Opinion Flash; 10/11/99

October 11, 1999
Volume 5 -- Number 141

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):

12 New Opinion(s) from the Tennessee Supreme Court

00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel

02 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court

09 New Opinion(s) from the Tennessee Court of Appeals

24 New Opinion(s) from the Tennessee Court of Criminal Appeals

00 New Judicial Ethics Opinion(s)

00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE VS. PAT BONDURANT CORRECTED OPINION Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: William P. Redick, Jr. Michael Moore Whites Creek, Tennessee Solicitor General (After Trial & On Appeal) Peter D. Heil Amy L. Tarkington Nashville, Tennessee Nashville, Tennessee (After Trial & On Appeal) Jerry C. Colley T. Michael Bottoms John Colley District Attorney General Colley & Colley 22nd Judicial District Columbia, Tennessee (Trial Only) James C. Sanders Assistant District Attorney General James G. White, II Assistant District Attorney General Columbia, Tennessee Judge: DROWOTA First Paragraph: In this appeal, the defendant, Pat Bondurant, was convicted of premeditated first degree murder and arson. Upon finding that the State had proven two statutory aggravating circumstances beyond a reasonable doubt and that there were no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances, the jury sentenced the defendant to death by electrocution on the conviction for first degree murder. On the arson conviction, the trial court sentenced the defendant to ten years consecutive to the death penalty. The Court of Criminal Appeals affirmed the trial court's judgment. Thereafter, the case was docketed in this Court and set for oral argument with respect to eight of the issues raised by the defendant. See Tenn. S. Ct. R. 12. http://www.tba.org/tba_files/TSC/BONDURPA_OPN.wpd
ROGER LEE DAILEY VS. E Z LOADER BOAT TRAILERS, INC., and CONTINENTAL INSURANCE COMPANY JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/daly_jo.wpd
JODY MAYNARD FALK VS. SATURN CORPORATION JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/falk_jo.wpd
TIMOTHY GENE GREEN VS. LUMBERMEN'S UNDERWRITING ALLIANCE and FLEETWOOD HOMES OF TENNESSEE, INC JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/green_jo.wpd
ALLEN DALE JARVIS VS. NISSAN MOTOR MANUFACTURING CORPORATION, U.S.A. and ROYAL INSURANCE COMPANY OF AMERICA JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/jarv_jo.wpd
RICKY MYERS VS. CARRIER CORPORATION JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/myers_jo.wpd
MONIKA PELIS VS. PRECISION PRINTING AND PACKAGING, INC. JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/pelis_jo.wpd
STATE OF TENNESSEE VS. ALBERT DEWAYNN PORTER Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: RICHARD W. DEBERRY JOHN KNOX WALKUP Camden, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General ELIZABETH B. MARNEY Assistant Attorney General Nashville, TN ROBERT RADFORD District Attorney General JOHN OVERTON Assistant District Attorney Savannah, TN Judge: HOLDER First Paragraph: We granted this appeal to determine whether the common law "procuring agent defense" has been abolished by statute. We hold that the procuring agent defense was abolished by Tenn. Code Ann. S 39-11-203(e)(2) which expressly states that "[d]efenses available under common law are hereby abolished." The trial court appropriately declined to instruct the jury on the procuring agent defense, and the defendant's conviction for selling a controlled substance was supported by the evidence. http://www.tba.org/tba_files/TSC/PORTERAD_OPN.wpd
JAMES E. RAINEY VS. MICRO CRAFT,INC., MICRO CRAFT, INC. d/b/a MICRO CRAFT TECH., FIDELITY AND CASUALTY CO. OF NEW YORK, SVERDRUP TECH., INC., and TRAVELERS INDEMNITY COMPANY OF ILLINOIS JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/rany_jo.wpd
BETTY JO REEVES VS. HENRY I. SIEGEL COMPANY, INC. UNITED STATES FIDELITY & GUARANTY CO., and ROYAL INSURANCE CO., LTD. JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/reevs_jo.wpd
SCHERING-PLOUGH HEALTHCARE PRODUCTS, INC. VS. STATE BOARD OF EQUALIZATION CORRECTED OPINION Court:TSC Attorneys: Defendant/Appellant: Plaintiff/Appellee John Knox Walkup Fred M. Ridolphi, Jr. Attorney General & Reporter Humphreys, Dunlap, Wellford, Acuff & Stanton, P.C. Memphis, Tennessee Michael E. Moore Solicitor General Michael W. Catalano Associate Solicitor General Nashville, Tennessee Judge: DROWOTA First Paragraph: This case presents for review the decision of the Court of Appeals which reversed the Chancery Court's dismissal of the petition of Schering-Plough Healthcare Products, Inc. ("Schering-Plough") which sought judicial review of a decision of the State Board of Equalization ("Board"). The Chancery Court dismissed the petition after concluding that it lacked subject matter jurisdiction over the action because Schering-Plough had failed to name Shelby County as a party in the petition and had failed to serve Shelby County with a copy of the petition within sixty days of the final decision of the Board. The Court of Appeals reversed the dismissal and held that Tenn. Code Ann. S 4-5-322(b) (1998 Repl.) does not require that all parties to the contested case be named in the petition for review or that copies of the petition be served upon all parties to the contested case within the sixty-day time limitation. We agree and now affirm the decision of the Court of Appeals. http://www.tba.org/tba_files/TSC/SCHERING_OPN.wpd
JOHN DARREN WELKER VS. BRIDGESTONE/FIRESTONE Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/welk_jo.wpd
SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/101199_wpd.wpd
IN RE: PROPOSED AMENDMENT TO RULE 21 OF SUPREME COURT RULES ORDER Court:TSC - Rules Judge: Barker First Paragraph: On January 12, 1999, the Tennessee Bar Association filed a petition in this Court seeking approval of a "Professional Practice Skills Program" of transitional legal education for new admittees to the Bar and adoption of an amendment to Rule 21 of the Supreme Court Rules authorizing the program. Because the proposed amendment raised issues of important public policy, the Court entered an order on February 1, 1999, soliciting responses to the petition from the Bar and the public. The order requested that responses be filed in the Appellate Court Clerk's office in Nashville until April 30, 1999. The Court received a number of thoughtful and constructive responses from various practicing attorneys, legal educators, and bar associations. http://www.tba.org/tba_files/TSC_Rules/rule21_ord.WPD
STEVEN COBB VS. CHARLES WILSON, et al Court:TCA Attorneys: STEVEN COBB, pro se Henning, Tennessee PAUL G. SUMMERS Attorney General and Reporter MICHAEL E. MOORE Solicitor General ELENA J. XOINIS Assistant Attorney General Civil Rights and Claims Division Nashville, Tennessee Attorneys for Appellees Attorney for Appellee Judge: HIGHERS First Paragraph: Steven Cobb appeals from the dismissal of his pro se complaint against Charles Wilson, Evelyn Scallions, and Steve Vaughn. The complaint, filed pursuant to 42 U.S.C. S 1983, alleged violations of Cobb's rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. http://www.tba.org/tba_files/TCA/COBBSTE_OPN.wpd
CATHERINE EDMUNDSON VS. JIMMY C. GRISHAM, d/b/a GERMANTOWN PEST CONTROL, GERMANTOWN TERMITE AND PEST CONTROL, INC., AND CHRISTOPHER D. ALEXANDER AND LESTER M. VANDERFORD Court:TCA Attorneys: William L. Hendricks, Jr., GLANKLER BROWN, PLLC, Memphis, Tennessee Attorney for Defendants/Appellants. Richard Glassman, James F. Horner, GLASSMAN, JETER, EDWARDS AND WADE, P.C., Memphis, Tennessee Attorneys for Plaintiff/Appellee. Judge: FARMER First Paragraph: Defendants Jimmy C. Grisham, d/b/a Germantown Pest Control, Germantown Termite and Pest Control, Inc., and Christopher D. Alexander appeal the trial court's judgment entered on a jury verdict in favor of Plaintiff/Appellee Catherine Edmundson in the amount of $50,000. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/EDMUNDSC_opn.wpd
ELECTRIC CONTROLS, ET AL. VS. PONDEROSA FIBRES OF AMERICA, ET AL. Court:TCA Attorneys: Henry C. Shelton, III, KRIVCHER MAGIDS, PLC, Memphis, Tennessee Attorney for Defendant/Appellant Vanderbilt Industrial Contracting Corporation. William M. Jeter, James F. Horner, GLASSMAN, JETER, EDWARDS AND WADE, P.C., Memphis, Tennessee Attorneys for Defendant/Cross-Plaintiff/Appellee Titan Contracting & Leasing Co., Inc. Michael G. McLaren, John H. Dotson, THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee Attorneys for Defendant/Cross-Plaintiff/Appellee Kajima International, Inc. Judge: FARMER First Paragraph: Defendant Vanderbilt Industrial Contracting Corporation (VICC) appeals the trial court's judgments which awarded attorney's fees to two of VICC's co-defendants in this lawsuit, Kajima International, Inc., and Titan Contracting and Leasing Company. We reverse the trial court's judgments based upon our conclusion that the relief awarded exceeds the scope of the relief requested by the parties' pleadings. http://www.tba.org/tba_files/TCA/ELECCON_opn.wpd
STATE OF TENNESSEE, ex rel, WILLIAM L. GIBBONS VS. SHERROD JACKSON, ROBERT WILLIAMS, NATHANIEL WILLIAMS, MIKE WILLIAMS, SHIRLEY BLALOCK and STEVEN CRAIG COOPER Court:TCA Attorneys: MICHAEL F. PLEASANTS FRIERSON M. GRAVES, JR. Memphis, Tennessee Attorneys for Appellants, Sherrod Jackson, Robert Williams, Nathaniel Williams and Shirley Blalock REX L. BRASHER, JR. BROWN, BRASHER & SMITH Memphis, Tennessee Attorney for Appellant, Steven Craig Cooper JOHN KNOX WALKUP Attorney General & Reporter MICHAEL E. MOORE Solicitor General STEVEN A. HART Special Counsel Office of the Attorney General Attorneys for Appellee, State of Tennessee Nashville, Tennessee Judge: HIGHERS First Paragraph: Sherrod Jackson, Robert Williams, Nathaniel Williams, Mike Williams, Shirley Blalock, and Steven Craig Cooper (collectively "Appellants") appeal from the Chancery Court of Shelby County, which granted a temporary injunction, enjoining the Appellants from permitting "lap dancing" and from permitting employees or independent contractors from engaging in "lewd and obscene exhibition of genitals." http://www.tba.org/tba_files/TCA/GIBBONS_OPN.wpd
SUZANNE W. GIBSON VS. JAMES E. PROKELL ORDER Court:TCA Judge: CRAWFORD First Paragraph: On August 30, 1999, the appellant, Suzanne W. Gibson, filed in this Court a Rule 10 T.R.A.P. application for extraordinary appeal and a Rule 7 T.R.A.P. motion to stay further proceedings in the trial court. Pursuant to the authority of Rule 10(d) T.R.A.P., this Court entered an Order on August 30, 1999, directing the appellee to file an answer. The appellee filed his answer on September 1, 1999. By Order entered September 2, 1999, the Court granted the appellant's Rule 10 T.R.A.P. application and stayed enforcement of the trial court's order of visitation pursuant to Rule 7 T.R.A.P. http://www.tba.org/tba_files/TCA/GIBSONSU_OPN.wpd
HAROLD GOAD VS. SHARON SIMONTON and ALLSTATE INSURANCE COMPANY Court:TCA Attorneys: KENNETH W. WARD OF KNOXVILLE FOR APPELLANT CHARLES B. SEXTON OF ONEIDA FOR APPELLEE Judge: GODDARD First Paragraph: In this case, Harold Goad sues Sharon K. Simonton, seeking damages for personal injuries received by him as a result of a vehicular accident occurring on or about July 19, 1996. Although not shown in the record, it appears from the briefs of the parties that process was issued and served upon Allstate Insurance Company, the uninsured and underinsured insurance carrier of Mr. Goad. http://www.tba.org/tba_files/TCA/goadhar_opn.WPD
MARYBETH HOGAN VS. GEORGE LAWSON YARBRO Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Joy Tanner Bomar Stephen M. Milam Memphis, Tennessee Lexington, Tennessee Judge: LILLARD First Paragraph: This is a post-divorce action. The mother filed a petition to enforce the provisions of the marital dissolution agreement. The agreement provided for payment of attorney's fees and costs for legal action to enforce the marital dissolution agreement. The trial court denied the mother's request for attorney's fees and costs. We reverse and remand. http://www.tba.org/tba_files/TCA/HOGANM_OPN.wpd
CHARLES O. MIX and wife, MARILYN V. MIX, and CHARLES ALAN MIX VS. RAY MILLER and wife, CLEAO MILLER, SANDRA MILLER SCOTT, and SHERRELL MILLER COLE Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee Attorney for Plaintiffs/Appellants. Andrew B. Frazier, Jr., Camden, Tennessee Attorney for Defendants/Appellees. Judge: FARMER First Paragraph: The Mixes and the Millers are owners of adjacent pieces of real property. In this boundary line dispute, the trial court (1) determined the boundary line that divides the parties' properties, (2) awarded damages to the Millers for certain timber that had been removed from the disputed property by the Mixes, (3) denied the parties' motions to alter, modify, or amend its judgment or, in the alternative, for a new trial, (4) denied the Millers' motion for discretionary costs, and (5) denied the Mixes' motion to re-open the proof. For the reasons set forth below, we affirm in part, reverse in part, and remand the cause for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/MIX_opn.wpd
KEVIN KATHLEEN STACEY VS. DONALD RAY STACEY Court:TCA Attorneys: Mitchell D. Moskovitz, Memphis, Tennessee Attorney for Plaintiff/Appellee. William A. Cohn, Cordova, Tennessee Attorney for Defendant/Appellant. Judge: TATUM First Paragraph: Donald Ray Stacey (Husband) appeals an order modifying the terms of the parties' final decree of divorce. After almost twenty-eight years of marriage, the parties were divorced on July 6, 1995. The final decree was subsequently amended on July 14, 1995, to require Husband to pay attorney's fees to Kevin Kathleen Stacey (Wife). Three children were born during the course of the marriage, but only one child, Zachary, was still a minor at the time of the couple's divorce. Pursuant to the Amended Final Decree of Divorce (amended final decree), Wife was granted sole custody of the minor child with Husband having reasonable visitation. Husband was ordered to pay $1,300.00 in child support per month plus the Child Support Guidelines amount of 21% of his annual bonus up to a total gross income of $9,900.00 (bonus and base salary). http://www.tba.org/tba_files/TCA/STACEY_OPN.wpd
STATE OF TENNESSEE VS. MARSH BARHAM Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL D. RASNAKE (at hearing) PAUL G. SUMMERS Assistant Public Defender Attorney General & Reporter 227 W. Baltimore St. Jackson, TN 38301 R. STEPHEN JOBE Asst. Attorney General CLIFFORD K. McGOWN (on appeal) 425 Fifth Ave. North Attorney at Law 2d Floor, Cordell Hull Bldg. P.O. Box 26 Nashville, TN 37243-0493 Waverly, TN 37185 JAMES G. (JERRY) WOODALL District Attorney General NICK NICOLA Asst. District Attorney General P.O. Box 2528 Jackson, TN 38301 Judge: WITT First Paragraph: The defendant, Marsh Barham, appeals from the revocation of his Community Corrections sentence. Barham contends that the trial court should have imposed a short period of incarceration followed by intensive probation and drug treatment, rather than requiring that he serve his entire sentence in the Department of Correction. Upon review of the record, the briefs of the parties, and the applicable law, we affirm. http://www.tba.org/tba_files/TCCA/Barhamm_wpd.wpd
STATE OF TENNESSEE VS. TIMOTHY V. BOWLING Court:TCCA Attorneys: For Appellant: For Appellee: James T. Bowman John Knox Walkup 128 E. Market St. Attorney General and Reporter Jonesborough, TN 37659 450 James Robertson Parkway Nashville, TN 37243-0493 R. Stephen Jobe Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Joe C. Crumley Assistant District Attorney General P.O. Box 38 Jonesborough, TN 37659 Judge: OGLE First Paragraph: On March 21, 1995, the appellant, Timothy V. Bowling, was convicted by a jury in the Washington County Criminal Court of arson, a class C Felony. On June 2, 1995, the trial court sentenced the appellant as a Range II multiple offender to an effective sentence of ten years incarceration in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/BOWLINGT_wpd.WPD
STATE OF TENNESSEE VS. REGINALD COBB Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JEFFREY A. DEVASHER PAUL G. SUMMERS Assistant Public Defender Attorney General & Reporter (on appeal) LUCIAN D. GEISE RICHARD TENNENT Assistant Attorney General Assistant Public Defender 425 Fifth Avenue North (at trial) Nashville, TN 37243 IVANETTA DAVIS VICTOR S. JOHNSON Assistant Public Defender District Attorney General (at trial) 1202 Stahlman Building BRET GUNN Nashville, TN 37201 Assistant District Attorney Washington Sq., Ste. 500 Nashville, TN 37201 Judge: SMITH First Paragraph: The appellant, Reginald Cobb, was charged in a seven (7) count indictment with two (2) counts of aggravated assault, one (1) count of aggravated burglary, two (2) counts of unlawful possession of a weapon and two (2) counts of felony reckless endangerment. A Davidson County jury found the appellant guilty of two (2) counts of aggravated assault, one (1) count of criminal trespass, one (1) count of unlawful possession of a weapon and two (2) counts of misdemeanor reckless endangerment. The trial court sentenced the appellant as a Range II offender to consecutive terms of seven (7) years for each aggravated assault conviction and eleven (11) months and twenty-nine (29) days for misdemeanor reckless endangerment. The trial court further imposed concurrent sentences of thirty (30) days for criminal trespass and two (2) years for felonious possession of a weapon. On appeal, the appellant claims that the trial court erred in (1) failing to sever Counts Six and Seven from the remainder of the indictment, and (2) imposing consecutive sentences. After a thorough review of the record before this Court, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/COBBREGI_wpd.wpd
STATE OF TENNESSEE VS. RONALD D. CORRELL Court:TCCA Attorneys: For Appellant: For Appellee: F.D. Gibson Paul G. Summers 116 E. Harper St. Attorney General and Reporter Maryville, TN 37804 450 James Robertson Parkway Nashville, TN 37243-0493 Ellen Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 Lisa McKenzie Assistant District Attorney General 363 Court St. Maryville, TN 37804 Judge: OGLE First Paragraph: On May 7, 1998, the appellant, Ronald D. Correll, was convicted by a jury in the Blount County Circuit Court of aggravated assault, vandalism, leaving the scene of an accident, and driving on a suspended license. The trial court imposed an effective sentence of four years incarceration in the Tennessee Department of Correction, suspending all but six months of the appellant's sentence and placing him on supervised probation for the remainder. http://www.tba.org/tba_files/TCCA/Correllrd_opn.WPD
CHARLIE W. DUNN and JOYCE WATKINS VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant Dunn: For the Appellee: Thomas F. Bloom Charles W. Burson 500 Church Street Attorney General of Tennessee Nashville, TN 37219 and Charlotte H. Rappuhn For Appellant Watkins: Assistant Attorney General of Tennessee 450 James Robertson Parkway Carlton M. Lewis Nashville, TN 37243-0493 208 Third Avenue North Nashville, TN 37201 Victor S. Johnson, III District Attorney General and William Reed Richard Fisher Assistant District Attorneys General Washington Square 222 2nd Avenue North Nashville, TN 37201-1649 Judge: TIPTON First Paragraph: The petitioners, Charlie W. Dunn and Joyce Watkins, appeal as of right from the judgment of the Davidson County Criminal Court denying them post-conviction relief. They were convicted in 1988 of first degree murder and aggravated rape, receiving concurrent sentences of life and sixty years imprisonment. The judgments of conviction were affirmed on direct appeal. State v. Charlie W. Dunn and Joyce Watkins, No. 88-241-III, Davidson County (Tenn. Crim. App. Apr. 11, 1990), app. denied (Tenn. Oct. 1, 1990). http://www.tba.org/tba_files/TCCA/DUNN&WAT_wpd.wpd
STATE OF TENNESSEE VS. JAMES TYRONE HARBISON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Reporter RICHARD HEINSMAN, JR. R. STEPHEN JOBE Assistant Public Defender Assistant Attorney General Suite 300, 701 Cherry St 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243 WILLIAM H. COX, III District Attorney General C. LELAND DAVIS Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge:WILLIAMS First Paragraph: The defendant, James Tyrone Harbison, was convicted in 1997 of aggravated assault and sentenced as a Range III persistent offender to fourteen years in the Tennessee Department of Correction. See Tenn. Code Ann. S 39- 13-102. In this appeal, the defendant presents the following issues: (1) Whether the evidence was sufficient to support the jury's finding of "serious bodily injury" as an aggravating factor of the defendant's convicted offense; (2) whether the trial court abused its discretion in permitting testimony that the defendant had been released from prison immediately preceeding the instant offense; (3) whether the trial court erred in failing to instruct the jury on reckless endangerment as a lesser offense; (4) whether the defendant's sentence is excessive; and (5) whether the trial court erred in sentencing the defendant as a Range III persistent offender. We AFFIRM the judgment from the trial court. http://www.tba.org/tba_files/TCCA/HARBSNJT_wpd.WPD
STATE OF TENNESSEE VS. LEONARD C. HARVEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN E. HERBISON PAUL G. SUMMERS 2016 Eighth Avenue South Attorney General & Reporter Nashville, TN 37204 MICHAEL J. FAHEY, II Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 MICHAEL L. FLYNN District Attorney General PHILIP H. MORTON Assistant District Attorney 363 Court Street Maryville, TN 37804-5906 Judge:WILLIAMS First Paragraph: The defendant, Leonard C. Harvey, appeals the sentence imposed by the Blount County Criminal Court pursuant to his guilty plea to three counts of delivery of a Schedule II controlled substance and one count to delivery of a counterfeit controlled substance. Two counts involved delivery of less than 0.5 of a gram of cocaine and constitute Class C felonies; one count involved delivery of more than 0.5 of a gram of cocaine, a Class B felony. The remaining count, involved delivery of a counterfeit controlled substance, a Class E felony. The defendant received an effective sentence of eight years in the Department of Correction as a Range I, standard offender, and now contends that the trial court erred in denying him probation or other alternative sentencing. We AFFIRM the sentences imposed by the trial court. http://www.tba.org/tba_files/TCCA/HARVEYLC_wpd.WPD
ROCKY HIPPS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CRAIG L. GARRETT PAUL G. SUMMERS Attorney for Appellant Attorney General & Reporter 226 E. Broadway Avenue Maryville, TN 37801 MICHAEL J. FAHEY, III Assistant Attorney General Criminal Justice Center 425 Fifth Avenue North Nashville, TN 37243 DAVID G. BALLARD District Attorney General EDWARD P. BAILEY, JR. Asst. District Attorney General 363 Court Street Maryville, TN 37804 Judge:WITT First Paragraph: The petitioner, Rocky Hipps, appeals the Blount County Circuit Court's denial of post-conviction relief. On appeal, the defendant alleges (1) that five prior convictions should be overturned because the underlying guilty pleas were defective and (2) that two other prior convictions should be overturned because trial counsel ineffectively represented the petitioner. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/HIPPSR_wpd.WPD
VICTOR V. JORDON VS. STATE OF TENNESSE Court:TCCA Attorneys: FOR THE APPELLANT: PEGGIE SHORT-BOHANNON P.O. Box 3194 Memphis, TN 38173 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter PATRICIA C. KUSSMANN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General PAULA WULFF Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, Tennessee 38103-1947 Judge:RILEY First Paragraph: Petitioner appeals the denial of his petition for post-conviction relief. Petitioner pled guilty to second degree murder. Pursuant to a plea agreement, the trial court ordered petitioner to serve a sentence of fifteen years at 85% as a Range I standard offender. Petitioner now alleges ineffective assistance of counsel and argues that the plea was not voluntarily and knowingly entered. Upon a complete review of the record, we conclude that the evidence does not preponderate against the post-conviction court's findings that counsel was effective and the plea voluntary. Thus, we AFFIRM the dismissal of the petition. http://www.tba.org/tba_files/TCCA/JORDONVV_wpd.wpd
STATE OF TENNESSEE VS. JEROME PATRICK LYONS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DONNA HARGROVE PAUL G. SUMMERS District Public Defender Attorney General & Reporter A. JACKSON DEARING, III MARK E. DAVIDSON Assistant Public Defender Asst. Attorney General P.O. Box 1119 Cordell Hull Bldg., 2nd Fl. Fayetteville, TN 37334 425 Fifth Ave., North Nashville, TN 37243-0493 GREGORY D. SMITH One Public Square, Ste 321 MIKE McCOWN Clarksville, TN 37040 District Attorney General (On Appeal Only) WEAKLEY E. BARNARD Asst. District Attorney General Marshall County Courthouse Suite 407 Lewisburg, TN 37091 Judge:PEAY First Paragraph: On October 19, 1995, the defendant was convicted by a jury of speeding and sentenced to a term of twenty days on probation. On direct appeal, this Court affirmed the defendant's conviction. On February 23, 1998, the Tennessee Supreme Court denied the defendant permission to appeal. On March 16, 1998, a probation violation warrant was filed. After an evidentiary hearing, the trial court revoked the defendant's probation. The defendant now appeals. After a review of the record and applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/LYONSJP_wpd.wpd
STATE OF TENNESSEE VS. JOHN W. McBEE, JR., alias, JOHN WARREN McBEE, alias, JOHN WARREN McBEE, JR., alias Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General & Reporter DAVID GALL TODD R. KELLEY Assistant Public Defender Assistant Attorney General 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37921 Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General ZANE M. SCARLETT Assistant District Attorney General 400 Main Street P. O. Box 1468 Knoxville, TN 37901-1468 Judge:GLENN First Paragraph: The defendant, John W. McBee, Jr., entered guilty pleas to two counts of robbery in January 1997, in the Knox County Criminal Court. In one case, the trial court sentenced the defendant to six years, with nine months to be served in confinement followed by the remainder of the sentence on probation. In the other case, the defendant received a four-year suspended sentence and ten years of probation. These sentences were ordered to be served consecutively. In February 1997, the defendant entered a guilty plea in the Knox County Criminal Court to theft and received a one-year probationary sentence to be served consecutively to the previous probationary sentences. These probationary sentences were revoked in November 1998, following the issuance of a probation violation warrant, and the defendant was ordered to serve these sentences. He filed an appeal as of right, claiming that the trial court should not have revoked his probation. Based upon our review of the record, and of applicable law, we affirm the action of the trial court. http://www.tba.org/tba_files/TCCA/MCBEEJW_wpd.WPD
RONNIE OLIVER VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Ronnie Oliver John Knox Walkup B.M.C.X. Box 2000 Attorney General and Reporter Wartburg, TN 37887 425 Fifth Avenue North Nashville, TN 37243-0493 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Judge:OGLE First Paragraph: The petitioner, Ronnie Oliver, appeals the summary dismissal of his petition for a writ of habeas corpus by the Criminal Court of Morgan County on November 6, 1997. The limited record before this court reflects that, in 1996, the petitioner was charged with and convicted of three counts of aggravated sexual battery and one count of especially aggravated sexual exploitation of a minor. The petitioner received an effective sentence of eighteen years incarceration in the Tennessee Department of Correction. He did not appeal his convictions until April 3, 1997, when he filed the instant petition for habeas corpus relief. In his petition, he asserted that the presentments underlying his convictions were fatally defective for failing to allege the applicable mental states of the charged offenses. In declining to appoint counsel or conduct an evidentiary hearing prior to dismissing the petition, the trial court cited our supreme court's decision in State v. Hill, 954 S.W.2d 725 (Tenn. 1997), and concluded that the petitioner had failed to state a cognizable ground for relief. Following a thorough review of the record, we conclude that this is an appropriate case for affirmance pursuant to Ct. of Crim. App. Rule 20. http://www.tba.org/tba_files/TCCA/OLIVERRG_wpd.WPD
ALFONZO PECK VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Reporter DONNA ROBINSON MILLER MARVIN S. BLAIR, JR. Asst District Public Defender Assistant Attorney General 701 Cherry Street, Suite 300 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243 WILLIAM COX District Attorney General 600 Market Street, Suite 300 Chattanooga, TN 37402 Judge:GLENN First Paragraph: The petitioner, Alfonzo Peck, has appealed the order of the trial court denying his motion to reopen a petition for post-conviction relief based on the claim that his 1983 indictment for aggravated rape was constitutionally defective because it did not sufficiently allege a mens rea. We affirm the trial court's denial of his petition. http://www.tba.org/tba_files/TCCA/PECKA_wpd.WPD
STATE OF TENNESSEE VS. GLEN PORTER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: C. MICHAEL ROBBINS PAUL G. SUMMERS 46 North Third Street Attorney General and Reporter Suite 719 Memphis, TN 38103 TODD R. KELLEY (On Appeal) Assistant Attorney General 425 Fifth Avenue North CHARLES M. CORN Nashville, TN 37243 District Public Defender JERRY N. ESTES THOMAS E. KIMBALL District Attorney General Assistant Public Defender Washington Avenue 110 Washington Avenue Athens, TN 37303 Athens, TN 37303 Judge:WELLES First Paragraph: This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant, Glen Porter, was indicted for the unlawful sale of more than .5 grams of cocaine and for possession with the intent to sell more than .5 grams of cocaine, in violation of Tennessee Code Annotated S 39-17-417. A McMinn County jury found the Defendant guilty of the offense of sale of more than .5 grams of schedule II cocaine, though the Judgment reflects a conviction for the sale of less than .5 grams of schedule II cocaine. The jury then found the Defendant not guilty of possession with the intent to sell more than .5 grams of cocaine, but convicted the Defendant of the lesser included offense of simple possession of cocaine. The Defendant presents three issues for review: (1) whether the evidence is sufficient to sustain the convictions; (2) whether the trial judge erred by denying the Defendant's request for a continuance; and (3) whether the trial judge erred by permitting improper argument by the prosecution. We find these issues to be without merit and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/PORTERG_wpd.WPD
GARY LEN ROLLINS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LESLIE M. JEFFRESS PAUL G. SUMMERS P. O. Box 2664 Attorney General & Reporter Knoxville, TN 37901 MICHAEL J. FAHEY, II Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 RANDALL EUGENE NICHOLS District Attorney General G. SCOTT GREEN Assistant District Attorney P. O. Box 1468 Knoxville, TN 37901-1468 Judge:WILLIAMS First Paragraph: The petitioner, Gary Len Rollins, appeals the trial court's dismissal of his petition for post-conviction relief. The petitioner contends that the trial court erred in dismissing his petition on the following grounds: (1) The indictment in his case was constitutionally defective because it did not allege a specific mens rea. (2) The petitioner received ineffective assistance of counsel at trial for counsel's failure to depose a dying defense witness and failure to move for sanctions in response to "coached" testimony. After a careful review of the record, we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ROLLINSG_wpd.WPD
STATE OF TENNESSEE VS. JIMMY A. SALYER Court:TCCA Attorneys: For Appellant: For Appellee: Gerald L. Gulley, Jr. John Knox Walkup P.O. Box 1708 Attorney General and Reporter Knoxville, TN 37901-1708 450 James Robertson Parkway Nashville, TN 37243-0493 Terry L. Jordan P.O. Box 839 R. Stephen Jobe Blountville, TN 37617 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Barry Staubus and Lisa Crockett Assistant District Attorneys General Blountville, TN 37617 Judge:OGLE First Paragraph: On November 19, 1997, the appellant, Jimmy A. Salyer, was convicted by a jury in the Sullivan County Criminal Court of attempted second degree murder, a class B Felony. On January 9, 1998, the trial court sentenced the appellant as a Range I standard offender to an effective sentence of ten years incarceration in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/SALYERJA_OPN.WPD
STATE OF TENNESSEE VS. RUTH STANFORD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARCUS M. REAVES (on appeal) PAUL G. SUMMERS Attorney at Law Attorney General & Reporter 313 E. LaFayette Jackson, TN 38301 J. ROSS DYER Asst. Attorney General HOWARD DOUGLASS (at trial) 425 Fifth Ave. North Attorney at Law 2d Floor, Cordell Hull Bldg. P.O. Box 39 Nashville, TN 37243-0493 Lexington, TN 38351 JAMES G. (JERRY) WOODALL District Attorney General BILL MARTIN Asst. District Attorney General Village Square, Ste. M 777 W. Church St. Lexington, TN 38351 Judge:WITT First Paragraph: The defendant, Ruth Stanford, stands convicted of sale of a Schedule III controlled substance and delivery of a Schedule III controlled substance. See Tenn. Code Ann. S 39-17-417 (1991) (amended 1996, 1997) (proscriptive statute); S 39-17-410 (1991) (amended 1996) (scheduled drugs). Stanford received her convictions at a jury trial in the Henderson County Circuit Court. She was sentenced to serve concurrent two-year sentences for these Class D felonies, with the first 90 days to be served in the county facility and the balance to be served on probation. http://www.tba.org/tba_files/TCCA/Stanford_wpd.wpd
Concurring Opinion: http://www.tba.org/tba_files/TCCA/stanforc_con.wpd
STATE OF TENNESSEE VS. DENNIS WADE SUTTLES Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LESLIE M. JEFFRESS PAUL G. SUMMERS 501 Clinch Ave, Third Floor Attorney General & Reporter P.O. Box 2664 Knoxville, TN 37901 MICHAEL E. MOORE Solicitor General BRANDT W. DAVIS 1707 Cove Creek Lane MICHAEL J. FAHEY II Knoxville, TN 37919-8603 Assistant District Attorney General 425 Fifth Avenue, North Cordell Hull Building, Second Floor Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General WILLIAM HARRISON CRABTREE SALLY JO HELM Asst. District Attorneys General 400 Main Street P.O. Box 1468 Knoxville, TN 37901-1468 Judge:RILEY First Paragraph: In this capital case, the defendant, Dennis Wade Suttles, was convicted by a Knox County jury of first degree murder and sentenced to death. At the sentencing hearing, the jury found two aggravating circumstances: (1) the defendant was previously convicted of one or more felonies involving the use of violence, and (2) the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. See Tenn. Code Ann. S 39-13-204(i)(2) and (5) (Supp. 1995). http://www.tba.org/tba_files/TCCA/SUTLESDW_wpd.WPD
STATE OF TENNESSEE VS. CLAYTON EUGENE TURNER, II Court:TCCA Attorneys: For Appellant For Appellee Terry C. Frye John Knox Walkup 1969 Lee Highway Attorney General and Reporter Bristol, VA 24201 425 Fifth Avenue North Nashville, TN 37243-0493 Robert Chad Newton Assistant Public Defender Todd R. Kelley P.O. Box 839 Asst Attorney General Blountville, Tennessee 37617 425 Fifth Avenue North Nashville, TN 37243-0493 Barry Staubus Asst District Attorney General P.O. Box 526 Blountville, Tennessee 37617 Teresa Murray Smith Asst District Attorney General P.O. Box 526 Blountville, Tennessee 37617 Judge:OGLE First Paragraph: On March 11, 1998, the appellant, Clayton Eugene Turner, II, was convicted in the Sullivan County Criminal Court of rape of a child, incest, and assault. The trial court imposed a sentence of twenty-five years in the Tennessee Department of Correction for the rape of a child conviction, a sentence of six years in the Department for the incest conviction, and a sentence of six months in the Sullivan County Jail for the assault conviction. The trial court ordered the appellant to serve the twenty-five year sentence consecutively to the six year sentence and concurrently with the six month sentence, resulting in an effective sentence of thirty- one years incarceration in the Department. http://www.tba.org/tba_files/TCCA/TURNERCE_wpd.WPD
STATE OF TENNESSEE VS. KELVIN LEE YOUNG, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: BILL ANDERSON, JR. PAUL G. SUMMERS 142 No Third St, 3rd Fl Attorney General and Reporter Memphis, TN 38103 J. ROSS DYER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JERRY WOODALL District Attorney General JAMES W. THOMPSON Assistant District Attorney General Lowell Thomas State Office Building Jackson, TN 38301 Judge:WELLES First Paragraph: The Defendant, Kelvin Lee Young, Jr., was tried before a jury and convicted of first degree murder. He was sentenced to imprisonment for life. He appeals as of right, arguing that the evidence presented at trial is insufficient to support his conviction. We disagree and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/youngkl_opn.wpd

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