Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 8, 2017
from the Circuit Court for Franklin County No. 2016-CR-92 J.
Curtis Smith, Judge
Defendant, Yolanda N. Shedd, was indicted for one count of
assault, a Class A misdemeanor. See Tenn. Code Ann.
§ 39-13-101. The Defendant was ultimately convicted by a
jury of the lesser-included offense of attempted assault, a
Class B misdemeanor. See Tenn. Code Ann.
§§ 39-12-101, -12-107(a), -13-101. The trial court
imposed a sentence of six months to be served on unsupervised
probation. On appeal, the Defendant contends (1) that she
received ineffective assistance of counsel because her trial
counsel had a conflict of interest; (2) that she received
ineffective assistance of counsel because trial counsel
failed to "properly cross-examine" one of the
State's witnesses; and (3) that the trial court
improperly interfered with trial counsel's
cross-examination of one of the State's witnesses.
However, our review of the record reveals that the Defendant
failed to raise these issues in a timely motion for new
trial; thereby, waving full appellate review. Additionally,
we conclude that plain error review of the issues is not
warranted. Accordingly, we affirm the judgment of the trial
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Yolanda N. Shedd, Winchester, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Counsel; James Michael Taylor, District
Attorney General; and Courtney Lynch, Assistant District
Attorney General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Robert W. Wedemeyer and J. Ross Dyer, JJ., joined.
KELLY THOMAS, JR., JUDGE
pertinent to our review, this case arose out of an
altercation between the Defendant, her co-defendant, Aaliyah
Shedd, and the victim, Chelsea Mills, at a Kroger Fuel Center
in Decherd, Tennessee. Ms. Mills testified at trial that the
dispute began when she left the passenger-side door of her
car open at the gas pump causing the co-defendant to have
trouble navigating around Ms. Mills's car. Ms. Mills
further testified that the Defendant began yelling at her.
The Defendant approached Ms. Mills, got close to her, and
began "chest bumping" Ms. Mills. Ms. Mills
testified that the co-defendant then approached her, grabbed
her hair, and began hitting her. Ms. Mills admitted that she
did not know if the Defendant hit her.
witnesses testified that they saw the Defendant "chest
bump" the victim. Additionally, surveillance video
footage was recovered from the Kroger Fuel Center by Decherd
Police Officer Bobby Hamby and played for the jury. Officer
Hamby admitted that he arrived at the Kroger Fuel Center
after the altercation had ended. Officer Hamby also admitted
that the fuel pumps obscured the view of the victim and the
defendants for a portion of the video. During
cross-examination by the Defendant's trial counsel,
Officer Hamby was asked to narrate what he saw on the video.
Officer Hamby stated that he saw the Defendant chasing the
victim and that the Defendant was "in a fight" with
the victim. Based upon the foregoing, the Defendant was
convicted of the lesser-included offense of attempted
assault. No motion for new trial was filed, but a timely
notice of appeal to this court was filed.
appeal, the Defendant contends that she received ineffective
assistance of counsel because her trial counsel had a
conflict of interest. The Defendant also contends that trial
counsel was ineffective in his cross-examination of Officer
Hamby. The Defendant further contends that the trial court
interfered with trial counsel's cross-examination of
Officer Hamby by not allowing trial counsel to question
Officer Hamby about the apparent contradiction between what
was seen on the video surveillance footage and Officer
Hamby's narration that the Defendant was chasing and
fighting the victim. The State responds that the Defendant
failed to raise these issues in a motion for new trial;
thereby, waiving full appellate review and that plain error
review is not warranted.
Rule of Appellate Procedure 3(e) treats issues "upon
which a new trial is sought" as waived "unless the
same was specifically stated in a motion for a new
trial." The Defendant did not file a motion for new
trial raising these issues. As such, we review these issues
solely for plain error. The doctrine of plain error applies
when all five of the following factors have been established:
(a) the record must clearly establish what occurred in the