Court of Criminal Appeals Opinions

Format: 04/24/2014
Format: 04/24/2014
Tim Smith v. State of Tennessee
W2013-00432-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas Jr.
Trial Court Judge: Judge W. Mark Ward

The Petitioner, Tim Smith, challenges his conviction for aggravated kidnapping, alleging that his guilty plea was not knowingly and voluntarily entered because he did not understand the ramifications of his plea, noting that trial counsel erroneously advised him that he would be eligible for release after he had served eighty-five percent of his sentence. Upon consideration of the record and the applicable authorities, we conclude that the Petitioner failed to prove that his plea was unknowingly and involuntarily entered and affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/24/14
State of Tennessee v. Danny R. Mays
W2013-01052-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the Defendant, Danny R. Mays, of felony evading arrest, reckless driving, driving on a cancelled, suspended or revoked license, leaving the scene of an accident, violation of the registration law, criminal trespass, vandalism, and possession of marijuana. The trial court sentenced the Defendant to an effective sentence of eight years. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions for felony evading arrest, reckless driving, driving on a cancelled, suspended or revoked license, and possession of marijuana. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 04/24/14
State of Tennessee v. Michael Presson
W2012-00023-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Roy B. Morgan Jr.

A Madison County jury convicted the Defendant, Michael Presson, of ten counts of attempted aggravated sexual battery, one count of aggravated sexual battery, and eleven counts of rape of a child. The trial court sentenced the Defendant to an effective sentence of thirty-five years of confinement. On direct appeal from his convictions, the Defendant contends that: (1) the evidence presented at trial was insufficient to sustain his convictions; (2) the trial court erred when it refused to admit into evidence the medical record for one of the victims; (3) the trial court violated Tennessee Rule of Evidence 615 by allowing the State’s designated witness to be present during the victims’ testimony, without requiring the designated witness to testify first; (4) the State improperly used an exhibit and commented on a jury questionnaire during closing arguments, violating the Defendant’s Sixth Amendment right to a fair trial; (5) the trial court improperly instructed the jury as to the mens rea elements of the crimes; (6) the trial court erred when it imposed consecutive sentences; and (7) the trial court erred when it placed the victim’s medical records under seal and denied the Defendant the opportunity to review the records. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 04/24/14
State of Tennessee v. Alvin Brewer and Patrick Boyland
W2012-02282-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley Jr.

In this consolidated appeal, the defendants, Alvin Brewer and Patrick Boyland, stand convicted of multiple crimes in two separate cases. In case number 11-02360, defendant Brewer was convicted by a jury of two counts of false imprisonment, two counts of robbery, one count of aggravated burglary, and one count of assault. Defendant Boyland was convicted of two counts of false imprisonment, one count of robbery, one count of facilitation of robbery, one count of aggravated burglary, and one count of assault. Each received effective twenty-eight year sentences as Range II multiple offenders. In this case, both have raised the following issues for review on appeal: (1) whether the trial court erred by failing to charge criminal attempt to the jury when the proof of a completed robbery was controverted and not overwhelming; (2) whether the trial court erred by improperly commenting on the evidence by referring to the home residents as “victims” in the jury charge; (3) whether there is sufficient evidence to support the convictions; and (4) whether the trial court erred in failing to force the State to make an election as to the aggravated assault charge when the proof presented showed two separate assaults. Following review, we have concluded that no reversible error has been established and affirm the judgments and resulting sentences. However, the judgment for facilitation of robbery in Count 4 for defendant Boyland incorrectly indicates that he was convicted of a Class C felony. In actuality, it should reflect conviction of a D felony, and we remand for entry of a corrected judgment form. In case number 11-02361, the defendants incurred multiple convictions. Defendant Boyland was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and three counts of facilitation of aggravated assault. During the motion for new trial hearing, the trial court granted a motion for judgment of acquittal with regard to the especially aggravated kidnapping conviction. Following a sentencing hearing, defendant Boyland was sentenced to an effective forty-eight year sentence. Defendant Brewer was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and three counts of aggravated assault. As with defendant Boyland, the trial court granted a motion for judgment of acquittal with regard to the especially aggravated kidnapping conviction, and defendant Brewer was sentenced to an effective forty-eight year sentence in the Department of Correction. On appeal, the defendants argue: (1) that the employing a firearm offense is void for failure to allege a predicate felony; (2) alternatively, that the firearm conviction should be reversed because the trial court improperly instructed the jury and provided improper verdict forms; (3) that the trial court erred in allowing a witness to testify in violation of rule 404(b); (4) that the evidence is insufficient to support the convictions; (5) that the trial court erred in refusing to merge the conviction for aggravated robbery with the convictions for aggravated assault and facilitation of aggravated assault, respective to each defendant, in violation of double jeopardy protections; (6) alternatively, that if merger is not applicable, then the trial court erred in failing to compel an election for the aggravated assault and facilitation of aggravated assault; and (7) that the trial court erred in allowing Mr. Clarence Mann to testify when his name was not endorsed on the indictment. Additionally, the State raises an issue for appeal, that being that the trial court erred in granting the motion for judgment of acquittal with regard to the especially aggravated kidnapping convictions of both defendants. Following review, the convictions for each defendant for employing a firearm during the commission of a dangerous felony are reversed. Moreover, we have determined that the court did erroneously refuse to merge defendant Boyland’s conviction for facilitation of aggravated assault and defendant Brewer’s conviction for aggravated assault into their respective aggravated robbery convictions. Moreover, the judgment of conviction form for defendant Brewer’s aggravated assault conviction in Count 8 fails to specify a release eligibility. Additionally, the trial court’s granting of motions for judgment of acquittal as to the charge of especially aggravated kidnapping for both defendants is reversed, and the judgments should be re-instated. As such, the case is remanded for sentencing on the especially aggravated kidnapping convictions and for further proceedings and actions necessary in accordance with this opinion. The convictions and sentences are affirmed in all other respects.

Shelby County Court of Criminal Appeals 04/24/14
State of Tennessee v. Alvin Brewer and Patrick Boyland
W2012-02281-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley Jr.

In this consolidated appeal, the defendants, Alvin Brewer and Patrick Boyland, stand convicted of multiple crimes in two separate cases. In case number 11-02360, defendant Brewer was convicted by a jury of two counts of false imprisonment, two counts of robbery, one count of aggravated burglary, and one count of assault. Defendant Boyland was convicted of two counts of false imprisonment, one count of robbery, one count of facilitation of robbery, one count of aggravated burglary, and one count of assault. Each received effective twenty-eight year sentences as Range II multiple offenders. In this case, both have raised the following issues for review on appeal: (1) whether the trial court erred by failing to charge criminal attempt to the jury when the proof of a completed robbery was controverted and not overwhelming; (2) whether the trial court erred by improperly commenting on the evidence by referring to the home residents as “victims” in the jury charge; (3) whether there is sufficient evidence to support the convictions; and (4) whether the trial court erred in failing to force the State to make an election as to the aggravated assault charge when the proof presented showed two separate assaults. Following review, we have concluded that no reversible error has been established and affirm the judgments and resulting sentences. However, the judgment for facilitation of robbery in Count 4 for defendant Boyland incorrectly indicates that he was convicted of a Class C felony. In actuality, it should reflect conviction of a D felony, and we remand for entry of a corrected judgment form. In case number 11-02361, the defendants incurred multiple convictions. Defendant Boyland was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and three counts of facilitation of aggravated assault. During the motion for new trial hearing, the trial court granted a motion for judgment of acquittal with regard to the especially aggravated kidnapping conviction. Following a sentencing hearing, defendant Boyland was sentenced to an effective forty-eight year sentence. Defendant Brewer was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and three counts of aggravated assault. As with defendant Boyland, the trial court granted a motion for judgment of acquittal with regard to the especially aggravated kidnapping conviction, and defendant Brewer was sentenced to an effective forty-eight year sentence in the Department of Correction. On appeal, the defendants argue: (1) that the employing a firearm offense is void for failure to allege a predicate felony; (2) alternatively, that the firearm conviction should be reversed because the trial court improperly instructed the jury and provided improper verdict forms; (3) that the trial court erred in allowing a witness to testify in violation of rule 404(b); (4) that the evidence is insufficient to support the convictions; (5) that the trial court erred in refusing to merge the conviction for aggravated robbery with the convictions for aggravated assault and facilitation of aggravated assault, respective to each defendant, in violation of double jeopardy protections; (6) alternatively, that if merger is not applicable, then the trial court erred in failing to compel an election for the aggravated assault and facilitation of aggravated assault; and (7) that the trial court erred in allowing Mr. Clarence Mann to testify when his name was not endorsed on the indictment. Additionally, the State raises an issue for appeal, that being that the trial court erred in granting the motion for judgment of acquittal with regard to the especially aggravated kidnapping convictions of both defendants. Following review, the convictions for each defendant for employing a firearm during the commission of a dangerous felony are reversed. Moreover, we have determined that the court did erroneously refuse to merge defendant Boyland’s conviction for facilitation of aggravated assault and defendant Brewer’s conviction for aggravated assault into their respective aggravated robbery convictions. Moreover, the judgment of conviction form for defendant Brewer’s aggravated assault conviction in Count 8 fails to specify a release eligibility. Additionally, the trial court’s granting of motions for judgment of acquittal as to the charge of especially aggravated kidnapping for both defendants is reversed, and the judgments should be re-instated. As such, the case is remanded for sentencing on the especially aggravated kidnapping convictions and for further proceedings and actions necessary in accordance with this opinion. The convictions and sentences are affirmed in all other respects.

Shelby County Court of Criminal Appeals 04/24/14
State of Tennessee v. James H. Saint, Jr.
M2013-01511-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, James H. Saint, Jr., was convicted of six counts of aggravated sexual battery and was ordered to serve a sixty-six-year sentence. The petitioner brings this post-conviction action where he alleges that he received the ineffective assistance of counsel in that: (1) trial counsel failed to sufficiently inform the petitioner regarding the details of his settlement offer; (2) trial counsel failed to adequately prepare both himself and the petitioner for trial; and (3) trial counsel failed to adequately cross-examine the petitioner’s wife at trial. After a thorough review of the record, we conclude that the petitioner has not established that counsel performed deficiently or that any deficiency prejudiced the petitioner. We accordingly affirm the denial of his petition.

Davidson County Court of Criminal Appeals 04/24/14
State of Tennessee v. Travis Darnell Kendrick
M2013-01638-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Michael R. Jones

The defendant, Travis Darnell Kendrick, was found to be in violation of the terms and conditions of his probation agreement and was sentenced to serve the remainder of his sentence in confinement. On appeal, the defendant claims that the trial court abused its discretion by ordering the remainder of his sentence to be served in incarceration. After review of the record, we find no abuse of discretion and affirm the judgment of the trial court.

Robertson County Court of Criminal Appeals 04/24/14
State of Tennessee v. Justin Shelton
M2013-01812-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Forest A. Durard, Jr.

Appellant, Justin Shelton, was indicted by the Lincoln County Grand Jury on two counts of reckless endangerment and two counts of vandalism. Appellant pled guilty and was sentenced to two years on each count for a total effective sentence of eight years. The trial court suspended the sentences and ordered Appellant to probation. Subsequently, a probation violation warrant was filed which alleged that Appellant had not reported to his probation officer; failed to pay fines; and failed to provide proof of employment. Petitioner also pled guilty to another offense. At a hearing, Petitioner pled guilty to the probation violation. The trial court ordered Appellant to serve the balance of his sentence in incarceration. Appellant appeals. After a review of the record and authorities, we determine that the trial court did not abuse its discretion in revoking Appellant’s probation as there was evidence to support the conclusion of the trial court that a violation of the conditions of probation occurred. Accordingly, the judgment of the trial court is affirmed.

Lincoln County Court of Criminal Appeals 04/24/14
State of Tennessee v. Steve Duclair
E2012-02580-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge R. Jerry Beck

Appellant, Steve Duclair, was named in a presentment by the Sullivan County Grand Jury in September of 2008 for two counts of the sale of one-half a gram or more of cocaine within 1,000 feet of a school and two counts of the delivery of one-half a gram or more of cocaine within 1,000 feet of a school. The grand jury later named Appellant in a second presentment charging Appellant for one count of selling one-half gram or more of cocaine within 1,000 feet of a school and one count of delivering one-half gram or more of cocaine within 1,000 feet of a school. After a jury trial, Appellant was convicted of two counts of selling one-half gram or more of cocaine, two counts of delivering one-half gram or more of cocaine, one count of selling one-half gram or more of cocaine within 1,000 feet of a school, and one count of delivering one-half gram or more of cocaine within 1,000 feet of a school. The trial court merged the convictions for the sale of cocaine with the convictions for the delivery of cocaine. Appellant was sentenced to an effective sentence of fifteen years at 100 percent. After the denial of a motion for new trial, Appellant presents the following issues for our review on appeal: (1) whether the evidence was sufficient to support the convictions; (2) whether the trial court committed error while dismissing the alternate juror at the conclusion of the trial; (3) whether the trial court committed error by asking Appellant where he was from during voir dire; (4) whether the trial court properly instructed the jury; (5) whether Appellant’s sentences constitute cruel and unusual punishment; (6) whether the assistant district attorney committed prosecutorial misconduct; and (7) whether the Drug-Free School Zone Act is unconstitutional. After a review of the record and the applicable authorities, we determine that the evidence was sufficient to support the convictions; the trial court properly instructed the jury; the trial court did not abuse its discretion in sentencing Appellant; the Drug-Free School Zone Act is not unconstitutional; the trial court did not violate Appellant’s right from self-incrimination during voir dire; the trial court did not err in dismissing the alternate juror; and the prosecutor did not commit misconduct during closing argument. Consequently, the judgments of the trial court are affirmed.

Sullivan County Court of Criminal Appeals 04/23/14
Johnny Coffey v. State of Tennessee
E2013-01659-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Carroll L. Ross

The Petitioner, Johnny Coffey, appeals the Bradley County Criminal Court’s denial of post-conviction relief. The Petitioner was convicted of second degree murder and sentenced to twenty years’ imprisonment. On appeal, he argues that trial counsel was ineffective by failing to properly petition the trial court for a State-funded psychiatric expert to assist the defense. Upon review, we affirm the judgment of the post-conviction court.

Bradley County Court of Criminal Appeals 04/23/14
Jarrod Phillips v. State of Tennessee
M2013-02026-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James G. Martin, III

Petitioner, Jarrod Phillips, was charged with first degree murder in Davidson County. He pled guilty to second degree murder and was sentenced to thirty-two years as a Range II, violent offender. Petitioner subsequently filed a petition for writ of habeas corpus in Hickman County. The habeas corpus court summarily dismissed the petition. After a thorough review of the record, we affirm the habeas corpus court’s dismissal of the petition.

Hickman County Court of Criminal Appeals 04/23/14
State of Tennessee v. Joseph Leon Knowles
M2013-01653-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Stella Hargrove

The Defendant, Joseph Leon Knowles, pleaded guilty pursuant to a plea agreement to attempt to commit aggravated child abuse of a child under six years old, a Class B felony, with the sentence to be determined by the trial court. See T.C.A. § 39-15-402 (2010). The trial court sentenced the Defendant as a Range I, standard offender to twelve years’ confinement. On appeal, the Defendant contends that the trial court erred during sentencing by failing to apply certain mitigating factors relative to remorse, assisting the police, and his not having a substantial intent to violate the law and by denying him alternative sentencing. We affirm the judgment of the trial court.

Giles County Court of Criminal Appeals 04/23/14
Kristopher Smith v. State of Tennessee
W2013-01135-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge John W. Campbell

The petitioner, Kristopher Smith, appeals the denial of his bid for post-conviction relief from his 2009 Shelby County Criminal Court jury convictions of aggravated kidnapping and rape, claiming that the ruling in State v. White, 362 S.W.3d 559 (Tenn. 2012), requires dismissal of his aggravated kidnapping conviction and that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 04/23/14