COURT OF CRIMINAL APPEALS OPINIONS

State of Tennessee v. Charles Hall
W2009-02569-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey, Jr.

The defendant, Charles Hall, was convicted by a Shelby County Criminal Court jury of two counts of alternate theories of aggravated robbery, a Class B felony. The court merged the second count into the first count and sentenced the defendant as a repeat violent offender to life without the possibility of parole. On appeal, the defendant argues that: (1) the pretrial photographic identification by the victim was overly suggestive and the trial court erred in failing to hold an evidentiary hearing or rule on his motion to suppress the identification; (2) the trial court erred in allowing evidence that a small child was present during the commission of the robbery; (3) he was dissuaded from testifying because of the comments of the prosecutor and trial court; (4) the evidence was insufficient to sustain his convictions; (5) the trial court erred in determining that he was a repeat violent offender; and (6) the trial court erred in ordering consecutive sentences. After review, we affirm the judgments of the trial court.

State of Tennessee v. Randy Parham
W2009-02576-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John P. Colton, Jr.

The defendant, Randy Parham, was convicted by a Shelby County Criminal Court jury of attempted first degree premeditated murder, a Class A felony; aggravated robbery, a Class B felony; theft of property valued at $1000 or more, a Class D felony; and domestic assault causing bodily injury, a Class A misdemeanor. He was sentenced by the trial court as a Range II offender to thirty-five years at 100% for the attempted first degree murder conviction, fifteen years at 100% for the aggravated robbery conviction, six years at 35% for the theft conviction, and eleven months, twenty-nine days for the misdemeanor assault conviction. Finding the defendant to be a dangerous offender, the trial court ordered that the sentences for his felony convictions be served consecutively to each other, for a total effective sentence of fifty-six years in the Department of Correction. The defendant raises essentially three issues on appeal: (1) whether the evidence was sufficient to sustain his felony convictions; (2) whether the trial court erred by not merging the aggravated robbery conviction with the theft conviction and the attempted murder conviction with the assault conviction; and (3) whether the trial court erred in sentencing. Based on our review, we
conclude that the evidence was sufficient to sustain the convictions but that the defendant’s domestic assault conviction should have been merged into the conviction for attempted first degree murder. We further conclude that the trial court did not make adequate findings in support of the sentences imposed. We, therefore, merge the domestic assault conviction into the conviction for attempted first degree murder and remand for resentencing and for the entry of corrected judgments to reflect the merger and the fact that the defendant was convicted in count four of theft of $1000 or more, rather than theft of $10,000 or more as erroneously marked on the judgment.

State of Tennessee v. Terence Alan Carder
W2009-01862-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Weber McCraw

The defendant, Terence Alan Carder, appeals the order entered against him by the McNairy  County Circuit Court, ordering that he pay $80,000 in restitution. The defendant pled guilty to theft of property over $1000, a Class D felony, and was sentenced to two years of probation following the service of sixty days in jail. Additionally, the court ordered the defendant to pay $80,000 in
restitution at a rate of $1000 per month. On direct appeal, a panel of this court affirmed the  sentence but remanded the case to the trial court for reconsideration of the amount of restitution in light of the defendant’s ability to pay. On remand, the trial court, while acknowledging that the defendant would not be able to pay the entire $80,000 in restitution during the term of his sentence, nonetheless, entered an order that the amount of restitution ordered would remain at $80,000. However, the court did modify the terms of repayment to $100 per month. On appeal, the defendant again contends that, given his financial resources and ability to pay, the trial court erred in ordering him to pay $80,000 in restitution. We agree. Because it is unclear from the record exactly how many months the defendant has remaining on his sentence in light of his recent incarceration for a separate crime, we must again remand the case to the trial court with instructions to enter an order of restitution reflecting a total amount of $100 times the months remaining on the defendant’s sentence in which he is expected to pay.

Larry C. Thompson, Jr. v. State of Tennessee
M2009-02078-CCA-R3-PC
Authoring Judge: Thomas T. Woodall
Trial Court Judge: Judge Steve Dozier

Defendant, Larry C. Thompson, Jr., has appealed from the trial court’s order which denied defendant’s “Motion to Reopen and Suspend Sentence.”  The sentence which defendant sought to “reopen” and suspend was entered May 10, 2004. The motion to “reopen” and suspend the sentence was not filed until over five years later in July 2009. After a review of the record and the briefs, we affirm the judgment of the trial court.

State of Tennessee v. Veronica Lynn Floyd
M2010-00177-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee Russell

The defendant, Veronica Lynn Floyd, pled guilty in the Bedford County Circuit Court to three counts of theft of property over $10,000, Class C felonies, and one count of theft of property over $1000, a Class D felony. She was sentenced as a Range I offender to five years on each of the theft over $10,000 convictions, with two of the counts to be served concurrently and one count consecutively to the others, and three years on the theft over $1000 conviction, to be served consecutively to the other counts, for a total effective sentence of thirteen years. The defendant was ordered to serve nine months of her sentence in the county jail with the remaining term on community corrections. On appeal, she argues that the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court.

State of Tennessee v. Jermario Divine Warfield
M2010-00834-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Jermario Divine Warfield, pled guilty in the Davidson County Criminal Court to aggravated burglary, a Class C felony, in exchange for a three-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered that the defendant serve his sentence in confinement, which he now appeals. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Michael Martez Rhodes
M2009-00077-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl Blackburn

The defendant, Michael Martez Rhodes, pursuant to a plea agreement, entered an Alford “best interest” plea of guilty to two counts of attempted aggravated sexual battery, a Class C felony. The agreement provided for a four-year sentence for each conviction, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court imposed consecutive sentences for a total effective sentence of eight years, to be served in the Department of  Correction. On appeal, the defendant argues that the trial court erred in denying probation and in imposing consecutive sentences. After careful review, we affirm the judgments from the trial court. However, we note the transcript shows an Alford “best-interest” guilty plea. The judgment reflects a plea of nolo contendere. We remand for a correction of the judgment.

State of Tennessee v. Robin Blaskis
M2009-01154-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Leon Burns

In November 2006, the Putnam County grand jury indicted Appellant, Robin Blaskis, for one count of theft over $60,000. Following a jury trial, Appellant was convicted as charged. The trial court sentenced Appellant to ten years as a Range I, standard offender. On appeal, Appellant argues that the trial court erred in denying her motion to dismiss based upon the violation of her right to a speedy trial and that the evidence was insufficient to support her conviction. After a thorough review of the record, we conclude that the trial court’s denial of her motion to dismiss was correct because the four factors set out in Barker v. Wingo, 407 U.S. 514 (1972), did not weigh in her favor. We also conclude that the evidence was sufficient to support her conviction. Therefore, the judgment of the trial court is affirmed.

Luis Castanon v. State of Tennessee
M2009-01324-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth Norman

Petitioner, Luis Castanon, filed a petition pursuant to the Post-Conviction DNA Analysis Act of 2001, Tennessee Code Annotated sections 40-30-301-313. Petitioner sought DNA testing of evidence in the trial resulting in his convictions for four counts of aggravated rape and one count of aggravated burglary. The State filed a response in opposition to the petition, and the trial court summarily dismissed the petition, concluding that Petitioner had not satisfied the statutory requirements to authorize DNA testing. In this appeal, Petitioner asserts that the trial court erred by summarily dismissing the petition and by failing to require the State to submit proof that “DNA evidence” no longer existed. After a thorough review of the record and the briefs of the parties, we affirm the judgment of the post-conviction court.

David A. Romano v. Tony Parker, Warden
W2010-00271-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Weber McCraw

The petitioner, David A. Romano, appeals the Fayette County Circuit Court’s summary dismissal of his petition for the writ of habeas corpus. The petitioner pled guilty to one count of Class D felony forgery, two counts of Class E felony forgery, and one count of Class A misdemeanor theft of property. He was subsequently sentenced to concurrent sentences of twelve years, two six-year sentences, and eleven months and twenty-nine days for the respective convictions. He was further ordered to serve the sentences in confinement. After a period, the trial court granted the petitioner’s motion to serve the balance of the sentences on probation; however, his probation was later revoked and the petitioner remainsincarcerated to date. On appeal, the petitioner argues that the trial court was without authority or jurisdiction to allow him to serve his sentence on probation because his sentence was greater than ten years, which precluded his eligibility to receive a probationary sentence. The State has filed a motion requesting that this court affirm the lower court’s dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to establish that he is currently restrained pursuant to an illegal sentence, we grant the State’s motion and affirm the judgment of the Fayette County Circuit Court.

State of Tennessee v. Hubert Glenn Sexton
E2008-00292-CCA-R3-DD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge E. Shayne Sexton

A Scott County jury found the Appellant Hubert Glenn Sexton guilty of two counts of first degree murder arising from the deaths of Stanley and Terry Goodman. Following penalty phase, the jury found the presence of one statutory aggravating circumstance, that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, and that this aggravator outweighed any mitigating factors. See T.C.A. § 39-13-204(i)(6). The jury imposed sentences of death. Appellant Sexton seeks review by this court of both his convictions for first degree murder and his sentences of death. He raises the following issues for our review: (I.) Whether the trial court erred in denying a motion for change of venue; (II.) Whether the trial court erred in failing to properly admonish the jury before and during trial; (III.) Whether the trial court erred in failing to adequately voir dire the jury regarding extrajudicial information; (IV.) Whether the trial court erred in failing to excuse certain jurors for cause; (V.) Whether the trial court erred in admitting allegations of child sexual abuse; (VI.) Whether the trial court erred in admitting testimony regarding the Appellant’s
willingness and later refusal to take a polygraph examination; (VII.) Whether the trial court erred in admitting statements made by the Appellant’s wife; (VIII.) Whether the trial court erred in admitting evidence that was similar to the murder weapon; (IX.) Whether the trial court erred in admitting evidence of an unrelated speeding arrest; (X.) Whether the trial court erred in admitting evidence that Appellant alleges was unlawfully obtained from his vehicle; (XI.) Whether the trial court erred in admitting evidence relating to the preparation of Appellant’s IRS tax forms; (XII.) Whether individual and cumulative instances of prosecutorial misconduct
denied him a fair trial; (XIII.) Whether the convicting evidence was sufficient to support his convictions; (XIV.) Whether the verdict was contrary to the weight of the evidence; (XV.) Whether Tennessee’s death penalty scheme is constitutional; and (XVI.) Whether the trial court erred in denying the motion for new trial based on cumulative error. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Dana Kennedy Walls
M2009-00736-CCA-R3-CD
Authoring Judge: Camille R. McMullen
Trial Court Judge: Judge Larry B. Stanley, Jr.

Defendant-Appellant, Dana Kennedy Walls, was convicted by a Warren County Circuit Court jury of facilitation of initiating a process to manufacture methamphetamine in count one, a Class C felony; facilitation of promoting the manufacture of methamphetamine in count two, a Class E felony; and promoting the manufacture of methamphetamine in count three, a Class D felony. She was sentenced as a Range I, standard offender to serve concurrent sentences of five years with service of 365 days in confinement for count one, two years with service of 90 days in confinement for count two, and three years with service of 250 days in confinement for count three, for an effective sentence of five years with 365 days in confinement prior to serving the remainder of her sentence on probation. On appeal, Dana Walls argues: (1) the evidence was insufficient to support her convictions, (2) the trial court committed reversible error in failing to instruct the jury on the lesser included offense of attempt for each of the charged offenses, and (3) her sentence is excessive. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Deredious Otis
W2009-02187-CCA-R3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge Chris Craft

The defendant, Deredious Otis, stands convicted of aggravated assault, a Class C felony. The trial court sentenced him as a Range I, standard offender to four and a half years in the workhouse. On appeal, the defendant presents seven issues for our review: (1) whether the trial court erred in denying the defendant’s motion for judgment of acquittal; (2) whether the trial court erred by not allowing the defendant to enter his own statement to police as evidence; (3) whether the trial court erred by refusing to instruct the jury on the affirmative defenses of self-defense and defense of a third party; (4) whether the trial court erred by restricting defense counsel’s cross-examination; (5) whether the trial court erred by threatening defense counsel with contempt; (6) whether the trial court committed a Batson error in the composition of the final jury; and (7) whether the trial court improperly applied sentencing factors. Finding no reversible error, we affirm the judgment of the trial court.

State of Tennessee v. Warren Parker
W2009-02578-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John T. Fowlkes, Jr.

The defendant, Warren Parker, appeals the trial court’s denial of any form of alternative sentencing. The defendant entered a guilty plea to three counts of aggravated assault, a Class C felony, and one count of evading arrest, a Class A misdemeanor. He was sentenced to concurrent six year sentences for the Class C felonies and to a concurrent eleven-month, twenty-nine-day sentence for the Class A misdemeanor. After careful review, we affirm the trial court’s judgments that deny alternative sentencing.

State of Tennessee v. Brandon Stacy Lambert
E2010-00350-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David R. Duggan

The appellant, Brandon Stacy Lambert, was convicted of numerous drug related offenses, aggravated burglary, theft, and burglary. The trial court imposed a total effective sentence of seventeen years. The appellant was granted probation and was ordered to complete the drug court program. After the appellant was dismissed from the drug court program, the trial court revoked his probation and ordered him to serve his original sentence in confinement. On appeal, the appellant concedes a "technical violation" of the conditions of probation but requests that he once again be granted probation. Upon review, we affirm the judgments of the trial court.

State of Tennessee v. Dar Es Salaam Cole and Thomas Lopez
W2009-00174-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Paula Skahan

The Defendant-Appellants, Dar Es Salaam Cole and Thomas Lopez, were convicted by a Shelby County Jury of facilitation of the sale of 300 grams or more of cocaine and unlawful possession of 300 grams or more of cocaine with the intent to sell or deliver. After a sentencing hearing, the trial court merged the above convictions and sentenced Cole and Lopez to nineteen years imprisonment in the Tennessee Department of Correction. In this consolidated appeal, Lopez argues that (1) the trial court erred in denying his motion to suppress and (2) the evidence was insufficient to sustain his convictions. In addition to these issues, Cole argues that (3) the traffic stop was racially motivated in violation of the Fourteenth Amendment’s equal protection clause; (4) the jury was “impermissibly influenced” by (a) the presence of the prosecutor and defense counsel in the jury room during deliberations, and (b) comments by the trial court while instructing the jury; and (5) the trial court failed to discharge the jury when there was no probability for agreement and failed to charge “a deadlock (Kersey) instruction.” Upon our review, we discern no reversible error and affirm the judgments of the trial court.

State of Tennessee v. Edward L. Hood Jr.
W2009-02501-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roger A. Page

The Defendant-Appellant, Edward L. Hood, Jr., was convicted by a Henderson County Circuit Court jury of two counts of rape of a child, a Class A felony, and two counts of incest, a Class C felony. He received consecutive sentences of twenty-three years and twenty-five years for the rape of a child convictions, and concurrent five-year sentences for each of the incest convictions, for an effective sentence of forty-eight years in the Tennessee Department of Correction. On appeal, Hood argues: (1) the evidence was insufficient to support his convictions; (2) his right to a fair trial was violated when trial counsel announced that Hood was pleading guilty at the start of trial; (3) the trial court erred in preventing the victim’s sister from testifying for the defense at trial; and (4) the trial court erred by failing to grant a new trial on the basis of newly discovered evidence. Upon review, we affirm the judgments of the trial court.

State of Tennessee v. James Porter McFarland
M2009-01657-CCA-R3-CD
Authoring Judge: Judge J.C. Mclin
Trial Court Judge: Judge John D. Wootten

The defendant, James Porter McFarland, presents for our review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The defendant pleaded guilty to driving under the influence, second offense. As a condition of his guilty plea, the defendant reserved a certified question of law challenging the denial of his motion to suppress based upon his allegation that police subjected him to an unconstitutional investigative stop. Following our review, we affirm the judgment of the trial court denying the defendant's motion to suppress.

State of Tennessee v. Brian L. Tune
E2009-01619-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The Defendant, Brian L. Tune, was charged with driving under the influence (DUI), second offense. Following the Loudon County Criminal Court's denial of his motion to suppress the breath alcohol test results, the defendant pled guilty to DUI, first offense, a Class A misdemeanor. Pursuant to the plea agreement, the trial court sentenced the defendant to 11 months and 29 days in the county jail suspended to a community based alternative sentence. Pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, the defendant sought to reserve a certified question of law challenging the breath alcohol test results. However, we conclude the certified question is not dispositive. We also note that the defendant failed to file a timely notice of appeal and provides no reason to waive the timely filing of the notice of appeal. The appeal is dismissed.

Bobby Ervin v. State of Tennessee
M2010-01767-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Dee David Gay

The Petitioner, Bobby Ervin, appeals from the order of the trial court dismissing his petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.

State of Tennessee v. Linda F. Cathey
M2010-00132-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Larry Wallace

A Humphreys County Circuit Court jury convicted the defendant, Linda F. Cathey, of one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony. See T.C.A. __ 39-14-104, -105(4) (2006). The trial court sentenced the defendant to six years' probation and ordered restitution to the victim in the amount of $27,000. On appeal, the defendant argues that the trial court erred by denying her request for judicial diversion, by imposing the maximum sentence of six years, and by ordering restitution without properly considering her ability to pay. Discerning no error, we affirm the judgment of the trial court.

State of Tennessee v. Ricky Lane McKnight
M2010-01092-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert Crigler

A Marshall County grand jury indicted the Defendant, Ricky Lane McKnight, for violation of the Habitual Motor Offender Act and driving on a revoked license. The trial court ordered the defendant to serve an effective sentence of three and one-half years. On appeal, the dDefendant argues that the trial court's sentence is excessive. After a thorough review of the record and the applicable law, we affirm the trial court's judgment.

State of Tennessee v. Jerry Len Angus
M2009-01151-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Jerry Len Angus, was indicted in a seventeen-count indictment by the Davidson County Grand Jury for three counts of official misconduct in violation of Tenn. Code Ann._ 39-16-402, nine counts of sexual battery by an authority figure in violation of Tenn. Code Ann. _ 39-13-527, four counts of statutory rape in violation of Tenn. Code Ann. _ 39-13- 506, and one count of rape in violation of Tenn. Code Ann. _ 39-13-503. Defendant was convicted by a jury of three counts of official misconduct, one count of attempt to commit sexual battery, a lesser-included offense of the charged offense of sexual battery, one count of sexual battery, and two counts of attempt to commit statutory rape, a lesser-included offense of statutory rape. The jury did not consider eight counts of the indictment as the trial court granted judgments of acquittal at the close of the State's proof, and defendant was acquitted by the jury of the remaining two counts. Defendant filed a motion for new trial, and following a hearing, the trial court vacated his conviction for official misconduct in Count 1 of the indictment for insufficiency of the evidence. The court granted a mistrial as to defendant's conviction for attempted sexual battery in Count 4, his conviction for official misconduct in Count 8, and his conviction for sexual battery in Count 11. In an amended order, the trial court also vacated defendant's conviction for official misconduct in Count 3 of the indictment. On appeal, defendant asserts that the trial court's polling of the jury was improper and that he is entitled to a new trial. Finding no error, we affirm the judgments of the trial court.

Charles Montague v. Cherry Lindamood, Warden
M2010-01653-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Stella L. Hargrove

The Petitioner, Charles Montague, appeals from the dismissal of his petition for a writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

State of Tennessee v. Duantez Cornell Jenkins
M2009-00788-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Monte Watkins

Defendant, Duantez Cornell Jenkins, was indicted for possession, within a school zone, and with intent to sell or deliver twenty-six (26) grams or more of a substance containing cocaine. In the same indictment, Robert Lee Archibald, Jr. (Archibald), was indicted for the same offense, in addition to two other charges. All charges were the result of evidence seized pursuant to a search warrant. Defendant filed a motion to suppress all the evidence seized which forms the basis of the charges against him. The trial court entered an order granting the motion and dismissed the charges against defendant. The State appeals. Based upon the record and briefs of the parties, we affirm the judgment of the trial court.