Court of Criminal Appeals Opinions

Format: 06/02/2020
Format: 06/02/2020
State of Tennessee v. David Eric Lambert
E2018-02298-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

The Defendant, David Eric Lambert, appeals his Sullivan County Criminal Court jury convictions for unlawful photography and attempted sexual battery. See Tenn. Code Ann. §§ 39-12-101, -13-505, -13-605. On appeal, the Defendant argues that (1) the trial court erred by denying his motion to dismiss because then Code section 39-13-605 governing unlawful photography was unconstitutionally vague and because his conduct did not constitute a crime; (2) the admission of his statement at trial violated Rule 404(b) of the Tennessee Rules of Evidence; (3) the evidence was insufficient to support his convictions; and (4) the trial court erred by ordering that he serve the eleven-month-andtwenty- nine-day sentences imposed in this case consecutively to each other and to the Defendant’s sentence in another case. Because the evidence adduced at trial was insufficient to support the Defendant’s conviction for unlawful photography, that conviction is reversed and the charge is dismissed. However, the Defendant’s conviction for attempted sexual battery is affirmed, the evidence being sufficient to support that conviction.

Sullivan County Court of Criminal Appeals 04/28/20
Alfred Whitehead v. State of Tennessee
M2019-00790-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Monte Watkins

Alfred Whitehead, Petitioner, appeals from the post-conviction court’s order denying relief. On appeal, Petitioner claims that he received ineffective assistance of counsel as a result of trial counsel’s failure to object to “inflammatory and prejudicial statements” made by the State during opening statement and closing argument. We agree that the statements were improper and that trial counsel rendered deficient performance by failing to object, but we hold that Petitioner failed to “show that there [wa]s a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). We, therefore, affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 04/27/20
State of Tennessee v. Nemon Omar Winton
M2018-01447-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge L. Craig Johnson

Defendant, Nemon Omar Winton, was convicted of two counts of especially aggravated kidnapping, one count of aggravated kidnapping, and one count of aggravated robbery. The trial court imposed a sentence of thirty years for each count of especially aggravated kidnapping, fifteen years for aggravated kidnapping, and fifteen years for aggravated robbery. The trial court ordered the sentences for especially aggravated kidnapping and aggravated kidnapping to be served concurrently with each other and consecutively to the sentence for aggravated robbery for an effective forty-five-year sentence to be served in confinement. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions for especially aggravated kidnapping, aggravated robbery, and aggravated kidnapping; (2) that the trial court erred in denying his request for a special jury instruction; and (3) that his sentence was excessive. Upon reviewing the record and the applicable law, we affirm the judgments of conviction for especially aggravated kidnapping and aggravated robbery. We conclude the evidence is legally insufficient to support the conviction of aggravated kidnapping, reverse that conviction and dismiss with prejudice the charge of aggravated kidnapping contained in Count Nine of the indictment. That count is remanded for consideration of appropriate lesser-included offenses, if any, of aggravated kidnapping.

Coffee County Court of Criminal Appeals 04/27/20
State of Tennessee v. Rodney Darnell Robinson
M2019-00303-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

Rodney Darnell Robinson ("Defendant") was convicted in Davidson County Criminal Court of two counts of child abuse, five counts of aggravated sexual battery, four counts of rape of a child, two counts of sexual battery by an authority figure, two counts of rape, and one count of attempted rape of a child, for which he received an effective sentence of sixty years' incarceration. On appeal, Defendant contends that: (1) the evidence was insufficient to support his convictions; (2) he was denied the effective assistance of counsel; (3) the trial court erred by allowing trial counsel to proceed while "clearly ill"; (4) the trial court failed to remedy statements made during voir dire by a potential juror, thereby depriving Defendant of a fair trial; (5) the trial court erred in allowing cumulative testimony in the cross-examination of Defendant; (6) the trial court erred in allowing improper leading questions to a witness; (7) the trial court erred in the admission of certain evidence; (8) the trial court erred in the exclusion of certain evidence; (9) there was an appearance of bias from the trial judge that violated Defendant's due process rights; and (10) cumulative error requires a new trial. Following a thorough review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 04/27/20
State of Tennessee v. Joseph E. Graham
M2019-00388-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William R. Goodman, III

The Defendant, Joseph E. Graham, was convicted by a Montgomery County Circuit Court jury of two alternate theory counts of felony murder; one count of especially aggravated burglary, a Class B felony; seven counts of especially aggravated kidnapping, Class A felonies; and five counts of attempted aggravated robbery, Class C felonies. The trial court merged the felony murder convictions and sentenced the Defendant to an effective term of life plus twenty years. On appeal, the Defendant argues that: (1) the evidence is insufficient to sustain his convictions, and there was insufficient evidence corroborating co-defendant Cheeks' accomplice testimony; (2) the trial court erred in limiting his cross-examination of co-defendant Cheeks and excluding relevant evidence; and (3) he is entitled to a new trial based on the newly discovered evidence of co-defendant Cheeks' testimony at codefendant Shelton's trial. After review, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 04/27/20
State of Tennessee v. Keith Harris Pearson
M2019-00780-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Forest A. Durard, Jr.

Keith Harris Pearson, Defendant, admitted to violating the terms of his probation, and the trial court revoked his probation and ordered him to serve the balance of his sentence in the Tennessee Department of Correction (“TDOC”). On appeal, Defendant claims that the trial court erred in revoking his probation. Discerning no error, we affirm the trial court.

Marshall County Court of Criminal Appeals 04/27/20
State of Tennessee v. Gordon Lynn Dunkin
W2019-01684-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

Gordon Lynn Dunkin, Defendant, was indicted for theft of property “equal to or over” the value of $2,500.00, a Class D felony, and a jury convicted him of the lesser offense of theft of property in the value of more than $1,000.00, but less than $2,500.00, a Class E felony. Following a sentencing hearing, the trial court determined Defendant to be a Range I standard offender and sentenced him to two years’ incarceration. On appeal, Defendant claims that there was insufficient evidence to sustain the conviction and that the trial court erred in not sentencing him to an alternative sentence. Discerning no error, we affirm the judgment of the trial court.

Henderson County Court of Criminal Appeals 04/24/20
State of Tennessee v. Jason Collins
W2019-01415-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Donald Allen

The defendant, Jason Collins, appeals his Henderson County Circuit Court jury convictions of possession with intent to sell .5 grams or more of methamphetamine and possession of drug paraphernalia, arguing that the trial court erred by permitting the State to present a rebuttal witness, that the evidence was insufficient to support his convictions, and that the trial court erred by aligning the sentence imposed in this case consecutively to the sentence imposed in an unrelated case. Discerning no error, we affirm.

Henderson County Court of Criminal Appeals 04/24/20
State of Tennessee v. Vintario Tate
W2019-01072-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The defendant, Vintario Tate, appeals his Shelby County Criminal Court jury convictions of attempted second degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony, arguing that the evidence was insufficient to support his convictions and that his convictions violate principles of double jeopardy. Discerning no error, we affirm the judgments of the trial court and remand for entry of a corrected judgment in count 3.

Shelby County Court of Criminal Appeals 04/24/20
State of Tennessee v. Danny Ray Lacy
W2019-00748-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The Defendant, Danny Ray Lacy, filed a motion under Tennessee Rule of Criminal Procedure 36 to correct a clerical error in the judgment convicting him of first degree felony murder and sentencing him to serve life in prison without the possibility of parole rather than the number of years that he was to be incarcerated. The trial court dismissed the motion, concluding that there was no clerical error in the omission of a sentence in terms of years in the judgment. On appeal, we affirm the trial court’s judgment.

Madison County Court of Criminal Appeals 04/24/20
State of Tennessee v. Darius Markee Alston aka "Jack"
W2018-00550-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Joe H. Walker, III

A Lauderdale County jury convicted the defendant, Darius Markee Alston, of two counts of first degree premeditated murder, two counts of felony murder, two counts of especially aggravated robbery, and unlawful possession of a firearm by a convicted felon. The trial court imposed an effective sentence of life in confinement. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions, and asserts the trial court erred by: allowing testimony of his co-defendant’s nickname, allowing improper opinion testimony, denying his motion for a mistrial, and not severing his trial from his co-defendant’s trial. Upon our review of the record, we affirm the judgments of the trial court.

Lauderdale County Court of Criminal Appeals 04/24/20
Angela Smith v. State of Tennessee
W2019-00994-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Clayburn Peeples

The petitioner, Angela Smith, appeals the denial of her post-conviction petition, arguing the post-conviction court erred in finding she received the effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Gibson County Court of Criminal Appeals 04/24/20
State of Tennessee v. Darrell Roby
W2019-00438-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jennifer Johnson Mitchell

Darrell Roby, Defendant, was convicted by a jury of one count of rape of a child and one count of aggravated sexual battery. As a result of the convictions, Defendant was sentenced to an effective sentence of fifty-two years. After the denial of a motion for new trial, Defendant appeals his convictions. On appeal, he argues that the evidence was insufficient to support his convictions. After a thorough review, we determine that the evidence is sufficient to support the convictions. Consequently, the judgments of the trial court are affirmed.

Shelby County Court of Criminal Appeals 04/24/20
Rodriquez McNary v. State of Tennessee
W2019-00048-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Robert Carter, Jr.

Petitioner, Rodriquez McNary, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner and his two
co-defendants were convicted of two counts of attempted first-degree murder, one count of aggravated assault, and one count of reckless endangerment. Defendant and one of his co-defendants were also convicted of one count of employing a firearm during the commission of a dangerous felony. The third co-defendant was convicted of employing a firearm during the commission of a dangerous felony after having been previously convicted of a felony and of possessing a firearm after having been convicted of a felony involving the use or attempted use of violence. Petitioner was sentenced to an effective forty-one-year sentence. On appeal, this court held that the evidence was insufficient to support Petitioner’s conviction for employing a firearm during a dangerous felony and reversed and remanded the case for a new trial on the lesser-included offense of possession of a firearm during the commission of a dangerous felony. Petitioner’s remaining convictions were affirmed. State v. Dantario Burgess, et al., No. W2015-00588-CCA-R3-CD, 2017 WL 417231, at *1-10 (Tenn. Crim. App. Jan. 31, 2017). Petitioner contends on appeal that the post-conviction court erred in denying the petition for post-conviction relief because the post-conviction court erred in failing to find prosecutorial vindictiveness, and he was denied effective assistance of counsel. Following a review of the briefs and the record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/24/20
State of Tennessee v. Treveno Campbell
W2017-01101-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

As a result of firing upon several law enforcement officers and actually killing one officer, the defendant, Treveno Campbell, was indicted for one count of first-degree murder (Count 1), five counts of attempted first-degree murder (Counts 2, 4, 6, 8, 10), six counts of employing a firearm during the commission of a dangerous felony (Counts 3, 5, 7, 9, 11, 12), possession of marijuana with intent to sell (Count 13), and possession of marijuana with intent to deliver (Count 14). After a trial, a jury convicted the defendant of second degree murder (Count 1), two counts of attempted second degree murder (Counts 2 and 10), two counts of employing a firearm during the commission of a dangerous felony (Counts 3 and 11), one count of possession of a firearm with intent to go armed (Count 12), possession of marijuana with intent to sell (Count 13), and possession of marijuana with intent to deliver (Count 14). Counts 5, 7, and 9 were dismissed. As a result of his convictions, the defendant received an effective sentence of forty years in confinement. On appeal, the defendant raises numerous issues, including the trial court erred in denying his motion in limine; the trial court erred in allowing Officer Goodwin to invoke his Fifth Amendment rights; the trial court erred in denying his motion for a mistrial based on the State and a two witnesses referencing gang activity; the trial court erred in instructing the jury on the defense of self-defense; the trial court erred in denying his request for an instruction on mistake of fact; the evidence was insufficient to support the jury’s verdict; the trial court erred in sentencing him; and cumulative error. After a review of the record and the briefs, we find no reversible error and affirm the defendant’s convictions and sentences.

Shelby County Court of Criminal Appeals 04/24/20
John Brent v. State of Tennessee
W2018-01968-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Paula L. Skahan

Petitioner, John Brent, was convicted by a Shelby County jury of aggravated robbery and aggravated burglary. The trial court sentenced Defendant to an effective sentence of 30 years’ imprisonment for his convictions. Defendant’s convictions and sentences were affirmed by this court on direct appeal. State v. John Brent, No. W2013-01252-CCA-R3- CD, 2014 WL 5342610, at *1 (Tenn. Crim. App. Oct. 21, 2014), perm. app. denied (Tenn. Apr. 13, 2015). Petitioner sought post-conviction relief, alleging that his trial counsel was ineffective. Following evidentiary hearings, the post-conviction court denied relief. Following our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/24/20
Travis Tate v. State of Tennessee
W2019-01380-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge W. Mark Ward

A jury convicted Petitioner, Travis Tate, of second degree murder, attempted voluntary manslaughter, and employing a firearm during the commission of a dangerous felony. Petitioner’s convictions were upheld by this Court on direct appeal. State v. Travis Tate, No. 2014-02102-CCA-R3-CD, 2016 WL 7664764 (Tenn. Crim. App. May 31, 2016), no perm. app. filed. Petitioner timely filed a petition for post-conviction relief. After a hearing, the post-conviction court denied the petition. After a reviewing the record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/24/20
State of Tennessee v. Shun M. Ramey
M2019-00755-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Brody Kane

Defendant, Shun M. Ramey, is appealing the trial court’s denial of his motion to correct an illegal sentence. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Wilson County Court of Criminal Appeals 04/24/20
Michael Waddell v. State of Tennessee
W2018-01853-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

The Petitioner, Michael Waddell, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction of second degree murder and the accompanying thirty-seven-year sentence, contending that the post-conviction court erred by holding that he received effective 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 04/23/20
State of Tennessee v. Roy Rogers, Jr.
W2019-00977-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Clayburn Peeples

For the third time in this Court, Defendant, Roy Rogers, Jr., challenges his convictions for initiating the manufacturer of methamphetamine, promoting the manufacture of methamphetamine, possession of drug paraphernalia, and criminal impersonation, for which he received a total effective sentence of twelve years. See State v. Roy Rogers, Jr., No. W2015-00988-CCA-R3-CD, 2016 WL 1045352, at *1-2 (Tenn. Crim. App. Mar. 15, 2016) (“Rogers I”), no perm. app. filed; Roy Rogers, Jr. v. State, No. W2017-01939-CCA-R3-PC, 2018 WL 6075655, at *1 (Tenn. Crim. App. Nov. 20, 2018) (“Rogers II”), no perm. app. filed. Defendant appeals after the post-conviction court denied his motion for new trial after remand. Because the post-conviction court failed to follow the directive of this Court on remand after Rogers II, we reverse the judgment of that court and remand the case with the same instructions given by this Court in Rogers II, for the post-conviction court to: (1) conduct an evidentiary hearing on Defendant’s postconviction petition; (2) determine whether Defendant is entitled to a delayed appeal; and (3) if the post-conviction court holds the hearing and determines Defendant is entitled to a delayed appeal, enter an order that (a) allows Defendant to file a new motion for new trial, and (b) stays the post-conviction proceedings on Defendant’s remaining claims until the resolution of the delayed appeal.

Gibson County Court of Criminal Appeals 04/23/20
State of Tennessee v. Marlando Shuntell Sturghill and Xavier Talik-Rashod Martin
W2019-00807-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Kyle C. Atkins

Marlando Shuntell Sturghill (“Mr. Sturghill”) and Xavier Talik-Rashod Martin (“Mr. Martin”) (jointly “Defendants”) were convicted by a jury of aggravated robbery and sentenced to eight years’ incarceration with release eligibility after service of eighty-five percent of their sentence. In this consolidated appeal, both Defendants claim there was insufficient evidence to support the convictions. After a thorough review of the record and briefs, we affirm the Defendants’ judgments of conviction.

Madison County Court of Criminal Appeals 04/23/20
Joseph Nathaniel Nance v. State of Tennessee
E2019-00566-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Shayne Sexton

In 2009, a Campbell County jury convicted the Petitioner, Joseph Nathaniel Nance, of six counts of rape of a child and one count of aggravated sexual battery, and the trial court sentenced him to sixty-four years of incarceration. The Petitioner appealed his convictions to this court, and we affirmed the judgments. State v. Nance, 393 S.W.3d 212 (Tenn. Crim. App. 2012). Subsequently, the Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel, which the
post-conviction court denied after a hearing. After review, we affirm the post-conviction court’s judgment.

Campbell County Court of Criminal Appeals 04/22/20
State of Tennessee v. Thomas Massey
M2019-00700-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David M. Bragg

The Appellant, Thomas Massey, filed a pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, and the Rutherford County Circuit Court summarily denied the motion. On appeal, the Appellant contends that the effective ten-year sentence he received pursuant to his guilty pleas to aggravated assault and evading arrest is illegal because he is being held beyond the period of incarceration authorized by the judgments of conviction. Based upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 04/22/20
Ricky Harris v. Kevin Hampton, Warden
E2019-00571-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Justin C. Angel

The pro se Petitioner, Ricky Harris, appeals as of right from the Bledsoe County Circuit Court’s order summarily denying his petition for a writ of habeas corpus. The State has filed a motion to dismiss this appeal as untimely or to affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is
well-taken as to the filing of a memorandum opinion and affirm the order of the habeas corpus court.

Bledsoe County Court of Criminal Appeals 04/22/20
State of Tennessee v. Marilda Evon Green
E2018-01287-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge O. Duane Slone

The Defendant, Marilda Evon Green, appeals from the Jefferson and Grainger County Circuit Courts’ orders revoking her probation based upon her guilty plea to a separate charge of aggravated statutory rape and reinstating her effective six-year sentence. The Defendant contends that the trial court abused its discretion by requiring her to serve the balance of her sentence in custody and subsequently denying her motions to reduce the sentence and petitions for early release. Following our review, we affirm.

Grainger County Court of Criminal Appeals 04/21/20