Court Opinions

Format: 08/15/2018
Format: 08/15/2018
State of Tennessee v. Roger Reed
W2017-00266-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

Aggrieved of his Shelby County Criminal Court jury convictions of first degree premeditated murder, felony murder, and especially aggravated robbery, the defendant, Roger Reed, appeals. In this appeal, he contends that the trial court erred by permitting certain testimony in violation of Tennessee Rule of Evidence 404(b) and that the evidence was insufficient to support his convictions. Because we discern no reversible error, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 07/31/18
State of Tennessee v. Angela Denise Brewer
W2017-00124-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joe H. Walker, III

Defendant, Angela Denise Brewer, appeals her jury conviction for premeditated first degree murder, for which she was sentenced to life imprisonment. Defendant contends that the evidence was insufficient to support her conviction, specifically challenging the evidence establishing premeditation and that she acted “intentionally.” Having reviewed the entire record and the briefs of the parties, we affirm the judgment of the trial court.

Tipton County Court of Criminal Appeals 07/31/18
State of Tennessee v. Quartez Gary
W2017-01495-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted the Defendant, Quartez Gary, of attempted first degree premeditated murder and employment of a firearm during the commission of a dangerous felony. The trial court sentenced the Defendant to an effective twenty-three-year sentence. On appeal, the Defendant claims that the evidence was insufficient as to the element of premeditation and that the trial court’s instructions to the jury were unclear. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 07/31/18
Vicky Lynn Ballard v. Noah Thomas Ballard
M2018-01217-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John Thomas Gwin

This is an appeal from an Amended Final Decree of Divorce entered on November 15, 2017. Because the appellant did not file his notice of appeal within thirty days after entry of the decree as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Wilson County Court of Appeals 07/31/18
Michael O'Brian, Et Al. v. Rutherford County Board Of Education
M2017-00527-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Mitchell Keith Siskin

This action arises out of an incident in which an instructor with the Eagleville High School’s Junior Reserve Officer Training Corps pulled a stool from beneath a student participant in a JROTC competition while the student was sitting on it, causing injury to the student. The student’s parents brought suit against the Rutherford County Board of Education under the Tennessee Governmental Tort Liability Act to recover for her injuries. Following a trial, the court dismissed the suit, holding that the instructor’s actions were not within the scope of his employment, and therefore, the Board’s immunity from suit was not removed. Plaintiffs appeal. We conclude that the evidence does not preponderate against the trial court’s holding that the instructor acted outside the scope of his employment, and as a consequence, the Board retained immunity from suit. Accordingly, we affirm the judgment. 

Rutherford County Court of Appeals 07/31/18
William Darryn Busby v. State of Tennessee
M2017-00943-CCA-R3-ECN
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph Woodruff

The Petitioner, William Darryn Busby, filed a petition for a writ of error coram nobis in the Lewis County Circuit Court, asserting that newly discovered evidence entitled him to a new trial. The coram nobis court summarily dismissed the petition, and the Petitioner appeals. Based upon the record and the parties’ briefs, we conclude that the coram nobis court’s summary dismissal of the petition must be reversed and the case remanded to the coram nobis court for an evidentiary hearing to determine whether due process principles require tolling the statute of limitations.

Lewis County Court of Criminal Appeals 07/31/18
David Banks v. University Of Tennessee
M2017-01358-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor William E. Young

The University of Tennessee at Knoxville terminated the employment of Appellant, a tenured faculty member. Appellant appealed his termination to an administrative hearing officer pursuant to the Tennessee Uniform Administrative Procedures Act. Following a contested hearing, the hearing officer upheld the University’s termination of Appellant.  Appellant then petitioned the chancery court to reverse the decision of the hearing officer.  The chancery court upheld the hearing officer’s decision to affirm the termination of Appellant’s employment and tenure. Discerning no error, we affirm the judgment of the chancery court.

Davidson County Court of Appeals 07/30/18
Matthew Jackson v. State of Tennessee
M2017-02111-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Petitioner, Matthew Jackson, appeals after he failed to receive relief from his third petition for writ of error coram nobis. For a multitude of reasons, including the failure to file a timely petition, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 07/30/18
State of Tennessee v. Jason Clark
M2018-00293-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton

Jason Clark (“Defendant”) filed a Tennessee Rule of Civil Procedure 60.02 motion seeking relief from two judgments of conviction. Defendant has no appeal as of right under Tennessee Rule of Appellate Procedure 3. Because we have no subject matter jurisdiction, we dismiss Defendant’s appeal.

Davidson County Court of Criminal Appeals 07/30/18
State of Tennessee v. Amanda C. Andrews, AKA Amanda C. Perkinson
M2018-00253-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

Pursuant to a plea agreement, Amanda C. Andrews (“Defendant”) pled guilty to five counts of aggravated burglary and was sentenced to fifteen years as a persistent offender with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered Defendant to serve her sentence in the Department of Correction. Defendant claims the trial court erred by sentencing her to serve her sentence in the Department of Correction. Discerning no error, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 07/30/18
State of Tennessee v. James P. Jones
M2017-01790-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Dee David Gay

James P. Jones, Defendant, was convicted of several counts of theft and aggravated burglary. The trial court sentenced Defendant to a twelve-year probationary sentence. A violation of probation warrant was later issued against Defendant. After a hearing, the trial court revoked Defendant’s probation. Defendant now timely appeals the trial court’s decision and argues that he was denied the right to counsel during the revocation hearing. Because we conclude that Defendant did not effectively waive or forfeit his right to counsel, we reverse the judgment of the trial court and remand this case for appointment of counsel and a new probation revocation hearing.

Sumner County Court of Criminal Appeals 07/30/18
Tyler James Reed v. State of Tennessee
M2017-00480-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Dee David Gay

Tyler James Reed, the Petitioner, was convicted of first degree felony murder in the perpetration of a burglary, aggravated burglary, and employment of a firearm with intent to go armed during the commission of a dangerous felony. After this court affirmed his convictions on direct appeal and the Tennessee Supreme Court denied further review, the Petitioner filed a petition for
post-conviction relief. The post-conviction court denied relief. On appeal, the Petitioner argues that he received ineffective assistance of counsel from lead trial counsel and appellate counsel. He asserts that lead trial counsel convinced him to offer a false proffer to the State, which foreclosed him from testifying at trial, and failed to investigate his mental health and voluntary intoxication at the time of the offenses. He additionally asserts that appellate counsel failed to file a petition to rehear after this court did not specifically discuss several issues raised in his direct appeal. After a thorough review of the facts and applicable case law, we affirm the judgment of the post-conviction court.

Sumner County Court of Criminal Appeals 07/30/18
Philip Foxwell Berg v. Keiko Shigeno Berg
M2018-01163-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Philip E. Smith

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court after the trial court denied a motion for recusal. For the reasons stated herein, we affirm the trial court’s denial of the motion.

Davidson County Court of Appeals 07/27/18
State of Tennessee v. Santory Alexander Johnson
E2017-00361-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Thomas C. Greenholtz

The Defendant, Santory Alexander Johnson, was convicted by a jury of one count of second degree murder. On appeal, the Defendant contends that (1) the trial court erred in failing to declare a mistrial or issue an adequate curative instruction following prosecutorial misconduct during closing arguments; (2) the trial court erred in allowing a witness to testify about statements made by the victim; (3) the trial court erred in allowing a redacted convenience store video to be entered into evidence; (4) the trial court erred in re-playing a 9-1-1 recording already admitted into evidence; (5) the trial court erred in allowing inflammatory autopsy photographs to be entered as evidence; (6) the cumulative effect of these evidentiary errors was not harmless; and (7) the trial court erred in failing to properly consider mitigating factors at the Defendant’s sentencing hearing.1 Following our review, the judgments of the trial court are affirmed.

Hamilton County Court of Criminal Appeals 07/27/18
State of Tennessee v. Amanda A. Tucker
E2017-01283-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Lisa Rice

The Defendant, Amanda A. Tucker, pleaded guilty in the Washington County Criminal Court to driving under the influence of an intoxicant (DUI). See T.C.A. § 55-10-401 (2017). The Defendant reserved a certified question of law regarding the arresting officer’s encounter with and subsequent seizure of the Defendant, which she presents on appeal. We affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 07/27/18
Steve Perlaky v. Jimmy Chapin, Et Al.
E2017-01995-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey M. Atherton

The plaintiff filed a claim for trespass against the defendants. The trial court found trespass and awarded nominal damages and attorney’s fees to the plaintiff. After a hearing on the parties’ respective motions to alter or amend the judgment, the trial court vacated the award of attorney’s fees and declined to increase the amount of nominal damages to the plaintiff. The plaintiff appeals. We affirm.

Hamilton County Court of Appeals 07/27/18
Johnson & Associates, LLC, Et Al. v. The Hanover Insurance Group, Inc., Et Al.
E2016-02469-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John S. McLellan, III

This is a case concerning a commercial-property insurance policy dispute. The insured party filed suit upon the insurance company denying theft coverage on a claim. The insurance company claimed that the vacancy clause excluded the theft coverage of the property at issue. The trial court found that the vacancy clause did not apply and that the policy required the insurance company to cover the theft. The insurance company appeals. We affirm the decision of the trial court.

Sullivan County Court of Appeals 07/27/18
Marlon Duane Kiser v. State of Tennessee
E2016-02359-CCA-R3-ECN
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Don W. Poole

The Petitioner, Marlon Duane Kiser, filed in the Hamilton County Criminal Court a petition for a writ of error coram nobis, seeking relief from his conviction of first degree murder and resulting sentence of death. In the petition, he alleged that newly discovered evidence and recanted testimony established that someone else committed the murder. The coram nobis court denied the petition. On appeal, the Petitioner challenges the court’s ruling. Upon review, we affirm the judgment of the coram nobis court.

Hamilton County Court of Criminal Appeals 07/26/18
Vickie Groves, Et Al. v. Ernst-Western Corporation
M2017-01779-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Thompson

This is a jury case. Appellants sued Appellee, hotel, for violation of the Tennessee Consumer Protection Act (“TCPA”) and the Tennessee Identity Theft Deterrence Act (“TITDA”). The trial court granted a pre-trial motion for summary judgment as to Appellants’ TITDA claims. The remaining TCPA claims proceeded to trial, and the trial court delivered a modified jury instruction as a sanction against Appellee for alleged discovery abuse. The jury returned a verdict in favor of Appellee. Appellants appeal.  Appellee appeals the trial court’s denial of its request for attorney’s fees and costs pursuant to Tennessee Rule of Civil Procedure 68. We reverse the trial court’s denial of Appellee’s costs pursuant to Rule 68; the trial court’s order is otherwise affirmed.

Sumner County Court of Appeals 07/26/18
Donald K. Moore, Jr. v. Grady Perry, Warden
W2017-02180-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joe H. Walker, III

The Petitioner, Donald K. Moore, Jr., was convicted of two murders and a robbery committed in February 1996. For these convictions, he received an effective sentence of life imprisonment plus forty-one years in the Tennessee Department of Correction. In August 2017, the Petitioner filed a petition for a writ of habeas corpus. In it, he claimed that the trial court improperly adjusted his release eligibility percentage for his seconddegree murder conviction in 1999 by filing a corrected judgment. He further asserted that the trial court violated due process when it corrected the judgment without notice to him. Finally, relying on Miller v. Alabama, 132 S. Ct. 2455 (2012), he contended that his sentence was cruel and unusual because he was a juvenile at the time he committed the offenses. Finding no grounds for relief, the habeas corpus court summarily dismissed the petition. On appeal, the Petitioner maintains that his sentence is void because: (1) the trial court corrected his judgment to reflect the proper release eligibility; (2) the trial court did not follow proper sentencing procedure when it corrected the judgment without notice to him; (3) his sentence is unconstitutional because he was a juvenile at the time he committed the offense; and (4) the corrected judgment violated double jeopardy. After review, we affirm the habeas court’s judgment.

Hardeman County Court of Criminal Appeals 07/26/18
Stephen D. Lester, Sr. v. State of Tennessee
E2017-01437-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Don W. Poole

The Petitioner, Stephen D. Lester, Sr., appeals the post-conviction court’s dismissal of his petition for post-conviction relief as untimely. On appeal, he argues that due process requires tolling of the statute of limitations because his untimely filing was due to misrepresentations by trial counsel. After review, we affirm the dismissal of the petition.

Hamilton County Court of Criminal Appeals 07/26/18
Michael Davis v. State of Tennessee
W2017-01592-CCA-R3-PC
Authoring Judge: JudgeTimothy L. Easter
Trial Court Judge: Judge James M. Lammey

Petitioner, Michael Davis, appeals the denial of his petition for post-conviction relief from his conviction for second degree murder. On appeal, Petitioner argues that he was denied due process of law when the post-conviction court refused to grant Petitioner a continuance to present an expert witness and failed to address all of the issues presented in its written order. Additionally, Petitioner claims that he received ineffective assistance of counsel. After thorough review, we determine that Petitioner was afforded due process and received effective assistance of counsel. Thus, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 07/26/18
Konah Evangeline Buckman, Mother And Next Of Kin Of Edward Kofi Sasa Lenox Buckman A/K/A Edward Welsely, Deceased v. Mountain States Health Alliance, Et Al. - Concurring
E2017-01766-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge James E. Lauderback

I concur, reluctantly, with the entirety of the opinion of the Court. I concur because this is the result mandated by statute and case law. I do so reluctantly because this case is the latest in a long line of healthcare liability actions dismissed on technical grounds since the enactment of the sections of the Health Care Liability Act governing pre-suit notice adopted by our General Assembly in 2008. This Court has seen healthcare liability case after case brought by Tennessee citizens dismissed without any determination of whether the case has any merit.

Washington County Court of Appeals 07/26/18
Konah Evangeline Buckman, Mother And Next Of Kin Of Edward Kofi Sasa Lenox Buckman A/K/A Edward Welsely, Deceased v. Mountain States Health Alliance, Et Al.
E2017-01766-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James E. Lauderback

This is a healthcare liability case. Before filing the complaint, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tennessee Code Annotated section 29-26-121(a)(2)(E) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization permitting the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with the statute, as the defendants alleged that the HIPAA authorization provided by the plaintiff had already expired when they received it. The trial court granted the defendants’ motion to dismiss, concluding that the HIPAA authorization was invalid due to the fact that the listed expiration date had already passed when the authorization was provided to the defendants with pre-suit notice. The plaintiff appeals. We affirm and remand for further proceedings.

Washington County Court of Appeals 07/26/18
State of Tennessee v. James Douglas Hamm, Jr.
E2016-02265-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lisa D. Rice

The defendant, James Douglas Hamm, Jr., appeals his Sullivan County Criminal Court jury convictions of vehicular homicide by intoxication, leaving the scene of an accident involving a death, reckless endangerment, driving under the influence, failure to exercise due care, and running a red light, challenging the trial court’s denial of both his motion to dismiss based upon the failure to preserve certain evidence and his motion for a mistrial premised on juror bias. In addition, the defendant claims that the prosecutor’s closing argument was improper and that the evidence was insufficient to support his convictions of vehicular homicide and reckless endangerment. Discerning no error, we affirm.

Sullivan County Court of Criminal Appeals 07/26/18