COURT OF CRIMINAL APPEALS OPINIONS

State vs. Shannon Hagewood
M2000-00972-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Allen W. Wallace
On November 16, 1999, Shannon Hagewood, the defendant and appellant, pled guilty to three counts of aggravated burglary in a Dickson County Criminal Court. Following a sentencing hearing, the trial court sentenced the defendant as a multiple, Range II offender to six years for the first count, six years for the second count, and eight years for the third count. The court also ordered the defendant to serve the eight-year sentence consecutively to the two six-year sentences, which were to be served concurrently to each other. On appeal, the defendant claims (1) that he did not receive notice, as required by statute, that he would be sentenced as a multiple offender, (2) that the trial court's imposition of an eight-year sentence was erroneous; and (3) that the trial court's imposition of consecutive sentences was erroneous. After a thorough review of the record, we find that, although the trial court did not place its findings in the record, this court's de novo review supports the sentence imposed. Accordingly, we affirm the judgment of the trial court.

State vs. Michael E. Wallace
M1999-02187-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Steve R. Dozier
On August 25, 1998, a Davidson County Grand Jury indicted Michael E. Wallace, the defendant and appellant, of one count each of the following: possession of cocaine with intent to sell more than .5 grams of cocaine, simple possession of marijuana, possession of a weapon, possession of drug paraphernalia and evading arrest. Following a jury trial, the defendant was convicted for possession with intent to sell less than .5 grams of cocaine, a lesser included offense of count one. The defendant was also convicted of all other counts as charged. After a sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender, to serve ten years for possession of cocaine with intent to sell consecutively to two years for possession of a weapon. For the remaining counts, the court ordered the defendant to serve two eleven month and twenty-nine day sentences concurrently to each other and the other counts. On appeal, the defendant claims (1) that the evidence was insufficient to support his conviction; (2) that the trial court erroneously allowed a police officer to offer expert opinion testimony; (3) that the trial court erroneously denied the defendant's motion for a mistrial after a witness testified to prior bad acts of the defendant; (4) that the court erroneously refused to instruct the jury to consider lesser-included offenses; and (5) that the court erroneously ordered consecutive sentences. After a thorough review of the record, we affirm the judgment of the trial court.

State vs. Anthony E. Collier
M1999-01408-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Seth W. Norman
On March 31, 1998, Metropolitan Nashville Police Officers executed a search warrant on the residence and person of Anthony E. Collier, the defendant and appellee. Police searched the defendant, his vehicle and his residence and seized drugs, drug paraphernalia and weapons. The defendant moved to suppress the evidence, and, following a suppression hearing, the trial court granted the defendant's motion. On appeal, the State claims that the trial court erred. We hold that the search of the defendant was not supported by probable cause and any evidence seized from the defendant's person was thus properly suppressed. However, we also find that the failure of the trial court to make findings of fact with respect to the question of whether the contraband was in plain view and thus subject to seizure requires us to remand this case for entry of such findings pursuant to Tenn. R. Crim. P. 12(e). Finally, the search of the defendant's residence was supported by the warrant; thus any evidence seized from the defendant's vehicle or residence should not have been suppressed. Accordingly, we reverse in part and affirm in part the judgment of the trial court, and we remand the case to the trial court for further proceedings in accordance with this opinion.

State vs. Christopher Karvey
M1999-02590-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Seth W. Norman
The defendant entered a plea of guilty to DUI, and attempted to reserve a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i). The defendant contends that the stop of his vehicle by police was illegal and that all evidence obtained as a result thereof must be suppressed. Because the defendant failed to properly reserve the certified question, the appeal is dismissed.

State vs. Ronald Jerome Butler
M1999-01034-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Seth W. Norman
Ronald Jerome Butler was convicted by a jury in the Davidson County Criminal Court of one count of aggravated kidnapping and one count of aggravated robbery, both class B felonies. For the offense of aggravated kidnapping, the trial court sentenced the appellant as a Range I offender to ten years incarceration in the Tennessee Department of Correction, requiring him to serve one hundred percent of his sentence in confinement. For the offense of aggravated robbery, the trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction, requiring him to serve thirty percent of his sentence in confinement. The trial court further ordered that the sentences be served consecutively. On appeal, the appellant raises the following issues for review: (1) whether his conviction of aggravated kidnapping violates principles of due process; and (2) whether the trial court erred in sentencing him. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

State vs. Letivias Prince
M1998-00005-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Donald P. Harris
The defendant, Letivias Prince, was convicted of first degree murder and was sentenced to life imprisonment. On appeal, the defendant argues that the jury pool did not adequately represent the racial makeup of the community; that pre-trial publicity deprived him of a fair trial; that the trial court erred by permitting eight peremptory challenges in jury selection; that the trial court erred by allowing the state to either call a rebuttal witness or receive a missing witness instruction; that the trial court erred by instructing the jury regarding the order of consideration of offenses; and that the evidence was insufficient to sustain his conviction. The judgment of the trial court is affirmed.

State vs. Cecil L. Groomes, et al
M1998-00122-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Donald P. Harris
The defendants were convicted in Williamson County of especially aggravated robbery from an incident occurring at the Cool Springs Mall. Defendant Akins was sentenced to twenty years and fined $1,000, while defendant Groomes was sentenced to twenty-two years and fined $4,000. Both timely appealed, raising as issues whether Akins should have been transferred from juvenile court and tried as an adult, whether the prosecutor improperly excused a potential juror and made prejudicial statements in closing argument, whether the court properly instructed the jury, whether the evidence was sufficient, whether the victim's family and friends had improper contact with the jurors, and whether the defendants received appropriate sentences. Based upon our review, we affirm the judgments of the trial court.

Jerry Hardcastle v. State of Tennessee
M1999-00598-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Jane W. Wheatcraft

State vs. Frederick Gonzalez
M1999-00165-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Henry Denmark Bell
The Defendant appeals as of right from his conviction of simple possession of cocaine. He argues that the trial court erred in failing to suppress the evidence used to convict him because the evidence was the fruit of an unlawful seizure. We agree; accordingly, we reverse the Defendant's conviction and dismiss the case against him.

State vs. Anthony David Tapp
M1999-00414-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: James K. Clayton, Jr.
The defendant, Anthony David Tapp, was convicted of vehicular homicide as a result of intoxication. The trial court imposed a Range I sentence of 10 years. In this appeal of right, the defendant contends that the trial court erred by allowing into evidence pretrial statements which had been made by him but which had not been provided by the state in advance of the trial. The judgment is affirmed. Instructions by the defendant to witnesses of an accident not to speak to police did not qualify as discoverable material within the terms of Rule 16 of the Tennessee Rules of Criminal Procedure. In consequence, the defendant is not entitled to a new trial.

State vs. David B. Gardner
M1999-02337-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: John H. Gasaway, III
The Defendant was indicted for seven counts of forgery. He was subsequently tried by a Robertson County jury and found guilty of all counts, and the trial court sentenced him as a career offender to an effective sentence of twenty-four years. In this appeal as of right, the Defendant argues that the trial court erred by concluding that the evidence establishing venue was sufficient to support his convictions and by sentencing him improperly. We hold that the State carried its burden of proving venue by a preponderance of the evidence and that the trial court properly sentenced the Defendant. Accordingly, we affirm the conviction.

State vs. James Ellison Rouse
M1999-01807-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Jim Travis Hamilton
The defendant was convicted of two counts of first degree murder and two counts of attempted first degree murder as the result of a shooting spree at Richland High School. The defendant, then seventeen, was tried and convicted as an adult, and sentenced to two consecutive life without the possibility of parole terms plus fifty years. The additional fifty-year term is modified to forty-two years. We affirm the two consecutive life without the possibility of parole terms holding that if a jury unanimously finds the existence of at least one aggravating circumstance beyond a reasonable doubt, then in its considered discretion, the jury may sentence the defendant to either life imprisonment or life without the possibility of parole absent a showing of "gross abuse of discretion."

Tommy Ray Warren vs. State
M1999-1319-CCA-R3-PC
Trial Court Judge: Jim T. Hamilton
On April 12, 1993, the petitioner, Tommy Ray Warren, pled guilty in the Wayne County Circuit Court to two counts of first degree murder. The trial court imposed a life sentence for each count of murder and further ordered consecutive service of the life sentences. The petitioner subsequently filed a petition for post-conviction relief, alleging that his guilty pleas were not knowing and voluntary because he was not aware that his possible mental retardation could render him ineligible for the death penalty. The petitioner also alleged that trial counsel's failure to pursue a mental retardation hearing constituted ineffective assistance of counsel. The post-conviction court dismissed the petition, finding that the petitioner's pleas were knowing and voluntary and that the petitioner had received effective assistance of counsel. The petitioner now appeals the court's denial of relief. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

State vs. Kevin Washington
W2000-02736-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
The Appellant, Kevin Washington, appeals from the dismissal of his petition for post-conviction relief by the Madison County Circuit Court. On appeal, the Appellant contends that trial counsel never informed him that his "packaged" plea agreement included a plea of guilty to Class C theft of property and, therefore, his plea was involuntarily entered. We find this contention without merit. The judgment of the post-conviction court is affirmed pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

State of Tennessee v. Ricky Raymond Bryan
M1999-00854-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James K. Clayton, Jr.

The defendant, facing a third trial for first degree murder, has filed this interlocutory appeal. The defendant alleges that the trial court erred in disqualifying his counsel because of an appearance of impropriety. We affirm.

State of Tennessee v. Sherman Dunlap
M1999-00325-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John W. Rollins

Sherman Dunlap appeals his sentence after pleading guilty in the Coffee County Circuit Court to facilitation of theft over $10,000, a class D felony. The trial court sentenced the appellant, as a Range II multiple offender, to four years incarceration in the Tennessee Department of Correction, requiring the appellant to serve one year of his sentence in continuous confinement. On appeal, the appellant presents the following issue for review: whether the trial court erred in denying him full probation or, in the alternative, in denying him an opportunity to serve his sentence in periodic confinement. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Sherman Dunlap - Concurring
M1999-00325-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: John W. Rollins

While I concur fully in the judgment of the Court denying the appellant full probation, I do so because the record reflects the appellant has received probation for a number of previous offenses, but has yet to be rehabilitated. Thus, “measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the [appellant].” See Tenn. Code Ann. §§ 40-35-103(c).  This reason alone amply justifies the denial of probation in this case.

State of Tennessee vs. David Lee and Treva Lee
M1999-02471-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Leonard W. Martin

In this appeal, defendants challenge the sufficiency of the convicting evidence. The defendants were convicted by a Dickson County jury of criminal trespass and fined $50. Upon a review of the record, we find the evidence is sufficient to sustain the convictions. Thus, the judgment of the trial court is affirmed.

State of Tennessee v. Kenneth D. Melton
M1999-01248-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jane W. Wheatcraft

The appellant, Kenneth D. Melton, was convicted by a jury in the Sumner County Criminal Court of disorderly conduct, a class C misdemeanor. The trial court imposed a sentence of thirty days incarceration in the Sumner County Jail. The court then suspended all but five days of the appellant's sentence, placing the appellant on unsupervised probation for the remainder. On appeal, the appellant presents the following issues: (1) whether the indictment provided adequate notice to the appellant of the charged offense; and (2) whether the evidence adduced at trial supports his conviction of disorderly conduct. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee vs. James A. Shively
M1999-01072-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Henry Denmark Bell

Having pled guilty to various counts of aggravated burglary, robbery, auto theft, and theft, the defendant appeals from his sentences. He argues that the trial court improperly imposed consecutive sentences and that his effective twelve-year sentence is therefore excessive. After a de novo review, we affirm the sentences as imposed.

State of Tennessee v. Aaron McFarland - Concurring
W1999-01410-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Arthur T. Bennett

The majority finds the defendant's suppression issue non meritorious under Fifth Amendment analysis. While I do not disagree with the analysis, I believe the factual scenario presented requires review under Sixth Amendment analysis. At both the suppression hearing and at trial, the interviewing officer testified that the defendant "had been arrested the night before by uniformed officers and was in juvenile court." The defendant was interviewed the following morning around 11:00 a.m., after the officer "checked him out of juvenile court" and transported him to the police department's homicide division. I can only assume from these facts that, at the time of the police questioning, the defendant had been charged with the homicide of Terrell Deon Bullard. If this assumption is correct, then adversarial proceedings had been initiated and the defendant's Sixth Amendment, rather than his Fifth Amendment right to counsel, had attached.

State of Tennessee v. Aaron McFarland
W1999-01410-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Arthur T. Bennett

The defendant was convicted of first degree murder and sentenced to life with the possibility of parole. On appeal, he has presented as issues that the trial court should have suppressed his confession and that the evidence was insufficient to sustain his conviction. Based upon our review, we affirm the judgment of the trial court.

State of Tennessee v. Kelly Anne Newmon
W1999-01497-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee Moore

This appeal arises from a guilty verdict returned by a Carroll County jury against the defendant for two counts of delivering less than 0.5 grams of cocaine. On appeal, the defendant challenges her convictions on the basis that the introduction of evidence bolstering the informant's testimony was plain error, and the evidence was not sufficient to support the verdict. After a careful review of the record, we affirm the judgment of the trial court.

Steve Barker v. State of Tennessee
W1999-00544-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Steven Stafford

Petitioner appeals the denial of his petition for post-conviction relief. Prior to entering a guilty plea in the instant case, the petitioner had been sentenced to twelve years for other state convictions and a consecutive 105 months on federal charges. Petitioner entered a plea of guilty to the current charges, which included six counts of theft over $1,000 and one count of burglary, Class D felonies, and nineteen counts of aggravated burglary, Class C felonies. Pursuant to a negotiated agreement, the petitioner received an effective sentence of eighteen years as a Range I, standard offender. The agreement provided that this sentence would be served concurrently with both his prior state and federal sentences. The petitioner now claims that, but for counsel's ineffective assistance, he would not have pled guilty. Following a review of the record, we find trial counsel was not ineffective and affirm the judgment of the trial court.

State of Tennessee v. Patricia Merriweather
W1999-01711-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant pled guilty in 1990 to thirty-two Class A misdemeanors, consisting of violations of the bad check law, and was placed on probation. During the probationary period, which was scheduled to end in 1994, the defendant was to pay restitution and costs. Shortly before the probationary period ended, the defendant signed an agreement, presented by her probation officer, extending indefinitely the probation so that restitution and costs could be paid. The trial court approved this extension. Probation violation reports were filed in 1997 and 1999, the court revoking the probation in 1999. The defendant timely appealed, arguing that the trial court was without authority to extend the probationary period without a hearing and to extend the period indefinitely. Based upon our review, we conclude that the defendant's probationary period ended in 1994, and we reverse the judgment of the trial court.