COURT OF CRIMINAL APPEALS OPINIONS

State of Tennessee v. Dennis V. Morgan
W2001-00125-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge John P. Colton, Jr.
The defendant, Dennis V. Morgan, was convicted of second degree murder. The trial court imposed a Range I sentence of seventeen years. In this appeal of right, the defendant asserts that the trial court erred in its instruction on self-defense. The judgment of the trial court is reversed and the cause is remanded for a new trial.

State of Tennessee v. Dennis Morgan - Dissenting
W2001-00125-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John P. Colton, Jr.
I am unable to join with the majority’s holding that the jury instructions as submitted “deprived the defendant of right to present a defense.” First, I find the defendant to be the beneficiary of a gratuitous self-defense instruction based upon the proof introduced at trial. Not every cry of fear from a defendant justifies an instruction on self-defense. The test for determining whether the defense should be instructed is an objective one, not subjective. State v. Bult, 989 S.W.2d 730, 732 (Tenn. Crim. App. 1998). Nonetheless, even assuming the instruction was warranted, I find that the error did not infringe upon the defendant’s constitutional right to present a defense, as the majority finds, because the trial court submitted to the jury a self-defense instruction. The question, I believe, is whether omission of the single word “attempted” from the self-defense instruction, when viewed within the entire context of the instruction, was confusing,misleading, or prejudicial. State v. Hodges, 944 S.W.2d 346, 351-52 (Tenn. 1997); State v. Bonam, 7 S.W.3d 87, 89-90 (Tenn. Crim. App. 1999). Because I find that the error did not affect the result of the trial on its merits, I find the error harmless. See Tenn. R. Crim. P. 52(a).

State of Tennessee v. Darryl Lee Elkins
E2001-01245-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Jerry Beck

Defendant, Darryl Lee Elkins, was convicted by a Sullivan County jury of child rape, a Class A felony, and attempted child rape, a Class B felony. Defendant received consecutive sentences of twenty-five years for the Class A felony, and twelve years for the Class B felony. On appeal, Defendant challenges the sufficiency of the evidence to sustain the convictions, arguing that his convictions should be reversed because the “jury improperly accredited the victim’s testimony who committed perjury at trial.” After a thorough review of the record, we affirm the judgments.

State of Tennessee v. Darryl Lee Elkins - Concurring and Dissenting
E2001-01245-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

I concur in the majority opinion regarding the child rape conviction. I respectfully disagree regarding the attempted rape conviction. I believe the evidence is insufficient to convict the defendant of any offense above a Class B misdemeanor assault.

State of Tennessee v. Timothy Scott Barnes, David Grooms, and Richard Grooms
E2001-01390-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Ben W. Hooper, II

The defendants, Timothy Scott Barnes, David Grooms, and Richard Grooms, were convicted of attempted burglary, a Class E felony. The trial court imposed Range I sentences as follows: Timothy Scott Barnes, one year, three months; David Grooms, one year, six months; and Richard Grooms, one year, six months. In this appeal of right, the defendants challenge the sufficiency of the evidence. The judgments are affirmed.

State of Tennessee v. Christopher Tyce Hamblin
E2000-02804-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge E. Shayne Sexton

The defendant pled guilty to aggravated assault and was sentenced as a multiple Range II offender. He appeals his sentence of nine years and requests an alternative sentence of probation or community corrections. Based upon our review, we conclude that the trial court misapplied enhancement factor (11) and failed to consider two relevant mitigating factors. Furthermore, the trial court did not make findings as to how the enhancement factors were weighed to determine the appropriate sentence. We conclude, however, that the trial court's sentence of nine (9) years is appropriate based upon the defendant's lengthy history of criminal behavior. Furthermore, the defendant is not entitled to an alternative sentence because the length of his sentence exceeds eight years.

State of Tennessee v. Charles T. Sebree - Order
M2000-02810-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
The appellant was convicted upon pleas of guilty of the offenses of aggravated burglary, aggravated assault, and theft of property valued under $500. He received a sentence of five years for aggravated burglary consecutive to a sentence of five years for aggravated assault. A sentence of eleven months and twenty-nine days was ordered served concurrently with the five year sentences. In this appeal, he maintains that his five-year sentence should be reduced to three years because the trial judge failed to consider the testimony of his girlfriend in mitigation.

State of Tennessee v. Brian Leiderman
M2001-01590-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Buddy D. Perry

The defendant was convicted in January 2001 of aggravated assault and sentenced to four years in community corrections. Subsequently, while confined in the Grundy County Jail, he was charged with assaulting another inmate, which generated a probation revocation warrant. Following a hearing, the court revoked the community corrections sentence and ordered that he serve the sentence imposed for his aggravated assault conviction. He appealed the revocation, arguing that the evidence was insufficient to justify it and that his due process rights were violated because the trial court did not provide in its revocation order a written statement as to the evidence relied upon. We affirm the judgment of the trial court.

State of Tennessee v. James Bradley Warner
M2001-01371-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee Russell
The defendant was convicted of theft of property over $500, after being observed leaving a Wal-Mart store with merchandise for which he had not paid. In his appeal, he alleges that the proof of the value of the items was insufficient and that the trial court erred in ruling that certain of his prior convictions could be used for impeachment and in sentencing. We affirm the judgment of the trial court.

State of Tennessee v. Anthony L. Rogers
M2001-01729-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John W. Rollins

The defendant, Anthony L. Rogers, was indicted for attempted second degree murder and two counts of aggravated assault. He pled guilty to one count of aggravated assault, a Class C felony, and the remaining counts were dismissed. The trial court sentenced the defendant as a Range II, multiple offender to eight years in the Tennessee Department of Correction. As his sole issue on appeal, he argues that the trial court erred in ordering his sentence to be served consecutively to a federal sentence. We affirm the judgment of the trial court.

State of Tennessee v. Thomas Dee Huskey - Dissenting
2002-00030-CCA-R10-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Richard R. Baumgartner

As acknowledged by the majority in its carefully considered opinion, trial judges are vested with broad discretionary powers in the conduct of a trial. Courts must monitor all attorney conduct and may direct a remedy if the performance impedes the orderly administration of justice. United States v. Dinitz, 538 F. 2d 1214, 1219 (5th Cir. 1976). That authority necessarily includes the supervision of appointed counsel for indigent defendants. Moncier v. Ferrell, 990 S.W.2d 710
(Tenn. 1998). An extraordinary appeal to this court on any issue relative to the supervision of the trial which requires immediate appellate review may be granted only in limited circumstances: (1) when the trial court has so far departed from the accepted and usual course of judicial proceedings as to require intervention; or (2) if necessary for a complete determination of the case. Tenn. R. App. P. 10.

State of Tennessee v. Jerry B. Graves
E2001-00123-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Richard R. Baumgartner

The defendant was convicted of felony murder and especially aggravated robbery and sentenced to concurrent punishment of life imprisonment and twenty-three years, respectively. In his appeal, he argues that the trial court erred in not remanding the matter for another preliminary hearing after it was discovered that the first hearing had not been recorded; in limiting his cross-examination of two prosecution witnesses as to pending matters; and in admitting an autopsy photograph of the victim's head, with the scalp pulled back, to show the gravity of his wound. Based upon our review, we affirm the judgments of the trial court.

State of Tennessee v. Thomas Dee Huskey
E2002-00030-CCA-R10-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Baumgartner

The defendant, Thomas Dee Huskey, brings this extraordinary appeal in which he challenges the order of the Knox County Criminal Court removing his lead counsel of record for his retrial on four counts of first degree murder. The defendant asserts that the trial court’s action is an infringement on his Sixth Amendment right to counsel. We conclude that the trial court’s order violated the defendant’s right to counsel and exceeded its discretion. We vacate the trial court’s order and remand the case for further proceedings.

State of Tennessee v. Robin Davis
W2000-03137-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John P. Colton, Jr.

The defendant was convicted of first degree premeditated murder and theft over $1000, receiving a life sentence for the murder conviction and a consecutive two-year sentence for the theft conviction. Following the denial of his motion for a new trial, he filed a timely notice of appeal to this court. In addition to challenging the sufficiency of the evidence as to his murder conviction, he argues that the trial court erred by allowing the prosecutor to misstate law during voir dire; in not allowing defense counsel to question potential jurors about their personal experiences with crime; in allowing hearsay evidence to be presented at trial; in allowing the State to introduce evidence of uncharged crimes; and in allowing the prosecutor to make improper statements during closing argument. Based upon our review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Lue J. Holcomb
W2001-00743-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. C. Mclin

The appellant, Lue J. Holcomb, was convicted by a jury in the Shelby County Criminal Court of aggravated burglary. The trial court imposed a sentence of three and one-half years and ordered that six months of the sentence be served in confinement with the balance on probation. The appellant timely appealed, arguing that the evidence is not sufficient to support his conviction. After a review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Tony Walker
W2001-00929-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

The Appellant, Tony Walker, appeals the verdict of a Fayette County jury finding him guilty of attempted aggravated robbery. On appeal, Walker raises the single issue of whether the evidence is sufficient to support his conviction. After a review of the record, we affirm.

State of Tennessee v. Gregory Scott Allison
E2001-00248-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Gregory Scott Allison, appeals from the Blount County Circuit Court's revoking his probation that was ordered for his sentences for burglary and theft. The defendant contends that although the trial court may have been justified in finding that he violated the terms of his probation, it erred in sentencing him to confinement. We affirm the judgment of the trial court.

Corey L. Malone v. State of Tennessee
M2001-02133-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.
The petitioner originally pled guilty, pursuant to a negotiated plea agreement, to second degree murder and especially aggravated robbery for an effective sentence of twenty years. The petitioner filed a post-conviction relief petition, which was denied by the post-conviction court. In this appeal, the petitioner contends (1) he received ineffective assistance of counsel, and (2) his guilty pleas were unknowingly and involuntarily entered. After review, we affirm.

Mario Lambert v. Jack Morgan, Warden
M2002-00172-CCA-RM-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Timothy L. Easter

The Defendant, Mario Lambert, appealed as of right from the trial court's dismissal of his petition for writ of habeas corpus. This Court held that the trial court was without authority to sentence the Defendant as a Range I standard offender with a thirty percent release eligibility for the offense of second degree murder. We therefore concluded that, based on the record before us, the sentence imposed appeared to be an illegal sentence. We therefore reversed the judgment of the trial court dismissing the petition and remanded the case for further proceedings. See Mario Lambert v. Jack Morgan, Warden, No. M1999-02321-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 599 (Nashville, Aug. 7, 2001). On January 23, 2002, our supreme court remanded this case to us, directing us to reconsider our opinion in light of State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978), and further directed us, on remand, to "clarify the action to be taken by the Criminal Court pursuant to the opinion of the Court of Criminal Appeals when the case is remanded to the trial court." We again reverse the judgment of the trial court summarily dismissing the habeas corpus petition and remand this case to the trial court for further proceedings.

State of Tennessee v. James Wesley Strombergh
E2001-00199-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Stephen M. Bevil

A Hamilton County jury found the Defendant guilty of third offense driving under the influence and imposed a fine of $10,000. The trial court sentenced the Defendant to eleven months and twenty-nine days' incarceration, ordered him to attend an alcohol rehabilitation program, and revoked his license for a period of five years. In this appeal as of right, the Defendant contests the sufficiency of the convicting evidence and argues that the trial court erred by admitting evidence of his restricted driver's license. Although we conclude that sufficient evidence was presented at trial to support the Defendant's conviction, we conclude that evidence concerning the Defendant's restricted driver's license was improperly admitted at trial. We therefore reverse the Defendant's conviction and remand the case to the trial court for a new trial.

Terrance Perkins v. State of Tennessee
W2000-02910-CCA-MR3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Fred Axley

The Appellant, Terrance Perkins, appeals the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. In 1998, Perkins pled guilty to two counts of attempted first degree urder, five counts of aggravated assault, one count of felon in possession of a handgun, and one count of felony escape. Perkins, a Range I Standard Offender, received an effective thirty-one year sentence to be served in the Department of Correction. On appeal, Perkins, challenges the validity of his guilty plea upon grounds of: (1) voluntariness and (2) ineffective assistance of counsel. After a review of the record, the judgment of the post-conviction court dismissing the petition is affirmed.

State of Tennessee v. Percy M. Cummings
W2001-01721-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John P. Colton, Jr.

The Appellant, Percy M. Cummings, was convicted by a Shelby County jury of second degree murder and was sentenced to twenty-four years in the Department of Correction. On appeal, Cummings contends that the evidence presented at trial was insufficient to support the jury's verdict. After review, we find no error and affirm the judgment of the trial court.

Darrel Howard v. State of Tennessee
W2001-00813-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carolyn Wade Blackett

Pursuant to a plea agreement, the Petitioner pleaded guilty to nine counts of aggravated robbery and five counts of aggravated assault. The trial court sentenced the Petitioner to an effective sentence of twenty years in the Tennessee Department of Correction. The Petitioner subsequently filed for post-conviction relief, claiming that his plea was constitutionally defective because he was inadequately represented at the time of the plea and because the plea was not voluntarily, knowingly, and intelligently entered. The post-conviction court denied relief. After review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Walter Byers
E2001-00361-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Walter Byers, appeals from the Blount County Circuit Court's revocation of his community corrections sentence imposed upon his guilty plea to delivery of one-half gram or more of cocaine. The defendant contends that the trial court abused its discretion in revoking his community corrections sentence and sentencing him to confinement. We affirm the judgment of the trial court.

State of Tennessee v. Tommy G. Benham
M2000-02357-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Tommy G. Benham, was convicted of two counts of attempted aggravated robbery, a Class C felony. The trial court sentenced the defendant as a Range III, persistent offender to eleven years on each count, to be served concurrently. In this appeal of right, the defendant argues that the state failed to provide notice that it would seek enhanced punishment, as required by Tennessee Code Annotated section 40-35-202(a). The judgments of the trial court are affirmed.