APPELLATE COURT OPINIONS

Martha Hungerford (“Plaintiff”) filed a petition seeking a declaration that Jimmy Hungerford was a child and legal heir at law of Thomas Hungerford. Plaintiff filed a motion for summary judgment. After a hearing the Chancery Court for Hawkins County (“the Trial Court”) granted Plaintiff summary judgment. James E. Price (“Defendant”) appeals the grant of summary judgment to Plaintiff. We find and hold that Plaintiff failed to comply with Tenn. R. Civ. P. 56.04 and, therefore, summary judgment should not have been granted. We vacate the grant of summary judgment and remand this case for further proceedings.

The Defendant, Robert Guerrero, was convicted by a Maury County Circuit Court jury of two counts of first degree murder and nine counts of attempted first degree murder. See T.C.A. §§ 39-13-201 (2014), 39-13-202 (2014), 39-12-101 (2014). The trial court sentenced the Defendant to two consecutive life sentences and to nine consecutive fifteen-year sentences to be served consecutively to the life sentences, for an effective sentence of two life terms plus 135 years. Almost six years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence because his life sentences requiring 100% service of sixty years’ confinement less sentencing credits up to 15% were tantamount to life sentences without the eligibility or possibility of parole. The trial court summarily dismissed the motion for failure to state a colorable claim. On appeal, he contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

This accelerated interlocutory appeal results from the trial court’s denial of Appellant’s motion for recusal. Having reviewed the trial court’s ruling on the motion for recusal pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm.

Appellant, Dusty Ross Binkley, pleaded guilty to manufacture of methamphetamine and possession of a firearm during the commission of a dangerous felony and received an effective eight-year sentence to be served in community corrections.  His sentence was revoked after he received new charges, and the trial court aligned the original sentence consecutively to the sentences for the new offenses.  Appellant later filed a Motion to Correct Illegal Sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court denied after a hearing.  On appeal, he argues that trial court incorrectly aligned his original sentences consecutively to his sentences for his new offenses. Following our review, we affirm the judgment of the trial court.

Defendant, Fredrick Thomas, was indicted by the Shelby County Grand Jury with first degree murder and employing a firearm during the commission of a felony after the shooting death of his wife and his unsuccessful attempt at suicide. After a jury trial, Defendant was found guilty of first degree murder. The trial court dismissed the remaining count. Defendant was sentenced to life imprisonment. On appeal, Defendant challenges the sufficiency of the evidence and the trial court's refusal to allow expert testimony on premeditation, deliberation, passion, and provocation. After a thorough review, we affirm the judgment of the trial court.

Petitioner, Bobby Glen Crocker, filed a petition for post-conviction relief, which was dismissed by the post-conviction court as being barred by the statute of limitations. He appeals the post-conviction court‟s finding that the statute of limitations should not be tolled due to Petitioner‟s mental incompetency. Following a careful review of the record, we affirm the decision of the post-conviction court.

The appellant, David Wayne Hearing, filed in the Greene County Criminal Court a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The motion was summarily denied, and the appellant appeals the ruling. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgment of the trial court.

The petitioner, Timothy L. Jefferson, appeals the summary dismissal of his petition for the writ of error coram nobis. He is currently serving a forty-year sentence in the Department of Correction as a result of his 2001 guilty plea to second degree murder. On appeal, the petitioner contends that the coram nobis court’s dismissal was in error for multiple reasons, including that: (1) the court failed to give proper consideration to veracity of the newly discovered evidence; (2) the court reached the wrong conclusion as to whether the newly discovered evidence may have affected the result; (3) the petition was not time-barred because the statute of limitations was waived; and (4) the issue had not been previously litigated. Following review of the record, we affirm the dismissal of the petition.

The appellant, Connie Sue Messick, pled guilty in the Coffee County Circuit Court to vehicular homicide by intoxication, one count of reckless aggravated assault, and four counts of vehicular assault. The trial court sentenced the appellant to a total effective sentence of sixteen years in the Tennessee Department of Correction. On appeal, the appellant challenges the length and manner of service of the sentences. Upon review, we affirm the judgments of the trial court but remand for entry of a corrected judgment to reflect that reckless aggravated assault is a Class D felony.

Petitioner, James Todd, filed a petition for post-conviction relief, alleging that his trial counsel provided ineffective assistance by inadequately presenting a motion to suppress to the trial court. Because trial counsel’s performance was not deficient, the post-conviction court’s denial of the petition is affirmed.

The Defendant-Appellant, Narrell Christopher Pierce, was convicted by a Davidson County Criminal Court jury of attempted aggravated robbery, attempted second degree murder, employment of a firearm during the commission of a dangerous felony, and unlawful possession of a handgun by a felon.  The trial court sentenced the Defendant to an effective sentence of 51 years’ confinement.  On appeal, the Defendant-Appellant argues: (1) the trial court erred in denying the Defendant’s motions to suppress (a) the victim’s identification testimony, (b) evidence obtained as a result of the Defendant’s arrest, and (c) evidence obtained pursuant to a search warrant; (2) the trial court erred in refusing to allow the Defendant to cross-examine a witness about alleged acts of untruthfulness; (3) the trial court erred in denying the Defendant’s motion to dismiss count 3 of the indictment and allowing the State to amend that count of the indictment; (4) the evidence is insufficient to sustain the Defendant’s convictions of attempted second degree murder and employing a firearm during the commission of a dangerous felony; and (5) the trial court abused its discretion in sentencing the Defendant as a career offender to 51 years’ confinement.  Upon review, we affirm the judgments of the trial court.

A Lauderdale County jury convicted the Defendant-Appellants, Gregory Nelson and Tina Nelson, of the charged offenses of first degree felony murder during the perpetration of aggravated child abuse and aggravated child abuse. Tina Nelson was sentenced to life imprisonment for the first degree felony murder conviction and to fifteen years for the aggravated child abuse conviction, and Gregory Nelson was sentenced to life imprisonment for the first degree murder conviction and to twenty years for the aggravated child abuse conviction. In this consolidated appeal, Gregory and Tina Nelson argue that the evidence is insufficient to sustain their convictions. Upon review, we affirm the judgments of the trial court.

This appeal arises out of a negligence action brought against a railroad for damage to the plaintiffs’ home and storage building during a flood in and around Memphis, Tennessee. Railroad moved for summary judgment on the ground that the negligence claim was preemptioned by federal law and that plaintiff could not prove causation. The trial court initially denied the railroad’s motion but, on reconsideration, granted summary judgment; plaintiffs appealed. We reverse the grant of summary judgment and remand for further proceedings.

Appellant, Danny Steve Wilkerson, was convicted by a jury of three drug-related offenses and received an effective sentence of ten years as a Range I, standard offender in the Tennessee Department of Correction. He appeals, challenging the sufficiency of the evidence supporting his convictions and the nature and length of his sentences. After a careful review of the record and the applicable law, the judgments of the trial court are affirmed.

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant’s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

We granted review in this case to determine whether a jury instruction based on our decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), must be given when a defendant is charged with the offenses of kidnapping and aggravated burglary. The defendants threatened the victim with guns and took her purse as she was getting into her car outside of her residence. The defendants forced the victim to enter her home and followed her inside. They forced the victim to sit on her couch while they ransacked her home. Police apprehended the defendants as they attempted to flee. The defendants were indicted for aggravated robbery of the victim’s purse, aggravated burglary of the victim’s home, especially aggravated kidnapping, and possession of a firearm with the intent to go armed during the commission of a dangerous felony. A jury convicted the defendants of all charges. The trial court set aside the guilty verdicts for especially aggravated kidnapping and aggravated burglary, finding that these convictions, in conjunction with the aggravated robbery convictions, violated principles of due process. The trial court also dismissed the firearms convictions. The Court of Criminal Appeals reversed and reinstated the verdicts. Upon appeal, we remanded the case to the Court of Criminal Appeals for consideration in light of our holding in State v. Cecil, 409 S.W.3d 599 (Tenn. 2013), which made our holding in White applicable to cases in the appellate process. On remand, the intermediate appellate court reached the same result. We hold that a kidnapping charge accompanied by an aggravated burglary charge does not, standing alone, warrant a White jury instruction. However, the trial court erred by not giving a White jury instruction based on the especially aggravated kidnapping and aggravated robbery charges, but the error was harmless beyond a reasonable doubt.

I concur in the Court’s opinion in this case authored by Chief Justice Lee. That opinion represents the correct analysis and result based upon the existing analytical framework currently utilized by this Court in this area of the law. Although I agree that this is not the case to revisit the issue at this point in time, I write separately to express my concern about this existing analytical framework.

The Petitioner, Candance Carol Bush, appeals as of right from the denial of her petition for post-conviction relief.  The Petitioner contends that she received ineffective assistance of counsel based upon trial counsel’s advice that she not testify at trial and counsel’s failure to file a motion to sever the Petitioner’s case from that of her co-defendant.  The Petitioner further contends that the cumulative effect of these errors undermines the confidence in the outcome of her trial such that she is entitled to post-conviction relief.  After a thorough review, we affirm the judgment of the post-conviction court.

Vermaine M. Burns (“the Defendant”) was convicted of several sexual offenses, all stemming from illicit Facebook chats (“chats”) and emails between himself and the victim, K.P. On appeal, the Defendant raises three issues: (1) whether the trial court abused its discretion by admitting into evidence the Defendant’s chats with the victim and an emailed photo of a penis; (2) whether the evidence was sufficient to support the jury’s finding that the Defendant was the author of the communications; and (3) whether the trial court erred by prohibiting the Defendant from referring to a fake Facebook profile created by the Defendant’s stepdaughter. After a review of the record and applicable law, we affirm the judgments of the trial court.

A Shelby County Criminal Court Jury convicted the appellants, Christopher Swift and Marquavious Houston, of first degree premeditated murder; attempted first degree premeditated murder, a Class A felony; and employing a firearm during the commission of a dangerous felony, a Class C felony. After a sentencing hearing, they received effective sentences of life plus twenty-six years. On appeal, the appellants contend that (1) the trial court erred by refusing to sever their trials; (2) the trial court erred by allowing the State to display an assault rifle for demonstrative purposes when the rifle was not used to commit the crimes; (3) the trial court erred by allowing the surviving victim to testify after the police destroyed his recorded statement; and (4) the evidence is insufficient to support the convictions. In addition, Houston contends that (5) the State’s failure to name the predicate felony in count 3 of the indictment, employing a firearm during the commission of a dangerous felony, voids the charge and (6) that the trial court erred by ordering consecutive sentencing. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court committed reversible error in Swift’s case by refusing to sever the appellants’ trials and by allowing the State to show the jury an assault rifle that was not used in the crimes. Therefore, his convictions are reversed, and his case is remanded to the trial court for a new trial. Houston’s convictions and sentences, however, are affirmed.

I concur with the results and most of the reasoning in the majority opinion. I respectfully disagree, however, with the majority’s conclusion that the trial court abused its discretion when it failed to grant Defendant Swift’s motion to sever. In my view, neither Rule 8 or Rule 14 of the Rules of Criminal Procedure required the trial court to grant Defendant Swift’s motion to sever. Furthermore, I am satisfied that the trial court gave clear and correct instructions on how the jury was to consider the evidence as to each Defendant. The manner in which the evidence was admitted by the trial court did not so prejudice Defendant Swift as to require severance.

The Defendant, Christopher Lee Goins, appeals as of right from the Blount County Circuit Court’s revocation of his community corrections sentences and order of incarceration. The Defendant contends that the trial court abused its discretion in revoking his community corrections sentences and ordering his original sentences into effect. Discerning no error, we affirm.

We granted permission to appeal in this case to address whether the evidence established that the plaintiff police officer was discharged solely in retaliation for conduct protected under the Tennessee Public Protection Act, Tennessee Code Annotated section 50-1-304, sometimes called the Whistleblower Act. The chief of police for the defendant municipality had the plaintiff police officer “fix” a traffic ticket for a relative. After the plaintiff officer complained to the mayor that the police chief had pressured him into illegal ticket fixing, the police chief discharged the plaintiff. The defendant municipality claimed that it terminated the officer’s employment because he violated the chain of command by reporting the ticket fixing to the mayor, and also because he undermined the chief’s authority with the other officers in the police department. We hold that the municipality’s assertion that it discharged the plaintiff for going outside of the chain of command amounts to an admission that it retaliated against the plaintiff for refusing to remain silent about illegal activities, conduct that is protected under the Tennessee Public Protection Act. After a review of the record, we also hold that the evidence preponderates in favor of a finding that the second reason proffered by the municipality for the officer’s discharge, that he undermined the police chief’s authority, is pretext for retaliation. Accordingly, we hold that the plaintiff was discharged solely in retaliation for conduct protected under the Public Protection Act.