Court of Criminal Appeals Opinions

Format: 12/08/2017
Format: 12/08/2017
State of Tennessee v. Daniel Nesbit
W2016-00492-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge James M. Lammey

Defendant, Daniel Nesbit, was indicted for felony murder and attempted especially aggravated robbery for his role in the shooting death of the victim, Jernario Taylor. After a jury trial, Defendant was convicted as charged and sentenced to an effective sentence of life imprisonment. Defendant appeals, arguing that: (1) the trial court erred in granting the State a continuance over the objection of defense counsel; (2) the State failed to disclose exculpatory evidence; (3) the trial court erred by admitting a recording of a telephone call between the co-defendant and his girlfriend; (4) the trial court erred by failing to grant a mistrial; (5) the trial court erred by allowing the State to argue inconsistent theories; (6) the trial court erred by admitting evidence of Defendant’s arrest in Alabama; (7) the evidence was insufficient to support the convictions; (8) the trial court erred by failing to disclose a note received from the jury during deliberations; and (9) cumulative error necessitates a reversal of Defendant’s convictions. Having carefully reviewed the record before us and the briefs of the parties, we find no error and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 12/08/17
State of Tennessee v. Stephano Lee Weilacker
M2016-00546-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge William R. Goodman, III

Defendant, Stephano Lee Weilacker, was found guilty by a Montgomery County jury of especially aggravated kidnapping and aggravated robbery. He received an effective twenty-year sentence to be served consecutively to a previous sentence. In this, Defendant’s third direct appeal, he argues: that the evidence was insufficient; that the trial court permitted a reversible constructive amendment to the indictment; that the trial court erred by failing to instruct the jury as provided by White; that the trial court erred by denying his motion to suppress evidence found in his vehicle; that the State committed prosecutorial misconduct during closing arguments, and that consecutive sentencing was improper. We find that all of Defendant’s issues, except for the issues concerning the amendment to the indictment and the jury instruction, have been previously addressed by this court in Defendant’s two prior appeals and cannot be reconsidered. We find that the issue concerning the indictment is waived and that the trial court was not required to instruct the jury in accordance with White. Therefore, Defendant’s convictions are affirmed.

Montgomery County Court of Criminal Appeals 12/08/17
State of Tennessee v. Dale Albert Greca
E2017-00570-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge E. Shayne Sexton

A Campbell County Criminal Court jury convicted the defendant, Dale Albert Greca, of especially aggravated kidnapping, robbery, unlawfully carrying a firearm in a public place, and driving on a suspended license – second offense. As a result of his convictions, the defendant received an effective sentence of twenty-four years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to sustain his conviction for especially aggravated kidnapping. He argues the confinement and removal of the victim did not substantially interfere with the victim’s liberty and the confinement was simply incidental to the robbery. He also contends that the evidence is insufficient to support a finding that the kidnapping was accomplished with a deadly weapon because the jury found him guilty of the lesser-included offense of robbery rather than the indicted offense of aggravated robbery. Discerning no error, we affirm the judgments of the trial court.

Campbell County Court of Criminal Appeals 12/07/17
State of Tennessee v. Anthony J. Harris
E2016-01952-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Bobby R. McGee

Defendant, Anthony J. Harris, was convicted of two counts of facilitation of felony murder and one count of facilitation of attempted second degree murder. He received an effective sentence of twenty-two years. On appeal, Defendant argues that the evidence at trial was insufficient to support each of his convictions, that his due process and speedy trial rights were violated by the timing of the superseding indictment, that the trial court erred by not allowing Defendant’s expert witness to testify, that the State failed to properly preserve evidence, and that the State made improper remarks in their closing argument. After review, we hold that Defendant is not entitled to relief on any of his claims. The judgments of the trial court are affirmed.

Knox County Court of Criminal Appeals 12/07/17
State of Tennessee v. Lisa Kay Young
M2016-01149-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David A. Patterson

The Defendant, Lisa Kay Young, appeals as of right from her convictions for one count each of first degree premeditated murder, second degree murder, and aggravated assault. The Defendant contends (1) that the trial court erred by refusing to admit statements by Miranda Brown, one of the Defendant’s co-defendants; and (2) that this court should vacate or merge the Defendant’s convictions for second degree murder and aggravated assault with her conviction for first degree premeditated murder. Following our review, we conclude that the trial court erred in preventing the Defendant from admitting Ms. Brown’s statements as evidence and that this error was not harmless. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial. With respect to the Defendant’s remaining issue, we will address that issue so as not to pretermit it. See State v. Parris, 236 S.W.3d 173, 189 (Tenn. Crim. App. 2007) (following a similar procedure).

White County Court of Criminal Appeals 12/07/17
State of Tennessee v. Michelle D. Shoemaker
M2017-00026-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge John D. Wootten, Jr.

The defendant, Michelle D. Shoemaker, appeals from the entry of an amended judgment granting her 370 days of pretrial jail credit. The basis for the defendant’s appeal is her allegation that the trial court erred in calculating her jail credits and that she is actually entitled to 520 days of pretrial credit. Following our review, we conclude that the defendant failed to state a colorable claim and affirm the judgment of the trial court.

Jackson County Court of Criminal Appeals 12/07/17
State of Tennessee v. Jesse Charles Gerg
M2016-00601-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Jesse Charles Gerg, was sentenced to eight years in confinement by the trial court for his Class D felony conviction for child abuse. On appeal, the defendant argues the trial court improperly enhanced his sentence as a Range II offender from the minimum of four years to the maximum of eight years in violation of the purposes and principles of the Tennessee Criminal Sentencing Reform Act. The defendant also argues the trial court failed to properly consider his request for alternative sentencing. Following our review of the briefs, the record, and the applicable law, we affirm the eight-year sentence to be served in confinement.

Davidson County Court of Criminal Appeals 12/07/17
State of Tennessee v. Calvin Watkins
W2016-01808-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Lee V. Coffee

The pro se defendant, Calvin Watkins, appeals the revocation of his judicial diversion by the Shelby County Criminal Court. The defendant argues the trial court improperly revoked his diversion based upon an unindicted arrest. After our review, we affirm the trial court’s revocation pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 12/06/17
State of Tennessee v. Brandon Vance
W2016-01015-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Paula L. Skahan

Defendant, Brandon Vance, was convicted of first degree felony murder by a Shelby County jury. He received a life sentence. On appeal, Defendant argues that the evidence was insufficient to support his conviction. After a thorough review of the record, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/05/17
Ricco Williams v. State of Tennessee
W2016-02602-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Joe H. Walker, III

Ricco Williams, the Petitioner, was convicted of various charges, and on appeal, this court and the Tennessee Supreme Court affirmed three convictions of especially aggravated kidnapping of three minor victims accomplished with a deadly weapon, aggravated burglary, aggravated robbery accomplished with a deadly weapon, and aggravated assault. The Petitioner timely filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner asserts that trial counsel’s performance was deficient because he failed to: (1) request fingerprint testing on several items of evidence; (2) file a motion to suppress the introduction of these items at trial; (3) request a mistrial when two potential jurors stated during voir dire that they recognized the Petitioner from his prior incarceration; (4) allow the Petitioner to negotiate directly with the State regarding plea offers; and (5) move to dismiss the indictment "because one count contained an inaccurate conviction.” The Petitioner asserts that he was prejudiced by these deficiencies because “[t]he trial evidence circumstantially tied the [Petitioner] to the crime” and “anything trial counsel could do to refute the circumstantial evidence would be crucial for the jury to consider.” The Petitioner additionally asserts that, had he “prevailed in a Motion to Suppress or Motion to Dismiss the Indictment[,] he would have prevailed at trial.” After a thorough review of the facts and applicable case law, we affirm.

Lauderdale County Court of Criminal Appeals 12/05/17
Ronald Curry v. State of Tennessee
W2016-02158-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Chris Craft

The petitioner, Ronald Curry, pled guilty to rape of a child for which he received a sentence of twenty-five years. He filed the instant post-conviction petition, and following an evidentiary hearing, the post-conviction court denied relief. On appeal, the petitioner contends that trial counsel was ineffective for failing to adequately evaluate the mental health issues of the petitioner and for failing to secure and present evidence of his innocence. The petitioner also claims trial counsel coerced him into pleading guilty. Upon review of the record and the applicable law, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 12/05/17
State of Tennessee v. Coynick Boswell
W2016-02591-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

Following a jury trial, the defendant, Coynick Boswell, was convicted of the first-degree murder of the victim, Kadrian Woods. On appeal the defendant challenges the sufficiency of the evidence to support his conviction for premeditated murder and his request for and instruction on self-defense. Having thoroughly reviewed the record and although the evidence is sufficient to sustain the jury’s verdict, we conclude that the trial court erred when it failed to instruct the jury as to self-defense. Accordingly, we reverse the judgment of the trial court and remand the matter for a new trial.

Shelby County Court of Criminal Appeals 12/05/17
Monterious Bell v. State of Tennessee
W2016-01709-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Monterious Bell, appeals the dismissal of his post-conviction petition, arguing the post-conviction court erred in dismissing the petition as time-barred. Following our review, we conclude the petition was timely filed. The judgment of the post-conviction court is reversed and the matter remanded for consideration of the postconviction petition in accord with the Post-Conviction Procedure Act.

Shelby County Court of Criminal Appeals 12/05/17
in Re Estate of Eunice Katherine Sanders McCollum
M2015-02169-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael R. Meise

This is a probate case, and the parties are Decedent’s children. Appellant son filed a claim against Appellee daughter, alleging that she mishandled the Decedent’s financial affairs, both during Decedent’s life and after her death in 2007. In 2009, the trial court appointed a special master, who conducted two evidentiary hearings and filed two reports, which essentially exonerated Appellee from any wrong-doing. Two years later, the trial court ordered the Administrator of the estate to pay certain fees and file certain applications so that the estate could be closed, and dismissed all pending motions filed by the parties. Appellant filed a motion to alter or amend the judgment of the trial court that was denied. Concluding that the Appellant did not have standing to bring a claim against Appellee, we affirm and remand.  

Dickson County Court of Criminal Appeals 12/05/17
State of Tennessee v. Buford Cornell Williams
M2017-00507-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Monte Watkins

Defendant, Buford Cornell Williams, was convicted of selling 0.5 grams or more of cocaine. He received a fourteen-year sentence. On appeal, he argues that the evidence was insufficient to support his conviction. After review, we find that the evidence was sufficient to support his conviction. The judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 12/05/17
State of Tennessee v. Gregory Lamar Gillespie, Jr.
E2016-01970-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Barry A. Steelman

Defendant, Gregory Lamar Gillespie, Jr., pled guilty in the Hamilton County Criminal Court to the offenses of robbery, aggravated assault, and possession of a firearm by a convicted felon. Defendant received an effective six-year sentence to be served on probation (effective February 1, 2016) with GPA monitoring for the first year. On April 22, 2016, a probation violation report was filed. On April 27, 2016, a capias for Defendant’s arrest was issued. An addendum to the report was filed on August 17, 2016. Following a probation violation hearing, the trial court revoked probation and ordered Defendant to serve his six-year sentence in confinement. On appeal, Defendant argues that the trial court “erred by not considering additional means – more restrictive than the probation Defendant was alleged to have violated, but less restrictive than incarceration – that were available.” He further contends that the trial court “erred by ordering the Defendant’s sentence into execution.” We affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 12/05/17
Joshua Matthew Cline v. State of Tennessee
M2017-00168-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge William R. Goodman, III

Petitioner, Joshua Matthew Cline, appeals the denial of his petition for post-conviction relief from his April 2013 convictions for two counts of rape of a child. Petitioner argues that he received ineffective assistance of counsel. After a review of the record and the briefs of the parties, we determine Petitioner has failed to establish that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

Montgomery County Court of Criminal Appeals 12/04/17
State of Tennessee v. Melvin Brown
W2014-00162-CCA-R9-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The Defendant, Melvin Brown, was indicted by the Shelby County Grand Jury for driving under the influence (“DUI”); DUI with a blood alcohol concentration of .20% or more; violation of the implied consent law; reckless driving; and driving on a revoked, suspended, or cancelled license. The trial court granted the Defendant’s motion to suppress the results of his blood test on the basis that Tennessee Code Annotated section 55-10-406 was unconstitutional1 and that there were no exigent circumstances that prevented the officers from obtaining a warrant. Thereafter, the State sought and was granted permission to file an interlocutory appeal, contending that Tennessee Code Annotated section 55-10-406 was constitutional, that exigent circumstances justified the warrantless blood draw, and that the warrantless blood draw was permissible pursuant to the implied consent law. Upon review, we reversed the portion of the trial court’s judgment declaring Code section 55-10-406(f)(1) unconstitutional but affirmed the trial court’s suppression of the results of the warrantless blood draw because no exception to the warrant requirement existed. State v. Melvin Brown, No. W2014-00162-CCA-R9-CD, 2015 WL 1951870 (Tenn. Crim. App. Apr. 30, 2015), perm. app. granted and remanded, No. W2014-00162-SC-R11-CD (Tenn. Nov. 22, 2016) (order). On November 22, 2016, the Tennessee Supreme Court granted the State’s application for permission to appeal and remanded the case to this court for reconsideration in light of the supreme court’s opinion in State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016).2 State v. Melvin Brown, No. W2014-00162-SC-R11-CD (Tenn. Nov. 22, 2016) (order). Upon reconsideration, we conclude that the good-faith exception to the exclusionary rule adopted in Reynolds applies to this case and that suppression of the Defendant’s test results was not required. Therefore, the trial court’s judgment suppressing the test results of the warrantless blood draw is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 12/01/17
Carlos Cornwell v. State of Tennessee
E2016-00236-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Carlos Cornwell, appeals as of right from the Knox County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends (1) that he was denied his right to a competent and impartial trial judge, “resulting in structural constitutional error,” due to the presiding trial judge’s out-of-court misconduct during the course of the Petitioner’s trial proceedings; (2) that the trial judge failed to perform his role as the thirteenth juror; (3) that the Petitioner received ineffective assistance of counsel because trial counsel failed to inspect the Petitioner’s vehicle in a timely manner and failed to properly challenge evidence that was not properly preserved by the State; and (4) that the Petitioner received ineffective assistance of trial counsel because trial counsel failed to “properly investigate, challenge, and counter” the testimony of one of the State’s expert witnesses and failed to properly address that witness’s having questioned trial counsel’s credibility during cross-examination. Following our review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 12/01/17
Jimmy L. Smith v. Mike Parris, Warden
W2017-00918-CCA-R3-HC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge R. Lee Moore, Jr.

Jimmy L. Smith, the Petitioner, filed a pro se Application for Writ of Habeas Corpus (“the petition”), claiming that his convictions in Counts 1 through 4 of Case Number 87F1868 are void because the Davidson County District Attorney General only signed Count 5 of the multi-count indictment. The Petitioner also claimed that his conviction in Count 2 was void because the judgment failed to state that he had been found guilty by a jury. The habeas corpus court summarily dismissed the petition. We affirm.

Lake County Court of Criminal Appeals 11/30/17
Adrian Delk v. Grady Perry, Warden
W2016-01394-CCA-R3-HC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Joe H. Walker, III

Petitioner, Adrian Delk, appeals the dismissal of his petition for writ of habeas corpus. On appeal, Petitioner asserts that the State breached the plea agreement by choosing an incorrect range of offense dates for the judgment for solicitation to commit first degree murder; that the State’s error resulted in a breach of the plea agreement because it affected Petitioner’s sentencing credit; that the Department of Correction was not properly awarding post-judgment sentencing credits; that there was insufficient proof to support the conviction for solicitation; and that Petitioner’s indictment for solicitation was void because it was returned prior to the completion of the crime and failed to provide notice. After a review, we affirm the summary dismissal of the petition.

Hardeman County Court of Criminal Appeals 11/30/17
State of Tennessee v. Marshall Shawn Nelson
E2017-00338-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge G. Scott Green

The Defendant, Marshall Shaw Nelson, pleaded guilty to aggravated assault with an agreed sentence of six years with the trial court to determine the manner of service. After a sentencing hearing, the trial court denied an alternative sentence and ordered the sentence to be served in confinement. On appeal, the Defendant asserts that the trial court erred when it denied him an alternative sentence. We affirm the trial court’s judgment.

Knox County Court of Criminal Appeals 11/30/17
State of Tennessee v. Cecil Glen Dobbs, Jr.
E2017-00437-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge O. Duane Slone

The Defendant, Cecil G. Dobbs, pleaded guilty to aggravated assault and theft of property valued at less than $500 in return for a sentence of seven years of split confinement with two years of incarceration followed by five years of probation. A probation violation warrant was issued based upon subsequently incurred charges and, after a hearing, the trial court revoked the Defendant’s probation sentence, ordering that he serve his sentence in confinement. On appeal, the Defendant asserts that the trial court abused its discretion when it revoked his probation sentence and by “not allowing him to be heard” at the probation revocation hearing. After review, we affirm the trial court’s judgment.

Jefferson County Court of Criminal Appeals 11/30/17
State of Tennessee v. Darryl Robinson
W2016-01803-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Glenn Wright

The Defendant, Darryl Robinson, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, and there is a question as to whether his second conviction was for possession of a firearm by one previously convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon, a Class C felony, or a felon in possession of a handgun, a Class E felony. The trial court sentenced him to an effective term of sixteen years in the Tennessee Department of Correction. On appeal, the Defendant argues that: (1) the evidence is insufficient to support his conviction for aggravated robbery; and (2) a witness’s reference to him by his nickname, “Trigger Man,” was prejudicially erroneous. He also raises a number of issues concerning his conviction for convicted felon in possession of a firearm or handgun. After review, we affirm the convictions for aggravated robbery and convicted felon in possession of a handgun but remand for resentencing on the convicted felon in possession of a handgun conviction.

Shelby County Court of Criminal Appeals 11/29/17
State of Tennessee v. Rodney Paul Starnes, II
W2016-02491-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge R. Lee Moore, Jr.

Defendant, Rodney Paul Starnes, II, was indicted by the Dyer County Grand Jury for one count of possession with intent to sell or deliver synthetic cannabinoids. Defendant filed a motion to suppress, alleging that the affidavit in support of a search warrant was defective and failed to give rise to probable cause because the affidavit contained no information establishing a confidential informant’s basis of knowledge. The trial court granted Defendant’s motion based upon the then controlling authority of State v. Jacumin, 778 S.W.2d. 430 (Tenn. 1989), and the State appealed. Following our review of the record and pertinent authorities, including the Tennessee Supreme Court’s recent decision in State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017), we reverse the judgment of the trial court and remand for further proceedings in the trial court.

Dyer County Court of Criminal Appeals 11/29/17