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TBALink Opinion-Flash
July 29, 1997 -- Volume #3 -- Number #070
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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SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL July 28, 1997 Court:TSC - Rules URL:http://www.tba.org/tba_files/TSC_RULES/STATELST_WPD.WP6
ALSIDE SUPPLY CENTER OF
KNOXVILLE
vs.
SMITH HERITAGE SIDING
COMPANY, INC., and DENNIS
CLEMMER
and
METROPOLITAN LIFE INSURANCE
COMPANY
Court:TCA
Attorneys:
JACK B. DRAPER, ARNETT, DRAPER & HAGOOD, Knoxville, for Plaintiff
Appellant.
JOHN A. LUCAS and MARTIN B. BAILEY, HUNTON & WILLIAMS, Knoxville, for
Appellee.
Judge: Franks
First Paragraph:
In this action, the Chancellor, pursuant to T.R.C.P. Rule 11,
sanctioned Alside Supply Center of Knoxville (Alside) $10,000.00, and
Alside has appealed. VACATED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/ALSIDES_OPN.WP6
ROY BEATY, JR
vs.
SHERIFF R. H. JOHNSON,
Individually and as
Sheriff of Monroe County,
and Monroe County
Court:TCA
Attorneys:
JOHN W. CLEVELAND OF SWEETWATER FOR APPELLANT
ELIZABETH A. TOWNSEND and GERALD L. GULLEY, JR., OF KNOXVILLE FOR
APPELLEES
Judge: Goddard
First Paragraph:
Roy Beaty, Jr., appeals dismissal by summary judgment of his suit
seeking damages against R. H. Johnson, Sheriff of Monroe County, and
Monroe County for personal injuries he received while incarcerated in
the Monroe County Jail. VACATED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/BEATYR_OPN.WP6
JANICE BARTLEY CASTEEL
vs.
CLIFTON PHILLIP CASTEEL
Court:TCA
Attorneys:
William A. Mynatt, Jr. and Jason H. Long, Knoxville,
for the Appellant
Douglas J. Toppenberg and J. Elaine Burke, Knoxville,
for the Appellee
Judge: INMAN
First Paragraph:
These parties were divorced on September 16, 1994. By agreement, they
were awarded joint legal custody of three sons, who would reside
principally with their mother, hereafter appellant.
URL:http://www.tba.org/tba_files/TCA/CASTEEL_COA.WP6
FIRST TENNESSEE BANK, N.A.
formerly VALLEY FIDELITY BANK
AND TRUST COMPANY
vs.
W. P. BOONE DOUGHERTY
Court:TCA
Attorneys:
J. MICHAEL WINCHESTER and GORDON D. FOSTER, Lacy & Winchester, P.C.,
for appellant.
W. P. BOONE DOUGHERTY, appellee, Pro Se
Judge: McMurray
First Paragraph:
We are called upon on this appeal to construe Rule 3 and Rule 4,
Tennessee Rules of Civil Procedure in para materia. The trial court
determined that service of process in this case was not timely
returned in accordance with Rule 3 and that the statute of limitations
was not thereby tolled. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCA/FSTTNBNK_OPN.WP6
JOHN M. GERWELS
vs.
CURT T. PHILLIPS
Court:TCA
Attorneys:
THOMAS A. BICKERS OF KNOXVILLE FOR APPELLANT
BEECHER A. BARTLETT, JR., and ADRIENNE L. ANDERSON OF KNOXVILLE FOR
APPELLEE
Judge: McMurray
First Paragraph:
This is an appeal from a judgment entered by the Knox County Circuit
Court in a suit arising from the construction of a private residential
home. John M. Gerwels, Plaintiff-Appellant, filed suit alleging that
Curt T. Phillips, Defendant-Appellee, was liable for defects in the
construction of Mr. Gerwels' house, for cost overruns, and for alleged
defamatory statements concerning Mr. Gerwels. Mr. Phillips filed a
counter-suit seeking monies owed for work performed. AFFIRMED IN PART;
REVERSED IN PART; and REMANDED.
URL:http://www.tba.org/tba_files/TCA/GERWELSJ_OPN.WP6
MARY S. HOOPER, individually and as
surviving spouse and next of kin of
ROBERT HOOPER, deceased
vs.
OWENS-CORNING FIBERGLAS
CORPORATION, et al
Court:TCA
Attorneys:
Michael Y. Rowland and Janet Edwards, Rowland & Rowland, P.C.,
Knoxville, for the Appellant
Dwight E. Tarwater, Thomas A. Bickers, Andrew R. Tillman, Knoxville,
for the Appellees
Judge: INMAN
First Paragraph:
This is an action for damages for wrongful death. The plaintiff
alleged that her husband died of malignant mesothelioma caused by
asbestos to which he was last exposed in 1962. He died on August 7,
1994, 32 years after his last exposure. This action was filed August
19, 1994 against various manufacturers of products containing
asbestos. As relevant here, it was dismissed on motion for summary
judgment which applied the bar of the statute of repose, T.C.A. S
29-28-103(a). The plaintiff appeals and presents for review the issue
of whether the application of the statute of repose violates Article
1, Section 17 of the Constitution of Tennessee, the open courts
provision. We hold that it does not and affirm the judgment.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/HOOPER_COA.WP6
HUEY A. HOWELL
vs.
CITY OF LENOIR CITY, TN, ET AL
Court:TCA
Attorneys:
Wayne A. Ritchie, II, Knoxville, for Appellant
Pamela L. Reeves, Knoxville, for Appellees
Judge: INMAN
First Paragraph:
The plaintiff was injured when a large, long-dead tree fell from an
embankment onto the top of his automobile as he was driving on First
Avenue [Rock Springs Road] in Lenoir City, Tennessee. In his
twice-amended complaint filed in the Circuit Court the plaintiff seeks
to recover damages for his injuries. He alleged that the tree was
situated on property owned by the defendant Lenoir City which had
actual or constructive notice of its dangerous condition or the danger
it posed to the public, and therefore enjoyed no immunity pursuant to
T. C. A. S 29-20-203(b). REVERSED in part; AFFIRMED in part, and
REMANDED.
URL:http://www.tba.org/tba_files/TCA/HOWELL_COA.WP6
STEFONE McCLENDON, father of
DAMIEN O'SHAY MAURICE
McCLENDON, the next of kin of
CYNTHIA VANESSA FRANCIS
vs.
DR. BENNETT T. CROWDER, II, and
EMERGENCY COVERAGE CORPORATION
Court:TCA
Attorneys:
H. Naill Falls, Jr. and James B. Johnson, Nashville, for Appellant
James H. London and Margaret G. Klein, Knoxville, for Appellee
Judge: INMAN
First Paragraph:
This is an action for damages for the death of Cynthia Francis
allegedly caused by the malpractice of Dr. Bennett Crowder, II, an
emergency room physician who was a contract physician with the
defendant Emergency Coverage Corporation which had contracted with the
Sweetwater Hospital to operate its emergency room. REVERSED and
REMANDED.
URL:http://www.tba.org/tba_files/TCA/MCCLENDO_COA.WP6
MUNICIPAL EMPLOYEES CREDIT
UNION
vs.
RHONDA SANDERS
Court:TCA
Attorneys:
Dean Greer, Kingsport, for Appellant
William K. Rogers, Kingsport, for Appellee
Judge: INMAN
First Paragraph:
The General Sessions and Circuit Courts held the appellant liable to
the appellee for a series of credit card charges incurred over a
period of two years by virtue of a VISA Credit Card issued jointly to
the appellant and her now-deceased husband. She appeals, insisting
that she did not sign the application for the card and hence cannot be
liable. AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/MECU_COA.WP6
NATIONAL BOOK WAREHOUSE,
INC.
vs.
BOOK-MART OF FLORIDA, INC.
Court:TCA
Attorneys:
F. DULIN KELLY and CLINTON L. KELLY, Hendersonville, for
Plaintiff-Appellant.
JOHN B. WATERS, III, LONG, RAGSDALE & WATERS, P.C., Knoxville, for
Defendant-Appellee.
Judge: Franks
First Paragraph:
In this declaratory judgment action, the plaintiff sought a
declaration of the respective rights of the parties under an agreement
entered between plaintiff and defendant, both of whom are engaged in
the retail sale of books and related products. AFFIRMED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/NATBKW_OPN.WP6
IN RE: ESTATE OF LILLIE
KERLEY PORTER (DECEASED)
SHIRLEY PORTER WHEELER and
TEDDY LEE PORTER
vs.
THOMAS STEVE HARVEY,
individually and in his capacity as
Executor of the Estate of Lillie Porter
Court:TCA
Attorneys:
Jess D. Campbell, Knoxville, for Appellants.
Mary Katherine Longworth, Peggy J. S. Monger, Loudon, for Appellees.
Judge: INMAN
First Paragraph:
The dispositive issue in this case is whether Clyde and Lillie Porter
contracted to make mutual wills. AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/PORTER_COA.WP6
GINGER REED and DAVID REED
vs.
ROSIE L. CLARK REED
Court:TCA
Attorneys:
R0BERT N. GODDARD, GODDARD & GAMBLE, Maryville, for Plaintiffs
Appellees.
DUNCAN V. CRAWFORD and STEPHEN S. OGLE, CRAWFORD, CRAWFORD & NEWTON,
Maryville, for Defendant-Appellant.
Judge: Franks
First Paragraph:
In this action, the Trial Court on stipulations of fact entered
judgment against defendant, for proceeds paid to the defendant on a
life insurance policy. Defendant has appealed. AFFIRMED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/REEDG_OPN.WP6
DANIEL W. SMITH
vs.
M. L. WALLER, JR. and
JOYCE C. WALLER
Court:TCA
Attorneys:
C. Paul Harrison, Knoxville, for Appellants
James Harvey Stutts, Sweetwater, for Appellee
Judge: INMAN
First Paragraph:
This action was filed in Chancery Court for damages for breach of
contract. The plaintiff leased certain premises from the defendants,
who allegedly terminated his tenancy and refused to recognize a
renewal option, thereby triggering the complaint for damages. MODIFIED
and REMANDED.
URL:http://www.tba.org/tba_files/TCA/SMITH_COA.WP6
WADE WILSON
vs.
ROBERT B. BOZEMAN
and
BEAN STATION VOLUNTEER RESCUE
SQUAD, INC., and RUTLEDGE
VOLUNTEER RESCUE SQUAD, INC.
Court:TCA
Attorneys:
MICHAEL P. McGOVERN, Knoxville, for Plaintiff-Appellee.
BRENDA L. LINDSAY, Knoxville, for Defendant-Appellant.
RICHARD L. HOLLOW, Knoxville, for Defendants/Cross-Appellees.
Judge: Franks
First Paragraph:
In this action the original appellant Robert B. Bozeman dismissed his
appeal, and plaintiff as cross-appellant, has appealed the Trial
Court's directing verdicts for the remaining defendants. AFFIRMED AND
REMANDED.
URL:http://www.tba.org/tba_files/TCA/WILSONW_OPN.WP6
STATE OF TENNESSEE
vs.
WILLIAM HENRY BARNEY
with DISSENTING & CONCURRING OPINIONS
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE
Karl Dean John Knox Walkup
District Public Defender Attorney General and Reporter
1202 Stahlman Building 450 James Robertson Parkway
Nashville, Tennessee 37201 Nashville, Tennessee 37243-0493
Jeffrey A. DeVasher Sarah M. Branch
Assistant Public Defender Assistant Attorney General
1202 Stahlman Building 450 James Robertson Parkway
Nashville, Tennessee 37201 Nashville, Tennessee 37243-0493
Joan A. Lawson Victor S. Johnson, III
Assistant Public Defender District Attorney General
1202 Stahlman Building Washington Square
Nashville, Tennessee 37201 222 2nd Avenue, North, Ste 500
Nashville, Tennessee 37201
Jerrilyn Manning
Assistant Public Defender William R. Reed
1202 Stahlman Building Asst District Attorney General
Nashville, Tennessee 37201 Washington Square
222 2nd Avenue, North, Ste 500
Nashville, Tennessee 37201
Judge: Barker
First Paragraph:
The Appellant, William H. Barney, appeals as of right his convictions
and sentences for aggravated sexual battery and rape of a child.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/BARNEYWH_OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/BARNEYWH_CON.WP6
URL:http://www.tba.org/tba_files/TCCA/BARNEY_DIS.WP6
STATE OF TENNESSEE
VS.
WILLIAM D. BUCY, II
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MATTHEW M. MADDOX JOHN KNOX WALKUP
105 East Main Street Attorney General and Reporter
P.O. Box 430
Huntingdon, TN 38344 KENNETH W. RUCKER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
ROBERT "GUS" RADFORD
District Attorney General
P.O. Box 686
Huntingdon, TN 38344
Judge: WELLES
First Paragraph:
This appeal presents a certified question of law pursuant to Rule
37(b)(2)(iv) of the Tennessee Rules of Criminal Procedure. The
Defendant pleaded guilty to misdemeanor possession of drugs and
possession of a prohibited weapon. With the consent of the trial
court, he reserved a certified question of law that is dispositive of
the case. The certified question arose from the trial court's denial
of a motion to suppress evidence obtained from the Defendant during a
search conducted by a police officer. We affirm the judgment of the
trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/BUCYWD_OPN.WP6
STATE OF TENNESSEE
vs.
YVONNE BURNETTE, ALIAS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
PAULA R. VOSS (Appeal) GEORGIA BLYTHE FELNER
DAVID GALL (Hearing) Assistant Attorney General
Assistant Public Defenders Criminal Justice Division
1209 Euclid Avenue 450 James Robertson Parkway
Knoxville, TN 37921 Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
LEON FRANKS
Asst. District Attorney General
P.O. Box 1468
Knoxville, TN 37901-1468
Judge: WITT
First Paragraph:
The appellant, Yvonne Burnette, appeals the Knox County Criminal
Court's revocation of her probationary sentence. As a result of the
probation revocation, she is currently serving her 8 year sentence for
sale of cocaine, a Class B felony, in custody of the Department of
Correction. In this appeal, she contends the trial court abused its
discretion in revoking her probation. Having reviewed the record of
the proceedings below, we find no reversible error and affirm the
judgment of the lower court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/BURNETTY_OPN.WP6
JEFFREY LYNN BUSH
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
SHAWN A. TIDWELL CHARLES W. BURSON
Stanton, Tidwell & Mendes, PLLC Attorney General and Reporter
Cummins Station, Suite 507
209 Tenth Avenue South DARYL J. BRAND
Nashville, TN 37203 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. (TORRY) JOHNSON III
District Attorney General
KATRIN N. MILLER
Asst. District Attorney General
Washington Sq., Suite 500
222-2nd Ave. N.
Nashville, Tn 37201-1649
Judge: Hayes
First Paragraph:
The appellant, Yvonne Burnette, appeals the Knox County Criminal
Court's revocation of her probationary sentence. As a result of the
probation revocation, she is currently serving her 8 year sentence for
sale of cocaine, a Class B felony, in custody of the Department of
Correction. In this appeal, she contends the trial court abused its
discretion in revoking her probation. Having reviewed the record of
the proceedings below, we find no reversible error and affirm the
judgment of the lower court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/BUSHJL_OPN.WP6
STATE OF TENNESSEE
vs.
GERALD EDWARD DIXON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JIM W. STAMBAUGH JOHN KNOX WALKUP
Post Office Box 1003 Attorney General & Reporter
Morristown, TN 37816-1003
MICHAEL J. FAHEY, II
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Judge: WITT
First Paragraph:
Gerald Edward Dixon, Jr., the petitioner appeals pursuant to Rule 3,
Tennessee Rules of Appellate Procedure, from the trial court's
dismissal of his petition for writ of habeas corpus. On November 29,
1993, the petitioner pleaded guilty to one count of aggravated
burglary and one count of aggravated rape. He received concurrent
sentences of three and seventeen years. The petitioner does not
challenge the validity of his conviction for aggravated burglary, but
he contends that his conviction for aggravated rape is void because
the indictment failed to allege the mens rea for that offense. See
State v. Roger Dale Hill, No. 01CO1-9508-CC-00267 (Tenn. Crim. App.,
Nashville, June 20, 1996), perm. to appeal granted (Tenn. 1997).
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/DIXONG_OPN.WP6
STATE OF TENNESSEE
vs.
STEPHON MATTHEW FEARN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN HARWELL DICKEY JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
CURTIS H. GANN JANIS L. TURNER
Assistant Public Defender Assistant Attorney General
105 South Main 425 Fifth Avenue North
P.O. Box 1119 2nd Floor, Cordell Hull Building
Fayetteville, TN 37334 Nashville, TN 37243
WILLIAM EDWARD GIBSON
District Attorney General
WILLIAM MICHAEL McCOWN
Asst District Attorney General
ROBERT G. CRIGLER
Asst District Attorney General
One Public Square, Suite 300
Shelbyville, TN 37160-3953
Judge: WOODALL
First Paragraph:
The Defendant, Stephon M. Fearn, appeals as of right according to Rule
3 of the Tennessee Rules of Appellate Procedure. He was convicted of
aggravated burglary and misdemeanor theft following a jury trial in
the Circuit Court for Bedford County. The jury imposed fines in the
amount of five thousand dollars ($5,000.00) and one thousand dollars
($1,000.00) for his convictions, respectively. At his sentencing
hearing, Defendant was sentenced by the trial judge to nine (9) years
and six (6) months incarceration as a Range II, Multiple Offender for
the aggravated burglary conviction and eleven (11) months, twenty-nine
(29) days for the theft conviction. These sentences were ordered to
be served consecutively to each other and to Defendant's prior
sentences for which he was on parole at the time of the aggravated
burglary and theft. Defendant argues the evidence was insufficient to
support both the aggravated burglary and the theft convictions, and
that the trial court erred by imposing an excessive sentence.
CONVICTION AND SENTENCES AFFIRMED; REMANDED FOR ENTRY OF AMENDED
JUDGMENTS.
URL:http://www.tba.org/tba_files/TCCA/FEARNSM_OPN.WP6
STATE OF TENNESSEE
vs.
JOHN L. GOODWIN, III
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN L. GOODWIN, III. JOHN KNOX WALKUP
Pro Se - Habeas Corpus Attorney General and Reporter
JOHN R. PHILLIPS, JR. KATHY MORANTE
Attorney - Sentencing Assistant Attorney General
117 East Main Street 450 James Robertson Parkway
Gallatin, TN 37066 Nashville, TN 37243
LAWRENCE RAY WHITLEY
District Attorney General
DEE GAY
Asst District Attorney General
113 West Main Street
Gallatin, TN 37066
Judge: WELLES
First Paragraph:
This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure. The Defendant appeals both his sentence and the
trial court's denial of his petition for writ of habeas corpus. These
separate appeals were consolidated by the trial court and filed with
one appellate record. The Defendant raises the following issues
regarding his sentence: (1) That the trial court erred in classifying
the Defendant as a Range II offender; (2) that the trial court
improperly sentenced him to consecutive terms for his two convictions;
(3) that the trial court misapplied sentence enhancement factors; and
(4) that the trial court erred by imposing a longer sentence upon
remand. The Defendant also raises the following issues pro-se
regarding his petition for habeas corpus: (1) That the trial court was
biased against the Defendant; (2) that the trial court erred by
refusing to correct perjured testimony and that his due process rights
were violated by the State's failure to produce exculpatory evidence;
and (3) that the trial court erred by denying his petition when the
attorneys involved in his case had formed a conspiracy to deprive the
Defendant of his liberty. We affirm the judgments of the trial court.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/GOODWIJL_OPN.WP6
STATE OF TENNESSEE
vs.
ANGELA GRISSOM
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL D. GALLIGAN JOHN KNOX WALKUP
Galligan & Newman Attorney General and Reporter
308 West Main Street
McMinnville, TN 37110 MARY ANNE QUEEN
Legal Assistant
CHRISTINA S. SHEVELIER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
BILL LOCKE
District Attorney General
ROBERT W. BOYD
Assistant District Attorney
Professional Building
McMinnville, TN 37110
Judge: SMITH
First Paragraph:
Appellant Angela Grissom entered a plea of guilty to one count of
theft of property valued in excess of $10,000 in violation of
Tennessee Code Annotated Section 39-14-103 (1991). See also id. S
39-14-105(4). Following a sentencing hearing on March 24, 1994, the
trial judge sentenced Appellant to the maximum sentence of six years
in the Department of Correction. However, soon thereafter, by order
filed May 26, 1995, the trial judge placed Appellant on Community
Corrections with the requirement that she observe a sentencing
arrangement involving time in the county jail and house arrest and
that she repay the victim corporation $29,778.37 and pay $1000 into
the Economic Crime Fund. On appeal, Appellant asserts that she is
presumed to be an appropriate candidate for a non-incarcerative
sentence and that, under the particular circumstances of her case, the
trial judge should have granted her full probation. AFFIRMED AS
MODIFIED.
URL:http://www.tba.org/tba_files/TCCA/GRISSOM_OPN.WP6
LORENZO HERRON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Lorenzo Herron, Pro Se John Knox Walkup
C.C.C.F. P.O. Box 1000 Attorney General & Reporter
Henning, TN 38041-1000 500 Charlotte Avenue
(Appeal Only) Nashville, TN 37243-0497
Robert C. Irby Timothy F. Behan
Attorney at Law Assistant Attorney General
4345 Mallory Road 450 James Robertson Parkway
Memphis, TN 38111 Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Paul Thomas Hoover, Jr.
Asst District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Reginald R. Henderson
Asst District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Judge: Jones
First Paragraph:
The appellant, Lorenzo Herron (petitioner), appeals as of right from a
judgment of the trial court dismissing his suit for post-conviction
relief after an evidentiary hearing. In this Court, the petitioner,
proceeding pro se, presents eight issues for review. These issues may
be characterized as the trial court's failure to apply the proper
standard for determining whether his counsel afforded him the
effective assistance of counsel, provide him with a full and fair
hearing, and rule upon certain issues. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the
issues presented for review, it is the opinion of this Court the
judgment of the trial court should be affirmed pursuant to Rule 20,
Tennessee Court of Criminal Appeals. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/HERRONL_OPN.WP6
ALBERT HOLSTON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
WAYNE CHASTAIN JOHN KNOX WALKUP
66 Monroe, Suite 804 Attorney General and Reporter
Memphis, TN 38103
KENNETH W. RUCKER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-4351
JOHN W. PIEROTTI
District Attorney General
JOHNNY MCFARLAND
Asst District Attorney General
Criminal Justice Complex, Ste 301
201 Poplar Street
Memphis, TN 38103
Judge: WELLES
First Paragraph:
The Petitioner, Albert Holston, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate Procedure from the trial court's
denial of his petition for post-conviction relief. He filed a
petition for post-conviction relief on July 12, 1996. On July 30,
1996, the trial court dismissed the petition without conducting an
evidentiary hearing, finding that it was barred by the statute of
limitations. We affirm the judgment of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/HOLSTOA_OPN.WP6
WALTER E. INGRAM
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
WALTER E. INGRAM, PRO SE JOHN KNOX WALKUP
P.O. Box 1050 Attorney General and Reporter
Henning, TN 38041
CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
LEE V. COFFEE
Asst District Attorney General
Criminal Justice Complex, Ste 301
201 Poplar Street
Memphis, TN 38103
Judge: WELLES
First Paragraph:
The Petitioner, Walter E. Ingram, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure from the trial court's
denial of his petition for post-conviction relief. The Petitioner
filed a pro se petition for post conviction relief on April 10, 1996.
On April 25, 1996, the trial court dismissed the petition without
conducting an evidentiary hearing, finding that it was barred by the
statute of limitations. We affirm the judgment of the trial court.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/INGRAMWE_OPN.WP6
STATE OF TENNESSEE
vs.
JAMES LLOYD JULIAN, II
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT M. COHEN JOHN KNOX WALKUP
303 High Street Attorney General and Reporter
Maryville, TN 37804
MICHAEL J. FAHEY, II
WILLIAM LEE BROWN Assistant Attorney General
706 Walnut Street 450 James Robertson Parkway
Knoxville, TN 37902 Nashville, TN 37243-0493
CHARLES E. HAWK
District Attorney General
ROGER DELP
FRANK HARVEY
Asst District Attorneys General
P.O. Box 703
Kingston, TN 37763
Judge: WELLES
First Paragraph:
This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure. The Defendant, James Lloyd Julian, II, was
convicted by a Loudon County jury of rape of a child, especially
aggravated kidnapping, and first-degree felony murder. The State
sought the death penalty and during the sentencing phase of the trial,
the jury found two aggravating circumstances: (1) that the victim was
less than twelve (12) years of age and the defendant was over eighteen
(18) years of age, and; (2) that the murder was especially heinous,
atrocious and cruel. See Tenn. Code Ann. SS 39-13-204(i)(1),(5).
However, the jury determined that the aggravating circumstances did
not outweigh the mitigating circumstances and sentenced the Defendant
to imprisonment for life without parole. See Tenn. Code Ann. S
39-13-204(f)(2). At a separate sentencing hearing for the two
remaining counts, the trial court sentenced the Defendant as a Range I
standard offender to twenty-five years (25) for the rape and
twenty-five years (25) for the kidnapping to run concurrently with
each other but consecutive to the sentence of life without parole.
The Defendant appeals his convictions and sentences. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/JULIANJL_OPN.WP6
JAMES C. LEVEYE
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
E. COVINGTON JOHNSTON, JR. CHARLES W. BURSON
136 Fourth Avenue South Attorney General and Reporter
Franklin, TN 37064
DARYL J. BRAND
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOE D. BAUGH, JR.
District Attorney General
DEREK K. SMITH
Assistant District Attorney
P. O. Box 937
Franklin, TN 37065-0937
Judge: SMITH
First Paragraph:
Appellant James C. Leveye appeals the dismissal of his petition for
post-conviction relief, presenting the following issue: whether the
trial court erred in dismissing his petition as time-barred. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/LEVEYE_ORD.WP6
STATE OF TENNESSEE
vs.
ROBERT KEVIN MOORE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID NEAL BRADY JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
H. MARSHALL JUDD RUTH THOMPSON
Assistant Public Defender Assistant Attorney General
215 Reagan Street 425 Fifth Avenue North
Cookeville, TN 38501 2nd Floor, Cordell Hull Building
Nashville, TN 37243
WILLIAM EDWARD GIBSON
District Attorney General
BENJIMAN W. FANN
Asst District Attorney General
LILLIE ANN SELLS
Asst District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501-3424
Judge: WOODALL
First Paragraph:
The Defendant appeals as of right from the trial court's imposition of
a twenty-five (25) year, Range I sentence for his conviction of
aggravated rape, following a guilty plea in the Putnam County Criminal
Court. In this appeal, the Defendant argues that: (1) The trial court
erred by not requiring the State to file a written notice of the
enhancement factors it planned to use against the Defendant prior to
the sentencing hearing; (2) the trial court erred in applying
enhancement factors found in Tennessee Code Annotated section
40-35-114(6), (7), and (10); and (3) the trial court erred in not
finding that the Defendant's lack of a criminal history was a
mitigating factor. We affirm the judgment of the trial court.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/moorerk_opn.WP6
DAVID PALMER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
A. Wayne Henry Charles W. Burson
322 Grove Street Attorney General of Tennessee
P.O. Box 366 and
Loudon, TN 37774-0366 Clinton J. Morgan
Asst Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Charles Hawk
District Attorney General
and
Roger Delp
Asst District Attorney General
P.O. Box 703
Kingston, TN 37763-0703
Judge: Tipton
First Paragraph:
The petitioner, David Palmer, appeals as of right from the trial
court's summary dismissal of his second petition for post-conviction
relief. The trial court dismissed the petition on various grounds,
including the petition's failure to state a claim for relief that had
not been waived or previously determined. The sole issue for our
review is whether the trial court erred by dismissing the petition.
We conclude that it did not. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/PALMER-D_OPN.WP6
JIMMY RAY POTTER
vs.
STATE OF TENNESSEE
Court:TCCA
First Paragraph:
This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules. Finding that the
trial court properly denied post-conviction relief, we grant the
state's motion to affirm the judgment pursuant to Rule 20.
URL:http://www.tba.org/tba_files/TCCA/POTTER_ORD.WP6
RONALD RICKMAN
vs.
STATE OF TENNESSEE
with CONCURRING OPINION
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
WILLIAM P. REDICK, JR. CHARLES W. BURSON
Post Office Box 187 Attorney General and Reporter
6750 Old Hickory Blvd.
Whites Creek, TN 37189 JOHN P. CAULEY
Assistant Attorney General
(ON APPEAL) Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243 0493
WILLIAM P. REDICK, JR.,
Director
PAUL BOTTEI, JAMES J. CHALLEN, III
Staff Attorney Assistant District Attorney
Capital Case Resource Center Criminal Justice Complex
of Tennessee Suite 301, 201 Poplar Ave.
704 18th Ave. South Memphis, TN 38103
Nashville, TN 37203
Judge: Hayes
First Paragraph:
The appellant, Ronald Rickman, appeals the post-conviction court's
summary dismissal of his third petition for post-conviction court
relief. In 1978, the appellant was convicted of first degree murder
and sentenced to death for the contract killing of Deborah Lee
Groseclose, the wife of his co-defendant, William Groseclose. In
1981, our supreme court affirmed the appellant's conviction. State v.
Groseclose and Rickman, 615 S.W.2d 142 (Tenn.), cert. denied, 454 U.S.
882, 102 S.Ct. 367 (1981). In 1982, the appellant filed his first
petition for post conviction relief, which the post-conviction court
denied following the appointment of counsel and a full evidentiary
hearing. This court affirmed the lower court's judgment. Groseclose
and Rickman v. State, No. 9 (Tenn. Crim. App. at Nashville, February
16, 1984). Our supreme court denied the appellant permission to
appeal, and the United States Supreme Court denied certiorari.
Rickman v. Tennessee, 469 U.S. 963, 105 S.Ct. 363 (1984). In 1985,
the appellant filed a Petition for Writ of Habeas Corpus in federal
district court. Subsequently, in 1989, while his habeas corpus
petition was still pending in federal district court, the appellant
filed his second petition for post-conviction relief. In 1990, the
post-conviction court dismissed the appellant's petition without an
evidentiary hearing. This court affirmed the lower court's judgment.
Rickman v. State, No. 15 (Tenn. Crim. App. at Jackson, September 11,
1991), perm. to appeal denied, (Tenn. 1992). In 1994, pursuant to the
appellant's motion for partial summary judgment of his habeas corpus
petition, the federal district court vacated the appellant's sentence
of death. Rickman v. Dutton, 854 F. Supp. 1305 (M.D. Tenn. 1994).
Thereafter, in a separate opinion, the federal district court vacated
the appellant's conviction for first degree murder. Rickman v.
Dutton, 864 F.Supp. 686 (M.D. Tenn. 1994). The federal district
court's opinions are now on appeal before the United States Court of
Appeals for the Sixth Circuit. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/RICKMANR_OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/RICKMANR_CON.WP6
ROGER LEE SAWYERS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
GREG EICHELMAN JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
D. CLIFTON BARNES MICHAEL J. FAHEY, II
Asst. Public Defender Asst. Attorney General
1609 College Park Dr., Box 11 450 James Robertson Pkwy.
Morristown, TN 37813-1618 Nashville, TN 37243-0493
C. BERKELEY BELL
District Attorney General
VICTOR J. VAUGHN
Asst. District Attorney General
510 Allison St.
Morristown, TN 37814
Judge: PEAY
First Paragraph:
The petitioner filed for post-conviction relief which was denied by
the trial court. This Court affirmed. The Tennessee Supreme Court
subsequently reversed and remanded for a hearing. Following the
ordered hearing, the court below denied relief, from which the
petitioner now appeals. Upon our review of the record, we affirm the
judgment. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/SAWYERRL_OPN.WP6
STATE OF TENNESSEE
vs.
ROBERT SCOTT
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Dicken E. Kidwell John Knox Walkup
Attorney at Law Attorney General & Reporter
300 East Vine Street 500 Charlotte Avenue
Murfreesboro, TN 37130 Nashville, TN 37243-0497
(Appeal Only)
Michael J. Fahey, II
Guy R. Dotson, Jr. Assistant Attorney General
Attorney at Law 450 James Robertson Parkway
102 South Maple Street Nashville, TN 37243-0493
Murfreesboro, TN 37130
(Trial Only) William C. Whitesell, Jr.
District Attorney General
303 Rutherford Cty Judicial Bldg
Murfreesboro, TN 37130
Thomas F. Jackson, Jr.
Asst District Attorney General
303 Rutherford Cty Judicial Bldg
Murfreesboro, TN 37130
Judge: Jones
First Paragraph:
The appellant, Robert Scott (defendant), was convicted of aggravated
sexual battery, a Class B felony, by a jury of his peers. The trial
court, finding the defendant to be a standard offender, imposed a
Range I sentence consisting of confinement of eight (8) years in the
Department of Correction. In this Court, the defendant raises
numerous issues. After a thorough review of the record, the briefs of
the parties, and the law governing the issues presented for review, it
is the opinion of this Court the judgment of the trial court should be
reversed and this cause remanded to the trial court for a new trial.
The trial court explicitly expressed dissatisfaction with the verdict
of the jury, but upheld the verdict when considering the matter as the
thirteenth juror. REVERSED AND REMANDED FOR A NEW TRIAL.
URL:http://www.tba.org/tba_files/TCCA/SCOTTR_OPN.WP6
STATE OF TENNESSEE
vs.
ERIC D. WALLACE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
W. Mark Ward John Knox Walkup
Assistant Public Defender Attorney General & Reporter
147 Jefferson Avenue, Suite 900 500 Charlotte Avenue
Memphis, TN 38103 Nashville, TN 37243-0497
Betty Jo Thomas Daryl J. Brand
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue, Suite 2-01 450 James Robertson Parkway
Memphis, TN 38103 Nashville, TN 37243-0393
OF COUNSEL: William L. Gibbons
District Attorney General
A C Wharton, Jr. 201 Poplar Avenue, Suite 3-01
Shelby County Public Defender Memphis, TN 38103
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103 Jerry R. Kitchen
Asst District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Judge: Jones
First Paragraph:
The appellant, Eric D. Wallace (defendant), was convicted of first
degree murder and attempt to commit first degree murder, a Class A
felony, by a jury of his peers. The defendant was sentenced to life
in the Department of Correction for the offense of murder first
degree. The trial court, finding the defendant to be a standard
offender, imposed a Range I sentence consisting of confinement for
fifteen (15) years in the Department of Correction for the offense of
attempt to commit first degree murder. The sentences are to be served
consecutively. In this Court the defendant contends (a) the evidence
is insufficient to support his convictions and (b) the trial court
abused its discretion by ordering the sentences to be served
consecutively. After a thorough review of the record, the briefs
submitted by the parties, and the law governing the issues presented
for review, it is the opinion of this Court that the judgment of the
trial court should be affirmed. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/WALLACEE_OPN.WP6
STATE OF TENNESSEE
vs.
ERIC D. WALLACE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Daniel J. Runde John Knox Walkup
Assistant Public Defender Attorney General & Reporter
128 North Second Street 500 Charlotte Avenue
Pulaski, TN 38478 Nashville, TN 37243-0497
OF COUNSEL: M. Allison Thompson
Assistant District Attorney
Shara Ann Flacy 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
128 North Second Street
Pulaski, TN 38478 T. Michael Bottoms
District Attorney General
P.O. Box 459
Lawrenceburg, TN 38464
James G. White, II
Asst District Attorney General
P.O. Box 459
Lawrenceburg, TN 38464
Judge: Jones
First Paragraph:
The appellant, Roland John Welch (defendant), was convicted of
attempted voluntary manslaughter, a Class D felony, by a jury of his
peers. The trial court, finding that the defendant was a multiple
offender, imposed a Range II sentence consisting of confinement for
eight (8) years in the Department of Correction. In this Court, the
defendant contends the admission of certain hearsay statements
constituted reversible error, and the trial court misapplied certain
mitigating factors and aggravating circumstances. After a thorough
review of the record, the briefs submitted by the parties, and the law
governing the issues, it is the opinion of this Court the judgment of
the trial court should be affirmed. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/WELCHRJ_OPN.WP6
STATE OF TENNESSEE
vs.
ROSIE LEE WOOTEN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
B. Campbell Smoot Charles W. Burson
Public Defender Attorney General
P.O. Box 260
Tullahoma, TN 37388 Michelle K. Hohnke
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0488
C. Michael Layne
District Attorney General
P.O. Box l47
Manchester, TN 37355
Judge: SCOTT
First Paragraph:
The appellant, Rosie Lee Wooten, appeals the sentence imposed upon her
following her plea of guilty to the charge of voluntary manslaughter.
The trial judge sentenced the appellant to a term of three years
imprisonment in the Tennessee Department of Correction as a Range I
standard offender. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/WOOTENRL_OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/WOOTENRL_DIS.WP6
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