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TBALink Opinion-Flash
May 30, 1996 -- Volume #2 -- Number #52
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.
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STATE OF TN, v. WAYNE BURDIN, Court:TSC For Plaintiff-Appellant: For Defendant-Appellee: Charles W. Burson Brett B. Stein Attorney General & Reporter Memphis Kathy Morante Deputy Attorney General First Paragraph: This case presents an appeal from a condition of probation imposed by the trial court upon a guilty plea to a charge of sexual battery. The judgment of the Court of Criminal Appeals removing the condition is affirmed, and the case is remanded to the trial court. Judge: REID, J. URL:http://www.tba.org/tba_files/TSC/BURDIN.OPN.WP6
ANNA ELIZABETH WULFERT DAVIS,v. SAMMY LYNN DAVIS,
Court:TSC
For Plaintiff-Appellant: For Defendant-Appellee:
Lanier Fogg Everett B. Gibson
Memphis Memphis
First Paragraph:
This case presents for review the decision of the Court of
Appeals reversing the trial court's order that interest on
alimony in solido began to accrue on a certain date prior to
the date of final judgment. This Court finds that the
applicable statute, though ambiguous, authorizes the trial
court's award of interest.
Judge: REID, J.
URL:http://www.tba.org/tba_files/TSC/DAVISAEW.OPN.WP6
STATE OF TN, v. TIM0THY D. HARRIS and CRAIG THOMPSON,
Court:TSC
For Appellant: For Appellee Harris:
Charles W. Burson Harry U. Scruggs
Attorney General & Reporter Memphis, TN
Amy L. Tarkington David C. Stebbins
Christina S. Shevalier (formerly w/ Capital Case
Assistant Attorneys General Resource Center)
Columbus, Ohio
Glenn I. Wright For Appellee Thompson:
Gerald Harris
Paul F. Goodman John G. Oliva
Assistant District Attorneys Nashville, TN
David C. Stebbins
(formerly w/ Capital Case
Resource Center)
Columbus, Ohio
Carolyn Watkins
Edward G. Thompson
Assistant Public Defenders
Memphis, TN
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.
Judge: ANDERSON, C.J.
URL:http://www.tba.org/tba_files/TSC/HARRISTD.DIS.WP6
STATE OF TN,
v.
FRANKLIN SANDERS, d/b/a MONEYCHANGER, S.P.,
Court:TSC
For Plaintiff-Appellee: For Defendant-Appellant:
Charles W. Burson Arch B. Boyd III
Attorney General and Reporter Memphis
Nashville
Lowell H. Becraft, Jr.
Michael E. Moore Huntsville, AL
Solicitor General
Edwin Vieira, Jr.
Manassas, VA
Michael W. Catalano
Associate Solicitor General
Joel W. Perry
Assistant Attorney General
John W. Pierotti
District Attorney General
Phyllis B. Gardner
Lee Wilson, Jr.
Assistant District Attorneys General
First Paragraph:
The primary issue presented in this case is whether the
exchange of gold and silver coins and bullion for dollars
constitutes the sale of tangible personal property which is
subject to sales tax imposed by Tenn. Code Ann. 67-6-101
et seq. A related issue is whether the criminal prosecution
of the defendant pursuant to Tenn. Code Ann. 67-1-1440(d)
violated the defendant's constitutional right to due
process. Both issues are resolved against the defendant.
The record supports the judgment of conviction affirmed by
the Court of Criminal Appeals.
Judge: REID, J.
URL:http://www.tba.org/tba_files/TSC/SANDERSF.OPN.WP6
JAMES STAGGS, Successor and Representative of Mary Staggs,
Deceased,
v.
NATIONAL HEALTH CORPORATION,
Court:TSC
For Appellant: For Appellee:
Ben Boston Paul B. Plant
Christopher V. Sockwell J. Jay Cheatwood
Boston, Bates & Holt Harwell, Plant & Cheatwood
First Paragraph:
We review the conclusions of law of the Special Workers'
Compensation Appeals Panel to determine whether an employee
is entitled to collect post judgment interest on an award of
discretionary costs or on medical expenses an employer is
ordered to repay to a third-party health insurance carrier.
Judge: ANDERSON, C.J.
URL:http://www.tba.org/tba_files/TSC/STAGGSJ.OPN.WP6
JESSE S. TIDWELL, v. STATE OF TN,
Court:TSC
For Appellant: For Appellee:
Jesse Spence Tidwell Charles W. Burson
Pro se Attorney General and Reporter
Michael E. Moore
Solicitor General
Gordon W. Smith
Associate Solicitor General
Daniel W. Cook
Assistant District Attorney
First Paragraph:
The appellant, Jesse S. Tidwell, appeals the trial courts
denial of his petition for post-conviction relief. At issue
is whether his trial counsel's failure to require the
prosecutor to elect the particular offenses upon which
convictions would be sought deprived him of his
constitutional right to the effective assistance of counsel.
We have carefully examined the trial and post-conviction
transcripts and have thoroughly considered the contentions
of both parties. For the reasons discussed below, we find
that counsel's performance failed to satisfy the criteria
established in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975)
and in Strickland v. Washington, 466 U.S. 558 (1984).
Judge: BIRCH, J.
URL:http://www.tba.org/tba_files/TSC/TIDWELLJ.OPN.WP6
STATE OF TN v. TERRY E. WOOD
and DISSENTING OPINION(s)
Court:TSC
FOR THE APPELLANT: FOR THE APPELLEE:
John H. Henderson, Jr. Charles W. Burson
Public Defender Attorney General and Reporter
Maurine C. Hatchett Christina S. Shevalier
Assistant Public Defender Assistant Attorney General
Joseph D. Baugh
District Attorney General
Mark Puryear
Assistant District Attorney
General
First Paragraph:
We granted the application of Terry E. Wood, the defendant,
for permission to appeal in order to resolve an issue of
first impression in TN: whether the return of a
sealed presentment engages an accused person's speedy trial
rights under the Sixth Amendment to the United States
Constitution and Article I, 9, of the TN
Constitution. After a thorough examination of the record
and careful consideration of the issue, we conclude, for
reasons appearing below, that the return of a presentment,
whether sealed or unsealed, whether the accompanying capias
is executed or unexecuted, is a formal accusation that
engages constitutional speedy trial provisions.
Judge: Birch, J.
URL:http://www.tba.org/tba_files/TSC/WOODTER.OPN.WP6
URL:http://www.tba.org/tba_files/TSC/WOODTER.DIS.WP6
URL:http://www.tba.org/tba_files/TSC/WOODTER2.DIS.WP6
MARTIN H. AUSSENBERG
v.
BRUCE S. KRAMER, DAVID J. COCKE, AND BOROD AND KRAMER,
Court:TCA
For the Plaintiff/Appellants: For the Defendant/Appellees:
Stanley J. Kline J. Alan Hanover
Memphis, TN Memphis, TN
First Paragraph:
In this case, Plaintiff, Martin H. Aussenberg
(Aussenberg), appeals the trial courts valuation of his
former partnerships work-in-progress and accounts
receivable as well as its finding regarding Aussenbergs
interest in the partnerships accounts receivable and
work-in progress. We affirm the decision of the trial
court.
Judge: HOLLY KIRBY LILLARD, J.
URL:http://www.tba.org/tba_files/TCA/AUSSENBE.OPN.WP6
WILLIAM ROY HARWELL AND ALICE PATRICIA HARWELL,
v.
RALEIGH RIDGE OWNERS ASSOCIATION, INC., PEARSON BROTHERS
CRANE and ABC MANUFACTURER,
Court:TCA
Forthe Plaintiffs/Appellant: For the Defendants/Appellees
Ira M. Thomas J. Kimbrough Johnson
Memphis, TN Memphis, TN
First Paragraph:
This is a negligence case brought by William Harwell
(Harwell) and his wife against Raleigh Ridge Owners
Association (RROA) and two other defendants not involved in
this appeal. Harwell appeals the trial courts grant of
summary judgment to RROA. We affirm the trial court. On
February 1, 1992, Harwell sustained personal injuries while
replacing a light on the top of a creosote telephone pole
located in Raleigh Ridge Park. The pole broke and fell,
resulting in Harwells injuries. Harwell filed the
Complaint in the instant case against RROA.
Judge: HOLLY KIRBY LILLARD, JUDGE
URL:http://www.tba.org/tba_files/TCA/HARWELWR.OPN.WP6
STATE OF TN, DEPT. OF HUMAN SERVICES,
v.
GEORGE LEWIS KERSEY and TERESA MARIE KERSEY,
Court:TCA
LARRY D. WRIGHT
Cleveland, TN
Attorney for Appellants
CHARLES W. BURSON
ATTORNEY GENERAL & REPORTER
MICHELLE K. HOHNKE
ASSISTANT ATTORNEY GENERAL
Attorney for Appellee
First Paragraph:
George and Teresa Kersey appeal the decision of the Bradley
County Juvenile Court which terminated their parental rights
to Edward Kersey, born January 3, 1988; Crystal Kersey, born
January 17, 1990; and twins April and Erica Kersey, born May
4, 1992. The lower court awarded custody to the TN
Department of Human Services ("DHS"), Appellee.
Judge: ALAN E. HIGHERS, J.
URL:http://www.tba.org/tba_files/TCA/KERSEY.OPN.WP6
WANDA LEE LEHMAN,v. AARON RUSSELL LEHMAN,
Court:TCA
KELLY STARK, McLean & Stark, Memphis, Attorney for
Appellant.
TED I. JONES, Memphis, Attorney for Appellee.
First Paragraph:
This is a domestic relations case. Wanda Lee Lehman
(plaintiff) was granted an absolute divorce from Aaron
Russell Lehman (defendant) in the Chancery Court of Shelby
County on September 17, 1992. In that decree the chancellor
awarded plaintiff alimony in futuro in the amount of $500.00
per month. Because of plaintiffs poor health and the low
monthly mortgage payment, plaintiff was permitted to live in
the martial home until it was sold. In the event that the
home was sold, either by agreement of the parties or by
court order, the decree provided that plaintiff would
receive sixty-five (65%) percent of the net equity in the
home with defendant receiving the remaining thirty-five
(35%) percent.
Judge: TOMLIN, Sr. J.
URL:http://www.tba.org/tba_files/TCA/LEHMAN.MEM.WP6
STATE OF TN, v. MACK EDWARD BROWN,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
RANDALL E. REAGAN CHARLES W. BURSON
602 Gay St., Suite 905 Attorney General & Reporter
Knoxville, TN 37902
MERRILYN FIERMAN
Asst. Attorney General
RANDALL E. NICHOLS
District Attorney General
ROBERT JOLLEY
Asst. District Attorney General
First Paragraph:
The defendant, Mack Edward Brown, appeals as of right from
the sentence of twenty-five (25) years set by the Knox
County Criminal Court. Initially, on May 22, 1989, a jury
sentenced the defendant to death after having found him
guilty of first-degree murder. In the same proceeding, the
jury also convicted the defendant of child neglect, a
misdemeanor for which he received a sentence of eleven
months and twenty-nine days. After his trial, the defendant
appealed only his murder conviction which the TN
Supreme Court reversed, finding that the defendant was
guilty, instead, of second-degree murder. The Court then
remanded the defendant's cause to the trial court which
entered the twenty-five year sentence from which he now
appeals.
Judge: PER CURIAM (SCOTT, PEAY & COLTON, S.J.)
URL:http://www.tba.org/tba_files/TCCA/BROWNMAC.OPN.WP6
STATE OF TN, v. ALLEN LEE CAMPBELL,
Court:TCCA
For Appellant: For Appellee:
M. Jeffrey Whitt Charles W. Burson
Attorney Attorney General & Reporter
706 Walnut Street
Suite 902 Hunt S. Brown
Knoxville, TN 37902 Assistant Attorney General
Randall E. Nichols
District Attorney General
S. Jo Helm
Asst. District Attorney General
First Paragraph:
The defendant, Allen Lee Campbell, entered a best interest
plea of guilt to especially aggravated burglary without any
recommendation by the state as to the manner and length of
his sentence. The trial court imposed a Range I sentence of
eleven years. The single issue raised on appeal is whether
the sentence imposed was excessive.
Judge: GARY R. WADE, JUDGE
URL:http://www.tba.org/tba_files/TCCA/CAMPBELL.OPN.WP6
STATE OF TN, v. TOMMY NORWOOD,
Court:TCCA
For the Appellant: For the Appellee
Larry Roddy Charles W. Burson
723 McCallie Ave. Attorney General & Reporter
Chattanooga, TN 37403
Elizabeth T. Ryan
Asst. Attorney General
William H. Cox, III
District Attorney General
H.C. Bright
Asst. District Attorney General
First Paragraph:
The appellant, Tommy Norwood, was convicted of robbery, a
class C felony. As a Range III, persistent offender, he was
sentenced to eleven years in the Department of Correction.
On appeal, he challenges the sufficiency of the evidence and
the trial courts failure to suppress identification
testimony. We find no error and affirm the judgment of the
trial court.
Judge: William M. Barker, Judge
URL:http://www.tba.org/tba_files/TCCA/NORWOOD.OPN.WP6
STATE OF TN, v. BRIAN SWICK
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Greg W. Eichelman Charles W. Burson
District Public Defender Attorney General and Reporter
Timothy F. Behan
Assistant Atty. Gen. & Reporter
C. Berkeley Bell, Jr.
District Attorney General
Eric D. Christiansen
Assistant District AG
First Paragraph:
The appellant, Brian Swick, was convicted of felonious
reckless endangerment, a class E felony, by a jury in the
Circuit Court of Greene County. He was sentenced to serve
fifteen (15) months in the county jail. On appeal, he
raises the following issues for our consideration:
(1) Whether the evidence adduced at trial was sufficient
to sustain the verdict of the jury.
(2) Whether the trial court erred in refusing to grant a
second continuance to the appellant.
(3) Whether the trial court erred when it refused to
allow the appellant to call the probation officer of a
missing witness for the purpose of explaining to the jury
that the witness was subject to an outstanding warrant.
(4) Whether the sentence imposed by the trial court was
excessive.
Judge: William M. Barker, Judge
URL:http://www.tba.org/tba_files/TCCA/SWICK.OPN.WP6
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© Copyright 1998 Tennessee Bar Association - This Issue IN THIS ORDER: