Andrew M. Freiberg, Judge

Biography

Reports of Cases Reviewed by Appellate Courts – Beginning Jan. 1, 2022

Text is the appellate court’s summary of the opinion. 

Scroll down for important information.

 

State of Tennessee v. Peters,  E2022-01558-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 29, 2023).  Defendant, Christopher Alan Peters, was convicted by a McMinn County jury of aggravated burglary, and the trial court sentenced him as a Range II offender to ten years to serve in confinement. On appeal, Defendant argues that there is insufficient evidence to sustain his conviction because the State presented no evidence that he entered the residence with the intent to commit a theft. Following our review of the entire record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. 

 

State of Tennessee v. Kibodeaux,  E2022-01445-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 29, 2023).  We granted this interlocutory appeal to review the trial court’s order denying the State’s
motion to admit the preliminary hearing testimony of one of the victims who had subsequently, and unrelatedly, been killed, and granting the Defendant’s motion to exclude said testimony. The Defendant argued that the trial court should exclude the victim’s former testimony because the State withheld exculpatory information prior to the preliminary hearing in violation of the Defendant’s rights to confrontation, due process, and a fair trial. The trial court agreed with the Defendant, and the State appeals. Following our review, we reverse the trial court’s order and remand the case for further proceedings. 

 

State of Tennessee v. Wells,  E2022-00961-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 29, 2023).  In 2021, the Defendant, Timothy Eugene Wells, pleaded guilty to sexual assault by an authority figure, as a Range II offender, in exchange for a sentence of six to ten years with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court imposed an effective sentence of eight years of incarceration. On appeal, the Defendant asserts that the trial court abused its discretion when it ordered him to serve his sentence in confinement. After review, we affirm the trial court’s judgment.

 

State of Tennessee v. Locke,  E2022-01177-CCA-R3-CD (Tenn. Ct. Crim. App. June 8, 2023).  Defendant, Billy W. Locke, appeals from the trial court’s summary dismissal of his two motions to correct an illegal sentence filed pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. Following our review of the briefs of the parties, the record, and the applicable authorities, we affirm the judgments of the trial court pursuant to Court of Criminal Appeals Rule 20.

 

Millan v. State of Tennessee, No. E2021-00366-CCA-R3-PC (Tenn. Ct. Crim. App. Feb. 3, 2023).  The Petitioner, Edwin Orlando Millan, appeals from the Bradley County Criminal Court’s denial of his petition for post-conviction relief from his filing a false police report and tampering with evidence convictions. The post-conviction court granted relief in connection with the filing a fraudulent insurance claim conviction after determining that the Petitioner received the ineffective assistance of trial counsel. On appeal, the Petitioner contends that the court erred by denying relief on his remaining convictions because (1) he received the ineffective assistance of counsel, (2) the State elicited false trial testimony in violation of his due process rights, (3) the State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 376 U.S. 83 (1986), and (4) he is entitled to relief pursuant to the cumulative error doctrine. We affirm the judgment of the post-conviction court.

 

State of Tennessee v. Hamlin,  E2022-00139-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 10, 2023).  The Defendant, Carrie Joann Hamlin, was convicted by a McMinn County Circuit Court jury of sale of a Schedule II controlled substance within 1000′ of a drug-free zone, a Class C felony, for which she is serving a nine-year sentence. See T. C .A. § § 3 9-17-41 7 ( a)(3), (c)(2)(A) (2018) (subsequently amended) (sale of a controlled substance), 39-17-432 (2018) (subsequently amended) (Drug-Free Zone Act). On appeal, the Defendant contends that (1) the evidence is insufficient to support her conviction, (2) the trial court erred in declining to resentence her under the 2020 amendments to the Drug-Free Zone Act, and alternatively, (3) this court should remand her case to the trial court for resentencing under the 2022 amendments to the Drug-Free Zone Act. We affirm the judgment of the trial court. 

 

State of Tennessee v. Cochran,  E2022-00600-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 27, 2022).  The Defendant, Jeffrey Cochran, was convicted by a McMinn County Criminal Court jury of aggravated kidnapping, for which he is serving a nine-year sentence. See T.C.A. § 39- 13-304(a)(5) (2018). On appeal, he contends that (1) the trial court erred in denying, in part, his motion to suppress, (2) the trial court erred in denying his motion for a continuance, (3) the evidence is insufficient to support his conviction, and (4) his sentence is excessive. We affirm the judgment of the trial court.

 

State of Tennessee v. Pruitt,  E2021-01118-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 2, 2022). The Defendant, Randall Lee Pruitt, pleaded guilty in the Monroe County Criminal Court to three counts of rape, a Class A felony. See T.C.A. § 39-13-503 (2018). After a sentencing hearing, the trial court imposed nine and one-half years for each conviction and ordered consecutive service, for an effective twenty-eight-and-one-half-year sentence. On appeal, he contends that the court erred by ordering consecutive service. We affirm the judgments of the trial court.

 

State of Tennessee v. Locke,  E2021-00482-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 1, 2022).  The Defendant, Billy Wayne Locke, was convicted in two McMinn County Criminal Court bench trials of two counts of evading arrest while operating a motor vehicle, a Class E felony; driving while his license was revoked, a Class B misdemeanor; and reckless endangerment, a Class A misdemeanor. T.C.A. §§ 39-16-603(b) (2018) (subsequently amended) (evading arrest); 55-50-504 (2020) (driving while license revoked), 39-13-103 (2018) (subsequently amended) (reckless endangerment). The Defendant, a career offender, is serving an effective twelve-year sentence, consisting of six years in the Department of Correction and six years on probation. On appeal, the Defendant contends that the evidence is insufficient to support his evading arrest convictions. Because the Defendant waived his right to an appeal of his convictions, we dismiss the appeal.

 

State of Tennessee v. Erwin,  E2021-01232-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 15, 2022).  A Bradley County jury convicted the defendant, Bryan A. Erwin, of simple assault and aggravated assault for which the trial court imposed an effective three-year sentence to be served in the Tennessee Department of Correction. On appeal, the defendant contends that the State committed prosecutorial misconduct at various times during the trial and that the trial court erred in certain evidentiary rulings and in sentencing. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court. Additionally, we remand for the entry of corrected judgment forms to reflect the appropriate conviction for count 1, for simple assault, and count 2, for aggravated assault.

 

Sherlin v. State of Tennessee, No. E2021-00770-CCA-R3-PC  (Tenn. Ct. Crim. App. July 13, 2022).  Alina F. Sherlin, Petitioner, was indicted for first degree murder in 2013. After a jury trial, Petitioner was convicted of second degree murder and sentenced to 15 years in incarceration. Her conviction and sentence were affirmed by this Court on appeal. State v. Alina Frankie Sherlin, No E2017-01225-CCA-R3-CD, 2018 WL 3561728, at *1 (Tenn. Crim. App. July 24, 2018), perm. app. denied (Tenn. Dec. 7, 2018). Petitioner sought postconviction relief on the basis of ineffective assistance of counsel and also challenged the search and seizure of her property. After a hearing, the post-conviction court denied relief. Petitioner appealed to this Court. After a review, we affirm the denial of post-conviction relief.

 

State of Tennessee. v. Moses, No. E2021-00231-CCA-R3-CD (Tenn. Ct. Crim. App. Apr. 6, 2022). 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.

 

State of Tennessee v. Jeremiah McDaniel, No. E2019-01862-CCA-R3-CD (Tenn. Ct. Crim. App. Feb. 24, 2022). 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.

 

State of Tennessee v. Jeremy Isaac Martin, No. E2020-01259-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 27, 2022). A Bradley County jury convicted the Defendant, Jeremy Isaac Martin, of possession with intent to sell or deliver a Schedule II controlled substance, .5 grams. or more of methamphetamine. The trial court sentenced him as a multiple offender to fourteen years. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction. After review, we affirm the trial court’s judgment.

 

State of Tennessee v. Justin Richard Norton, No. E2020-01652-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 25, 2022). The Defendant, Justin Richard Norton, pleaded guilty to one count each of aggravated assault, theft of property, evading arrest, resisting arrest, and violating an order of protection. See T.C.A. §§ 39-13-102 (2018) (subsequently amended) (aggravated assault); -13-113 (2018) (subsequently amended) (violation of order of protection); -14-103 (2018) (theft of property); -16-602 (2018) (resisting arrest); -16-603(a) (2018) (subsequently amended) (evading arrest). The Defendant received an agreed three-year, splitconfinement sentence. The Defendant filed a motion to withdraw his guilty pleas, arguing that the pleas were made under duress and that the State failed to disclose exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The trial court denied his motion. On appeal, the Defendant argues that the trial court erred by denying his motion. We affirm the judgments of the trial court.

 

Understanding the Limitations and Use of the Information Found in This Book

Tennessee’s trial judges resolve hundreds of thousands of legal and factual issues in tens of thousands of cases every single year.  No appeal is filed in the vast percentage of those cases, indicating that while the “losing” party may not like a ruling on a particular issue, that party understands there was an appropriate reason for the judge’s decision or, at a minimum, the judge was acting within his or her discretion.

 

Of course, a small number of decisions of trial judges do result in an appeal. Experienced trial lawyers know that the number of cases appealed out of a particular trial judge’s court does not, in and of itself, reveal much about the trial judge. For example, some judges hear more complex cases than others, and those cases are more likely to be appealed. Convictions in child sex abuse cases are frequently appealed, as are many criminal cases resulting in long sentences. There are a large number of parental rights termination cases that find their way to the appellate courts.  Judges who routinely try those types of cases will, other things being equal, see more of their cases reviewed by appellate courts than judges who do not see such cases.

 

Second, certain litigants (and certain lawyers) are more likely to appeal a case than others.  Thus, judges who have those litigants or lawyers regularly appear in their courtrooms will find more cases reviewed by the appellate courts.

 

For these and other reasons, the reader is cautioned not to read too much into the number of cases appealed from a court.  Stated differently, there is no reason to believe that a judge who has ten cases reviewed by an appellate court in a single year is a “worse” judge than one who has one case appealed, or that a judge who has three cases appealed is a “better” judge than one who has nine cases appealed.

 

Next, the number of times a judge’s ruling is reversed by an appellate court is not necessarily indicative of the quality of his or her work. For example, experienced lawyers know that there are “holes in the law,” i.e., cases where there is no law directly on point and the judge is forced to predict what an appellate court would rule on the issue. The fact that a judge decided an open legal issue one way and an appellate court decided it another way does not mean that the trial judge was “wrong” or does not understand the law. It simply means that the trial judge had a different view of what the law should be than the appellate court that decided the issue. A trial judge is not blessed with a crystal ball that can with 100 percent accuracy forecast how an appellate court will rule on an undecided legal issue.

 

In addition, the trial court is sometimes not provided with the same in-depth legal arguments and law that is supplied to the appellate court by the parties, or which is provided by law clerks at the appellate level (many trial courts do not have law clerks). The trial judge may have reached the same conclusion as the appellate court if he or she had been supplied with additional law or argument.

 

Finally, the law changes constantly, and the trial judge may rule on a case based on today’s law, which may evolve between the time of that ruling and the issuance of an opinion of the appellate court. In such cases, the reversal of the case by the appellate court is a question of timing of the original court decision as compared to changes in the law, not one of error by the trial court.

 

So, what is the value of this book?  How can the trial lawyer use it to help his or her clients given the limitations expressed above? Permit me to digress slightly.

 

You have seen the coffee cups or t-shirts that proclaim, “A good lawyer knows the law, but a great lawyer knows the judge.”

 

Some read this phrase as suggesting that the “great lawyer” is one who has an improper relationship with the judge – that he or she can use a personal relationship to improperly influence the judge.  But most lawyers know better.  Most lawyers understand that “knowing the judge” means knowing the judge’s background, preferences concerning the presentation of evidence (including exhibits), arguments of motions, drafting of proposed orders, and given that experience, how he or she is likely to rule on a particular issue.  “Knowing the judge” also means knowing the local rules, local forms, local customs, and what things irritate the judge (and every judge is irritated by at least one thing that lawyers or litigants may do).

 

Many lawyers, particularly those in more rural areas of the state or who limit their practice to one area of law, understand the personality and preferences of the judges they see on a regular basis. Many of these lawyers may have a fair advantage appearing before that judge. (The advantage is “fair” because it results from experience and knowledge.)  That advantage – knowing how the judge thinks and his or her preferences – is not outcome-determinative, but it still may be an advantage, similar to a sports team playing on their home field.

 

Why did I say it “may” be an advantage, given what I said earlier about the benefits of “knowing the judge?”  Because simply knowing the judge’s thought processes and preferences is not enough. You still need to have the law and the facts on your client’s side.  And you need to be prepared to be able to give the judge what he or she needs to know to make a ruling.

 

So, the purpose of “The Book” is to give Tennessee lawyers case-related information to help them understand the trial judge who will rule on their client’s case or preside over a jury trial. By looking at past appellate court rulings arising from cases decided by the trial judge, anyone unfamiliar with a judge can get a “feel” for the judge. The case data contained herein does not compare with daily or weekly appearances in front of the judge on issues like a given case, but it is readily available information that give you an idea of how the judge has ruled in the past on a variety of matters.

 

The cases included are those originally decided by the trial judge that were in appellate court opinions released on or after January 1, 2022.  Note that there are a substantial number of judges who first took office in 2022 and thus it is reasonable to assume that there will be no appellate decisions for such judges until late 2023 or 2024.

 

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