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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- 05-New Opinons From TCCA
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GENEVA GRAHL vs. LILLIE DAVIS, GREGORY SCOTT JUDKINS and JEFFREY TODD JUDKINS Court:TSC Attorneys: For Appellant: For Appellees David R. Duggan Norman H. Newton DUGGAN & ANDERSON CRAWFORD, CRAWFORD & NEWTON Maryville, Tennessee Maryville, Tennessee J. Michael Garner Duncan V. Crawford NICHOLSON & GARNER CRAWFORD, CRAWFORD, & NEWTON Maryville, Tennessee Maryville, Tennessee John A. Walker, Jr. WALKER & WALKER, P.C. Knoxville, Tennessee Judge:DROWOTA First Paragraph: The primary issue in this appeal is whether the conservator, Geneva Grahl, breached her fiduciary duty to the deceased conservatee, Lillie Davis, by allowing the conservatee's husband, Omer Davis, to transact four certificates of deposit in which the conservatee had an interest and reinvest the funds into certificates of deposit held either solely in the name of Omer Davis or jointly in the name of Omer Davis and Geneva Grahl. After carefully considering the controlling authority, we have determined that Grahl breached her fiduciary duty by allowing Omer Davis to transact the accounts without first seeking court approval, and by dealing with the conservatee's property so as to eventually attain a personal benefit. Accordingly, we affirm the judgment of the Court of Appeals reversing the judgment of the trial court, and remand this case for further proceedings consistent with this opinion. URL:http://www.tba.org/tba_files/TSC/grahl_opn.WP6 STATE OF TENNESSEE vs. GREGORY JAY HOXIE Court:TSC Attorneys: For Appellant: For Appellee: Mark Stephens John Knox Walkup Public Defender Attorney General & Reporter Knoxville, Tennessee Nashville, Tennessee Paula R. Voss Michael E. Moore Assistant Public Defender Solicitor General Knoxville, Tennessee Nashville, Tennessee (Appeal Only) Daryl J. Brand Timothy M. McLaughlin Assistant Attorney General AND Nashville, Tennessee John Halstead Assistant Public Defenders Randall Nichols Knoxville, Tennessee District Attorney General Knoxville, Tennessee Marsha Selecman Asst District Attorney General Knoxville, Tennessee Judge:DROWOTA First Paragraph: The Knox County Grand Jury returned an indictment charging the defendant, Gregory Jay Hoxie, with one count of felony stalking, one count of misdemeanor stalking, and two counts of misdemeanor telephone harassment. Count one, felony stalking, alleged that the defendant had stalked the victim, Suzette Hoxie, from June through October, 1994, in violation of an order of protection. Count two, misdemeanor stalking, alleged that the defendant had stalked the victim from January to June, 1994. Count three alleged that the defendant had harassed the victim by making threatening telephone calls. Count four charged that the defendant had harassed the victim by placing telephone calls "in an offensively repetitious manner and without a legitimate purpose of communication." The State introduced evidence of numerous incidents in support of its prosecution of felony and misdemeanor stalking. At the close of the proof, the jury returned a verdict of guilty on count one, felony stalking, count two, misdemeanor stalking, and count four, "offensively repetitious" telephone harassment. The jury found the defendant not guilty of count three, harassment by telephone threat. URL:http://www.tba.org/tba_files/TSC/hoxiegj_opn.WP6 STATE OF TENNESSEE vs. DOUGLAS BRIAN IRWIN Court:TSC Attorneys: APPELLANT FOR APPELLEE: Gerald C. Russell John Knox Walkup 125 E. Broadway Attorney General & Reporter Maryville, Tennessee Michael E. Moore Solicitor General Kathy M. Yacuzzo Assistant Attorney General 425 Fifth Avenue, North Nashville, Tennessee Michael Flynn District Attorney General 5th Judicial District Maryville, Tennessee Edward P. Bailey Asst District Attorney General Maryville, Tennessee Judge:DROWOTA First Paragraph: On June 7, 1993, the defendant was charged in a one count indictment with contributing to the delinquency of a minor in violation of Tenn. Code Ann. S 37-1-156 (1996 Repl. & Supp. 1997). URL:http://www.tba.org/tba_files/TSC/irwindb_opn.WP6 STATE OF TENNESSEE vs. GRAPEL SIMPSON Court:TSC Attorneys: For Plaintiff-Appellee: For Defendant-Appellant: John Knox Walkup Lloyd R. Tatum Attorney General & Reporter Tatum & Tatum Nashville, Tennessee Tatum Building Henderson, Tennessee Michael E. Moore Solicitor General Nashville, Tennessee Kenneth W. Rucker Assistant Attorney General Nashville, Tennessee Elizabeth T. Rice District Attorney General Twenty-Fifth Judicial District Somerville, Tennessee Ed McDaniel Assistant District Attorney General Selmer, Tennessee Judge:DROWOTA First Paragraph: Based on a confidential informant's tip, police stopped the defendant's vehicle. A consensual search of her person revealed drugs. The issue in this appeal is whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to satisfy the two-pronged constitutional test of reliability and provide reasonable suspicion to justify the investigatory stop. We hold that it did and therefore affirm the judgment of the Court of Criminal Appeals upholding the trial court's denial of the defendant's motion to suppress. URL:http://www.tba.org/tba_files/TSC/simpsong_opn.WP6 LUTCHER EIDSON vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Geoffrey Coston John Knox Walkup 2813 West End Ave. Attorney General of Tennessee Nashville, TN 37203 and Clinton J. Morgan Asst Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and John Zimmerman James Sledge Asst District Attorneys General Washington Square 222 2nd Avenue North Nashville, TN 37201-1649 Judge:Tipton First Paragraph: The petitioner, Lutcher Eidson, appeals as of right from the denial of his petition for post-conviction relief by the Davidson County Criminal Court relative to his 1989 convictions for two counts of assault with intent to commit first degree murder, one of which resulted in bodily injury. The convictions were affirmed on appeal. State v. Lutcher Eidson, No. 01C01-9004-CR-00097, Davidson County (Tenn. Crim. App. Dec. 12, 1990), app. denied (Tenn. Feb. 25, 1991). He is presently in the custody of the Department of Correction serving an effective sentence of forty-five years as a Range II, persistent offender. The petitioner contends that the trial court erred in concluding that he received the effective assistance of counsel at his trial. We disagree. URL:http://www.tba.org/tba_files/TCCA/eidsonl_opn.WP6 CHARLES MICHAEL GENTRY vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: BOB LYNCH, JR. JOHN KNOX WALKUP Suite 316, Washington Square Attorney General and Reporter 222 Second Avenue North Nashville TN 37201 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON District Attorney General STEVE DOZIER Asst District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 Judge:WELLES First Paragraph: The Petitioner, Charles Michael Gentry, 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. On May 9, 1996, the Petitioner filed a motion to reopen his first petition for post-conviction relief, claiming that the "reasonable doubt" jury instruction charged at his trial was unconstitutional. In his motion to reopen, he asserted that his claim was based on the violation of a constitutional right not recognized as existing at the time of his trial. See Tenn. Code Ann. S 40-30-217(a)(1). The trial court granted the motion to reopen and considered the Petitioner's claim on its merits. On October 29, 1996, the trial court issued an order denying the petition. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/gentrycm_opn.WP6 STATE OF TENNESSEE vs. LANDY G. KASH Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JACKY O. BELLAR JOHN KNOX WALKUP BELLAR & BELLAR Attorney General & Reporter 212 Main Street P.O. Box 332 CLINTON J. MORGAN Carthage, TN 37030 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 TOM P. THOMPSON, JR. District Attorney General H. DOUGLAS HALL Asst District Attorney General 111 Cherry Street Lebanon, TN 37087-3609 Judge:WOODALL First Paragraph: After being convicted of DUI, third offense, and driving on a revoked license following a jury trial, the Defendant, Landy G. Kash, filed a Motion for New Trial on December 12, 1996. There is no order in the record either granting or denying that motion. There is a handwritten notation on the motion that it was overruled, but the judge's signature does not appear in the notation. However, for an order to be valid, it must be in writing and it must be entered in the court's minutes. See Evans v. Perkey, 647 S.W.2d 636, 641 (Tenn. App. 1982); Welch v. State, 553 S.W.2d 917, 919-20 (Tenn. Crim. App. 1977). The time for appeal runs from the entry of a proper order denying a new trial. Tenn. R. App. P. 4(c). URL:http://www.tba.org/tba_files/TCCA/kashlg_opn.WP6 STATE OF TENNESSEE vs. TIMOTHY DEAN MARTIN Court:TCCA Attorneys:FOR THE APPELLANT: FOR THE APPELLEE: Andrew J. Dearing, III John Knox Walkup Attorney at Law Attorney General & Reporter 117 South Main Street 425 Fifth Avenue, North Shelbyville, TN 37160 Nashville, TN 37243 Clinton J. Morgan Counsel for the State 425 Fifth Avenue, North Nashville, TN 37243 W. Michael McCown District Attorney General 215 East College Street Fayetteville, TN 37334 Weakley E. Barnard Asst District Attorney General Marshall County Courthouse, Rm 407 Lewisburg, TN 37091 Judge:Jones First Paragraph: The appellant, Timothy Dean Martin (defendant), was convicted of vehicular homicide, a Class C felony, and aggravated assault, also a Class C felony, by a jury of his peers. The trial court found the defendant was a standard offender and imposed the following Range I sentences: (a) for vehicular homicide, a $5,000 fine and confinement for four (4) years and eight (8) months in the Department of Correction, and (b) for aggravated assault, a $5,000 fine and confinement for three (3) years and four (4) months in the Department of Correction. The sentences are to be served concurrently for an effective sentence of confinement for four (4) years and eight (8) months in the Department of Correction and fines totaling $10,000. Five issues are presented for review. The defendant contends (a) the evidence is insufficient, as a matter of law, to support his convictions; (b) the State of Tennessee (state) acted in bad faith thereby denying him a fair trial; (c) the trial court erred in allowing an expert to offer an opinion based upon data gathered by another individual; (d) the trial court erred by refusing to charge the jury on the failure of one of the victims to wear a seat belt; and (e) the sentences imposed by the trial court are excessive. 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. URL:http://www.tba.org/tba_files/TCCA/martintd_opn.WP6 STATE OF TENNESSEE vs. ANTHONY JASON MERLO Court:TCCA Attorneys: For the Appellant: For the Appellee: Andrew Jackson Dearing, III John Knox Walkup 117 South Main Street Attorney General of Tennessee Shelbyville, TN 37160 and Ellen H. Pollack Asst Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 William Michael McCown District Attorney General 215 College Street P.O. Box 904 Fayetteville, TN 37334 and Robert Crigler Asst District Attorney General One Public Square Shelbyville, TN 37160 Judge:Tipton First Paragraph: The defendant, Anthony Jason Merlo, appeals as of right from his convictions by a jury in the Bedford County Circuit Court for two counts of aggravated burglary, a Class C felony, theft of property valued over five hundred dollars but less than one thousand dollars, a Class E felony, and theft of property valued five hundred dollars or less, a Class A misdemeanor. The defendant was sentenced as a Range I, standard offender to five years and four months in the custody of the Department of Correction and fined ten thousand dollars for each aggravated burglary conviction. For the felony theft of property conviction, the trial court imposed a Range I sentence of three years and six months in the custody of the Department of Correction and a three- thousand-dollar fine. The trial court also sentenced the defendant to eleven months and twenty-nine days and imposed a fine of two thousand five hundred dollars for the misdemeanor theft conviction. The court ordered the defendant to serve his aggravated burglary convictions consecutive to each other for an effective sentence of ten years and eight months. The defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by ordering consecutive sentences. We disagree and affirm the trial court's judgments of conviction. URL:http://www.tba.org/tba_files/TCCA/merloaj_opn.WP6
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