Court of Criminal Appeals Opinions

Format: 03/05/2021
Format: 03/05/2021
State of Tennessee v. Regina Jackson
M2019-01390-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Suzanne Lockert-Mash

The defendant, Regina Jackson, appeals her Cheatham County Circuit Court jury conviction of second offense driving under the influence (“DUI”), arguing that the trial court erred by denying her motion to dismiss for lack of probable cause and by denying her a new trial based on newly discovered evidence. Discerning no error, we affirm.

Cheatham County Court of Criminal Appeals 03/05/21
Terrell B. Johnson v. State of Tennessee
E2020-00488-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge G. Scott Green

The petitioner, Terrell B. Johnson, appeals the denial of his post-conviction petition arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial and on appeal. Following our review, we affirm the post-conviction court’s denial of the petition.

Knox County Court of Criminal Appeals 03/04/21
State of Tennessee v. Gary Wayne Bunch - Concurring Opinion
E2019-00300-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge E. Shayne Sexton

I concur fully with the conclusion reached by the majority that there was evidence to support the trial court’s decision to revoke Defendant’s probation and to order Defendant to serve the balance of his original sentence in incarceration. I write separately to affirm my belief expressed in my concurring opinion in State v. Craig Dagnan, No. M2020- 00152-CCA-R3-CD, 2021WL 289010, at *3 (Tenn. Crim. App. Jan. 28, 2021), perm. app. filed, that once a determination is made that a defendant has violated the conditions of his or her probation, neither an additional hearing nor any additional findings are statutorily mandated of a trial court to determine the manner in which the original sentence should be served. Thus, there is no opportunity for an abuse of discretion when a “second exercise of discretion” is not required by either sections 40-35-310 or 40-35-311 of Tennessee Code Annotated.

Campbell County Court of Criminal Appeals 03/03/21
State of Tennessee v. Gary Wayne Bunch
E2019-00300-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Shayne Sexton

The Appellant, Gary Wayne Bunch, pled guilty to two counts of theft under $1,000. The trial court sentenced him to concurrent sentences of ten years for each offense, and he was placed on supervised probation. Upon finding that the Appellant violated the conditions of his probation, the trial court revoked the Appellant’s probation and ordered him to serve his sentence in confinement. On appeal, the Appellant challenges the ruling of the trial court. Upon review, we affirm the judgment of the trial court.

Campbell County Court of Criminal Appeals 03/03/21
State of Tennessee v. Kenzie Anderson
M2020-00120-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury found Defendant, Kenzi Eugene Anderson, guilty on two counts each of aggravated burglary, employing a firearm during the commission of a dangerous felony, and aggravated robbery, for which the trial court sentenced Defendant to an effective sentence of twenty-three years’ incarceration. On appeal, Defendant contends that the trial court abused its discretion by denying Defendant’s motion to sever defendants and by imposing an excessive sentence and that the trial court committed plain error by failing to sever his offenses for trial. Following a thorough review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 03/03/21
State of Tennessee v. Trenton Jermaine Bell
M2019-01810-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Brody N. Kane

Trenton Jermaine Bell, Defendant, was arrested and charged with first degree premediated murder, tampering with evidence, and abuse of a corpse in connection with the death of the victim, Sydney Green. A Wilson County jury convicted Defendant as charged on all counts, and the trial court sentenced Defendant to an effective life sentence. On appeal, Defendant argues that the trial court committed plain error by failing to issue a curative instruction when a police detective offered improper lay testimony. He also contends that the evidence was insufficient to support his conviction for first degree premeditated murder and that he was denied a jury venire comprising a fair cross section of the community. After a thorough review, we affirm the judgments of the trial court.

Wilson County Court of Criminal Appeals 03/02/21
State of Tennessee v. Alfred Lee Boykin, III
E2019-02070-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Alex Pearson

Pursuant to Tennessee Rule of Criminal Procedure 37, the defendant, Alfred Lee Boykin, III, appeals two certified questions of law related to the trial court’s denial of his motion to dismiss his case due to excessive delay in prosecuting the case. Because the defendant failed to establish prejudice flowing from the more than two-year delay in this case, the trial court did not err by denying his motion to dismiss. The judgments of the trial court are, therefore, affirmed.

Hamblen County Court of Criminal Appeals 03/02/21
State of Tennessee v. Kelly Lee Pitts
E2019-01656-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Stacy L. Street

The Defendant, Kelly Lee Pitts, was convicted by a jury of seven counts each of attempted first degree murder and possessing a firearm during the commission of or attempt to commit a dangerous felony. Thereafter, the trial court imposed an effective fifty-one-year sentence. On appeal, the Defendant contends that (1) there was insufficient evidence to support his convictions for attempted first degree murder, specifically, challenging the element of premeditation; (2) the trial court erred by imposing partial consecutive sentencing based upon the dangerous offender criterion; (3) and the trial court erred in imposing Class C felony convictions for employing a firearm during the commission of or attempt to commit a dangerous felony when he was convicted only of possessing such a firearm, a Class D felony.1 The State concedes that the sentences and judgments for employment of a firearm were in error, and we agree. In all other respects, we affirm. Accordingly, though we affirm the Defendant’s convictions, we vacate and modify certain judgment forms and sentences consistent with this opinion. The case is remanded.

Washington County Court of Criminal Appeals 03/02/21
State of Tennessee v. Nathaniel Shawn Declue
M2019-01424-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Nathaniel Shawn Declue, pleaded guilty to two counts of possession of methamphetamine with intent to sell, two counts of possession of methamphetamine with intent to deliver, driving on revoked license, violation of the vehicle registration law, simple possession of a Schedule VI substance, and possession of drug paraphernalia. At the sentencing hearing, the trial court merged multiple convictions and imposed an effective sentence of twenty years in confinement. The Defendant appeals, asserting that the trial court abused its discretion by failing to apply a mitigating factor and by failing to consider the economic resources available to state prisons in its decision to impose a twenty-year effective sentence. After review of the record, we affirm the trial court’s judgments.

Bedford County Court of Criminal Appeals 03/02/21
State of Tennessee v. Eli Kea
E2019-00890-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Eli Kea, was convicted by a jury of four counts of attempted aggravated robbery, four counts of aggravated assault, one count of reckless aggravated assault, and two counts of reckless endangerment of another by discharging a firearm into an occupied habitation. Thereafter, the trial court merged several of the convictions and imposed an effective ten-year sentence. On appeal, the Defendant contends that (1) the trial court erred in denying his motion to suppress, arguing that the officers lacked reasonable suspicion for an investigatory stop of his vehicle based solely on a general description of the vehicle; (2) the evidence was insufficient to establish his identity as the perpetrator of the episode involving four counts of attempted aggravated robbery and four counts of aggravated assault; and (3) the trial court erred by allowing the State to impeach a co-defendant with a prior statement because the jury was unlikely to consider the prior statement only for credibility purposes given the prejudicial nature of the statement. Following our review, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 03/02/21
Jesus Baltazar Diaz Ramos v. State of Tennessee
M2019-01525-CCA-R3-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jennifer Smith

The pro se Petitioner, Jesus Baltazar Diaz Ramos, appeals the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the judgment of the trial court summarily dismissing the petition.

Davidson County Court of Criminal Appeals 03/01/21
State of Tennessee v. Jeffrey Neal Olive
M2019-01379-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Jeffrey Neal Olive, was convicted by a Marshall County Circuit Court jury of second-degree murder, a Class A felony, and was sentenced to twenty years in the Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his conviction and that his sentence is excessive and contrary to law. After review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 03/01/21
Delmar L. Mack, Jr. v. State of Tennessee
E2019-00273-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lisa Rice

Petitioner, Delmar L. Mack, Jr., appeals the Washington County Criminal Court’s denial of his petition for post-conviction relief. Petitioner contends that his guilty pleas to attempted first degree murder, aggravated kidnapping, and aggravated assault were not knowingly, intelligently, and voluntarily entered because, at the time he entered his plea agreement, he was suffering from “severe mental distress and anxiety,” resulting in an inability to understand the nature and details of the agreement. Following a thorough review, we affirm the denial of post-conviction relief.

Washington County Court of Criminal Appeals 02/26/21
State of Tennessee v. Craig Rickard
M2019-01207-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Suzanne Lockert-Mash

The Defendant, Craig Rickard, was convicted by a Cheatham County Circuit Court jury of rape of a child and aggravated sexual battery and was sentenced pursuant to a pleabargained sentencing agreement to an effective term of twenty-five years at 100% in the Department of Correction. On appeal, he argues that the trial court erred by admitting the video recordings of the victim’s forensic interviews, in not conducting a jury out hearing to determine the victim’s qualifications as a witness, and by suggesting to the prosecutor the manner in which a question could be posed in order to avoid the Defendant’s hearsay objection. Following our review, we affirm the judgments of the trial court.

Cheatham County Court of Criminal Appeals 02/26/21
State of Tennessee v. Jeffery D. Strong
M2018-00216-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Brody N. Kane

A Macon County Criminal Court Jury convicted the Appellant, Jeffery Dewayne Strong, of selling a Schedule III, controlled substance, a Class D felony, and the trial court sentenced him as a Range III, persistent offender to twelve years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the conviction and that the trial court erred by allowing the State to play an audio recording of the controlled drug buy. Based upon the record and the parties’ briefs, we conclude that the evidence is sufficient to support the conviction and that the Appellant waived the issue regarding the audio recording because he failed to raise it in his motion for a new trial or at the hearing on the motion. Accordingly, the judgment of the trial court is affirmed.

Macon County Court of Criminal Appeals 02/26/21
State of Tennessee v. Michelle Bennington
E2020-00025-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge

Defendant, Michelle Bennington, filed a pro se motion pursuant to Tennessee Rule of Criminal Procedure 36 to correct an alleged clerical error in a July 22, 2019 probation revocation order. The motion sought entry of a corrected order providing 827 days of postjudgment jail credit. The trial court determined that there was no clerical error in the revocation order and denied the motion. However, the trial court determined that there was a clerical error in the May 23, 2016 judgments of conviction and entered corrected judgments providing two additional days of pretrial jail credit. Finding no error, we affirm.

Hamilton County Court of Criminal Appeals 02/26/21
State of Tennessee v. Robert Edward Seaton
E2019-01225-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge G. Scott Green

Following a jury trial, the Defendant, Robert Edward Seaton, was convicted of facilitation of theft of property valued at $2,500 or more but less than $10,000, a Class E felony, and one count each of vandalism, evading arrest, and driving with a revoked license, second offense, Class A misdemeanors. See Tenn. Code Ann. §§ 39-11-403, -14-103, -14-105, - 14-408, -16-603, 55-50-504. In this appeal as of right, the Defendant contends (1) that the trial court erred by denying the Defendant’s motion for a mistrial when a court officer, who was acting as jury custodian, was called and sworn as a rebuttal witness; (2) that the court erred by denying the Defendant’s motion for a mistrial after the court elicited from a defense witness the name of the witness’s father-in-law, who was “a notorious criminal and murderer”; (3) that the court erred by admitting reputation or opinion evidence from three law enforcement officers regarding a defense witness’s character for truthfulness; (4) that plain error occurred when the State cross-examined a defense witness regarding prior criminal behavior not resulting in a conviction; and (5) that the cumulative effect of these errors deprived the Defendant of a fair trial. Following our review, we conclude that the admission of reputation and opinion evidence from law enforcement officers constitutes reversible error such that the Defendant is entitled to a new trial. Alternatively, we conclude that the Defendant would be entitled to relief due to cumulative error.

Knox County Court of Criminal Appeals 02/26/21
State of Tennessee v. Jason Monroe Griffith
E2020-00259-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William K. Rogers

The Defendant, Jason Monroe Griffith, pleaded guilty to one count of attempted aggravated burglary, seven counts of aggravated burglary, ten counts of theft of property, and one count of conspiracy to commit aggravated burglary, and he entered a “best interest” plea to one count of aggravated burglary pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The trial court imposed an effective sentence of 15 years and ordered the Defendant to pay $10,750 in restitution. On appeal, the Defendant argues that the trial court should have held a hearing regarding his ability to pay restitution and the reasonableness of the restitution amount. After review, we reverse the judgment of the trial court with respect to restitution and remand this case for a restitution hearing and entry of amended judgments that reflect the amount of restitution and the manner of payment.

Sullivan County Court of Criminal Appeals 02/25/21
State of Tennessee v. Vonda Star Smith
E2019-00968-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John F. Dugger, Jr.

The Defendant, Vonda Star Smith, was convicted by a Greene County Criminal Court jury of first degree premeditated murder and second degree murder. See T.C.A. §§ 39-13- 202(a)(1) (2018) (first degree murder) (subsequently amended), 39-13-210 (2014) (second degree murder) (subsequently amended), 39-13-214 (2018) (embryo or fetus as a victim of criminal homicide). The trial court sentenced the Defendant to life for first degree murder and to twenty-five years as a Range I offender for second degree murder, and the court imposed the sentences concurrently. On appeal, the Defendant contends that (1) the evidence is insufficient to support her convictions, (2) the court erred in denying her motion to dismiss because the State’s failure to provide exculpatory information regarding the victim’s cell phone “ping” violated her right to due process, (3) the State’s failure to provide a witness’s statement during discovery deprived her of due process, (4) the court improperly commented on the evidence during a defense witness’s testimony, (5) cumulative errors require reversal of the Defendant’s convictions, and (6) the court erred in imposing a twenty-five-year sentence for second degree murder. We affirm the judgments of the trial court.

Greene County Court of Criminal Appeals 02/24/21
State of Tennessee v. Edward Wayne Shumacker Alias Jeff Wayne Witt
E2019-01297-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Don W. Poole

The Appellant, Edward Wayne Shumacker, was convicted in the Hamilton County Criminal Court of driving under the influence (DUI), DUI per se, driving on a revoked license, violating the seatbelt law, violating the financial responsibility law, and violating the vehicle registration law, all misdemeanors. After the jury found the Appellant guilty, he stipulated that he had five prior convictions of DUI and two prior convictions of driving on a revoked license. The trial court sentenced the Appellant as a Range III, persistent offender to twelve years for each conviction of sixth offense DUI, Class C felonies; merged the convictions; and ordered that the Appellant serve the twelve-year sentence concurrently with his misdemeanor sentences. On appeal, the Appellant contends that the trial court erred by denying his motion for additional discovery, that the trial court erred by denying his motion to exclude references to other bad acts, that the trial court erred by overruling his objection to the admissibility of expert testimony, and that his twelve-year sentence for DUI is excessive. Based upon the record and the parties’ briefs, we conclude that there is no reversible error and affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 02/23/21
State of Tennessee v. Dwayne Edward Harris
M2019-01609-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Deanna B. Johnson

A Williamson County jury convicted the Defendant, Dwayne Edward Harris, of joyriding (Count 1), carjacking (Count 2), and aggravated robbery (Count 3). In response to a motion for judgment of acquittal, the trial court reduced Count 3 from aggravated robbery to robbery. The trial court then merged Count 1 and Count 3 into Count 2, and sentenced the Defendant to an effective sentence of thirty years in the Tennessee Department of Correction. The Defendant appeals, asserting: (1) the evidence is insufficient to support his convictions; (2) the trial court improperly admitted evidence; and (3) a Bruton violation. The State appeals the trial court’s reducing the jury’s conviction for aggravated robbery in Count 3 to robbery and the trial court’s merging Count 3 into Count 2. This court consolidated the Defendant’s and the State’s appeals. After review of the Defendant’s issues, we discern no error. As to the State’s issues on appeal, we vacate the trial court’s judgment in Count 3, reinstate the jury’s verdict of guilty of aggravated robbery, and remand for sentencing on Count 3. The trial court’s judgment in Count 2 is remanded for corrections consistent with this opinion. 

Williamson County Court of Criminal Appeals 02/22/21
State of Tennessee v. Nona Kilgore
M2020-003530-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Curtis Smith

The Defendant, Nona Kilgore, pleaded guilty to possession of a schedule IV controlled substance with intent to sell or deliver. The Defendant reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the warrantless search of the Defendant’s home was lawful based on the issue of consent. After a thorough review of the record and relevant authorities, we conclude that the reserved question of law is not dispositive of the case and, accordingly, we dismiss the appeal.

Grundy County Court of Criminal Appeals 02/22/21
Stanley Blair Hill v. State of Tennessee
E2018-02080-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David Reed Duggan

The Petitioner, Stanley Blair Hill, filed for post-conviction relief from his conviction of first degree murder, alleging that his trial counsel were ineffective. The post-conviction court denied relief, and the Petitioner appeals, contending that counsel were ineffective by failing “to obtain adequate expert and investigative assistance and/or to present such testimony at trial”; by failing “to object to the introduction of improper, irrelevant, inflammatory and prejudicial evidence”; and by failing to adequately advise the Petitioner whether to accept or reject the State’s plea offer. Upon review, we affirm the judgment of the post-conviction court.

Blount County Court of Criminal Appeals 02/22/21
State of Tennessee v. Cody King
E2019-01404-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jeffery Hill Wicks

The Defendant, Cody Ryan King, was convicted by a Morgan County Circuit Court jury of rape of a child, a Class A felony, attempted rape of a child, a Class B felony, two counts of aggravated sexual battery, a Class B felony, two counts of sexual battery, a Class E felony, and attempted statutory rape, a Class A misdemeanor. See T.C.A. §§ 39-13-522 (2010) (subsequently amended) (rape of a child), 39-13-505 (2018) (sexual battery), 39- 13-504 (2018) (aggravated sexual battery); 39-13-506 (2010) (subsequently amended) (statutory rape); 39-12-101 (2018) (criminal attempt). The Defendant was sentenced to an effective twenty-five years for the convictions. However, at the motion for new trial hearing, the trial court ordered a new trial for one count of aggravated sexual battery on the basis that the State failed to make an election of the offenses. The court, likewise, ordered a new trial for both counts of aggravated sexual battery and both counts of sexual battery on the basis that the Defendant received the ineffective assistance of counsel for the failure to request a jury instruction on the lesser included offense of assault by offensive or provocative contact. As a result, the court ordered a new trial for two counts of aggravated sexual battery and two counts of sexual battery. On appeal, the Defendant contends that (1) the evidence is insufficient to support his rape of a child and attempted rape of a child convictions and (2) he received the ineffective assistance of trial counsel. Because the Defendant received the ineffective assistance of counsel during the pretrial proceedings, we vacate the Defendant’s convictions and remand the case to the trial court with instructions for the State to reinstate the eight-year plea offer and to negotiate in good faith. 

Morgan County Court of Criminal Appeals 02/19/21
State of Tennessee v. William Eugene Moone
M2019-01865-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge L. Craig Johnson

A Coffee County jury convicted William Eugene Moon, Defendant, of attempted second degree murder and unlawful employment of a firearm during the commission of or attempt to commit a dangerous felony. On appeal, Defendant argues that the trial court erred by allowing the improper impeachment of a defense witness, that there was insufficient evidence to support his convictions, and that he was denied the right to a speedy trial. After a thorough review of the record and applicable case law, the judgments of the circuit court are affirmed.

Coffee County Court of Criminal Appeals 02/12/21