COURT OF CRIMINAL APPEALS OPINIONS

State vs. William M. Hukowicz
M1999-00073-CCA-R9-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: J. O. Bond
Following a suppression hearing, the Wilson County Criminal Court, J.O. Bond, J., ordered certain portions of the defendant's statement given to police suppressed, holding that the defendant had exercised his right to remain silent. The state filed an interlocutory appeal. The Court holds that the evidence does not preponderate against the trial court's finding that the defendant's refusal to answer other questions by stating "no comment" or a similar declaration was a proper assertion of the defendant's right to remain silent. However, the trial court should have suppressed the entire statement given following the defendant's assertion of his right to remain silent. Remanded.

State vs. Ricky Lee Cook
M2000-00178-CCA-R3-CD
Authoring Judge: Judge Cornelia A. Clark
Trial Court Judge: Jane W. Wheatcraft
Defendant appeals the revocation of his probation and reinstatement of a portion of his original sentence. The defendant plead guilty to possession of drug paraphernalia, and received a sentence of eleven (11) months, twenty-nine (29) days, which was completely suspended after the service of forty-eight (48) hours. After a revocation hearing, the trial court revoked defendant's probation and required him to serve a portion of his sentence. Concluding that the defendant violated at least four specific terms of his probation, we affirm the judgment of the trial court.

State vs. Gerald W. McCullough
M1999-01525-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: William Charles Lee
The defendant, Gerald W. McCullough, was convicted of aggravated sexual battery. The trial court imposed a twelve-year sentence. In this appeal of right, the defendant contends that the trial court erred by allowing proof of more than one instance of sexual misconduct and by imposing an excessive sentence. Because the sentence was not excessive, and because the defendant waived the issue of the admissibility of uncharged sex crimes, the judgment is affirmed.

State vs. Joe W. Steward
M1999-01284-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: Cornelia A. Clark
Because the defendant, Joe W. Steward, was lawfully stopped at a traffic enforcement roadblock, his conviction for driving under the influence, second offense, is affirmed. The issue reserved on appeal by the defendant does not warrant suppression of the evidence.

State vs. Timothy C. Hutson
M1999-00329-CCA-R9-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Steve R. Dozier
This appeal arises from the order of the Davidson County Criminal Court upholding the district attorney general's refusal to accept the application of the defendant, Timothy C. Hutson, for pretrial diversion. The defendant asserts that the trial court erred in failing to determine that the district attorney general abused his discretion by relying on facts not supported by the evidence and by failing to consider all relevant factors. We conclude that substantial evidence was before the district attorney general to support the validity of each factor relied on in denying pretrial diversion and that there was substantial evidence to show that the district attorney general considered all relevant factors. Accordingly, the judgment of the trial court is affirmed.

State vs. Dana Louise Solomon
E1999-01108-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Mary Beth Leibowitz
The appellant, Dana Louise Solomon, was convicted by a jury in the Knox County Criminal Court of first degree murder and received a sentence of life imprisonment in the Tennessee Department of Correction. On appeal, she raises several issues for our review. However, because the appellant failed to timely file her motion for new trial, she has waived all issues with the exception of her challenge to the sufficiency of the evidence underlying her conviction. Moreover, the appellant failed to timely file her notice of appeal. Nevertheless, in the interest of justice, we address the sufficiency of the evidence. Upon a review of the record and the parties' briefs, we affirm the judgment of the trial court.

State vs. Jesse Ross Tolbert
E1999-02326-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: E. Eugene Eblen
Defendant appeals as of right from his conviction of aggravated assault. At trial the trial judge did not let defense counsel question the sole prosecution witness about the witness' guilty plea to extortion and subsequent judicial diversion. The court did allow questioning regarding the facts underlying the witness' prosecution. Defendant now alleges that this evidentiary ruling violated his rights under the confrontation clauses of the United States and Tennessee Constitutions. We hold that the trial court erred. Under Tennessee Rule of Evidence 608 defense counsel should have been allowed to question the witness regarding the guilty plea and judicial diversion. However, we conclude that the error is harmless beyond a reasonable doubt. We thus affirm the judgment of the trial court.

State of Tennessee v. Carolyn L. Curry
W1999-00688-CCA-R10-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: C. Creed Mcginley

Thomas H. Caffey vs. Kevin Myers, Warden
M2000-00200-CCA-R3-PC
Authoring Judge: Sr. Judge L. Terry Lafferty
Trial Court Judge: Jim T. Hamilton
Petitioner challenges the trial court's summary dismissal of his petition for writ of habeas corpus. Petitioner was convicted in Davidson County in 1985 of two counts of armed robbery and felonious use of a motor vehicle. He was sentenced to two terms of life imprisonment and an additional four years, to be served consecutively to one another and consecutively to a prior Oklahoma sentence. Petitioner does not challenge the legality of the convictions underlying his current sentences, but rather asserts that equitable estoppel and a due process violation mandate that he not be required to serve his Tennessee sentences. Upon our review of the record, we affirm the dismissal of the petition for writ of habeas corpus.

State vs. Jerry W. Yancey, Jr.
M1999-02131-CCA-R3-CD
Authoring Judge: Sr. Judge L. Terry Lafferty
Trial Court Judge: Timothy L. Easter
The appellant/defendant, Jerry W. Yancey, Jr., was convicted by the Williamson County Jury on four counts, two counts of aggravated assault and two counts of felony reckless endangerment. In count five, the defendant was found not guilty of felony reckless endangerment. Upon the defendant's conviction for aggravated assault, the trial court imposed sentences of three and one-half (3-_) years in the Department of Correction. However, the trial court placed the defendant on probation for four (4) years with certain special conditions, mainly that the defendant serve sixty (60) days, day for day, in the Williamson County Jail. In his appeal, the defendant challenges: (1) Whether the trial court erred in finding that the District Attorney General did not abuse his discretion in denying the defendant pre-trial diversion?; and (2) Whether the trial court erred in denying the defendant full probation? Upon our review of the entire record, we find no reversible error and affirm the judgment of the trial court.

State vs. Elpidio Valdez
M1999-00791-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: J. Randall Wyatt, Jr.

State vs. Elpidio Valdez
M1999-00791-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: J. Randall Wyatt, Jr.

State vs. Arnold K. Ward
M1999-00357-CCA-R3-CD
Authoring Judge: Sr. Judge L. Terry Lafferty
Trial Court Judge: Timothy L. Easter
The appellant/defendant, Arnold K. Ward, Jr., appeals as of right from a judgment of conviction and sentencing imposed by the Williamson County Circuit Court. Upon jury conviction for attempted murder second degree and assault, the trial court imposed sentences of eleven (11) years for attempted murder second degree and eleven (11) months and twenty-nine (29) days for assault. The trial court ordered the sentences to be served concurrently. In his appellate issues, the defendant asserts that: (1) the indictment for count one is defective; (2) the defendant was denied his right to compulsory process; (3) extra-judicial communication during the trial between a witness and a juror contaminated the proceedings; (4) there was insufficient evidence for which a rational trier of fact could find the defendant guilty; (5) the defendant was convicted of a charge that does not exist under Tennessee law; and (6) the defendant's sentence is excessive. After a review of the entire record, we find the appellate issues without merit and affirm the trial court's judgment.

State vs. Wayne Michael Fuller
E1999-01676-CCA-R3-CD
Trial Court Judge: Ray L. Jenkins
The defendant appeals from his sentence imposed for seven counts of statutory rape, a Class E felony, in the Knox County Criminal Court. The trial court imposed a sentence of two years for each count to be served in the Department of Correction. The trial court imposed consecutive sentencing on five counts and concurrent sentencing was imposed on two counts, for an effective sentence of ten years. In this direct appeal, the defendant challenges the length of the sentence and consecutive sentencing. We affirm the judgment of the trial court.

State vs. William Dozier
W1999-00243-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: William B. Acree
The defendant entered guilty pleas to three charges of sale of more than .5 grams of cocaine. The trial court sentenced the defendant as a Range I, standard offender to eight years in the Tennessee Department of Correction on each charge. The court ordered that the sentences be served concurrently for an effective sentence of eight years and fined the defendant $2,000. In this appeal as of right, the defendant challenges the sentence imposed by the trial court, arguing that the court erred by denying him an alternative method of punishment. We conclude that the trial court considered all relevant factors needed to reach an appropriate sentence and that its findings are adequately supported by the record. The defendant has failed to meet his burden of showing that the sentence was improper, and, accordingly, the judgment of the trial court is affirmed.

State vs. Ronald Fielding
M2003-01055-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Cheryl A. Blackburn
The Defendant, Ronald Fielding, pled guilty to three counts of rape of a child, one count of rape of an incapacitated victim and two counts of aggravated sexual battery. Following a sentencing hearing, the trial court imposed an aggregate sentence of fifty years in prison to be served at 100 percent. On appeal, the Defendant contends that: (1) the trial court improperly weighed the enhancement and mitigating factors; (2) the trial court abused its discretion by ordering that his sentences run consecutively; and (3) his sentence is excessive. Finding no error, we affirm the trial court's judgments.

State vs. Jason Norton
M2000-00074-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: John H. Gasaway, III
In April of 1999, the Robertson County grand jury indicted the defendant for hindering a secured creditor and for failure to appear in court on charges related to a third offense. Thereafter, the trial court appointed the defendant counsel, and this attorney filed a motion to dismiss the charges of hindering a secured creditor. Through this motion the defendant essentially averred that the facts would not support a conviction for the offense. Following an evidentiary hearing, the trial court ruled in the defendant's favor, and the State subsequently brought this appeal asserting that the trial court improperly invaded the province of the jury by ruling on the sufficiency of the evidence. After analyzing relevant caselaw and the record, we find that the State's position has merit and, therefore, reverse the trial court's ruling.

State vs. Shannon Hagewood
M2000-00972-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Allen W. Wallace
On November 16, 1999, Shannon Hagewood, the defendant and appellant, pled guilty to three counts of aggravated burglary in a Dickson County Criminal Court. Following a sentencing hearing, the trial court sentenced the defendant as a multiple, Range II offender to six years for the first count, six years for the second count, and eight years for the third count. The court also ordered the defendant to serve the eight-year sentence consecutively to the two six-year sentences, which were to be served concurrently to each other. On appeal, the defendant claims (1) that he did not receive notice, as required by statute, that he would be sentenced as a multiple offender, (2) that the trial court's imposition of an eight-year sentence was erroneous; and (3) that the trial court's imposition of consecutive sentences was erroneous. After a thorough review of the record, we find that, although the trial court did not place its findings in the record, this court's de novo review supports the sentence imposed. Accordingly, we affirm the judgment of the trial court.

State vs. Michael E. Wallace
M1999-02187-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Steve R. Dozier
On August 25, 1998, a Davidson County Grand Jury indicted Michael E. Wallace, the defendant and appellant, of one count each of the following: possession of cocaine with intent to sell more than .5 grams of cocaine, simple possession of marijuana, possession of a weapon, possession of drug paraphernalia and evading arrest. Following a jury trial, the defendant was convicted for possession with intent to sell less than .5 grams of cocaine, a lesser included offense of count one. The defendant was also convicted of all other counts as charged. After a sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender, to serve ten years for possession of cocaine with intent to sell consecutively to two years for possession of a weapon. For the remaining counts, the court ordered the defendant to serve two eleven month and twenty-nine day sentences concurrently to each other and the other counts. On appeal, the defendant claims (1) that the evidence was insufficient to support his conviction; (2) that the trial court erroneously allowed a police officer to offer expert opinion testimony; (3) that the trial court erroneously denied the defendant's motion for a mistrial after a witness testified to prior bad acts of the defendant; (4) that the court erroneously refused to instruct the jury to consider lesser-included offenses; and (5) that the court erroneously ordered consecutive sentences. After a thorough review of the record, we affirm the judgment of the trial court.

State vs. Christopher Karvey
M1999-02590-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Seth W. Norman
The defendant entered a plea of guilty to DUI, and attempted to reserve a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i). The defendant contends that the stop of his vehicle by police was illegal and that all evidence obtained as a result thereof must be suppressed. Because the defendant failed to properly reserve the certified question, the appeal is dismissed.

Steven Leach vs. State
M1999-00774-CCA-R3-PC
Authoring Judge: Judge Jerry Smith
Trial Court Judge: James O. Bond
On November 19, 1995, a Smith County Grand Jury indicted Steven Edward Leach, the defendant and appellant, for first-degree murder, felony murder, two counts of rape of a child, and attempted rape of a child. Pursuant to a plea agreement, the defendant pled guilty to first-degree murder and rape of a child and the trial court sentenced him to serve life without parole for the murder consecutively to twenty-five years for the rape. The defendant filed a post-conviction petition, and, following a hearing, the trial court denied the petition. On appeal, the defendant claims (1) that he was denied his right to counsel of his choice; (2) that he was denied the effective assistance of counsel; (3) that he was denied his due process right to be present at a hearing; and (4) that the cumulative effect of the trial court's errors violated his due process rights. Because the evidence does not preponderate against the findings of the trial court, we affirm its judgment.

State vs. Anthony E. Collier
M1999-01408-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Seth W. Norman
On March 31, 1998, Metropolitan Nashville Police Officers executed a search warrant on the residence and person of Anthony E. Collier, the defendant and appellee. Police searched the defendant, his vehicle and his residence and seized drugs, drug paraphernalia and weapons. The defendant moved to suppress the evidence, and, following a suppression hearing, the trial court granted the defendant's motion. On appeal, the State claims that the trial court erred. We hold that the search of the defendant was not supported by probable cause and any evidence seized from the defendant's person was thus properly suppressed. However, we also find that the failure of the trial court to make findings of fact with respect to the question of whether the contraband was in plain view and thus subject to seizure requires us to remand this case for entry of such findings pursuant to Tenn. R. Crim. P. 12(e). Finally, the search of the defendant's residence was supported by the warrant; thus any evidence seized from the defendant's vehicle or residence should not have been suppressed. Accordingly, we reverse in part and affirm in part the judgment of the trial court, and we remand the case to the trial court for further proceedings in accordance with this opinion.

State vs. Ronald Jerome Butler
M1999-01034-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Seth W. Norman
Ronald Jerome Butler was convicted by a jury in the Davidson County Criminal Court of one count of aggravated kidnapping and one count of aggravated robbery, both class B felonies. For the offense of aggravated kidnapping, the trial court sentenced the appellant as a Range I offender to ten years incarceration in the Tennessee Department of Correction, requiring him to serve one hundred percent of his sentence in confinement. For the offense of aggravated robbery, the trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction, requiring him to serve thirty percent of his sentence in confinement. The trial court further ordered that the sentences be served consecutively. On appeal, the appellant raises the following issues for review: (1) whether his conviction of aggravated kidnapping violates principles of due process; and (2) whether the trial court erred in sentencing him. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

State vs. Kevin Washington
W2000-02736-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
The Appellant, Kevin Washington, appeals from the dismissal of his petition for post-conviction relief by the Madison County Circuit Court. On appeal, the Appellant contends that trial counsel never informed him that his "packaged" plea agreement included a plea of guilty to Class C theft of property and, therefore, his plea was involuntarily entered. We find this contention without merit. The judgment of the post-conviction court is affirmed pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

State vs. Letivias Prince
M1998-00005-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Donald P. Harris
The defendant, Letivias Prince, was convicted of first degree murder and was sentenced to life imprisonment. On appeal, the defendant argues that the jury pool did not adequately represent the racial makeup of the community; that pre-trial publicity deprived him of a fair trial; that the trial court erred by permitting eight peremptory challenges in jury selection; that the trial court erred by allowing the state to either call a rebuttal witness or receive a missing witness instruction; that the trial court erred by instructing the jury regarding the order of consideration of offenses; and that the evidence was insufficient to sustain his conviction. The judgment of the trial court is affirmed.