James A. Turner, 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. Hall, No. M2023-00657-CCA-R3-CD (Tenn. Ct. Crim. App. May 15, 2024). Petitioner, Shelton Hall, III, appeals the denial of his motion to correct an illegal sentence, filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the trial court.

 

Dorsett v. State of Tennessee, No. M2023-00918-CCA-R3-PC (Tenn. Ct. Crim. App. Apr. 4, 2024). Bruce Dorsett, II, Petitioner, filed an untimely petition for post-conviction relief after the entry of a guilty plea to several offenses.  Petitioner requested equitable tolling of the statute of limitations.  The post-conviction court determined Petitioner was entitled to neither statutory nor equitable tolling of the statute of limitations and, consequently, denied relief and dismissed the petition.  Petitioner then filed an untimely notice of appeal.  On appeal, Petitioner claims the post-conviction court erred in dismissing the petition without allowing Petitioner to amend it.  We waive the timely filing of the notice of appeal but affirm the judgment of the post-conviction court because Petitioner failed to show he is entitled to tolling of the statute of limitations. 

 

State of Tennessee v. Malone,  No. M2023-00058-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 1, 2023). A Rutherford County jury convicted the Defendant, Webster Malone, of two counts of selling less than .5 grams of cocaine. The trial court denied his request for community corrections and sentenced him to an effective sentence of fifteen years of incarceration. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions and that the trial court erred when it sentenced him. After review, we affirm the trial court’s judgments.

 

State of Tennessee v. Novatne,  No.  M2023-00114-CCA-R3-CD (Tenn. Ct. Crim. App. Nov. 21, 2023).  The Defendant, Stephen Novatne, pled guilty to possessing methamphetamine in a drug-free zone and agreed to serve a sentence of eight years. He later filed a motion asking the trial court to resentence him in accordance with the 2020 amendments to the Drug-Free Zone Act. The trial court declined to do so, finding that resentencing was not in the interests of justice, and the Defendant appealed. Because the Defendant does not have an appeal as of right from a denial of resentencing under the Drug-Free Zone Act, we respectfully dismiss the appeal.

 

State of Tennessee v. Ward,  No.  M2022-01264-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 28, 2023).  The Defendant, Deshaun Ward, appeals from the Rutherford County Circuit Court’s revocation of the probation that he had received for his negotiated plea to reckless vehicular homicide and two counts of vehicular assault. On appeal the Defendant contends that he did not receive the effective assistance of counsel at his probation revocation hearing. We affirm the judgment of the trial court.

 

State of Tennessee v. Wright,  No.  M2022-01616-CCA-R3-CD (Tenn. Ct. Crim. App. June 7, 2023).  Defendant, Garen Wright, appeals from the Rutherford County Circuit Court’s revoking his probation and ordering him to serve his previously ordered probationary sentence of twenty years in confinement. On appeal, Defendant argues the trial court abused its discretion by not considering alternatives to placing Defendant in custody for the full term. After review, we affirm the judgment of the trial court.

 

Buchanan v. State of Tennessee, No. M2022-00190-CCA-R3-PC  (Tenn. Ct. Crim. App. May 16, 2023) (footnote omitted).  The Petitioner, Angela Buchanan, appeals from the Rutherford County Circuit Court’s denial of her petition for post-conviction relief, wherein she challenged her convictions for criminally negligent homicide and aggravated child neglect. On appeal, the Petitioner argues: (1) she received ineffective assistance of trial counsel; (2) her convictions were based on inadmissible Rule 404(b) evidence; (3) she received ineffective assistance of appellate counsel; and (4) the trial court, in violation of Tennessee law and article I, section 9 of the Tennessee Constitution, failed to inform her that she could make a statement of allocution at sentencing.  We affirm the judgment of the post-conviction court.

 

Merrilees v. State of Tennessee, No. M2021-01324-CCA-R3-PC  (Tenn. Ct. Crim. App. May 8, 2023).  In this post-conviction appeal, the Petitioner-Appellant, Gregg Merrilees, seeks relief from his original convictions of aggravated robbery and robbery in concert with two or more persons, for which he received an effective sentence of sixteen years’ imprisonment. He subsequently filed a petition seeking post-conviction relief, which was denied by the postconviction court. The Petitioner now appeals and raises a stand-alone challenge to the sufficiency of the evidence. In addition, the Petitioner argues four grounds in support of his ineffective assistance of counsel claim: (1) trial counsel’s failure to challenge the sufficiency of the evidence based on the lack of accomplice corroboration in a motion for judgment of acquittal or on direct appeal; (2) trial counsel’s failure to request a jury instruction on accomplice corroboration; (3) trial counsel’s failure to object based on speculation to the hotel clerk-victim’s accusation that the Petitioner was involved in the offenses based on the hotel clerk-victim’s “gut”; and (4) trial counsel’s failure to object to “the unconstitutional show-up” identification of the Petitioner by the hotel clerk-victim at trial. Upon our review, we affirm.  Dissent:  I have the privilege to join the majority’s well-reasoned opinion in large part. For example, I agree that a post-conviction petitioner cannot raise a stand-alone claim seeking dismissal based upon an alleged legal insufficiency of the convicting evidence. I also agree that the Petitioner here has not shown that he received the ineffective assistance of counsel with respect to the victim’s testimony and the in-court identification.2 Finally, I agree that trial counsel rendered deficient performance in failing to raise and argue that the accomplice’s testimony was not sufficiently corroborated. Where I respectfully part ways with the majority concerns its analysis of whether the Petitioner has shown that the reliability of his verdict was undermined by trial counsel’s failure to argue a lack of corroboration.

 

State of Tennessee v. Haymer,  No.  M2022-00515-CCA-R3-CD (Tenn. Ct. Crim. App. Apr. 28, 2023). The Defendant, Rickey Haymer, appeals his convictions of crimes involving the attempted unlawful purchase or possession of a firearm. He argues that the evidence is insufficient to support his convictions because his actions in seeking to purchase a firearm did not constitute a “substantial step” toward the completed crimes. He also argues that the trial court committed plain error in admitting various text messages showing his contact with the putative seller. On our review, we respectfully affirm the judgments of the trial court.

 

Bowling v. State of Tennessee, No. M2022-00158-CCA-R3-PC  (Tenn. Ct. Crim. App. Feb. 10, 2023). Brandon Richmond Bowling, Petitioner, was charged in a twelve-count indictment withsix counts of rape, two counts of sexual battery, two counts of aggravated rape, one count of first degree felony murder, and one count of first degree premeditated murder for his role in the death of H.M.1, a 22-year-old woman. The State filed an intent to seek a sentence of life without the possibility of parole. Prior to trial, counsel for Petitioner filed a motion to suppress video evidence of an incident found on Petitioner’s phone. The motion was never litigated. Petitioner pled guilty to one count of aggravated rape and one count of second degree murder in exchange for dismissal of the remaining charges. As a result, Petitioner received an effective sentence of 40 years at 100%. Petitioner filed a petition for post-conviction relief raising the issue that trial counsel’s failure to advise him that the search warrant justifying the search of his cell phone was constitutionally defective rendered his guilty plea involuntary. After a hearing, the post-conviction court denied relief. We affirm the judgment of the post-conviction court because Petitioner has failed to satisfy the burden to establish that he is entitled to post-conviction relief. Furthermore, the record establishes that trial counsel’s strategy of filing the motion, initiated negotiations that resulted in a very favorable resolution for Petitioner. Accordingly, the judgment of the post-conviction court is affirmed.

 

State of Tennessee v. Pitts, III,  No.  M2022-00581-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 5, 2023). In this delayed appeal, the Defendant-Appellant, Roosevelt Pitts, III, challenges his Rutherford County jury convictions of robbery, three counts of felony reckless endangerment, misdemeanor leaving the scene of an accident, and felony vandalism, for which he received an effective sentence of eighteen years in prison. The Defendant argues that the trial court erred in rejecting his challenge to two peremptory challenges based on Batson v. Kentucky, 476 U.S. 79 (1986), and that the State engaged in prosecutorial misconduct during closing arguments. Upon our review, we affirm.

 

State of Tennessee v. Hartshaw, No.  M2021-01231-CCA-R3-CD (Tenn. Ct. Crim. App. Oct. 4, 2022).  The Defendant, Benjamin Hartshaw, was convicted by a Rutherford County Circuit Court jury of six counts of rape of a child, a Class A felony, and four counts of aggravated sexual battery, a Class B felony, for which he is serving an effective forty-six-year sentence. See T.C.A. §§ 39-13-504(a)(4) (2018) (aggravated sexual battery of a victim less than thirteen years of age), 39-13-522(a) (2018) (rape of a child). On appeal, the Defendant contends that (1) the trial court erred in denying his motion for a mistrial after one of the prosecutors referred in closing argument to the Defendant’s having been “arrested and . . . put in jail,” (2) the court erred in giving a curative instruction, contrary to the defense request for no instruction, and (3) he is entitled to relief due to cumulative trial error. We affirm the judgments of the trial court.  Editor’s Note:  Judge Bragg was the trial and sentencing judge in this matter.   Judge Turner handled the Motion for New Trial. 

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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