Court of Criminal Appeals Opinions

Format: 10/15/2019
Format: 10/15/2019
Ugenio Ruby-Ruiz v. State of Tennessee - Dissenting Opinion
M2019-00062-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

I respectfully dissent from the majority’s opinion granting the delayed appeal because I conclude that the Tennessee Supreme Court, in denying the Petitioner’s request to late-file his appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure (“Rule 11 application”), has already reviewed the substantive underlying issues of the appeal in determining not to accept the late-filed appeal in the interest of justice.

Davidson County Court of Criminal Appeals 10/02/19
Ugenio Dejesus Ruby-Ruiz v. State of Tennessee
M2019-00062-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve Dozier

The Petitioner, Ugenio Dejesus Ruby-Ruiz, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2013 convictions for nine counts of rape of a child, two counts of rape, five counts of aggravated sexual battery, and three counts of sexual exploitation of a minor and his 121-year sentence at 100% service. The Petitioner contends that he received the ineffective assistance of appellate counsel. We reverse the judgment of the post-conviction court and remand the case for the entry of an order granting the Petitioner a delayed appeal for the limited purpose of filing an application for permission to appeal to our supreme court. The Petitioner’s remaining allegations shall be held in abeyance in the post-conviction court until the resolution of the delayed appeal.

Davidson County Court of Criminal Appeals 10/02/19
State of Tennessee v. Trenell Lamar Copeland
M2017-02427-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, Trenell Lamar Copeland, appeals from his convictions of four counts of aggravated sexual battery of a child. Defendant was found guilty following a jury trial in 2010. On appeal, Defendant argues that (1) the evidence at trial was insufficient to support the convictions, (2) the trial court erred in its instructions to the jury, and (3) the trial court erred by allowing the victim’s prior consistent statements to be admitted into evidence. After review of the record and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 10/01/19
State of Tennessee v. Gregory Randall South - Concurring Opinion
M2018-01360-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Shayne Sexton

I agree with the majority’s conclusion that the defendant’s convictions must be reversed and the case remanded for a new trial due to the prosecutor’s improper remarks during closing argument. I write separately to express my concern about the trial judge’s ex parte discussion with the jury during deliberations.

Fentress County Court of Criminal Appeals 09/30/19
State of Tennessee v. Gregory Randall South
M2018-01360-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge E. Shayne Sexton

Following a jury trial, the defendant, Gregory Randall South, was convicted of two counts of selling morphine, a Schedule II controlled substance. On appeal, the defendant contends the prosecutor improperly commented on his right not to testify and used an improper hypothetical during closing argument. Having thoroughly reviewed the record, we conclude the prosecutor’s comments on the defendant’s right not to testify constitute reversible non-structural constitutional error. Accordingly, we reverse the judgments of the trial court and remand the matter for a new trial.

Fentress County Court of Criminal Appeals 09/30/19
State of Tennessee v. Terry D. Winters
M2017-01155-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Terry D. Winters, was indicted for and convicted of aggravated kidnapping, aggravated assault, and domestic assault for which he received an effective twenty-year sentence. He now appeals the denial of his motion for new trial wherein he alleged he received ineffective assistance of counsel and challenged a statement made during the State’s closing argument. Following our review, we affirm the denial of the motion.

Davidson County Court of Criminal Appeals 09/30/19
Kelvin Brown v. State of Tennessee
W2019-00054-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

Kelvin Brown, Petitioner, filed a pro se Petition for Post-Conviction Relief (“the Second Petition”). The post-conviction court summarily denied the Second Petition, finding that Petitioner had previously filed a Petition for Post-Conviction Relief (“the First Petition”); that counsel had been appointed for Petitioner; and that Petitioner appeared at an evidentiary hearing with counsel and withdrew the First Petition after specifically being warned by the court that “any dismissal would be with prejudice.” Petitioner appealed, claiming the post-conviction court erred in summarily dismissing the Second Petition. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 09/27/19
State of Tennessee v. Rontavious S. Ferguson and Tramon T. Key
W2018-01908-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Senior Judge William B. Acree

The State appeals from the trial court’s dismissal with prejudice of a two-count indictment against the Defendants, Rontavious S. Ferguson and Tramon T. Key, for attempted second-degree murder and attempted aggravated robbery. The State contends that it had discretion to nolle prosequi the charges and that dismissal without prejudice would not have placed the public interest at stake. After review, we affirm the dismissal of the indictment against the Defendants but remand to the Dyer County Circuit Court for entry of an amended order dismissing the case without prejudice.

Dyer County Court of Criminal Appeals 09/26/19
State of Tennessee v. Tony F. Boyle
W2019-00128-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

Following a trial, a Madison County jury convicted Defendant, Tony F. Boyle, of driving under the influence (DUI). The trial court imposed a sentence of eleven months and twenty-nine days, which was suspended to community corrections supervision following the service of thirty days in jail. On appeal, Defendant contends that the evidence presented at trial was insufficient to support his conviction. Following a thorough review, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 09/26/19
State of Tennessee v. Whitcliffe McLeod
W2018-01646-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James M. Lammey

The defendant, Whitcliffe McLeod, appeals his sentences for second degree murder and attempted second degree murder. The defendant argues the trial court abused its discretion in ordering the defendant to serve his sentences consecutively. Following our review, we affirm the judgments and sentence of the trial court.

Shelby County Court of Criminal Appeals 09/26/19
State of Tennessee v. John C. Murray
M2018-01150-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Brody Kane

The Defendant was convicted upon his guilty plea to theft of property valued at more than $1,000 but less than $10,000, a Class D felony. See T.C.A. § 39-14-103(a) (2018) (theft), 39-14-105 (Supp. 2015) (amended 2016) (grading of theft). The trial court sentenced the Defendant to serve eight years as a Range II, multiple offender. On appeal, the Defendant contends that the trial court erred in sentencing. We affirm the judgment of the trial court.

Wilson County Court of Criminal Appeals 09/26/19
State of Tennessee v. Ricky Jan Stevison - dissenting opinion
E2018-01832-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Sandra Donaghy

I respectfully dissent from the conclusion reached by the majority affirming the trial court’s denial of the Defendant’s motion to withdraw his guilty plea. Based on my review of the record, the Defendant’s guilty pleas were not knowingly, voluntarily, and understandingly entered as to their effect and consequences. Accordingly, I would have concluded that the trial court erred by denying his motion to withdraw the guilty plea.

Bradley County Court of Criminal Appeals 09/26/19
State of Tennessee v. Ricky Jan Stevison
E2018-01832-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Sandra Donaghy

Defendant, Ricky Jan Stevison, pled guilty to theft of property and was sentenced to two years on supervised probation with the trial court to determine the issue of restitution at a hearing. Defendant subsequently filed a motion to withdraw his guilty plea. The trial court denied the motion after a hearing. Because we determine that the trial court did not abuse its discretion, we affirm the judgment of the trial court. However, because the judgment form does not include the amount of restitution or the terms of the repayment, we remand to the trial court for entry of an amended judgment form.

Bradley County Court of Criminal Appeals 09/26/19
State of Tennessee v. Roshaun Colbert
E2018-02062-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Bobby McGee

On February 8, 2018, a Knox County jury convicted Roshaun Colbert, Defendant, on one count each of reckless endangerment, evading arrest, reckless driving, attempted tampering with evidence, and possession of drug paraphernalia. The trial court sentenced Defendant to a total effective sentence of twelve years. On November 14, 2018, the trial court vacated Defendant’s conviction for reckless endangerment because reckless endangerment was not properly charged in the indictment as a lesser-included offense of aggravated assault. On appeal, Defendant argues that there was insufficient evidence to convict Defendant of attempted tampering with evidence and that the trial court erred in instructing the jury on flight. After a thorough review of the facts and applicable case law, we affirm.

Knox County Court of Criminal Appeals 09/24/19
State of Tennessee v. Christopher Ogle
E2019-00258-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge David Duggan

The defendant, Christopher Ogle, appeals the order of the trial court revoking his probation and ordering him to serve his original
five-year sentence in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding the defendant violated the terms of his probation, and the imposed sentence is proper. Accordingly, the judgment of the trial court is affirmed.

Blount County Court of Criminal Appeals 09/24/19
State of Tennessee v. Kevin Waggoner
E2018-01065-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Kevin Waggoner, appeals his conviction for second degree murder for which he received an eighteen-year sentence. On appeal, the Defendant challenges: (1) the sufficiency of the evidence supporting his conviction; (2) the trial court’s failure to grant a change of venue; (3) the trial court’s failure to grant a new trial due to juror misconduct; (4) law enforcement’s failure to record the statements of the Defendant and the Defendant’s son; (5) the admission of testimony from the forensic pathologist related to crime scene reconstruction; (6) the trial court’s exclusion of the recording of the Defendant’s 911 call; (7) the trial court’s exclusion of evidence of the victim’s conduct directed at the Defendant and his family; and (8) the trial court’s denial of the Defendant’s request for access to the audio recordings of the trial. Upon reviewing the record and the applicable law, we affirm the trial court’s judgment.

Union County Court of Criminal Appeals 09/24/19
Isaac Scott v. State of Tennessee
W2019-00327-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County jury convicted the Petitioner, Isaac Scott, of first degree premeditated murder, for which the Petitioner received an automatic life sentence. The Petitioner appealed, and this court affirmed the conviction and sentence. See State v Isaac Scott, No. W2005-02902-CCA-R3-CD, 2006 WL 3837243 (Tenn. Crim. App., at Jackson, Dec. 28, 2006), perm. app. denied (Tenn. April 30, 2007). The Petitioner then filed a postconviction petition, claiming he received the ineffective assistance of counsel and, following a hearing, the post-conviction court denied relief. This court affirmed the post-conviction court’s denial. Isaac Scott v. State, No. W2009-01256-CCA-R3-PC, 2011 WL 744764 (Tenn. Crim. App., at Jackson, Mar. 2, 2011), perm. app. denied (Tenn. May 16, 2011). In May 2018, the Petitioner filed a “Motion for Plain and Harmless Error Review.” The trial court, treating the motion as a post-conviction petition, summarily dismissed the motion because the issues had been previously determined and the petition was a second petition. The Petitioner appeals the denial, maintaining that he is entitled to plain error relief due to the jury instructions, the sentencing hearing, and the jury composition. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 09/23/19
Kendall Joy v. State of Tennessee
W2019-00100-CCA-R3-ECN
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Kendall Joy, appeals from the denial of his petition for writ of error coram nobis by the Shelby County Criminal Court. The petitioner argues his Fourth Amendment rights were violated, and he was denied the effective assistance of counsel. After our review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 09/20/19
Deangelo Norton v. State of Tennessee
W2018-01420-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Deangelo Norton, 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.

Shelby County Court of Criminal Appeals 09/20/19
Jeremy P. Duncan v. State of Tennessee
W2019-00021-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County jury convicted the Petitioner, Jeremy P. Duncan, of two counts of aggravated assault, one count of possession of cocaine with the intent to sell, one count of possession of cocaine with the intent to deliver, two counts of possession of a firearm during the commission of a dangerous felony, one count of being a felon in possession of a handgun, and one count of tampering with the evidence. The trial court imposed an effective twenty-four-year sentence. The Petitioner appealed, and this court affirmed the convictions and sentence. See State v. Jeremy Peres Duncan, No. W2017-00529-CCA-R3-CD, 2018 WL 1182579 (Tenn. Crim. App., at Jackson, Mar. 6, 2018), perm. app. denied (Tenn. June 8, 2018). The Petitioner filed a post-conviction petition, claiming he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. The Petitioner appeals the denial, maintaining that his counsel was ineffective. After review, we affirm the post-conviction court’s judgment.

Madison County Court of Criminal Appeals 09/20/19
State of Tennessee v. Tevin Mantez Harris
M2018-00638-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jill Bartee Ayers

A Robertson County Circuit Court Jury convicted the Appellant, Tevin Mantez Harris, of second degree murder and possession of a firearm with the intent to go armed, and the trial court sentenced him to concurrent sentences of twenty-two years to be served at one hundred percent and eleven months, twenty-nine days, respectively. On appeal, the Appellant contends that the trial court erred by allowing witnesses to testify about his being Muslim and his “viewpoint” toward Christianity and that his twenty-two-year sentence is excessive because the trial court misapplied an enhancement factor. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Robertson County Court of Criminal Appeals 09/20/19
State of Tennessee v. Jonathan Michael Atha
E2018-00663-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Rex Henry Ogle

The Defendant, Jonathan Michael Atha, was convicted by a jury of two counts of aggravated rape, four counts of aggravated robbery, and three counts of aggravated kidnapping, for which he received an effective sentence of fifty years’ incarceration. On appeal, the Defendant argues (1) that the trial court erred by denying his motion to suppress the victims’ in-court identifications of the Defendant; (2) that the trial court erred by declining to issue a limiting jury instruction regarding the State’s failure to preserve evidence; (3) that the trial court erred in ordering the Defendant to serve consecutive sentences for aggravated rape; and (4) that the cumulative effect of these errors deprived the Defendant of a fair trial. Following our review, we affirm the judgments of the trial court.

Sevier County Court of Criminal Appeals 09/20/19
State of Tennessee v. Missy Daniella Lane
E2017-01907-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ben W. Hooper, II

A Cocke County Jury found Defendant, Missy Daniella Lane, guilty of reckless homicide. The trial court imposed a sentence of two years to be served in confinement. On appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to support her conviction for reckless homicide; (2) whether the trial court erred by denying Defendant’s motion for an extension of time to file an amended motion for new trial; (3) whether the Cocke County Grand Jury had jurisdiction to render a superseding presentment; (4) whether the trial court denied Defendant the right to peremptory challenges during voir dire; (5) whether Defendant was prejudiced by a violation of the rule of sequestration by the State’s witnesses; (6) whether the State committed prosecutorial misconduct by calling Derrick Raines as a witness; (7) whether the trial court violated Defendant’s right to a public trial; (8) whether the State’s expert witnesses testified improperly; (9) whether the trial court improperly denied Defendant’s request for jury instructions; (10) whether the jury was exposed to extraneous information; (11) whether the State committed prosecutorial misconduct during closing arguments; (12) whether the trial court properly denied alternative sentencing; and (13) cumulative error. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

Cocke County Court of Criminal Appeals 09/20/19
State of Tennessee v. Arnold Asbury
E2018-01095-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Sandra Donaghy

Arnold Asbury, Defendant, claims that the trial court erred by denying his “Motion to Withdraw Guilty Plea Prior to Sentencing” and, as a result, that he was denied a right to trial by jury. Although we determine that the trial court did not abuse its discretion in denying the motion to withdraw the guilty plea, we determine that the trial court committed reversible error at the subsequent sentencing hearing because it neither properly accepted Defendant’s Tennessee Rule of Criminal Procedure 11(c)(1)(C) plea agreement pursuant to Rule 11(c)(4) nor properly rejected the plea agreement pursuant Rule 11(c)(5). We reverse the judgments of the trial court and remand for a hearing in which the court may, in its discretion, either reject or accept the Rule 11(c)(1)(C) plea agreement. If the trial court rejects the plea agreement and Defendant opts to withdraw his guilty pleas, Defendant will have the right to a trial by jury. If the trial court accepts the agreement, it must sentence Defendant pursuant to the terms of the plea agreement.

Monroe County Court of Criminal Appeals 09/19/19
State of Tennessee v. Christopher Caldwell
M2018-02068-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Dee David Gay

The Defendant, Christopher Caldwell, appeals the Sumner County Criminal Court’s order revoking his community corrections sentence for his convictions for burglary of a motor vehicle and felony theft and ordering him to serve the remainder of his effective twelve-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his community corrections sentence. We affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 09/19/19