Gary S. McKenzie, 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. Nostrom, No. E2023-00299-CCA-R3-CD (Tenn. Ct. Crim. App. Apr. 25, 2024). A Cumberland County jury found Defendant, Warren J. Nostrom, guilty of two counts of first degree premeditated murder. The trial court imposed concurrent life sentences. On appeal, Defendant argues that (1) the evidence was insufficient to support his convictions, and the trial court erred by (2) finding Defendant competent to stand trial and precluding an attorney from testifying as an expert at the competency hearing, (3) admitting Defendant’s pretrial statement to police, and (4) denying Defendant’s motion for a continuance. After review, we affirm the judgments of the trial court.

 

State of Tennessee v. Webb, No. M2023-00464-CCA-R3-CD (Tenn. Crim. App. Nov. 28, 2023). A Cumberland County jury convicted Defendant, Gregory Ryan Webb, of one count of domestic assault, a Class A misdemeanor, and the trial court sentenced him to eleven months, twenty-nine days in the county jail at seventy-five percent service. On appeal, Defendant argues: (1) the trial court erred by denying his pretrial motion to dismiss based on the State’s failure to preserve body camera footage from the crime scene; (2) there was insufficient evidence to support his conviction; and (3) his sentence was excessive. After review, we affirm the judgment of the trial court.

 

State of Tennessee v. Cruz, No. M2023-00357-CCA-R3-CD (Tenn. Crim. App. Nov. 22, 2023).  Defendant, Rony Noe Ambrocio Cruz, was convicted by a Cumberland County jury of second degree murder. The trial court sentenced Defendant to twenty-five years to serve at 100%. On appeal, Defendant argues that the evidence was insufficient to support his second degree murder conviction. He also contends that the trial court erred in sentencing when it applied an enhancement factor related to his immigration status. After a thorough review of the record and the parties’ briefs, we affirm the judgment of the trial court.

 

Demps v. State of Tennessee, No. M2022-01429-CCA-R3-PC (Tenn. Crim. App. Nov. 9, 2023). A Putnam County jury convicted the Petitioner, Stephen D. Demps, of four counts of aggravated sexual battery and five counts of rape of a child. The trial court sentenced him to twenty-five years of incarceration. The Petitioner appealed his convictions to this court, and we affirmed the judgments. State v. Demps, No. M2017-00641-CCA-R3-CD, 2018 Tenn. Crim. App. LEXIS 156, at *1 (Tenn. Crim. App. Feb. 27, 2018), no perm. app. filed. Subsequently, the Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel, that law enforcement altered evidence, and that the State committed prosecutorial misconduct. The post-conviction court denied the petition after a hearing. After review, we affirm the post-conviction court’s judgment.

 

Jones v. State of Tennessee, No. M2023-00060-CCA-R3-PC (Tenn. Crim. App. Oct. 24, 2023).  Petitioner, Willie Nathan Jones, appeals from the Putnam County Criminal Court’s denying his petition for post-conviction relief, which petition challenged his convictions of second degree murder and attempted second degree murder. Petitioner argues trial counsel provided ineffective assistance by failing to contemporaneously object to the prosecutor’s closing argument and failing to object to the prosecutor’s use of the term “victim” when referring to a State’s witness. We affirm the judgment of the post-conviction court.

 

State of Tennessee v. Hensley, No. M2021-01495-CCA-R3-CD (Tenn. Crim. App. Jan. 11, 2023). Defendant, Patsy Hensley, was convicted of first-degree premeditated murder and received
a life sentence. On appeal, Defendant argues that the trial court’s exclusion of testimony from her expert witness violated her right to present a defense and that the prosecutor improperly commented during closing argument on her decision not to testify at trial. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the trial court.

 

State of Tennessee v. Ponder, M2021-00940-CCA-R3-CD (Tenn. Crim. App.(Aug. 10, 2022).  A DeKalb County jury convicted the Defendant, Gary Wayne Ponder, of aggravated arson. The trial court imposed a twenty-three-year sentence to be served in the Tennessee Department of Correction. On appeal, the Defendant argues that the evidence was insufficient to support his conviction, that the trial court erred when it denied his motion for a change of venue, and that the trial court erred when it sentenced him. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

 

State of Tennessee v. William Isaac Atwood, No. M2021-00690-CCA-R3-CD (Tenn. Ct. Crim. App. Feb. 24, 2022). A Clay County jury convicted the defendant, William Isaac Atwood, of possession of a prohibited weapon and possession of a firearm by a convicted felon, and the trial court imposed an effective Range II sentence of thirteen years’ incarceration.  On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and the trial court’s sentencing him as a Range II offender.  Upon our review of the record and the applicable law, 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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