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July 10, 2001
Volume 7 — Number 125
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):
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New Opinion(s) from the Tennessee Supreme Court |
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New Opinion(s) from the Tennessee Supreme Court Workers' Compensation
Panel |
| 00 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme
Court |
| 01 |
New Opinion(s) from the Tennessee Court of Appeals |
| 06 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
| 00 |
New Opinion(s) from the Tennessee Attorney General (PDF format)
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| 00 |
New Judicial Ethics Opinion(s) |
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New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
LETA HOALCRAFT v. WALTER TROY SMITHSON
Court:TCA
Attorneys:
R. E. Lee Davies, Franklin, Tennessee, for the appellant, Leta
Hoalcraft.
Virginia Lee Story, Franklin, Tennessee, for the appellee, Walter Troy
Smithson.
Judge: CAIN
First Paragraph:
This Tenn. R. App. P. 10 extraordinary appeal marks the third time
this hotly contested child custody dispute has been before this court.
In the first appeal, this court reversed the trial court's decision
to ignore his predecessor's final order awarding custody of the
children to their mother and to place the children in their father's
custody. Hoalcraft v. Smithson, 19 S.W.3d 822 (Tenn. Ct. App. 1999)
("Hoalcraft v. Smithson I"). In the second appeal, this court
reversed the trial court's order requiring the mother to pay the
father child support. Hoalcraft v. Smithson, No.
M1999-00143-COA-R3-CV, 2000 WL 225583 (Tenn. Ct. App. Feb. 29, 2000)
(No Tenn. R. App. P. 11 application filed) ("Hoalcraft v. Smithson
II"). In this appeal, the mother asserts that the trial judge erred
by (1) deciding to relitigate the custody issue, (2) disqualifying
her lawyer for perceived ethical violations, and (3) refusing to
disqualify himself from further proceedings in this case. We have
determined that the father is entitled to a hearing on his motion for
change of custody limited to facts occurring after January 1999. We
have also determined that the trial court erred by disqualifying the
wife's lawyer and that the record contains evidence that provides a
reasonable basis for questioning the trial judge's impartiality.
http://www.tba.org/tba_files/TCA/hoalcraftleta.wpd
STATE OF TENNESSEE v. RUSSELL ALLEN
Court:TCCA
Attorneys:
Gary M. Howell, Columbia, Tennessee, for the appellant, Russell Allen.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Lawrence R. Nickell, Jr., Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Russell Allen, was convicted in the Maury County
Circuit Court of one count of aggravated sexual battery and was
sentenced as a Range I offender to eight years incarceration in the
Tennessee Department of Correction. On appeal, the appellant raises
the following issue for our review: whether the trial court erred in
failing to grant the appellant a new trial based upon newly discovered
evidence. Upon review of the record and the parties' briefs, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/allenr.wpd
STATE OF TENNESSEE v. LATROY W. ASKEW
Court:TCCA
Attorneys:
William C. Talman, Knoxville, Tennessee, for the appellant, Latroy W.
Askew.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Robert L. Jolley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
The defendant, Latroy W. Askew, appeals from the order of the Knox
County Criminal Court which revoked Defendant's probation and required
him to serve his sentence in the Tennessee Department of Correction.
Having reviewed the record and the briefs submitted by the parties, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/askewlw.wpd
STATE OF TENNESSEE v. TRACY BARR
Court:TCCA
Attorneys:
Floyd N. Price, Nashville, Tennessee (on appeal); and Eric L. Davis,
Franklin, Tennessee (at trial), for the Appellant, Tracy A. Barr.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Sharon Guffey, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant pled guilty without a plea agreement to theft of
property valued at more than $500.00 and to identity theft. Following
a sentencing hearing, the trial court sentenced her to concurrent
sentences of one year incarceration for the theft of property
conviction and three years incarceration for the identity theft
conviction. In this appeal as of right, the Defendant argues that the
trial court should have granted her some form of alternative
sentencing. Because we conclude that the sentence imposed is
adequately supported by the record, we affirm the judgment of the
trial court.
http://www.tba.org/tba_files/TCCA/barrta.wpd
STATE OF TENNESSEE v. LEE ROY GASS
Court:TCCA
Attorneys:
Scott A. Hodge, Morristown, Tennessee, for the appellant, Lee Roy
Gass.
Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General Pro Tempore; Gene Perrin, Assistant District Attorney General;
and Jim Goodwin, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Lee Roy Gass, was convicted by a jury in the Hamblen
County Criminal Court of one count of aggravated rape, one count of
burglary, and one count of official misconduct. The trial court
sentenced the appellant as a Range I violent offender to twenty-two
years incarceration in the Tennessee Department of Correction for the
aggravated rape conviction and as a Range I standard offender to four
years incarceration in the Department for the burglary conviction and
to two years incarceration for the official misconduct conviction.
The trial court ordered concurrent service of the appellant's
sentences, resulting in an effective sentence of twenty-two years
incarceration. In this appeal, the appellant presents the following
issues for our review: (1) whether the evidence adduced at trial is
sufficient to support his convictions; (2) whether the trial court
erred in sustaining the State's objection to testimony by a defense
witness concerning the victim's neighbor, Patricia Costner; (3)
whether newly discovered evidence warrants the reversal of the
appellant's convictions and the remand of this case for a new trial;
and (4) whether the trial court erred in sentencing the appellant.
Following a review of the record and the parties' briefs, we affirm
the judgments of the trial court in the aggravated rape and burglary
cases and affirm as modified the judgment in the official misconduct
case.
http://www.tba.org/tba_files/TCCA/gasslr.wpd
STATE OF TENNESSEE v. JEFFREY SCOTT PETTY
Court:TCCA
Attorneys:
Robert L. Marlow, Shelbyville, Tennessee, for the Appellant, Jeffrey
Scott Petty.
Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, and
Michael Randles, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Jeffrey Scott Petty, was indicted by a Bedford County
Grand Jury for one count of driving under the influence. On May 30,
2000, a jury convicted the Appellant of DUI, first offense, a class A
misdemeanor. On that same day, the trial court sentenced the
Appellant to eleven months, twenty-nine days, all suspended except for
thirty days incarceration. The trial court further ordered that the
thirty days be served periodically on weekends. On appeal, the
Appellant raises one issue for our review: Whether the trial court
properly ordered the Appellant to serve thirty days of his eleven
month, twenty-nine day sentence in periodic incarceration. Upon
review, we find no error. Thus, the judgment of the Bedford County
Circuit Court is affirmed.
http://www.tba.org/tba_files/TCCA/pettyjs.wpd
STATE OF TENNESSEE v. MITCHELL SHEPHARD
Court:TCCA
Attorneys:
Charles M. Corn, District Public Defender, Cleveland, Tennessee (at
trial); and John B. Nisbet, III, Cookeville, Tennessee (on appeal),
for the appellant, Mitchell Shephard.
Paul G. Summers, Attorney General and Reporter; Elizabeth Marney,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
Amy F. Reedy and William W. Reedy, Assistant District Attorneys
General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
A McMinn County jury convicted the defendant of first degree murder in
perpetration of aggravated child abuse and, following a sentencing
hearing, sentenced the defendant to life without the possibility of
parole. In this appeal, the defendant alleges (1) the evidence was
insufficient to sustain his conviction; (2) a juror was improperly
dismissed for cause; (3) prejudicial statements were made by a juror
during voir dire; (4) evidence of the defendant's prior criminal
conduct was improperly admitted; (5) prejudicial photographs of the
victim were improperly admitted; (6) the state improperly commented on
the defendant's failure to testify; (7) the jury was improperly
instructed concerning the definition of "knowingly;" (8) the trial
court failed to properly instruct the jury on lesser-included
offenses; (9) the trial court improperly imposed a life sentence
without the possibility of parole due to inadequate notice by the
state; (10) the jury was improperly instructed concerning the minimum
length of a life sentence; and (11) the verdict forms failed to comply
with the statutory requirements. Although we affirm the conviction,
we find that the trial court improperly instructed the jury during the
sentencing phase that the minimum length of a life sentence is
twenty-five years. Accordingly, we remand this case to the trial
court for a new sentencing hearing.
http://www.tba.org/tba_files/TCCA/shephardm.wpd
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