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TBALink Opinion-Flash
March 19, 1998 -- Volume #4 -- Number #051
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.
- This Issue (IN THIS ORDER):
- 00-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 02-New Opinons From TSC-Workers Comp Panel
- 00-New Opinons From TCA
- 16-New Opinons From TCCA
- 00-New Opinons From TSC
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version of the opinion.
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TBALink Chief Editor
BELINDA DUNLAP vs. NAGLE INDUSTRIES Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: William G. McCaskill Stacy A. Turner Taylor, Philbin, Pigue, Marchetti Clarksville, Tennessee & Bennett Nashville, Tennessee Judge:Loser First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellant contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on twenty-five percent to the body as a whole. As discussed below, the panel has concluded the judgment should be modified and affirmed. URL:http://www.tba.org/tba_files/TSC_WCP/dunlapb_opn.WP6
DAVID RICHARDS
vs.
SATURN CORPORATION
Court:TSC - Workers Comp Panel
Attorneys:
For Appellant: For Appellee:
Thomas H. Peebles J. Anthony Arena
Brian A. Lapps Schulman, LeRoy & Bennett
Mark W. Peters Nashville, Tennessee
Waller, Lansden, Dortch & Davis
Columbia, Tennessee
Judge:Loser
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law. The appellant states the
issues.
URL:http://www.tba.org/tba_files/TSC_WCP/richards_opn.WP6
STATE OF TENNESSEE
vs.
PAT BONDURANT
Court:TCCA
Attorneys:
FOR APPELLANT: FOR THE APPELLEE:
(On Appeal and Motion for New Trial) John Knox Walkup
William P. Redick, Jr. Attorney General & Reporter
P.O. Box 187
Whites Creek, TN 37189 Darian B. Taylor
Asst Attorney General
Peter D. Heil Criminal Justice Division
866 Battery Lane 450 James Robertson Parkway
Nashville, TN 37220 Nashville, TN 37243-0485
(At Trial) T. Michael Bottoms
Jerry C. Colley District Attorney General
John Colley
Colley & Colley James C. Sanders
P.O. Box 1476 Asst District Atty General
Columbia, TN 38402-1476
James G. White, II
Asst District Atty General
P.O. Box 1619
Columbia, TN 38402-1619
Judge:WITT
First Paragraph:
In this capital case, the defendant, Pat Bondurant, was convicted by a
jury of first-degree premeditated murder and arson. At a separate
sentencing hearing, the jury found the following aggravating factors:
(1) the defendant was previously convicted of one or more felonies
involving the use or threat of violence, and (2) the murder was
especially heinous, atrocious, or cruel in that it involved torture or
depravity of mind. See Tenn. Code Ann. S 39-2-203(i)(2) and (5)
(1982). The jury found that there were no mitigating circumstances
sufficiently substantial to outweigh the aggravating circumstances and
sentenced the defendant to death by electrocution.
URL:http://www.tba.org/tba_files/TCCA/bondur_opn.WP6
JOSEPH L. BROWN
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Howard B. Manis John Knox Walkup
Attorney at Law Attorney General & Reporter
200 Jefferson Ave., Ste 1313 425 Fifth Avenue, North
Memphis, TN 38103 Nashville, TN 37243-0493
Clinton J. Morgan
Counsel for the State
425 Fifth Avenue, North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Ave., Suite 3-01
Memphis, TN 38103
Daniel R. Woody
Asst District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Judge:Jones
First Paragraph:
The appellant, Joseph L. Brown (petitioner), appeals as of right from
a judgment of the trial court dismissing his post-conviction action
after an evidentiary hearing. In this court, the petitioner contends
the trial court "erred in failing to Sustain your Petitioner's
Petition for Post Conviction Relief, and grant him a new trial in his
case." 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 pursuant to Rule 20, Tennessee Court of Criminal
Appeals. The evidence contained in the record does not preponderate
against the trial court's findings of fact.
URL:http://www.tba.org/tba_files/TCCA/brownjl_opn.WP6
STATE OF TENNESSEE
vs.
HELEN K. DAVIS
Court:TCCA
Attorneys:
FOR THE APPELLANT:
A. C. WHARTON, JR.
Shelby County Public Defender
TONY BRAYTON (on appeal)
Assistant Public Defender
201 Poplar Avenue, Suite 201
Memphis, TN 38103
TERESA JONES (at trial)
Assistant Public Defender
201 Poplar Avenue, Suite 201
Memphis, TN 38103
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
KENNETH W. RUCKER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
LEE COFFEE
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
Judge:SMITH
First Paragraph:
The defendant, Helen K. Davis, appeals as of right from convictions of
three (3) counts of simple robbery, Class C felonies. She pled guilty
and agreed to concurrent terms of eight (8) years as a Range II
offender. The sole issue presented for review is whether the trial
court erred in denying the defendant probation. We affirm the
judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/davishk_opn.WP6
CHARLES E. DORSE, JR.
and EDDIE L. WILLIAMS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR APPELLANT DORSE:
C. ANNE TIPTON
140 North Third Street
Memphis, TN 38103-2007
FOR APPELLANT WILLIAMS:
JIM N. HALE
(At Hearing)
147 Jefferson Avenue, Suite 1204
Memphis, TN 38103
GERALD STANLEY GREEN
(On Appeal)
147 Jefferson Avenue, Suite 1115
Memphis, TN 38103
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
DEBORAH A. TULLIS
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
DANIEL R. WOODY
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
Judge:SMITH
First Paragraph:
The petitioners, Charles E. Dorse, Jr. and Eddie L. Williams, appeal
the order of the Shelby County Criminal Court denying their respective
petitions for post-conviction relief after an evidentiary hearing. On
appeal, petitioners allege ineffective assistance of both trial and
appellate counsel. Dorse further argues that, at trial, the jury was
charged with an unconstitutional reasonable doubt instruction.
Williams presents three additional issues: (1) whether the original
trial court properly refused to suppress his statement to the police;
(2) whether the original trial court properly refused to sever the
defendants; and (3) whether the post-conviction court properly
consolidated the subject petitions at the hearing. Because we agree
with the trial court's finding that Dorse's trial counsel failed to
notify him of his right to seek second tier appellate review, we grant
him the right to seek a delayed appeal to the Tennessee Supreme Court.
In all other respects, the judgment of the trial court is affirmed.
URL:http://www.tba.org/tba_files/TCCA/dorsece_opn.WP6
JERRY DALE DUFFEY
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Curtis H. Gann John Knox Walkup
Assistant Public Defender Attorney General & Reporter
P.O. Box 1119 425 Fifth Avenue, North
Fayetteville, TN 37334 Nashville, TN 37243-0493
(Appeal Only)
Ellen H. Pollack
Michael D. Randles Assistant Attorney General
Assistant Public Defender 450 James Robertson Parkway
P.O. Box 1119 Nashville, TN 37243-0493
Fayetteville, TN 37334
(Trial Only) W. Michael McCown
District Attorney General
OF COUNSEL: P.O. Box 904
Fayetteville, TN 37334
John H. Dickey
District Public Defender Weakley E. Barnard
P.O. Box 1119 Asst District Attorney General
Fayetteville, TN 37334 Marshall County Courthouse
Lewisburg, TN 37091
Judge:Jones
First Paragraph:
The appellant, Jerry Dale Duffey (petitioner), appeals as of right
from a judgment of the trial court dismissing his post-conviction
action following an evidentiary hearing. The petitioner contends (a)
the trial judge committed error of prejudicial dimensions by refusing
to recuse himself and (b) the evidence contained in the record
establishes the petitioner was denied his constitutional right to the
effective assistance of counsel. 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/duffeyjd_opn.WP6
STATE OF TENNESSEE
vs.
GENE GRUZELLA
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
D. STUART CAULKINS JOHN KNOX WALKUP
212 E. Main St. Attorney General & Reporter
Franklin, TN 37064
ELIZABETH B. MARNEY
Asst. Attorney General
425 Fifth Ave., N.
Nashville, TN 37243-0493
JOSEPH D. BAUGH
District Attorney General
RONALD L. DAVIS
Asst. District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
Judge:PEAY
First Paragraph:
The defendant was charged with unlawfully disposing of a corpse and
with mistreating a corpse. A jury acquitted him of the first offense
but convicted him of the latter. The defendant was subsequently
sentenced to six years incarceration. In this appeal as of right, the
defendant challenges the sufficiency of the evidence and the
constitutionality of the statute which he was convicted of violating.
Upon our review of the record, we reverse the defendant's conviction
and dismiss the charge against him.
URL:http://www.tba.org/tba_files/TCCA/gruzella_opn.WP6
STATE OF TENNESSEE
vs.
CLARENCE JACKSON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
H. Marshall Judd John Knox Walkup
Assistant Public Defender Attorney General & Reporter
215 Reagan Street 425 Fifth Avenue, North
Cookeville, TN 38501 Nashville, TN 37243-0493
OF COUNSEL: Georgia Blythe Felner
Counsel for the State
David N. Brady 425 Fifth Avenue, North
District Public Defender Nashville, TN 37243-0493
215 Reagan Street
Cookeville, TN 38501 William E. Gibson
District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501-3424
Lillie Ann Sells
Asst District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501-3424
Judge:Jones
First Paragraph:
The appellant, Clarence Jackson (defendant), was convicted of two (2)
counts of sexual battery, a Class E 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 for two (2) years
in the Department of Correction in each count. The sentences were
ordered to be served consecutively for an effective sentence of four
(4) years. The defendant presents nine issues for review. However,
this court finds there are only three issues presented for review.
The defendant contends (a) the evidence is insufficient, as a matter
of law, to support his convictions, (b) the trial court erred by
admitting into evidence his statement to a law enforcement officer
because it contained inadmissible hearsay, and (c) 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 two convictions for sexual battery should be affirmed. However,
the sentences are modified. The sentences are to be served
concurrently rather than consecutively.
URL:http://www.tba.org/tba_files/TCCA/jacksonc_opn.WP6
VITO ANTHONY LICARI
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Phillip G. Hollis John Knox Walkup
Attorney at Law Attorney General & Reporter
39 North Court Square 425 Fifth Avenue, North
Camden, TN 38320 Nashville, TN 37243-0493
Georgia B. Felner
Counsel for the State
425 Fifth Avenue, North
Nashville, TN 37243-0493
G. Robert Radford
District Attorney General
P. O. Box 686
Huntingdon, TN 38344-0686
Todd A. Rose
Asst District Attorney General
P. O. Box 94
Paris, TN 38242
Judge:Jones
First Paragraph:
The appellant, Vito Anthony Licari (petitioner), appeals as of right
from a judgment of the trial court dismissing his post-conviction
action. In this court, the petitioner contends his plea of guilty
failed to pass constitutional muster because the trial court's
explanation regarding the right to confront the State of Tennessee's
witnesses was inaccurate. He argues his plea is infirm due to a
misstatement made by the trial court during the submission hearing,
and this same error rendered the guilty plea involuntary. The
petitioner also contends the trial court failed to determine that his
guilty plea was freely and voluntarily given. The petitioner raises a
third issue that "the court fail[ed] to follow the directions of Rule
11 to the extent that the defendant is entitled to post-conviction
relief." 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 pursuant to Rule 20, Tennessee Court of Criminal
Appeals. The evidence contained in the record does not preponderate
against the findings of fact made by the trial court. Clenny v.
State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied, 441
U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979).
URL:http://www.tba.org/tba_files/TCCA/licariva_opn.WP6
STATE OF TENNESSEE
vs.
ANTONIO S. MOORE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
J. C. McLin John Knox Walkup
Attorney at Law Attorney General & Reporter
301 Washington Ave., Ste 201
Memphis, TN 38103 Georgia Blythe Felner
Counsel for the State
Lee Wilson Criminal Justice Division
Attorney at Law 450 James Robertson Parkway
200 Jefferson Nashville, TN 37243-0493
Memphis, TN 38103
(At Trial) William L. Gibbons
District Attorney General
Perry Hayes
Asst District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
Judge:SUMMERS
First Paragraph:
Antonio Moore, the appellant, pled guilty to possession of cocaine
with intent to sell in an amount less than one-half of a gram. The
appellant agreed to a three-year sentence, with the court to determine
whether the appellant should receive probation. The court ordered the
appellant to serve eleven months twenty-nine days in jail followed by
two years of community corrections. Appellant appeals, and the sole
issue for our review is whether the court should have granted the
appellant full probation. He requests a nonincarcerative alternative
sentence.
URL:http://www.tba.org/tba_files/TCCA/mooreant_opn.WP6
STATE OF TENNESSEE
vs.
HARVEY D'HATI MOORE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
William L. Brown John Knox Walkup
706 Walnut Street, Ste 902 Attorney General and Reporter
Knoxville, TN 37902 450 James Robertson Parkway
(at trial and on appeal) Nashville, TN 37243-0493
M. Jeffrey Whitt Sandy C. Patrick
706 Walnut Street, Ste 902 Assistant Attorney General
Knoxville, TN 37902 Cordell Hull Building, Second Fl.
(at trial only) 425 Fifth Avenue North
Nashville, TN 37243-0943
Randall E. Nichols
District Attorney General
and
Fred Bright, Jr.
Asst District Attorney General
City-County Building
Knoxville, TN 37902
Judge:WADE
First Paragraph:
The defendant, Harvey D'Hati Moore, was indicted for the first-degree
child abuse murder of Kadijah Hopewell. See Tenn. Code Ann. S
39-13-202(a)(4) (Supp. 1993). The jury returned a verdict of guilt of
the lesser grade offense of criminally negligent homicide. See
Tenn.Code Ann. S 39-13-212. The trial court imposed a sentence of 452
days, which the defendant had already served by the time of trial.
URL:http://www.tba.org/tba_files/TCCA/moorehd_opn.WP6
STATE OF TENNESSEE
vs.
DANIEL D. NAUGHTON, SR.
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
A C Wharton John Knox Walkup
Public Defender Attorney General and Reporter
Tony N. Brayton Elizabeth T. Ryan
Asst. Public Defender Assistant Attorney General
201 Poplar St., Suite 201 Criminal Justice Division
Memphis, TN 38103 450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
Robert Carter
Asst. District Attorney General
Criminal Justice Complex, Ste 301
201 Poplar Street
Memphis, TN 38103
Judge:Hayes
First Paragraph:
The appellant, Daniel D. Naughton, was found guilty of one count of
aggravated child abuse by a Shelby County jury. Following this
verdict, the trial court imposed the maximum sentence of twelve years
confinement in the Tennessee Department of Correction.
URL:http://www.tba.org/tba_files/TCCA/naughtnd_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/naughtnd_dis.WP6
STATE OF TENNESSEE
vs.
RICHARD D. SAWYER
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Robert S. Peters John Knox Walkup
Swafford, Peters & Priest Attorney General and Reporter
100 First Avenue, Southwest
Winchester, TN 37398 Ruth Anne Thompson
(at trial and on appeal) Counsel for the State
425 Fifth Avenue North
Timothy Priest Cordell Hull Bldg, Second Fl.
Swafford, Peters & Priest Nashville, TN 37243-0493
100 First Avenue, Southwest
Winchester, TN 37398 Stephen M. Blount
(at sentencing) Asst District Attorney General
324 Dinah Shore Boulevard
Winchester, TN 37398
Judge:WADE
First Paragraph:
The defendant, Richard D. Sawyer, was convicted of driving under the
influence, third offense, and driving on a revoked license, second
offense. The trial court imposed concurrent sentences of eleven
months and twenty-nine days for driving under the influence and ninety
days for driving on a revoked license. See Tenn. Code Ann. SS
55-10-401(a) and 55-50-504(a)(1). The defendant was fined $1,050.00.
URL:http://www.tba.org/tba_files/TCCA/sawyerrd_opn.WP6
STATE OF TENNESSEE
vs.
MARY SCHWARTZ
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
LARRY D. DROLSUM JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
407 C Main Street
P.O. Box 68 RUTH A. THOMPSON
Franklin, TN 37065-0068 Assistant Attorney General
425 5th Avenue North
Nashville, TN 37243
JOSEPH D. BAUGH, JR.
District Attorney General
JOHN BARRINGER
Asst District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
Judge:WELLES
First Paragraph:
The Defendant, Mary Schwartz, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate Procedure. She was convicted at a
bench trial of driving under the influence of an intoxicant ("DUI").
The trial court sentenced her to thirty days in the county jail, all
suspended except for forty-eight hours, and eleven months and
twenty-nine days of probation. The trial court also imposed a fine of
three hundred fifty dollars ($350), ordered the Defendant to attend
alcohol safety school, and revoked her driver's license for one year.
In this appeal, the Defendant argues that the evidence was legally
insufficient to support her conviction. After reviewing the record,
we conclude that the Defendant's issue lacks merit. Accordingly, we
affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/schwarma_opn.WP6
KENNETH A. STEELE
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Jeffery S. Frensley, Attorney John Knox Walkup
211 Third Avenue North Attorney General and Reporter
P.O. Box 198288
Nashville, TN 37219-8288 Daryl J. Brand
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Stan Lanzo
H.C. Bright
Asst District Attys General
Hamilton County Justice Bldg
Chattanooga, TN 37402
Judge:WADE
First Paragraph:
Indicted on twenty-one separate indictments involving eight victims,
the petitioner, Kenneth Alan Steele, was convicted on each count. The
charges included burglary, armed robbery, aggravated robbery, rape,
aggravated assault, assault with intent to commit rape, and theft of
property. The Court of Criminal Appeals affirmed the convictions.
State v. Kenneth Alan Steele, No. 03C01-9207 CR-00233 (Tenn. Crim.
App., at Knoxville, Oct. 13, 1993). Application for permission to
appeal to the supreme court was denied.
URL:http://www.tba.org/tba_files/TCCA/steeleka_opn.WP6
DANIEL B. TAYLOR
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Daniel B. Taylor, pro se John Knox Walkup
Northwest Correctional Center Attorney General & Reporter
Route 1, Box 660 425 Fifth Avenue, North
Tiptonville, TN 38079 Nashville, TN 37243-0493
Wayne Chastain Kenneth W. Rucker
Attorney at Law Assistant Attorney General
66 Monroe Avenue, Suite 804 425 Fifth Avenue, North
Memphis, TN 38103 Nashville, TN 37234-0493
(Trial Only)
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
C. Alanda Horne
Asst District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Judge:Jones
First Paragraph:
The appellant, Daniel B. Taylor (petitioner), appeals as of right from
a judgment of the trial court summarily dismissing his post-conviction
action. The trial court found the petitioner "has failed to raise any
issue which has not been previously determined" and "an evidentiary
hearing is not necessary for a resolution of any issue before this
Court." The petitioner presents four issues for review. He contends
(a) the dismissal of his action on the ground the issues were
previously determined violated his constitutional rights, (b) the
State of Tennessee (state) failed to respond to each ground alleged in
his petition, (c) the order of dismissal was incomplete because it
does not address all of the grounds alleged in his petition, and (d)
the dismissal of his petition "resulted in denial of meaningful access
to justice, and the fundamental fairness, to an adequate opportunity
to present issues fairly within the post-conviction adversary system."
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/taylordb_opn.WP6
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