Marech 29, 2001 Volume 7 — Number 058 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. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 10 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink STATE OF TENNESSEE v. ANTHONY E. COLLIER Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Victor S. Johnson, District Attorney General and Pam Anderson, Assistant District Attorney, Nashville, Tennessee, for the appellant, State of Tennessee. Sam E. Wallace,Jr., Nashville, Tennessee, for the appellee, Anthony E. Collier. Judge: SMITH First Paragraph: On March 31, 1998, Metropolitan Nashville Police Officers executed a search warrant on the residence and person of Anthony E. Collier, the defendant and appellee. Police searched the defendant, his vehicle and his residence and seized drugs, drug paraphernalia and weapons. The defendant moved to suppress the evidence, and, following a suppression hearing, the trial court granted the defendant's motion. On appeal, the State claims that the trial court erred. We hold that the search of the defendant was not supported by probable cause and any evidence seized from the defendant's person was thus properly suppressed. However, we also find that the failure of the trial court to make findings of fact with respect to the question of whether the contraband was in plain view and thus subject to seizure requires us to remand this case for entry of such findings pursuant to Tenn. R. Crim. P. 12(e). Finally, the search of the defendant's residence was supported by the warrant; thus any evidence seized from the defendant's vehicle or residence should not have been suppressed. Accordingly, we reverse in part and affirm in part the judgment of the trial court, and we remand the case to the trial court for further proceedings in accordance with this opinion. http://www.tba.org/tba_files/TCCA/collieranthony.wpd RAY CHARLES GASAWAY v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Ray Charles Gasaway. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Ray Charles Gasaway, filed a Petition for Post-Conviction Relief in the Davidson County Criminal Court, which the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issue: whether the trial court erred in ruling that the Petitioner was provided effective assistance of counsel. Specifically, Petitioner argues that his trial counsel failed to investigate, failed to raise the fatal variance between the indictment and the proof at trial and failed to raise as an issue the violation of Petitioner's right to due process because of the delay between the commission of the crimes and commencement of adversarial proceedings. After a thorough review of the record, we affirm the trial court's denial of the Petitioner's post-conviction petition. http://www.tba.org/tba_files/TCCA/gasawayrc.wpd STATE OF TENNESSEE v. DEBORAH GRAHAM & DENICE SMITH Court:TCCA Attorneys: R.B. Baird, III, Rogersville, Tennessee, for the appellant, Deborah Graham; and Denise Terry Stapleton, Morristown, Tennessee, for the appellant, Denice Smith. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Al Schmutzer, District Attorney; W. Brownlow Marsh, Assistant District Attorney; and James B. Dunn, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: After a jury trial, a Cocke County jury found the Defendants, Deborah Graham and Denice Smith, guilty of the first degree murder of Aaron Smith. Following a sentencing hearing, the trial court sentenced both Defendants to life imprisonment with the possibility of parole. In this appeal as of right, the Defendants raise the following issues: 1) whether the trial court erred in not dismissing the indictments because of the State's failure to provide the Defendants with a speedy trial; 2) whether the trial court erred by allowing the State to decide not to consolidate Alexandro Rivera's case with the Defendants' case, because of a potential Bruton problem, without first granting the Defendants an opportunity to be heard on the issue; 3) whether the trial court erred in failing to sever Defendant Smith's case from Defendant Graham's case; 4) whether the trial court erred in consolidating Defendant Graham's case with Defendant Smith's case; and 5) whether the evidence was sufficient to convict each of the Defendants of first degree murder. After a thorough review of the evidence and the applicable law, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/grahamd.wpd STATE OF TENNESSEE v. DONALD JOHNSON, JR. Court:TCCA Attorneys: A. C. Wharton, Jr., Public Defender; W. Mark Ward (on appeal), Phyllis L. Aluko (at trial), and Michael J. Johnson (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Donald Johnson, Jr. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; Charles W. Bell, Jr. and Rosemary Andrews, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant was convicted by a Shelby County jury of felony murder and received a life sentence. In this appeal, defendant alleges: (1) the trial court erred in failing to suppress both his oral and written statements given to authorities; and (2) the state improperly exercised its peremptory challenges based upon race and gender. Upon our review, we are unable to resolve the suppression issue due to inadequate findings of fact and, therefore, remand for further findings regarding the oral and written statements. We conclude the trial court correctly ruled that there were legitimate race and gender-neutral reasons for the peremptory challenges. The judgment of the trial court is vacated, and the case is remanded for further findings and/or proceedings. http://www.tba.org/tba_files/TCCA/johnsond2.wpd STATE OF TENNESSEE v. TIMOTHY MCKINNEY Court:TCCA Attorneys: William Gosnell, Memphis, TN (Trial & Appeal);William D. Massey, Memphis, TN (Appeal), for the Appellant, Timothy McKinney. Michael E. Moore, Solicitor General; Kathy Morante, Deputy Attorney General; William L. Gibbons, District Attorney General; Phillip Gerald Harris and David Henry, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: We affirm the defendant's convictions of first degree murder and attempted second degree murder and the death sentence imposed on the murder charge, despite the defendant's claims that: (1) the trial court erroneously disallowed expert testimony on the reliability of eyewitness identification; (2) the jury's capital sentencing verdict was infirm; (3) the trial court erroneously allowed the impeachment of a defense character witness during the penalty phase of the trial; (4) the trial court erred in allowing victim impact evidence that related to the impact of the victim's death on persons or institutions other than the victim's family; (5) the trial court erroneously limited the defendant's argument to the jury during the penalty phase; (6) cumulative errors require reversal of the death sentence; (7) the Tennessee death penalty statute is, for various reasons, unconstitutional. We find no error and hold that the death penalty in this case was proportionate to the death penalty imposed in similar cases, the sentence was not arbitrarily imposed, and the evidence supports the jury's finding of a statutory aggravating circumstance and its finding that the aggravating circumstance outweighs any mitigating circumstances. See Tenn. Code Ann. S 39-13-206(c)(1) (1997). http://www.tba.org/tba_files/TCCA/mckinneytjw.wpd ROBERT M. SNEED v. STATE OF TENNESSEE Court:TCCA Attorneys: Murray C. Groseclose, III, Kingsport, Tennessee, for the appellant, Robert M. Sneed. Paul G. Summers, Attorney General and Reporter; Patricia C. Kusmann, Assistant Attorney General; Greeley Wells, District Attorney General; and James F. Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted of DUI, second offense, and driving on a revoked license, second offense. His convictions were affirmed on direct appeal, and he subsequently filed for post- conviction relief, which was denied. In this appeal, the Defendant contends that the post-conviction court erred in denying his request for post-conviction relief, arguing that he was denied the effective assistance of counsel at trial; that he was denied a fair trial because the trial judge refused to recuse himself; and that the post-conviction court erred in refusing to admit certain evidence. We affirm the denial of the Defendant's request for post-conviction relief. http://www.tba.org/tba_files/TCCA/sneedrm.wpd STATE OF TENNESSEE v. NORMAN B. THOMPSON Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; Paula R. Voss, Assistant Public Defender, Knoxville, Tennessee, for the appellant, Norman B. Thompson. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Norman B. Thompson, appeals as of right from the revocation of his probation. We find no abuse of discretion in the revocation; thus, we affirm the judgment of the trial court revoking the Defendant's probation. http://www.tba.org/tba_files/TCCA/thompsonnb.wpd TYRONE V. TURNER v. STATE OF TENNESSEE Court:TCCA Attorneys: Lance H. Selva, Murfreesboro, Tennessee, for the appellant, Tyrone V. Turner. Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; and Paul A. Holcombe III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Tyrone V. Turner, appeals the trial court's denial of post-conviction relief. The issue presented for review is whether the petitioner was denied the effective assistance of counsel on direct appeal. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/turnertv.wpd MATHIS T. VAUGHN v. STATE OF TENNESSEE Court:TCCA Attorneys: Carrie W. Kersh, Clarksville, Tennessee, for the appellant, Mathis T. Vaughn. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Mathis T. Vaughn, filed a Petition for Post-Conviction Relief in the Montgomery County Circuit Court, which the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issue: whether the trial court erred in dismissing his Petition for Post-Conviction Relief, based upon a ruling that Petitioner's allegations of ineffective assistance of counsel were without merit. After a thorough review of the record, we affirm the trial court's denial of the Petitioner's Petition for Post-Conviction Relief. http://www.tba.org/tba_files/TCCA/vaughnmt.wpd STATE OF TENNESSEE v. DANIELLE L. WALKER Court:TCCA Attorneys: Mack Garner, Maryville, Tennessee, and Julie A. Rice, Knoxville, Tennessee, for the appellant, Danielle L.Walker. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Counsel for the State, Mike Flynn, District Attorney General, Kirk Andrews and Edward P. Bailey, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Danielle L. Walker, pled guilty in the Blount County Circuit Court to one count of theft of property over $1000, a class D felony. The trial court sentenced the appellant as a standard Range I offender to two years incarceration in the Tennessee Department of Correction. The trial court ordered the appellant to serve twenty days of her sentence in periodic confinement and to serve the balance of her sentence on supervised probation. The trial court also ordered the appellant to make restitution to the victim in the amount of $2,928.56. On appeal, the appellant raises the following issues for our review: (1) whether the trial court erred by refusing to grant the appellant judicial diversion; and (2) whether the trial court erred by refusing to grant the appellant full probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/walkerd.wpd PLEASE FORWARD THIS E-MAIL! 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