June 28, 2001 Volume 7 — Number 118 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 04 New Opinion(s) from the Tennessee Court of Appeals 21 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink ELIZABETH ANN HUNTER CATES v. HERBERT RAY CATES Court:TCA Attorneys: J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Herbert Ray Cates. Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee, Elizabeth Ann Hunter Cates. Judge: LILLARD First Paragraph: This is a divorce dispute. Prior to divorce, the wife left the marital home, taking some of the parties' joint cash savings. On the day of the divorce hearing, the husband stipulated as to his inappropriate marital conduct, and the divorce was granted to the wife on that ground. The wife was awarded approximately 51% of the marital estate, rehabilitative alimony, and attorney's fees. The trial court excluded from its division of marital property the money the wife took when she moved out. The husband appeals. We affirm. http://www.tba.org/tba_files/TCA/cateseah.wpd BERTA MARGARITA DE LOS RIOS LEE v. DANIEL MARK LEE Court:TCA Attorneys: Daniel Mark Lee, Pro Se Lee Ann Pafford Dobson, Germantown, For Appellee, Berta Margarita De Los Rios Lee Paul G. Summers, Attorney General and Reporter, Pamela A. Hayden-Wood, Assistant Attorney General, Nashville, For the Intervenor, State of Tennessee Judge: CRAWFORD First Paragraph: This is a divorce case in which wife/mother was awarded custody of the parties' only minor son. Husband/father, acting pro se, appeals the trial court's decision with regard to the award of custody, the division of a retirement account, and attorney fees. We affirm. http://www.tba.org/tba_files/TCA/leeberta.wpd DENISE LAFORCE LEACH v. JACK GERALD LEACH Court:TCA Attorneys: Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellant Jack Gerald Leach. S. Denise McCrary and Stephanie M. Micheel, Memphis, Tennessee, for the appellee Denise LaForce Leach. Judge: LILLARD First Paragraph: This is a post-divorce dispute over the mother's desire to relocate with the parties' two minor children. The mother sought to relocate after receiving a job offer in South Carolina, contending that the move was for career advancement. The father opposed the relocation, arguing that the real reason for the move was vindictive or to interfere with his visitation rights. The father also sought to reduce child support. The trial court found that the reasonable purpose for the mother's move was career advancement and allowed relocation. It ordered the father to pay a portion of the children's travel expenses, denied the petition to reduce child support, and ordered the father to pay a portion of the mother's attorney's fees. The father now appeals. We affirm in part and modify in part. http://www.tba.org/tba_files/TCA/leachdl.wpd BILLY D. MCKINNIE v. CORRECTIONS CORPORATION OF AMERICA, et al. Court:TCA Attorneys: Billy D. McKinnie, Pro se. Tom Anderson, Jackson, Tennessee, for the appellees, Corrections Corporation of America, Percy Pitzer, Charles Howard and Robert Adams. Judge: FARMER First Paragraph: Inmate brought action against defendants pursuant to 42 U.S.C. S 1983, alleging violations of his First Amendment right to access to the courts, his Fourth Amendment right to freedom from unreasonable searches and seizures, violations of Article I, sections 7 and 32 of the Constitution of Tennessee, as well as state law claims for intentional infliction of emotional distress, harassment, battery, and breach of contract. Defendants filed a Tennessee Rules of Civil Procedure Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. The trial court granted the motion to dismiss. We affirm. http://www.tba.org/tba_files/TCA/mcKinniebillyd.wpd JERRY ANDERSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Jerry Anderson, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Petitioner appeals the denial by the trial court of his writ of habeas corpus and writ of certiorari. Petitioner contended in his petition that he previously pled guilty in the Criminal Court of Madison County to the offenses of facilitation of first degree murder, conspiracy to commit especially aggravated robbery, and arson, and received an effective sentence of 60 years. He further contended that court did not have jurisdiction to try him as an adult; his rights to double jeopardy were violated as a result of his transfer to the Criminal Court; and he received ineffective assistance of trial counsel. On appeal, he claims the trial court erred in dismissing his petition without appointing counsel, without conducting a hearing, and by failing to make findings of fact and conclusions of law. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/andersonj.wpd STATE OF TENNESSEE v. ORLANDO CRAYTON Court:TCCA Attorneys: David W. Camp, Jackson, Tennessee, for the appellant, Orlando Crayton. Paul G. Summers, Attorney General & Reporter; Laura E. McMullen, Assistant Attorney General; Clayburn Peeples, District Attorney General; and Theodore Neumann, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Orlando Crayton, was convicted of aggravated assault, reckless endangerment, unlawful carrying or possession of a weapon, and two counts of vandalism under $500.00. The trial court sentenced the defendant to 11 months, 29 days for each vandalism count, six years for aggravated assault, two years for reckless endangerment and 11 months, 29 days for unlawful possession of a weapon. Because the sentences were ordered to be served concurrently, the effective sentence is six years. In this appeal of right, the defendant challenges (1) the admissibility of evidence indicating the defendant's gang affiliation; (2) the admission of an estimate regarding the damage to a vehicle; and (3) the admission of a hearsay statement. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/craytono.wpd STATE OF TENNESSEE v. MICHAEL P. HEALY Court:TCCA Attorneys: W. Mark Ward, Assistant Public Defender, Memphis, Tennessee, for appellant, Michael P. Healy. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General, Nashville, Tennessee; William L. Gibbons, District Attorney General; Dan Byer, Assistant District Attorney; Memphis, Tennessee, for appellee, State of Tennessee. Judge: SMITH First Paragraph: On November 24, 1998, the Shelby County Grand Jury indicted the Defendant for one count of aggravated robbery and one count of aggravated assault. Following a subsequent jury trial, the Defendant was convicted on both counts. On September 30, 1998, after a sentencing hearing, the trial court sentenced the Defendant as a career offender to serve thirty years incarceration for the aggravated robbery consecutively to fifteen years for the aggravated assault. The court also ordered both sentences served consecutively to a sentence for which the Defendant was on parole. On appeal, the Defendant claims that the trial court should have instructed the jury to consider robbery and theft as lesser-included offenses of aggravated robbery and that the trial court should have instructed the jury to consider reckless endangerment, reckless aggravated assault and simple assault as lesser-included offenses of aggravated assault. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/healymichael.wpd STATE OF TENNESSEE v. JESSIE NELSON HODGES Court:TCCA Attorneys: Jessie Nelson Hodges, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: After a jury trial, Defendant was convicted of theft of property less than $500. He was subsequently sentenced to eleven (11) months and twenty-nine (29) days in the Lauderdale County jail. In this pro se appeal, Defendant argues that the State failed to provide him with discoverable material or information under Rule 16 of Tenn. R. Crim. P. After a review of the record, briefs of the parties and applicable law, we conclude that the State complied with the mandates of Rule 16. Thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hodgesjn.wpd STATE OF TENNESSEE v. FRANK JOHNSON Court:TCCA Attorneys: Jeffrey Jones, Memphis, Tennessee, for the appellant, Frank Johnson. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; James Lammey, Assistant District Attorney General; and Steven Hall, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was indicted by a Shelby County Grand Jury for driving while an habitual motor vehicle offender, felony evading arrest, and driving under the influence of an intoxicant, fourth offense (felony DUI), all charges arising from a single incident. The defendant pled guilty to driving while an habitual motor vehicle offender, a Class E felony, with punishment reserved until after trial of the other offenses. Following a jury trial, the defendant was found guilty of felony evading arrest, a Class E felony, not guilty of felony DUI, and sentenced to consecutive, six-year terms as a career offender for driving while an habitual motor vehicle offender and for felony evading arrest, resulting in an effective sentence of twelve years. The trial court also assessed fines of $2000 on each conviction. In this appeal as of right, the defendant argues that the evidence was insufficient as to the felony evading arrest conviction, that the jury should have been instructed as to lesser-included offenses, and that the sentences should not be served consecutively. Based upon our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/johnsonf.wpd JERRY L. LUSTER v. J. LARRY CRAVEN, JR. Court:TCCA Attorneys: Jerry L. Luster, Pro Se. Paul G. Summers, Attorney General, Elizabeth T. Ryan, Assistant Attorney General, James G. (Jerry) Woodall, District Attorney General, and Alfred L. Earls, Assistant District Attorney. Judge: CLARK First Paragraph: The petitioner, Jerry L. Luster, appeals pro se the summary dismissal of his petition for writ of habeas corpus. Because the petition was filed in the wrong county, we affirm the trial court's dismissal of the request for habeas corpus relief. http://www.tba.org/tba_files/TCCA/lusterj.wpd STATE OF TENNESSEE v. WILLIAM MAKRANSKY Court:TCCA Attorneys: James F. Logan, Jr., Cleveland, Tennessee, for the appellant, William Makransky. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Mark A. Fulks, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Joseph V. Hoffer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, William Makransky, appeals his convictions for aggravated sexual battery, sexual battery, and two counts of contributing to the delinquency of a minor. He contends that he received the ineffective assistance of counsel at trial and that the trial court applied the incorrect standard for the prejudice prong in denying him relief on this issue in his motion for a new trial. Although we determine that the trial court did apply the incorrect standard for prejudice, our de novo review reveals that the defendant's trial attorney was not ineffective. Because of an error in the judgments, the sentences for contributing to the delinquency of a minor are modified. http://www.tba.org/tba_files/TCCA/makranskyw.wpd STATE OF TENNESSEE v. JENNIFER GALE MCCLURE Court:TCCA Attorneys: David M. Livingston, Brownsville, Tennessee, for the appellee, Jennifer Gale McClure. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and Clayburn L. Peeples, District Attorney General, for the appellant, State of Tennessee. Judge: WELLES First Paragraph: This is an appeal by permission pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Defendant, Jennifer McClure, was indicted by the Haywood County Grand Jury for various charges arising out of the seizure and subsequent search of the commercial motor carrier in which she and her husband were traveling. The trial court suppressed the evidence obtained as a result of that seizure and search, ruling that the seizure of the motor carrier was unconstitutional. The State then filed a motion for an interlocutory appeal, which was granted by the trial court. This Court likewise granted the State's application for permission to appeal. On appeal, the State asserts: (1) that the trial court abused its discretion by refusing the State's request to either reopen the proof or be allowed to file with the court the rules and regulations governing Department of Safety inspections; and (2) that if these rules and regulations are considered, the trial court erred by granting the Defendant's motion to suppress. We conclude that the trial court did not abuse its discretion by refusing the State's request to reopen the proof or to file the applicable rules and regulations because the trial court did permit the State to file with the court the rules and regulations regarding Department of Safety inspections. In addition, we hold that the trial court did not err by granting the motion to suppress because the seizure of the Defendant's commercial motor carrier was conducted in violation of the Fourth Amendment's protections against unreasonable searches and seizures. http://www.tba.org/tba_files/TCCA/mcclurejg.wpd STATE OF TENNESSEE v. ERIC PHILLIPS Court:TCCA Attorneys: A C Wharton, Jr., District Public Defender, and Garland Ergueden, Assistant Public Defender, for the appellant, Eric Phillips. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Thomas Hoover, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals and asserts that the evidence was insufficient to support his conviction for first degree premeditated murder. After review, we hold that the evidence is sufficient; therefore, we affirm the defendant's conviction. http://www.tba.org/tba_files/TCCA/phillipse.wpd STATE OF TENNESSEE v. JOYCE ANN RICE Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District Public Defender; and Vanessa D. King, Assistant District Public Defender, Jackson, Tennessee (at trial and on appeal), for the appellant, Joyce Ann Rice. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, a construction company payroll clerk, was convicted of fourteen counts of forgery, Class E felonies, and one count of theft of property over $1000, a Class D felony, for utilizing her position at the company to write and cash invalid checks on her employer's account. She was sentenced as a Range II, multiple offender to three years on each forgery conviction, and six years on the theft conviction, to be served concurrently for an effective sentence of six years. In this appeal as of right, the defendant argues that the trial court erred in allowing evidence of her prior crimes to be admitted at trial, and that the evidence was not sufficient to support her convictions. After a careful review, we conclude that the trial court did not err in allowing the State to impeach the defendant's credibility by questioning her about her prior convictions, and that the evidence was sufficient to support the jury's verdict. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/riceja.wpd STATE OF TENNESSEE v. MARCIA C. ROBINSON and SAMMY CLAUDE WILSON Court:TCCA Attorneys: J. Colin Morris, Jackson, Tennessee, for the appellants, Marcia C. Robinson and Sammy Claude Wilson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and Jody S. Pickens, Assistant District Attorney, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: After a jury trial, Defendants were convicted of one count of attempt to manufacture methamphetamine and two counts of possession of methamphetamine. The trial court sentenced each Defendant to three (3) years in the Department of Correction for attempt to manufacture methamphetamine and eleven (11) months and twenty-nine (29) days for possession of methamphetamine. In this appeal as of right, Defendants assert that the trial court erred as to whether Defendant, Sammy Wilson, gave Investigator Markin consent to search his truck. From our review of the transcript of the motion to suppress, the trial record, briefs of the parties and applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/robinsonmc.wpd STATE OF TENNESSEE v. MARIO ROGERS Court:TCCA Attorneys: Jeffery S. Glatstein, Memphis, Tennessee, for the Appellant, Mario Rogers. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: In 1999, a Shelby County jury found the Defendant guilty of aggravated robbery, and the trial court sentenced him as a Range I, standard offender to eight years incarceration. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the evidence presented at trial was sufficient to support his conviction; (2) whether the trial court erred by admitting into evidence the gun alleged to have been used in the robbery; (3) whether the trial court erred by allowing testimony by the victim concerning the death of the victim's mother; (4) whether the trial court improperly instructed the jury; and (5) whether the cumulative effect of errors at trial warrants a new trial. Having reviewed the record, we find no error and accordingly affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/rogersm.wpd WILLIAM SINGLETON v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael G. Hatmaker, Jacksboro, Tennessee, for appellant, William Singleton. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney, for appellee State of Tennessee. Judge: SMITH First Paragraph: On December 16, 1993, William Singleton, the Defendant and Appellant, was convicted by a Claiborne County jury of first-degree murder. This Court affirmed the Defendant's conviction following direct appeal. Subsequently, the Defendant filed a petition for post-conviction relief alleging, inter alia that he was denied the effective assistance of counsel at trial. Following a hearing, the trial court dismissed the petition. The Defendant appeals here, arguing that the trial court erroneously dismissed the petition. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/singletonwill.wpd STATE OF TENNESSEE v. RUSSELL SNIDER Court:TCCA Attorneys: Ronald Lucchesi, Memphis, Tennessee, for the Appellant, Russell Snider. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and James Powell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Russell Snider, was convicted by a jury of third offense driving under the influence (DUI). He was sentenced to eleven months, twenty-nine days, with four months and twenty-nine days suspended. In this appeal as of right, the Defendant asserts (1) that he was prejudiced by the video recording of his performance of field sobriety tests because the video recording depicts an unqualified officer performing the horizontal gaze nystagmus test and (2) that the DUI sentencing statute is void for vagueness because it fails to give a person of ordinary intelligence fair notice that his or her conduct is forbidden by the statute. We hold that the Defendant was not prejudiced by the admission of the video and that the DUI sentencing statute is not void for vagueness. Therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/sniderr.wpd STATE OF TENNESSEE v. THOMAS J. TACKETT Court:TCCA Attorneys: Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Clement Dale Potter, District Attorney General, for the Appellee, State of Tennessee. John B. Nisbet, III (on appeal), Dan Bryant (at trial), for the Appellant, Thomas Tackett. Judge: WITT First Paragraph: Thomas J. Tackett appeals from his Warren County especially aggravated robbery conviction, for which he received a 25-year incarcerative sentence. He urges us to find error based upon insufficiency of the convicting evidence, admission of certain evidence at trial, jury instructions not given, and sentencing. Although there is no merit in the issues advanced by the defendant, we notice as plain error that the defendant's conviction is for a greater crime than that which is charged in the indictment. We therefore modify his especially aggravated robbery conviction to aggravated robbery and remand for sentencing for that crime. http://www.tba.org/tba_files/TCCA/tacketttj.wpd STATE OF TENNESSEE v. REGINALD D. TERRY Court:TCCA Attorneys: W. Mark Ward, Assistant Public Defender (on appeal); Timothy J. Albers, Assistant Public Defender; and William Yonkowski, Assistant Public Defender, Memphis, Tennessee, for the appellant, Reginald D. Terry. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Julie Mosley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted by a Shelby County jury of attempted aggravated burglary. The Defendant was sentenced as a Range I, standard offender to three years incarceration. The Defendant now appeals, arguing that (1) in spite of his untimely motion for a new trial, this Court should consider each issue he has presented on appeal, (2) there was insufficient evidence to support a conviction against the Defendant for attempted aggravated burglary, (3) the trial court erred in refusing to instruct the jury on the lesser-included offenses of aggravated criminal trespass and criminal trespass, (4) the trial court made an improper comment on the evidence in violation of the Tennessee Constitution, and (5) the trial court erred in allowing in rebuttal proof of other crimes committed by the Defendant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/terryrd.wpd STATE OF TENNESSEE v. ERIC D. THOMAS Court:TCCA Attorneys: Eric Thomas, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Eric D. Thomas, pled guilty to four counts of robbery and was sentenced to six years for each conviction. The sentences were ordered to run consecutively, which ruling the Defendant now appeals. The judgment of the trial court ordering the Defendant's sentences to run consecutively is reversed, and this matter is remanded for resentencing on the issue of consecutive sentences. http://www.tba.org/tba_files/TCCA/thomased.wpd STATE OF TENNESSEE v. CHRISTOPHER MICHAEL VIGIL Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); David F. Bautista, District Public Defender; and Jeffery Craig Kelly, Assistant Public Defender, for the appellant, Christopher Michael Vigil. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals two convictions for stalking, contesting the sufficiency of the evidence and the admissibility of photographs. We affirm one of the defendant's convictions for stalking, but we vacate the judgment of conviction for the other because the evidence reflects the existence of only one stalking offense. http://www.tba.org/tba_files/TCCA/vigilcm.wpd STATE OF TENNESSEE v. BOBBY WELLS, JR. Court:TCCA Attorneys: Charles M. Corn, Public Defender, Cleveland, Tennessee, for appellant, Bobby Wells Jr. Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General; Jerry N. Estes, District Attorney General; Shari Tayloe, Assistant Attorney General; for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Monroe County jury convicted the defendant of the sale of .5 grams or more of cocaine and of a separate offense involving the sale of less than .5 grams of cocaine. For these crimes the trial court sentenced him to nine years and four years respectively as a Range I, standard offender. These sentences were ordered to run concurrently with one another. Furthermore, the jury assessed the defendant a fifteen thousand dollar fine on each conviction. At a subsequent hearing the trial court denied his new trial motion and revoked his probation from previous offenses. Appealing these decisions, the defendant raises the following six issues: 1) whether the trial court erred by permitting the State to introduce transcripts of taped conversations allegedly transpiring between the defendant and informant when such transcripts were admitted through a police officer who neither heard nor electronically monitored the involved conversations; 2) whether the trial court erred by permitting the prosecution to play and introduce the aforementioned tapes through the same officer; 3) whether the State failed to prove chain of custody because it neither called the lab technician who placed the evidence in the vault at the crime laboratory nor complied with Tennessee Rule of Evidence 803(6); 4) whether the trial court erred in refusing to grant the defendant a new trial based on newly discovered evidence involving the informant's motive for testifying against the defendant; 5) whether sufficient evidence existed to support the conviction; and 6) whether the defendant's probation revocation should stand when such was based upon the above-outlined new convictions and not the defendant's failure to report as was alleged in the probation violation warrant and when the convictions forming the basis for the revocation are allegedly not supported by sufficient evidence. After a review of the record, we find these claims to lack merit and, therefore, affirm the lower court's actions. http://www.tba.org/tba_files/TCCA/wellsbobby.wpd STATE OF TENNESSEE v. JOSHUA LEE WILLIAMS and MAURICE MIGUEL TEAGUE Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender, and W. Jeffery Fagan, Assistant District Public Defender, for the appellant, Joshua Lee Williams. Barton F. Robison, Paris, Tennessee, for the appellant, Maurice Miguel Teague. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendants, Joshua Lee Williams and Maurice Miguel Teague, encountered each other on the street where Teague produced a pistol and attempted to shoot Williams. When the gun did not fire, Williams knocked it from Teague's hands, picked it up, and fired in turn at Teague, in the process fatally wounding a neighborhood resident. Williams was indicted for first degree murder for the shooting death of the deceased, and criminal attempt to commit first degree murder of Teague, who was indicted for criminal attempt to commit first degree murder of Williams. At the conclusion of their joint trial, Williams was found guilty of second degree murder and criminal attempt to commit second degree murder, and Teague guilty of criminal attempt to commit second degree murder. Williams received an effective sentence of twenty years at 100% as a violent offender. Teague was sentenced as a standard, Range I offender to ten years. Teague raises essentially three issues on appeal: (1) sufficiency of the evidence; (2) not instructing the jury on aggravated assault as a lesser- included offense; and (3) the propriety of his sentence. Williams challenges the sufficiency of the evidence in support of his conviction for second degree murder. After a careful review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/williamsjl.wpd STATE OF TENNESSEE v. KELVIN WILSON Court:TCCA Attorneys: Richard G. Rosser, Somerville, Tennessee, for the Appellant, Kelvin Wilson. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Colin A. Campbell, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: First Paragraph: The Petitioner was convicted of aggravated kidnapping and sentenced to ten years incarceration. Following direct appeal to this Court, which affirmed the Petitioner's conviction and sentence, and to the Tennessee Supreme Court, which denied permission to appeal, the Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. The post-conviction court conducted a hearing and denied relief. The Petitioner now appeals the post- conviction court's decision. Having reviewed the record, we conclude that the Petitioner's representation at trial was adequate and therefore affirm the post-conviction court's denial of post- conviction relief. http://www.tba.org/tba_files/TCCA/wilsonk.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2001 Tennessee Bar Association