Kyle C. Atkins, Judge

Biography

Reports of Cases Reviewed by Appellate Courts – Beginning Jan. 1, 2022

Text is the appellate court’s summary of the opinion.

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State of Tennessee v. DeLong, No. W2023-01111-CCA-R3-CD (Tenn. Crim. App. Feb. 26, 2024). The Defendant, Branden Eric Michael Delong, appeals the Chester County Circuit Court’s ordering him to serve his ten-year sentence in confinement after revoking his probation, arguing that the trial court should have elected to place him back on supervised probation. Based on our review, we affirm the trial court’s revocation of the Defendant’s probation but reverse the court’s placing his original ten-year sentence into effect and remand the case to the trial court for findings related to the appropriate consequence for that revocation.

 

Wilson v. State of Tennessee, No. W2023-00192-CCA-R3-PC (Tenn. Crim. App. Feb. 26, 2024). The Petitioner, Joseph Wilson, was convicted in 2001 by a Madison County Circuit Court jury of a number of offenses, including attempted second degree murder and three counts of aggravated rape, based on his having raped and cut the throat of a woman during his
participation with accomplices in burglarizing her home. In February 2022, the Petitioner filed a petition pursuant to the Post-Conviction DNA Analysis Act of 2001, Tennessee Code Annotated section 40-30-301, et. seq., for DNA analysis of the sexual assault kit, the knife used to cut the victim’s throat, the clothing the victim was wearing at the time of the assault, and assorted other items recovered from the bathroom where the sexual assault occurred, asserting that “significant technological developments in forensic methodologies over the last fifteen years [have occurred] that may now make it possible to conclusively identify the true perpetrator[.]” Following a hearing, the post-conviction court denied the petition, finding that the Petitioner had not shown there was a reasonable probability that he would not have been prosecuted or convicted or that new DNA testing would resolve an issue that had not been previously resolved. On appeal, the Petitioner argues that the post-conviction court erred in finding that the Petitioner did not satisfy the requirements for DNA analysis pursuant to the Post-Conviction DNA Analysis Act. The State concedes that DNA analysis of the sexual assault kit and the knife is warranted but argues that it is not warranted for the other pieces of evidence. We agree with the State that DNA analysis is warranted for the sexual assault kit and unwarranted for the items collected from the bathroom and for the victim’s clothing that was not collected as part of the sexual assault kit. However, we disagree that DNA analysis is warranted for the knife. Accordingly, we reverse the denial of the request for DNA analysis of the sexual assault kit but affirm the denial of the request for DNA analysis of the knife and additional items. Thus, we affirm in part, reverse in part, and remand for entry of an order for DNA testing consistent with this opinion.

 

State of Tennessee v. Murphy,  No. W2022-01108-CCA-R3-CD (Tenn. Crim. App. Feb. 9, 2024). A Madison County jury convicted the Defendant, Keenan A. Murphy, of first degree murder and attempted first degree murder. The trial court sentenced the Defendant to an effective sentence of life imprisonment plus twenty-six years. On appeal, the Defendant argues that the proof is insufficient to support the convictions because the State failed to prove premeditation. The Defendant also asserts that the trial court committed plain error by allowing the State to cross-examine the defense expert about a second shooting the Defendant committed nine days after the offenses in this case. On our review, we respectfully affirm the judgments of the trial court.

 

In re Estate of Adam Randall Wilson, W2023-00313-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2024).  This appeal arises from a will contest. The circuit court entered summary judgment upholding the will, finding no genuine issue of material fact existed as to its validity. The contestant appeals. We affirm and remand to the probate court for further probate proceedings.

 

State of Tennessee v. Hodges,  No. W2023-00108-CCA-R3-CD (Tenn. Crim. App. Dec. 21, 2023).  The defendant, Cantrell Devon Hodges, pleaded guilty to two counts of possession of a firearm after having been convicted of a felony drug offense, two counts of possession of marijuana with intent to sell or deliver, and one count of possession of drug paraphernalia after the trial court denied his motion to suppress evidence recovered from his home. As part of his plea agreement, he reserved a certified question of law for appeal, challenging the denial of his motion to suppress. Because the certified question is not dispositive of the case as required by Tennessee Rule of Criminal Procedure 37(b)(2)(A), we dismiss the appeal.

 

State of Tennessee v. Cooley, Jr. ,  No. W2023-00073-CCA-R3-CD (Tenn. Crim. App. Nov. 2, 2023).  The Defendant, Hank Cooley, Jr., appeals from his best interest, guilty-pleaded convictions for felony evading arrest risking death or injury, driving on a revoked license (second offense), reckless driving, disobeying a traffic signal, violation of the light law, speeding, and failure to exercise due care. See T.C.A. §§ 39-16-603(b)(3)(B) (2018) (subsequently amended) (evading arrest), 55-50-504 (2020) (driving on a revoked license), 55-10-205 (2020) (reckless driving), 55-8-110 (2020) (subsequently amended) (disobeying a traffic signal), 55-9-402 (2020) (subsequently amended) (violation of light law), 55-8-152 (2008) (speeding), and 55-8-136 (2020) (failure to exercise due care). The trial court ordered the Defendant to serve an effective sentence of twelve years in confinement. On appeal, the Defendant contends the court erred by denying alternative sentencing. We affirm the judgments of the trial court.

 

State of Tennessee v. Newsom,  No. W2020-00611-CCA-R3-CD (Tenn. Crim. App. Sept. 14, 2023).  Pursuant to a plea agreement, the Defendant, acting pro se, entered guilty pleas to various felony offenses and received an effective sentence of six years’ imprisonment. A few weeks later, the Defendant filed a motion to withdraw his guilty pleas, claiming they were unknowing and involuntarily entered because he was not advised of the consequences of the guilty pleas. Following a hearing, the trial court denied the Defendant’s motion. For the first time in this appeal, the Defendant claims that his waiver of his Sixth Amendment right to counsel was not knowingly and voluntarily entered; therefore, his subsequent guilty pleas were constitutionally invalid. The Defendant additionally claims the trial court abused its discretion in denying his motion to withdraw his guilty pleas and determining that his guilty pleas were knowingly and voluntarily entered. Upon our review, we conclude that the trial court’s investigation of the factors bearing upon the Defendant’s knowing and intelligent waiver of his right to counsel complied with Faretta v. California, 422 U.S. 806 (1975), and Iowa v. Tovar, 541 U.S. 77 (2004). We further conclude that theDefendant failed to establish that manifest injustice required the withdrawal of his guilty pleas. Accordingly, we affirm the judgments of the trial court. [Footnote omitted.]

 

Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023).  In this health care liability action, the trial court granted summary judgment to the appellee surgeon based on the expiration of the statute of limitations and the appellant patient’s failure to show evidence of causation and damages. On appeal, we conclude that (1) there is a genuine dispute of material fact as to when the appellant’s cause of action accrued; (2) the trial court did not specifically rule on the propriety of appellant’s pre-suit notice; and (3) there are genuine disputes of material facts as to the causation and damages elements of the appellant’s claim. Accordingly, we reverse in part, vacate in part, and remand for further proceedings.

 

State of Tennessee v. Murphy,  No. W2022-01682-CCA-R3-CD (Tenn. Crim. App. Sept. 14, 2023).  The Defendant, Charles Jonathan Murphy, was convicted by a Henderson County Circuit Court jury of two counts of rape, a Class B felony, and was sentenced by the trial court as a Range I, standard offender to ten years for each conviction, with the sentences to be served consecutively, for a total effective sentence of twenty years at 100 % in the Department of Correction. On appeal, the Defendant argues that the evidence is insufficient to sustain the convictions and that the trial court erred in sentencing him by misapplying an enhancement factor and ordering consecutive sentences. Based on our review, we affirm the judgments of the trial court.

 

State of Tennessee v. Pace,  No. W2022-01092-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 1, 2023).  Defendant, Christopher David Pace, entered a partially open plea in which the length of his sentence was agreed upon. The trial court would determine the manner of service at a separate sentencing hearing. On appeal, Defendant argues that the trial court erred because it relied only upon a “Specific Data Report” in sentencing Defendant. Alternatively, Defendant argues that the trial court abused its discretion in denying Defendant’s request for alternative sentencing. The State concedes that it was reversible error for the trial court to sentence Defendant without a presentence report. We find that the trial court erred in failing to consider the validated risk and needs assessment as required by Tennessee Code Annotated section 40-35-210(b)(8). However, we conclude that the issue is waived. We further conclude that the trial court did not abuse its discretion in denying Defendant’s request for alternative sentencing. We accordingly affirm the judgment of the trial court.

 

State of Tennessee v. Thompson,  No. W2022-01535-CCA-R3-CD (Tenn. Ct. Crim. App. July 14, 2023).  A Madison County Circuit Court jury found the Defendant, Halley OBrien Thompson, guilty of aggravated sexual battery. The trial court sentenced the Defendant to fourteen years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court erred by allowing an investigator to testify that it was common for child victims to delay reporting allegations of sexual assault. He also argues that the State presented improper prosecutorial argument during its rebuttal closing argument. Upon review, we respectfully disagree and affirm the trial court’s judgment.

 

Fisher v. Smith, No. W2022-00779-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023).  This appeal arises from a health care liability action. The plaintiffs filed their complaint against a physician and a surgical practice after the expiration of the statute of limitations, relying on the 120-day extension under Tennessee Code Annotated section 29-26-121(c). However, the physician was not employed by the surgical practice during the treatment at issue but was employed by a governmental entity that was not named as a defendant. Both the physician and the surgical practice filed motions to dismiss, which were ultimately treated as motions for summary judgment due to consideration of matters outside the pleadings. Afterward, the plaintiffs filed a motion for leave to amend their complaint to substitute parties. Pursuant to section 29-20-310(b) of the Tennessee Governmental TortLiability Act, the trial court found that the plaintiffs had to sue the governmental entity in order to sue the physician individually. The court found that the motion for leave to amend the complaint was futile because the statute of limitations had run as to any claim against the governmental entity. The court explained that any claim against the governmental entity would be time-barred even if it related back to the date of the filing of the complaint. The court further explained that the plaintiffs relied on the 120-day extension contained in section 29-26-121(c) when they filed their complaint and that the extension did not apply to any potential claim against the governmental entity because they failed to provide presuit notice to it. The court also noted that the plaintiffs unduly delayed seeking to amend their complaint despite being explicitly informed before filing their complaint who the physician did and did not work for. Additionally, the court found that the surgical practice was not involved in the treatment at issue and did not employ the physician or any of the medical providers involved. Thus, the court found that the surgical practice negated an essential element of the plaintiffs’ claim against it and demonstrated the evidence was insufficient to establish such a claim. Accordingly, the court granted the defendants’ motions and denied the plaintiffs’ motion for leave to amend the complaint to substitute parties. The plaintiffs appeal. We affirm.

 

Smith v. Walker, No. W2022-00748-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023).  The plaintiffs, Martina and Eddie Smith (“Buyers”), filed suit in the Madison County Circuit Court (“Trial Court”) regarding their purchase of a piece of real property from the defendant, Donna Jean Walker (“Seller”). Buyers alleged intentional misrepresentation, negligent misrepresentation, and failure to disclose the presence of mold within the home. The Trial Court granted summary judgment in favor of Seller. Buyers previously filed an appeal to this Court regarding the grant of summary judgment. During that appeal, this Court held that the Trial Court had not provided a sufficient basis for granting Seller’s motion for summary judgment and remanded for entry of a new order explaining its reasoning. Thereafter, the Trial Court entered a revised order providing detailed reasoningfor its grant of summary judgment in favor of Seller on each of Buyers’ claims against her. Buyers timely appealed the revised order to this Court. During this second appeal, Buyers filed essentially the same brief as in the previous appeal despite entry of the Trial Court’s revised order following remand. Because Buyers failed to address the revised order in their appellate brief and failed to cite to the record submitted to this Court in this appeal, Buyers waived their issues for appeal by failing to comply with Tenn. R. App. P. 27 and Tenn. Ct. App. R. 6. We, therefore, affirm the judgment of the Trial Court in its entirety.

 

State of Tennessee v. Robinson,  No. W2022-00459-CCA-R3-CD (Tenn. Ct. Crim. App. Mar. 30, 2023).  A Madison County jury found the Defendant, Montreal Portis Robinson, guilty of felony murder in the perpetration of a theft, especially aggravated kidnapping, robbery, and theft of property. On appeal, the Defendant argues that the evidence is insufficient to sustain his convictions. We conclude that the evidence is sufficient to support the Defendant’s convictions for especially aggravated kidnapping and robbery. However, we also conclude that the evidence is insufficient to support the Defendant’s convictions for theft and felony murder in the perpetration of a theft. Accordingly, we dismiss the theft charge, and we modify the Defendant’s conviction for felony murder to that of second degree murder as a lesser-included offense. We respectfully remand the case for further proceedings consistent with this opinion, including the entry of a modified judgment and a sentencing hearing on the conviction for second degree murder.

 

State of Tennessee v. Watkins,  No. W2022-00274-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 20, 2023).  The Defendant, Sidney Eugene Watkins, was convicted by a jury of alternative counts of possession of marijuana with the intent to sell or deliver and possession of a firearm during the commission of those dangerous felonies, as well as simple possession of methamphetamine, simple possession of alprazolam, and possession of drug paraphernalia. Following the jury verdict, the trial court granted the Defendant’s motion for judgment of acquittal on the firearm counts (counts 7 and 8). The State appealed, and we reversed, concluding that the trial judge applied the wrong standard in ruling on the Defendant’s motion for judgment of aquittal. On remand, the trial court affirmed the jury’s verdict in its role as thirteenth juror and found the evidence sufficient to support the firearm counts. The Defendant now appeals challenging the trial court’s ruling. Following our review, we affirm. We remand the case for entry of a corrected judgment in count 8 due to clerical errors.

 

State of Tennessee v. Fouse,  No. W2021-00380-CCA-R3-CD (Tenn. Ct. Crim. App. Oct. 10, 2022).  A Madison County jury convicted the defendant, Keyshawn Devonte Fouse, of attempted first-degree murder resulting in serious bodily injury, aggravated assault, and employing a firearm during the commission of a dangerous felony, for which he received an effective sentence of twenty-six years in confinement. On appeal, the defendant contends the evidence presented at trial was insufficient to support his conviction for attempted first-degree murder. The defendant also argues the trial court erred in allowing reference to the defendant’s nickname, “Shoota,” and in misapplying the law regarding presumptive sentences and sentencing factors. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

 

Wade v. State of Tennessee, No. W2021-01419-CCA-R3-PC (Tenn. Ct. Crim. App. May 5, 2022).  After being convicted of first degree murder, felony murder, especially aggravated robbery, attempted first degree murder, and aggravated assault, Johnny Lorenzo Wade, Petitioner, was sentenced to an effective sentence of life plus 40 years. State v. Johnny Lorenzo Wade, No. W2017-00933-CCA-R3-CD, 2018 WL 3414471, at *1 (Tenn. Crim. App. Apr. 3, 2018), perm. app. denied (Tenn. Nov. 15, 2018). Petitioner’s convictions and sentences were affirmed on direct appeal, and Petitioner subsequently sought post-conviction relief. He now appeals from the dismissal of his petition for post-conviction relief in which he alleged ineffective assistance of counsel, among other issues. Because Petitioner filed an untimely notice of appeal and the interests of justice do not merit waiver of the timely filing of the notice of appeal, we dismiss the appeal.

 

State of Tennessee v. Settle,  No. W2021-00328-CCA-R3-CD (Tenn. Ct. Crim. App. May 31, 2022).  The pro se Petitioner, Mike Settle, appeals the dismissal of his Tennessee Rule of Criminal Procedure 36.1 claim. Upon our review, we affirm.

 

Evans v. State of Tennessee, No. W2021-00379-CCA-R3-PC (Tenn. Ct. Crim. App. May 5, 2022). Cedric Evans, Petitioner, sought post-conviction relief from his guilty-pleaded convictions for second degree murder and felon in possession of a firearm, claiming that he received ineffective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Discerning no error, we affirm.

 

Matthews v. State of Tennessee, No. W2021-00898-CCA-R3-PC  (Tenn. Ct. Crim. App. April 29, 2022).  As the result of a guilty plea to rape and robbery entered over 18 years ago, Billy James Matthews, Petitioner, was sentenced to an effective sentence of ten years. See Billy James Matthews v. State, No. W2005-02939-CCA-R3-PC, 2006 WL 2843291 (Tenn. Crim. App. Oct. 5, 2006), perm. app. denied (Tenn. Jan. 22, 2007). After the denial of habeas corpus relief, see Billy James Matthews v. Warden Glenn Turner, No. W2004-01547-CCA-R3-HC, 2005 WL 957112, at *1 (Tenn. Crim. App. Apr. 26, 2005), and post-conviction relief, Billy James Matthews v. State, 2006 WL 2843291, at *1, Petitioner sought relief via the Post-Conviction DNA Analysis Act of 2001. The post-conviction court dismissed the petition without a hearing. Petitioner filed an untimely notice of appeal. Because the interests of justice do not mandate waiver of the timely filing of the notice of appeal, the appeal is dismissed.

 

Martina Smith, et al. v. Donna Jean Walker, et al., No. W2021-00241-COA-R3-CV (Tenn. Ct. App. March 22, 2022). Appellants purchased a home from Appellee that was contaminated with mold. Appellants therefore filed suit against Appellee. The trial court granted summary judgment in Appellee’s favor. Because the trial court’s order does not comply with Rule 56.04 of the Tennessee Rules of Civil Procedure or Smith v. UHS of Lakeside, Inc., we vacate and remand.

 

State of Tennessee v. Jo C. Borden, No. W2021-00305-CCA-R3-CD (Tenn. Ct. Crim. App. March 21, 2022). Jo C. Borden, Defendant, pled guilty in an open plea in case number 19-360-3 to two counts of retaliation for past action and, in case number 19-361-3, to one count of vehicular assault; three counts of reckless aggravated assault; one count of reckless endangerment with a vehicle; and three counts of driving on a revoked license. The trial court sentenced Defendant to an effective sentence of five years in case number 19-360-3 and to an effective sentence of ten years in case number 19-361-3, and it aligned the sentences in the two cases consecutively. On appeal, Defendant argues that the trial court improperly sentenced him as a Range III, persistent offender, that it erred by imposing a sentence of confinement, and that it abused its discretion by aligning his sentences consecutively. After a thorough review, we determine that the trial court did not abuse its discretion by imposing consecutive sentences or by denying alternative sentencing but that the trial court erred in sentencing Defendant as a Range III, persistent offender. Accordingly, we remand for resentencing consistent with this opinion.

 

State of Tennessee v. Robert Shane Cole, No. W2020-01675-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 27, 2022). The Defendant, Robert Shane Cole, was convicted upon his guilty pleas to numerous offenses related to driving under the influence, driving on a revoked license, violation of the open container law, possession of drug paraphernalia and various drugs, violation of multiple driving-related offenses, and harassment. The plea agreement did not contain provisions related to the length and manner of service of the sentences. The trial court sentenced the Defendant to an effective sentence of five years, eleven months, and twenty-nine days, to be served. On appeal, the Defendant contends that the trial court erred in denying his request for probation. 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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