APPELLATE COURT OPINIONS

The Petitioner, James E. Swiggett, appeals the trial court's dismissal of his petition for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has not established that the trial court was without jurisdiction to convict or sentence him or that his sentence has expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The petitioner filed a petition for post-conviction relief and petition for DNA analysis under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petitioner's request for DNA analysis and did not rule on the post-conviction relief claim. The post-conviction relief issue has been waived. The petitioner is not entitled to DNA analysis because he has failed to meet all of the criteria set forth in the statute. The judgment of the post-conviction court is affirmed.

The Petitioner, Jason Warren Allen, appeals the trial court's dismissal of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition is time-barred and the petitioner asserts no claim which would toll the statute of limitations. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The Cocke County grand jury indicted the defendant, Stokely J. U. Way, with six counts of rape and six counts of incest. His trial was held on July 31 and August 1 of 2001. The jury convicted the defendant of two counts of rape and two counts of incest. The trial court sentenced the defendant as a Range I Standard Offender to twelve (12) years on each rape conviction, to run concurrently, and three (3) years for each incest count to run concurrently to each other, but consecutively to the rape sentences. However, because there were multiple rape convictions, the defendant's release eligibility for the rape convictions is 100%. The trial court levied the full fines recommended by the jury of $50,000 for the rape convictions and $20,000 for the incest convictions. The defendant brings five issues on appeal: (1) whether the trial court erred in allowing the hearsay testimony of the victim's friend, Mary Ann Breeden, as to what the victim told her regarding her father's incestuous relationship with her; (2) whether the trial court erred by allowing the defendant's preacher to testify about communications between him and the defendant in violation of the clergy/parishioner privilege; (3)whether the evidence was insufficient to establish the offenses of incest or rape and more specifically, the element of force or coercion; (4) whether the trial court erred in not charging all applicable lesser-included offenses including assault, sexual battery, attempted rape, attempted incest and child abuse; and (5) whether the sentences and fines imposed by the trial court were excessive. We affirm the trial court's judgments.

The petitioner, Thaddeus D. Daniel, appeals the trial court's dismissal of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petition presents no cognizable claim for habeas corpus relief, does not state the cause or pretense of the petitioner's restraint, and was not filed in the appropriate court. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

Defendant, Brandon D. Forbes, was indicted on one count of aggravated robbery and one count of theft. Following a jury trial, defendant was convicted of both counts. The trial court merged the two counts into a single count of aggravated robbery. Following a sentencing hearing, defendant was sentenced to serve ten years. In this appeal as of right, defendant challenges the sufficiency of the evidence and argues that his sentence was excessive. After a careful review of the record, we affirm the judgment of the trial court.

The petitioner, Clifford Ward, Jr., appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his guilty pleas to two counts of rape of a child, two counts of aggravated sexual battery, and effective twenty-five-year sentence. He contends that he received the ineffective assistance of counsel because his trial attorney failed to investigate his case. We affirm the trial court.

Petitioner, Blake E. Hallum, appeals from the trial court's summary dismissal of his petition for writ of error coram nobis. After a review of the record and the applicable law, we affirm the judgment of the trial court.

The petitioner appeals the trial court’s finding that the petitioner received effective assistance of counsel both before and during trial. We affirm the denial of the post-conviction relief.

The defendant was convicted by a Hamilton County Criminal Court jury of four counts of attempted first degree murder, Class A felonies; aggravated arson, a Class A felony; and false imprisonment, assault, and theft under $500, all Class A misdemeanors. He was sentenced by the trial court to an effective sentence of twenty-two years and six months in the Department of Correction. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court, raising the following issues: (1) whether the evidence was sufficient to support his convictions for aggravated arson and attempted first degree murder; (2) whether the trial court erred in denying his motion to suppress his statements to law enforcement officers; (3) whether the trial court erred in allowing the State to call a rebuttal witness during the presentation of its case in chief; (4) whether the trial court properly sentenced the defendant for his attempted first degree murder and aggravated arson convictions; and (5) whether the cumulative errors prevented the defendant from receiving a fair trial. Based on our review, we affirm the judgments of the trial court, but remand for entry of a corrected judgment for the defendant's assault conviction in Count 2 of Case No. 234375.

A Metro Nashville police officer stopped the appellant for improper mounting of tags on his vehicle and drinking a beer while driving in downtown Nashville. After performing poorly on the field sobriety test, the police officer arrested the appellant and asked him to take a breathalyzer test. After taking the test, the officer determined the appellant was intoxicated and arrested him for Driving Under the Influence (DUI). The appellant now appeals arguing that the evidence was insufficient to support his conviction and the State did not meet the requirements under State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), for introducing the breathalyzer test. We conclude that there is sufficient evidence to support the conviction and that the Sensing requirements are not applicable to the case at hand because the results of the breathalyzer test were not introduced into evidence. We also hold that the arresting officer's testimony concerning the appellant's behavior while taking the breathalyzer test was admissible in evidence against the appellant. Therefore, we affirm the judgment of the trial court.

The Appellant, James Q. Wilkerson, appeals the decision of the Wilson County Circuit Court sentencing him to three years confinement in the Department of Correction. On appeal, Wilkerson contends that the trial court erred in denying an alternative sentence. After review, we conclude that the sentencing proof is insufficient to overcome the statutory presumption that Wilkerson is a favorable candidate for alternative sentencing. Accordingly, we modify Wilkerson's sentence to reflect a sentence of split confinement.

The Defendant, James E. Taylor, petitioned for post-conviction relief from his convictions of aggravated assault, aggravated burglary, and aggravated kidnapping. He alleged that he received ineffective assistance of counsel. After a hearing, the trial court denied relief, and the Defendant now appeals. We affirm the judgment of the trial court.

The appellant, Clifford James Engum, pled guilty in the Madison County Criminal Court to vehicular homicide by recklessness and aggravated assault with a deadly weapon, to-wit: a motor vehicle. Pursuant to the plea agreement, the appellant received a total effective sentence of eight years incarceration in the Tennessee Department of Correction. The trial court ordered the appellant to serve one year of his sentence in confinement and the remainder of his sentence on probation. On appeal, the appellant contests the trial court's denial of full probation and the eight-year suspension of his driver's license. Upon review of the record and the parties' briefs, we remand to the trial court for correction of the judgment of conviction for vehicular homicide to reflect that the appellant's driving privileges in the state of Tennessee are revoked for a period of eight years. The judgments of the trial court are affirmed in all other respects.

I concur in the results reached and most of the reasoning used in the majority opinion. However, I respectfully disagree with its views regarding Kathy Spada’s testimony resulting from her review of the victim’s purported medical records. I believe that her testimony regarding her review of the records, the basic contents of the records, and her “opinion” based upon her review of the records should have been excluded from the evidence. As the majority opinion notes, the records in question are not part of the record on appeal. The state’s comments at trial and Ms. Spada’s testimony indicate that the records were ostensibly regarding a physical examination of the victim when she was three years old. The parties stipulated that the records were from either a Dayton doctor or hospital with whom Ms. Spada was not affiliated and for whom she was not a proper custodian of the records.

The defendant, pharmacist Richard Robinson, pled guilty to five counts of the unlawful disbursement of a controlled substance. The Sullivan County Criminal Court imposed an effective sentence of four years probation. On appeal, the defendant contends (1) the trial court erred in denying judicial diversion, and (2) the trial court improperly restricted his employment as a pharmacist as a condition of probation. Upon review of the record and the applicable law, we affirm the trial court's denial of judicial diversion but vacate the trial court's imposition of the probationary condition.

The petitioner, Joseph Martin Thurman, appeals the dismissal of his petition for post-conviction relief based upon its filing beyond the statute of limitations. He argues that due process considerations tolled the limitations period of Tennessee Code Annotated section 40-30-102(a) and that the trial court erred in dismissing the petition without an evidentiary hearing. Because the time for filing the petition cannot be tolled under the circumstances presented in this case, we conclude that the petition for post-conviction relief was untimely and we affirm the decision of the trial court.

The petitioner, Jack Jay Shuttle, appeals the Sullivan County post-conviction court's denial of his petition to compel testing of evidence pursuant to the Post-Conviction DNA Analysis Act. Upon review of the record and the applicable law, we reverse the judgment of the post-conviction court.

The appellant, Floyd “Butch” Webb, was convicted by a Rhea County jury of one count of aggravated sexual battery, a Class B felony; two counts of sexual battery, Class E felonies; and four counts of child abuse, Class A misdemeanors. Following a sentencing hearing, the trial court imposed a total effective sentence of twelve years to be served in the Tennessee Department of Correction. On appeal, the appellant contends that (1) the trial court erred by admitting evidence of a fresh complaint by a child victim; (2) the trial court erred by allowing a witness to testify about medical records of which she was not the custodian; and (3) the sentence imposed by the trial court was excessive. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.

The defendant, Timothy P. Wilmoth, pled guilty to possession of less than .5 grams of cocaine and misdemeanor evading arrest. The trial court imposed concurrent sentences of six years and eleven months, twenty-nine days, respectively. All but thirty days was suspended. Later, the defendant's probation was revoked and he was ordered to serve the sentence in the Department of Correction. In this appeal as of right, the defendant concedes a violation of the terms of his probation, but asserts that he should have been returned to probation or placed on community corrections. The judgment of the trial court is affirmed.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court’s denial of habeas corpus relief. The Petitioner fails to assert a cognizable ground for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. Because the state's closing argument was improper and the error cannot be classified as harmless, the judgment of the trial court is reversed and the cause is remanded for a new trial

Following his transfer from juvenile court, the appellant, Quinton Sanders, was convicted of first degree felony murder, attempted theft of property over $1,000 but less than $10,000 in value, and theft of property over $10,000 but less than $60,000 in value. He received sentences of life imprisonment, two years, and five years, respectively. All sentences are to be served consecutively. In this appeal, the appellant maintains that the trial court erred in failing to instruct the jury with respect to any lesser-included offenses of felony murder. The appellant also maintains that the trial court erred in excluding evidence of the Memphis Police Department's policies and procedures regarding high-speed chases. The State maintains that the trial court properly excluded evidence of the high speed chase policies and procedures, but concedes that the trial court erred in declining to instruct the jury with respect to the lesser-included offenses of felony murder. After an exhaustive examination of the record and applicable authorities, we conclude that the trial court did indeed err in declining to instruct the jury on the lesser-included offenses of felony murder and the error is not harmless beyond a reasonable doubt. We also conclude that the trial court properly excluded evidence of the high speed chase policies and procedures of the Memphis Police Department. Accordingly, the appellant's conviction for first degree felony murder is Reversed and Remanded for a new trial in accordance with this opinion. His remaining convictions for attempted theft and theft as well as the sentences for those offenses are affirmed.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner, Johnny Marvin Henning, appeals the trial court's denial of his petition for habeas corpus relief. Finding that the Petitioner has failed to assert a ground entitling him to habeas corpus relief, this Court affirms the judgment of the trial court dismissing the petition.

The defendant was convicted by a Henderson County Circuit Court jury in consolidated cases of aggravated robbery, a Class B felony, and especially aggravated robbery, a Class A felony. He was sentenced by the trial court as a Range I, standard offender to eight years for the aggravated robbery conviction, and as a violent offender to twenty years for the especially aggravated robbery conviction, with the sentences ordered to be served concurrently, for an effective sentence of twenty years in the Department of Correction. He raises essentially one issue on appeal: whether the trial court erred in denying his pretrial motion to suppress his statement to police. Following our review, we affirm the judgments of the trial court.