Here is a summary of new decisions from the Tennessee Court of Criminal Appeals:

HIGHLIGHTS: Evidence that the Defendant performed poorly on field sobriety tests supports his conviction for DUI, regardless of Defendant’s testimony that he was uncoordinated and could not perform the tests even when sober – State v. Spiva <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/SpiveyRobertBradleyOPN.pdf> . Sentences are vacated in State v. Klocko <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/klockojopn.pdf> and the case is remanded for a sentencing hearing because the trial court did not specify its reasons for imposing consecutive sentences. In State v. Sweeney <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/sweeneyfopn.pdf> , the alleged infidelity if the Appellant’s wife is not relevant to the jury’s determination of whether Appellant set fire to their house.

EVIDENCE/ACCOMPLICE/SENTENCING
State v. Hosie Perry, Jr. <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/PerryHosieOPN.pdf> – W2007-00822-CCA-R3-CD (Shelby County)
Affirms two counts of first degree premeditated murder. Evidence sufficient. The proof established that the murders of the victims were premeditated and intentional and that the defendant knowingly participated. The proof shows that co-defendant Love was angry at someone who had “shot up” his aunt’s house. The Defendant, along with co-defendants Love and Walker, secured weapons and a ride to the victims’ neighborhood. The three told their driver not to leave. Soon thereafter, shots were fired and the three men ran back to the car, each carrying a gun. The defendant was heard saying, “I think I shot somebody.” Both victims were found shot nearby and subsequently died from gunshot wounds. Defendant argues that the evidence was insufficient because there was no proof connecting him to the crimes other than uncorroborated accomplice testimony. However, the evidence does not support the defendant’s contention that Witnesses Parker and Payne were accomplices to the murders. Parker and Payne both testified that they were riding around together and eventually gave a ride to the defendant and two other men. Parker and Payne were not privy to the conversations between the defendant and the two other men, and they did not know what the three men had planned. Parker and Payne’s testimony also reflects that they became afraid of the three. After dropping the three men off, Parker testified that he told the three men he was leaving; whereupon, the defendant, who was holding a gun at the time, told Parker that he had better not leave. Accordingly, there is little, if any, evidence establishing that Parker and Payne knowingly, voluntarily, and with common intent, united with the principal offenders to commit the murders. The trial court did not err in imposing consecutive sentences. The record supports the court’s finding that the defendant had an extensive criminal history. Additionally, while the court made speculative comments regarding the defendant’s familiarity with an AK rifle, there was no error in the court’s finding that the defendant was a dangerous offender.

EVIDENCE
State v. George Garner, Jr. <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/GarnerGeorgeJrOPN.pdf> – M2007-02209-CCA-R3-CD (Rutherford County)
Affirms attempted second degree murder. Proof shows Defendant stabbed his son-in-law in the neck, causing a five centimeter laceration near the carotid artery and internal jugular vein. The victim’s wound was in “very close proximity” to the carotid artery, which would have resulted in “high likelihood of death or significant disability” had it been opened. The evidence was sufficient to establish that the defendant knowingly attempted to kill the victim. The defendant and the victim had a history of prior arguments, and the testimony shows a series of verbal confrontations before the final incident. Witnesses testified that the Defendant stabbed the victim. Both the victim and a police officer testified that they heard the defendant threaten to kill the victim.

PRIORS/MENTAL ILLNESS
State v. Michael Todd Kirkup <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/KirkupMichaelOPN.pdf> – M2007-02066-CCA-R3-CD (Davidson County)
Affirms theft of property over $1000, possession of drug paraphernalia, and second offense driving on a revoked license. The evidence at trial showed that a van, with the keys inside it, was parked at the loading docks of a Rent-A-Center on September 12, 2006. The van’s estimated value was $6000. At 1:00 a.m. the following morning, police officers arrested the Defendant while he drove the van. Defendant said he was familiar with the Rent-A-Center location, but claimed he did not steal the van but rather “rented” it from a friend. The jury rejected the Defendant’s contention. The trial court did not abuse its discretion when it concluded the probative value of the Defendant’s prior convictions outweighed their prejudicial effect. The trial court determined the Defendant’s credibility was a key issue, especially in light of his claim of right defense. The Defendant denied he took the van from the Rent-A-Center but explained he rented the van from his friend for a couple of hours. Theft, like fraudulent use of a credit card, is a crime of dishonesty and therefore highly probative to the Defendant’s credibility. The trial court did not err by not affording mitigating factor (13) more weight based upon the Defendant’s mental condition. There was little proof of the Defendant’s mental problems. The Defendant cursorily asserted that he had recently been diagnosed with three mental disorders and that he was told he used drugs to self-medicate.

HMVO
State v. Tony Lynn Allen <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/allentonylynnOPN.pdf> – M2007-00826-CCA-R3-CD (Putnam County)
Affirms violation of an HMVO order. The trial court did not err in not setting aside a 1984 order declaring him a habitual motor vehicle offender and not dismissing the charge for violation of the HMVO order. Defendant filed a motion to dismiss his Putnam County indictment, contending that his White County HMVO order, entered by default judgment, should be set aside pursuant to Rule 60.02. The defendant argues that the order was entered in violation of Rules 55 and 58 of the Tennessee Rules of Civil Procedure. Nothing contained in the record indicates whether the defendant received the requisite notice before the default judgment was entered against him. However, Defendant’s attempt to set aside the order is an impermissible collateral attack on the previous judgment of another court. Although the defendant cites Tennessee Rule of Civil Procedure 60.02 as grounds for setting aside the prior judgment, instead of bringing a Rule 60.02 motion in the White County court, he raised the issue for the first time in a motion to dismiss his Putnam County indictment for violating the order. A motion to dismiss in the criminal case was not the proper procedure for challenging the prior judgment. Therefore, the trial court properly denied the defendant’s motion to dismiss.

EVIDENCE/MIRANDA/HEARSAY
State v. Johnny S. Hudgins <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/hudginsjsopnbkp.pdf> – M2007-01504-CCA-R3-CD (Wayne County)
Affirms two counts of rape of a child. There is sufficient evidence that the Defendant sexually penetrated the eleven year old victim on two occasions. The trial court did not err in admitting into evidence the Defendant’s statement to investigators. Defendant was not in custody when he made his statement. The interview only lasted thirty-five minutes. Defendant drove himself to the courthouse, where the interview was conducted in the grand jury room. Defendant was never restrained in any fashion. Defendant sat by the door, while investigators sat behind a table facing him. Defendant was told after he gave his statement that he was not under arrest. Defendant made his statement while not in custody, therefore the statement is admissible. Even if the Defendant was in custody at the time he gave his statement, he knowingly and voluntarily waived his Miranda rights. The trial court erroneously allowed hearsay evidence, consisting of a portion of the victim’s statement, to be introduced by the State during the cross-examination of a DCS Investigator. The statement by the victim that she did not watch pornography on a computer was said out of court to the DCS Investigator. The statement was offered by the Investigator for the truth that the victim, in fact, did not watch pornography on her brother’s computer. Thus, the statement is hearsay. The error was harmless. Three witnesses testified that the victim did view pornography. The victim testified she did not watch pornography. Thus, the DCS Investigator’s testimony was cumulative, and the Defendant has failed to prove that the admission more probably than not affected the judgment or resulted in prejudice.

EVIDENCE/PROBATION
State v. Robert Bradley Spiva <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/SpiveyRobertBradleyOPN.pdf> – E2007-00994-CCA-R3-CD (Cumberland County)
Affirms DUI (third offense), possession of a prohibited weapon, and driving on a revoked license. Evidence supports the DUI conviction. Proof shows Defendant left a bar after drinking. He told two officers that he was driving his cousin home because his cousin had consumed too much to drink. Based upon this information, one officer asked the Defendant to perform several field sobriety tasks, and the Defendant did poorly at each task. The Defendant admitted that he failed the field sobriety tasks but claimed that he was not coordinated and could not perform the tasks even when sober. At trial, the Defendant claimed that he did not drive the truck, and he did not know who did. The trial court chose to discredit this testimony in favor of the testimony of the two police officers. The trial court correctly noted that the Defendant’s criminal history shows that he is not a good candidate for probation. Defendant has multiple convictions for worthless checks, public intoxication, and solicitation of a false police report. The trial court expressed concern that many of the Defendant’s convictions came while he was on probation or bond and that the Defendant’s probation had been revoked on several occasions.

CROSS-EXAMINATION/PROSECUTORIAL MISCONDUCT/SENTENCING
State v. Jeffrey Mark Klocko <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/klockojopn.pdf> – M2006-01359-CCA-R3-CD (Davidson County)
Affirms convictions for three counts of aggravated sexual battery, six counts of sexual battery by an authority figure, and one count of assault by offensive or provocative contact in connection with allegations made by his step-daughter and her friend. The trial court did not err in denying Appellant’s motion requesting to cross-examine the victim regarding her having had sexual intercourse with her seventeen-year-old boyfriend several days before the complaint was filed. In denying Appellant’s motion to introduce evidence of the victim’s sexual behavior with her boyfriend, the trial court reasoned that Appellant was accused of sexual battery of the victim, not engaging in sexual intercourse with the victim. The court concluded that most fourteen-year-old girls would already have a certain amount of knowledge regarding sexual behavior. The appellate court agrees that there was no reason to expose the victim to the embarrassment of admitting to engaging in sexual intercourse with her boyfriend when Appellant was not even accused of engaging in sexual intercourse with the victim. Appellant’s stated purpose for cross-examining the victim regarding her previous sexual activity was to demonstrate her knowledge of the subject. The use of Rule 412 for this purpose is primarily geared toward young children. At the age of thirteen and fourteen, the adolescent victim could no longer be considered a young child. On cross-examination, the prosecutor was entitled to clarify if Appellant stated that all the witnesses were lying or mistaken as to details. During his direct examination, Appellant testified that he and his wife were having trouble with the victim and issues of discipline. He stated on direct examination that he had reprimanded her for lying and that he had never touched the victim sexually. The prosecutor was attempting to clarify Appellant’s direct testimony. The prosecutor’s use of the words “believe” and “faith” in closing argument do not inherently make the argument improper so as to require reversal. The comments did not express his personal belief or opinion as to the veracity of any witnesses or the guilt or innocence of Appellant, but rather were used to encourage the jury to find young abuse victims truthful and state that he, himself, trusted the judicial system. Sentences vacated, remanded for a sentencing hearing because the trial court did not specify its reasons for imposing consecutive sentences.

CROSS-EXAMINATION/EVIDENCE
State v. Franklin Doug Sweeney, Jr. <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/sweeneyfopn.pdf> – M2006-02581-CCA-R3-CD (Davidson County)
Affirms Appellant’s convictions for arson and vandalism arising from the burning of his ex-wife’s home. Appellant complains that the trial court did not allow him to cross-examine his ex-wife regarding her financial status and her infidelity. The transcript reveals that counsel for Appellant questioned the victim extensively regarding her income, expenses, debt, assets, and insurance settlement money that she received as a result of the fire. Further, counsel for Appellant questioned her about inconsistencies between information she provided to the insurance company about her losses and testimony she gave during divorce proceedings regarding the marital property. The record demonstrates that counsel for Appellant was given wide latitude during cross-examination. This issue is without merit. As to the victim’s alleged infidelity, the issue was not relevant to the jury’s determination of whether Appellant set fire to the house. Appellant argues that as a matter of law, he cannot be convicted of vandalism of property in which he has a property interest. Specifically, Appellant contends that because he and the victim were married at the time of the fire, he had a marital interest in the house as well as certain personal property contained in the house. However, any interest that the Appellant allegedly had in the property would merely be deducted from the value of the vandalized property, so the Appellant would still be guilty of vandalism of property valued at over $60,000 even if such a deduction was made.

EVIDENCE/LESSER-INCLUDED/PROSECUTORIAL MISCONDUCT
State v. Mitchell Eads <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/EadsMitchellOPN02791.pdf> – E2006-02791-CCA-R3-CD (Claiborne County)
Affirms aggravated burglary and theft of property. A rational jury could have reasonably concluded that the defendant broke into the victims’ cabin with the intent to commit a theft and that he stole items that were missing from the cabin. The defendant was discovered asleep on the porch of the cabin, which had been broken into and from which a number of items had been removed and placed in a pickup truck that was hidden from view. When asked where the truck was, the defendant replied that it was “up in the woods” and inquired as to how the arresting officer had known where to find him. The cabin was dirty, beds were unmade, food stored in the cabin was missing, and the electric bill for the month of January was three times higher than a typical month when no one was occupying the cabin. The trial court did not commit reversible error by not instructing the jury on criminal trespass and aggravated criminal trespass as lesser-included offenses of aggravated burglary. The defendant has waived plenary review of the issue by his failure to place his requests for jury instructions in writing. However, because the law on aggravated criminal trespass as a lesser-included offense of aggravated burglary was still unsettled during the relevant time period, no clear and unequivocal rule of law was breached. The trial court’s refusal to issue the requested lesser-included jury instructions does not rise to the level of plain error. The State did not commit prosecutorial misconduct by introducing during its case-in-chief and referring in closing to evidence of his unindicted crimes, specifically, his alleged theft of electrical services and food from the cabin. The evidence was relevant to show that someone was in the cabin during the time period the defendant was found asleep on the porch. Any error was cured by the trial court’s repeated instructions to the jury that the defendant was not on trial for stealing food and electricity.

IDENTIFICATION
State v. Jeffery E. Long <http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/083/longjeOPN.pdf> – E2007-00754-CCA-R3-CD (McMinn County)
Affirms aggravated robbery. Defendant argues that the victim’s physical descriptions of the perpetrator did not match the Defendant’s appearance and, therefore, were insufficient to convict him of the crime. The victim described the robber as between six foot, six inches and six foot, seven inches in height. The six foot, six inch victim said that he had to slightly look up at the robber during the robbery despite the fact that the defendant’s approximate height is six foot. The victim also testified that he was more certain about his identification of the defendant’s face than the defendant’s height. Defendant’s argument of the discrepancy in height has merit but it does not overcome the evidence that the victim made a facial identification of the defendant from different photographic lineups. When considering the victim’s description of the defendant in its entirety, it is reasonable that a jury could conclude the defendant committed the offense. Even if the photographic line-up was unduly suggestive, the totality of the circumstances surrounding the identification of the defendant suggests that the identification was reliable. The victim was “ninety percent” sure that the first photograph he saw of the defendant was a correct identification of the man who robbed him the previous night. The victim had an independent recollection of the robber, separate from the photographic line-up, and would have been able to identify him at trial even if the photographic line-up was excluded. The trial court did not err by failing to require a different jury panel when it was possible some members saw the defendant led into a holding cell in the courthouse prior to trial. The defendant has not shown that a potential juror was tainted because he or she saw the defendant in custody.ennessee Court of Criminal Appeals: