APPELLATE COURT OPINIONS

A Shelby County Criminal Court jury convicted the appellant, Justin Mathis, of first degree premeditated murder, and the trial court sentenced him to life imprisonment. On appeal, the appellant claims that (1) the trial court erred by allowing an expert to testify about the appellant’s potential gang membership; (2) the trial court erred by allowing the State to introduce into evidence a picture of a gun stored in a witnesses’ cellular telephone; (3) the trial court erred by allowing into evidence a photograph of the victim’s heart; (4) the trial court erred by instructing the jury on criminal responsibility for the conduct of another; and (5) the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

The defendant, David Wayne Watkins, pled guilty to the offenses of theft over $1000, felony reckless endangerment, and felony failure to appear. As a result, he received a total effective sentence of eight years to be served consecutively to a prior sentence of six years he was already serving. On appeal, the defendant argues that the trial court erred in denying alternative sentencing and ordering confinement. Finding no error, we affirm the judgments of the trial court.

The defendant, Kellom Timbs, appeals as of right his conviction for reckless aggravated assault causing serious bodily injury, a Class D felony, imposed as a result of his jury trial in Franklin County Circuit Court. He received a sentence of two years as a Range I, standard offender to be served on probation upon the completion of eleven months and twenty-nine days in jail. He argues that there is insufficient proof to support his conviction, that the trial court erred in denying judicial diversion and that the trial court erred in not granting him full probation. Upon a full consideration of the record, we affirm the judgment of the trial court as modified.

In January 1998, a Davidson County grand jury indicted the petitioner, Robert Earl Johnson, on one count of first degree premeditated murder. In November 1998, following a jury trial in Davidson County Criminal Court, the petitioner was convicted on the sole count of the indictment and sentenced to life imprisonment without the possibility of parole. This court affirmed the conviction on appeal. See State v. Robert Earl Johnson, No. M2000-01647-CCA-R3-CD, 2001 WL 1180524 (Tenn. Crim. App. Oct. 8, 2001). In December 2002, the petitioner filed a pro se petition for post-conviction relief. Counsel was appointed in January 2003, and following another change in counsel, an amended petition was filed in December 2005. In July 2006, following an evidentiary hearing, the trial court denied the petition. The petitioner appeals, alleging that he received ineffective assistance of counsel and that his due process right to a fair trial was violated. After reviewing the record, we conclude that the trial court properly denied the petition and therefore affirm the judgment of the trial court.

Defendant, Tommy Ray Kitts, was convicted of two counts of theft of property between $1,000 and $10,000, a Class D felony. The trial court merged count two into count one and sentenced Defendant as a Range III, career offender, to twelve years. In his appeal, Defendant challenges the sufficiency of the convicting evidence. After a review of the record, we affirm the judgment of the trial court.

I write in dissent to express my opinion as to what the “record in the underlying proceeding” means.

The petitioner, Brian Roberson, appeals the Johnson County Criminal Court’s denial of his petition for habeas corpus relief from his guilty pleas to two counts of selling cocaine and one count of possession of cocaine. He contends that his judgments of conviction are void because his sentences are illegal. Upon review of the record and the parties’ briefs, we reverse the judgment of the habeas corpus court and remand this case to the Johnson County Criminal Court for the appointment of counsel and an evidentiary hearing.

The petitioner, Billy Ray Riley, was convicted by a jury in the Madison County Circuit Court of theft of property valued more than $1000 but less than $10,000, and he was sentenced as a Range III, persistent offender to twelve years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective by not thoroughly reviewing his file with him, by not convincing him to testify at trial, and by having a conflict of interest regarding the case. The post-conviction court found that counsel was not ineffective and denied the petition. On appeal, the petitioner contests the postconviction court’s ruling. Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The defendant was indicted for one count of aggravated rape and one count of aggravated kidnapping of his live-in girlfriend’s fourteen-year-old, mentally-challenged daughter. A jury convicted the defendant of both indicted offenses. The trial court sentenced the defendant to thirty-five years for the aggravated rape and eighteen years for the aggravated kidnapping to be served concurrently to each other, but consecutively to a previous sentence. On appeal, the defendant argues: (1) that the evidence was insufficient to sustain his convictions of aggravated rape and aggravated robbery; (2) that the trial court erred in allowing questions to jurors in voir dire regarding mental retardation; (3) that the trial court erred in allowing testimony regarding the victim’s I.Q. test scores and capabilities; (4) that the trial court erred in allowing testimony by a State witness regarding statements of the victim; (5) that the trial court erred in allowing testimony from a lay witness regarding recency and appearance of the injury to the victim; (6) that the trial court erred in determining that the victim was competent to testify; and (7) that the trial court erred in sentencing the defendant to an enhanced and consecutive sentence. After a thorough review of the record, we affirm the judgments of the trial court.

The Petitioner, Chris Grunder, was convicted of especially aggravated kidnapping, aggravated rape, aggravated assault, and theft of property over $500.00. He filed a petition for post-conviction relief alleging that he was not afforded the effective assistance of counsel at trial. This petition was denied by the post-conviction court. Upon a thorough review of the record and applicable law, we find no error and affirm the decision of the post-conviction court.

The defendant, Tommy Roscoe, was convicted of robbery, a Class C felony, and sentenced as a Range III, persistent offender to twelve years in the Department of Correction. He raises two issues on appeal: (1) whether a pretrial photographic identification procedure was impermissibly suggestive; and (2) the sufficiency of the evidence. Following our review, we affirm the judgment of the trial court.

The Appellant, Pamela A. Inghram, presents for review a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i). Inghram pled guilty to Class E felony possession of marijuana with intent to sell or deliver and received an eighteen-month sentence, which was suspended. As a condition of her guilty plea, she explicitly reserved a certified question of law challenging the denial of her motion to suppress evidence, specifically drugs and drug paraphernalia, found in her home. Inghram argues that the warrantless entry into her home by police in response to a burglar alarm call was without legal authority. After review, we conclude that exigent circumstances justified police entry and the subsequent seizure of the contraband, which was observed in plain view. Accordingly, we affirm the judgment of the Rutherford County Circuit Court denying the motion to suppress.

The defendant, Michael Rodiquez Payne, was convicted of aggravated robbery, sentenced to twelve years as a Range I, standard offender, and ordered to pay a fine of $10,000. He filed a timely appeal, arguing that: (1) the evidence was insufficient; (2) he should have received a lesser sentence; and (3) the indictment should have been dismissed because the State lost the audiotaped recording of the first preliminary hearing. Following our review, we affirm the judgment and sentence.

The Defendant, Benjamin Ashley Ray Dickens, was convicted of first degree felony murder. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction. After a thorough review of the record, we conclude that the evidence is sufficient to sustain the conviction, and we therefore affirm the judgment of the trial court.

The defendant was convicted of aggravated burglary, a Class C felony, by a Shelby County Criminal Court jury. He was sentenced to fifteen years as a Career Offender to be served in the Department of Correction consecutively to a prior conviction. In this appeal, he claims that the circumstantial proof of his guilt is insufficient to support his conviction. We disagree and affirm the judgment of the trial court.

The defendant, Lavon Lyn Nunnery, appeals from the judgment of the Rutherford County Circuit Court, revoking his probation and imposing service of eight months in confinement followed by two years of probation. In this appeal, the defendant argues that the state’s inclusion of waiver language in his probation order violates Tennessee statute and that the trial court erred in revoking his probation and ordering split confinement. Following our review of the record, parties’ briefs and the applicable law, we determine no error exists in the court’s revocation of probation, and thus affirm the court’s judgment.

A Davidson County jury convicted the Petitioner, Michael Braxton, of aggravated rape and aggravated assault, and he received an effective sentence of twenty-three years. The Petitioner filed a petition for post-conviction relief claiming that he had received the ineffective assistance of counsel at trial. The post-conviction court dismissed the petition after a hearing. The Petitioner appeals that dismissal. Finding no error, we affirm the judgment of the post-conviction court.

The Defendant, Victor Eugene Tyson, was convicted by a Davidson County jury of second degree murder, attempted first degree murder, and felony murder. On appeal, the Defendant alleges the evidence is insufficient to sustain his convictions. Finding no error, we affirm the judgments of the trial court.

The defendant, Felicia Ann Lowery, pled guilty to aggravated burglary, a Class C felony, and was sentenced as a Range I, standard offender to six years in the Department of Correction. On appeal, the defendant contends that the trial court erred in denying her alternative sentencing or probation. We affirm the judgment of the trial court.

The petitioner appeals the denial of habeas corpus relief by the Lake County Circuit Court from his imprisonment for three 1982 armed robbery convictions. On appeal, the petitioner claims that he was sentenced to serve concurrent twenty-five year sentences at thirty-five percent and that because he has served that percentage of the sentences, his sentences have expired. We hold that the trial court properly dismissed the petition and affirm its judgment.

The petitioner, Bobby Rayle, pled guilty to one count of child rape in the Hawkins County Criminal Court. Pursuant to the plea agreement, he received a sentence of fifteen years as a Range I, standard offender to be served at one hundred percent. The petitioner timely filed a petition for post-conviction relief alleging that his guilty plea was not voluntarily or knowingly made and that he was denied the effective assistance of counsel. After a full evidentiary hearing, the trial court denied relief. Following our review, we affirm the denial of post-conviction relief.

The defendant, James Kelley, was convicted of reckless driving, a Class B misdemeanor, at a bench trial in the Shelby County Criminal Court. He was given a six-month sentence, of which he was ordered to serve thirty days in the workhouse. He appeals, claiming the evidence is insufficient to support his conviction. We disagree and affirm the judgment of the trial court.

A Knox County Criminal Court jury convicted the defendant, Joshua Eugene Anderson, of eight offenses involving victims Sampson Jonathan McGhee (“McGhee”) and George England (“England”). The convictions were: (1) first degree premeditated murder of McGhee; (2) felony murder (robbery) of McGhee; (3) felony murder (theft) of McGhee; (4) attempted especially aggravated robbery (by violence) of McGhee; (5) attempted especially aggravated robbery (by putting in fear) of McGhee; (6) attempted first degree murder of England; (7) attempted aggravated robbery (by violence) of England; and (8) attempted aggravated robbery (by putting in fear) of England. The trial court properly merged certain offenses and sentenced the defendant to serve an effective 25-year sentence in the Department of Correction consecutively to the life-without-parole sentence imposed by the jury. The defendant appeals on several grounds, including whether the trial court erred in: (1) failing to suppress the evidence that resulted from the warrantless search of the defendant’s home; (2) failing to suppress the defendant’s statement to police; (3) denying defendant’s motion to dismiss when the State failed to preserve his entire statement; (4) failing to exclude the defendant’s recorded statement when the entire statement could not be entered into evidence; (5) denying a new trial due to prosecutorial misconduct; and (6) declining to answer the jury’s question regarding the consequences of not reaching a unanimous verdict at sentencing. We affirm the judgments of the trial court.

A Shelby County jury found the Appellant, Devin Banks, guilty of the first degree premeditated murder of Kadhem Al-Maily and the Class A felonies of criminal attempt to commit first degree murder and especially aggravated robbery of Hussain Atilebawi. Following the penalty phase hearing, the jury found the presence of two statutory aggravating circumstances and imposed the sentence of death. In a separate sentencing hearing, the trial court sentenced Banks to twenty-five years for each of the Class A felonies and ordered them to be served consecutively to one another and to the sentence of death. Banks now seeks review by this court of both his convictions and resulting sentences, presenting the following issues for review: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court erred in admitting a photograph of the surviving victim; (3) whether the trial court erred in admitting Banks’ statements absent a ruling on the motion to suppress; (4) whether the trial court erred in admitting hearsay statements made by the victim; (5) whether the trial court failed to properly certify the Arabic translator; (6) whether the trial court failed to properly instruct the jury as to lesser included offenses; (7) whether the indictment failed to charge a capital offense; (8) whether the victim impact jury instruction was coercive; (9) whether the closing argument by the prosecutor was improper; (10) whether the sentences for the non-capital offenses are excessive; (11) whether Tennessee’s death penalty statutes are constitutional; and (12) whether the death sentence in this case is disproportionate to death sentences in other cases. Following review, we affirm Banks’ convictions for first degree murder, criminal attempt to commit first degree murder, and especially aggravated robbery. His sentences for the Class A felony convictions are also affirmed. We further conclude that the evidence does not support application of the (i)(6) statutory aggravating circumstance.  and the sentence of death is affirmed.
 

In 2005, the petitioner pled guilty to second degree murder and conspiracy to commit first degree murder and received an effective sentence of fifty years. Subsequently, he filed a timely pro se petition for post-conviction relief, alleging that his plea of guilty to the latter offense was unknowing and involuntary and that counsel who had represented him at the time of the plea was ineffective. Following an evidentiary hearing, the post-conviction court dismissed the petition and this appeal followed. We affirm the dismissal.