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TBALink Opinion-Flash
April 18, 1996 -- Volume #2 -- Number #37
Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts and the TN Attorney General.
- This Issue:
- New Opinons From TSC : 3
- New Opinons From TCA : 7
- New Opinons From TCCA : 14
- New Opinons From AG : Pending
- New Opinons From TCA : 7
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Jim Moore
TBALink Co-Chief Editor
STATE OF TENNESSEE,v. TIM0THY D. HARRIS and CRAIG THOMPSON, and DISSENTING OPINION Court:TSC For Appellant: For Appellee Harris: Charles W. Burson Harry U. Scruggs Attorney General & Reporter Memphis, Tennessee Amy L. Tarkington David C. Stebbins Christina S. Shevalier (formerly/the Capital Case Assistant Attorneys General Resource Center) Nashville, Tennessee Columbus, Ohio Glenn I. Wright For Appellee Thompson Gerald Harris Paul F. Goodman John G. Oliva Assistant District Attorneys Nashville, Tennessee Memphis, Tennessee David C. Stebbins (formerly/the Capital Case Resource Center) Columbus, Ohio Carolyn Watkins Edward G. Thompson Assistant Public Defenders Memphis, Tennessee First Paragraph: The single issue in this consolidated appeal is purely a question of law and requires a determination of whether a remand for resentencing is appropriate when an appellate court in a capital case concludes the sole aggravating circumstance found by the original sentencing jury is legally invalid and sets aside the sentence of death. Because there is no legal principle which precludes the State from seeking the death penalty upon resentencing, a remand for that purpose is appropriate. URL:http://www.tba.org/tba_files/TSC/HARRISTD.OPN.WP6 URL:http://www.tba.org/tba_files/TSC/HARRISTD.DIS.WP6
STATE OF TENNESSEE, v. ANTHONY DARRELL DUGARD HINES,
Court:TSC
FOR APPELLANT: FOR APPELLEE:
Brock Mehler (Appeal Only) Charles W. Burson
Capital Case Resource Center Attorney General & Reporter
Nashville, Tennessee Nashville, Tennessee
Tom Bloom (Appeal Only) Amy L. Tarkington
Rothchild & Assoc. Assistant Attorney General
Nashville, Tennessee Nashville, Tennessee
Steve Stack (Trial Only)
Ashland City, Tennessee
First Paragraph:
This defendant was convicted of murder in the perpetration
of armed robbery and sentenced to death. On direct appeal
this Court affirmed defendant's conviction and remanded the
case for resentencing because of erroneous jury
instructions.
URL:http://www.tba.org/tba_files/TSC/HINES.OPN.WP6
MACK BROWDER d/b/a MACK BROWDER & ASSOCIATES,
v.
LOGISTICS MANAGEMENT, INC.,
Court:TCA
Jef Feibelman, Burch, Porter & Johnson of Memphis
For Appellant
John J. Heflin, III, Bourland, Heflin, Alvarez,
Holley & Minor, of Memphis
For Appellee
First Paragraph:
This case involves construction of a contract. Plaintiff
Appellant Mack Browder, doing business as Mack Browder and
Associates (Browder), appeals the trial courts grant of
summary judgment to Defendant-Appellee, Logistics
Management, Inc. (LMI).
URL:http://www.tba.org/tba_files/TCA/BROWDER.OPN.WP6
STATE OF TENNESSEE, DEPARTMENT OF COMMERCE AND INSURANCE,
ELAINE McREYNOLDS, COMMR.,
v.
FIRSTTRUST MONEY SERVICES, INC., LINCOLN INVESTMENT
PROPERTIES, INC., FIRSTTRUST, INC.,
Court:TCA
ROBERT S. PATTERSON
BOULT, CUMMINGS, CONNERS & BERRY
Nashville, Tennessee
Attorney for Appellants
CHARLES W. BURSON
Attorney General and Reporter
JERRY L. SMITH
Deputy Attorney General
Nashville, Tennessee
Attorney for Appellee
First Paragraph:
This case was filed by the Commissioner of the Department of
Commerce and Insurance in the chancery court of Davidson
County under the provisions of the Tennessee Financial
Records Privacy Act. The Commissioner sought court approval
to issue certain subpoenas duces tecum incident to an
investigation of the defendant financial institutions. The
trial court entered an order approving the issuance of the
subpoenas and dismissing defendants counter-claim. Two of
the defendants (FirstTrust Money Services, Inc. And Lincoln
Investment Properties, Inc.) have appealed. For the reasons
stated hereafter, we affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCA/FIRSTTRU.OPN.WP6
NINA ALICE KIMBLE, v. MICHAEL WAYNE KIMBLE,
Court:TCA
Michael L. Agee,
AGEE & AGEE, Bartlett, Tennessee
Attorney for Respondent/Appellant.
Kathryn A. King,
SHEA, KING & LANDERS, Memphis, Tennessee
Attorney for Petitioner/Appellee.
First Paragraph:
The gravamen of this appeal is child support. Nina Alice
Kimble and Michael Wayne Kimble were married in 1985,
divorced in 1992 and will be referred to as Wife and
Husband, respectively. When they married, Wife had a son
from a previous marriage and Husband a daughter. Husband
adopted the son but Wife did not adopt the daughter.
URL:http://www.tba.org/tba_files/TCA/KIMBLE.OPN.WP6
RICHARD C. KING, and Wife,
KIMBERLY KING,
v.
W.D. SCHOCK, INC., SOUTH CENTRAL BELL TELEPHONE COMPANY
a/k/a BELLSOUTH TELECOMMUNICATIONS, INC., and CHARLES LARUE,
Defendants/Appellees,
NASHVILLE ELECTRIC SERVICE, VIACOM CABLEVISION a/k/a VIACOM
INTERNATIONAL, INC., RICHARD LARUE, CARLOS LEWIS d/b/a
CARLOS LEWIS & SON HOME MOVERS, METROPOLITAN NASHVILLE
AIRPORT AUTHORITY and THE METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY, ACTING BY AN THROUGH THE
ELECTRIC POWER BOARD AND OPERATING UNDER THE NAME "NASHVILLE
ELECTRIC SERVICE,"
Defendants.
Court:TCA
DAVID I. KOMISAR SANDRA L. RANDLEMAN
211 Printer's Alley Bldg. 333 Commerce Street, #2101
Suite 400 Nashville, TN 37201-3300
Nashville, TN 37201 ATTORNEY FOR DEFENDANT/APPELLEE
BELLSOUTH TELECOMMUNICATIONS,INC.
CASEY E. MORELAND
Metropolitan Courthouse ROBERT L. ESTES
3rd Floor JOHN E. ANDERSON
Nashville, TN 37201 Stewart, Estes & Donnell
ATTORNEYS FOR Third National Financial Center
PLAINTIFFS/APPELLANTS 424 Church Street, 14th Floor
Nashville, TN 37219-2392
ATTORNEYS FOR DEFENDANT/APPELLEE
W.D. SCHOCK COMPANY, INC.
C. BENTON PATTON
Manier, Herod,
Hollabaugh & Smith
2200 One Nashville Place
150 Fourth Avenue North
Nashville, TN 37219
CHRISTINA K. BOYER
4016 Farnam St.
Omaha, NE 68127
ATTORNEYS FOR DEFENDANT/APPELLEE
CHARLES LARUE
First Paragraph:
This is an appeal by plaintiffs/appellants, Richard and
Kimberly King, from the trial court's order granting summary
judgment to defendants/appellees, W. D. Schock, Co.
("Schock"), South Central Bell Telephone Co. a/k/a Bell
South Telecommunications, Inc. ("Bell South"), and Charles
LaRue.
URL:http://www.tba.org/tba_files/TCA/KINGRCW.OPN.WP6
PATRICK McMATH AND JULIANNE McMATH, v. DR. DAVID SHARFMAN,
Court:TCA
Law Office of Don Owens,
Andrew Hume Owens of Memphis
Defendant-Appellee,
For Appellants
David M. Cook and W. Timothy
Hayes, Jr., of Memphis
For Appellee
First Paragraph:
This is a medical malpractice case dismissed by the trial
court primarily via the operation of T.C.A. 29-26-116
(a)(3), the three year statute of repose for medical
malpractice actions.
URL:http://www.tba.org/tba_files/TCA/MCMATH.OPN.WP6
STATE OF TENNESSEE, DEPARTMENT OF COMMERCE AND INSURANCE,
ELAINE McREYNOLDS, COMMR.,
v.
FIRSTTRUST MONEY SERVICES, INC., LINCOLN INVESTMENT
PROPERTIES, INC., FIRSTTRUST, INC.,
Court:TCA
ROBERT S. PATTERSON
BOULT, CUMMINGS, CONNERS & BERRY
Nashville, Tennessee
Attorney for Appellants
CHARLES W. BURSON
Attorney General and Reporter
JERRY L. SMITH
Deputy Attorney General
Nashville, Tennessee
Attorney for Appellee
First Paragraph:
This case was filed by the Commissioner of the Department of
Commerce and Insurance in the chancery court of Davidson
County under the provisions of the Tennessee Financial
Records Privacy Act. The Commissioner sought court approval
to issue certain subpoenas duces tecum incident to an
investigation of the defendant financial institutions. The
trial court entered an order approving the issuance of the
subpoenas and dismissing defendants counter-claim. Two of
the defendants (FirstTrust Money Services, Inc. And Lincoln
Investment Properties, Inc.) have appealed. For the reasons
stated hereafter, we affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCA/PLASTICS.OPN.WP6
VANLINER INSURANCE COMPANY, v. JANICE JESSING,
Court:TCA
PHILIP R. CRYE, JR. of RIDENOUR, RIDENOUR & FOX, Clinton,
for Appellant.
J. GREGORY OCONNOR and CHRISTOPHER D. HEAGERTY of CARPENTER
& OCONNOR, Knoxville, for Appellee.
First Paragraph:
This case involves an agreement of indemnification. It
arose out of the aftermath of a motor vehicle accident
between the appellant Janice Jessing (Jessing) and Daniel
Brown (Brown). Brown and his employer were insured under a
liability insurance policy issued by the appellee Vanliner
Insurance Company (Vanliner). In the instant action,
Vanliner sought indemnification from Jessing for payments
made by it in satisfaction of subrogation claims asserted
against Vanliner by State Farm Insurance Company (State
Farm) and Cotton States Insurance Company (Cotton States).
Both of these insurers had made payments to or for their
insured, the appellant Jessing, under Georgias no-fault
insurance law. In support of its suit against Jessing,
Vanliner relied upon language in a document entitled
"Indemnifying Release" signed by Jessing when she settled
her tort action against Brown, Vanliner, and others.
URL:http://www.tba.org/tba_files/TCA/VANLINER.OPN.WP6
STATE OF TENNESSEE, v. BILLY ALDRIDGE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
H. Todd Taylor Charles W. Burson
Assistant Public Defender Attorney General and Reporter
208 N. Mill Avenue 450 James Robertson Parkway
P.O. Box 742 Nashville, Tennessee 37243-0493
Dyersburg, Tennessee
(Appeal Only) Ellen H. Pollack
Assistant Atty. Gen. & Reporter
Clarence Cochran 450 James Robertson Parkway
Assistant Public Defender Nashville, Tennessee 37243-0493
208 N. Mill Avenue
P.O. Box 742 Phillip Bivens
Dyersburg, Tennessee District Attorney General
(Trial Only)
John E. Vaughn
Assistant District Attorney General
P.O. Drawer E.
Dyersburg, Tennessee 38025
First Paragraph:
The appellant, Billy Aldridge, was convicted of aggravated
assault, a class C felony, and sentenced to ten years in the
Department of Corrections as a Range II multiple offender.
His sentence is to be served consecutively to other
sentences which he was serving at the time of this offense.
He raises two issues on appeal: (a)the sufficiency of the
convicting evidence; and (b) the trial courts failure to
grant a trial based upon the appellants claims of juror
bias.
URL:http://www.tba.org/tba_files/TCCA/ALDRIDGE.MEM.WP6
STATE OF TENNESSEE, v. RONALD S. AUSTIN,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
LLOYD A. LEVITT CHARLES W. BURSON
312 Vine St. Attorney General & Reporter
Chattanooga, TN 37403
(On Appeal) MICHAEL J. FAHEY, II
Asst. Attorney General
W. GERALD TIDWELL, JR. 450 James Robertson Pkwy.
600 Dome Bldg. Nashville, TN 37243-0493
Chattanooga, TN 37402
(At Plea/Sentencing Hearing)
GARY D. GERBITZ
District Attorney General
DEE ANNE IRWIN
-and-
THOMAS J. EVANS
Asst. District AG
Hamilton County-Chattanooga
Courts Bldg.
Chattanooga, TN 37402
First Paragraph:
The defendant was indicted for theft of property and
forgery. He pled guilty to both counts. After a hearing,
the court below sentenced the defendant as a Range II
offender to the maximum of eight years for each offense, to
be served concurrently. Approximately one week after the
hearing, the defendant filed a pro se motion to withdraw his
guilty pleas, which the lower court denied after an
evidentiary hearing. The defendant now appeals as of right,
claiming the trial court erred in denying his motion to
withdraw his pleas, and that his sentence is excessive.
After our review of the record, we affirm the judgment
below.
URL:http://www.tba.org/tba_files/TCCA/AUSTINRS.OPN.WP6
STATE OF TENNESSEE,v. JEFFREY LYNN CAMERON,
Court:TCCA
For The Appellant: For the Appellee:
Ardena J. Garth Charles W. Burson
and Donna Robinson Miller Attorney General & Reporter
Office of Public Defender
Suite 300 - 701 Cherry Street Lisa A. Yacuzzo
Chattanooga, TN 37402 Assistant Attorney General
615/323-1220 General Civil Division
First Paragraph:
The defendant, Jeffery Lynn Cameron, entered guilty pleas to
eleven counts of aggravated burglary, one count of burglary,
and eleven underlying counts of theft as a Range I offender.
This appeal is from the maximum consecutive sentences
totaling 70 years ordered by the trial judge on the burglary
counts.
URL:http://www.tba.org/tba_files/TCCA/CAMERONJ.WPD.WP6
TONY V. CARRUTHERS, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
CRAIG V. MORTON, II CHARLES W. BURSON
Attorney at Law Attorney General and Reporter
212 Adams Avenue
Memphis, TN 38103 CLINTON J. MORGAN
Attorney Generals Office
450 James Robertson Parkway
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
REGINALD R. HENDERSON
Assistant District Attorney
201 Poplar Avenue
Third Floor
Memphis, TN 38103
First Paragraph:
The Appellant, Tony Von Carruthers, was convicted of
aggravated assault in 1990. He was sentenced to ten years
imprisonment. In September of 1992, Appellant petitioned
for post-conviction relief in the Shelby County Criminal
Court alleging that he received the ineffective assistance
of counsel in violation of his rights under the Sixth
Amendment to the United States Constitution. Following an
evidentiary hearing, the trial court denied Appellants
petition. On appeal, Appellant again asserts that his trial
attorney inadequately prepared and presented the defense at
trial and that the lower court erroneously concluded
otherwise.
URL:http://www.tba.org/tba_files/TCCA/CARRUT.OPN.WP6
STATE OF TENNESSEE, v. BILLY CARTER,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Billy E. Carter Charles W. Burson
Pro Se Attorney General and Reporter
MCRCS/128549 450 James Robertson Parkway
P.O. Box 2000 Nashville, Tennessee 37243-0493
Wartburg, Tennessee
Michelle L. Lehmann
Assistant Atty. Gen. & Reporter
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Greeley Wells
District AG
Edward E. Wilson
Assistant District AG
P.O. Box 526
Blountville, Tennessee 37617
First Paragraph:
The appellant, Billy Carter, appeals from the judgment of
the Sullivan County Criminal Court revoking his probation.
He argues that he was denied due process of law, that the
trial court erred in allowing the testimony of a social
worker, that the evidence was insufficient to revoke his
probation, and that he was denied the effective assistance
of counsel.
URL:http://www.tba.org/tba_files/TCCA/CARTERBI.OPN.WP6
STATE OF TENNESSEE, v. FREDDIE LEON CHISM,
Court:TCCA
For Appellant For Appellee
Tom W. Crider Charles W. Burson
Dist. Public Defender Attorney General and Reporter
J. Diane Stoots Michael J. Fahey, II
Asst. Public Defender Asst. Attorney General
Clayburn L. Peeples, Jr.
District Attorney
Twenty-Eighth Judicial Dist.
Garry Brown
Asst. District Attorney General
First Paragraph:
The defendant, Freddie Leon Chism, pled guilty to possession
of cocaine with intent to deliver or sell and possession of
drug paraphernalia; he reserved the right to appeal as a
certified question of law the denial of his motion to
suppress. See Tenn. R. Crim. P. 11(e) and 37(b)(2). The
trial court imposed Range I concurrent sentences of three
years for the possession with intent to deliver or sell
cocaine and eleven months and twenty-nine days for the
possession of drug paraphernalia.
URL:http://www.tba.org/tba_files/TCCA/CHISM.OPN.WP6
JOHN DERRICK COLEMAN, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
John Derrick Coleman, Pro Se Charles W. Burson
P.O. Box 1050 WTHSF Attorney General & Reporter
Henning, TN 38041 450 James Robertson Parkway
Nashville, TN 37243-0495
William David Bridgers
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
First Paragraph:
The appellant, John Derrick Coleman, appeals as of right
from a judgment of the trial court summarily dismissing his
action for post-conviction relief. The trial court did not
give a reason for the sua sponte summary dismissal. The
appellant contends that he was entitled to the appointment
of counsel, the right to amend his petition, and an
evidentiary hearing to present evidence to support the
grounds alleged in his petition. The State of Tennessee
admits in its brief that the trial court committed error in
summarily dismissing the appellant's post-conviction action
sua sponte.
URL:http://www.tba.org/tba_files/TCCA/COLEMANJ.OPN.WP6
RICKEY LEWIS HILLIARD, v. STATE OF TENNESSEE,
Court:TCCA
ORDER
First Paragraph:
This matter is before the Court upon the states motion,
pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals, to affirm the judgment of the trial court by order
rather than by formal opinion. This case represents an
appeal from the trial courts denial of the petitioners
petition for writ of habeas corpus. The record in this
matter was filed with the Court on November 22, 1995, and
the petitioner filed his brief on January 19, 1996.
URL:http://www.tba.org/tba_files/TCCA/HILLIARD.ORD.WP6
STATE OF TENNESSEE, v. ALEX HUGH MORROW,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
PAMELA J. DREWERY CHARLES W. BURSON
227 West Baltimore Attorney General & Reporter
Jackson, TN 38301
SARAH M. BRANCH
Counsel for the State
450 James Robertson Pkwy.
Nashville, TN 37243-0493
JERRY WOODALL
District Attorney General
DONALD P. ALLEN
Asst. District Attorney General
P.O. Box 2825
Jackson, TN 38302
First Paragraph:
The defendant was indicted for aggravated robbery. He pled
guilty to robbery with no agreement on his sentence. After
a hearing, the trial court sentenced the defendant as a
Range I offender to five years in the penitentiary. The
defendant now appeals claiming that his sentence is
excessive and that he should have been given alternative
sentencing. We agree with the trial court that alternative
sentencing is not appropriate for this defendant, and that
the sentence of five years incarceration is proper.
URL:http://www.tba.org/tba_files/TCCA/MORROWA.OPN.WP6
MARK W. RAWLINGS, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
PAULA SKAHAN CHARLES W. BURSON
140 North Third St. Attorney General & Reporter
Memphis, TN 38103
RUTH A. THOMPSON
Counsel for the State
450 James Robertson Pkwy.
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
JENNIFER S. NICHOLS
Asst. District Attorney General
201 Poplar Ave., Third Fl.
Memphis, TN 38103
First Paragraph:
The petitioner Rawlings was indicted for, and pled guilty
to, three counts of especially aggravated robbery. After a
hearing, he was sentenced as a Range I standard offender to
eighteen years for each offense, consecutive, for an
effective sentence of fifty-four years.
URL:http://www.tba.org/tba_files/TCCA/RAWLINGS.OPN.WP6
STATE OF TENNESSEE, v. PHILLIP S. ROBERTS,
and CONCURRING AND DISSENTING OPINION
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
GALE K. FLANARY CHARLES W. BURSON
Asst. Public Defender Attorney General & Reporter
P. O. Box 839
Blountville, TN 37617 CLINTON J. MORGAN
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
CARL K. KIRPATRICK
District Attorney General
PHYLLIS MILLER
Asst. District Attorney General
P. O. Box 526
Blountville, TN 37617
First Paragraph:
At his jury trial, the defendant was convicted of four
counts of burglary, three counts of attempted theft of
property valued at more than one thousand dollars but less
than ten thousand dollars, and one count of possession of
burglarious instruments. He was sentenced to imprisonment
for four years for each of the attempted theft offenses,
eleven months and twenty-nine days for the possession of
burglarious instruments offense, and four years for three of
the four burglary offenses.
URL:http://www.tba.org/tba_files/TCCA/ROBERTSP.OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/ROBERTSP.DIS.WP6
STATE OF TENNESSEE, v. THOMAS SINCLAIR,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE MORTON GOOGE CHARLES W. BURSON
District Public Defender Attorney General and Reporter
26th Judicial District
227 W. Baltimore Street ELLEN H. POLLACK
Jackson, TN 38301 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JERRY WOODALL
District Attorney General
DONALD ALLEN
Assistant District AG
P.O. Box 2825
Jackson, TN 38302
First Paragraph:
The Defendant, Thomas Sinclair, appeals as of right from a
jury verdict convicting him of second degree murder and
possession of a weapon with the intent to use it in the
commission of a felony. For these crimes, the Defendant was
sentenced as a Range I standard offender to serve concurrent
sentences of twenty five years and two years in the
Tennessee Department of Correction. The Defendant appeals
the verdict and his sentence. We affirm the judgment of the
trial court in part and modify the sentence.
URL:http://www.tba.org/tba_files/TCCA/SINCLAIR.OPN.WP6
PHILLIP R. WOODS,v. STATE OF TENNESSEE,
Court:TCCA
For Appellant For Appellee
James D. Gass Charles W. Burson
Attorney Attorney General & Reporter
203 South Shannon
Suite 100 Michelle L. Lehmann
Jackson, TN 38301 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
James W. Thompson
Asst. District Attorney General
225 Martin Luther King, Jr. Dr.
Jackson, TN 38301
First Paragraph:
The petitioner, Phillip R. Woods, appeals the trial court's
denial of post-conviction relief. The petitioner presents
two issues for our review: (1) whether the petitioner was
denied the effective assistance of counsel due to the
illegality of the sentence; and (2) whether the petitioner
knowingly and voluntarily pled guilty.
URL:http://www.tba.org/tba_files/TCCA/WOODSPR.OPN.WP6
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