Cheryl A. Blackburn, 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.

 

Davis v. State of Tennessee, No. M2023-00048-CCA-R3-PC (Tenn.  Crim. App. Feb. 6, 2024). The Petitioner, Omari Davis, pled guilty to possessing heroin with intent to sell or deliver. After a sentencing hearing, the trial court sentenced the Petitioner as a Range II, multiple offender to serve a term of eighteen years. Thereafter, the Petitioner sought post-conviction relief, alleging that he was denied the effective assistance of counsel when his trial counsel failed to seek a competency evaluation. At the hearing, the Petitioner also argued that trial counsel was ineffective when he failed to seek a continuance of the sentencing hearing. The post-conviction court denied relief as to the competency evaluation but did not address the continuance issue. On our review, we respectfully affirm the judgment of the post-conviction court.

 

State of Tennessee v.  Eady, No. M2021-00388-SC-R11-CD (Tenn. Feb. 6, 2024).  This appeal presents two issues. First, we consider whether the District Attorney General’s Office should have been disqualified from prosecuting this case because the District Attorney General previously served as counsel for the accused in a separate case. Second, we consider the propriety of conducting a single trial for multiple offenses under the theory that the separate crimes were all parts of a larger, continuing plan. David Wayne Eady was charged in one indictment with committing multiple robberies in Nashville over the course of a month. Mr. Eady moved to disqualify the District Attorney General’s Office, primarily because the District Attorney General had represented him in a criminal matter approximately thirty years earlier. The prior matter resulted in a conviction that the State sought to use in this case to qualify Mr. Eady as a repeat violent offender for sentencing purposes. The trial court denied the motion to disqualify, noting the limited nature of the District Attorney General’s involvement in this case and the “mandatory nature of the repeat violent offender statute.” See Tenn. Code Ann. § 40-35-120(g) (2019). Mr. Eady also moved to sever the offenses, which the trial court denied upon finding that the crimes were parts of a common scheme or plan and that the evidence of one offense would be admissible in the trial of the others. See Tenn. R. Crim. P. 14(b)(1). Mr. Eady ultimately was convicted as charged of eleven counts of aggravated robbery, two of which later were merged, and one count of attempted aggravated robbery. Upon Mr. Eady’s appeal as of right, a divided panel of the Court of Criminal Appeals affirmed. State v. Eady, No. M2021-00388-CCA-R3-CD, 2022 WL 7835823, at *1 (Tenn. Crim. App. Oct. 14, 2022),perm. app. granted, (Tenn. Jan. 31, 2023). The intermediate appellate court was unanimous in rejecting the challenge to prosecution of the case by the District Attorney General’s Office. Id. at *34–35. After noting that there was “no real dispute between the parties that [the District Attorney General] had an actual conflict of interest disqualifying him from participating in [Mr. Eady’s] prosecution,” the court seemed to proceed on the assumption that an actual conflict of interest existed but nevertheless held that this conflict did not require disqualification of the entire office. Id. at *34. In addition, a majority of the court upheld the denial of a severance. Id. at *28–30. One judge dissented, however, concluding that the offenses should have been severed because the evidence did not reflect that the offenses were parts of a larger, continuing plan. Id. at *38–42 (McMullen, J., dissenting in part). We granted Mr. Eady’s appeal to address both issues. As for the motion to disqualify, we agree with the State’s argument before this Court that the circumstances do not establish an actual conflict of interest for the District Attorney General, and we conclude that the trial court correctly denied the motion to disqualify the District Attorney General’s Office. As for the motion to sever, we have determined that the record does not establish that the offenses were parts of a larger, continuing plan. Thus, we conclude that the trial court erred in denying a severance. However, we find the error harmless as to all convictions except the one in count eight. Accordingly, we affirm the judgment of the Court of Criminal Appeals in part, reverse it in part, and remand to the trial court for further proceedings consistent with this opinion.

State of Tennessee v. Wells, No. M2022-01561-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 5, 2023).  The Defendant, George Wells, pleaded guilty to reckless homicide with an agreed-upon sentencing range of two to five years. Following a hearing, the trial court denied the Defendant’s request for diversion or any other form of alternative sentencing and imposed a five-year incarcerative sentence. The Defendant appeals the trial court’s sentencing decision, challenging the length, manner of service, and denial of judicial diversion. After review, we determine that the trial court abused its discretion by failing to consider and weigh all of the relevant judicial diversion factors and by utilizing an improper factor. Based upon our de novo review of the judicial diversion factors, the trial court’s judgment is reversed, and the Defendant’s request for judicial diversion is granted. The matter is remanded to the trial court for the imposition of a term and the conditions of judicial diversion.

 

State of Tennessee v. Murray, No. M2022-01525-CCA-R3-CD (Tenn. Ct. Crim. App. May 3, 2023).  The defendant, Mario Deshon Murray, pleaded guilty to unlawful possession of a firearm after being convicted of a felony involving violence, and the trial court imposed a sentence of fifteen years’ incarceration in the Tennessee Department of Correction. On appeal, the defendant argues the trial court erred in denying his request for alternative sentencing, in misapplying mitigating factors, and in imposing consecutive sentences. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

 

State of Tennessee v. Lyons,  No. M2019-01946-SC-R11-CD (Tenn.  May 15, 2023).  The Uniform Commercial Code provides a mechanism for secured creditors to give notice to the world of their security interest in debtors’ property as collateral for debt by filling out a form for a financing statement and posting it on the website for Tennessee’s Secretary of State. In this case, that system was weaponized. Collectively, the defendants filed over a hundred bogus financing statements on the Secretary of State’s website regarding over forty Tennessee residents, including judges, mayors, public officials, law enforcement officers, prosecutors, and ex-spouses. The online financing statements falsely claimed liens for the defendants’ alleged security interest in the victims’ property as collateral for millions of dollars in fictitious debt. All were done for the apparent purpose of vexing and harassing the victims. All of the defendants were convicted of multiple counts of filing a lien without a reasonable basis, a Class E felony, and forgery of at least $250,000, a Class A felony. We granted permission to appeal in this case to address the forgery convictions. We hold that the defendants’ conduct fits within the statutory definition of forgery. We also hold that the evidence was sufficient to support the jury’s finding that the apparent value associated with the fraudulent financing statements was over $250,000. Accordingly, we affirm the judgment of the Court of Criminal Appeals.  Editor’s Note:  Concurring/Dissenting Opinion:  I concur in the majority’s conclusion that the evidence was sufficient to support the Defendants’ convictions for forgery. I agree with the majority that the Defendants’ conduct fits within the statutory definition of forgery under Tennessee Code Annotated section 39- 14-114(b)(1)(B). I write separately to dissent from the majority’s conclusion that the evidence was sufficient to support sentencing the Defendants for forgery as a Class A felony. Based on the text of the applicable statutes, I would hold that the evidence was not sufficient to support the jury’s finding that the UCC-1s had a fair market value of at least $250,000. 1 I would reverse the holding of the Court of Criminal Appeals as to the value associated with the Defendants’ forgery convictions.

 

State of Tennessee v. Sampson, No. M2022-00148-CCA-R3-CD (Tenn. Ct. Crim. App. May 3, 2023). Defendant, Emanuel Kidega Samson, was convicted of three counts of civil rights intimidation, one count of first-degree premeditated murder, seven counts of attempted first-degree murder, seven counts of employing a firearm during the commission of a dangerous felony, twenty-four counts of aggravated assault, and one count of reckless endangerment. He received a sentence of life without the possibility of parole for his firstdegree murder conviction. The trial court imposed an effective sentence of 281 years for the remaining convictions to be served consecutively to the life sentence. On appeal, Defendant argues that the trial court improperly excluded expert testimony as to his mental health; that the evidence was insufficient to support his convictions for civil rights intimidation, attempted first-degree premeditated murder, and first-degree premeditated murder; that his conviction for civil rights intimidation in Count 3 of the indictment and his convictions for employing a firearm during the commission of a dangerous felony violated double jeopardy; that the State failed to make an election of offenses as to his convictions for civil rights intimidation; that the trial court erred by admitting a note he wrote; that the trial court erred by admitting a portion of the recordings of his jail phone calls; that the trial court incorrectly charged the jury that his failure to remember the facts of the offenses was not a defense; and that his sentence was improper. Following our review of the entire record, oral argument, and the parties’ briefs, we affirm the judgments of the trial court.

 

State of Tennessee v. Green, No. M2021-01438-CCA-R3-CD (Tenn. Ct. Crim. App. Mar. 28, 2023).  The Defendant, Frank M. Green, was convicted by a Davidson County Criminal Court jury of rape in Counts 1 and 3 and assault by extremely offensive or provocative physical contact in Counts 2 and 4 and was acquitted of the charge of aggravated kidnapping in Count 5. The Defendant filed a post-trial motion for judgment of acquittal as to the rape conviction in Count 3 and the assault conviction in Count 4. The trial court denied this motion but merged Count 3 with Count 1 and merged Count 4 with Count 2. Following a sentencing hearing, the trial court imposed a sentence of ten years for each of the rape convictions and a sentence of eleven months and twenty-nine days for each of the assault convictions and ordered the rape and assault convictions served concurrently, for an effective sentence of ten years. On appeal, the Defendant argues: (1) the State’s faulty election of offenses led the trial court to provide erroneous and misleading jury instructions, which undermined the integrity of the jury’s verdict; (2) the evidence is insufficient to sustain the convictions in count 3 for rape and count 4 for assault; and (3) the convictions in Counts 2 and 4 reflect the incorrect offense class and sentence. Because the State failed to demonstrate beyond a reasonable doubt that errors regarding the election, the charge, and the supplemental jury instructions were harmless, we reverse the Defendant’s convictions and remand the case for a new trial on the offenses of rape in Counts 1 and 3 and the offenses of assault by extremely offensive or provocative physical contact in Counts 2 and 4.   Dissenting OpinionI agree with the majority’s conclusion that the State’s election of the offenses was flawed and that the trial court erred in instructing the jury pursuant to the State’s faulty election. Cf. State v. Ellis, 89 S.W.3d 584, 596 (Tenn. Crim. App. 2000) (“[B]ecause the election requirement is ‘fundamental, immediately touching the constitutional rights of an accused,’ a trial court has a duty even absent a request by the defendant to ensure the timely election of offenses by the State and to properly instruct the jury concerning the requirement of a unanimous verdict.” (quoting Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)). I part ways with the majority regarding the remedy to which the Defendant is entitled for the double jeopardy issue which resulted from the State’s flawed election and the court’s reliance upon the election in its jury instructions.

 

State of Tennessee v. Crowe, No. M2022-00072-CCA-R3-CD (Tenn. Ct. Crim. App. Oct. 31, 2022).  Defendant, Jeffrey L. Crowe, was indicted by the Davidson County Grand Jury for reckless aggravated assault with a deadly weapon, second offense DUI by impairment, second offense DUI per se, and resisting arrest. Following a bench trial, Defendant was convicted of the charged offenses and sentenced to an effective sentence of two years to be suspended on probation after serving 32 days incarcerated. In this appeal as of right, Defendant contends that the evidence was insufficient to support his convictions; that the trial court erred when it restricted Defendant’s cross-examination of the victim; and that the trial court committed plain error when it allowed hearsay testimony. Having reviewed the entire record and the briefs and arguments of the parties, we affirm the judgments of the trial court.

 

State of Tennessee v. Moreno, No. M2021-01090-CCA-R3-CD (Tenn. Ct. Crim. App. Oct. 24, 2022).  The Defendant, Michael Lee Arthur Moreno, was convicted by a Davidson County Criminal Court jury of attempted voluntary manslaughter, a Class D felony; reckless endangerment, a Class A misdemeanor; and employing a firearm during the commission of a dangerous felony, a Class C felony, and was sentenced by the trial court to an effective term of eight years in the Department of Correction. He raises the following three issues on appeal: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court abused its discretion under Tennessee Rule of Evidence 404 and Tennessee Code Annotated section 24-7-125 by restricting cross-examination of one of the victims about text messages the victim sent the night before the shooting expressing the victim’s desire to commit a robbery; and (3) whether the trial court erred under Tennessee Rule of Evidence 613 by allowing the State to introduce rebuttal evidence of a defense witness’s recorded statement to police. Based on our review, we conclude that the evidence is sufficient to sustain the convictions, that the trial court did not err in restricting cross-examination of the victim, and that the Defendant, who failed to raise a contemporaneous objection at trial, cannot show plain error in the introduction of the defense witness’s statement. Accordingly, we affirm the judgments of the trial court.

 

Gutierrez v. State of Tennessee, No. M2021-00298-CCA-R3-PC (Tenn. Ct. Crim. App. June 27, 2022).  The Petitioner, Jonathan Gutierrez, appeals the Davidson County Criminal Court’s denial of his post-conviction petition, seeking relief from his convictions of first degree premeditated murder and four counts of aggravated assault and resulting effective sentence of life plus sixteen years. On appeal, the Petitioner contends that he received the ineffective assistance of counsel because trial counsel failed to file a motion to suppress statements he made in response to a custodial interrogation after he had invoked his right to remain silent and because trial counsel failed to intervene when he made incriminating statements during an interview for a television show. After review, we affirm the judgment of the postconviction court.

 

State of Tennessee v. Newsom, No. M2021-00444-CCA-R3-CD (Tenn. Ct. Crim. App. June 23, 2022).  The Defendant, Kevin Wayne Newson, was convicted by a Davidson County Criminal Court jury of first degree premeditated murder, first degree felony murder, attempted first degree premeditated murder, employing a firearm during the commission of a dangerous felony, and convicted felon in possession of a firearm. The trial court merged the first degree murder convictions and sentenced the Defendant to an effective term of life plus sixty years in the Tennessee Department of Correction. On appeal, the Defendant challenges the sufficiency of the evidence, the trial court’s sentencing determinations, the trial court’s denial of the Defendant’s request that the jury be instructed on aggravated assault resulting in death as a lesser-included offense of premeditated murder, the trial court’s grant of the State’s request that language regarding the Defendant’s duty to retreat be included in the jury instruction on self-defense, and various other rulings of the trial court. With respect to the self-defense instruction, the Defendant argues that duty to retreat language was prejudicially erroneous because the only criminal activity in which the Defendant was involved at the time of the shooting, i.e, being a convicted felon in possession of a firearm, had no nexus to the events that gave rise to the shooting. Based on our review, we affirm the judgments of the trial court.

 

State of Tennessee v. Ronald Edward Boykin, Jr., No. M2020-00558-CCA-R3-CD (Tenn. Ct. Crim. App. May 24, 2022). The Defendant, Ronald Edward Boykin, Jr., pleaded guilty in the Davidson County Criminal Court to four counts of sexual battery by an authority figure. Pursuant to the plea agreement, he was sentenced to concurrent fifteen-year sentences in the Tennessee Department of Correction with release eligibility after serving thirty percent of the sentences. The Defendant was also required to register as a sex offender and to be subject to community supervision for life. Thereafter, the Defendant filed a motion to correct his sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that “[t]he trial court erred in holding that the lifetime community supervision portion of [the Defendant’s] ,sentence is legal, where the statutory authority for that provision mandates lifetime supervision for certain offenses but not the offenses for which [the Defendant] was convicted.” The trial court denied the motion, and the Defendant appeals. We reverse the judgment of the trial court and remand the case for entry of corrected judgments of conviction.

 

Phillip Daniel Morton v. State of Tennessee, No. M2021-00171-CCA-R3-PC (Tenn. Ct. Crim. App. Jan. 25, 2022). A Davidson County jury convicted the Petitioner, Phillip Daniel Morton, of first degree premediated murder.  The Petitioner appealed, and this court affirmed the Petitioner’s conviction.  The Petitioner timely filed a post-conviction petition, alleging that he received the ineffective assistance of counsel.  The post-conviction court denied relief.  After review, we affirm the post-conviction court’s judgment.

 

State of Tennessee v. Justin Kenneth Blankenbaker, No. M2020-01436-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 14, 2022). The Defendant, Justin Kenneth Blankenbaker, was convicted by a jury of first-degree premeditated murder, arson, and abuse of a corpse, and the trial court imposed an effective sentence of life imprisonment plus five years. On appeal, the Defendant contends that (1) there was insufficient evidence to support his conviction for first-degree murder, specifically, challenging the element of premeditation; and (2) there was insufficient evidence to support his conviction for arson because he did not knowingly damage any structure. Following our review, we affirm.

 

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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