judge and the prosecutor had their brief colloquy.  Restitution, when appropriate, is just as much an integral part of a sentence as the length of sentence and the manner of service of the sentence.  See T.C.A. § 40-35-104(c)(2).  Thus, there must be something more in the record setting forth restitution other than what is contained in this record.  Moreover, the amended judgment incorrectly states that Defendant was convicted of a Class D felony.  Accordingly, we reverse the judgment of the trial court as to restitution and remand this case for a new restitution hearing and entry of an amended judgment that reflects the amount of restitution and the manner of payment, as well as that Defendant’s conviction offense as a Class E felony.

White County Court of Criminal Appeals 03/09/15
William Hunter Babcock v. Sonnia Elizabeth Babcock
E2014-01670-COA-R3-CV

A married couple entered into a business partnership prior to their marriage. This is a consolidated appeal from the parties’ divorce action and their partnership dissolution action. We affirm the trial court’s decision to adjudicate the partnership dissolution action and the divorce action separately, based on Wife’s failure to raise any argument on this issue in the trial court. With regard to the remaining issues, however, we vacate the judgment of the trial court and remand for findings of fact and conclusions of law pursuant to Rule 52.01 of the Tennessee Rules of Civil Procedure.

Hamilton County Court of Appeals 03/09/15
State of Tennessee v. Rico Vales
W2014-00048-CCA-R3-CD

Appellant, Rico Vales, stands convicted of two counts of aggravated assault, Class C felonies, and being a felon in possession of a handgun, a Class E felony. He received concurrent sentences of fifteen years for each aggravated assault conviction and six years for the handgun conviction. Appellant raises two issues for our review: (1) whether the evidence was sufficient to support his conviction of aggravated assault against one of the victims and (2) whether his right to a trial by an impartial jury was violated by pre-trial contact between a juror and one of his witnesses and the prior acquaintance of the juror and that witness. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 03/09/15
State of Tennessee v. Charles D. Sprunger
E2011-02573-SC-R11-CV

This appeal challenges the civil forfeiture of the appellant’s house after he was convicted of possessing child pornography on his home computer. We hold that, in forfeiture proceedings, the seizing authority is required to present affirmative proof that it complied with both the procedural and the substantive provisions of the applicable forfeiture statutes. In accord with prior decisions of this Court, we also hold that both the procedural and the substantive provisions of the forfeiture statutes must be strictly construed. The State in this case failed to show that it complied with the procedural requirements in the forfeiture
statutes. Therefore, we vacate the forfeiture.

Cumberland County Supreme Court 03/09/15
Gregory Glen Phillips v. State of Tennessee
E2014-00544-CCA-R3-PC

The Petitioner, Gregory Glen Phillips, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief from his 2012 guilty plea to felony reckless endangerment and his two-year sentence. The Petitioner contends that he received the ineffective assistance of counsel and that his guilty plea was unknowingly and involuntarily entered. We affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 03/09/15
Ophelia Carney v. Santander Consumer USA
W2014-02228-COA-R3-CV

The order appealed is not a final judgment, and therefore, we dismiss this appeal for lack of jurisdiction.

Madison County Court of Appeals 03/09/15
Betsy Stibler v. The Country Club, Inc.
E2014-00743-COA-R3-CV

Betsy Stibler ("Plaintiff") sued The Country Club, Inc. ("Defendant") alleging, among other things, that Defendant had created a nuisance by planting trees on Defendant's real property adjacent to Plaintiff's real property. Defendant filed a motion for summary judgment. After a hearing the Chancery Court for Hamblen County ("the Trial Court") granted Defendant summary judgment after finding and holding that Plaintiff could not prove that the trees planted by Defendant constituted a nuisance. Plaintiff appeals to this Court. We find and hold that there are no genuine disputed issues of material fact and that Defendant is entitled to judgment as a matter of law, and we affirm.

Hamblen County Court of Appeals 03/09/15
Diaz Construction v. The Industrial Development Board of The Metropolitan Government of Nashville And Davidson County, et al.
M2014-00696-COA-R3-CV

A subcontractor filed suit to enforce a mechanic’s lien. The subcontractor, which was also a remote contractor, was required by Tenn. Code Ann. § 66-11-145(a) to serve a notice of its claim of nonpayment on the owner of the project as well as on the “prime contractor in contractual privity with the remote contractor.” The subcontractor notified the owner, but it did not notify the prime contractor. The subcontractor asserted it was not required to notify the prime contractor because it had no contractual relationship with the prime contractor. The defendants moved to dismiss the subcontractor’s complaint due to its failure to comply with the statute and notify the proper parties. The trial court granted the motions and dismissed the subcontractor’s lien claims. The subcontractor appealed, and we affirm the trial court’s judgment. The subcontractor is required by statute to notify both the owner and the prime contractor of the project of nonpayment.

Davidson County Court of Appeals 03/06/15
In Re: Kim C., et al
M2014-00215-COA-R3-PT

This is a termination of parental rights case. The trial court terminated Appellants/Parents’ parental rights on the grounds of: (1) abandonment by failure to provide suitable housing; (2) substantial non-compliance with the permanency plans; and (3) persistence of conditions. Because the grounds for termination of Appellants’ parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of parental rights is in the best interests of the Children, we affirm and remand.

Rutherford County Court of Appeals 03/06/15
State of Tennessee v. Ronald Chery, Daryn W. Chery and John K. St. Cloud
M2013-02845-CCA-R3-CD

Appellants Ronald Chery, Daryn W. Chery, and John K. St. Cloud were charged in a presentment with thirteen counts of aggravated burglary, thirteen counts of varying degrees of theft, and one count of conspiracy to commit theft of property valued at more than $60,000.  Appellants filed a motion to dismiss the presentment on the grounds that they had been previously charged with one count of aggravated burglary and evading arrest that were so closely related to the subsequent thirteen burglaries and thefts that joinder of the offenses was mandatory.  Following a hearing on the motion to dismiss, the trial court denied relief. Each appellant pleaded guilty to five counts of aggravated burglary, and the State dismissed all theft counts and the conspiracy count.  As part of the plea agreement, appellants reserved a certified question pertaining to the necessity of mandatory joinder of the subsequent thirteen burglaries with the first burglary and related offenses pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure.  Following our review, we affirm the judgments of the trial court. 

Williamson County Court of Criminal Appeals 03/04/15
William Newson v. State of Tennessee
W2014-00867-CCA-R3-PC

Petitioner, William Newson, pleaded guilty to driving under the influence of an intoxicant (DUI) with an agreed sentence of eleven months twenty nine days, with forty-eight hours to serve and the remainder on probation. The sentence was to be served concurrently with a parole violation and a violation of an order of protection in unrelated cases. Petitioner filed a timely petition for post-conviction relief alleging that trial counsel promised him that his DUI guilty plea would result in his release from jail after serving the forty-eight hours as described in the guilty plea agreement and that he would return to probation. Petitioner now appeals the trial court’s denial of his petition for post-conviction relief, in which he alleged that his guilty plea was not knowingly, voluntarily, and intelligently entered due to the ineffective assistance of trial counsel. Having reviewed the record before us, we affirm the judgment of trial court.

Madison County Court of Criminal Appeals 03/04/15