Court of Criminal Appeals Opinions

Format: 11/27/2020
Format: 11/27/2020
Susan Jo Walls v. State of Tennessee
M2019-00809-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Susan Jo Walls, appeals the Bedford County Circuit Court’s denial of her post-conviction petition, seeking relief from her convictions of first degree premeditated murder and conspiracy to commit first degree murder and resulting effective life sentence.  On appeal, the Petitioner contends that she received the ineffective assistance of trial counsel.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Bedford County Court of Criminal Appeals 11/25/20
ZAKKAWANDA ZAWUMBA MOSS v. STATE OF TENNESSEE
M2019-00972-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Zakkawanda Zawumba Moss, appeals the Lincoln County Circuit Court’s denial of his post-conviction petition, seeking relief from his six convictions of first degree premediated murder and six consecutive life sentences. On appeal, the Petitioner contends that we should remand the case to the post-conviction court in order to provide the Petitioner an opportunity to present additional proof in support of his petition. Based upon the record and the parties’ briefs, we disagree with the Petitioner and affirm the post-conviction court’s denial of the petition.

Lincoln County Court of Criminal Appeals 11/25/20
STATE OF TENNESSEE v. NAPOLEON EMMANUALE PERSON
M2019-02159-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge L. Craig Johnson

Napoleon Emmanuale Person, Defendant, appeals from the trial court’s judgment revoking his probation and placing his original sentences into effect. Discerning no error, we affirm.

Coffee County Court of Criminal Appeals 11/25/20
State of Tennessee v. Earl Jerome Lee, Jr.
W2019-01939-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

The Appellant, Earl Jerome Lee, Jr., appeals as of right from the Madison County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. He contends that he is entitled to relief because his conviction for attempted felony escape was erroneously ordered to be served concurrently with his other sentences. Although we disagree with the trial court’s conclusion that this issue had been previously litigated, we nevertheless conclude that the Appellant fails to state a colorable claim for relief. Therefore, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 11/20/20
State of Tennessee v. Jashun Yance Robertson
W2020-00439-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Weber McCraw

Defendant, Jashun Yance Robertson, appeals the Fayette County Circuit Court’s denial of his request for judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. Defendant contends that the trial court abused its discretion by relying on Defendant’s prior delinquent acts to deny diversion, when there was no proof regarding these acts in the record, and by failing to consider the “judicially recognized differences between juveniles and adults” in reaching its decision. Upon review, we affirm the judgments of the trial court.

Fayette County Court of Criminal Appeals 11/20/20
State of Tennessee v. Devin Rogers
W2019-01841-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Devin Rogers, appeals from his Shelby County Criminal Court convictions for aggravated robbery and aggravated burglary, for which he received an effective elevenyear sentence. On appeal, the Defendant contends that the evidence was insufficient to support his convictions, arguing that his co-defendant’s testimony was “wildly contradictory” to that of the victim. Following our review, we affirm.

Shelby County Court of Criminal Appeals 11/20/20
State of Tennessee v. Patrick Phillips
W2019-02004-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge W. Mark Ward

A Shelby County jury convicted the defendant, Patrick Phillips, of rape of a child and aggravated sexual battery. Following a sentencing hearing, the trial court imposed an effective sentence of twenty-seven years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his convictions and argues the trial court erred in denying his motion for new trial based on the State’s failure to answer the defendant’s motion for a bill of particulars. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 11/20/20
Antonio Wicks v. State of Tennessee
W2019-02187-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James M. Lammey

A Shelby County jury convicted Petitioner, Antonio Wicks, of second degree murder in the death of the victim, Donald Miller, and the trial court sentenced Petitioner to 25 years’ incarceration as a Range I violent offender. This court affirmed Petitioner’s conviction on direct appeal. See State v. Antonio Wicks, No. W2011-00964-CCA-R3-CD, 2012 WL 1424717, at *1 (Tenn. Crim. App. Apr. 23, 2012), perm. app. denied (Tenn. Aug. 16, 2012). Petitioner filed a pro se post-conviction petition and four amended petitions following the appointment of counsel. Following a hearing, the post-conviction court denied relief. Petitioner now appeals, claiming that he was denied the effective assistance of counsel because trial counsel failed to (1) move for a mistrial due to only having eleven jurors; (2) file a motion to dismiss the indictment pursuant to State v. Ferguson, 2 S.W.3d 912, 915-16 (Tenn. 1999); (3) cross-examine the State’s witness regarding the loss or destruction of potentially exculpatory evidence; (4) object to improper prosecutorial argument; and (5) raise in the motion for new trial and on direct appeal the failure to cross-examine a witness and improper prosecutorial argument. After a thorough review of the record and applicable case law, the judgment of the postconviction court is affirmed.

Shelby County Court of Criminal Appeals 11/20/20
State of Tennessee v. Ricky Boyd
W2018-00546-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lee V. Coffee

A Shelby County Criminal Court Jury convicted the Appellant, Ricky Boyd, of attempted second degree murder, aggravated rape, and rape. At the sentencing hearing, the trial court merged the aggravated rape and rape convictions and imposed a total effective sentence of thirty-seven years in the Tennessee Department of Correction. On appeal, the Appellant contends that (1) the trial court erred by denying his motion to dismiss the indictment; (2) the trial court erred by granting the State’s motion to quash the Appellant’s subpoena duces tecum seeking “the District Attorney’s records concerning the time that [the Appellant’s] case was presented” to the grand jury; (3) the trial court erred by denying the Appellant’s request to review the victim’s mental health records; (4) the trial court erred by refusing to allow defense counsel to cross-examine the victim regarding her history of audio and visual hallucinations and her refusal to take medication to treat her condition; (5) the trial court erred by refusing to dismiss the case or give a Ferguson instruction based upon the State’s failure to preserve evidence that might play a significant role in the defense; (6) the State’s evidence was not sufficient to sustain his convictions; and (7) “the trial court erred by considering a prior charged offense during its deliberations as to sentencing even though the [Appellant] [pled] guilty to a lesser charge of aggravated assault and no factual basis surrounding the negotiated plea [was] entered into evidence.” Upon review, we find no reversible error and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 11/19/20
State of Tennessee v. John Edward Wilson, Jr.
W2019-01550-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jeff Parham

The defendant, John Edward Wilson, Jr., pled guilty to aggravated burglary and indecent exposure for which he received an effective sentence of five years’ confinement. The defendant appeals the trial court’s denial of diversion and other forms of alternative sentencing, claiming the trial court erred in failing to properly analyze the diversion factors and failing to apply the correct legal standard when ordering confinement rather than probation. The State contends the defendant failed to show he was a favorable candidate for diversion, and the trial court properly exercised its discretion in ordering confinement. Upon our review of the applicable law, the record, and the arguments of the parties, we reverse the decision of the trial court and remand the matter for a new sentencing hearing consistent with this opinion.

Weakley County Court of Criminal Appeals 11/19/20
State of Tennessee v. Ramell Martez Jackson
W2020-00537-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Joe H. Walker, III

Ramell Martez Jackson, Defendant was convicted after a jury trial of theft of property, possession of drug paraphernalia, possession of marijuana with intent to deliver in a drug free zone, and possession of a firearm during the commission of a dangerous felony. Defendant received an effective sentence of five years. Defendant filed a motion for new trial which was denied by the trial court. After a thorough review of the record, we affirm the judgments of the trial court.

Tipton County Court of Criminal Appeals 11/19/20
State of Tennessee v. Deterrio Harrison
W2019-02092-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The Defendant, Deterrio Harrison, appeals his conviction for aggravated robbery, for which he received a twelve-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support his conviction. Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 11/19/20
Raymond Watison v. State of Tennessee
W2019-01650-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James M. Lammey

Raymond Watison, Petitioner, filed a Petition for Writ of Error Coram Nobis (“the Petition”), claiming newly discovered evidence. The State moved to dismiss the Petition. The trial court found that the Petition failed to state a colorable claim and that it was not timely filed and summarily dismissed the Petition. We affirm.

Shelby County Court of Criminal Appeals 11/19/20
STATE OF TENNESSEE v. CHRISTOPHER W. GADSDEN
M2019-01385-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, Christopher W. Gadsden, was indicted by the Davidson County Grand Jury for first degree premeditated murder, first degree felony murder, and theft of property valued between $1,000 and $10,000. Following a jury trial, Defendant was convicted of second degree murder and theft of property valued between $1,000 and $10,000. Following a sentencing hearing, the trial court imposed a total effective sentence of 24 years in the Tennessee Department of Correction with 100 percent release eligibility. In this appeal as of right, Defendant contends that: 1) the evidence was insufficient to support his conviction for second degree murder; 2) the trial court erred by admitting certain autopsy photographs into evidence; 3) the trial court erred by excluding evidence of a prior bad act by the victim; and 4) his sentence is excessive. Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 11/19/20
State of Tennessee v. Anthony Dewight Washington
M2020-00268-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn
Defendant, Anthony Dewight Washington, appeals as of right from the trial court’s summary dismissal of his Tennessee Rule of Criminal Procedure 36 motion to correct a clerical error in the judgment of his conviction for the offense of possession, in a drugfree zone, of 0.5 gram or more of cocaine for sale. After review of the appellate record and the briefs filed by the parties, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.
 
Davidson County Court of Criminal Appeals 11/19/20
STATE OF TENNESSEE v. JUSTIN W. WALKINGTON
M2019-01772-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The defendant, Justin W. Walkington, appeals his Giles County Circuit Court jury conviction of child abuse of a child under the age of eight, arguing that the evidence was insufficient to support his conviction, that the trial court erred by instructing the jury that child abuse was a lesser included offense of aggravated sexual battery, that the trial court’s child abuse instruction actually charged the elements of child neglect, and that the trial court erred by denying the defendant any form of alternative sentencing. We hold that the trial court erred by instructing the jury that child abuse was a lesser included offense in this case because the evidence was legally insufficient to support that charge. Additionally, the trial court’s instruction on the offense of child abuse erroneously included the elements of child neglect, which charge was also unsupported by the evidence. Because the evidence was insufficient to support a conviction of either child abuse or child neglect but was sufficient to support a conviction of simple assault by offensive touching, we reverse and vacate the defendant’s conviction of child abuse and remand the case to the trial court for a sentencing hearing on the offense of Class B misdemeanor assault and the entry of an amended judgment reflecting the new conviction offense and sentence.

Giles County Court of Criminal Appeals 11/19/20
George Campbell v. State of Tennessee
W2019-01526-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Jennifer Johnson Mitchell

The petitioner was convicted of felony murder and aggravated assault for which he received an effective sentence of life in prison. Since his conviction in 1994, the petitioner has filed numerous post-judgment motions seeking relief. The petitioner now appeals from the denial of his most recent motion seeking relief pursuant to Tennessee Rules of Civil Procedure, Rule 60.02. Upon our review of the record and the applicable law, we affirm the decision of the trial court.

Shelby County Court of Criminal Appeals 11/18/20
State of Tennessee v. Demonica Gore
W2019-01320-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The Defendant-Appellant, Demonica Gore, was convicted by a Shelby County jury of aggravated robbery and received a sentence of twelve years’ imprisonment. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the trial court erred in sustaining the State’s objection to defense counsel’s question during voir dire concerning the juror’s views on police confessions; (2) whether the evidence was sufficient to sustain the conviction; and (3) whether the trial court erred in imposing the maximum sentence of twelve-years’ imprisonment. Upon our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/18/20
Angela Brewer v. State of Tennessee
W2020-00108-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Joe H. Walker, III

A Tipton County jury convicted Petitioner, Angela Brewer, of first degree premeditated murder, and the trial court sentenced Petitioner to life. Petitioner appealed, and this court affirmed her conviction and sentence. Petitioner filed a pro se petition for postconviction relief, and after a hearing, the post-conviction court denied relief. On appeal, Petitioner argues that the post-conviction court erred in denying relief on her claim that she received ineffective assistance of counsel based on trial counsel’s failure to consult with Petitioner regarding the evidence and to secure a firearms expert to testify for the defense. Following a thorough review, we affirm the judgment of the post-conviction court.

Tipton County Court of Criminal Appeals 11/18/20
STATE OF TENNESSEE v. KENNETH LAMAR BUGG
M2019-01908-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Kenneth Lamar Bugg, appeals the order of the Giles County Circuit Court revoking his probation and ordering him to serve his sentence in confinement. Defendant arguesthat the trial court erred by consideringevidenceof “non-adjudicated charges”that were pending against him,as a basis to revoke his probation. Hefurther contends that the trial court’s decision to fully revoke his probation was “too great a punishment for a first violation of probation.” Following a thorough review, we affirm the judgment of the trial court.

Giles County Court of Criminal Appeals 11/18/20
STATE OF TENNESSEE v. JEREMY LEE CARTER
M2019-00454-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Brody N. Kane

The Defendant, Jeremy Lee Carter, pleaded guilty to evading arrest, reckless endangerment, and promotion of methamphetamine manufacture; and he received an effective sentence of eight years on probation. A revocation warrant was issued, and following a hearing, the trial court found that the Defendant violated the terms of his probation, revoked his probation, and ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the trial court erred in ordering him to serve his sentence in confinement. Following our review, we affirm the judgment of the trial court pursuant to Rule 20 of theRules of the Court of Criminal Appeals.

Macon County Court of Criminal Appeals 11/18/20
State of Tennessee v. Audrey Downs
W2019-01485-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Paula L. Skahan

The Petitioner, Audrey Downs, entered “best interest” pleas to felony murder and aggravated rape pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and received concurrent sentences of life imprisonment without the possibility of parole and twentyfive years. In 2002, the Petitioner successfully petitioned for DNA testing of a condom collected from the scene where the victim’s body was discovered, and the results excluded the Petitioner as a contributor to the DNA. Because the State subsequently introduced evidence that the condom was unrelated to the crime, the Petitioner was denied permission to reopen his post-conviction petition. The Petitioner sought further testing of the condom to determine whether the victim’s DNA could be recovered, in an attempt to link it to the crime. The trial court summarily denied further testing, and this court remanded for the trial court to conduct the required analysis of the statutory factors. State v. Audrey Downs, No. W2018-00391-CCA-R3-CD, 2018 WL 6650597, at *2 (Tenn. Crim. App. Dec. 18, 2018), no perm. app. filed. On remand, the petition was again summarily dismissed, and the Petitioner appeals. We conclude that the petition did not allege a prima facie case for DNA testing under the statute, and we accordingly affirm the dismissal.

Shelby County Court of Criminal Appeals 11/17/20
Terrance Milam v. State of Tennessee
W2019-01952-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carolyn Wade Blackett

The Petitioner, Terrance Milam, entered a best interest plea to two counts of rape of a child, involving two separate victims, and the trial court sentenced him to serve forty years, at 100%. The Petitioner filed a petition for post-conviction relief in which he alleged that he had received the ineffective assistance of counsel because his counsel failed to inform him of his right to appeal and to request that the trial court appoint appellate counsel. Following a hearing, the post-conviction court dismissed his petition, and the Petitioner timely appealed. After review, we reverse the post-conviction court’s judgment and remand the case for the appointment of counsel, entry of a certified question of law, and grant of a delayed appeal.

Shelby County Court of Criminal Appeals 11/17/20
Philemon Alexander v. State of Tennessee
W2019-02098-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

This case presents an appeal as of right from the post-conviction court’s denial of relief. The Petitioner is serving an eight-year sentence for a jury conviction of theft of property valued at $1,000 or more but less than $10,000. The Petitioner asserts that Counsel’s failure to properly investigate or prepare for trial constitutes the ineffective assistance of counsel. The Petitioner, however, failed to provide clear and convincing proof at the post-conviction hearing to support his allegations of ineffective assistance of counsel. Therefore, we affirm the post-conviction court’s denial of relief.

Shelby County Court of Criminal Appeals 11/17/20
Lajuan Harbison v. State of Tennessee
E2019-01683-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Lajuan Harbison, appeals as of right from the Knox County Criminal Court’s denial of his petitions for post-conviction relief and writ of error coram nobis, wherein he challenged his conviction for attempted second degree murder. On appeal, the Petitioner asserts that he received the ineffective assistance of counsel because trial counsel failed to investigate and assert a claim of self-defense. Relative to the error coram nobis petition, the Petitioner contends that the post-conviction court erred by finding that new evidence from the victim, who recanted his trial testimony and averred that he was the primary aggressor rather than the Petitioner, was not credible. Following our review, we affirm.

Knox County Court of Criminal Appeals 11/17/20