David D. Wolfe, 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. Parr, No. M2023-00868-CCA-R3-CD  (Tenn. Crim. App. Feb. 9, 2024).  The defendant, David Parr, appeals the Stewart County Circuit Court’s imposition of a fully-  incarcerative [sic] sentence for his guilty-pleaded convictions of possession of methamphetamine and fentanyl with intent to sell or deliver, asking this court to remand to the trial court for consideration of Community Corrections under Code section 40-36- 106(2)(c). Because the superseding indictments violated the principles of double jeopardy and because the trial court lacked jurisdiction to hold the plea submission hearing, the judgments entered on the superseding indictments are void, and we dismiss the appeal.

 

State of Tennessee v. Nelson, No. M2023-00311-CCA-R3-CD  (Tenn. Crim. App. Oct. 17, 2023).  The Defendant, Gregory L. Nelson, appeals the trial court’s revocation of his eight-year sentence for unlawful possession of a weapon by a convicted felon. On appeal, he argues that the trial court erred by fully revoking his probation and ordering him to serve the remainder of his sentence in confinement. Following our review, we affirm the judgment of the trial court.

 

State of Tennessee v. Roach, No. M2022-01626-CCA-R3-CD (Tenn. Crim. App. Sept. 11, 2023). Defendant, Tyrone T. Roach, entered a nolo contendere plea to one count of sexual battery. The trial court imposed a diverted one-year sentence. As part of the plea, Defendant attempted to reserve a certified question of law under Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the four-year delay between the grand jury presentment on the sexual battery charge and his arrest on the presentment violated his rights to a speedy trial and due process. The State contends that this court lacks jurisdiction to hear an appeal from a diverted sentence. In the alternative, the State argues that Defendant did not reserve the certified question properly, and even if the certified question were reserved, the trial court did not violate his right to a speedy trial. Defendant has not responded to the State’s contention regarding jurisdiction. We conclude we lack jurisdiction to consider Defendant’s appeal. Accordingly, we dismiss the appeal.

 

State of Tennessee v. Herbison, No. M2022-01359-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 11, 2023). The Defendant, Roger Scott Herbison, entered a guilty plea to one count of attempted sexual exploitation of a minor and one count of attempted aggravated sexual exploitation of a minor in exchange for an effective four-year sentence, suspended to probation, and the Defendant’s placement on the sex offender registry. As a part of his plea, the Defendant sought to reserve a certified question of law, concerning whether probable cause existed for issuance of a search warrant, which was the subject of an unsuccessful suppression motion. Because the Defendant did not properly reserve a certified issue for review, we are without jurisdiction to review the merits of the Defendant’s claim, and we dismiss his appeal.

 

State of Tennessee v. Wall, No. M2022-00911-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 22, 2023).  The Defendant, Devon Allen Wall, pleaded guilty to one count of aggravated robbery and was convicted by a jury of two counts of aggravated kidnapping related to the same incident. On appeal, the Defendant challenges the sufficiency of the evidence supporting his aggravated kidnapping convictions and challenges the trial court’s refusal to deliver a special jury instruction. Relative to his sufficiency challenge, the Defendant contends that there was no significant confinement or removal of the victims and that the aggravated kidnappings were incidental to the underlying crime of aggravated robbery. Regarding his second challenge, the Defendant contends that the requested jury instruction concerning “relatively trivial restraints” provided crucial guidance for the jury on Tennessee’s aggravated kidnapping statute. Following our review, we affirm the judgments of the trial court.

 

State of Tennessee v. Smith, No. M2022-01586-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 21, 2023). Defendant, James Howard Smith, entered nolo contendere pleas to two counts of rape of a child, a Class A felony, and one count of aggravated sexual battery, a Class B felony. The trial court imposed consecutive sentences of forty years for each of the two rape of a child convictions and ten years for the aggravated sexual battery conviction, resulting in an effective sentence of ninety years. On appeal, Defendant contends the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court.

 

State of Tennessee v. Reynolds, No. M2022-00480-CCA-R3-CD (Tenn. Ct. Crim. App. June 6, 2023). Defendant, Randy O. Reynolds, stands convicted by a Dickson County jury of aggravated vehicular homicide (Count 1), vehicular homicide (Count 2), reckless homicide (Count 3), vehicular assault by driving under the influence (Count 4), simple possession of a schedule II controlled substance (Count 5), leaving the scene of an accident (Count 6), evading arrest (Count 7), and driving on a revoked license (Count 8). On appeal, Defendant argues (1) the trial court erred in denying his motion to suppress the results of his blood alcohol test; (2) the trial court erred in allowing the State to present expert testimony regarding the effects of intoxication; and (3) the evidence produced at trial was insufficient to support his all of his felony convictions, and his misdemeanor evading arrest conviction. After a thorough review of the record and applicable law, we affirm.

 

Cordova v. Martin,  No. M2021-01412-COA-R3-CV (Tenn. Ct. App. May 24, 2023). This is an action for malicious prosecution of an attorney’s fee claim. The plaintiffs contend that the trial court improperly granted summary judgment to the defendant under the one-year statute of limitations in Tennessee Code Annotated § 28-3-104(a)(1). The court held that the plaintiffs’ cause of action accrued when the allegedly-malicious prosecution terminated, and it held that the prosecution terminated when the first court denied the defendant’s motion to alter or amend the judgment under Tennessee Rule of Civil Procedure 59.04. The plaintiffs contend that this is wrong because the defendant was a party to and participated in the appeal of those proceedings. They assert that the defendant’s action did not terminate until he exhausted his appellate remedies. We agree and hold that the defendant’s cause of action did not terminate until his time for filing an appellate brief expired. Thus, we reverse the decision of the trial court and remand with instructions to reinstate the complaint and for further proceedings consistent with this opinion.

 

State of Tennessee v. Driver, No. M2021-00538-CCA-R3-CD (Tenn. Ct. Crim. App. Apr. 29, 2022).  A Cheatham County jury convicted the Defendant, Demario Quintez Driver, of rape and coercion of a witness, and the trial court sentenced him to sixteen years in the Tennessee Department of Correction. On appeal, the Defendant asserts that the evidence is insufficient to support his conviction for rape and that the State’s closing argument amounted to prosecutorial misconduct. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

 

In Re TWT Acquisition, LLC Property ID: 003 009.04 Tax Years 2014, 2015, 2016, 2017, No. M2020-01100-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2022). Two counties assessed the same property for multiple tax years.  The taxpayer appealed the double assessments to the State Board of Equalization.  The administrative law judge determined that Houston County had assessed the taxpayer’s real and personal property for more than five years before Stewart County assessed the same property.  Based on Tennessee Code Annotated § 5-2-115(d), the judge voided the later assessment.  The Assessment Appeals Commission reversed in part.  The Commission ruled that the state statute only applied to real property.  And because the personal property was located in Stewart County, Stewart County was the proper taxing authority for that property.  The trial court affirmed the agency decision.  On appeal, we conclude that Tennessee Code Annotated § 5-2-115(d) only applies to real property.  Because the agency’s decision is also supported by substantial and material evidence in the record, 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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