Court of Criminal Appeals Opinions

Format: 05/17/2022
Format: 05/17/2022
Tarence Nelson v. State of Tennessee
W2021-00896-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Chris Craft

After being convicted of two counts of first degree murder, Tarence Nelson, Petitioner, sought a direct appeal and post-conviction relief. See State v. Tarence Nelson, No. W2011- 02222-CCA-R3-CD, 2013 WL 12185279, at *1 (Tenn. Crim. App. May 24, 2013), perm. app. denied (Tenn. Oct. 16, 2013); Tarence Nelson v. State, No. W2017-02063-CCA-R3- PC, at *1 (Tenn. Crim. App. Aug. 12, 2019), perm. app. denied (Tenn. Jan. 15, 2020). Petitioner was not successful in either appeal. Petitioner sought relief via the writ of error coram nobis while the post-conviction petition was pending. That petition was ultimately dismissed. Petitioner filed another petition for writ of error coram nobis. It was summarily dismissed on the basis that it was untimely. After a review, we affirm the judgment of the criminal court.

Shelby County Court of Criminal Appeals 04/18/22
State of Tennessee v. David Johnson
W2019-01133-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Lee V. Coffee

On October 12, 2018, a Shelby County jury convicted the Defendant, David Johnson, of aggravated rape committed in February 2000, based on DNA evidence linking him to the crime. On appeal, the Defendant asserts that he is entitled to have the conviction reversed and dismissed because he was not timely indicted. He also argues that the State failed to establish the chain of custody of the DNA evidence. We conclude that the Defendant was timely indicted through a “John Doe” indictment and that the trial court did not abuse its discretion in finding that the chain of custody was adequately established for the DNA evidence. Accordingly, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 04/18/22
Michael Bland v. State of Tennessee
W2021-00897-CCA-R3-ECN
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey, Jr.

In 2015, a Shelby County jury convicted the Petitioner, Michael Bland, of first degree premeditated murder, and the trial court imposed a life sentence. On February 20, 2020, the Petitioner filed a petition for a writ of error coram nobis, alleging that newly discovered evidence exists. After a hearing on the petition, the coram nobis court issued an order denying the petition. The Petitioner appeals, arguing that the coram nobis court erred by denying relief. The Petitioner asserts that newly discovered evidence would have changed the outcome of the trial. After review, we affirm the coram nobis court’s judgment.

Shelby County Court of Criminal Appeals 04/18/22
State of Tennessee v. Justin Antonio McDowell
E2020-01641-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Justin Antonio McDowell, was convicted by a Knox County Criminal Court jury of two counts of possession of more than 0.5 gram of cocaine with the intent to sell or deliver within a drug-free zone, a Class A felony; possession of more than twenty-six grams of methamphetamine with the intent to sell, deliver, or manufacture within a drug-free zone, a Class A felony; unlawful possession of a firearm by a person previously convicted of a violent felony, a Class B felony; and two counts of unlawful possession of a firearm with the intent to go armed during the commission of a dangerous felony, a Class D felony. See T.C.A. §§ 39-17-417(a), (c), (i) (possession of cocaine or methamphetamine) (2018) (subsequently amended); 39-17-1307(b)(1) (possession of a firearm after previously having been convicted of a violent felony); 39-17-1324(a) (possession of a firearm with the intent to go armed during the commission of a dangerous felony) (2018) (subsequently amended); 37-17-1324(g)(2) (increasing the penalty for unlawful possession of a firearm with the intent to go armed during the commission of a dangerous felony, if the defendant had a prior felony conviction at the time of the present offense). The trial court merged two of the firearm convictions and imposed an effective thirty-year sentence, to be served at 100%. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions, (2) the trial court erred in denying his motion to suppress evidence obtained after his unlawful detention and a warrantless search of his car and motel room, (3) the trial court erred in admitting drug evidence because an unbroken chain of custody was not established, and (4) he is entitled to a sentence reduction due to post-sentencing changes to the drug-free zone sentence enhancement statute. We affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 04/14/22
Oscar Smith v. State of Tennessee
M2022-00455-CCA-R3-PD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Angelita Blackshear Dalton

Petitioner, Oscar Smith, a death row inmate, appeals the trial court’s order denying his “Motion to Reopen Post-Conviction Proceedings and/or for Review under Post-Conviction DNA Analysis Act of 2001.”  The trial court denied Petitioner’s motion to reopen and his DNA petition in the same order.  Petitioner has filed a notice of appeal (Docket No. M2022-00455-CCA-R3-PD) and an application for permission to appeal (Docket No. M2022-00460-CCA-R28-PD).  The Court hereby consolidates these two appeals under Docket No. M2022-00455-CCA-R3-PD.  The record has been filed and Petitioner, in addition to having filed an application for permission to appeal, has already filed his appellate brief.  Upon our review, we affirm the rulings of the trial court pursuant to Court of Criminal Appeals Rule 20.

Davidson County Court of Criminal Appeals 04/14/22
State of Tennessee v. Wayne David Jones
M2020-00871-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Wayne David Jones, was convicted by a jury of two counts of reckless homicide, one count of aggravated child abuse, and one count of child neglect, for which he received an effective twenty-five-year sentence.  On appeal, the Defendant argues that the evidence was insufficent to support his convictions because the jury improperly weighed conflicting expert medical testimony regarding the thirteen-month-old victim’s head trauma and cause of death.  Following our review, we find that the evidence was sufficient to support the Defendant’s convictions.  However, we determine error with the classification of the Defendant’s child neglect conviction as a Class A misdmeanor and the imposition of a misdemeanor sentence.  Accordingly, we vacate the conviction and sentence for child neglect and remand for entry of a modified Class E felony child neglect conviction and for the trial court to impose a corresponding felony sentence.  In all other respects, we affirm. 

Davidson County Court of Criminal Appeals 04/12/22
State of Tennessee v. Amanda L. Moore
M2020-01147-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Amanda L. Moore, Defendant, appeals after a jury convicted her of two counts of vehicular assault, one count of driving under the influence (“DUI”), and one count of reckless endangerment.  The trial court merged the DUI conviction into the convictions for vehicular assault.  Defendant was sentenced to an effective sentence of four years.  After the denial of a motion for new trial, Defendant appealed, arguing: (1) the trial court improperly admitted the results of a blood draw used by the hospital for medical treatment; (2) the trial court improperly allowed her to be questioned extensively about her driving history on cross-examination; (3) the trial court improperly allowed the State to meet with its expert during cross-examination; and (4) the trial court had improper ex parte communication with the jury during deliberation.  After a review, we affirm the judgments of the trial court but remand to the trial court for entry of a judgment form for DUI.  

Sumner County Court of Criminal Appeals 04/12/22
State of Tennessee v. Derrick Himes
M2020-00407-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Royce Taylor

A Rutherford County Circuit Court Jury convicted the Appellant, Derrick Himes, of three counts of rape of a child and three counts of aggravated sexual battery.  The trial court imposed a sentence of twenty-five years for each rape of a child conviction and eight years for each aggravated sexual battery conviction.  The trial court imposed concurrent sentences of twenty-five years for each rape of a child conviction, concurrent sentences of eight years for each aggravated sexual battery conviction, and ordered that the
twenty-five-year sentence and the eight-year sentence be served consecutively for a total effective sentence of thirty-three years.  On appeal, the Appellant contends that (1) the trial court erred in denying the Appellant’s motion for a judgment of acquittal and motion for new trial because the evidence was insufficient to sustain the convictions, (2) the trial court abused its discretion by allowing the prosecutor to elicit irrelevant and prejudicial testimony from the State’s witnesses, and (3) the trial court erred in imposing consecutive sentencing.  Upon review, we affirm the judgments of the trial court. 

Rutherford County Court of Criminal Appeals 04/12/22
State of Tennessee v. Mark Dewayne McMurry
M2021-00223-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Defendant, Mark Dewayne McMurry, was indicted for and pleaded guilty to robbery.  Prior to sentencing, Defendant moved to recuse the trial judge.  The trial court denied Defendant’s motion for recusal and, following a sentencing hearing, sentenced Defendant as a Range II multiple offender to serve 10 years in incarceration.  In this appeal as of right, Defendant challenges his sentence as excessive and argues that the trial court should have granted his motion for recusal.  Following our careful review of the record, we affirm the judgment of the trial court.  

Sumner County Court of Criminal Appeals 04/12/22
Tut M. Tut v. Kevin Genovese, Warden
W2021-01290-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge R. Lee Moore, Jr.

The pro se Petitioner, Tut Mayal Tut, appeals the summary dismissal of his petition for writ of habeas corpus. Discerning no error, we affirm the judgment of the habeas corpus court but remand the case for entry of corrected judgments.

Lake County Court of Criminal Appeals 04/11/22
Markist Cole v. State of Tennessee
W2021-00973-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Petitioner, Markist Cole, appeals the dismissal of his petition for post-conviction relief. He asserts that due process considerations warranted the tolling of the one-year statute of limitations mandated by Tennessee Code Annotated section 40-30-102(a). Following our review, we affirm the dismissal of the petition.

Madison County Court of Criminal Appeals 04/11/22
Lamario Hill v. Kevin Genovese, Warden
W2021-01150-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge R. Lee Moore, Jr.

The pro se Petitioner, Lamario Hill, appeals the Lake County Circuit Court’s summary dismissal of his petition for writ of habeas corpus from his convictions for first degree felony murder, attempted especially aggravated robbery, and aggravated assault, for which he received a sentence of life imprisonment and concurrent sentences of nine and four years, respectively. On appeal, the Petitioner argues that the judgment for his life sentence is void (1) because it was imposed pursuant to Tennessee Code Annotated section 40-35-501(i), which he claims is invalid, and because it was imposed in contravention of Tennessee Code Annotated sections 40-35-501(a)(2) and 40-28-115(b)(1); and (2) because it was imposed in violation of the Eighth Amendment pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). We affirm the judgment of the habeas corpus court.

Lake County Court of Criminal Appeals 04/11/22
Billy Gene DeBow v. State of Tennessee
M2021-00471-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Michael E. Spitzer

The Petitioner, Billy Gene DeBow, appeals the Hickman County Circuit Court’s summary dismissal of his pro se petition seeking habeas corpus relief from his first-degree murder conviction.  On appeal, the Petitioner argues that the habeas corpus court abused its discretion by dismissing his petition without ruling on the merits of his claims and that he is entitled to habeas corpus relief because his judgment is void and his sentence is illegal.  Upon review, we affirm the judgment summarily dismissing the petition. 

Hickman County Court of Criminal Appeals 04/08/22
State of Tennessee v. Michael Dillon Lambdin
E2020-01590-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Michael Dillon Lambdin, appeals the post-conviction court's denial of his petition seeking relief from his conviction for first degree felony murder and life sentence.In this appeal, the Petitioner contends that he received ineffective assistance of trial counsel because (1) counsel failed to file a motion to suppress the Petitioner's police statement due to the Petitioner's intoxication; (2) counsel failed to object to crime scene and autopsy photographs; (3) counsel introduced a prejudicial crime scene photograph of the victim;(4) counsel failed to object to an improper statement made during the State's rebuttal argument; and (5) counsel failed to request an accomplice jury instruction in writing. The Petitioner also asserts that the cumulative effect of these errors deprived him of a fair trial.After reviewing the record and the applicable authorities, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 04/07/22
State of Tennessee v. Gerald N. Crawford
M2021-00271-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Gerald N. Crawford, pleaded guilty to delivery of heroin, a Class B felony, and possession with the intent to sell heroin, a Class B felony.  See T.C.A. § 39-17-417(a)(2), (4) (2018) (subsequently amended).  Pursuant to the plea agreement, the Defendant received concurrent twelve-year, Range I sentences, and after a sentencing hearing, the trial court ordered the Defendant to serve the sentences in the Department of Correction.  The Defendant filed a motion to modify the manner of service of the sentences, which the court denied.  On appeal, the Defendant contends that the trial court abused its discretion in denying the motion.  We affirm.

Davidson County Court of Criminal Appeals 04/07/22
State of Tennessee v. Christopher Scott Montella
M2020-00016-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge M. Wyatt Burk

The Defendant, Christopher Scott Montella, was convicted by a Marshall County Circuit Court jury of aggravated sexual battery, a Class B felony.  See T.C.A. § 39-13-504 (2018).  He received a sentence of eleven years.  On appeal, the Defendantcontends that (1) the evidence was insufficient to support the Defendant’s conviction, (2) the trial court erred by denying the Defendant’s motion to sever, (3) the trial court erred by denying the Defendant’s motion to suppress evidence obtained during a search, (4) the Defendant suffered a violation of Brady v. Maryland 373 U.S. 83 (1963) when the State failed to inform the Defendant the victim’s trial testimony would be different than the victim’s previous testimony, (5) the trial court erred by denying the Defendant’s motion for a mistrial based on juror misconduct, and (6) the trial court erred by sentencing the Defendant to eleven years.  We conclude that the trial court erred by denying the Defendant’s motion to sever; however, the error was harmless.  We reverse the Defendant’s conviction based on juror misconduct and remand the case for a new trial.

Marshall County Court of Criminal Appeals 04/07/22
Kristina Cole v. State of Tennessee
W2020-01607-CCA-R3-PC
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge J. Robert Carter, Jr.

Petitioner, Kristina Cole, appeals the denial of her post-conviction petition arguing that the post-conviction court erred in its denial of her petition. Following our review of the entire record and the briefs of the parties, 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 04/07/22
State of Tennessee v. Jesse D. Moses
E2021-00231-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Andrew M. Freiberg

A jury convicted Defendant, Jesse D. Moses, of one count of Class B felony unlawful possession of a firearm after being convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon. See Tennessee Code Annotated section 39-17- 1307(b)(1)(A) (2017). The trial court sentenced Defendant to twenty years’ incarceration with a thirty-five percent release eligibility. On appeal, Defendant argues that the evidence was insufficient to prove that his prior conviction for aggravated burglary was a felony involving the use of force, violence, or a deadly weapon and that the trial court erred by instructing the jury that a “[p]rior ‘crime of violence’ includes any degree of burglary.” Upon review, we determine that Defendant’s prior aggravated burglary was a felony involving the use of force, violence, or a deadly weapon and that the trial court’s jury instruction was not prejudicially erroneous. We affirm the judgment of the trial court.

McMinn County Court of Criminal Appeals 04/06/22
State of Tennessee v. Tarrance Jershun Perry
W2020-01464-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Donald H. Allen

The Appellant, Tarrance Jershun Perry, was convicted in the Madison County Circuit Court of rape, a Class B felony, and the trial court sentenced him to fifteen years to be served at one hundred percent release eligibility. On appeal, the Appellant contends that a constructive amendment of the indictment and a fatal variance occurred when the indictment charged him with rape by force or coercion but the proof at trial showed rape without consent and that the evidence is insufficient to support the conviction. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 04/06/22
State of Tennessee v. Ernest G. McBrien
W2021-00158-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

The defendant, Ernest G. McBrien, appeals the order of the trial court denying his motion to dismiss, revoking his probation, and ordering him to serve his original six-year sentence in confinement. Upon our review of the record and the parties’ briefs, we reverse the judgment of the trial court and dismiss both the original and amended probation violation warrants against the defendant.

Madison County Court of Criminal Appeals 04/06/22
State of Tennessee v. Kenndrick Ledbetter
W2021-001401-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Kenndrick Ledbetter, was convicted by a Shelby County Criminal Court jury of attempted voluntary manslaughter, attempted especially aggravated robbery, employing a firearm during the attempt to commit a dangerous felony, and convicted felon in possession of a firearm. On appeal, the Defendant challenges the sufficiency of the evidence in support of his attempted voluntary manslaughter conviction and argues that the trial court erroneously admitted prejudicial victim impact testimony and abused its discretion in not ordering that the Defendant’s sentence for employing a firearm during the attempt to commit a dangerous felony be served first so that the Defendant’s pretrial jail credits could be applied toward that sentence. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/04/22
State of Tennessee v. Randy Ray Ramsey
E2021-00266-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Carter S. Moore

In this delayed appeal, the Defendant, Randy Ray Ramsey, appeals his conviction for second degree murder and corresponding twenty-five-year sentence. The Defendant contends that his due process rights were violated when the jury venire saw him in shackles during jury selection, including one juror who served on the jury panel. After reviewing the record and the applicable authorities, we conclude that the error was harmless and affirm the Defendant’s conviction.

Cocke County Court of Criminal Appeals 04/04/22
Jeremy McMillon v. State of Tennessee
E2020-01260-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Barry Steelman

The petitioner, Jeremy McMillon, appeals the denial of his petition for post-conviction relief, which petition challenged his conviction of first degree murder, alleging that he was deprived of the effective assistance of counsel and that the State committed prosecutorial misconduct at trial. Because the petitioner has failed to establish that he is entitled to postconviction relief, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 04/04/22
State of Tennessee v. Kenneth Cox
E2021-00621-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

Defendant, Kenneth Cox, was acquitted of premeditated murder and convicted by a Knox County jury of two counts of especially aggravated robbery and three counts of the lesser included offense of criminally negligent homicide. The trial court properly merged Defendant’s convictions and imposed an effective sentence of 38 years’ incarceration. Defendant appeals, asserting that the trial court erred by denying his motion to suppress statements he made to police following his invocation of his right to counsel and that the evidence at trial was insufficient to support his convictions. Having reviewed the entire record and the parties’ briefs, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 04/01/22
State of Tennessee v. Joel Edward Scott
W2021-00169-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Charles C. McGinley

On December 4, 2006, the Defendant entered a guilty plea to rape of a child and received an agreed seventeen-year, six-month sentence in the Tennessee Department of Correction. On January 11, 2021, the Defendant filed a Motion to Correct Judgment pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure, claiming that he had not received all the pre-trial jail credit he was owed. After review, the trial court denied the Defendant’s motion. Finding no error, we affirm the judgment of the trial court.

Hardin County Court of Criminal Appeals 04/01/22