Court Opinions

Format: 09/25/2017
Format: 09/25/2017
State of Tennessee v. Xavier Todd
W2016-02083-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James M. Lammey

The Defendant, Xavier Todd, appeals from the Shelby County Criminal Court’s dismissal of his motion to correct illegal sentences. The Defendant pleaded guilty to ten offenses, and he received an effective thirty-year sentence. His individual sentences were imposed concurrently to each other and concurrently to a federal sentence. On appeal, he contends that the trial court erred in dismissing his motion. We affirm the dismissal.

Shelby County Court of Criminal Appeals 09/05/17
Dean Heath v. State of Tennessee
W2016-00786-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge W. Mark Ward

The Petitioner filed a pro se petition for post-conviction relief. The post-conviction court summarily dismissed the petition because it was not timely filed and the Petitioner failed to present any factual allegations or documents allowing the tolling of the statute of limitations. On appeal, the Petitioner concedes that his petition was untimely filed but argues that the statute of limitations should be tolled and his petition addressed on its merits. The Petitioner also contends that this court should treat his motion to vacate, which was denied by the trial court, as a properly-filed petition for post-conviction relief. After a thorough review of the record and applicable case law, we affirm.

Shelby County Court of Criminal Appeals 09/05/17
State of Tennessee v. Eric Washington aka Erik Brock
W2016-00669-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Carolyn W. Blackett

Defendant, Eric Washington, appeals from the trial court’s revocation of probation for his convictions for aggravated assault, domestic assault, and vandalism under $500 and order that he serve his effective ten-year sentence in confinement. Defendant contends that the trial court abused its discretion by allowing hearsay testimony at the revocation hearing and that the evidence was insufficient to support the revocation. Upon our review of the record, we hold that the trial court erred by admitting hearsay testimony without a finding of good cause or reliability and that the trial court erred in revoking Defendant’s probation on a ground for which there was a lack of evidence in the record. Accordingly, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 09/05/17
State of Tennessee v. Charles Fowlkes - concurring
E2016-02386-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Don W. Poole

I concur with the majority’s opinion affirming the trial court’s judgment based on the failure of the Defendant to strictly comply with the prerequisites established in State v. Preston, 759 S.W.2d 647 (Tenn. 1988).

Hamilton County Court of Criminal Appeals 09/05/17
State of Tennessee v. Charles Fowlkes
E2016-02386-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Don W. Poole

The Defendant, Charles Fowlkes, 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 Hamilton County jail. The Defendant reserved a certified question of law challenging the denial of his motion to suppress, which alleged that he was unconstitutionally stopped and seized. Following our review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 09/05/17
State of Tennessee v. Kaylon Sebron Bailey
E2015-01127-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Rebecca J. Stern

Following a mistrial for juror misconduct, the Defendant-Appellant, Kaylon Sebron Bailey, was convicted as charged by a Hamilton County Criminal Court jury of first degree premeditated murder and possession of a firearm after having been convicted of a felony drug offense. See T.C.A. §§ 39-13-202, 39-17-1307(b)(1)(B) (Supp. 2011). The trial court imposed a life sentence for the murder conviction before sentencing Bailey, pursuant to an agreement between the parties, as a Range I, standard offender to a concurrent two-year sentence for the firearm offense. On appeal, Bailey argues (1) the trial court erred in admitting the victim’s statements identifying him as the perpetrator of the shooting, and (2) the evidence is insufficient to sustain his convictions.1 We affirm Bailey’s convictions but remand the case for entry of a corrected judgment in Count 1 reflecting an indicted and conviction offense of first degree premeditated murder in violation of Tennessee Code Annotated section 39-13-202 and a corrected judgment in Count 2 reflecting an indicted offense of possession of a firearm after having been convicted of a felony drug offense in violation of Tennessee Code Annotated section 39- 17-1307.

Hamilton County Court of Criminal Appeals 09/05/17
James Howard Hurtch v. State of Tennessee
M2016-00539-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, James Howard Hurtch, appeals the denial of his petition for post-conviction relief by the Davidson County Criminal Court. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that his guilty plea was involuntary and unknowing. After review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 09/05/17
Vernica Shabree Calloway, AKA Vernica S. Ward, AKA Vernica Jackson v. State of Tennessee
M2016-02576-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Vernica Shabree Calloway, a.k.a. Vernica S. Ward, a.k.a. Vernica Jackson, appeals the denial of her post-conviction petition, arguing trial counsels’ strategy regarding the use of expert witnesses on behalf of her defense was ineffective. Following our review, we affirm the denial of the petition.

Davidson County Court of Criminal Appeals 09/01/17
State of Tennessee v. Deewaine Mikel Bumpas
M2016-00972-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Randall Wyatt, Jr.

In October 2013, the Davidson County Grand Jury indicted the Defendant-Appellant, Deewaine Mikel Bumpas, in count one for aggravated robbery occurring on June 19, 2013; in count two for attempted aggravated robbery occurring on June 26, 2013; and in count three for aggravated robbery occurring on July 3, 2013. The trial court, at the State’s request, severed counts one and two, and the parties proceeded to trial on count three. A jury subsequently convicted Bumpas, as charged, of the July 3, 2013 aggravated robbery, and the trial court imposed a sentence of twelve years at 85% release eligibility. See T.C.A. §§ 39-13-402, 40-35-501(k)(1). On appeal, Bumpas contends: (1) the trial court erred in denying his motion to exclude the photographic lineup and accompanying testimony; (2) the trial court erred in denying his motion to exclude the surveillance video and accompanying testimony; (3) the trial court abused its discretion in sustaining the State’s objection to questions regarding Sergeant Williams’ personnel record; (4) the trial court erred in denying his motion for a mistrial; (5) the evidence is insufficient to sustain his conviction; (6) the trial court imposed an excessive sentence; and (7) the trial court abused its discretion in denying his motion for new trial. We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 09/01/17
State of Tennessee v. Angela Montgomery
M2016-00459-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Royce Taylor

The Defendant, Angela Montgomery, appeals as of right from her convictions for six counts of rape of a child. The Defendant argues (1) that there was insufficient evidence to support her convictions; (2) that the trial court erred in allowing the State to present evidence that the Defendant used corporal punishment to discipline her children; and (3) that the trial court erred in allowing the prosecutor to introduce a witness’s prior inconsistent statements. Following our review, we affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 09/01/17
State of Tennessee v. Sean Greenlee
E2017-00282-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge G.Scott Green

Sean Greenlee, the Defendant, appeals the summary denial of his “Motion to Correct Sentence” filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Because the motion failed to state a colorable claim, we affirm the trial court’s summary denial of the motion.

Knox County Court of Criminal Appeals 09/01/17
State of Tennessee v. Johnnie Ray Ashford
M2016-01558-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl Blackburn

A Davidson County Criminal Court Jury convicted the Appellant, Johnnie Ray Ashford, of possession of a Schedule II controlled substance with intent to sell or deliver, a Class C felony, and attempting to sell a Schedule II controlled substance, a Class D felony, and he received an effective three-year sentence to be served on supervised probation. On appeal, the Appellant contends that the trial court erred by denying his motion to suppress evidence, that the trial court improperly limited his cross-examination of a State witness regarding the witness’s potential bias, that the evidence is insufficient to support the convictions, and that the prosecutor committed prosecutorial misconduct during closing arguments. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Court of Criminal Appeals 09/01/17
Allstate Insurance Company v. Kaigler & Associates, Inc.
M2016-01003-COA-R3-CV
Authoring Judge: Judge Ricahrd H. Dinkins
Trial Court Judge: Judge James G. Martin, III

Declaratory judgment action in which an insurance company seeks a determination of its coverage obligations arising out of a business insurance policy it issued relative to a class action suit brought against the insured for sending unsolicited faxes in violation of the Telephone Consumer Protection Act (“TCPA”). The court granted the insurance company’s motion for summary judgment in part, holding that the insurance company had no duty to indemnify under the “accidental event” coverage or the “personal injury” coverage, that the company had a duty to defend under the “advertising injury” coverage, and that the company had a duty to defend against all claims. The insured filed a motion to alter or amend, which was denied by the court. On appeal, the insured argues that the court issued an improper advisory opinion, erred in holding the company had no duty to indemnify under the “accidental event” coverage, and abused its discretion by failing to consider new evidence proffered in the insured’s motion to alter or amend the judgment. Finding no error, we affirm the trial court in all respects.

Williamson County Court of Appeals 08/31/17
In Re A.L.H., et al.
M2016-01574-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Stella L. Hargrove

This is an appeal from an order finding two children of S.B. (mother) and R.H. (father) to be the victims of severe child abuse in the couple’s care and control. On July 24, 2015, the Department of Children’s Services (DCS) received a referral alleging, in part, that the parties’ three children, A.L.H., A.G.B., and A.R.B. (collectively the children), were drug-exposed. On August 27, 2015, the children underwent hair follicle drug testing. A.G.B. and A.R.B. tested positive for methamphetamine. A.L.H. was negative for all substances. On September 23, 2015, DCS filed a petition to declare the children dependent and neglected. Mother and father stipulated that the children were dependent and neglected, but they expressly did not agree with the finding of severe child abuse. The Juvenile Court for Wayne County (the juvenile court) entered an order finding A.G.B. and A.R.B. to be the victims of severe abuse. Mother and father appealed to the Circuit Court for Wayne County (the trial court). On July 14, 2016, the trial court entered an order finding A.G.B. and A.R.B. to be the victims of severe child abuse in the care and control of mother and father. Mother and father appeal. We affirm.  

Wayne County Court of Appeals 08/31/17
Kathryn J. Reitz v. City of Mt. Juliet
M2016-02048-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John D. Wootten, Jr.

Plaintiff alleged that the City of Mt. Juliet breached a settlement agreement with her by violating a non-disparagement agreement. Because Plaintiff failed to prove the existence of damages, summary judgment was appropriate. We affirm.   

Wilson County Court of Appeals 08/31/17
State of Tennessee v. Carlos Richard Morris
W2017-00129-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

The Defendant, Carlos Richard Morris, pleaded guilty to two counts of possession of .5 grams or more of cocaine with the intent to sell, one count of possession of one-half ounce or more of marijuana, one count of possession of drug paraphernalia, and one count of failing to obey a stop sign. The trial court merged the two possession with intent to sell convictions, and it sentenced the Defendant to an effective sentence of eight years. It ordered that the Defendant’s eight-year sentence from Madison County run concurrently with any remaining sentences from two previous Henderson County possession with intent to sell cocaine convictions. The Defendant filed a Tennessee Rule of Criminal Procedure 36.1 motion to correct his allegedly illegal sentence, which the trial court summarily dismissed. On appeal, we affirm the trial court’s judgment.

Madison County Court of Criminal Appeals 08/31/17
Kenneth Tucker v. State of Tennessee
W2016-01967-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Robert Carter, Jr.

Petitioner, Kenneth Tucker, appeals the post-conviction court’s dismissal of his postconviction petition alleging ineffective assistance of counsel. After a review, we determine Petitioner has failed to establish that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

Shelby County Court of Criminal Appeals 08/31/17
State of Tennessee v. Nero Oswald Jones
W2017-00145-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Weber McCraw

The Appellant, Nero Oswald Jones, appeals as of right from the Hardeman County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Appellant contends that the trial court erred because his motion stated a colorable claim for relief. Discerning no error, we affirm the judgment of the trial court.

Hardeman County Court of Criminal Appeals 08/31/17
State of Tennessee v. Maka Fuller, Jr.
W2016-02480-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the Defendant, Maka Fuller, Jr., of aggravated robbery. After a sentencing hearing, the trial court sentenced him to eleven years in prison. On appeal, the Defendant contends that the evidence is insufficient to support his conviction because he did not use a weapon to accomplish the robbery. Finding that there is sufficient evidence to support the Defendant’s conviction for aggravated robbery, we affirm the trial court.

Madison County Court of Criminal Appeals 08/31/17
Timothy Baxter v. State of Tennessee
W2016-00563-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Donald H. Allen

Petitioner, Timothy Baxter, appeals the dismissal of his petition for post-conviction relief in which he alleged ineffective assistance of counsel at trial where he was convicted of felony failure to appear. More specifically, he contends that trial counsel failed to subpoena witnesses requested by Petitioner, did not present evidence that the circuit court clerk’s office failed to issue a criminal summons after his failure to appear, and trial counsel allowed himself to be intimidated by the trial court. After a thorough review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 08/31/17
State of Tennessee v. Shanthony Tywon Mays
W2016-01390-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Donald E. Parish

Defendant, Shanthony Tywon Mays, was convicted by an Obion County Jury of one count of aggravated robbery, three counts of aggravated assault, and one count of unlawful possession of a weapon. The trial court imposed a sentence of twelve years for aggravated robbery, four years for each count of aggravated assault, and four years for unlawful possession of a weapon, to be served concurrently with each other and consecutively to the sentence in an unrelated case. On appeal, Defendant raises the following issues: (1) whether the trial court properly overruled Defendant’s objection to the jury venire; (2) whether the trial court properly instructed the jury concerning possession of recently stolen property; (3) whether the evidence was sufficient to support Defendant’s convictions; and (4) whether the trial court erred in denying Defendant’s motion for new trial based on newly discovered evidence. After a thorough review of the record, we affirm the judgments of the trial court.

Obion County Court of Criminal Appeals 08/31/17
Danny O. Owens v. State of Tennessee
M2016-02068-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Stella L. Hargrove

The Petitioner, Danny O. Owens, appeals the denial of his petition for post-conviction relief from his second degree murder conviction, alleging he received ineffective assistance of trial counsel. After review, we affirm the denial of the petition.

Lawrence County Court of Criminal Appeals 08/31/17
State of Tennessee v. Reginald Bernard Coffee
M2016-01834-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Seth W. Norman

The Defendant, Reginald Bernard Coffee, was convicted by a Davidson County Criminal Court jury of especially aggravated robbery, a Class A felony, and sentenced to fifteen years. See T.C.A. § 39-13-403 (2014). On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2) the fingerprint evidence was admitted without a sufficient foundation. We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/31/17
Michael Terrell McKissack v. State of Tennessee
M2016-02113-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, Michael Terrell McKissack, filed a petition for post-conviction relief from his convictions of especially aggravated robbery, aggravated robbery, and facilitation of attempted carjacking. In the petition, the Petitioner argued that his trial counsel was ineffective (1) by failing to call two of his co-defendants to testify on his behalf; (2) by failing to inform him that his third co-defendant would testify against him; and (3) by failing to adduce proof during the guilt phase regarding his lack of education and mental health issues. The post-conviction court denied relief, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 08/31/17
State of Tennessee v. Anthony M. Crawford - Concurring
M2015-02426-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge John D. Wootten, Jr.

I respectfully concur in results only. My concern in this case is that inadmissible polygraph testing evidence was presented at the suppression hearing.

Wilson County Court of Criminal Appeals 08/31/17