Court of Criminal Appeals Opinions

Format: 02/19/2019
Format: 02/19/2019
State of Tennessee v. Rodger E. Broadway
E2018-01033-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Rodger E. Broadway, pleaded guilty to first degree felony murder, especially aggravated robbery, and aggravated rape and received an effective sentence of life without the possibility of parole. Fifteen years after his sentencing, he filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his sentences were illegal because (1) the State failed to file the notice of its intent to seek life imprisonment without the possibility of parole and (2) the judgment forms for his remaining convictions reflect a standard offender classification with a 100% service requirement as a violent offender. The trial court summarily dismissed the motion on the basis that it failed to state a colorable claim. On appeal, the Defendant contends that the trial court erred by summarily denying relief. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 02/19/19
Thomas Lee Carey, Jr. v. State of Tennessee
M2018-00292-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Mark Fishburn

The petitioner, Thomas Lee Carey, Jr., appeals the denial of his petition for post-conviction relief, which petition challenged his 2012 convictions of first degree felony murder, second degree murder, and especially aggravated kidnapping, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Davidson County Court of Criminal Appeals 02/19/19
Kenneth A. Jones v. State of Tennessee
M2018-00632-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Mark Fishburn

The petitioner, Kenneth A. Jones, appeals the denial of his petition for post-conviction relief, which petition challenged his Davidson County Criminal Court jury conviction of robbery. In this appeal, the petitioner reiterates his claim that he was deprived of the effective assistance of counsel. Because the petitioner has failed to establish that he is entitled to post-conviction relief, we affirm.

Davidson County Court of Criminal Appeals 02/19/19
Ricky Harris v. State of Tennessee
E2018-00362-CCA-R3-ECN
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

The Petitioner, Ricky Harris, appeals the Carter County Criminal Court’s denial of his petition for a writ of error coram nobis from his first degree murder conviction, for which he received a life sentence. We affirm the judgment of the coram nobis court.

Carter County Court of Criminal Appeals 02/19/19
In Re Lailonnii J., et al.
E2018-01198-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Timothy E. Irwin

Father appeals the trial court’s decision to terminate his parental rights to two children on the grounds of (1) incarceration under a sentence of ten or more years, and the children were under eight at the time the sentence was entered, (2) wanton disregard for the welfare of the children, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children, and placing the children in Father’s care would pose a risk of substantial harm to the physical and psychological welfare of the children. He further challenges the trial court’s finding by clear and convincing evidence that termination of his parental rights was in the best interest of the children. We affirm in part and vacate in part.

Knox County Court of Criminal Appeals 02/19/19
James Lackey v. State of Tennessee
M2018-00230-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge David A. Patterson

The Petitioner, James Lackey, appeals from the denial of post-conviction relief, alleging that (1) trial counsel provided ineffective assistance in failing to call his brother as a defense witness at trial, and (2) the post-conviction court abused its discretion in failing to consider his brother’s recorded interview as substantive evidence at the post-conviction hearing. We affirm the judgment of the post-conviction court.

White County Court of Criminal Appeals 02/19/19
State of Tennessee v. Whelcher Randall Hogan
M2017-02256-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Larry J. Wallace

Defendant, Whelchel Randall Hogan, pled guilty to possession of less than .5 grams of cocaine with the intent to sell or deliver after the denial of a motion to suppress. As part of the guilty plea, Defendant reserved a certified question of law regarding the legality of his traffic stop. After a review of the record, we reverse the judgment of the trial court and dismiss Defendant’s conviction.

Dickson County Court of Criminal Appeals 02/19/19
State of Tennessee v. Joseph H. Goostree
M2018-00651-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge William R. Goodman, III

Defendant, Joseph H. Goostree, complains on appeal that the trial court improperly sentenced him to serve the balance of his eight-year sentence after he admitted to multiple violations of the conditions of his Community Corrections sentence. Because the trial court did not abuse its discretion, we affirm the judgment of the circuit court and remand for entry of a judgment form dismissing Count 1 of the indictment.

Robertson County Court of Criminal Appeals 02/15/19
Tracy Looney v. State of Tennessee
M2018-00214-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Royce Taylor

The petitioner, Tracy Looney, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Rutherford County Court of Criminal Appeals 02/15/19
Sharod Winford Moore v. State of Tennessee
M2017-02314-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Franklin L. Russell

Following the post-conviction court’s granting of a delayed appeal, the petitioner challenges the trial court’s denial of his request for an instruction charging the jury that Jason McCollum was an accomplice as a matter of law. After reviewing the record and considering the applicable law, we conclude the post-conviction court did not follow the proper procedures in granting a delayed appeal and remand the case to the post-conviction court for further proceedings consistent with this opinion.

Marshall County Court of Criminal Appeals 02/15/19
State of Tennessee v. Sarah Brinkman
E2018-01011-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Tammy M. Harrington

The defendant, Sarah Brinkman, appeals from the revocation of the probationary sentence imposed for her conviction of introducing contraband into a penal institution, arguing that the trial court erred by ordering her to serve 180 days’ incarceration before returning to probation. Discerning no error, we affirm.

Blount County Court of Criminal Appeals 02/14/19
State of Tennessee v. Michael Lee Hufford
E2017-02464-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James F. Goodwin, Jr.

The Defendant-Appellant, Michael Lee Hufford, appeals from the order of the Sullivan County Criminal Court revoking his probation. On appeal, the Defendant argues that (1) the trial court erred in denying his motion to dismiss the violation of probation affidavit and arrest warrant, and (2) the trial court erred in revoking his probation and ordering him to serve the remainder of his sentence in confinement. Upon review, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 02/13/19
State of Tennessee v. Jerry Ray Oakes - dissenting opinion
E2017-02239-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lisa Rice

I respectfully disagree with the majority’s conclusion that the trial court erred in denying the defendant’s motion to suppress. In my opinion, based on the proof presented at the suppression hearing and at trial, the trial court correctly determined that there were exigent circumstances justifying the warrantless blood draw. For the reasons that follow, I would affirm the defendant’s conviction of vehicular homicide.

Carter County Court of Criminal Appeals 02/12/19
State of Tennessee v. Jerry Ray Oaks
E2017-02239-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lisa Rice

The defendant, Jerry Ray Oaks, appeals his Carter County Criminal Court jury conviction of vehicular homicide, claiming that the trial court erred by denying his motion to suppress the results of a warrantless blood draw, that the defendant should have been permitted to argue the results of a vehicle inspection during closing argument, and that the evidence is insufficient to support his conviction of vehicular homicide. The trial court erred by finding that exigent circumstances justified the warrantless blood draw. Accordingly, we reverse the defendant’s conviction of vehicular homicide and remand the case for a new trial.

Carter County Court of Criminal Appeals 02/12/19
State of Tennessee v. Jason White
W2018-00329-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

Jason White, Defendant, was convicted of one count of conspiracy to possess methamphetamine with the intent to sell within a drug-free zone and one count of conspiracy to possess methamphetamine with the intent to deliver within a drug-free zone. Co-defendant Kristina Cole and Co-defendant Montez Mullins were also convicted of one count of conspiracy to possess methamphetamine with the intent to sell within a drug-free zone and one count of conspiracy to possess methamphetamine with the intent to deliver within a drug-free zone in the same trial. See State v. Kristina Cole and Montez Mullins, No. W2017-01980-CCA-R3-CD, 2018 WL 5810011, at *1 (Tenn. Crim. App. Nov. 5, 2018), perm. app. filed. The trial court sentenced Defendant to sixty years as a career offender with release after service of 100% of the sentence. On appeal, Defendant asserts that: (1) the trial court erred in allowing Defendant’s trial counsel to represent Defendant despite a conflict of interest; (2) the State constructively amended the indictment by obtaining a superseding indictment; (3) the trial court erred in admitting: testimony from Andrew Brown; Co-defendant Montez Mullins’ confession; text messages that Detective Mark Gaia retrieved from Co-defendant Cole’s three cell phones; and marijuana confiscated from Mr. White’s vehicle; (4) the trial court erred in admitting testimony from Detective Gaia without instructing the jury about witness credibility; (5) the State’s introduction of Co-defendant Mullins’ confession violated Bruton v. U.S., 391 U.S. 123 (1968); (6) the trial court erred in denying Defendant’s motion to sever his case from Co-defendants Cole and Mullins; (7) the evidence was insufficient for a rational juror to have found Defendant guilty; and (8) the State committed prosecutorial misconduct during closing arguments. After a thorough review of the facts and applicable case law, we affirm.

Shelby County Court of Criminal Appeals 02/11/19
State of Tennessee v. Gregory Gill
W2018-00331-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

After a jury trial, Gregory Gill, Defendant, was convicted of two counts of possession of cocaine with intent to sell or deliver, two counts of possession of marijuana with intent to sell or deliver, four counts of unlawful possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony, one count of unlawful possession of a firearm after being convicted of a felony involving the attempted use of force, violence, or a deadly weapon, one count of possession of drug paraphernalia, and one count of evading arrest. The trial court sentenced Defendant to a total effective sentence of thirty-eight years in the Tennessee Department of Correction. On appeal, Defendant asserts that: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient for a rational trier of fact to have found him guilty beyond a reasonable doubt; (3) the trial court erred in allowing the State to crossexamine a defense witness about his pending criminal charges; and (4) the trial court imposed an excessive sentence. After a thorough review of the facts and applicable case law, we affirm.

Madison County Court of Criminal Appeals 02/11/19
State of Tennessee v. Daniel Dewayne Kincaid
E2018-01012-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Tammy Harrington

The Defendant, Daniel Dewayne Kincaid, appeals as of right from the Blount County Circuit Court’s revocation of his probationary sentence and order of one hundred and eighty days of split confinement for his convictions for DUI. The Defendant contends that the trial court abused its discretion by ordering him to serve one hundred and eighty days of split confinement before being released on supervised probation. Following our review, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 02/11/19
State of Tennessee v. Jacquez Russell
W2017-02184-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Glenn Wright

The Defendant, Jacquez Russell, was found guilty by a Shelby County Criminal Court jury of attempt to commit first degree premeditated murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202 (2018) (first degree murder), 39-12-101 (2018) (attempt), 39-17-1324 (2018) (employment). The trial court sentenced the Defendant as a Range I, standard offender to consecutive terms of sixteen years for attempted first degree murder and six years for the firearm conviction, for an effective twenty-two-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by limiting his closing argument. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/08/19
State of Tennessee v. Nikilo Conley
W2018-00402-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James C. Beasley, Jr.

A Shelby County jury found the Defendant guilty of especially aggravated robbery, and the trial court sentenced the Defendant to serve twenty years in the Tennessee Department of Correction. On appeal, the Defendant asserts that the evidence is insufficient to sustain his conviction. After review, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 02/08/19
State of Tennessee v. Thomas Huey Liles, Jr.
E2018-00384-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James L. Gass

The defendant, Thomas Huey Liles, Jr., appeals his Sevier County Circuit Court jury conviction of second offense driving under the influence (“DUI”), claiming that the statute imposing a blood alcohol or drug concentration test fee violates principles of due process. Because our supreme court has specifically concluded that the statute in question does not violate due process principles, we affirm.

Sevier County Court of Criminal Appeals 02/08/19
State of Tennessee v. Creed Gettys Welch
M2016-01335-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Creed Gettys Welch, was convicted after a jury trial of one count of aggravated sexual battery of a victim less than thirteen years of age and was sentenced to serve ten years at 100%. On appeal, Defendant challenges the sufficiency of the evidence supporting the conviction and the trial court’s alleged failure to fulfill its role as the thirteenth juror. We affirm the judgment of the trial court.

Lawrence County Court of Criminal Appeals 02/08/19
State of Tennessee v. David Lynn Zeigler - dissenting
M2017-01091-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Russell Parkes

I respectfully dissent. I cannot find the trial court abused its discretion by limiting the cross-examination of the State’s expert witness.

Maury County Court of Criminal Appeals 02/07/19
State of Tennessee v. David Lynn Zeigler
M2017-01091-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Russell Parkes

The Defendant-Appellant, David Lynn Zeigler, appeals from a Maury County jury conviction of rape by “knowing or having reason to know [the victim] was mentally defective, mentally incapacitated or physically helpless.” Tenn. Code Ann. § 39-13-503(a)(3). In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the trial court erred in prohibiting trial counsel’s cross-examination of an expert witness about his suspension from the practice of forensic psychology for unprofessional conduct; (2) whether the trial court’s decision to limit cross-examination of the expert witness effectively interfered with trial counsel’s right to present a defense; and (3) whether the trial court imposed an excessive sentence. For the reasons that follow, we reverse the Defendant’s conviction and remand for a new trial.

Maury County Court of Criminal Appeals 02/07/19
Corey Gilbert v. State of Tennessee
M2017-02071-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge William R. Goodman, III

After his convictions for felony murder and aggravated robbery were upheld on direct appeal, Petitioner, Corey Gilbert, sought post-conviction relief. In the petition for post-conviction relief, Petitioner alleged ineffective assistance of trial counsel and appellate counsel as well as prosecutorial misconduct. After a hearing, the post-conviction court denied relief. We affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 02/07/19
IN RE Melinda N.
E2017-01738-COA-R3-PT
Authoring Judge: Judge. D. Michael Swiney
Trial Court Judge: Judge J. Michael Sharp

Candy D. (“Mother”) appeals the August 11, 2017 order of the Circuit Court for Bradley County (“the Trial Court”) terminating her parental rights to the minor child Melinda N. (“the Child”). Mother raises issues regarding whether a petition for adoption of the Child is defective on its face, whether the Trial Court erred in finding clear and convincing evidence that grounds existed to terminate her parental rights for abandonment by willful failure to support pursuant to Tenn. Code Ann. § 36-1-113(g)(1), whether the Trial Court erred in finding clear and convincing evidence that grounds existed to terminate her parental rights for abandonment by willful failure to visit pursuant to Tenn. Code Ann. § 36-1-113(g)(1), and whether the Trial Court erred in finding that it was in the Child’s best interests for Mother’s parental rights to be terminated. We find and hold that the Trial Court did not err in finding that clear and convincing evidence was shown of grounds to terminate Mother’s parental rights for abandonment by willful failure to support and for abandoment by willful failure to visit and that it was proven that it was in the Child’s best interests for Mother’s parental rights to be terminated. We, therefore, affirm the Trial Court’s August 11, 2017 order. As Mother’s parental rights properly have been terminated, Mother lacks standing to raise issues regarding alleged deficiencies in the petition for adoption.

Bradley County Court of Criminal Appeals 02/07/19