Court of Criminal Appeals Opinions

Format: 03/31/2020
Format: 03/31/2020
Michael Shane McCullough v. State of Tennessee
W2019-00629-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Jeffery W. Parham

The Petitioner, Michael Shane McCullough, challenges the denial of his petition for post-conviction relief attacking his jury convictions for criminal littering, initiation of a process to manufacture methamphetamine, and promotion of methamphetamine manufacture. On appeal, the Petitioner alleges that he received ineffective assistance due to (1) trial counsel’s failure to interview the arresting officer and investigate the case, especially as it related to the weather conditions on the night of the Petitioner’s traffic stop; (2) trial counsel’s failure to adequately cross-examine the State’s witnesses at trial about the substance found in the ditch; and (3) trial counsel’s (who was also appellate counsel) failure to challenge the sufficiency of the evidence supporting his Class B misdemeanor conviction for criminal littering. After our review, we conclude that the Petitioner received ineffective assistance with regard to the appropriate classification of his criminal littering conviction; however, the Petitioner’s other allegations of ineffective assistance are without merit. We must reverse the post-conviction court’s judgment and remand the case for correction of the Petitioner’s mitigated criminal littering conviction judgment form to reflect the appropriate Class C misdemeanor classification and a corresponding thirty-day sentence.

Obion County Court of Criminal Appeals 03/31/20
State of Tennessee v. Jay Hathaway
M2019-00540-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Deanna B. Johnson

The Defendant, Jay Hathaway, appeals the probation revocation order from a February 25, 2019 probation violation hearing. The trial court determined that the Defendant had violated the terms of his probation sentence, applied eighty-five days of time served toward the revocation sentence, and ordered an additional sixty days to serve in jail before the Defendant would be reinstated to a sentence of eleven months and twenty-nine days. On appeal, the Defendant asserts that he was denied due process because he was not provided an expert on the issue of drug patch testing. After review, we affirm the trial court’s judgment.

Williamson County Court of Criminal Appeals 03/31/20
State of Tennessee v. Christopher Ricardo Bonds
W2018-01954-CCA-R3-CD
Authoring Judge: Judge Norma Mcgee Ogle
Trial Court Judge: Judge R. Lee Moore, Jr.

A Dyer County Circuit Court Jury convicted the Appellant, Christopher Ricardo Bonds, of evading arrest, a Class A misdemeanor. After a sentencing hearing, the trial court ordered that he serve nine months in jail at seventy-five percent release eligibility. On appeal, the Appellant contends that the trial court arbitrarily imposed the percentage of the sentence to be served in confinement. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 03/31/20
Dontavious Hendrix v. State of Tennessee
W2019-00171-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

The Petitioner, Dontavious Hendrix, was convicted of second-degree murder and subsequently sentenced to twenty-five years. See Tenn. Code Ann. § 39-13-210(a)(1). Following denial of his direct appeal, the Petitioner filed a petition seeking postconviction relief, alleging that trial counsel was ineffective based on the following grounds: (1) implementing an inappropriate trial strategy by allowing Monderrius Miller to testify on behalf of the defense; (2) failing to properly advise the Petitioner of his right to testify on his own behalf; and (3) failing to interview potential witnesses. Following our review, we affirm.

Madison County Court of Criminal Appeals 03/27/20
Eugene Spivey v. Shawn Phillips, Warden
W2019-00932-CCA-R3-HC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge R. Lee Moore, Jr.

The pro se petitioner, Eugene Spivey, appeals from the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the ruling of the trial court.

Lake County Court of Criminal Appeals 03/26/20
State of Tennessee v. LaDarius Berry
W2019-00310-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County grand jury indicted the defendant, LaDarius Berry, for attempted second degree murder (count 1), aggravated assault (count 2), employing a firearm during the commission of a dangerous felony (count 3), and reckless endangerment with a deadly weapon (count 4). After trial, a jury convicted the defendant as charged in counts 2, 3, and 4 and found him guilty of the
lesser-included offense of attempted voluntary manslaughter in count 1. The trial court merged the defendant’s convictions in counts 1 and 2 and imposed an effective twelve-year sentence. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and the sentencing imposed by the trial court. After our review, we affirm the judgments of the trial court, but remand the case for the specific purposes of entry of amended judgments as to counts 1 and 2 to reflect the non-merger of the offenses as well as the determination by the trial court as to whether the sentences in counts 1 and 2 should be served consecutively or concurrently.

Shelby County Court of Criminal Appeals 03/26/20
State of Tennessee v. Antwon Young
W2019-00492-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Paula L. Skahan

A Shelby County jury convicted the defendant, Antwon Young, of aggravated robbery and especially aggravated kidnapping, for which he received an effective sentence of thirty years. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and asserts the State made two improper statements during closing argument. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 03/26/20
State of Tennessee v. Rashari Jones
W2018-02180-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Chris Craft

A Shelby County grand jury indicted the defendant, Rashari Jones, for attempted first degree murder, aggravated assault while acting in concert with two or more persons, and employing a firearm during the commission of a dangerous felony. Following a trial, a jury found the defendant guilty of attempted voluntary manslaughter, aggravated assault, and employing a firearm during the commission of a dangerous felony, and the trial court imposed an effective sentence of six years in confinement followed by four years of supervised probation. On appeal, the defendant contends the trial court erred in allowing the State to cross-examine the defendant regarding his whereabouts preceding the shooting, in finding the defendant was engaged in unlawful activity and omitting the “no duty to retreat” language from the self-defense instruction, and in failing to merge his convictions for attempted voluntary manslaughter and aggravated 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 03/26/20
Eric Wooten v. State of Tennessee
W2019-01228-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge W. Mark Ward

The petitioner, Eric Wooten, appeals the dismissal of his petition for post-conviction relief arguing the post-conviction court erred in dismissing his petition as untimely. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/26/20
State of Tennessee v. Donald Hyberger
M2019-01391-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Agelita Blackshear Dalton

After the defendant, Donald Hyberger, caused a motor vehicle accident, a Davidson County grand jury indicted him for reckless endangerment with a deadly weapon (count 1), driving under the influence, third offense (count 2), and driving under the influence, per se, third offense (count 3). The defendant filed a motion to suppress the evidence of a blood draw obtained while he was hospitalized after the accident. After the trial court denied the motion, the defendant pled guilty to driving under the influence, per se, third offense but reserved a certified question of law pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure regarding the motion to suppress the blood draw. Upon our review, we conclude the defendant failed to properly certify the question of law pursuant to Rule 37(b)(2). Accordingly, this Court is without jurisdiction, and the appeal is dismissed.

Davidson County Court of Criminal Appeals 03/26/20
Larry Braswell v. State of Tennessee
E2019-01509-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Petitioner, Larry Braswell, appeals from the Hamilton County Criminal Court’s dismissal of his petition for a writ of habeas corpus. On appeal, the Petitioner contends that the habeas corpus court erred in dismissing the petition, rather than granting relief. We affirm the judgment of the habeas corpus court.

Hamilton County Court of Criminal Appeals 03/26/20
Jeffrey T. Siler, Jr. v. State of Tennessee
E2019-00018-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge G. Scott Green

Over twenty years ago, a Knox County jury found Petitioner, Jeffrey T. Siler, Jr., guilty of first degree felony murder. At the advice of his trial counsel and prior to the jury trial, the then seventeen year old Petitioner pled guilty to attempted especially aggravated robbery which formed the basis for the felony murder charge. Petitioner received an eight-year sentence for the attempted especially aggravated robbery charge to be served concurrently with the life sentence for the felony murder charge. Petitioner’s convictions were affirmed on direct appeal. See State v. Jeffrey T. Siler, No. E2000- 01570-CCA-R3-CD, 2001 WL 387088 (Tenn. Crim. App. Apr. 17, 2001) perm. app. denied (Tenn. June 20, 2014) (“Siler I”). On February 13, 2009, Petitioner filed a petition for post-conviction relief. The post-conviction court summarily dismissed the petition as untimely. This Court reversed the post-conviction court and remanded for an evidentiary hearing to determine whether due process tolled the statute of limitations and to consider Petitioner’s claims regarding his mental condition. See State v. Jeffrey T. Siler, No. E2009-00436-CCA-R3-PC, 2010 WL 1444511 (Tenn. Crim. App. Apr. 12, 2010), no perm. app. filed (“Siler II”). After conducting a hearing, the post-conviction court determined that the statute of limitations should have been tolled and that Petitioner was entitled to a full hearing on his petition for post-conviction relief. After conducting a full evidentiary hearing, the post-conviction court denied relief and dismissed the petition. We affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 03/26/20
State of Tennessee v. Joshua W. Chambers
M2019-00694-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge William R. Goodman, III

On January 5, 2017, the Montgomery County Grand Jury indicted Defendant, Joshua W. Chambers, for first degree premeditated murder of the victim, Richard Gibeau, and employment of a firearm during the commission of a dangerous felony. Defendant claimed he killed the victim in self-defense. On May 24, 2018, a jury convicted Defendant of second degree murder. The jury did not reach a verdict on the firearm charge. On November 21, 2017, after the victim was killed but before Defendant’s trial, the Tennessee Supreme Court issued State v. Perrier, holding “that the legislature intended the phrase ‘not engaged in unlawful activity’ in the self-defense statute [Tennessee Code Annotated section 39-11-611] to be a condition of the statutory privilege not to retreat when confronted with unlawful force and that the trial court should make the threshold determination of whether the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation.” 536 S.W.3d 388, 392 (Tenn. 2017). The trial court instructed the jury using Tennessee Pattern Instruction 40.06(b) as it existed before it was amended to comply with Perrier. The instruction given to the jury erroneously required the jury, rather than the trial court, to determine if Defendant was engaged in unlawful activity. On appeal, Defendant argues that the trial court erred by giving an improper jury instruction on self-defense. The State concedes error in the self-defense instruction but claims the error was harmless. Defendant also claims the trial court erred by granting the State’s motion to amend the indictment on the day of trial, by permitting the admission of prejudicial evidence, by denying Defendant’s Motion for Judgment of Acquittal and Motion for a New Trial, and by submitting an incorrect verdict form to the jury. After a thorough review of the record and applicable case law, we find that the trial court committed reversible error by improperly instructing the jury on self-defense. Thus, we reverse the judgment of the trial court and remand for a new trial. 

Montgomery County Court of Criminal Appeals 03/26/20
State of Tennessee v. Waynard Quartez Winbush
E2018-02136-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge G. Scott Green

Defendant, Waynard Quartez Winbush, was convicted of various drug offenses and sentenced to an effective sentence of twenty-three years. On appeal, Defendant argues that: (1) he received ineffective assistance of counsel; (2) the trial court erred by failing to sever prejudicial offenses; (3) the trial court erred by failing to grant a new trial based on prosecutorial misconduct; (4) the trial court erred by failing to include lesser-included offenses in the jury instructions; (5) the trial court erred by failing to grant a new trial based on newly discovered evidence; (6) the trial court erred by failing to dismiss the case based on a violation of Defendant’s right to a speedy trial; (7) the trial court erred by failing to grant a new trial after failing to rule on Defendant’s pretrial motions; (8) the trial court erred by allowing the State to improperly introduce evidence; (9) the trial court erred by failing to grant a new trial based on witness perjury; (10) the evidence was insufficient to sustain the convictions; (11) the trial court erred by instructing the jury on the lesser-included offense of simple possession for conspiracy; and (12) the trial court erred by failing to grant a new trial based on cumulative errors. After conducting a full review of the record, we determine that Defendant is entitled to relief from his convictions for conspiracy in Counts 3 and 4 because the instructions given to the jury did not match the charges in the presentment, and we vacate Defendant’s convictions as to those counts. As to the remaining arguments, we find Defendant is not entitled to relief. Consequently, we reverse the judgments of the trial court in part and affirm the judgments in part. 

Knox County Court of Criminal Appeals 03/24/20
Harold D. Doss, Jr., And Johnathan Lamar Hathaway v. State of Tennessee
M2019-00238-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Mark J. Fishburn

Harold D. Doss, Jr., and Johnathan Lamar Hathaway filed separate petitions for post-conviction relief. Because Petitioners were tried together, the post-conviction court conducted a single post-conviction hearing and denied relief as to both Petitioners. Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 03/24/20
Mateem Hudson v. State of Tennessee
W2018-01939-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

The Petitioner, Mateem Hudson, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction of second degree murder and resulting sentence of twenty-three years in confinement. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 03/23/20
Carlos Smith v. State of Tennessee
W2018-00497-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Paula L. Skahan

The Petitioner, Carlos Smith, filed a petition for post-conviction relief in the Shelby County Criminal Court, seeking relief from his convictions of two counts of attempted second degree murder, one count of aggravated robbery, one count of especially aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, two counts of aggravated assault, and one count of being a felon in possession of a handgun and resulting effective sentence of one hundred twenty years. After an evidentiary hearing, the post-conviction court denied relief, and this court affirmed the denial except for one issue: whether trial counsel were ineffective for failing to advise the Petitioner that he was a career offender, which resulted in his rejecting a plea offer. Regarding that issue, this court remanded the case to the post-conviction court because that court failed to making any findings. Upon remand, the post-conviction court concluded that the Petitioner was not entitled to relief. On appeal, the Petitioner maintains that he received the ineffective assistance of counsel because his trial attorneys failed to inform him of his career offender status. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/23/20
Reginald D. Tumlin v. State of Tennessee
E2019-00622-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Thomas C. Greenholtz

A Hamilton County jury convicted the Petitioner, Reginald D. Tumlin, of two counts of child abuse, one count of criminally negligent homicide, and one count of aggravated child neglect. On appeal, this court affirmed the convictions. State v. Reginald D. Tumlin, No. E2013-01452-CCA-R3-CD, 2014 WL 7073752, at *1 (Tenn. Crim. App., at Knoxville, Dec. 15, 2014), perm. app. denied (Tenn. May 14, 2015). The Petitioner timely filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. The Petitioner maintains on appeal that his attorneys’ representation was deficient and he was prejudiced by the deficiencies. After review, we affirm the post-conviction court.

Hamilton County Court of Criminal Appeals 03/23/20
Willie James Bradley v. State of Tennessee
E2019-00476-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Thomas C. Greenholtz

The Petitioner, Willie James Bradley, appeals from the Hamilton County Criminal Court’s summary denial of his petition for
post-conviction relief and his “motion to change order.” The Petitioner contends that his due process rights were violated because the trial court did not inform him that he was subject to lifetime community supervision as a result of his guilty plea. The Petitioner also argues that his judgments were improperly changed by extra-judicial agencies. Following our review, we affirm.

Hamilton County Court of Criminal Appeals 03/23/20
George Oviasojie v. State of Tennessee
M2019-00761-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Angelita Blackshear Dalton

The petitioner, George Oviasojie, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel prior to and during his guilty plea hearing. Upon our review of the record, arguments of the parties, and pertinent authorities, we affirm the denial of the petition.

Davidson County Court of Criminal Appeals 03/20/20
Anthony James Zonneville v. State of Tennessee
M2018-01754-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Petitioner, Anthony James Zonneville, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner was convicted of possession with intent to sell or deliver .5 grams or more of cocaine in a drug free zone and simple possession of alprazolam. Petitioner contends on appeal that the trial court erred in denying the petition for post-conviction relief because he was denied effective assistance of counsel. Following a review of the briefs and the record, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 03/20/20
State of Tennessee v. Carl S. Dixon
E2019-00228-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Stacy L. Street

Defendant, Carl S. Dixon, was indicted by the Washington County Grand Jury for aggravated assault. Following a jury trial, Defendant was convicted of reckless aggravated assault. Following a sentencing hearing, the trial court sentenced Defendant to serve two years, to be suspended on probation, and ordered Defendant to pay the victim $600 in restitution at the rate of $25 per month. Defendant’s sole issue on appeal is whether the trial court’s order of restitution was proper when Defendant’s only source of income was Social Security Supplemental Security Income. Having reviewed the record and the applicable authority, we affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 03/20/20
State of Tennessee v. Antoine Hinton
W2018-01931-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John Wheeler Campbell

A Shelby County Criminal Court Jury convicted the Appellant, Antoine Hinton, of first degree felony murder; especially aggravated kidnapping, a Class A felony; aggravated kidnapping, a Class B felony; employing a firearm during the commission of a dangerous felony, a Class C felony; and reckless aggravated assault, a Class D felony, and he received an effective sentence of life plus twenty-eight years in confinement. On appeal, the Appellant contends that the trial court committed reversible error by failing to instruct the jury as provided by State v. White, 362 S.W.3d 559 (Tenn. 2012), and that the evidence is insufficient to support his murder conviction because the underlying felony was complete at the time of the victim’s death. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the Appellant’s convictions and his total effective sentence of life plus twenty-eight years but remand the case to the trial court for amendment of the judgments to reflect that the Appellant’s conviction of aggravated kidnapping in count three is merged into his conviction of especially aggravated kidnapping in count two and for correction of the judgments regarding concurrent and consecutive sentencing.

Shelby County Court of Criminal Appeals 03/19/20
State of Tennessee v. Quintavious Montez Patton and Donte R. Swanier
M2018-01462-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

A Davidson County jury convicted Quintavious Montez Patton of first degree felony murder, voluntary manslaughter, attempted especially aggravated robbery, and attempted aggravated robbery. The jury convicted Donte Ricardo Swanier of first degree felony murder, attempted especially aggravated robbery, and attempted aggravated robbery. The trial court sentenced both Defendants to effective sentences of life in prison. On appeal, Defendant Patton: (1) challenges the trial court’s admission of video evidence; (2) claims his right to a speedy trial was violated; and (3) seeks relief based upon the cumulative effect of the trial court’s errors. Defendant Swanier appeals the trial court’s admission of: (1) rap music; (2) Facebook posts; and (3) prior bad acts. After review, we affirm the trial court’s judgments.

Davidson County Court of Criminal Appeals 03/19/20
Tanya Nicole Slimick v. State of Tennessee
M2019-00458-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael W. Binkley

A Williamson County jury convicted the Petitioner, Tanya Nicole Slimick, of first degree premeditated murder. The Petitioner appealed, challenging the sufficiency of the evidence, numerous aspects of the jury instructions, and the State’s use of a demonstrative aid during closing argument. This court affirmed the Petitioner’s convictions. State v. Tanya Nicole Slimick, No. M2014-00747-CCA-R3-CD, 2015 WL 9244888, at *1 (Tenn. Crim. App., at Nashville, Dec. 17, 2015), perm. app. denied (Tenn. Apr. 6, 2016). The Petitioner filed a post-conviction petition alleging that her trial counsel was ineffective. In an amended petition, she added claims challenging the jury instructions and asserting prosecutorial misconduct. Thereafter, the Petitioner abandoned her claims as to ineffective assistance of counsel, and the State filed a motion to dismiss the petition. After a hearing, the post-conviction court dismissed the petition, finding that the remaining allegations had either been waived or previously determined on appeal. On appeal, the Petitioner maintains her challenge to the trial court’s failure to properly charge the jury and assertion of prosecutorial misconduct. For the first time on appeal, she argues that a juror violated the trial court’s instruction not to communicate via social media during the trial. After review, we affirm the post-conviction court’s judgment.

Williamson County Court of Criminal Appeals 03/17/20