State of Tennessee v. James Strong Powell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 5, 2012

STATE OF TENNESSEE v. JAMES STRONG POWELL

Direct Appeal from the Circuit Court for Hardin County

No. 9309 Stella L. Hargrove, Judge

No. W2011-02685-CCA-R3-CD - Filed April 26, 2013

Defendant, James Strong Powell, an attorney, was indicted for aggravated perjury.

Defendant was convicted as charged by a jury and sentenced by the trial court to serve two

years, seven months, and nine days in confinement as a Range I standard offender.

Defendant now appeals his conviction and sentence. Defendant asserts that the trial court

erred by: 1) allowing the trial judge, who presided over the hearing at which Defendant was

alleged to have perjured himself, to testify at trial beyond the scope of the trial judge’s

expertise; and 2) denying Defendant’s request for a sentence of full probation. After a

careful review of the record, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which C AMILLE R.

M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

Guy T. Wilkinson, District Public Defender; and Billy R. Roe, Jr., Assistant Public Defender,

(on appeal), and Joe L. Brown, Savannah, Tennessee, (at trial), for the appellant, James

Strong Powell.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Jerry Woodall, District Attorney General; and Jody Pickens, Assistant District

Attorney General, for the appellee, the State of Tennessee.

OPINION

Facts

Attorney Curtis Hopper testified that he had 19 years of experience as a trial lawyer.

He represented the Hardin County mayor, Kevin Davis, one of the defendants in civil case

7424 in the Hardin County Chancery Court. Defendant represented the plaintiffs, Concerned

Citizens of Hardin County, et al. The complaint was filed on April 23, 2009. Mr. Hopper

filed a motion to dismiss the lawsuit for failure to state a claim pursuant to Tennessee Rule

of Civil Procedure 12. The chancery court granted the motion to dismiss at a hearing on May

22, 2009. Mr. Hopper prepared an order reflecting the court’s ruling and twice faxed it to

Defendant’s office for his approval. Mr. Hopper testified that he did not hear any response

from Defendant regarding his approval or disapproval of the proposed order. At

approximately 8:30 a.m., on the morning of June 9, 2009, Mr. Hopper saw from his office

Defendant walking to the Hardin County Courthouse, and Mr. Hopper followed Defendant

inside. Mr. Hopper testified that he saw Defendant sign the order in the hallway, and shortly

thereafter Mr. Hopper obtained the Chancellor’s signature and filed the order in the clerk’s

office.

On August 27, 2009, the same plaintiffs, through a new attorney, filed a second

lawsuit, case number 7447, against the same defendants. Mr. Hopper testified, “essentially,

it was the same lawsuit. It was – had a few extra issues added into it, but requesting the same

thing.” Chancellor Harmon, who had granted the motion dismissing the first lawsuit, recused

himself in case 7447, and Circuit Court Judge Donald Parish was assigned to hear the case.

Mr. Hopper testified that the school board and the county filed a joint motion to dismiss the

case on the basis of res judicata. The motion was granted, and case 7447 was dismissed by

a written order entered on October 19, 2009. The plaintiffs’ attorney did not file an appeal

from the order dismissing case 7447. Subsequently, the plaintiffs filed a motion for relief

from judgment, pursuant to Rule 60 of the Rules of Civil Procedure, seeking to reopen case

7424, the first case. Attached to the motion for relief from judgment was an affidavit of

Defendant. The affidavit stated in pertinent part:

3. All parties present at the hearing [in case 7424, on the defendants’ Rule

12 motion to dismiss] understood that the case was being dismissed on

technical grounds, and that the way was being left open for the Petitioners

to cure defects in the pleading, and to re-file the lawsuit.

4. The Dismissal in that case was understood by all present to be a

dismissal without prejudice.

5. The Chancellor over the cause, Hon. Ron Harmon, stated to me after the

hearing that the matter should be re-filed, as the Petitioners deserved a

hearing of the matter.

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6. The Judgment issued in that cause, Hardin County Chancery Docket No.

7424, mistakenly or inadvertently fails to include the language “without

prejudice,” with respect to the dismissal ordered.

(Emphasis in original).

Defendant did not state in the affidavit that he believed his signature on the order

dismissing case 7424 was not his signature. Mr. Hopper testified that he did not forge

Defendant’s signature on the order. On November 5, 2009, the plaintiffs filed an amended

motion for relief from judgment in case 7424. The motion did not allege a forgery.

Mr. Hopper testified that a hearing on the motion was conducted before Judge Parish

on December 14, 2009. At the hearing, Defendant testified that case 7424 was dismissed,

but that the order was not meant to be a final order. In his cross-examination of Defendant,

Mr. Hopper asked Defendant about the order:

Q. Mr. Powell, you signed the order, didn’t you?

A. I don’t have the order in front of me, so I don’t – I would assume I

did.

....

Q. Mr. Powell, can you identify this document, please?

A. I’ll be happy to.

(Witness perusing documents.)

This appears to be the order that was entered in this matter, but that

is not my signature. So I don’t know if I gave permission or not.

Q. That’s not your signature?

A. No, that’s not mine.

Q. Did you ever see this order before you – before it was filed?

A. I don’t recall.

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Q. Who signed that?

A. I have no idea. I do not remember.

Q. Are you saying that you authorized somebody else to sign it and it

could have been somebody in your office?

A. Oh, it wasn’t somebody in my office, no.

Q. What do you think happened?

A. I really don’t remember, Curtis. I mean, you know, it’s back in May

and June. I mean, that’s nearly six months ago. I’ve slept since

then.

Q. Did you ever read the order? Have you ever read this order?

A. Yes.

Q. And you knew it was being entered.

A. I don’t recall that I knew before that order was entered that I saw it

before it was entered. I’ve seen it since, I know. I’m not saying I

didn’t. I just don’t remember.

Q. You’re saying that’s not your signature, though.

A. That is not my signature, no.

Q. Okay.

I’m curious as to why you didn’t put that in your affidavit, that the

order that was signed is not your signature.

A. Because I hadn’t seen the order at that time.

Q. You signed the affidavit, though, correct?

A. I did.

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Q. It was filed in this case on this motion, right?

A. I did, right.

Q. A moment ago, you testified that you couldn’t speak for all the

parties present, but in Paragraph 3, it says, “All parties present at the

hearing understood that the case was being dismissed on technical

grounds.”

Is this your affidavit?

A. Yeah, I believe. Let me see it.

Q. Look at Paragraph 3.

A. (Witness perusing documents.) Yeah and the rest of that paragraph

is that the way it was being left open for the Petitioners to cure

defects in the pleading is a refiled lawsuit.

And that was my understanding, yes.

Defendant testified at the hearing that he did sign the complaint filed in the case.

Judge Parish also questioned Defendant:

Q. So, you acknowledge that that is your signature [on the complaint]?

A. Yes, sir.

Q. Now I want to hand you, also, from the original file, the court clerk

file in 7424, the order dated June 9, 2009, which has the effect of

dismissing this case, and ask you, sir, is that your signature?

A. That is not.

Q. And tell me what you recall about the entry of that order.

A. I don’t remember ever seeing that order until I got a copy of it with

the motion for sanctions is when I first remember seeing it. Now, if

I had seen a rough draft of it, you know, I may have. I don’t know.

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Q. When was that that you say you first saw it?

A. It would have been in November.

Q. November of this year, as in last month?

A. Correct.

Q. Do you have your court file – pardon me, your office file regarding

this matter?

A. I do not have it with me, no.

Q. All right. May we agree that the custom in terms of persons signing

orders for other people, that would be limited either to an employee

of your office, meaning a fellow lawyer within your office –

A. Which by June, there was no one else.

Q. That’s what I’m getting at.

A. Right.

Q. And opposing counsel or other counsel involved in the case with

permission.

A. Which the way I would do it and the way I’ve seen most people do

it would be to sign the name and put “with permission” and their

initials or their name. So, I don’t know. I don’t know what

happened. I have no idea what happened with the order and how it

got circulated. I don’t recall even seeing it, you know, after we had

the hearing. Now is my memory perfect? No, sir, it is not.

Q. That’s all.

The attorney for the school board, a defendant in both civil cases, also asked

Defendant about the order during the hearing:

Q. Mr. Powell, is there – you know Mr. Hopper, don’t you?

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A. I do.

Q. And he practices here in Hardin County [ ], doesn’t he?

A. He does.

Q. Do you have a remembrance of Mr. Hopper approaching you with

that order and asking you to sign it and you signing it?

A. I don’t, but like I said . . .

Q. You don’t remember that?

A. I don’t, no.

Q. Thank you.

A. I’m not denying that it happened, I just don’t remember it.

Mr. Hopper testified at the trial in this case that Defendant was not truthful when he

testified at the hearing that the signature on the order was not his. Mr. Hopper testified that

he believed that the significance of Defendant denying that it was his signature was, “the

very narrow exceptions to set aside a judgment that is already over with, if what he is saying

is true and that was not his signature, it would be grounds to open that lawsuit up. That is

a material matter.”

In a written order denying the motion to set aside the judgment in case 7424, Judge

Parish found Defendant’s testimony “as to the material matters in dispute to be not credible.”

Following the entry of the order, Mr. Hopper was contacted by Agent Terry Dicus of the

Tennessee Bureau of Investigation. Mr. Hopper gave Agent Dicus personal correspondence

and documents from Mr. Hopper’s case file that had Defendant’s signature on them. The

parties stipulated that the documents contained Defendant’s signature.

On cross-examination, Mr. Hopper testified that he faxed the proposed order to

Defendant on two occasions prior to Defendant signing the order. Mr. Hopper did not bring

fax confirmations with him to court because he “wasn’t asked to.” Mr. Hopper testified that

when he handed the order to Defendant to sign in the hallway of the courthouse that

Defendant “scanned it, like most lawyers do. But [Defendant] made the comment, ‘My

clients are not happy with the result.’ I remember it vividly. . . .”

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Grant Sperry, a forensic document examiner, was qualified by the trial court as an

expert in the field of forensic document examination. Mr. Sperry examined documents

submitted to him for comparison. He reviewed the signatures from a collection of documents

prepared during the normal course of business, and he reviewed the signature on the order

dismissing case 7424. Mr. Sperry explained that individuals develop “a series of habits

through repetition” and that “[handwriting] habits are unique to each individual. So no two

individuals have ever been found to have[,] even with some of the studies that have been

done on quintuplets and so forth over the years, have the same identical set of handwriting

features and characteristics.” He also testified that “no two writings by the same individual

will ever be precisely alike.”

Mr. Sperry testified that “accidentals” occur in handwriting when a person is writing,

for example, in a moving car. He explained that the writing may contain “features and

characteristics . . . that may never be repeated. It doesn’t mean that the signature doesn’t

have value for identification.” Prior to his examination of the documents in this case, Mr.

Sperry was informed that Defendant had signed the order against a wall. Mr. Sperry testified

that the “features” of that signature “were not replicated” in the submitted samples. He

examined the signature microscopically, and he determined that the signature in question was

illegible, and he described it as “a stylized signature, an abbreviated signature, kind of like

a credit card signature, which many of us write.” He testified that the signature was

“naturally executed” and there were no “hard stops that would be indicative of either a

simulation, . . ., or a tracing, . . . .” Mr. Sperry concluded that Defendant wrote the signature

on the order. He testified that it was “much more likely than not, that [Defendant] made that

particular signature.” He testified, “my conclusion is that there are indications that

[Defendant], whose writings are reflected in [the submitted documents], wrote the . . .

signature on [the order]. It is a less than definitive finding.” He further testified that he did

not find indications that Defendant did not write the signature and that “the features and

characteristics that perhaps in this case are not represented fully, I believe is due to simply

some sort of accidental feature that was incorporated, writing position, writing situation, I

don’t know.” Mr. Sperry testified that, in his opinion, the likelihood that Defendant wrote

the signature was “approximately 80 percent[.]” On cross-examination, Mr. Sperry testified

that Defendant “has a very wide range of writing variation” and that “it certainly is possible

for an individual to recognize his signature and [to] not [be] able to recognize their

signature.”

Judge Donald Parish testified that he had been a circuit court judge for approximately

five years and that he practiced law for 25 years prior to being elected a judge. Over defense

counsel’s objection, Judge Parish was qualified by the trial court as an expert “in the field

of civil and criminal law.” Judge Parish testified that he was the presiding judge in the

judicial circuit during the civil proceedings involved in this case. He was the judge in case

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7447. Judge Parish testified that the original complaint in case 7424 was filed by the

Concerned Citizens of Hardin County, represented by Defendant, in an attempt to enjoin the

defendants, the school board and the county, from constructing new schools. Attorneys for

the defendants filed a motion to dismiss the complaint, which was granted by Chancellor

Harmon following a hearing in May, 2009. A written order was entered on June 9, 2009, and

the plaintiffs did not file a notice of appeal in that case.

Judge Parish testified that the same plaintiffs, represented by different counsel, filed

a complaint in case 7447 on August 27, 2009. Chancellor Harmon recused himself from that

case, and Judge Parish, as the presiding judge in the judicial circuit, assigned himself to

preside over the case. In case 7447, the plaintiffs sought an injunction against the school

board and the county, requiring that construction of schools be stopped and that the funds

collected for the project be redirected. The defendants filed a motion to dismiss the second

lawsuit. Judge Parish requested from all the parties’ attorneys written briefs discussing the

issue of res judicata, which Judge Parish testified, “is a legal doctrine, . . . . [which] in its

simplest term [ ] means that this subject has previously been litigated.” Following a hearing,

Judge Parish granted the defendants’ motion to dismiss, and an order was entered.

The plaintiffs subsequently filed a“Motion for Relief from Final Judgment” in case

7424. Judge Parish explained that the grounds for such relief are “[e]xtremely limited” under

Tennessee Rule of Civil Procedure 60.02. Judge Parish testified that the plaintiffs’ “only

avenue left” was to “go back to case number 1 [7424] and file a motion to attempt to reopen

case number 1” because the second lawsuit, case 7447, had been dismissed on the grounds

of res judicata. Judge Parish testified that at the December 14, 2009, hearing on the

plaintiffs’ motion, Defendant testified as to a material fact regarding the issue of fraud, the

ground upon which the plaintiffs sought to set aside the judgment. Judge Parish testified that

Defendant’s statement that the signature on the order dismissing case 7424 was “incredible.”

He testified that it was “beyond comprehension” because it would be “the very first thing a

lawyer attacking the validity of a dismissal of a lawsuit would [do].” Judge Parish testified

that during the hearing, it was his duty to determine the credibility of the witnesses. He

testified that “there had been nothing to suggest [Defendant] was not credible until [they] got

into [the] testimony about his signature.” Judge Parish testified that he “immediately began

to compare the signatures” on the pleadings contained in the court files while Defendant was

testifying.

Judge Parish testified that he “chose to ask questions of [Defendant], while he was on

the witness stand, relative to this question about his signature, because it had become such

an important point on the final order.” Judge Parish testified that the fact of whether or not

the order bore Defendant’s signature “was very material[.]” Judge Parish showed Defendant

documents from the court file, and Defendant acknowledged his signature on those

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documents. Judge Parish testified, “we had a very serious situation developing in the

courtroom on that morning.” He testified that “only one of two things was possible; either

[Defendant] had committed perjury during his testimony or that someone had forged his

signature. Both of which were serious issues and needed to be gotten to the bottom of [sic].”

Following the hearing, Judge Parish entered an order denying the plaintiffs’ motion.

He explained that he included Defendant’s credibility in the written order in order to make

his findings clear in the event of appellate review. Judge Parish “used [his] observations of

[Defendant] during his testimony” in making his determination that Defendant was not

credible. Judge Parish also noted that he believed it was significant that Defendant did not

include a statement about the alleged forgery in his affidavit. Judge Parish found “no

conceivable, logical explanation for why [Defendant] would not have said that in his

affidavit.” Judge Parish also testified that Defendant did not retract his statement that the

signature was not his.

Following the hearing, Judge Parish, believing that a perjury had occurred in his

courtroom, contacted the presiding judge of the Court of the Judiciary to clarify his duties.

He then reported the alleged perjury to the District Attorney General’s Office.

Stacy Battles testified on behalf of Defendant. She testified that she was the secretary

for General Sessions Court Judge Ross in Wayne County. She testified that on June 9, 2009,

Defendant was in court in Wayne County. She testified that court began at approximately

9:00 a.m. and that there was a recording from court that day that reflects that Judge Ross

spoke to Defendant about Defendant’s client who was not present in court. She testified that

Defendant’s client’s last name was Whitley and that the docket was called in alphabetical

order. She testified that Mr. Whitley’s name was called at 9:52 a.m. Judge Ross then gave

Defendant an opportunity to contact his client, and at 9:58 a.m., Defendant informed the

court “that his client was not available.” Ms. Battles testified that the Wayne County Justice

Center, where the general sessions court is located, was approximately 34 miles away from

the Hardin County Courthouse. She testified that it had taken her approximately 25 minutes

to get to court in Hardin County from Waynesboro that day.

Defendant testified that he was 49 years old and had been practicing law for “[n]early

20 years.” He had practiced law in Hardin County for four years, and he practiced in

Memphis prior to moving to Hardin County. He represented the group known as Concerned

Citizens of Hardin County in case 7424. Defendant testified that at the May 22, 2009,

hearing, Chancellor Harmon dismissed the lawsuit. Defendant testified that he had agreed

with his clients that he would not represent them on appeal. He referred his clients to another

attorney. Defendant testified that he advised his clients “that they had a certain number of

– amount of time to appeal it, if they wanted to appeal it, . . . .” He testified that attorney

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Christopher Donovan, who was hired by the plaintiffs to represent them, “approached [him]

and asked [him] what [his] understanding was about what happened in court” at the hearing.

Mr. Donovan subsequently provided Defendant with an affidavit. Defendant believed the

affidavit “accurately reflected . . . the situation,” and Defendant told Mr. Donovan that it did.

Defendant testified, “clearly, I was wrong, but that’s what I understood to be the case.”

Defendant “saw no reason not to sign” the affidavit although he “didn’t understand why Mr.

Donovan cared or wanted to know what [Defendant’s] understanding of what happened in

court that day was.”

Defendant testified that he received a subpoena to appear in court on December 14,

2009, and he “had no idea why.” He testified that Mr. Donovan came to his office on the

morning of the hearing and told him, “‘You need to be in court right now.’” Defendant was

“totally surprised by it.” At the hearing, Mr. Donovan asked Defendant whether it was his

signature on the order, and Defendant “assumed it was.” He testified that he “had no reason

to believe it wasn’t.” Defendant “had no idea why he was asking [him] about the order.”

Defendant testified that when he was presented the order, he “was given about that long to

decide – to – to – to examine that signature, okay.” He testified, “[W]hen I looked at the

signature, it literally jumped off the page at me that, that just doesn’t look like my signature.”

He testified that it was not his signature “after having less than 10 seconds to look over it.”

Defendant testified that on June 9, 2009, he was in court in Wayne County “by nine

o’clock.” He testified that during an interview with Agent Terry Dicus, Defendant looked

at his calendar and realized that he was not in court in Hardin County that morning.

Defendant testified that he had “no recollection of signing the order, and it would have been

impossible” for Defendant to sign it because he “was never [t]here.” He testified that he

would not have signed an order without first reading it. Defendant testified that the first time

he saw the order was in court on the date of the hearing. He then testified that it was

“possible [he had] seen it before that,” but that he did not remember. He then testified that

he had received a copy of the order with a motion for sanctions prior to the hearing.

Defendant testified that he “never really examined it” and he thought that was “a lawyer just

doing what lawyers do.” Defendant “had no idea why [he] was being served with sanctions

after [he] was even out of the [law]suit.”

Defendant estimated that he provided Agent Dicus with “30 or 31” handwriting

exemplars. He “was signing them up against a wall rapid fire,” and Agent Dicus told him

he “wasn’t doing it right.” Defendant testified that he “tried to comply with his orders, as

best [he] could.”

At trial, Defendant again testified that the signature on the order was not his. He

testified that he was “very confused” at the hearing and that he did not understand how Judge

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Parish had interpreted his testimony “until today.” Defendant testified that he never said that

a fraud had been committed upon the court. He believed it was “a mix up.” Defendant did

not “question the validity of the order.”

Defendant testified that he misinterpreted Chancellor Harmon’s ruling dismissing the

lawsuit. He testified, “I guess I just heard what I wanted to, because I was in error.” He

testified that Chancellor Harmon had “stopped [him] in the hallway” as they were leaving the

courtroom, and Defendant interpreted his comments “to mean that [the lawsuit] could be

pursued further.” He testified that he did not recall having seen the order before he signed

the affidavit prepared by Mr. Donovan.

Tammy Wolfe testified as a rebuttal witness for the State. Ms. Wolfe testified that she

was employed as the secretary for Hardin County General Sessions Judge Daniel Smith. She

testified that on June 9, 2009, Defendant was listed as attorney of record for a client in a case

on the 9:00 a.m. docket sheet. Ms. Wolfe testified that when an attorney asks for a case to

be reset or passed from the morning to the afternoon docket, she normally puts a “sticky

note” indicating such on the docket sheet. She testified that she “live[s] by the sticky notes”

and “nobody removes the sticky notes.” Ms. Wolfe testified that there was not a sticky note

on the June 9, 2009, docket sheet to indicate that Defendant had contacted her and told her

that he would be in court in another county on that morning. Ms. Wolfe also testified that

Defendant’s client had entered a guilty plea on December 16, 2008, at which time the case

was continued for six months to be dismissed, and that Defendant did not have to be present

in court on the day that it was dismissed.

Chancellor Ron Harmon presided over case 7424. Chancellor Harmon testified that

he dismissed the lawsuit at the conclusion of a hearing on May 22, 2009. Chancellor Harmon

testified that he did not tell Defendant in the hallway following the hearing that his ruling

was not a final judgment in that case. Chancellor Harmon testified that Defendant

approached the bench after the hearing and asked him, “How do I go about serving the

County Mayor[?]” Chancellor Harmon testified that he was “taken by surprise,” and he told

Defendant “with a summons.” Chancellor Harmon testified that Defendant was “mistaken”

if he thought they had a conversation in the hallway.

Sentencing hearing

At the sentencing hearing, Tim Baker, a probation officer, testified that he prepared

a presentence report, which was admitted into evidence. Mr. Baker testified that he

discovered that Defendant had been convicted of driving under the influence (“DUI”) in

1981. His investigation showed that Defendant pled guilty to DUI and received a “sentence

of 11-29” with two days of jail credit, and the sentence was served on probation.

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Defendant testified that he recalled the DUI incident from May 27, 1981, and stated

that he understood “that it had all been dismissed.” Defendant was 19 years old at the time

of the incident.

Analysis

Expert testimony

Defendant contends that the trial court erred by allowing Judge Parish to testify

“beyond the scope of his expertise” at trial because he was “not qualified as an expert in lie

detection.” The State responds that Defendant has waived this issue by failing to object to

the testimony and failing to include the issue in his motion for new trial. We agree with the

State. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief

be granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error.”); see also State v.

Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies when the

defendant fails to make a contemporaneous objection).

While Defendant initially objected to Judge Parish’s qualifications to testify as an

expert “in the field of civil and criminal law,” Defendant did not specifically object to Judge

Parish giving testimony about his conclusions regarding Defendant’s credibility. The

following exchange occurred during the parties’ voir dire of Judge Parish:

[ASSISTANT DISTRICT ATTORNEY]: Your Honor, I would – in light

of the history, background, experience, and qualifications of Judge Parish,

I would tender Judge Parish to the Court and ask that he be declared an

expert witness.

THE COURT: In the field of –

[ASSISTANT DISTRICT ATTORNEY]: Of law.

THE COURT: In the field of general law or –

[ASSISTANT DISTRICT ATTORNEY]: Civil as well as criminal, please.

THE COURT: Civil and criminal law. [Defense counsel]?

[DEFENSE COUNSEL]: Yes, ma’am, I object. He’s had experience. I

don’t deny that, but is he an expert?

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THE COURT: During the course of your direct examination, is it important

to that examination that you – that we qualify Judge Parish as an expert,

General?

[ASSISTANT DISTRICT ATTORNEY]: Well, I just thought that it was

appropriate, in light of his extensive background, his experience, his

education of appellate emphasis, and – and he’s going to be giving an

opinion, based upon legal documents, as well as forming conclusions based

on that training, background, and experience. And I just think it’s

appropriate that that question be asked.

Now, I – I understand what – it’s very unusual to have a judge

testify.

THE COURT: Yes, sir.

[ASSISTANT DISTRICT ATTORNEY]: Quite frankly, it’s unusual to

have a – a lawyer testify, but this is such a blending of civil and criminal

matters, that it requires someone to have an additional level of expertise and

experience.

THE COURT: And I think you’ve eluded for – or maybe it is in evidence,

that Judge Parish is expected to give an opinion on credibility.

[ASSISTANT DISTRICT ATTORNEY]: That’s correct.

THE COURT: [Defense counsel]?

[DEFENSE COUNSEL]: Ma’am, I haven’t heard anything yet today that

– as far as Mr. – Judge Parish’s publications, periodicals, peer reviews, any

– anything to qualify Judge Parish as an expert.

THE COURT: So that we will have a good record, [defense counsel], do

you want to examine, Voir Dire Judge Parish as to his qualifications being

tendered to the Court as an expert in the field of criminal and civil law? Do

you wish Voir Dire, because you are opposing that, aren’t you?

[DEFENSE COUNSEL]: Yes, ma’am.

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The specific testimony that Defendant asserts on appeal was admitted in error is Judge

Parish’s testimony regarding his conclusions about Defendant’s credibility at the motion

hearing in civil case 7424, and whether Defendant’s testimony at the hearing “was a lie or

that the lie was material.” We note that Defendant concedes that it was not improper for

Judge Parish to testify “to the surrounding circumstances involving the alleged aggravated

perjury, including the facts that would make the lie material.” Defendant objected at trial to

Judge Parish’s testimony concerning his observations of the signatures on the order and

Defendant’s signatures in the court file on the basis that Judge Parish was not qualified as

“an expert on handwriting,” and the trial court did not allow Judge Parish to give an opinion

on the signatures. However, Defendant failed to object to Judge Parish’s testimony

concerning Defendant’s credibility, the testimony about which he now complains.

Additionally, Defendant did not include this issue in his motion for new trial. Issues

relating to the admission or exclusion of evidence that are not raised in a motion for new trial

are deemed to be waived on appeal. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury,

no issue presented for review shall be predicated upon an error . . . or other ground upon

which a new trial is sought, unless the same was specifically stated in a motion for new trial;

otherwise such issues will be treated as waived.”).

Finally, Defendant did not request in his brief on appeal that this issue be reviewed

for plain error, see Tennessee Rule of Appellate Procedure 36(b), nor has Defendant filed a

reply brief in which he requests plain error review. In light of Defendant’s failure to object

contemporaneously at trial and his failure to include the issue in his motion for new trial or

request plain error review on appeal, we will not exercise our discretion to review the issue

for plain error. See Tenn. R. App. P. 36(b) (stating that “[A]n appellate court may consider

an error that has affected the substantial rights of a party at any time, even though the error

was not raised in the motion for a new trial” where consideration of the error is “necessary

to do substantial justice.”). Accordingly, we conclude that Defendant has waived this issue

and is therefore not entitled to relief.

Probation denial

Next, Defendant contends that the trial court erred by denying his request for full

probation.

When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682 (Tenn.

2012). This court will uphold the trial court’s sentencing decision “so long as it is within the

appropriate range and the record demonstrates that the sentence is otherwise in compliance

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with the purposes and principles listed by statute.” Id. at 709-10. The party challenging the

sentence imposed by the trial court has the burden of establishing that the sentence is

erroneous. Tenn. Code Ann. § 40-35-401 (2010), Sentencing Comm’n Comments; State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Recently, our supreme court held that the same abuse of discretion standard should

be applied to the manner of service of a sentence, which includes the grant or denial of

probation. State v. Caudle, 388 S.W.3d 273 (Tenn. 2012). When determining if confinement

is appropriate, the trial court should consider whether (1) confinement is necessary to protect

society by restraining a defendant who has a long history of criminal conduct, (2)

confinement is necessary to avoid depreciating the seriousness of the offense or confinement

is particularly suited to provide an effective deterrence to people likely to commit similar

offenses, or (3) measures less restrictive than confinement have frequently or recently been

applied unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1)(A)-(C) (2010).

The trial court may also consider a defendant’s potential or lack of potential for rehabilitation

and the mitigating and enhancement factors set forth in Tennessee Code Annotated sections

40-35-113 and -114. Tenn. Code Ann. §§ 40-35-103(5) (2010), -210(b)(5) (2010), State v.

Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). The sentence imposed should be the

least severe measure necessary to achieve the purpose for which the sentence is imposed.

T.C.A. § 40-35-103(4). The burden of demonstrating the suitability for full probation rests

with the defendant. Tenn. Code Ann. § 40-35-303(b) (2010 Repl.).

At the conclusion of the sentencing hearing, the trial court found that Defendant was

not credible at trial and that Defendant had “absolutely no remorse.” The court noted that

Defendant “takes no responsibility, so there’s no amenability to correction. He takes no

responsibility and demonstrates no remorse.” The court also found that “Defendant’s

incarceration could rationally serve as a deterrent to others similarly situated and likely to

commit similar crimes” and that “[d]eterrence alone is sufficient to justify the denial of

probation.” The court also found that a sentence of full probation would unduly depreciate

the seriousness of the offense. The court stated,

This is not an ordinary citizen who lied under oath, but he’s an officer of the

Court, who not only violated the sanctity of the oath given to all witnesses,

he violated the integrity of the oath he took as [an] officer of the Court to

uphold the integrity of the judicial system; the very heart of our legal system

and the very heart of why it should work, . . . .

....

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[Defendant] happens to be a lawyer who cannot – who cannot tell the truth

under oath. And in my mind, never will be able to, because he does not

understand the ethics and the oath that he took as a lawyer. He accepts no

responsibility.

The State asserts that Defendant has waived this issue by failing to cite to the record.

Tennessee Rule of Appellate Procedure 27 requires that appellate briefs contain an argument

containing citation to the record and legal authorities. Tenn. R. App. P. 27(a)(7). This court

will deem an issue waived when a defendant has failed to support an issue with argument,

citation to authorities, or appropriate references to the record. See Tenn. R. Crim. App.

10(b).

We note that Defendant’s brief cites State v. Mitchell, 810 S.W.2d 733 (Tenn. Crim.

App. 1991) and states, “[t]he granting [and revocation] of a suspended sentence rests in the

sound discretion of the trial judge.” Defendant concedes that he had a 1981 conviction for

DUI and notes that the trial court gave significant weight to Defendant’s status as an attorney

guilty of aggravated perjury. Defendant contends, however, that “[e]vidently, the [t]rial

[j]udge doubted the appropriateness of the sentence, because she stated that an [a]ppellate

[c]ourt was likely to disagree.” Defendant acknowledges that his “behavior was

unacceptable.” He asserts, however, that his status as a convicted felon and the loss of his

license to practice law was sufficient punishment and that a sentence of incarceration was

excessive punishment.

Our review of the record shows that the trial court considered the relevant sentencing

principles and imposed an appropriate sentence of incarceration. Therefore, we will not

disturb the trial court’s sentence. Defendant is not entitled to relief on this issue.

CONCLUSION

The judgment of the trial court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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