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TBALink Opinion-Flash
November 9, 1998 -- Volume 4 -- Number 163
What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.
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Lucian T. Pera
Editor-in-Chief, TBALink
STATE OF TENNESSEE VS. KEVIN BURNS WITH APPENDIX Court:TSC Attorneys: For Appellant: For Appellee: Glenn I. Wright John Knox Walkup WILSON & WRIGHT Attorney General & Reporter Memphis, Tennessee Michael E. Moore Solicitor General Kenneth W. Rucker Assistant Attorney General Nashville, Tennessee At Trial: John W. Pierotti District Attorney General Thomas D. Henderson John Wheeler Campbell Assistant District Attorney Generals Memphis, Tennessee Judge:ANDERSON First Paragraph: The defendant, Kevin Burns, was convicted of two counts of felony murder and two counts of attempted felony murder. The jury imposed the death penalty for one of the felony murder convictions after finding that evidence of an aggravating factor -- that the defendant knowingly created a great risk of death to two or more persons other than the victim murdered -- outweighed the evidence of mitigating factors beyond a reasonable doubt. The jury imposed a life sentence for the other felony murder conviction. URL:http://www.tba.org/tba_files/TSC/burnsk_opn.WP6 APPENDIX: URL:http://www.tba.org/tba_files/TSC/burnsk_apx.WP6
STATE OF TENNESSEE
VS.
KENNETH EUGENE TROUTMAN
Court:TSC
Attorneys:
FOR APPELLANT: FOR APPELLEE:
John Knox Walkup Frederick M. Lance
Attorney General and Reporter Johnson City
Michael E. Moore
Solicitor General
Gordon W. Smith
Associate Solicitor General
Nashville
Judge:HOLDER
First Paragraph:
While this case has ultimately been decided on a waiver issue, we
granted this appeal to take the opportunity to address two very
important issues of statutory construction in misdemeanor sentencing.
The general issues may be framed as whether Tenn. Code Ann. S
40-35-209 and Tenn. Code Ann. S 40- 35-210 apply to misdemeanor
sentencing. Specifically, the issues have been stated as: (1)
whether a trial judge must state on the record, pursuant to Tenn. Code
Ann. S 40-35-210(f), what enhancement or mitigating factors were
employed in setting the sentence length in a DUI case; (2) whether a
trial court must make specific findings on the record, pursuant to
Tenn. Code Ann S 40-35-209(c), when fixing the percentage of a
sentence to be served in incarceration under the misdemeanor
sentencing statute; and (3) whether the appellate court erred in
remanding this case for re-sentencing. We hold that SS 40-35-209, -
210(f) are inapplicable to DUI sentencing and that the defendant's
sentences should be affirmed.
URL:http://www.tba.org/tba_files/TSC/troutken_opn.WP6
BRENDA J. CROWDER, M.D.
VS.
BRENT D. LAING, M.D.
and
JOHN D. GREEN, M.D., DAVID DOBYNS, FIRST MEDICAL GROUP
also known as FMG, INC., and HEALTH CARE CONSULTANTS, INC.,
doing business as HCI, INC.,
BRENT D. LAING, M.D.
VS.
BRENDA J. CROWDER, M.D.
Court:TCA
Attorneys:
For Appellant For Appellee
MARK S. DESSAUER LOIS B. SHULTS
Hunter, Smith & Davis Shults & Shults
Kingsport, Tennessee Erwin, Tennessee
Judge:SUSANO
First Paragraph:
We granted the Rule 9, T.R.A.P., application of the appellant, Brent
D. Laing, M.D. ("Laing"), in order to review the propriety of the
trial court's denial of Laing's motion to amend his answer filed in
litigation instituted against him and others by the appellee, Brenda
J. Crowder, M.D. ("Crowder"). In the same order, we consolidated that
interlocutory appeal with the appeal of Laing's separate suit against
Crowder, which latter appeal is before us as of right. See Rule 3(a),
T.R.A.P. The claims asserted by Laing in the second suit are
identical to those in the counterclaim which Laing attempted to
pursue, albeit unsuccessfully, in the earlier litigation. We reverse
the trial court's denial of Laing's motion to amend in the first suit.
We dismiss, as moot, the appeal of Laing's subsequent suit against
Crowder.
URL:http://www.tba.org/tba_files/TCA/laingbd_opn.WP6
DAN W. WILKINS and FRANCES WILKINS
VS.
DODSON, PARKER, SHIPLEY, BEHM & SEABORG, A partnership, and
HARLAN DODSON, III, PAUL S. PARKER, MARIETTA L. SHIPLEY,
MARGARET BEHM, and JON P. SEABORG, Individually
Court:TCA
Attorneys:
Dan W. Wilkins, Pro Se
Winston S. Evans,
Dennis J. Meaker,
EVANS, JONES & REYNOLDS, Nashville, Tennessee
Attorneys for Defendants/Appellees.
Judge:FARMER
First Paragraph:
This is a legal malpractice case. The malpractice action arose out of
a lender liability lawsuit that was dismissed by the trial court
because it had not been filed within the limitations period.
Dismissal of the underlying lawsuit was affirmed on appeal by the
Middle Section of this Court. Wilkins v. Third National Bank in
Nashville, 884 S.W.2d 758 (Tenn. App. 1994), cert. denied, (Sept. 26,
1994). While not in the record before us, the facts of the underlying
lawsuit contained in the aforementioned decision of the Middle Section
will be helpful in understanding the facts of this appeal.
URL:http://www.tba.org/tba_files/TCA/wilkinsd_opn.WP6
STATE OF TENNESSEE
VS.
GEORGE MILTON BROOKS
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
H. Tod Taylor John Knox Walkup
Asst. Public Defender Attorney General and Reporter
208 N. Mill Avenue
P. O. Box 742 Clinton J. Morgan
Dyersburg, TN 38025-0742 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
C. Phillip Bivens
District Attorney General
P. O. Drawer E
Dyer County Courthouse
Dyersburg, TN 38025
Judge:HAYES
First Paragraph:
The appellant, George Milton Brooks, appeals from a judgment of
conviction entered by the Circuit Court of Dyer County. The appellant
pled guilty to one count of rape of a child, a class A felony.
Pursuant to the plea agreement, the trial court sentenced the
appellant to fifteen years incarceration in the Tennessee Department
of Correction. As a condition of his plea, the appellant reserved the
right to appeal, as a certified question of law, the trial court's
denial of (1) his motion to suppress his statement to the police and
(2) his motion seeking permission to introduce prior sexual activity
of the victim pursuant to the "rape shield law," Tenn. R. Evid. 412.
See Tenn. R. App. P. 3(b); Tenn. R. Crim. P. 37(b).
After review of the record, the appeal is dismissed.
URL:http://www.tba.org/tba_files/TCCA/brooksgm_opn.WP6
STATE OF TENNESSEE
VS.
JOHN EDWARD CLARK
WITH CONCURRING OPINION
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. McGOWN, JR. (appeal only) JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
113 N. Court Square
Waverly, TN 37185 GEORGIA BLYTHE FELNER
Counsel for the State
GEORGE MORTON GOOGE 425 Fifth Ave. N., 2d Floor
(at trial and of counsel on appeal) Nashville, TN 37243-0493
District Public Defender
STEPHEN P. SPRACHER JAMES G. (JERRY) WOODALL
(at trial and of counsel on appeal) District Attorney General
Asst. Dist. Public Defender
227 W. Baltimore St. JAMES W. THOMPSON
Jackson, TN 38301 Asst. District Atty General
P.O. Box 2825
Jackson, TN 38302
Judge:WITT
First Paragraph:
The defendant, John Edward Clark, stands convicted of attempted
aggravated robbery and vandalism following his jury trial in the
Madison County Circuit Court. He is presently incarcerated in the
Department of Correction serving the effective ten year sentence
imposed for his crimes. In this direct appeal, Clark challenges (1)
the sufficiency of the indictment charging him with attempted
aggravated robbery in that it does not identify the victim, and (2)
the length of the sentence imposed for attempted aggravated robbery.
After a review of the record, the briefs, and the applicable law, we
find the attempted aggravated robbery indictment fatally deficient,
although not for the reason advanced by the defendant. As a result,
the prosecution is a nullity, and we have no jurisdiction to consider
the second issue.
URL:http://www.tba.org/tba_files/TCCA/clarkje_opn.WP6
CONCURRING OPINION:
URL:http://www.tba.org/tba_files/TCCA/clarkje_con.WP6
STATE OF TENNESSEE
VS.
MARCUS A. TERRY
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Gerald Stanley Green John Knox Walkup
147 Jefferson Avenue Attorney General & Reporter
Suite 404 425 Fifth Avenue North
Memphis, TN 38103 Nashville, TN 37243-0493
(On Appeal)
Peter M. Coughlan
Coleman W. Garrett Assistant Attorney General
200 Jefferson Avenue 425 Fifth Avenue North
Suite 850 Nashville, TN 37243-0493
Memphis, TN 38103
(At Trial) William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
Daniel R. Woody
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
Patience R. Branham
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
Judge:LAFFERTY
First Paragraph:
The appellant, Marcus Terry, referred herein as the defendant, appeals
as of right from the judgment of the Shelby County Criminal Court as a
result of a jury verdict finding him guilty of two counts of vehicular
homicide and assessing fines of $10,000 for each offense. The trial
court imposed sentences of fifteen years, as a career offender, for
each offense to run consecutively with a number of unrelated offenses.
The defendant presents two appellate issues:
1. Whether or not the appellant's conviction must be reversed when
the evidence introduced at trial fairly raised either the defense of
duress and necessity but the state did not prove the non-applicability
of those defenses by proof beyond a reasonable doubt and only proved
the appellant's mental state of recklessness by circumstantial
evidence.
2. Whether or not the trial court abused its discretion when the
trial court refused to accept the guilty plea of the appellant during
the trial, based on reasons unrelated to the voluntariness of the
appellant's plea.
After a review of the entire evidence in this record, the briefs of
the parties, and the applicable law, we affirm the trial court's
judgments.
URL:http://www.tba.org/tba_files/TCCA/terryma_opn.WP6
STATE OF TENNESSEE
VS.
LUTHER TOOTLE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Andrew S. Johnston John Knox Walkup
108 East Court Square Attorney General & Reporter
Somerville, TN 38068
Clinton J. Morgan
Counsel for the State
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
302 Market Street
Somerville, TN 38068
Jerry Norwood
Assistant District Attorney General
Hardeman County Courthouse
Bolivar, TN 38008
Judge:WEDEMEYER
First Paragraph:
The defendant pled nolo contendre to one count of attempted child rape
and two counts of sexual battery. At the conclusion of the sentencing
hearing, the trial court sentenced the defendant to the minimum
sentence of eight years on the attempt to commit child rape conviction
and the minimum sentence of one year for each of the sexual battery
convictions and ordered the sentences to run concurrently. The
defendant was sentenced as a Standard thirty percent (30%) Range I
Offender. The trial court denied the defendant's request for
probation or alternative sentencing stating that said denial was based
on the sole factor that confinement is necessary to avoid depreciating
the seriousness of the offense. In this appeal, the defendant argues
that the trial court erred in failing to grant probation and in
ordering the defendant to serve the sentences with the Tennessee
Department of Correction. Following our review of the record, we
affirm the trial court.
URL:http://www.tba.org/tba_files/TCCA/tootle_opn.WP6
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