Court of Criminal Appeals Opinions

Format: 01/16/2022
Format: 01/16/2022
State of Tennessee v. Darnell Treshawn Wiggins
M2019-02086-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Stella L. Hargrove

A Maury County jury convicted the defendant, Darnell Treshawn Wiggins1, of second degree murder, first degree felony murder, and kidnapping, for which he received an effective sentence of life imprisonment without the possibility of parole. On appeal, the defendant argues the evidence presented at trial was insufficient to support his convictions, the jury improperly weighed the aggravating and mitigating circumstances, and the State committed prosecutorial misconduct during its opening statement. The defendant also argues the trial court erred in admitting Officer Dalton’s testimony during the penalty phase, in denying his motion for mistrial, and in denying his motion to dismiss for lack of a speedy trial. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Maury County Court of Criminal Appeals 08/27/21
State of Tennessee v. Keontis Dontrell Cunningham
M2020-00874-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge M. Wyatt Burk

A Bedford County jury convicted the defendant, Keontis Dontrell Cunningham, of two counts of aggravated assault, and the trial court imposed an effective sentence of five years’ incarceration. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and argues the trial court erred in instructing the jury on selfdefense.  Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 08/27/21
State of Tennessee v. Demetrious Tommy Lee
M2020-00914-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jennifer L. Smith
In 2018, a Davidson County Grand Jury indicted the Defendant, Demetrious Tommy Lee, for attempted first degree murder, aggravated kidnapping, reckless endangerment, evading arrest while operating a motor vehicle, and domestic assault. In 2019, a superseding indictment was returned, elevating the Defendant’s kidnapping charge to especially aggravated kidnapping and adding a charge for employment of a firearm during the commission of or attempt to commit a dangerous felony but keeping all other charges the same. One week prior to trial, the Defendant filed a motion for a continuance, which the trial court denied following a hearing. At trial, the jury found the Defendant guilty of the lesser included offense of attempted second degree murder as well as the charged offenses of especially aggravated kidnapping and employment of a firearm but found the Defendant not guilty of evading arrest. The charges of reckless endangerment and domestic assault were dismissed. Thereafter, the trial court imposed an effective eighteen-year sentence to be served at 100% for these convictions. On appeal, the Defendant argues: (1) the trial court erred in denying his motion to continue his trial after the State superseded the indictment and presented him with additional discovery shortly before trial; (2) the trial court erred in denying his motion to exclude evidence that violated State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (3) the trial court committed plain error in not requiring the State to make an election of offenses with regard to the especially aggravated kidnapping count; and (4) the evidence is insufficient to sustain his convictions for attempted second degree murder and especially aggravated kidnapping. We affirm the judgments of the trial court.
 
Davidson County Court of Criminal Appeals 08/27/21
State of Tennessee v. Jody Alan Hughes
E2019-01185-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Sandra Donaghy

The Appellant, Jody Alan Hughes, was convicted in the Bradley County Criminal Court of first degree premeditated murder; kidnapping, a Class C felony; tampering with evidence, a Class C felony; and conspiracy to commit tampering with evidence, a Class D felony. After a sentencing hearing, he received an effective sentence of life plus fourteen years. On appeal, the Appellant contends that (1) the evidence is insufficient to support the convictions; (2) the trial court erred by denying his “numerous” requests to represent himself; (3) the trial court erred by not allowing defense counsel to comment about the codefendants’ exposure to prison sentences during counsel’s opening statement; (4) the trial court erred in its wording of a curative instruction to the jury; (5) the trial court erred by limiting a codefendant’s cross-examination about a false statement the codefendant made in a previous criminal case; (6) the trial court erred by limiting a detective’s testimony regarding the codefendants’ inconsistent statements; and (7) the trial court erred by not allowing testimony about a codefendant’s pretrial statement to impeach the codefendant. Based upon the oral arguments, the record, and the parties’ briefs, we find no reversible error and affirm the judgments of the trial court.

Bradley County Court of Criminal Appeals 08/27/21
State of Tennessee v. David Yost, Jr.
E2020-01115-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven W. Sword

The pro se petitioner, David Yost, Jr., appeals the Knox County Criminal Court’s summary dismissal of his motion to correct an illegal sentence, filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 08/26/21
State of Tennessee v. James McClain
W2019-01217-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Kyle Atkins

The defendant, James McClain, appeals his Madison County Circuit Court jury convictions of aggravated assault and witness coercion, claiming that the trial court erred by permitting him to represent himself at trial, by permitting the State to proceed on an amended indictment, and by imposing consecutive sentences. Because the record establishes that the defendant knowingly, voluntarily, and intelligently waived his right to counsel, that the indictment was not amended, and that the trial court did not abuse its discretion by imposing consecutive sentences, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 08/26/21
James Black v. State of Tennessee
E2020-01008-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Alex E. Pearson

The Petitioner, James Black, was convicted of two counts each of first-degree premeditated murder and first-degree felony murder and was sentenced to a concurrent life sentence by the trial court. On appeal, the Petitioner argues that he received ineffective assistance of counsel stemming from trial counsel’s legal use of prescribed opioids during his trial, specifically asserting that 1) the prescribed opioids caused him to perform deficiently at trial; 2) that trial counsel’s offering of the Petitioner’s criminal history tainted the jury; and 3) that trial counsel’s use of prescribed opioids combined with his severe back pain created a conflict of interest. After review, we affirm the post-conviction court’s judgment.

Greene County Court of Criminal Appeals 08/25/21
Zachary Gale Rattler v. State of Tennessee
E2020-01533-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James L. Gass

The Petitioner, Zachary Gale Rattler, appeals the denial of his petition for post-conviction relief, arguing that he was deprived of a fair and impartial jury and received ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Sevier County Court of Criminal Appeals 08/24/21
State of Tennessee v. Devin L. Legon
M2020-00866-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Stella L. Hargrove
The Defendant, Devin L. Legon, pleaded guilty to conspiracy to commit theft of property valued over $60,000, aggravated burglary, and theft of property valued over $60,000. He agreed to pay $60,000 in restitution and to serve an effective ten-year sentence on probation. A revocation warrant was issued, and following a hearing, the trial court revoked the Defendant’s probation and ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the trial court abused its discretion by ordering him to serve his sentence in confinement. Following our review, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.
 
Giles County Court of Criminal Appeals 08/23/21
State of Tennessee v. Kavasia S. Bonds and Charles Allen Jones
M2020-00323-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Angelita Blackshear Dalton

Defendants, Kavasia S. Bonds and Charles Allen Jones, along with a co-defendant Brian Davis, were indicted by the Davidson County Grand Jury for aggravated assault while acting in concert with two or more other persons. Following a jury trial, Defendants Bonds and Jones were convicted as charged, and the jury was unable to reach a unanimous verdict as to Defendant Davis. For their convictions, Defendant Bonds was sentenced to 16 years’ incarceration, and Defendant Jones was sentenced to 14 years. In this appeal as of right, Defendants Bonds and Jones both challenge the sufficiency of the convicting evidence. Defendant Bonds also asserts that the trial court erred by admitting into evidence a photograph of the victim’s eye and that the prosecutor improperly commented on Defendant Bonds’ silence at trial during closing arguments. Having reviewed the entire record and the briefs of the parties, we find no error and affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/23/21
State of Tennessee v. Frank Layman Glavin
M2020-01125-CCA-R3-CO
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge M. Wyatt Burk
Petitioner, Frank Layman Glavin, appeals the denial of his petition to expunge his evading arrest conviction claiming that the trial court misapplied the expunction statute. See T.C.A.§ 40-32-101(k)(Supp. 2020). We conclude that Petitioner does not meet the plain language requirements of section 40-32-101(k) of the Tennessee Code, and accordingly affirm the trial court’s order.
 
Bedford County Court of Criminal Appeals 08/20/21
Karla Chase v. Ober Gatlinburg, Inc.
E2020-00649-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Rex Henry Ogle

This action arises from a snowboarding accident at Defendant Ober Gatlinburg’s ski resort. Plaintiff Karla Chase, attempting to avoid a collision with another skier, crashed face-first into a 4x4 post supporting a warning fence marking the edge of the slope’s navigable terrain. She alleged that Defendant negligently created an unreasonably dangerous condition by not using rounded and/or padded fence posts. The jury returned a verdict finding Defendant not at fault. After returning the verdict form, one of the jurors requested and was allowed to read a statement saying, “we find the defendant not guilty. We, the jury, are in one accord that Ober and the ski industry should look into using materials for posts with rounded corners or more padding.” Plaintiff filed a motion for new trial, but died before the hearing and the trial court’s ruling denying the motion. Plaintiff’s counsel filed a notice of appeal in the deceased Plaintiff’s name. We hold that Plaintiff’s personal representative may be substituted for her on appeal pursuant to Tenn. R. App. P. 19(a) even though no motion for substitution was made, because Defendant did not request the trial court to dismiss the action pursuant to Tenn. R. Civ. P. 25.01. We affirm the trial court’s judgment approving the jury verdict in favor of Defendant.

Sevier County Court of Criminal Appeals 08/20/21
State of Tennessee v. Gabriel Storm Davis
M2020-00431-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge M. Wyatt Burk

Defendant, Gabriel Storm Davis, was convicted by a jury of one count of aggravated child abuse and one count of aggravated child neglect.  The trial court imposed an effective twenty-two-year sentence, as a Range I standard offender, to be served at 100 percent, by operation of law, in the Department of Correction.  On appeal, Defendant argues: that the evidence was insufficient to support his convictions; that the State’s election of offenses was insufficient to ensure a unanimous verdict; and that the trial court erred by admitting the victim’s forensic interview into evidence.  Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 08/20/21
Jarus Smith v. State of Tennessee
M2020-00816-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James G. Martin III

The Petitioner, Jarus Smith, appeals as of right from the Hickman County Circuit Court’s denial of his petition for post-conviction relief, wherein he challenged his convictions for facilitation of attempted second degree murder, possession of contraband in a penal institution, and two counts of aggravated assault. On appeal, the Petitioner asserts that (1) he did not knowingly and intelligently waive his constitutional right to a twelve-person jury, and (2) he received the ineffective assistance of trial counsel relative to counsel’s advice about proceeding with an eleven-person jury. Following our review, we affirm the judgment of the post-conviction court.

Hickman County Court of Criminal Appeals 08/19/21
Lemaricus Davidson v. State of Tennessee
E2019-00541-CCA-R3-PD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Walter C. Kurtz

The Petitioner, Lemaricus Davidson, was convicted in the Knox County Criminal Court of numerous offenses against the two victims, Christopher Newsom and Channon Christian, including multiple counts of first degree felony and premeditated murder, and the jury imposed sentences of death for each murder conviction. After this court and our supreme court affirmed the Petitioner’s convictions and sentences, he filed post-conviction and coram nobis petitions, seeking relief from those first degree murder convictions and death sentences. The post-conviction court found that trial counsel were deficient for not requesting a change of venue but that no prejudice resulted from trial counsel’s deficient performance and denied relief. The coram nobis court also denied relief. In this consolidated appeal, the Petitioner raises various issues, including that the post-conviction court erred by denying his request for expert services; that the post-conviction court erred by determining that a codefendant’s anticipated testimony at another codefendant’s upcoming trial was not relevant to the Petitioner’s claim for post-conviction relief; that trial counsel were ineffective because they failed to request an out-of-county jury, improperly handled voir dire, and failed to raise certain issues on direct appeal of his convictions; and that he is entitled to coram nobis relief because a codefendant’s new testimony may have led to a different verdict as to the first degree premeditated murders of the victims. Based upon our review of the oral arguments, the record, and the parties’ briefs, we conclude that the post-conviction court erroneously determined that a codefendant’s anticipated testimony at another codefendant’s upcoming trial was not relevant to the Petitioner’s claim for post-conviction relief because the testimony would have invalidated one of the four aggravating circumstances found by the jury to impose the Petitioner’s death sentence for Mr. Newsom. However, we also conclude that the error was harmless beyond a reasonable doubt. We agree with the post-conviction court that trial counsel were deficient for not requesting a change of venue and that the Petitioner has failed to demonstrate he was prejudiced by trial counsel’s deficient performance. Therefore, we affirm the denials of post-conviction and coram nobis relief.

Knox County Court of Criminal Appeals 08/19/21
Donald Jones v. State of Tennessee
W2020-00421-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Donald Jones, was found guilty by a jury of first degree felony murder and especially aggravated burglary, and he received an effective sentence of life imprisonment plus thirty years. After this court affirmed the Petitioner’s convictions on direct appeal, he filed a petition for post-conviction relief contending that he received ineffective assistance of counsel when his counsel failed to locate and interview an alibi witness and failed to request an instruction on accomplice testimony. Following a hearing, the post-conviction court denied the petition. After review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/18/21
State of Tennessee v. Elvin Portillo
M2020-01179-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl A. Blackburn

Defendant, Elvin Portillo, entered into an agreement whereby he pled guilty to vehicular homicide by intoxication, leaving the scene of an accident with death and reckless endangerment.  Four remaining counts were dismissed.  In accordance with the plea agreement, the trial court held a sentencing hearing to determine the length and service manner of Defendant’s sentences.  After a sentencing hearing, Defendant received an effective sentence of 16 years.  In this appeal, Defendant asserts that the trial court erred in ordering consecutive sentencing.  Having reviewed the entire record and the briefs of the parties, we find no abuse of discretion and affirm the judgments of the trial court.  However, because the record does not contain judgment forms for the remaining counts, if these judgments do not exist, we remand to the trial court for entry of judgment forms to reflect dismissal of those counts. 

Davidson County Court of Criminal Appeals 08/18/21
Darryl Robinson v. State of Tennessee
W2020-00942-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Glenn Ivy Wright

The Petitioner, Darryl Robinson, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief, wherein he challenged his convictions for aggravated robbery and possession of a handgun by a convicted felon. See Tenn. Code Ann. §§ 39-13-402, -17-1307(c)(1). On appeal, the Petitioner submits that he received the ineffective assistance of counsel due to (1) trial counsel’s failure to object to and preserve for appeal references by a witness identifying the Petitioner at trial by his prejudicial nickname “Trigger Man”; and (2) trial counsel’s failure to object during closing argument to the State’s use of a “pink elephant” analogy, as well as the failure to preserve the issue in the motion for new trial. In addition, the Petitioner raises a stand-alone allegation of prosecutorial misconduct based upon the State’s closing argument. Having reviewed the entire record and the briefs of the parties, we are constrained to agree with the Petitioner that the post-conviction court failed to make sufficient findings of fact and conclusions of law to enable appellate review of all his claims. Accordingly, we reverse the judgment of the post-conviction court and remand this case for proceedings consistent with this opinion

Shelby County Court of Criminal Appeals 08/18/21
State of Tennessee v. James Durand Favors, III
E2020-01166-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Thomas C. Greenholtz

The Defendant-Appellant, James Durand Favors, was charged by information with four counts of aggravated domestic assault. He entered open guilty to pleas to all four counts. Following a sentencing hearing, the trial court sentenced the Defendant as a Range I, standard offender to a total effect sentence of fifteen years’ incarceration to run consecutively to his sentence in two prior cases. The sole issue raised on appeal is whether the trial court abused its discretion in denying the Defendant alternative sentencing. Upon review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 08/17/21
State of Tennessee v. William Darnell Richardson
M2020-00286-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Stella Hargrove

The defendant, William Darnell Richardson, appeals his Lawrence County Circuit Court jury convictions of possession of 0.5 grams or more of a Schedule II controlled substance with intent to sell, simple possession of a Schedule IV controlled substance, possession of drug paraphernalia, and driving on a revoked or suspended license, arguing that he is entitled to plain error relief for inappropriate and prejudicial statements made by the prosecutor during closing arguments, that the trial court erred by admitting evidence contravening the rules of hearsay, and that the evidence was insufficient to support his conviction of possession of 0.5 grams or more of methamphetamine with intent to sell.  Because the trial court erred by admitting certain hearsay evidence, we reverse the defendant’s conviction for simple possession of Alprazolam and remand for a new trial on that charge.  Because the evidence was insufficient to sustain the defendant’s conviction of driving on a revoked or suspended license, we vacate that conviction and dismiss that charge.  We affirm the defendant’s conviction of possession of methamphetamine with intent to sell and find no plain error in the prosecutor’s closing argument.

Lawrence County Court of Criminal Appeals 08/17/21
In Re Payton G. Et Al.
E2020-00992-COA-R3-PT
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Judge Robert D. Philyaw

The mother of two minor children appeals the termination of her parental rights. The trial court terminated the mother’s parental rights upon finding that the Department of Children’s Services established three grounds for termination: (1) abandonment prior to incarceration that exhibits wanton disregard for the welfare of the children; (2) substantial noncompliance with a permanency plan; and (3) failure to manifest an ability or willingness to assume custody, and that termination was in the best interest of the children. This appeal followed. We affirm.

Hamilton County Court of Criminal Appeals 08/16/21
State of Tennessee v. Caleb Josiah Cannon
M2019-01629-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted the Defendant, Caleb Josiah Cannon, of premeditated firstdegree murder, and the trial court sentenced him to life in prison. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion in limine to exclude evidence that a human remains detection dog alerted to the presence of the scent of human remains in the Defendant’s home and car; (2) the evidence is insufficient to prove that the victim was deceased or that the Defendant caused her death; (3) the trial court erred when it admitted testimony from a witness identifying him in court because such testimony was tainted; and (4) the trial court erred when it excluded defense proof. After review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/16/21
State of Tennessee v. Stephen Maurice Mobley
E2020-00234-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Barry A. Steelman

Following a jury trial, the Defendant, Stephen Maurice Mobley, was convicted of two counts of first degree premeditated murder and one count each of attempted first degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony. The trial court merged the attempted first degree murder and aggravated assault convictions and imposed an effective sentence of life imprisonment plus twenty-six years. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions; (2) the trial court improperly denied the Defendant’s challenge to the State’s striking a prospective juror as violating Batson v. Kentucky, 476 U.S. 79 (1986); (3) a juror failed to disclose her prior knowledge of the Defendant during voir dire and provided extraneous information to other jurors in violation of the Defendant’s right to a fair trial; (4) the trial court erred in admitting hearsay statements under the excited utterance hearsay exception; and (5) the trial court improperly admitted evidence that the Defendant had been placed on a most wanted list by law enforcement prior to his arrest. We remand the case to the trial court for a hearing as to whether the State struck a potential juror in violation of Batson. We conclude that none of the other issues raised by the Defendant warrant relief.

Hamilton County Court of Criminal Appeals 08/16/21
State of Tennessee v. John Gross
M2020-01143-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jennifer Smith

The Defendant, John Gross, was convicted after a bench trial in the Davidson County Criminal Court of violation of an order of protection, a Class A misdemeanor, and aggravated stalking, a Class E felony. See T.C.A. §§ 39-13-113 (2018) (subsequently amended) (violation of an order of protection), 39-17-315 (Supp. 2017) (subsequently amended) (aggravated stalking). The trial court sentenced the Defendant to an effective sentence of two years, eleven months, twenty-nine days’ incarceration. On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that plain error exists because the trial court admitted as evidence the recordings of the Defendant’s phone calls to the victim. We affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/12/21
Wesley H. Luthringer v. State of Tennessee
M2020-00503-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The petitioner, Wesley H. Luthringer, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of aggravated vehicular homicide, alleging that the trial court erred by denying his motion for new counsel and that he was deprived of the effective assistance of trial counsel.  Discerning no error, we affirm the denial of post-conviction relief.

Bedford County Court of Criminal Appeals 08/09/21