Court of Criminal Appeals Opinions

Format: 05/16/2022
Format: 05/16/2022
State of Tennessee v. Steven C. James
E2021-00559-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

In March of 2021, Steven C. James, Defendant, filed a “Motion for Relief from Sentence.” The trial court denied the motion without a hearing. Defendant appealed. After a review of the record, we determine Defendant filed an untimely notice of appeal document and that the interest of justice does not favor waiving the timeliness requirement in this case. Accordingly, the appeal is dismissed.

Knox County Court of Criminal Appeals 03/04/22
Demarkus Lowe v. State of Tennessee
E2021-00492-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Damarkus Lowe, appeals the denial of his petition for post-conviction relief from his first degree murder conviction, arguing that his trial counsel was ineffective for advising him not to testify in his own defense. Based on our review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 03/04/22
State of Tennessee v. Emily L. Williams
E2021-00339-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Emily L. Williams, appeals the trial court’s denial of her Rule 35 motion for a reduction of her four-year sentence for attempted tampering with evidence. She also attempts to appeal the original sentence imposed by the trial court. After review, we conclude that the time for her to appeal her original sentence has expired and the interest of justice does not require that the timely notice of appeal requirement be waived. We affirm the judgment of the trial court denying the motion to reduce the sentence.

Knox County Court of Criminal Appeals 03/04/22
State of Tennessee v. Keinesa Renee Kyshay Lillard
M2020-01569-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County grand jury indicted the defendant, Keinesa Renee Kyshay Lillard, for one count of attempted first-degree murder, one count of employing a firearm during the commission of a dangerous felony, one count of especially aggravated robbery, one count of evading arrest by use of a motor vehicle involving risk of death or serious bodily injury to others, and four counts of simple possession of a controlled substance.  Following trial, a jury convicted the defendant of attempted second-degree murder (count one) and employing a firearm during the commission of a dangerous felony (count two), for which she received an effective sentence of thirty-two years in confinement at 100 percent.  On appeal, the defendant argues the evidence presented at trial was insufficient to support her conviction for attempted second-degree murder, the trial court erred in failing to instruct the jury on the lesser-included offense of misdemeanor reckless endangerment, and her sentence was excessive.  After reviewing the record and considering the applicable law, we affirm the judgments of the trial court and remand for the execution of a amended judgment for the employing a firearm during the commission of a dangerous felony conviction.

Davidson County Court of Criminal Appeals 03/04/22
Yasin Solomon Hawkins v. State of Tennessee
M2021-00536-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, Yasin Solomon Hawkins, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that his waiver of the right to a jury trial was not knowing, intelligent, and voluntary.  After review, we affirm the post-conviction court’s judgment. 

Davidson County Court of Criminal Appeals 03/04/22
State of Tennessee v. Joseph Smith
W2021-00290-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Chris Craft

Pro-se petitioner, Joseph Smith, filed an untimely notice of appeal from the Shelby County Criminal Court’s denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Following our review of the entire record and the briefs of the parties, we conclude that the interest of justice does not warrant a waiver of the notice requirement because Petitioner failed to state a colorable claim for relief. Therefore, we dismiss this appeal as untimely.

Shelby County Court of Criminal Appeals 03/03/22
State of Tennessee v. Stevie Dean
W2021-00458-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

Defendant, Stevie Dean, was charged with one count of aggravated robbery. Following a trial, a jury convicted Defendant as charged, and the trial court sentenced him to twelve years’ incarceration with an eighty-five percent release eligibility. On appeal, Defendant argues that the evidence was insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 03/03/22
State of Tennessee v. Emily Leanne Brooks
E2020-01563-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Don W. Poole

The Defendant, Emily Leanne Brooks, entered an open guilty plea to second degree murder. Prior to sentencing, she obtained new counsel and filed a motion to withdraw her plea one week after it was entered. That motion, along with her subsequent motion to reconsider, was denied following the trial court’s balancing analysis of the factors set forth in State v. Phelps, 329 S.W.3d 436, 446 (Tenn. 2010), and its determination that the Defendant was not a credible witness. The Defendant was, thereafter, sentenced to twentyone years. She appeals as of right, noting that she immediately sought to withdraw her plea and arguing (1) that the significance of her traumatic brain injury on her decision-making process was underappreciated by her prior attorneys and the trial court, and (2) that given her difficulties, she should have been allowed to speak with her parents who were present in the courtroom before being required to accept the take-it-or-leave plea deal that was presented that day. Following our review, we affirm.

Hamilton County Court of Criminal Appeals 03/03/22
State of Tennessee v. Daron Hall
E2020-01634-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Daron Hall, was convicted by a Knox County Criminal Court jury of evading arrest, a Class E felony; driving a motor vehicle while his license was suspended, a Class B misdemeanor; criminal impersonation, a Class B misdemeanor; violating the “light law,” a Class C misdemeanor; and operating a motor vehicle without a proper license plate, a Class C misdemeanor. See T.C.A. §§ 39-16-603 (2018) (subsequently amended) (evading arrest), 55-50-504 (2018) (driving on a suspended license), 39-16-301 (2018) (criminal impersonation), 55-9-402 (2018) (motor vehicle light law), 55-5-114 (2018) (proper license plate). The trial court sentenced the Defendant as a career offender to six years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by denying his motion for a continuance. We affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 03/02/22
Henry Lee Jones v. State of Tennessee
W2020-01347-CCA-R10-PD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge W. Mark Ward

Henry Lee Jones, Petitioner, filed a pro se petition for post-conviction relief with the assistance of the Office of the Post-Conviction Defender (“OPCD”). The post-conviction court determined that the petition stated a colorable claim and appointed the OPCD to represent Petitioner. Shortly thereafter, the effects of COVID-19 began to impact and impede the day-to-day operations of parts of the Tennessee court system. The OPCD, citing the voluminous record and inability to fully investigate potential claims because of the impact of COVID-19, sought several extensions of time in which to file an amended petition. Seven months after the OPCD was appointed to represent Petitioner, the post-conviction court removed the OPCD from representation and appointed private counsel to represent Petitioner without notice or a hearing. The OPCD sought an extraordinary appeal to this Court pursuant to Rule 10 of the Rules of Appellate Procedure. This Court granted the application and directed the parties to address the following issues: (1) “whether the post-conviction court abused its discretion in removing the [OPCD] as counsel of record;” and (2) “whether the [OPCD] has the authority to act as counsel of record for [Petitioner] in this Court.” After review, we determine that the OPCD had the authority to appeal the removal and that the post-conviction court improperly removed the OPCD from the case. As a result, we reverse the judgment of the post-conviction court and remand the case for further proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 03/01/22
State of Tennessee v. Robert M. Atwell, Jr.
E2021-00067-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Stacy L. Street

Defendant, Robert M. Atwell, Jr., was convicted by a jury of one count of violating the sex offender registry. The trial court imposed a sentence of one year, with ninety days incarceration, and the remainder to be served on probation. On appeal, Defendant argues that: the trial court erred by admitting specific evidence of his prior sexual offenses after he offered to stipulate his status as a sex offender; his conviction for violation of the sex offender registry violates the Ex Post Facto Clause of both the United States and Tennessee Constitutions; there was a fatal variance between the indictment and the proof presented at trial; and there was cumulative error. Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Washington County Court of Criminal Appeals 03/01/22
State of Tennessee v. Seddrick Curry
W2020-01103-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Jennifer Johnson Mitchell

The Petitioner, Seddrick Curry, pleaded guilty to two counts of aggravated burglary, one count of theft of property valued at $10,000 or more but less than $60,000, and one count of theft of property valued at $1,000 or more but less than $10,000, and he was sentenced to an effective thirty-year period of incarceration. The Petitioner filed a motion to withdraw his guilty pleas, claiming that his pleas were not knowingly and voluntarily entered due, in part, to the ineffective assistance of counsel. The trial court denied the Petitioner’s motion, and the trial court’s decision was affirmed on appeal. The Petitioner then petitioned for post-conviction relief on the basis that he received ineffective assistance of counsel. The post-conviction court denied his petition, and the Petitioner appeals. After review, we conclude that the issue presented on appeal has been previously determined, and we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 02/28/22
Demarco Waters v. State of Tennessee
W2021-00428-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge James M. Lammey

The Petitioner, DeMarco Waters, appeals the denial of post-conviction relief with respect to his convictions for one count of first degree premeditated murder, three counts of attempted first degree murder, one count of attempted second degree murder, and four counts of employing a firearm during the commission of a dangerous felony, for which he received an effective sentence of life imprisonment plus seventy-seven years. On appeal, the Petitioner maintains that he received ineffective assistance of counsel at trial. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 02/28/22
Nathan Scarborough v. State of Tennessee
W2021-00402-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge John Wheeler Campbell

The Petitioner, Nathan Scarborough, pleaded guilty to aggravated child abuse of a child eight years of age or less and second degree murder, and he received an effective thirty-three-year sentence. The Petitioner filed a petition for post-conviction relief, contending that he received ineffective assistance of counsel and that he did not plead guilty knowingly and voluntarily. Following a hearing, the post-conviction court denied the petition, and the Petitioner appeals. After review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 02/28/22
State of Tennessee v. Earlie M. Jones
M2021-00087-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Stella L. Hargrove

The defendant, Earlie M. Jones, pled guilty to burglary, shoplifting, subsequent offense driving on a revoked license, and evading arrest, resolving the charges against him in five separate indictments.  As a result of his plea, he was sentenced to an effective term of four years’ incarceration.  On appeal, the defendant argues the trial court erred in denying his oral motion to withdraw his guilty pleas prior to imposition of the sentence.  After review, we affirm the judgment of the trial court but remand the case for entry of corrected judgments in Count 1 of case number 28153 and Count 2 of case number 28152.

Maury County Court of Criminal Appeals 02/28/22
State of Tennessee v. Randal Ledon Tate
E2021-00217-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Steven Wayne Sword

Defendant, Randal Ledon Tate, was convicted by a jury of possession with intent to sell less than fifteen grams of heroin within 1,000 feet of a school (count 1), possession with intent to deliver less than fifteen grams of heroin within 1,000 feet of a school (count 2), simple possession of Alprazolam (“Xanax”) (count 3), possession with intent to deliver Xanax within 1000 feet of a school (count 4), driving without a license (count 5), criminal impersonation (count 6), violation of the financial responsibility law (count 7), violation of the registration law (count 8), and driving a motor vehicle without operational taillights. (count 9). The trial court merged count 2 into count 1 and count 3 into count 4 and imposed an effective fifteen-year sentence as a Range I offender to be served in confinement. On appeal, Defendant argues: that the evidence was insufficient to support his convictions for possession of Xanax and heroin with intent to sell or deliver; that the trial court erred by admitting text messages about prior drugs sales; and that the trial court erred by denying his motion to dismiss based on an alleged Ferguson violation. After hearing oral arguments, and following a review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 02/28/22
Christopher Demotto Linsey v. State of Tennessee
M2020-01126-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Christopher Demotto Linsey, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel was ineffective for failing to file a motion to suppress evidence obtained from his cell phone, failing to object to evidence presented at trial, and failing to file a timely motion for new trial.   Based on our review, we affirm the judgment of the post-conviction court denying relief.   

Montgomery County Court of Criminal Appeals 02/25/22
State of Tennessee v. Martin Hubert White
M2021-00118-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Christopher V. Sockwell

The Appellant, Martin Hubert White, pled guilty in the Giles County Circuit Court to aggravated assault, a Class C felony, and burglary of an automobile, a Class E felony, and received an effective three-year sentence suspended to time served and supervised probation.  On appeal, the Appellant claims that the trial court erred by denying his request for judicial diversion.  Based upon our de novo review of the record and the parties’ briefs, we affirm the judgments of the trial court. 

Giles County Court of Criminal Appeals 02/25/22
State of Tennessee v. Jeremiah McDaniel
E2019-01862-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Andrew Mark Freiberg

The Appellant, Jeremiah McDaniel, was convicted in the Monroe County Criminal Court of solicitation of a minor to commit sexual battery, a Class A misdemeanor, and received a sentence of one hundred eighty days to be served in jail. On appeal, the Appellant contends that the trial court erred by constructively amending the indictment from solicitation of a minor to commit sexual battery by an authority figure to solicitation of a minor to commit sexual battery because sexual battery is not a lesser-included offense of sexual battery by an authority figure; that the evidence is insufficient to support the conviction because the evidence fails to show lack of consent; that the trial court should have dismissed the case or stricken the victim’s trial testimony because the State failed to produce the victim’s audio-recorded statement; that the trial court erred by admitting photographs of Facebook messages allegedly between the Appellant and the victim into evidence; that the trial court erred by limiting his cross-examination of the victim, by advising the victim of the victim’s Fifth Amendment rights, and by allowing the victim to invoke those rights; and that his six-month sentence in confinement is excessive. Based upon the record and the parties’ briefs, we conclude that sexual battery without consent is not a lesser-included offense of sexual battery by an authority figure but that sexual battery without consent is a lesser-included offense of solicitation of a minor to commit sexual battery by an authority figure. Therefore, the trial court properly instructed the jury on the lesser-included offense. However, we also conclude that the evidence is insufficient to support the Appellant’s conviction of solicitation of a minor to commit sexual battery. Therefore, the conviction is reversed and vacated, and the original charge is dismissed.

Monroe County Court of Criminal Appeals 02/24/22
State of Tennessee v. Marcus Malone
W2020-00364-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge W. Mark Ward

The Defendant, Marcus Malone, appeals as of right from his convictions for second degree murder, attempted first degree murder, five counts of attempted second degree murder, twelve counts of aggravated assault, six counts of employing a firearm during the commission of a dangerous felony, and reckless endangerment with a deadly weapon, for which the trial court imposed an effective sentence of one hundred thirty-three years. The Defendant contends that (1) the trial court erred by denying the Defendant’s motion to suppress his police statement; (2) the trial court erred by failing to inquire into the Defendant’s request for substitute counsel; (3) the trial court erred by instructing the jury on criminal responsibility and by failing to instruct the jury on facilitation or self-defense; (4) the evidence was insufficient to establish his identity as the shooter; (5) his sentence is excessive; (6) the trial court erred by imposing partial consecutive service; and (7) his aggregate sentence is unconstitutional in light of his status as a juvenile at the time of the offenses. After a thorough review of the record and applicable law, we affirm.

Shelby County Court of Criminal Appeals 02/24/22
State of Tennessee v. Lance White
W2020-01367-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Appellant, Lance White, was convicted in the Madison County Circuit Court of various offenses, including driving under the influence (DUI), fourth offense, and received an effective six-year sentence to be served as eleven months, twenty-nine days in confinement followed by five years on supervised probation. Subsequently, the trial court revoked the Appellant’s probation, and the Appellant filed a “Motion to Correct Sentence.” The trial court denied the motion, and the Appellant appeals. Based upon our review of the record and the parties’ briefs, we conclude that the appeal should be dismissed.

Madison County Court of Criminal Appeals 02/24/22
Demetrius Grimes v. State of Tennessee
E2021-00120-CCA-R3-PC
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Kyle A. Hixson

Petitioner, Demetrius Grimes, appeals the denial of his post-conviction petition arguing that the post-conviction court erred in denial of his petition. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the
post-conviction court.

Knox County Court of Criminal Appeals 02/24/22
Linda Anne Dunavant v. State of Tennessee
W2021-00454-CCA-R3-PC
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Joe H. Walker, III

Petitioner, Linda Anne Dunavant, appeals the denial of her post-conviction petition alleging that the post-conviction court erred in finding that she received the effective assistance of counsel at trial. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the post-conviction court.

Tipton County Court of Criminal Appeals 02/24/22
State of Tennessee v. Kevvon Clark
W2020-01036-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Paula Skahan

The Defendant, Kevvon Clark, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder; first degree felony murder; two counts of especially aggravated kidnapping, a Class A felony; aggravated rape, a Class A felony; and aggravated robbery, a Class B felony, for which he is serving an effective life sentence. See T.C.A. §§ 39-13-202 (2018) (subsequently amended) (first degree murder), 39-13-305 (2018) (especially aggravated kidnapping), 39-13-502 (2018) (subsequently amended) (aggravated rape), 39-13-402 (2018) (aggravated robbery). On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions for first degree murder, one count of especially aggravated kidnapping, and aggravated rape, and (2) this court should grant relief, as a matter of plain error, from the trial court’s failure to give a jury instruction in accord with State v. White, 362 S.W.3d 559 (Tenn. 2012). We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/24/22
State of Tennessee v. William Isaac Atwood
M2021-00690-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Gary McKenzie

A Clay County jury convicted the defendant, William Isaac Atwood, of possession of a prohibited weapon and possession of a firearm by a convicted felon, and the trial court imposed an effective Range II sentence of thirteen years’ incarceration.  On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and the trial court’s sentencing him as a Range II offender.  Upon our review of the record and the applicable law, we affirm the judgments of the trial court.  

Clay County Court of Criminal Appeals 02/24/22