Court of Criminal Appeals Opinions

Format: 12/28/2014
Format: 12/28/2014
State of Tennessee v. James D. Wooden
E2014-01069-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Carroll L. Ross

Appellant, James D. Wooden, appeals the trial court’s summary denial of his motion to correct an illegal sentence, as permitted by Tennessee Rule of Criminal Procedure 36.1, for lack of jurisdiction because the sentences have already expired. Although the trial court had jurisdiction to consider the motion, we determine Appellant has failed to state a colorable claim entitling him to relief and, therefore, affirm the denial of the motion.

Bradley County Court of Criminal Appeals 12/26/14
State of Tennessee v. Coty Shane Smith
E2014-00490-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Amy F. Reedy

Defendant, Coty Shane Smith, pled guilty to one count of second degree murder. The trial court sentenced him to an effective sentence of twenty-five years in the Tennessee Department of Correction. On appeal, Defendant contends that the trial court imposed an excessive sentence by improperly applying an enhancement factor and imposing a sentence that is disproportionate to the sentence received by one of the co-defendants in his case and to sentences received in other second degree murder convictions throughout the state. After a thorough review of the record and the applicable authorities, we affirm the judgment of the trial court.

Monroe County Court of Criminal Appeals 12/26/14
Misty Jane Brunelle v. State of Tennessee
E2014-00292-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge John F. Dugger, Jr.

Petitioner, Misty Jane Brunelle, was convicted of three counts of aggravated child abuse in relation to broken bones sustained by her infant daughter. Her convictions and sentences were affirmed on appeal. State v. Misty Brunelle, E2006-00467-CCA-R3-CD, 2007 WL 2026616 (Tenn. Crim. App. July 13, 2007), perm. app. denied (Tenn. Oct. 22, 2007) (“Brunelle I”). Petitioner then filed a post-conviction petition, which was denied. This Court affirmed the denial of the post-conviction petition on the basis of ineffective assistance of counsel, but reversed the lower court’s determination that no newly discovered evidence existed. Misty Jane Brunelle v. State, No. E2010-00662-CCA-R3-PC, 2011 WL 2436545 (Tenn. Crim. App. June 16, 2011), perm. app. denied (Tenn. Oct. 18, 2011) (“Brunelle II”). Petitioner then filed a petition for writ of error coram nobis, claiming that newly discovered evidence existed which may have resulted in a different outcome had it been presented at trial. After a hearing, the coram nobis court denied the petition. Based upon a thorough review of the law, record, and arguments in this case, we hold that the coram nobis court did not abuse its discretion in denying the petition. Therefore, we affirm the decision of the coram nobis court.

Greene County Court of Criminal Appeals 12/26/14
State of Tennessee v. John Talley - concurring in results
E2014-01313-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Barry A. Steelman

I concur in results only, and I write separately in order to express my disagreement with the statement in the lead opinion by Judge Easter that if the sentences have been fully served, “the controversy is moot.” I respectfully submit that this conclusion is erroneous.

Hamilton County Court of Criminal Appeals 12/26/14
State of Tennessee v. John Talley
E2014-01313-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Barry A. Steeleman

Appellant, John Talley, appeals the trial court’s summary denial of his motion to correct illegal sentences, imposed over twenty-eight years ago, filed pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court found it lacked jurisdiction because the sentences have already expired and because the trial court could not determine that the “sentence[s] are illegal.” We determine, because of the broadness of Rule 36.1, the trial court had jurisdiction to consider the motion and that Appellant stated a colorable claim, as currently defined. Accordingly, the judgment of the Criminal Court is remanded for further proceedings consistent with this opinion.

Hamilton County Court of Criminal Appeals 12/26/14
Dexter Frank Johnson v. State of Tennessee
E2014-00659-CCA-R3-ECN
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Barry A. Steelman

Pro se Petitioner, Dexter Frank Johnson, appeals the summary dismissal of his third motion seeking to reopen his post-conviction proceedings and/or the denial of a writ of coram nobis by the Criminal Court of Hamilton County. He further claims that the post-1 conviction court erred by failing to appoint counsel to assist him with his petition because he is illiterate. Upon our review, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 12/23/14
State of Tennessee v. Jerome Wall
W2014-00782-CCA-R3-CO
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge John W. Campbell

Appellant, Jerome Wall, pleaded guilty to aggravated robbery and robbery. Appellant subsequently filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed because appellant’s sentences had expired. On appeal, appellant argues that the trial court erred by summarily dismissing his motion because an illegal sentence may be challenged at any time pursuant to Rule 36.1 and that on remand, his case should be assigned to a different trial judge because the trial judge was not impartial as to the Rule 36.1 motion. The State concedes to appellant’s Rule 36.1 argument and states in its brief that this case should be reversed and remanded to the trial court. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 12/23/14
Vincent Sims v. State of Tennessee
W2014-00166-CCA-R3-PD
Authoring Judge: Judge Robert L. Holloway Jr.
Trial Court Judge: Judge Chris Craft

The Petitioner, Vincent Sims, appeals from the denial of his petition for writ of error coram nobis, in which he claimed he is intellectually disabled and, therefore, ineligible for the death penalty. On appeal, the Petitioner contends that the trial court erred in denying his petition for writ of error coram nobis and his stand-alone claim under the intellectual disability provisions in Tennessee Code Annotated section 39-13-203. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/23/14
State of Tennessee v. Lester Arnold Clouse
M2013-02633-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Senior Judge Donald P. Harris

Appellant, Lester Arnold Clouse, was convicted of aggravated assault, a Class C felony; simple assault, a Class A misdemeanor; and resisting arrest, a Class B misdemeanor.  After merger of the resisting arrest conviction with the aggravated assault conviction, the trial court sentenced him to fifteen years and eleven months, twenty-nine days, respectively.  Appealing from his convictions and sentences, appellant argues that: (1) the trial court improperly denied his motion to suppress; (2) the trial court failed to approve the verdicts as thirteenth juror; (3) the evidence was insufficient to support his assault convictions; and (4) the trial court erred in sentencing him to fifteen years in confinement consecutive to other outstanding sentences.  Following our review, we affirm the convictions.  However, we reverse appellant’s sentences and remand this cause for a new sentencing hearing.

White County Court of Criminal Appeals 12/23/14
Octavious Taylor v. State of Tennessee
W2014-00678-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Mark Ward

The petitioner, Octavious Taylor, filed pro se in 2013 a timely petition for post-conviction relief challenging his 2012 Shelby County, guilty-pleaded convictions of aggravated robbery and especially aggravated robbery for which he received an effective 21-year sentence to be served at 100 percent in the Department of Correction. The petitioner asserted that his guilty pleas were not knowingly, intelligently, or voluntarily made and that his trial counsel rendered ineffective assistance. Following the appointment of counsel, the filing of an amendment to the petition, and an evidentiary hearing, the post-conviction court denied relief. In this timely appeal, the petitioner advances his claim of an infirm guilty plea. Because the record supports the decision of the post-conviction court, we affirm its judgment.

Shelby County Court of Criminal Appeals 12/22/14
State of Tennessee v. Demarcus Keyon Cole
W2013-02850-CA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan Jr.

The defendant, Demarcus Keyon Cole, was convicted by a Madison County jury of first degree felony murder and especially aggravated robbery, a Class A felony, and was sentenced by the trial court to consecutive terms of life and twenty years, to be served consecutively to a six-year sentence for a previous conviction. The sole issue the defendant raises on appeal is whether the evidence is sufficient to sustain his convictions. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/22/14
State of Tennessee v. Jason Lee Fisher
M2014-00615-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Lee Russell

The Defendant, Jason Lee Fisher, was convicted by a Marshall County Circuit Court jury of felony escape, a Class E felony.  See T.C.A. § 39-16-605(a) (2014).  The trial court sentenced the Defendant to six years’ confinement at 60% service to be served consecutively to a previous sentence.  On appeal, the Defendant contends that the evidence is insufficient to support his conviction and that the trial court erred by denying his motion for a judgment of acquittal.  We affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 12/22/14
State of Tennessee v. Olbin Euceda
M2013-01572-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Oblin Sabier Euceda, was charged in an eight-count indictment returned by the Davidson County Grand Jury with aggravated robbery of A.H. (the victims will be identified by initials) in Count 1, aggravated robbery of J.H. in Count 2, aggravated robbery of Z.H. (a child less than thirteen years of age) in Count 3, especially aggravated kidnapping of A.H. in Count 4, especially aggravated kidnapping of J.H. in Count 5, especially aggravated kidnapping of Z.H. (by use of a deadly weapon) in Count 6, especially aggravated kidnapping of Z.H. (a victim under thirteen years of age) in Count 7, and rape of a child, Z.H. in Count 8.  All charges were committed during a home invasion, and there was a co-defendant who is not before the court in this appeal.  The case proceeded to a jury trial where Defendant pled guilty to the first two aggravated robbery charges and the jury found him guilty as charged of the remaining offenses.  At the sentencing hearing, the trial court merged the convictions in Count 6 and Count 7 for one conviction of especially aggravated kidnapping of Z.H.  After determining the length of sentence for each of the seven convictions, the trial court ordered partial consecutive sentencing for an effective sentence of seventy-five years.  In his sole issue on appeal, Defendant asserts that the trial court erred by ordering consecutive sentencing.  After a thorough review of the record and the briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 12/22/14
State of Tennessee v. Craig Patrick Hebert
M2012-02299-CCA-R3-CD
Authoring Judge: Special Judge J. Robert Carter, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County jury convicted the defendant, Craig Patrick Hebert, of assault, and the trial court sentenced him to six months, which was suspended and ordered to be served on probation.  On appeal, the defendant contends that (1) the trial court erred in failing to charge the jury in accordance with Tennessee Pattern Jury Instruction – Criminal No. 42.23 (Duty to Preserve Evidence); and (2) that the evidence was insufficient to support his conviction. Following the denial of the motion for new trial, the defendant filed a petition for writ of error coram nobis, which was heard and denied.  This court consolidated the appeal of the denial of his petition with the original appeal as of right in this cause.  Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 12/22/14
Joseph Howard Green, Jr. v. State of Tennessee
M2014-00148-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Joseph Howard Green, Jr., was originally charged with second degree murder, and he ultimately pled guilty to voluntary manslaughter, a Class C felony.  He received a six-year sentence to be served consecutively to another sentence.  In this appeal, the petitioner contends that: (1) his guilty plea was not knowingly and voluntarily made because he was mentally ill and unmedicated at the time of his plea and because he was not made aware of the consequences of the guilty plea; and (2) that trial counsel provided ineffective assistance of counsel. Upon review, we affirm the judgment denying relief of the post-conviction court. 

Davidson County Court of Criminal Appeals 12/22/14
State of Tennessee v. Kenneth Paul Colvett
M2013-02488-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge F. Lee Russell

Following a jury trial, the Defendant, Kenneth Paul Colvett, was convicted of premeditated first degree murder and sentenced to life imprisonment with the possibility of parole. See Tenn. Code Ann. § 39-13-202. In this appeal as of right, the Defendant contends (1) that the jury erred by rejecting the defense of insanity; (2) that the trial court erred by not allowing defense counsel to take home prior written statements made by a witness and by not admitting extrinsic evidence of the statements of two witnesses during trial; (3) that the State failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963); (4) that the trial court erred by refusing to provide the Defendant with a transcript of a prior hearing in this case; (5) that the State committed prosecutorial misconduct during the cross-examination of the Defendant’s expert witness; (6) that the trial court erred by questioning the Defendant about his decision not to testify at trial; (7) that the State committed prosecutorial misconduct during its closing argument by commenting on the Defendant’s decision not to testify; and (8) that the Defendant is entitled to a new trial based upon cumulative error.1 Following our review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 12/19/14
State of Tennessee v. Trish Wooley
W2014-00556-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway Jr.
Trial Court Judge: Judge Nathan Pride

In February 2004, the Petitioner, Trish Wooley, pleaded guilty to three counts of theft of property valued under $500 and two counts of vandalism under $500, and further proceedings were deferred pursuant to Tennessee Code Annotated section 40-35-313. In September 2004, the trial court revoked judicial diversion, sentenced the Petitioner to concurrent terms of 11 months and 29 days on each conviction, and placed the Petitioner on supervised probation. In 2013, the Petitioner sought the expunction of her criminal convictions. The trial court granted the expunction. The State appealed. Upon review, we reverse the judgment of the trial court because the Petitioner was convicted of more than one offense in a multi-count indictment and therefore was not an “eligible petitioner” under Tennessee Code Annotated section 40-32-101(g)(1).

Chester County Court of Criminal Appeals 12/18/14
State of Tennessee v. Clifton Swift
W2013-02182-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Glenn Wright

The defendant, Clifton Swift, appeals his Shelby County Criminal Court jury conviction of rape of a child, claiming that the trial court abused its discretion by permitting impeachment of the defendant by his prior conviction for attempting to violate the sexual offender registry act and by admitting into evidence the victim’s rape kit. In addition, the defendant contends that the evidence was insufficient to support his conviction of rape of a child. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/18/14
State of Tennessee v. David A. Brimmer
E2014-01393-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dnald Ray Elledge

In 1999, Appellant, David A. Brimmer, pled guilty to aggravated kidnapping in relation to the October 1989 disappearance and death of the  victim, for which he had been previously found guilty of first degree murder and sentenced to death. His death sentence was remanded by this Court. See Brimmer v. State, 29 S.W.3d 497 (Tenn. Crim. App. 1998). At resentencing, Appellant agreed to plead to aggravated kidnapping as a Class A felony with a sentence of 60 years to be served at 100%, consecutively to a life sentence for first degree murder, in exchange for the State not seeking the death penalty. Appellant subsequently filed a petition to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1, alleging that his sentence for aggravated kidnapping is in contravention of the 1989 Sentencing Reform Act. The trial court summarily dismissed the petition for failing to state a colorable claim. Upon our review of the record and applicable authorities, we affirm the judgment of the trial court.

Anderson County Court of Criminal Appeals 12/18/14
Tamir Clark v. State of Tennessee
M2014-00618-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge M. Keith Siskin

The Petitioner, Tamir Clark, pleaded guilty to especially aggravated kidnapping, arson, especially aggravated robbery, and attempted robbery, and the trial court sentenced him to serve twenty-five years in the Tennessee Department of Corrections.  The Petitioner filed a petition for post-conviction relief, in which he alleged that he had received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered.  The post-conviction court dismissed the petition after a hearing.  On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition, maintaining that he received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered.  After a thorough review of the record and applicable law, we  affirm the post-conviction court’s judgment.

Rutherford County Court of Criminal Appeals 12/18/14
State of Tennessee v. Oren Ray Johnson
M2014-00908-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Forest Durard

The Defendant, Oren Ray Johnson, pleaded guilty to simple assault, and the trial court ordered a probationary sentence of eleven months and twenty-nine days.  Thereafter, the Defendant was arrested for aggravated domestic assault, an offense to which he pleaded guilty.  The trial court issued a probation violation warrant and, after a hearing, revoked the Defendant’s probation sentence.  On appeal, the Defendant contends that the trial court improperly ordered him to serve the remainder of his sentence in confinement for violating the terms of his probation.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Marshall County Court of Criminal Appeals 12/18/14
Gabriel Kimball v. State of Tennessee
M2014-00182-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Gabriel Kimball, pleaded guilty to rape of a child in Bradley County Criminal Court, and the trial court sentenced him to serve fifteen years.  The Petitioner unsuccessfully sought post-conviction relief.  Gabriel Kimball v. State, No. E2006-01562-CCA-R3-PC, 2007 WL 2757634, at *1 (Tenn. Crim. App. Sept. 24, 2007), perm. app. denied (Tenn. Feb. 4, 2008).  The Petitioner then sought state habeas corpus relief alleging that the judgment of conviction entered was void and that his attorney rendered ineffective assistance.  The habeas corpus court summarily dismissed the petition finding that the Petitioner had failed to raise a cognizable habeas corpus claim.  The Petitioner appeals this dismissal, maintaining that the judgment is void and that he received the ineffective assistance of counsel.  After a thorough review of the record and applicable law, we affirm the habeas corpus court’s judgment.

Davidson County Court of Criminal Appeals 12/18/14
Secdrick L. Booker v. State of Tennessee
M2014-00846-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve Dozier

The Petitioner, Secdrick L. Booker, appeals the Davidson County Criminal Court’s dismissal of his motion to correct an illegal sentence.  The Petitioner contends that his convictions are void because he was sentenced in direct violation of Tennessee statutory law.  Upon a review of the record in this case, we are persuaded that the trial court properly denied the motion.  Accordingly, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 12/18/14
State of Tennessee v. Rafael Antonio Bush
M2014-01193-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David M. Bragg

The Petitioner, Rafael Antonio Bush, was convicted of especially aggravated robbery, aggravated burglary, and aggravated assault.  On direct appeal, this Court affirmed his convictions and sentence.  State v. Rafael Antonio Bush, No. M2002-02390-CCA-R3-CD, 2004 WL 794755 (Tenn. Crim. App., at Nashville, April 14, 2004), no Tenn. R. App. P. 11 application filed.  Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel at trial.  The trial court denied the petition after a hearing, and this Court affirmed the post-conviction court’s judgment denying relief.  Rafael Antonio Bush v. State, No. M2005-02967-CCA-R3-PC, 2006 WL 2682825 at *1 (Tenn. Crim. App., at Nashville, Sept. 7, 2006), perm. app. denied (Tenn. Dec. 27, 2006).  On April 24, 2014, the Petitioner filed a motion to reopen his petition for post-conviction relief.  The post-conviction court denied the motion to reopen, and the Petitioner appeals that decision.  After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 12/18/14
State of Tennessee v. Charles Anderson Clark Jr.
W2014-00445-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan Jr.

The Defendant-Appellant, Charles Anderson Clark, Jr., was convicted by a Henderson County jury as charged of rape, see T.C.A. § 39-13-503, and sentenced as a Range III, persistent offender to a term of twenty-five years’ imprisonment. In this direct appeal, the Defendant-Appellant challenges the sufficiency of the evidence and the sentence imposed by the trial court. Following our review, we affirm the judgment of the trial court.

Henderson County Court of Criminal Appeals 12/17/14