Appellate Court Opinions

Format: 12/01/2021
Format: 12/01/2021
Lemaricus Davidson v. State of Tennessee
E2019-00541-CCA-R3-PD

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
Jarus Smith v. State of Tennessee
M2020-00816-CCA-R3-PC

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
Darryl Robinson v. State of Tennessee
W2020-00942-CCA-R3-PC

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. Elvin Portillo
M2020-01179-CCA-R3-CD

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
Joseph Christopher Archer, Et Al. v. Ron Noonan
M2020-01266-COA-R3-CV

This case involves an action filed by homeowners against their contractor for breach of contract regarding the installation of a swimming pool.  The general sessions court entered judgment for plaintiffs. Defendant appealed to the circuit court which also entered judgment for the plaintiffs.  The defendant appeals.  We affirm.

Putnam County Court of Appeals 08/18/21
Alexis Stump v. Shirley Stinson
E2020-01139-COA-JV

This action was initiated by the mother’s filing of a petition for the return of custody of her minor child. The trial court granted the petition. The maternal grandmother moved to set aside the judgment. The court denied the motion by order and later entered an amended order, correcting errors. The mother appeals the final order. We dismiss the appeal.

Court of Appeals 08/18/21
In Re Tyler A.
E2021-00284-COA-R3-PT

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) abandonment for failure to establish a suitable home; (2) the persistence of conditions which led to removal; (3) substantial noncompliance with the permanency plan; (4) failure to manifest an ability and willingness to care for the child; and (5) a present mental condition affecting the mother’s ability to adequately parent. The court also found that termination was in the best interest of the child. We affirm the trial court.

Bradley County Court of Appeals 08/18/21
Donald Jones v. State of Tennessee
W2020-00421-CCA-R3-PC

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. William Darnell Richardson
M2020-00286-CCA-R3-CD

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
Donald Eugene Winder, III v. Kara Elizabeth Winder
E2021-00490-COA-R3-CV

A review of the record on appeal reveals that the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.

Meigs County Court of Appeals 08/17/21
State of Tennessee v. James Durand Favors, III
E2020-01166-CCA-R3-CD

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. Stephen Maurice Mobley
E2020-00234-CCA-R3-CD

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
In Re: Loring Edwin Justice
E2020-01089-SC-R3-BP

An attorney who had been disbarred was assessed costs associated with his disbarment proceedings pursuant to pre-2014 Tennessee Supreme Court Rule 9, section 24.3. The attorney timely filed a petition seeking relief from costs, and a panel of the Board of Professional Responsibility conducted a hearing on the petition. The panel reduced the costs for 11.2 hours of disciplinary counsel time and otherwise denied the petition. The attorney has appealed to this Court, as permitted by pre-2014 Rule 9, section 24.3. Having carefully and thoroughly considered the record and each of the issues raised, we affirm the panel’s decision.

Supreme Court 08/16/21
State of Tennessee v. Caleb Josiah Cannon
M2019-01629-CCA-R3-CD

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
In Re Payton G. Et Al.
E2020-00992-COA-R3-PT

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
In Re Matthew K. et al.
E2020-00773-COA-R3-PT

This consolidated appeal involves termination of parental rights in a case focusing on Zayne R., the minor child of Brittney R. (“Mother”) and Joseph D., and Matthew K., the minor child of Mother and Joshua K. In June 2019, Mother’s parents, Larry R. (“Grandfather”) and Bertha R. (“Grandmother”) (collectively, “Grandparents”), filed two petitions in the Hamilton County Circuit Court (“trial court”), seeking termination of Mother’s parental rights, respectively, to Zayne R. and Matthew K. (collectively, “the Children”). The Children had previously been removed from Mother’s custody and placed in the custody of Grandparents pursuant to an order entered by the Hamilton County Juvenile Court (“juvenile court”). Following a consolidated bench trial, the trial court granted Grandparents’ termination petitions based upon its finding by clear and convincing evidence that Mother had abandoned the Children by failing to visit and by failing to financially support them during the statutorily determinative period. The trial court further found that it was in the Children’s best interest to terminate Mother’s parental rights. Mother has appealed. Discerning no reversible error, we affirm the trial court’s final orders terminating Mother’s parental rights.

Hamilton County Court of Appeals 08/13/21
Christina Lynn McCartney v. Lester Dale McCartney, Et Al.
M2020-00703-COA-R3-CV

This is a divorce case. Husband/Appellant appeals the trial court’s: (1) pre-trial procedural rulings; (2) characterization of certain assets as marital property; and (3) equitable division of the marital estate. Discerning no reversible error, we affirm.

Sequatchie County Court of Appeals 08/13/21
Albert M. Bender, Jr., Et Al. v. Attorney S. Madison Roberts, Et Al.
M2019-01699-COA-R3-CV

The trial court dismissed the plaintiffs’ conversion claim in accordance with Rule 12.02(6) of the Tennessee Rules of Civil Procedure, determining that it was filed outside the applicable three-year statute of limitations. We affirm.

Davidson County Court of Appeals 08/13/21
State of Tennessee v. John Gross
M2020-01143-CCA-R3-CD

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
Damiean Devon Tolson v. John E. Herbison
M2020-01362-COA-R3-CV

Appellant, acting pro se, appeals the trial court’s dismissal of his legal malpractice action against Appellee, the attorney who represented Appellant in post-conviction matters related to his criminal case. The trial court held that Appellant’s lawsuit was barred by the running of the one-year statute of limitations. Tenn. Code Ann § 28-3-104(c)(1). Discerning no error, we affirm and remand. 

Davidson County Court of Appeals 08/12/21
In Re Zoey L.
E2020-01250-COA-R3-PT

This is the second appeal from a termination of parental rights case. In the first appeal, we remanded the case with instructions for the trial court to make the requisite written findings of fact and conclusions of law. On remand, the trial court found that the ground of abandonment by willful failure to visit had been proven and that termination of Mother’s parental rights was in the best interest of the child. In this appeal, Mother argues that the trial court failed to analyze the best interest factors and how they applied to the facts of the case. After a thorough review of the record and applicable law, we affirm.

Hawkins County Court of Appeals 08/11/21
In Re Mynajah S.
E2021-00040-COA-R3-PT

Mother appeals the termination of her parental rights on the grounds of severe abuse, abandonment by failure to visit and support, persistence of conditions, and failure to manifest an ability and willingness to assume physical custody or financial responsibility for the child. We affirm the trial court’s rulings as to both grounds for termination and best interest.

Court of Appeals 08/11/21
Los Pumas Concrete v. Harmony Hospitality, LLC Et Al.
M2020-00956-COA-R3-CV

A subcontractor that performed concrete and site work on a hotel construction project filed a lien on the property and then commenced this action against the general contractor and the owner of the property to recover sums due on the balance of the subcontract, for additional change order work, and interest. The claims relevant to the issues on appeal are against the owner for unjust enrichment and to enforce the lien. After obtaining a default judgment against the now defunct general contractor, the subcontractor moved for summary judgment on its claims against the owner. The owner contended that summary judgment was not proper because there were genuine issues of material fact concerning the amount owed to the subcontractor and whether the change orders had been approved. The court found it undisputed that the subcontractor performed work, in addition to that paid by the owner to the general contractor, for which the subcontractor was not paid; and that the owner received and appreciated a benefit from the services rendered by the subcontractor. Based on these findings, the trial court held that the subcontractor satisfied its burden of proving that the property owner was unjustly enriched. Accordingly, the trial court granted summary judgment in favor of the subcontractor on its claims of unjust enrichment and to enforce its lien. We affirm the trial court in all respects.

Davidson County Court of Appeals 08/11/21
In Re Evan M.
E2020-01673-COA-R3-PT

This appeal concerns termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Anderson County (“the Juvenile Court”) seeking to terminate the parental rights of Nicole M. (“Mother”) and Joseph M. (“Father”) to their minor son Evan M. (“the Child”). After a hearing, the Juvenile Court entered an order finding a host of grounds for termination against Mother and Father. These grounds were based largely on proof of substance abuse and domestic violence. The Juvenile Court also found that termination of Mother and Father’s parental rights is in the Child’s best interest. Mother and Father appeal. We affirm the Juvenile Court as to certain grounds for termination found against Mother and Father. However, we reverse certain other grounds for lack of clear and convincing evidence. In addition, we affirm the Juvenile Court’s finding that termination of Mother and Father’s parental rights is in the Child’s best interest. We thus affirm, in part, and reverse, in part, the judgment of the Juvenile Court, the result being we affirm the termination of Mother and Father’s parental rights to the Child.

Anderson County Court of Appeals 08/10/21
Deborah Bistolfi Felker, et al. v. Rex Stephen Felker
W2019-01925-COA-R3-CV

This case involves a post-divorce complaint to enforce the parties’ Marital Dissolution Agreement (“MDA”), which was executed in 2005 in Shelby County, Tennessee. The complaint was filed in the Shelby County Circuit Court (“trial court”) by the wife and the parties’ adult son. The husband, now a resident of Hamblen County, Tennessee, filed a motion to dismiss based on, inter alia, lack of personal jurisdiction, improper venue, and expiration of the statute of limitations. The husband also subsequently filed an answer to the complaint, denying that the wife was entitled to relief and asserting various affirmative defenses. The trial court denied the husband’s motion to dismiss, determining that jurisdiction was proper in Shelby County. The court further found that the husband had breached the terms of the MDA and that the complaint was not time-barred. The court ordered the husband to procure life insurance for the benefit of the parties’ son within thirty days and to cooperate with the wife’s procurement of additional life insurance on the husband’s life. The court also ordered the husband to pay the wife’s attorney’s fees. The husband has appealed. Determining that the applicable statute of limitations had expired before the complaint was filed, we reverse the trial court’s judgment and remand for entry of a judgment of dismissal.

Shelby County Court of Appeals 08/10/21