Court of Criminal Appeals Opinions

Format: 08/09/2022
Format: 08/09/2022
State of Tennessee v. Capone Carroll Strange
E2021-00763-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt
Trial Court Judge: Judge E. Shayne Sexton

The defendant, Capone Carroll Strange, appeals his Scott County Criminal Court jury conviction of aggravated child abuse, arguing that the jury venire was improperly influenced by the victim, that the trial court erred by failing to strike a juror for cause, that a State witness gave improper expert testimony, and that the evidence was insufficient to support his conviction. Discerning no error, we affirm.

Scott County Court of Criminal Appeals 06/27/22
Jonathan Gutierrez v. State of Tennessee
M2021-00298-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Jonathan Gutierrez, appeals the Davidson County Criminal Court’s denial of his post-conviction petition, seeking relief from his convictions of first degree premeditated murder and four counts of aggravated assault and resulting effective sentence of life plus sixteen years.  On appeal, the Petitioner contends that he received the ineffective assistance of counsel because trial counsel failed to file a motion to suppress statements he made in response to a custodial interrogation after he had invoked his right to remain silent and because trial counsel failed to intervene when he made incriminating statements during an interview for a television show.  After review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 06/27/22
John Meyer v. State of Tennessee
M2021-00712-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Dee David Gay

The petitioner, John Meyer, appeals the denial of his petition for post-conviction relief, which petition challenged his conviction of theft of property valued at $1,000 or less, alleging that he was deprived of the effective assistance of counsel.  Discerning no error, we affirm the denial of post-conviction relief.

Sumner County Court of Criminal Appeals 06/27/22
State of Tennessee v. Brandon Cardell Coman, Jr.
W2020-01684-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Donald H. Allen

The pro se defendant, Brandon Cardell Coman, Jr., appeals his Madison County Circuit Court jury conviction of aggravated robbery, arguing that the trial court erred by admitting certain evidence, excluding certain evidence, denying a motion to suppress certain evidence, denying the defendant’s request for new counsel, denying a motion to dismiss the charges; that the evidence was insufficient to support his conviction; and that his trial was tainted by prosecutorial misconduct. Discerning no error, we affirm.

Madison County Court of Criminal Appeals 06/24/22
State of Tennessee v. Guy A. Cobb
E2021-00903-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Sandra Donaghy

The Defendant, Guy A. Cobb, was convicted of one count of possession with intent to sell more than one-half gram of methamphetamine, a Class B felony, and was sentenced to eight years’ probation. See T.C.A. § 39-17-434 (2018). Subsequently, the trial court found the Defendant violated conditions of his probation and ordered him to serve the balance of his sentence in confinement. On appeal, the Defendant contends that the trial court erred by ordering him to serve his sentence. We affirm the judgment of the trial court.

McMinn County Court of Criminal Appeals 06/24/22
State of Tennessee v. Edward Earl Killgo
E2020-00996-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge G. Scott Green

The Appellant, Edward Earl Killgo, pled guilty in the Knox County Criminal Court to statutory rape, a Class E felony. Pursuant to the plea agreement, he received a six-year sentence as a Range III, persistent offender with the trial court to determine the manner of service of the sentence, including his request for judicial diversion, and whether he would be placed on the sex offender registry. After a sentencing hearing, the trial court ordered that the Appellant be given credit for time served in jail, that he serve the balance of his six-year sentence on supervised probation, and that he be placed on the sex offender registry. On appeal, the Appellant claims that the trial court erred by denying diversion and by ordering that he register as a sex offender. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court erred. Therefore, we reverse the trial court’s denying judicial diversion and ordering that the Appellant be placed on the sex offender registry and remand the case for further proceedings consistent with this opinion.

Knox County Court of Criminal Appeals 06/24/22
Verchaunt J. Williams v. State of Tennessee
M2020-00512-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge William R. Goodman, III

The petitioner, Verchaunt J. Williams, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of first degree murder, tampering with evidence, and abuse of a corpse, alleging that he was deprived of the effective assistance of counsel.  Discerning no error, we affirm the denial of post-conviction relief.

Montgomery County Court of Criminal Appeals 06/23/22
State of Tennessee v. Vana Mustafa
M2020-01060-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Vana Mustafa, was convicted by a jury of first-degree premeditated murder and received a life sentence.  On appeal, Defendant argues that: the evidence was insufficient to support his conviction; the trial court failed to fully charge the jury as to the law concerning self-defense; the trial court erred by requiring him to provide his list of witness’s statements to the State at the close of the State’s proof; that he was denied the constitutional right to present a defense because the trial court excluded testimony by his expert witness; the trial court erred by excluding his expert witness from the courtroom during trial; the trial court erred by limiting impeachment of a State’s witness; the trial court erred in failing to grant a mistrial; he should be granted a new trial based on newly discovered evidence; his life sentence is unconstitutional; he received ineffective assistance of counsel at trial; and he is entitled to a new trial because the cumulative effect of errors denied him a fair trial.  Following our review of the entire record, oral argument, and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 06/23/22
Henry Russell v. State of Tennessee
M2021-00774-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Monte Watkins

The petitioner, Henry Russell, appeals the denial of his petition for post-conviction relief, which petition challenged his 2012 Davidson County Criminal Court Jury convictions of three counts of rape and three counts of statutory rape by an authority figure, arguing that he was deprived of the effective assistance of counsel.  Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 06/23/22
Anthony E. Barnett v. State of Tennessee
M2021-00554-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Chistopher V. Sockwell

The petitioner, Anthony E. Barnett, appeals the dismissal of his petition for post-conviction relief as untimely.  Because the record establishes that the incarcerated petitioner did not submit his petition to the appropriate prison official for mailing within one year of the final action of the supreme court on his direct appeal, we affirm the ruling of the post-conviction court.

Lawrence County Court of Criminal Appeals 06/23/22
State of Tennessee v. Toby Michael Holmes
M2020-01539-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Thomas W. Graham

A Grundy County grand jury indicted the Defendant, Toby Michael Holmes, for voluntary manslaughter.  A jury convicted him of the lesser-included offense of criminally negligent homicide.  The Defendant sought judicial diversion.  The trial court denied judicial diversion and sentenced the Defendant to three years of probation, with 1,768 hours of community service to be performed at a local drug recovery center.  On appeal, the Defendant asserts that: (1) he was not properly convicted of the lesser-included offense of criminally negligent homicide; (2) the trial court improperly denied judicial diversion; and (3) the amount of community service was excessive.  After review, we conclude that the trial court erred by denying judicial diversion and grant the Defendant’s request.  The trial court’s judgment is affirmed in all other respects.

Grundy County Court of Criminal Appeals 06/23/22
State of Tennessee v. James Clark McKenzie
E2021-00445-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge G. Scott Green

Defendant, James Clark McKenzie, was convicted by a jury of possession with the intent to sell, deliver, or manufacture more than 0.5 grams of cocaine within 1,000 feet of a drugfree zone, unlawful possession of a firearm by a person previously convicted of a felony drug offense, unlawful possession of a firearm by a person previously convicted of a violent felony, possession of a firearm with the intent to go armed during the commission of a dangerous felony, and tampering with the evidence. The trial court imposed a total effective sentence of fifteen years. On appeal, Defendant contends the evidence is insufficient to support his conviction for possession with the intent to sell more than 0.5 grams of cocaine within a drug-free zone and that the trial court erred in sentencing him under the 2019 version of the Drug-Free School Zone Act. Following our review of the record and the briefs of the parties, we affirm the judgments of the trial court. However, we conclude that the trial court erroneously sentenced Defendant in count two, possession of a firearm by a person with a previous felony drug conviction, and remand for entry of an amended judgment as to that count only.

Knox County Court of Criminal Appeals 06/23/22
Myron Lorenzo Johnson v. State of Tennessee
M2021-01420-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury convicted the Petitioner, Myron L. Johnson, of first degree premeditated murder, first degree felony murder, and especially aggravated robbery, and the trial court sentenced him to confinement for life plus sixty years.  State v. Myron L. Johnson (“Johnson I”), No. M2008-02198-CCA-R3-CD, 2010 WL 521028, at *1 (Tenn. Crim. App., at Nashville, Feb. 12, 2010),perm. app. denied (Tenn. May 12, 2010).  The Petitioner subsequentlyfiled and adjudicated multiple post-conviction petitions and a habeas corpus petition, for all of which he was not granted relief.  In his appeal of his most recent filing, the Petitioner contends that the post-conviction court erred in summarily dismissing his post-conviction petition.  He contended below that his convictions could not stand because there was no fingerprint evidence to corroborate the eyewitness testimony.  After review, we conclude the post-conviction court properly summarily dismissed the petition and affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 06/23/22
State Of Tennessee v. Michael Shepard
M2021-01346-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Brody Kane

The defendant, Michael Shepard, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2017 Wilson County Criminal Court Jury convictions of statutory rape by an authority figure. Discerning no error, we affirm the ruling of the trial court.

Wilson County Court of Criminal Appeals 06/23/22
State of Tennessee v. Kevin Wayne Newson
M2021-00444-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Kevin Wayne Newson, was convicted by a Davidson County Criminal Court jury of first degree premeditated murder, first degree felony murder, attempted first degree premeditated murder, employing a firearm during the commission of a dangerous felony, and convicted felon in possession of a firearm.  The trial court merged the first degree murder convictions and sentenced the Defendant to an effective term of life plus sixty years in the Tennessee Department of Correction.  On appeal, the Defendant challenges the sufficiency of the evidence, the trial court’s sentencing determinations, the trial court’s denial of the Defendant’s request that the jury be instructed on aggravated assault resulting in death as a lesser-included offense of premeditated murder, the trial court’s grant of the State’s request that language regarding the Defendant’s duty to retreat be included in the jury instruction on self-defense, and various other rulings of the trial court.  With respect to the self-defense instruction, the Defendant argues that duty to retreat language was prejudicially erroneous because the only criminal activity in which the Defendant was involved at the time of the shooting, i.e, being a convicted felon in possession of a firearm, had no nexus to the events that gave rise to the shooting.  Based on our review, we affirm the judgments of the trial court. 

Davidson County Court of Criminal Appeals 06/23/22
State of Tennessee v. Otto Karl Appelt
E2020-01575-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Sandra Donaghy

The Appellant, Otto Karl Appelt, was convicted in the Bradley County Criminal Court of vandalism of property valued more than $1,000 but less than $2,500, a Class E felony. After a sentencing hearing, the trial court sentenced him as a Range I, standard offender to two years to be served as four months in confinement followed by supervised probation and ordered that he pay $2,000 in restitution. On appeal, the Appellant contends that he was denied his right to counsel because the trial court failed to consider whether his waiver of counsel was knowing and intelligent; that the evidence is insufficient to support his conviction; that the trial court erred by sentencing him to the maximum punishment in the range and by not granting his request for full probation; and that the trial court erred by setting his amount of restitution at $2,000 and by not considering his ability to pay. The State concedes error in the trial court’s restitution order. Based upon the oral arguments, the record, and the parties’ briefs, we reverse the trial court’s order that the Appellant pay $2,000 in restitution and remand the case for further proceedings consistent with this opinion. The judgment of the trial court is affirmed in all other respects.

Bradley County Court of Criminal Appeals 06/22/22
State of Tennessee v. Javier C. Perez
E2021-00475-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stacy L. Street

A Washington County Criminal Court convicted the Appellant, Javier C. Perez, of possessing .5 grams or more of methamphetamine, a Schedule II controlled substance, with the intent to sell, a Class B felony. See Tenn. Code Ann. § 39-17-434. The trial court sentenced the Appellant to eight years of incarceration in the Tennessee Department of Correction. On appeal, the Appellant raises the following issues for review: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred by instructing the jury pursuant to Tennessee Code Annotated section 39-17-419 that they could infer the intent to sell based upon the amount of drugs possessed; (3) whether the trial court erred in denying the Appellant’s motion for mistrial after Officer Curtis testified regarding “drug mules”; (4) whether the trial court committed plain error by allowing the State to “vouch against the Appellant’s credibility in its closing arguments”; and (5) whether the trial court erred in denying the Appellant’s motion for new trial based on newly discovered evidence. Upon review, we affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 06/21/22
Anthony Lee Moosman v. State of Tennessee
E2021-00639-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt
Trial Court Judge: Judge William K. Rogers

The petitioner, Anthony Lee Moosman, appeals the denial of his petition for post conviction relief, which petition challenged his
guilty-pleaded convictions of first degree murder, attempted first degree murder, especially aggravated burglary, attempted aggravated robbery, aggravated assault, and unlawful carrying of a weapon, alleging that he was deprived of the effective assistance of counsel and that his guilty pleas were not entered knowingly and voluntarily. Discerning no error, we affirm the denial of postconviction relief.

Sullivan County Court of Criminal Appeals 06/21/22
State of Tennessee v. Timothy M. Dawson
E2021-00313-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Sandra N.C. Donaghy

The Defendant, Timothy M. Dawson, pled guilty to possession of drug paraphernalia before he was found guilty of simple possession of methamphetamine by a jury. The Defendant was also convicted of theft in two separate, unrelated cases. Following a consolidated sentencing hearing on all three cases, the trial court sentenced the Defendant to consecutive terms of eleven months and twenty-nine days for his two Class A misdemeanor convictions in this case, finding that the Defendant was a professional criminal and that he had an extensive criminal history. The Defendant appeals, challenging the trial court’s consecutive sentencing determination based upon aspects of the consolidated nature of the sentencing hearing. Following our review, we affirm.

McMinn County Court of Criminal Appeals 06/21/22
State of Tennessee v. Jonathan Everett
W2021-00677-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Jonathan Everett, was convicted of second degree murder, attempted voluntary manslaughter, and reckless endangerment, and he received an effective sentence of twenty-nine years, eleven months, and twenty-nine days. He filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his sentence was illegal because the trial court erred by misapplying enhancement factors, by imposing the maximum sentence within the sentencing range for second degree murder, and by imposing consecutive service. The trial court summarily dismissed the motion for the failure to state a colorable claim. On appeal, the Defendant contends that the trial court erred by summarily dismissing his motion. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 06/17/22
Willie Nolan v. State of Tennessee
W2021-00587-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge John Wheeler Campbell

The Petitioner, Willie Nolan, appeals the Shelby County Criminal Court’s denial of his petition seeking post-conviction relief from his convictions of attempted reckless endangerment, aggravated assault, reckless aggravated assault, felony reckless endangerment, and vandalism by a Shelby County jury, claiming he received ineffective assistance of counsel at trial. State v. Willie Nolan, No. W2014-00990-CCA-R3-CD, 2015 WL 5838739, at *1 (Tenn. Crim. App. Oct. 7, 2015), perm. app. denied (Tenn. Feb. 18, 2016). Upon review, we affirm.

Shelby County Court of Criminal Appeals 06/16/22
State of Tennessee v. Olajowon D. Smith
W2021-00730-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Joe H. Walker, III

The Defendant, Olajowon D. Smith, entered guilty pleas to one count of possession of 0.5 ounces or more of marijuana with the intent to deliver, a Class E felony, and one count of unlawful possession of a weapon, a Class C misdemeanor. Although the Tennessee Bureau of Investigation (“TBI”) provided a certification that the Defendant had no prior convictions disqualifying him from eligibility for diversion, the trial court found that he had previously served time in confinement for a Class A misdemeanor and that he was accordingly ineligible for diversion. The court sentenced the Defendant to an aggregate eighteen-month sentence, with sixty days to be served in confinement and the remainder on probation. The Defendant appeals, challenging the trial court’s determination that his prior conviction was a Class A rather than a Class C misdemeanor and its failure to weigh the appropriate diversionary factors. We conclude that the evidence does not preponderate against the trial court’s findings and that the trial court was not required to consider the diversionary factors once it determined the Defendant was ineligible for diversion, and we affirm the judgment.

Lauderdale County Court of Criminal Appeals 06/16/22
George Campbell, Jr. v. Bert Boyd, Warden
W2021-00541-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, George Campbell, Jr., acting pro se, appeals the Shelby County Criminal Court’s summary dismissal of his second petition for habeas corpus relief. We affirm.

Shelby County Court of Criminal Appeals 06/13/22
State of Tennessee v. Kacy Rose
W2021-00995-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, Kacy Rose, appeals from the revocation of his probationary sentence. On appeal, Defendant argues that (1) the trial court abused its discretion in failing to consider a potential conflict of interest, (2) the trial court erred in denying his motion to correct a clerical error in the order revoking Defendant’s probation, and (3) his right to a speedy trial was violated. Following our review of the record and briefs, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 06/13/22
Casey Colbert v. State of Tennessee
W2021-00778-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James M. Lammey

The Petitioner, Casey Colbert, appeals the denial of post-conviction relief from his convictions for first degree felony murder and attempted aggravated robbery, alleging that he received ineffective assistance of counsel and that the State committed prosecutorial misconduct depriving him of his right to a fair trial. After review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 06/13/22