APPELLATE COURT OPINIONS

The petitioner, Jack Jay Shuttle, appeals the Sullivan County post-conviction court's denial of his petition to compel testing of evidence pursuant to the Post-Conviction DNA Analysis Act. Upon review of the record and the applicable law, we reverse the judgment of the post-conviction court.

The appellant, Floyd “Butch” Webb, was convicted by a Rhea County jury of one count of aggravated sexual battery, a Class B felony; two counts of sexual battery, Class E felonies; and four counts of child abuse, Class A misdemeanors. Following a sentencing hearing, the trial court imposed a total effective sentence of twelve years to be served in the Tennessee Department of Correction. On appeal, the appellant contends that (1) the trial court erred by admitting evidence of a fresh complaint by a child victim; (2) the trial court erred by allowing a witness to testify about medical records of which she was not the custodian; and (3) the sentence imposed by the trial court was excessive. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.

I concur in the results reached and most of the reasoning used in the majority opinion. However, I respectfully disagree with its views regarding Kathy Spada’s testimony resulting from her review of the victim’s purported medical records. I believe that her testimony regarding her review of the records, the basic contents of the records, and her “opinion” based upon her review of the records should have been excluded from the evidence. As the majority opinion notes, the records in question are not part of the record on appeal. The state’s comments at trial and Ms. Spada’s testimony indicate that the records were ostensibly regarding a physical examination of the victim when she was three years old. The parties stipulated that the records were from either a Dayton doctor or hospital with whom Ms. Spada was not affiliated and for whom she was not a proper custodian of the records.

The defendant, Timothy P. Wilmoth, pled guilty to possession of less than .5 grams of cocaine and misdemeanor evading arrest. The trial court imposed concurrent sentences of six years and eleven months, twenty-nine days, respectively. All but thirty days was suspended. Later, the defendant's probation was revoked and he was ordered to serve the sentence in the Department of Correction. In this appeal as of right, the defendant concedes a violation of the terms of his probation, but asserts that he should have been returned to probation or placed on community corrections. The judgment of the trial court is affirmed.

The defendant was convicted by a Henderson County Circuit Court jury in consolidated cases of aggravated robbery, a Class B felony, and especially aggravated robbery, a Class A felony. He was sentenced by the trial court as a Range I, standard offender to eight years for the aggravated robbery conviction, and as a violent offender to twenty years for the especially aggravated robbery conviction, with the sentences ordered to be served concurrently, for an effective sentence of twenty years in the Department of Correction. He raises essentially one issue on appeal: whether the trial court erred in denying his pretrial motion to suppress his statement to police. Following our review, we affirm the judgments of the trial court.

The Appellant, Lester Arnold Clouse, was convicted by a White County jury of five counts of setting fire to land, two counts of aggravated assault, and one count of resisting arrest. These convictions resulted in an effective sentence of twenty-one years, eleven months, and twenty-nine days. On appeal, Clouse raises three issues for our review: (1) whether the evidence was sufficient to convict him of setting fire to land and aggravated assault; (2) whether the trial court erred by denying his motion for a mistrial after a co-defendant invoked his Fifth Amendment privilege and testified before the jury that he had been threatened; and (3) whether the jury instruction regarding circumstantial evidence was proper. After review of the record, we conclude that the errors resulting from the co-defendant's invocation of his Fifth Amendment privilege at trial affected the jury's verdict. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

The defendant was convicted of robbery and driving while a habitual motor vehicle offender. The defendant contends on appeal that the trial court erred in 1) denying his constitutional right to the assistance of counsel, and 2) conducting the trial in absentia while the defendant was not represented by counsel. We conclude that once elbow counsel has been appointed, and the defendant is absent voluntarily or through removal because of behavior, the trial court should require elbow counsel to represent the absent defendant. Under the facts of this case, the trial court erred in not requiring elbow counsel to proceed to represent the defendant when he was removed from the courtroom. Accordingly, the judgments of conviction are reversed and remanded for a new trial.

A Davidson County jury convicted the Petitioner, Reginald Garner Brown, of one count of first degree felony murder, one count of especially aggravated kidnapping, one count of aggravated robbery and one count of aggravated burglary. The trial court sentenced the petitioner as a Range I offender to consecutive terms of life with the possibility of parole for murder, twenty-five years for especially aggravated kidnapping, twelve years for aggravated robbery and six years for aggravated burglary. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Defendant's application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court's judgment.

The Defendant, Mike Lafever, was indicted on three counts of theft. A jury subsequently convicted him of one count of theft over $10,000, a Class C felony, and one count of theft over $1,000, a Class D felony. The jury assessed fines of $10,000 and $5,000 for these offenses, respectively. The jury acquitted him of the other count. The trial court sentenced the Defendant to five and one-half years for the Class C felony, and to three and one-half years for the Class D felony. The sentences were ordered to run concurrently and to be served on community corrections. In this direct appeal, the Defendant argues that the trial court erred in refusing to admit a statement he made to the police; erred in refusing to instruct the jury on mistake or ignorance of fact; that the evidence is not sufficient to support his convictions; that his sentences are excessive; and that the trial court should have waived his fines. We affirm the judgments of the trial court.

The Petitioner, Robert Zandi, appeals the trial court's denial of his petition for post-conviction relief. 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. Concluding that the petition is barred by the one-year statute of limitations, the State's motion is granted and the denial of relief entered by the trial court is affirmed.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court’s denial of habeas corpus relief. The Petitioner fails to assert a cognizable ground for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Following his transfer from juvenile court, the appellant, Quinton Sanders, was convicted of first degree felony murder, attempted theft of property over $1,000 but less than $10,000 in value, and theft of property over $10,000 but less than $60,000 in value. He received sentences of life imprisonment, two years, and five years, respectively. All sentences are to be served consecutively. In this appeal, the appellant maintains that the trial court erred in failing to instruct the jury with respect to any lesser-included offenses of felony murder. The appellant also maintains that the trial court erred in excluding evidence of the Memphis Police Department's policies and procedures regarding high-speed chases. The State maintains that the trial court properly excluded evidence of the high speed chase policies and procedures, but concedes that the trial court erred in declining to instruct the jury with respect to the lesser-included offenses of felony murder. After an exhaustive examination of the record and applicable authorities, we conclude that the trial court did indeed err in declining to instruct the jury on the lesser-included offenses of felony murder and the error is not harmless beyond a reasonable doubt. We also conclude that the trial court properly excluded evidence of the high speed chase policies and procedures of the Memphis Police Department. Accordingly, the appellant's conviction for first degree felony murder is Reversed and Remanded for a new trial in accordance with this opinion. His remaining convictions for attempted theft and theft as well as the sentences for those offenses are affirmed.

The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. Because the state's closing argument was improper and the error cannot be classified as harmless, the judgment of the trial court is reversed and the cause is remanded for a new trial

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner, Johnny Marvin Henning, appeals the trial court's denial of his petition for habeas corpus relief. Finding that the Petitioner has failed to assert a ground entitling him to habeas corpus relief, this Court affirms the judgment of the trial court dismissing the petition.

The defendant appeals his convictions and sentences on two counts of aggravated sexual battery. The defendant was sentenced to two twelve-year terms, to be served consecutively for an effective sentence of twenty-four years. The defendant asserts three issues for review: (1) insufficiency of the evidence to support the convictions; (2) error in the use of enhancement factors in determining the length of the sentences imposed; and (3) error in ordering the sentences served consecutively.

A McNairy County jury convicted the Petitioner, Eugene Turner, of two counts of premeditated first degree murder and the trial court sentenced the Petitioner to two concurrent life sentences with the possibility of parole. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court’s judgment.

The Defendant, Roger L. Hickman, appeals from the trial court's dismissal of his petition for post-conviction relief, in which he alleged that, in 1986, he entered a guilty plea to a misdemeanor without the assistance of counsel and without waiving his right to counsel. We affirm the dismissal of the Defendant's post-conviction petition because it was time-barred. Furthermore, we conclude that the Defendant is not entitled to habeas corpus relief. We affirm the judgment of the trial court.

The petitioner, Anton McDonald, appeals the dismissal of his petition for post-conviction relief from a guilty plea to possession of over .5 grams of cocaine with the intent to sell or deliver, arguing that the post-conviction court erred in finding that the petition was time-barred. Following our review, we affirm the dismissal of the petition.

The Appellant, Ashad R. A. Muhammad Ali, appeals the Lincoln County Circuit Court's summary dismissal of his petition requesting DNA analysis under the Post-Conviction DNA Analysis Act. On appeal, the Appellant raises two issues for our review: (1) whether the trial court properly dismissed the petition and (2) whether the trial judge erred by not sua sponte recusing himself based upon the fact that the trial judge was "part of the prosecutorial team that prosecuted the original conviction against the Appellant." Due to the sparseness of the record with regard to the question of recusal, we remand the case for a determination of this issue.

The defendant, Larry K. Bombailey, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony; theft of property valued at $500 or less, a Class A misdemeanor; and public intoxication, a Class C misdemeanor. The defendant agreed to a sentence as a Range I offender of eleven months, twenty-nine days for the theft; thirty days for the public intoxication, to be served concurrently to the theft; and eighteen months for violating a motor vehicle habitual offender order, to be served consecutively to the theft. The parties stipulated that the trial court would determine the manner of service for the defendant's conviction for violating a motor vehicle habitual offender order. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence for the motor vehicle habitual offender violation. The defendant appeals, claiming that the trial court erred by denying him an alternative sentence. We affirm the trial court's denial of an alternative sentence but remand the case for entry of a corrected judgment for the theft conviction.

The petitioner appeals the dismissal of his petition for post-conviction relief as time-barred, arguing that the post-conviction court erred for failing to find that the one-year statute of limitations was tolled due to his mental incompetence, or, in the alternative, for failing to find that his petition was timely because it was filed within one year from the date mandate issued. Following our review, we affirm the dismissal of the petition.

Petitioner, Donald Walton, appeals from the trial court's summary dismissal of his petition for writ of habeas corpus. After a review of the record and the briefs, we affirm the judgment of the trial court.

The defendant, Michael D. Martin, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony. After a sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender to four years in the Department of Correction (DOC) and ruled that despite the general prohibition on probation contained in T.C.A. § 55-10-616(c) of the Motor Vehicle Habitual Offenders (MVHO) Act, trial courts can consider probation for defendants who violate motor vehicle habitual offender orders. Nevertheless, the trial court denied the defendant’s request for probation. The defendant appeals, claiming that his sentence is excessive and that he should have received full probation. We conclude that the defendant’s sentence should be reduced to three years. We conclude that the Criminal Sentencing Reform Act of 1989 repealed by implication the MVHO Act’s prohibition of probation in T.C.A. § 55-10-616(c). However, we also conclude that the trial court erred in denying any form of alternative sentencing, and we remand the case for the entry of an appropriate sentence.

A Montgomery County jury convicted the Defendant, Floyd Perrow, of aggravated burglary, two counts of aggravated rape, and aggravated assault. The trial court merged the two convictions of aggravated rape and sentenced the Defendant to an aggregate thirty-six and a half years in prison. On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to support his convictions; and (2) the trial court imposed an excessive sentence because it should have merged all of the Defendant’s convictions into a single conviction. The State also appeals, contending that the trial court erred by merging the two aggravated rape convictions. After thoroughly reviewing the record, we conclude that sufficient evidence exists to support the Defendant’s convictions and that the trial court did not err by failing to merge all of the convictions into a single conviction. However, we conclude that the trial court erred by merging the two aggravated rape convictions. Accordingly, we reverse this judgment by the trial court, and we reinstate the two aggravated rape convictions. We remand the case to the trial court for re-sentencing on those two convictions.

In Lester Johnson v. State, No. E2001-00019-CCA-R3-PC (Tenn. Crim. App., at Knoxville, July 11, 2002), and State v. Jimmy D. Goode, No. E2000-02829-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Nov. 19, 2001), I authored opinions indicating that the finding of an emergency is the only time a trial court might suspend the sentence of an individual convicted of a violation of Tennessee Code Annotated section 55-10-616. Johnson was a post-conviction case in which the petitioner alleged bias on the part of the trial judge. The holding in Goode was that an actual emergency is not only a defense to prosecution under the Motor Vehicle Habitual Offenders Act, but also a factor which could be considered at sentencing in the event of a conviction. In State v. Ricky Fife, No. 03C01-9401-CR-0036 (Tenn. Crim. App., at Knoxville, June 15, 1995), however, a panel of this court had held that the 1989 Act superseded the terms of Tennessee Code Annotated section 55-10-616(c), thereby providing sentencing alternatives absent an emergency. Our research indicates that other panels of this court, relying upon the holding in Fife, have established a conflicting line of authority. After further review, I am persuaded by the majority that the terms of the 1989 Act, so comprehensive in nature, should apply, thereby affording the trial court with more flexibility in the sentencing of habitual motor vehicle offenders. The facts here demonstrate why it is so important for trial judges to have wide discretionary authority in matters of sentencing.