Court Opinions

Format: 07/28/2014
Format: 07/28/2014
STATE OF TENNESSEE v. TIMOTHY HOWARD CUNNINGHAM
M2013-2844-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Criminal Court Jury convicted the appellant, Timothy Howard Cunningham, of reckless endangerment by use of a deadly weapon, namely a motor vehicle. The trial court sentenced him to four years in the Tennessee Department of Correction.  On appeal, the appellant challenges the sufficiency of the evidence sustaining his conviction. Upon review, we affirm the judgment of the trial court.
 

Davidson County Court of Criminal Appeals 07/25/14
In Re Adelyn B.
W2013-02374-COA-R3-JV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John W. Whitworth

This case arises out of the Mother’s request to relocate with the parties’ minor child. The trial court determined it was in the best interest of the child to remain in Tennessee with Father pursuant to Tennessee Code Annotated Section 36-6-108(c). We affirm the trial court’s best interest finding, and remand for entry of a permanent parenting plan naming Father the child’s primary residential parent and setting a parenting schedule taking into account Mother’s move.

Benton County Court of Appeals 07/24/14
Linda Laseter v. J. Martin Regan, Jr.
W2013-02105-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Donna Fields

This appeal involves a defendant’s attempts to discover certain financial information from the plaintiff’s medical expert in order to facilitate an inquiry into potential bias. The trial court entered several orders requiring the expert witness to provide the requested financial information, which related to his income and compensation, but the expert witness repeatedly failed to comply with the trial court’s orders. The trial court also ruled that the defendant would be permitted to question the expert witness about certain financial information during cross-examination at trial, and the expert witness communicated to the trial judge that he would refuse to answer any such questions. The trial court eventually excluded the medical expert as a witness and allowed the plaintiff time to find a replacement expert. When the plaintiff failed to identify another expert witness within the time allowed, the trial court dismissed the complaint. The plaintiff appeals. We affirm.

Shelby County Court of Appeals 07/24/14
KENNETH DEWAYNE JOHNSON v. STATE OF TENNESSEE
M2013-02491-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve Dozier

Petitioner, Kenneth Dewayne Johnson, pled guilty to aggravated assault in Davidson County on November 17, 2011.  On June 10, 2013, Petitioner filed a pro se petition for post-conviction relief, alleging that the trial court lacked jurisdiction because the foreman of the grand jury that issued the indictment was ineligible to serve for being a convicted felon.  Petitioner also asserted that he received ineffective assistance of counsel and entered an unknowing and involuntary plea.  The post-conviction court dismissed the petition as untimely.  On August 16, 2013, Petitioner, with the assistance of counsel, filed a second petition for post-conviction relief, arguing that the statute of limitations should be tolled in his case because the ineligibility of the grand jury foreman was not made public knowledge until after the statute of limitations had expired and was, therefore, a “later-arising” ground for relief.  The post-conviction court dismissed the petition, finding that the ineligibility of the grand jury foreman did not divest the trial court of jurisdiction and that Petitioner was not denied effective assistance of counsel.  Petitioner appealed.  Upon a thorough review of the law and the facts in this case, we affirm the decision of the post-conviction court.
 

Davidson County Court of Criminal Appeals 07/24/14
Bryant Jennings v. City of Memphis
W2013-02570-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. HIghers
Trial Court Judge: Judge Arnold B. Goldin

This case involves the eligibility of a Memphis police officer for automatic promotion to thirty-year Captain. The trial court granted summary judgment in favor of the officer. However, because the officer was a temporary employee prior to the cut-off date set forth in the automatic promotion provision, we find that he is not entitled to automatic promotion. We reverse the grant of summary judgment in favor of the officer and we grant summary judgment in favor of the City of Memphis. The case is remanded for further proceedings, as may be necessary, consistent with this opinion.

Shelby County Court of Appeals 07/24/14
MYRON L. JOHNSON v. STATE OF TENNESSEE
M2013-02314-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James G. Martin, III

The Appellant, Myron L. Johnson, appeals the trial court's summary dismissal of his petition for habeas corpus relief.  The judgment of the trial court is affirmed.
 

Hickman County Court of Criminal Appeals 07/24/14
Danny Lee Greene v. State of Tennessee
E2013-01583-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

The Petitioner, Danny Lee Greene, appeals the Washington County Criminal Court’s denial of his petition for post-conviction relief from his 2007 conviction for second degree murder and his twenty-three-year sentence as a violent offender. The Petitioner contends that the trial court erred by denying him relief because (1) juror bias existed and (2) he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 07/24/14
State of Tennessee v. Robert Lee Driskell
E2013-01783-CCA-R3-CD
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge David R. Duggan

Robert Lee Driskill (“the Defendant”) pleaded guilty to one count of driving under the influence (“DUI”) and one count of violating the implied consent law. Pursuant to the Defendant’s plea agreement, the trial court sentenced the Defendant to eleven months, twenty-nine days’ incarceration, to be suspended on supervised probation after the service of forty-eight hours’ confinement. In conjunction with his guilty plea, the Defendant reserved the following certified question of law: “Whether the officer’s conduct violated the Defendant’s rights under Article I, Section 7 or the Fourth Amendment when the officer through activating blue lights caused the Defendant to stop his moving vehicle and encounter the officer.” Upon our thorough review of the record and applicable law, we hold that the Defendant is entitled to no relief. Accordingly, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 07/24/14
Doris Guyear, Heir of Leroy Guyear, Deceased v. Joey Blalock, Et AL.
M2012-01562-COA-R3-CV
Authoring Judge: Senior Judge Ben H. Cantrell
Trial Court Judge: Judge J. Curtis Smith

The owner of a promissory note died, and his widow filed a complaint in the name of his estate to collect the unpaid balance, even though her late husband’s estate had never been opened. She subsequently amended her complaint to designate herself as the plaintiff in her capacity as her late husband’s wife and next friend. The obligors on the note filed a motion for dismissal, contending that the widow had not demonstrated that she was a proper plaintiff or that she had any right to collect on the note. The trial court granted the motion to dismiss. We affirm.

Grundy County Court of Appeals 07/23/14
In Re Estate of Arthur E. Wair, Jr.
M2014-00164-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David Randall Kennedy, Sr.

This appeal arises from alleged violations of the Tennessee Adult Protection Act (“TAPA”). Arthur E. Wair, Jr. (“Decedent”) executed a last will and testament leaving his entire estate to his friend and accountant, Larry Mullins (“Mullins”). After Decedent died, his siblings Sidney Wair, Ralph Wair, and Juanita Jackson (“Plaintiffs”) sued Mullins in the Circuit Court for Davidson County (“the Trial Court”) not as a will contest but instead alleging that Mullins had exercised undue influence over their brother to manipulate him into executing the will all in violation of TAPA. Mullins filed a motion to dismiss, which the Trial Court granted. Plaintiffs appeal. We hold, inter alia, that any claim for abuse or neglect under TAPA was barred by the one-year statute of limitations for personal torts, and that Plaintiffs otherwise failed to state a claim under TAPA. We affirm the Trial Court.

Davidson County Court of Appeals 07/23/14
Charles Middlebrook v. State of Tennessee
E2013-02411-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Charles Middlebrook, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his 2011 convictions upon guilty pleas for theft valued more than $1000 but less than $10,000 and assault and his Range III eight-year sentence. The Petitioner contends that his guilty pleas were involuntarily entered because he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 07/23/14
STEVEN JAMES MCCAIN v. STATE OF TENNESSEE
M2013-00992-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner, Steven James McCain, appeals the denial of his petition for post-conviction relief from his 1998 Davidson County Criminal Court jury convictions of two counts of first degree premeditated murder, claiming that the State withheld material evidence at trial and that he was denied the effective assistance of counsel at trial.  Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 07/23/14
State of Tennessee v. Jawaune Massey
E2013-01047-CCA-R3-CD
Authoring Judge: Judge Jeffrey S. Bvins
Trial Court Judge: Judge R. Jerry Beck

Jawaune Massey (“the Defendant”) was convicted by a jury of one count of first degree premeditated murder and one count of first degree felony murder as to victim Nolan; one count of first degree premeditated murder and one count of first degree felony murder as to victim Alexander; one count of especially aggravated robbery; one count of criminal conspiracy to commit aggravated robbery; one count of criminal conspiracy to possess more than 26 grams of cocaine with the intent to sell or deliver; one count of possessing more than 26 grams of cocaine for resale; and one count of maintaining a dwelling where controlled substances are used or sold. For these crimes, the Defendant was sentenced to serve an effective term of two consecutive life sentences. In these consolidated appeals, the Defendant contends that the evidence was not sufficient to support his convictions. He also contends that the trial court (1) erred in consolidating offenses; (2) should have conducted a hearing to determine if a “stun belt” was a necessary restraint of the Defendant during trial; (3) should have instructed the jury that several witnesses were accomplices as a matter of law; and (4) should not have run his life sentences consecutively. Upon our thorough review of the record and applicable law, we reverse on grounds of insufficient evidence the Defendant’s conviction of criminal conspiracy to possess more than 26 grams of cocaine with intent to sell or deliver and his conviction of maintaining a dwelling where controlled substances are used or sold. We affirm the remaining judgments.

Sullivan County Court of Criminal Appeals 07/23/14
State of Tennessee v. James Joseph Ryan
E2013-02135-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steven Wayne Sword

Following a jury trial in Knox County Criminal Court, Defendant, James Joseph Ryan, was convicted of burglary of a business (an automobile dealership) and theft of property of more than $10,000.00 in value. He was sentenced as a Range II offender to an effective sentence of ten years. In this appeal, Defendant asserts that accomplice testimony was not corroborated, that the trial court erred by not finding a certain witness was an accomplice as a matter of law, and that the trial court erred by ordering Defendant to pay the court costs. After a thorough review we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 07/22/14
In Re Chandler M. - Concurring and Dissenting
M2013-02455-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas C. Faris

I concur fully in everything in the majority’s decision except the majority’s determination that the statutory ground of termination found in Tenn. Code Ann. § 36-1113(g)(6) was proven byclear and convincing evidence. I believe the language of the statute itself is dispositive:
 

Franklin County Court of Appeals 07/21/14
In Re Chandler M.
M2013-02455-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas C. Faris

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Father’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Father’s parental rights on the statutory grounds of abandonment, persistence of conditions, and confinement under a sentence of ten years or more. The court further found that termination of his rights was in the Child’s best interest. Father appeals. We affirm the trial court’s termination of Father’s parental rights on the grounds of abandonment and confinement under a sentence of 10 years or more.  However, we reverse the trial court on the ground of persistent conditions.

Franklin County Court of Appeals 07/21/14
Monday, July 21, 2014
Authoring Judge:
Trial Court Judge:
07/21/14
STATE OF TENNESSEE v. TOMMY DALE ADAMS
M2013-01080-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge David Earl Durham

A Wilson County Jury convicted Defendant, Tommy Dale Adams, of first-degree felony murder, second-degree murder, and especially aggravated robbery.  He received concurrent  sentences of life for first degree felony murder, twenty years for second degree murder, and twenty years for especially aggravated robbery. On appeal, Defendant argues: (1) that the trial court erred in admitting a photograph into evidence after finding that its probative value outweighed its prejudicial effect; (2) that the trial court erred in excluding testimony by Dewy Raymond, finding that it was inadmissible hearsay; and (3) that the evidence was insufficient to support his convictions for first degree felony murder, second degree murder, and especially aggravated robbery.  After a thorough review, we remand the matter to the trial court for entry of a corrected judgment to reflect that the convictions of felony murder and second degree murder are merged into one count of felony murder.  In all other respects, we affirm the judgments of the trial court.
 

Wilson County Court of Criminal Appeals 07/21/14
Samuel Bridgefourth, Jr. v. Santander Consumer USA, Inc.
W2013-02468-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Rubert Samual Weiss

Plaintiff’s car was repossessed. Plaintiff paid the amount owed, but never received the car. Plaintiff sued and won a judgment for conversion. He was also awarded attorney’s fees, first as special damages and then, in an amended order, as punitive damages. Defendant appeals. We reverse because attorney’s fees cannot be awarded as punitive damages and no statute or contract involved in this case provides for attorney’s fees.

Shelby County Court of Appeals 07/21/14
Wilma Griffin v. Campbell Clinic, P.A.
W2013-00471-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge James F. Russell

The plaintiff filed a civil action in the general sessions court asserting a health care liability claim against the defendant. Following a trial, the general sessions court entered judgment in the defendant’s favor. The next day, the plaintiff filed a notice of appeal and deposited $211.50 with the general sessions court clerk, which represents the amount of the standard court cost of $150 for an appeal to the circuit court required by Tennessee Code Annotated section 8-21-401(b)(1)(C)(i) plus state and local litigation taxes. The circuit court dismissed the plaintiff’s appeal, concluding that it lacked subject matter jurisdiction because the plaintiff failed to file a bond “with good security . . . for the costs of the appeal” under Tennessee Code Annotated section 27-5-103. The Court of Appeals reversed the trial court’s judgment, concluding that payment of the standard court cost is sufficient to perfect an appeal from the general sessions court to the circuit court. After a thorough review of the statutory scheme at issue, we conclude that the plaintiff’s cash bond was sufficient to perfect her appeal to the circuit court. We therefore affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.

Shelby County Supreme Court 07/21/14
LEONARD ALLEN v. STATE OF TENNESSEE
M2013-00840-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth Norman

On January 3, 2003 the Davidson County Grand Jury indicted Petitioner, Leonard Allen, for especially aggravated robbery.  Following a jury trial, Petitioner was convicted of the charged offense.  The trial court sentenced Petitioner to twenty years of incarceration.  Petitioner filed a notice of appeal.  Subsequently, Petitioner filed a petition to plead guilty to aggravated robbery in the same case.  The trial court, upon agreement of the parties, vacated the conviction for especially aggravated robbery and accepted a plea agreement to aggravated robbery with a sentence of ten years at thirty percent with credit for time served and the balance of the sentence to be served on probation.  Petitioner appealed, challenging various aspects of his original conviction as well as the guilty plea.  See State v. Leonard Allen, No. M2007-02581-CCA-R3-CD, 2011 WL 1344462 (Tenn. Crim. App. at Nashville, April 5, 2011), perm. app. denied, (Tenn. July 14, 2011).  On direct appeal, this Court invalidated the plea agreement, finding, among other things, that the trial court lacked jurisdiction to enter the plea agreement where Petitioner had already filed a notice of appeal.  This Court then reinstated Petitioner’s conviction for especially aggravated robbery.  On remand, the trial court reinstated the accompanying twenty-year sentence.  Subsequently, Petitioner sought post-conviction relief in which he argued, inter alia, that he received ineffective assistance of counsel at trial.  Following a hearing, the post-conviction court entered an order denying Petitioner relief.  On appeal, Petitioner argues that the post-conviction court erred in dismissing his Petition for Post-Conviction Relief based on ineffective assistance of his trial counsel.  After a thorough review of the record, we affirm the judgment of the post-conviction court denying the petition for relief.
 

Davidson County Court of Criminal Appeals 07/21/14
State of Tennessee v. Jacqueline Nicole Bolden
E2013-02324-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Shayne Sexton

Defendant, Jacqueline Nicole Bolden, pled guilty to one count of theft of property in an amount more than $60,000, a Class B felony, with an agreed upon sentence of eight years as a Range I offender with the trial court to determine manner of service of the sentence. The trial court ordered Defendant to serve her eight-year sentence on “split confinement” with fifty days to be served on the weekends. Defendant was also ordered to perform one day of community service per month for the first three years of her sentence. On appeal, Defendant contends the trial court erred by denying her request for full probation. We conclude the trial court did not abuse its discretion in sentencing Defendant. Accordingly, we affirm the judgment of the trial court.

Claiborne County Court of Criminal Appeals 07/21/14
Johnvonta Sain v. State of Tennessee
W2013-00214-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Weber McCraw

The Petitioner, Johnvonta Sain, pleaded nolo contendere to aggravated assault with an agreed upon sentence of four years, suspended upon time served. The Petitioner filed a petition seeking post-conviction relief on the basis that his plea was involuntary and that he had received the ineffective assistance of counsel. After a hearing, the post-conviction court denied the Petitioner relief. The Petitioner now appeals, maintaining that his guilty plea was involuntary and asserting that the post-conviction court should have recused itself in this matter. After a thorough review of the record, the briefs, and relevant  athorities, we affirm the post-conviction court’s judgment.

Hardeman County Court of Criminal Appeals 07/18/14
Carl Randle v. State of Tennessee
W2014-00136-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the Petitioner, Carl Randle, of aggravated assault and attempted voluntary manslaughter. The trial court merged the convictions and ordered the Petitioner to serve six years in the Tennessee Department of Correction. The Petitioner appealed, and this Court affirmed the judgments of the trial court. State v. Carl Randle, No. W2011–02374–CCA–R3-CD, 2012 WL 3642730, at *11 (Tenn. Crim. App., at Jackson, Aug. 27, 2012), no Tenn. R. App. P. 11 filed. The Petitioner filed a petition for postconviction relief, in which he alleged that his trial counsel was ineffective. The postconviction court dismissed the petition after a hearing, and the Petitioner appealed that dismissal. After a thorough review of the record and applicable law, we affirm the postconviction court’s judgment.

Madison County Court of Criminal Appeals 07/18/14
Vincent Hunt v. State of Tennessee
W2012-01468-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Chris Craft

Petitioner, Vincent Hunt, was convicted of first degree murder and especially aggravated kidnapping in Shelby County. On direct appeal, his convictions and sentences were affirmed. See State v. Vincent Hunt, No. W2009-00165-CCA-R3-CD, 2010 WL 1407236, at *1-5 (Tenn. Crim. App., at Jackson, Apr. 8, 2010), perm. app. denied, (Tenn. Sept. 23, 2012). Petitioner then sought post-conviction relief on the basis of ineffective assistance of counsel and that the trial court issued improper jury instructions at trial. The post-conviction court denied relief and Petitioner appeals. After a review of the record and applicable authorities, we determine that Petitioner failed to establish that he is entitled to post-conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.

Shelby County Court of Criminal Appeals 07/18/14