Court of Criminal Appeals Opinions

Format: 04/27/2017
Format: 04/27/2017
State of Tennessee v. Ricky Thompson - dissenting opinion
E2015-02464-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge G. Scott Green
I agree with the majority’s discussion of the photographs and subsequent legal
analysis of their admissibility; however, I do not agree that the error in admitting the
surgical photographs was harmless.
Knox County Court of Criminal Appeals 04/27/17
State of Tennessee v. Ricky Thompson
E2015-02464-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge G. Scott Green
Defendant, Ricky Thompson, appeals from his conviction for reckless aggravated assault,
arguing that the trial court abused its discretion when it failed to declare a mistrial after a
potential juror made highly prejudicial remarks that undermined the authority of the trial
proceedings and contaminated the rest of the venire. Additionally, Defendant argues that
the trial court abused its discretion when it admitted photographs of surgical procedures
performed on the victim. Following our review, we conclude that the trial court properly
exercised its discretion in denying the Defendant’s motion for a mistrial. Additionally,
we conclude that the surgical photographs were improperly admitted into evidence but
find the error to be harmless. Accordingly, the judgment of the trial court is affirmed.
Knox County Court of Criminal Appeals 04/27/17
Joe Travis Northern v. State of Tennessee
W2016-01058-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

Joe Travis Northern, Jr. (“Petitioner”) appeals from the denial of his petition for postconviction relief. Petitioner claims that he received ineffective assistance of trial counsel and of counsel appointed to represent him in a Tennessee Rule of Criminal Procedure 36.1 motion. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 04/25/17
State of Tennessee v. Joseph L. Smith
W2016-01229-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald E. Parish

Joseph L. Smith (“the Defendant”) was convicted of attempted arson under a theory of criminal responsibility and received a three-year sentence; he was ordered to serve one year in the workhouse and the remainder of the sentence on community corrections. On appeal, the Defendant argues that the trial court erred in its denial of his motion for judgment of acquittal and his motion for new trial because the testimony of the accomplices was not sufficiently corroborated by independent evidence. The Defendant also contends that the evidence introduced at trial was insufficient for a rational juror to have found him guilty of attempted arson beyond a reasonable doubt and that the trial court should not have instructed the jury on the offense of attempted arson. After a thorough review of the record and applicable case law, we affirm.

Henry County Court of Criminal Appeals 04/25/17
James Britt v. State of Tennessee
W2016-00928-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

The Petitioner, James Britt, appeals the denial of his petition for post-conviction relief from his premeditated first degree murder conviction, alleging he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 04/25/17
David Andrew Oliver v. State of Tennessee
E2016-02244-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, David Andrew Oliver, appeals the denial of his petition for post-conviction relief in which he challenged his rape of a child conviction and twenty-five year prison sentence. On appeal, the Petitioner contends that he was denied his right to the effective assistance of counsel, arguing that trial counsel should have advised him to testify at trial. We affirm the post-conviction court’s denial of relief.

Knox County Court of Criminal Appeals 04/25/17
State of Tennessee v. Mark Oden Potts
M2016-02079-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Franklin L. Russell

Defendant, Mark Oden Potts, pled guilty to various drug-related offenses.  He received an effective sentence of eight years as a standard offender.  On appeal, he argues that the trial court abused its discretion by denying an alternative sentence of probation or community corrections.  After reviewing the record, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 04/25/17
State of Tennessee v. Thomas R. Davis
E2016-01622-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge G. Scott Green

A Knox County jury convicted the Defendant, Thomas R. Davis, of simple possession of a controlled substance; simple possession of a controlled substance, third offense; and misdemeanor evading arrest. Following a sentencing hearing, the trial court sentenced the Defendant to eleven months and twenty-nine days each for simple possession of a controlled substance and evading arrest and one year for simple possession of a controlled substance, third offense. The trial court merged the drug convictions and ordered the Defendant to serve his sentences concurrently, for an effective sentence of one year. On appeal, the Defendant contends that due to an amendment to Tennessee Code Annotated section 39-17-418(e) that went into effect prior to the sentencing hearing, he did not qualify for enhanced punishment for simple possession of a controlled substance based on prior convictions. We conclude that the amendment to Tennessee Code Annotated section 39-17-418(e) controls and that, as a result, the Defendant did not qualify for enhancement punishment for his simple possession conviction based on his prior convictions. Accordingly, the judgments of the trial court are reversed in part and affirmed in part. The Defendant’s conviction for simple possession of a controlled substance as a Class E felony as reflected in the judgment for count 12 is dismissed, and the case is remanded to the trial court for entry of a corrected judgment reflecting the $2,500 fine imposed by the jury in count 11 and for further proceedings in accordance with this opinion.

Knox County Court of Criminal Appeals 04/24/17
Josh L. Bowman v. State of Tennessee
E2016-01028-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Josh L. Bowman, was convicted by a jury of three counts of first degree felony murder, one count of especially aggravated kidnapping, one count of especially aggravated robbery, two counts of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. After the verdict, the Petitioner pled guilty to one count of employing a firearm during the commission of a dangerous felony when he had previously been convicted of a felony. The trial court merged the murder convictions, merged the burglary convictions, and merged the firearms convictions. This court on appeal reversed the especially aggravated kidnapping conviction and remanded for a new trial, affirming all other judgments. See State v. Josh L. Bowman, No. E2012-00923-CCA-R3-CD, 2013 WL 4680402, at *3 (Tenn. Crim. App. Aug. 29, 2013), overruled in part by State v. Teats, 468 S.W.3d 495 (Tenn. 2015). The Petitioner filed a timely post-conviction petition, alleging that his trial counsel was deficient in allowing him to enter a guilty plea to the firearms offense and deficient in failing to object to the racial composition of the jury venire. The post-conviction court granted relief on the firearms conviction, finding that the Petitioner did not have a qualifying prior “dangerous felony” and dismissing the charge. The post-conviction court found that the Petitioner could not show deficiency or prejudice on the jury issue. Both parties filed notices of appeal in this court. The State asserts that the postconviction court misinterpreted Tennessee Code Annotated section 39-17-1324 (2008) in granting relief and argues that the prior felony need not be a dangerous felony according to statute. The Petitioner asserts that he is entitled to relief from all his convictions based on the jury composition. After a thorough review of the record, we affirm the postconviction court’s judgment. We remand for the post-conviction court to enter judgment on the merged conviction which survives the dismissal of the firearms offense.

Knox County Court of Criminal Appeals 04/24/17
State of Tennessee v. Justin Ray Lane
E2016-01756-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge R. Jerry Beck

A Sullivan County jury convicted the defendant, Justin Ray Lane, of four separate felony offenses for his participation in a controlled drug buy of heroin and cocaine within one thousand feet of a school. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions arguing the State failed to prove he authored the text messages which established the details of the illegal transaction. Additionally, and for the same reason, the defendant argues photographs of the text messages establishing the drug deal were not properly authenticated at trial. Finally, the defendant contends the trial court prejudiced the jury by including the preamble to the Drug-Free School Zone Act in its charge. After reviewing the record, submissions of the parties, and pertinent authorities, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 04/24/17
State of Tennessee v. Gregory Maurice Marlin
M2016-01376-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Franklin L. Russell

The Defendant, Gregory Maurice Marlin, was convicted of evading arrest while operating a motor vehicle, evading arrest on foot, and operating a motor vehicle while declared a habitual traffic offender.  The trial court sentenced the Defendant as a standard offender to two years for the evading arrest while operating a motor vehicle conviction, eleven months and twenty-nine days for the evading arrest on foot conviction, and two years for the operating a motor vehicle while declared a habitual offender conviction, all to be served consecutively to each other.  After the sentencing hearing, the trial court amended the sentence and merged the evading arrest on foot conviction with the evading arrest while operating a motor vehicle conviction, for an effective sentence of four years in prison.  The Defendant argues that the evidence is insufficient to support his convictions and that the trial court abused its discretion in sentencing him.  After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 04/24/17
State of Tennessee v. Johnathan Robert Leonard
M2016-00269-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Franklin L. Russell

Johnathan Robert Leonard (“the Defendant”) appeals his Marshall County convictions for three counts of rape of a child, two counts of soliciting sexual exploitation of a child, and one count of aggravated sexual battery, for which he received an effective sentence of ninety-six years.  The Defendant asserts that he was denied due process and a fair trial based on numerous instances of prosecutorial misconduct and that the cumulative effect of “irregularities” during voir dire and jury selection resulted in structural constitutional error, necessitating a new trial.  After a thorough review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 04/24/17
State of Tennessee v. Maurice Allen Mills, Jr.
E2016-01118-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steven Wayne Sword

The pro se defendant, Maurice Allen Mills, Jr., appeals as of right from the Knox County Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 (“Rule 36.1”) motion to correct an illegal sentence. The defendant contends his motion stated a colorable claim for relief, so the trial court erred in summarily denying it. Discerning no error, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 04/21/17
Roderick McAlpin v. State of Tennessee
E2016-01482-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steven Wayne Sword

The petitioner, Roderick McAlpin, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Knox County Court of Criminal Appeals 04/21/17
Brunswick L. Robinson v. State of Tennessee
E2016-02429-CCA-R3-HC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Stacy L. Street

The pro se petitioner, Brunswick L. Robinson, appeals the denial of his petition for writ of habeas corpus by the Johnson County Criminal Court, arguing the trial court erred in summarily dismissing the petition as his sentence has expired. After our review, we affirm the summary dismissal of the petition pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Johnson County Court of Criminal Appeals 04/21/17
State of Tennessee v. David G. Jenkins
M2016-00270-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Thomas W. Graham

The Defendant, David G. Jenkins, appeals his conviction of first degree premeditated murder for which he received a sentence of life imprisonment.  On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting post-mortem photographs of the victim; (3) the trial court improperly commented on the evidence in front of the jury; (4) the trial court erred in limiting defense counsel’s cross-examination of a witness; (5) the trial court erred in its rulings on various hearsay evidence; (6) the trial court erred in denying the Defendant’s request to give his own closing argument to the jury; and (7) reversal is warranted due to the cumulative effect of the errors.  Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

Franklin County Court of Criminal Appeals 04/21/17
Myron Lorenzo Johnson v. State of Tennessee
M2016-01361-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury convicted the Petitioner, Myron Lorenzo Johnson, of first degree felony murder, first degree premeditated murder, and especially aggravated robbery.  The trial court merged the convictions for first degree premeditated murder and felony murder and ordered an effective sentence of life imprisonment plus sixty years.  On appeal, this Court affirmed the trial court’s judgments.  See State v. Myron Lorenzo Johnson, 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 then filed a post-conviction petition in which he alleged that his trial counsel was ineffective, and the post-conviction court denied relief following a hearing.  On appeal, the Petitioner maintains that he received the ineffective assistance of counsel.  After review, we affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 04/21/17
State of Tennessee v. Darryl Wilkins Burton
M2016-00690-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Deanna B. Johnson

The Defendant-Appellant, Darryl Wilkins Burton, entered a guilty plea to driving under the influence (DUI) in exchange for a sentence of eleven months and twenty-nine days to be served on probation after the service of forty-eight hours in the Williamson County jail.  The Defendant reserved a certified question of law challenging the denial of his motion to suppress, which was based upon an unconstitutional seizure.  Because the Defendant failed to properly reserve the certified question, we dismiss the appeal.

Williamson County Court of Criminal Appeals 04/20/17
State of Tennessee v. Teena Marie Bright
M2016-01873-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Curtis Smith

The Defendant, Teena Marie Bright, pleaded guilty to possession of .5 gram or more of a methamphetamine with intent to manufacture, sell, or deliver.  Pursuant to the plea agreement, the trial court sentenced the Defendant to eight years as a Range I, standard offender.  The sentence was suspended to supervised probation after 158 days in confinement.  A violation of probation warrant was subsequently issued, and, after a hearing, the trial court revoked the Defendant’s probation and ordered service of the balance of the sentence in confinement.  The Defendant appeals the trial court’s order that she serve her sentence in confinement.  We affirm the trial court’s judgment.

Franklin County Court of Criminal Appeals 04/20/17
Christopher Locke v. State of Tennessee
E2015-02027-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge David Reed Duggan

Petitioner, Christopher Locke, pleaded guilty to one count of incest and received a three-year sentence of probation after the trial court denied judicial diversion. State v. Christopher Locke, No. E2010-01965-CCA-R3-CD, 2011 WL 3446442 (Tenn. Crim. App., Aug. 9, 2011), perm. app. denied (Tenn., Nov. 16, 2011). Petitioner appeals the denial of his petition for post-conviction relief as being untimely. Additionally, Petitioner asserts that the trial court erred by failing to conduct an independent inquiry regarding a conflict of interest between trial counsel and post-conviction counsel. Having reviewed the record, the applicable law, and the briefs of the parties, we affirm the judgment of the post-conviction court.

Blount County Court of Criminal Appeals 04/19/17
State of Tennessee v. Michael Dean Hodges
M2014-01544-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl Blackburn

The Davidson County Grand Jury indicted the Appellant, Michael Dean Hodges, of aggravated child abuse in counts one through three and aggravated child neglect in count four.  After a jury trial, the Appellant was acquitted in count one but convicted as charged in counts two and three and convicted of knowing aggravated assault as a lesser-included offense of aggravated child neglect in count four.  The trial court merged the aggravated assault conviction into the aggravated child abuse convictions and sentenced the Appellant to an effective twenty-five-years in confinement to be served at 100%.  On appeal, the Appellant claimed that the trial court erred by failing to sever the charge of aggravated child abuse in count one from the remaining two counts of aggravated child abuse; that the trial court erred by allowing the jury to hear a portion of his statement in which he admitted to prior bad acts; that the trial court erred by giving the jury a supplemental instruction on “knowingly” that failed to include language about non-accidental conduct; and that cumulative error warranted a new trial.  This court concluded that the trial court erred by allowing the jury to hear that the Appellant had been “in trouble” previously but that the error was harmless; however, we concluded that the Appellant’s conviction of aggravated assault had to be reversed because knowing aggravated assault was not a lesser-included offense of aggravated child neglect.  The Tennessee Supreme Court granted the Appellant’s application for permission to appeal and remanded the case to this court for reconsideration in light of the court’s recent opinion in State v. Howard, 504 S.W.3d 260 (Tenn. 2016), regarding lesser-included offenses.  Upon reconsideration, we again conclude that knowing aggravated assault is not a lesser-included offense of aggravated child neglect as charged in this case and modify the conviction to reckless endangerment.

Davidson County Court of Criminal Appeals 04/19/17
State of Tennessee v. Tazarius Jay Vond Leach
M2015-01866-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County Criminal Court Jury convicted the Appellant, Tazarius Jay Vond Leach, of two counts of aggravated robbery and one count of carjacking.  The trial court imposed a total effective sentence of fifteen years.  On appeal, the Appellant argues that the State’s providing “a hypothetical using the facts of the case” to explain criminal responsibility during voir dire violated his right to a fair trial and impartial jury.  Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 04/19/17
Mitchell Garner v. State of Tennessee
W2015-02431-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Glenn Ivy Wright

The Petitioner, Mitchell Garner, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his conviction of aggravated sexual battery and resulting twelve-year sentence. On appeal, the Petitioner claims that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/18/17
Aaron Malone v. State of Tennessee
W2016-00666-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Aaron Malone, appeals the denial of his petition for post-conviction relief from his conviction for first degree felony murder. He asserts that the court erred in denying relief because he received the ineffective assistance of counsel and his due process rights were violated by the State’s failing to preserve unedited footage from “The First 48” television show. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 04/18/17
State of Tennessee v. Yelsin A. Cruz
M2016-01099-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Robert L. Jones

The defendant, Yelsin A. Cruz, appeals his Maury County Circuit Court jury conviction of rape of a child, claiming that the trial court erred by denying his motion to suppress his pretrial statement to the police, that the evidence was insufficient to support his conviction, and that the 27-year sentence is excessive.  Discerning no error, we affirm.

Maury County Court of Criminal Appeals 04/17/17