Jeff Wicks, Judge


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.


Birchfield v. State of Tennessee, No. E2023-00385-CCA-R3-PC (Tenn. Ct. Crim. App. Apr. 24, 2024). A Morgan County jury convicted the Petitioner, Fred Birchfield, of second degree murder and reckless homicide. The trial court sentenced the Petitioner to serve consecutive sentences of eighteen years for his second degree murder conviction and three years for his reckless homicide conviction. The Petitioner appealed, and this court affirmed the Petitioner’s convictions. State v. Birchfield, No. E2016-00493-CCA-R3-CD, 2017 WL 758515, at *1 (Tenn. Crim. App. Feb. 27, 2017), perm. app. denied (Tenn. Jun. 7, 2017). The Petitioner timely filed a post-conviction petition, alleging that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. After review, we affirm the post-conviction court’s judgment.


State of Tennessee v. Whitby, No. E2023-00371-CCA-R3-CD (Tenn. Ct. Crim. App. Apr. 8, 2024). Following a bench trial, the trial court found the Defendant, Timothy Whitby, guilty of: vandalism under $1,000, a Class A misdemeanor; disorderly conduct, a Class C misdemeanor; and assault, a Class A misdemeanor. The trial court sentenced the Defendant to concurrent sentences of eleven months and twenty-nine days on each count, suspended to supervised probation. On appeal, the Defendant challenges the sufficiency of the evidence supporting his assault conviction, and the trial court’s sentence of eleven months and twenty-nine days for his disorderly conduct conviction. After review, we conclude that the trial court erred when it sentenced the Defendant to eleven months and twenty-nine days for his Class C misdemeanor disorderly conduct conviction. Thus, we remand for entry of a sentence within the appropriate sentencing range. We affirm the judgments in all other respects.


State of Tennessee v. Miller, No. E2022-01040-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 18, 2023). The Defendant, Stacy M. Miller, was convicted by a Meigs County Criminal Court jury of three counts of first degree felony murder, criminally negligent homicide, especially aggravated kidnapping, aggravated robbery, and theft of property valued at less than $1000. See T.C.A. §§ 39-13-202(a)(2) (2018) (subsequently amended) (first degree felony murder), 39-13-212 (2018) (criminally negligent homicide), 39-13-305 (2018) (especially aggravated kidnapping), 39-13-402 (2018) (aggravated robbery), 39-14-103 (2018) (theft). The trial court merged the three first degree felony murder convictions and imposed an effective life sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support her first degree felony murder convictions and (2) the trial court erred in failing to merge the criminally negligent homicide conviction with the first degree felony murder conviction and to merge the theft conviction with the aggravated robbery conviction. We affirm the judgments of the trial court but remand for entry of corrected judgments reflecting the requested mergers of convictions and for correction of the judgment form in Count 6 to reflect the correct conviction offense, aggravated robbery.


Lowe v. State of Tennessee, No. E2022-00285-CCA-R3-HC (Tenn. Ct. Crim. App. Oct. 24, 2022).  The Petitioner, Asata D. Lowe, appeals the Morgan County Circuit Court’s summary dismissal of his pro se petition seeking habeas corpus relief from his convictions for two counts of first degree premeditated murder and one count of especially aggravated robbery, for which he received an effective sentence of life imprisonment without the possibility of parole plus twenty-five years. On appeal, the Petitioner argues he is entitled to habeas corpus relief because he was deprived of his right to be present at his initial appearance, deprived of his right to counsel at his initial appearance, and deprived of his right to present a defense at his initial appearance. He additionally contends that the habeas corpus court denied his right of access to the courts when it summarily dismissed his habeas corpus petition before ruling on two of his pending motions. After review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.


Moore v. Parris, Warden, E2021-01310-CCA-R3-HC (Tenn. Ct. Crim. App. Aug. 31, 2022). The pro se Petitioner, Patrick Lamar Moore, appeals the summary denial of his petition for writ of habeas corpus. Discerning no error, we affirm the judgment of the habeas corpus court.


State of Tennessee v. Crawford, No. E2021-01351-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 25, 2022).  Following a bench trial, the defendant, Jovan Crawford, was convicted of aggravated assault, and the trial court imposed a sentence of eight years’ incarceration to be served consecutively to the defendant’s prior sentences in Shelby County Case Nos. 1308038 and 1501666. On appeal, the defendant contends that his sentence is excessive and that the trial court erred 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. Morton, No. E2019-01755-CCA-R3-CD (Tenn. Ct. Crim. App. June 27, 2022).  A Loudon County Criminal Court Jury convicted the Appellant, Deborah Morton, of first degree premeditated murder, and the trial court sentenced the Appellant to life imprisonment in the Tennessee Department of Correction. On appeal, the Appellant challenges the sufficiency of the evidence sustaining her conviction. The Appellant also contends that the trial court erroneously excluded and erroneously admitted certain lay and expert testimony, that the trial court erroneously denied her request for a jury instruction concerning the State’s failure to preserve evidence, that the State committed prosecutorial misconduct, and that these cumulative errors deprived her of her right to a fair trial. Upon review, we affirm the judgment of the trial court.


State of Tennessee v. James David Duncan, No. E2020-01532-CCA-R3-CD (Tenn. Ct. Crim. App. March 8, 2022). The Defendant, James David Duncan, was convicted by a Morgan County Criminal Court jury of attempted second degree murder, a Class B felony, and aggravated assault, a Class C felony. See T.C.A. §§ 39-13-210 (Supp. 2017) (subsequently amended) (second degree murder), 39-12-101 (2018) (criminal attempt), 39-13-102(a)(l)(A)(i) (Supp. 2017) (subsequently amended). The trial court sentenced the Defendant to sixteen years for attempted second degree murder and to eight years for aggravated assault, with the sentences to be served concurrently to each other and consecutively to an Anderson County conviction. On appeal, the Defendant contends that ( 1) prosecutorial misconduct occurred during voir dire, opening statement, and closing argument, (2) he is entitled to plain error relief because the trial court failed to conduct a hearing pursuant to Tennessee Rule of Evidence 404(b) regarding prior bad act evidence, (3) the court erroneously instructed the jury, and (4) cumulative trial errors require relief. We affirm the judgments of the trial court.


Asata Dia Lowe-El v. State of Tennessee, No. E2020-01355-CCA-R3-HC (Tenn. Ct. Crim. App. Jan. 18, 2022). In this consolidated appeal, the Petitioner, Asata Dia Lowe-El, appeals from the Morgan County Circuit Court’s summary dismissals of his petitions for a writ of habeas corpus and for a writ of error coram nobis. On appeal, the Petitioner contends that the court erred in dismissing the petitions, rather than granting relief. The appeal from the habeas corpus proceeding is dismissed, and we affirm the judgment of the coram nobis court.


State of Tennessee v. Timothy M. Dawson, No. E2020-01525-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 10, 2022). The defendant, Timothy M. Dawson, appeals his Loudon County Criminal Court jury conviction of theft of property valued at $10,000 or more but less than $60,000, arguing that he is entitled to a new trial on grounds that he was incapacitated during the Momon colloquy. See Momon v. State, 18 S.W.3d 152 (Tenn. 1999). Discerning no error, 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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