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
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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