Opinion Flash; 08/14/2001

August 14, 2001
Volume 7 — Number148

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

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

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

05 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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

J. HOWARD GREGG v. JACK JOHNSON Court:TCA Attorneys: Ashley L. Ownby, Cleveland, Tennessee, for the Appellant, Jack Johnson. Roger E. Jenne, Cleveland, Tennessee, for the Appellee, J. Howard Gregg. Judge: SWINEY First Paragraph: J. Howard Gregg ("Plaintiff"), sued his former business partner, Jack Johnson ("Defendant"), essentially alleging that Defendant breached an agreement to pay a debt originally incurred by their former partnership, Jack Johnson Motors. Plaintiff also alleged that Defendant owed him money as part of their partnership ("Partnership") dissolution agreement. Neither the Partnership agreement nor the dissolution agreement was written. Defendant raises as defenses the statute of limitations and the Statute of Frauds. The Trial Court held in favor of Plaintiff. Defendant appeals. We affirm. http://www.tba.org/tba_files/TCA/greggjhoward.wpd
PATSY HILL OAKLEY v. JAMES SPENCER OAKLEY Court:TCA Attorneys: David E. Caywood and Cynthia L. McLendon, Memphis, Tennessee, for the appellant, James Spencer Oakley. James O. Parker and Sam Blaiss, Memphis, Tennessee, for the appellee, Patsy Hill Oakley. Judge: FARMER First Paragraph: This appeal arises from a divorce action. Husband and Wife divorced after 22 years of marriage. Both had received property by bequest during the marriage. Husband had received stocks and securities, real property, and Company, which he owned and operated. Wife received property which she subsequently sold. The proceeds of these sales were deposited in a separate investment account after first passing through a marital checking account and were later used to buy Condo. The trial court specifically found that Wife had not substantially contributed to appreciation of stocks and securities, but awarded her 25% of their appreciation. The appreciation of Husband's real property was found to be marital property, as well as the entire value of Company. Wife's Condo was found to be separate property. We affirm in part, reverse in part, modify and remand. http://www.tba.org/tba_files/TCA/oakleypatsyhill.wpd
RAYMOND G. PRINCE, P.C. v. MANFRED POLK Court:TCA Attorneys: Manfred Polk, Brentwood, Tennessee, Pro Se. Raymond G. Prince, Nashville, Tennessee, Pro Se. Judge: CAIN First Paragraph: This matter originated from a default judgment granted in general sessions court against Appellant/Defendant, Manfred Polk, for payment of attorney's fees. Appellant filed a Rule 60.02 Motion to Vacate the default judgment, which was denied; an appeal to the circuit court, which was dismissed for failure to set; followed by a Motion to Reinstate and Motion to Set, which were denied. Defendant now appeals the denial of the Motion to Reinstate and Motion to Set claiming a violation of due process and abuse of discretion on the part of the circuit court. We affirm the circuit court's dismissal of these motions. http://www.tba.org/tba_files/TCA/princeraymond.wpd
KEVIN SANDERS, et al. v. LINCOLN COUNTY, et al. Court:TCA Attorneys: Kevin Sanders, Fayetteville, Tennessee, Pro Se. Gregory H. Oakley, Nashville, Tennessee, for the appellees, Lincoln County, Tennessee and Steve Graham. Judge: CAIN First Paragraph: This case questions the defendants' decision to remove Gill Road and Endsley Road from the county road list, thereby exempting landowners on these roads from the stock gap removal policy of the county affecting public roads. Plaintiff claims such action violates constitutional equal protection rights. The jury returned a verdict in favor of the defendants. The plaintiffs assert that the jury's verdict is contrary to the weight of the evidence and that the trial court erred by submitting an incomplete and misleading verdict form to the jury. The trial court approved the jury verdict for the defendant and we affirm. http://www.tba.org/tba_files/TCA/sanderskevin.wpd
CLIFFER SAULSBERRY v. LABORATORY CORPORATION OF AMERICA, AKA LABCORP OCCUPATIONAL TESTING SERVICES Court:TCA Attorneys: Roger K. Rutledge, Gregory C. Morton; Memphis, For Appellant, Cliffer Saulsberry Charles McPherson, William E. Godbold, III; Memphis; D. Faye Caldwell; Houston For Appellee, Laboratory Corporation of America Judge: CRAWFORD First Paragraph: Plaintiff truck driver was required to submit to a random urine drug test pursuant to his employer's drug policy and mandatory Department of Transportation (DOT) guidelines. After the specimen tested positive for the presence of cocaine metabolites, plaintiff was discharged from his employment. Plaintiff sued the laboratory that conducted the test, alleging negligence in the testing procedure that resulted in a false report. The trial court granted the laboratory summary judgment, and plaintiff appeals. We reverse. http://www.tba.org/tba_files/TCA/saulsberrycli.wpd
KIMBERLY J. SVACHA, et al. v. WALDENS CREEK SADDLE CLUB, et al. Court:TCA Attorneys: Robert L. Ogle, Jr., Sevierville, Tennessee for the Appellants Kimberly and William Svacha. David H. Parton, Gatlinburg, Tennessee, for the Appellees Benjamin and Mary Darnell, and Waldens Creek Saddle Club. Judge: First Paragraph: The Trial Court granted Defendants' motion for summary judgment relying, at least in part, on oral testimony from one of the Plaintiffs. This testimony was not transcribed, filed with the Trial Court, and provided to this Court as part of the record on appeal. Due to the somewhat peculiar procedural aspects of this case, we conclude that Defendants had the responsibility to file a transcript of this testimony. Because we cannot evaluate the propriety of the grant of summary judgment without having before us this evidence relied on by the Trial Court, we vacate the grant of summary judgment. http://www.tba.org/tba_files/TCA/svachakj.wpd
JOSEPH TURLEY v. FRANCIS P. MARINO, ET AL. Court:TCA Attorneys: Jodie A. Bell, Nashville, Tennessee, for the appellant, Joseph Turley. Paul G. Summers, Attorney General & Reporter and Jennifer L. Bledsoe, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, (Francis P. Marino and Teresa Goldsberry). Judge: CAIN First Paragraph: Appellant, Joseph Turley, was charged with two counts of criminal contempt by the trial court in an order issued May 3, 2000. The trial court appointed a special prosecutor to pursue this matter and appointed the public defender to represent the appellant. The trial on June 15, 2000 resulted in a trial court finding of guilty, after which the appellant was sentenced to 48 hours in jail. Turley appeals, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/turleyjoseph.wpd
BETTY FAYE VESTAL v. THOMAS WAYNE LAWLER, et al. Court:TCA Attorneys: Harold R. Gunn, Humboldt, For Appellant, Thomas Wayne Lawler James L. Kirby; Michelle M. Drake, Memphis, For Appellee, Kyle Atkins Marty R. Phillips, Jackson, For Appellee, Betty Faye Vestal Judge: CRAWFORD First Paragraph: Buyer, under warranty deed, sued seller for breach of warranty against encumbrances after receiving notice of trustee's sale pursuant to deed of trust encumbering the property. Seller answered the complaint and filed a third party complaint against the lawyer he retained to perform a title search, which search failed to show the deed of trust. The third party defendant filed a counter complaint against the seller. The trial court granted the buyer judgment on the pleadings against seller, dismissed seller's third party complaint, and granted third party defendant summary judgment against seller. Seller appeals. We reverse in part and modify in part. http://www.tba.org/tba_files/TCA/vestalbet.wpd
SUSAN RENEE WIECHERT WILSON, et al. v. RUSHTON E. PATTERSON, JR., M.D. Court:TCA Attorneys: Lanier Fogg, Memphis, For Appellants, Susan Renee Wiechert Wilson and James Kelly Wiechert David M. Cook, Karen S. Koplon, Greg A. Ziskind, Memphis, For Appellee, Rushton E. Patterson, Jr., M.D. Judge: CRAWFORD First Paragraph: This is a medical malpractice case. Plaintiffs, husband and wife, sued defendant physician for injuries allegedly caused to Wife by the physician's negligence. Physician moved for summary judgment supported by his affidavit that he conformed to the required standard of care. Plaintiffs, in opposition to the summary judgment, filed a deposition and affidavit of a physician practicing in Kentucky that expressed his knowledge of the standard of care in Memphis and similar communities. Physician moved to strike the affidavit primarily on the ground that plaintiffs' physician expert did not show a familiarity with the standard of care in Memphis, Tennessee. The court granted the motion to strike the affidavit and also granted summary judgment to defendant physician. Plaintiffs appeal. We reverse and remand. http://www.tba.org/tba_files/TCA/wiechertsus.wpd
STATE OF TENNESSEE v. COURTNEY ANDERSON Court:TCCA Attorneys: William L. Johnson, Memphis, Tennessee, for the Appellant, Courtney Anderson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; Amy Weirich, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Courtney Anderson, was indicted by a Shelby County Grand Jury on multiple counts of theft of property, forgery, and one count of misdemeanor possession of a handgun. Under the terms of a plea agreement, Anderson pled guilty to a reduced number of the charged offenses and was sentenced to an extended term in the Department of Correction. The resulting convictions reflect class C, D and E grade felony offenses. The trial court found Anderson to be a career offender for all convictions and ordered consecutive sentences. In this appeal, Anderson contends that the effective sentence imposed by the trial court is excessive. After review, we find that Anderson's designation as a career offender for the class C felony convictions was error. Furthermore, we are unable to reconcile the effective sentence pronounced by the trial court with the sentences reflected by the judgment of conviction documents presented on appeal. Accordingly, we remand for clarification or correction of the sentence imposed and for resentencing on the class C felony convictions. http://www.tba.org/tba_files/TCCA/andersoncou.wpd
TIFFANY LAFONZO BETTS v. STATE OF TENNESSEE Court:TCCA Attorneys: Ernest T. Brooks, II, Jackson, Tennessee, for the appellant, Tiffany Lafonzo Betts. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner was originally convicted by a Madison County jury of second degree murder and unlawful possession of a weapon employed in committing the offense. He received an effective 20- year sentence. The petitioner subsequently sought post-conviction relief, which was denied. The petitioner appeals the denial of post-conviction relief based on ineffective assistance of counsel, alleging trial counsel failed to adequately discuss the state's plea offer prior to trial. We conclude that the post-conviction court correctly denied post-conviction relief. http://www.tba.org/tba_files/TCCA/bettstl.wpd
STATE OF TENNESSEE v. ANTONIO BONDS Court:TCCA Attorneys: W. Mark Ward, Assistant Public Defender; AC Wharton, Public Defender, Memphis, Tennessee, (on appeal); William L. Johnson, Memphis, Tennessee, (at trial), for the Appellant, Antonio Bonds. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, John H. Bledsoe, Assistant Attorney General, and Edgar Peterson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Antonio Bonds, was indicted by a Shelby County Grand Jury on one count of premeditated first-degree murder. On September 30, 1999, a jury found Bonds guilty of the indicted offense and he was sentenced to life imprisonment. On appeal, Bonds raises one issue for our review: Whether "the evidence of [his] identity as the culprit is sufficient to support the verdict beyond a reasonable doubt." After review, we find the evidence legally sufficient to support the verdict of first-degree murder. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bondsantonio.wpd
STATE OF TENNESSEE v. RICKY R. BOWEN Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Robert Montgomery, Assistant District Attorney General, for the appellant, State of Tennessee. Cary C. Taylor, Kingsport, Tennessee, for the appellee, Ricky R. Bowen. Judge: TIPTON First Paragraph: The defendant, Ricky R. Bowen, is charged with driving under the influence of an intoxicant (DUI). The state was granted an interlocutory appeal from the trial court's order dismissing the second "count" of the indictment by which the defendant was subjected to enhanced minimum sentencing as a second time offender. The issue presented is whether a conviction for the first DUI offense must precede the commission of the second offense before a defendant may be convicted of DUI, second offense. We hold that the conviction must only precede the second conviction, not the second offense. http://www.tba.org/tba_files/TCCA/bowenrr.wpd
STATE OF TENNESSEE v. TYRONE BROWN Court:TCCA Attorneys: A C Wharton, Jr., Shelby County Public Defender; Garland Ergueden, Assistant Public Defender (on appeal); and Donna Armstard, Assistant Public Defender (at trial), for the appellant, Tyrone Brown. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; William L. Gibbons, District Attorney General; and Julie Mosley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of especially aggravated robbery and was sentenced to eighteen years as a violent offender. He appealed, presenting as his single issue the claim that the evidence at trial was not sufficient for the finding of guilt. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/browntyrone.wpd
KEVIN BURNS v. STATE OF TENNESSEE Court:TCCA Attorneys: Donald E. Dawson, Post-Conviction Defender, and Marjorie A. Bristol, Assistant Post-Conviction Defender, Nashville, Tennessee, for the appellant, Kevin Burns. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and John W. Campbell and Thomas D. Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner, currently represented by the Office of the Post-Conviction Defender, was originally convicted of felony murder and sentenced to death. The petitioner's conviction and sentence were affirmed on direct appeal. See State v. Burns, 979 S.W.2d 276 (Tenn. 1998). After the filing of a post-conviction relief petition, the post-conviction court granted the state's request to disqualify the Post-Conviction Defender since a member of the Post-Conviction Defender Commission was related to the victim of the crime. In this interlocutory appeal, the petitioner argues: (1) there is no conflict of interest; and (2) if a conflict exists, it can be waived. After a thorough review of the record, we conclude that (1) there is no actual conflict, and (2) any alleged impropriety may be waived by the petitioner after full disclosure. We reverse and remand for further proceedings. http://www.tba.org/tba_files/TCCA/burnsk.wpd
STATE OF TENNESSEE v. LUKE B. COLE Court:TCCA Attorneys: Tim Albers, Memphis, Tennessee, for the appellant, Luke B. Cole. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Luke B. Cole, was convicted by a jury of second degree murder in the shooting death of David Burson. The trial court sentenced the Defendant as a Range I, violent offender to twenty years incarceration. In this appeal as of right, the Defendant contends that the trial court erred in ruling admissible certain photographs of the victim; that the trial court erred in admitting certain rebuttal evidence submitted by the State; and that his sentence is excessive. Finding no reversible error in the Defendant's trial, we affirm his conviction. Finding that the trial court erred in sentencing the Defendant, we modify his sentence to seventeen years. http://www.tba.org/tba_files/TCCA/colelb.wpd
STATE OF TENNESSEE v. ADRIAN CRANE Court:TCCA Attorneys: A. C. Wharton, District Public Defender, W. Mark Ward, Assistant District Public Defender, Teresa Jones, Assistant District Public Defender, Karen Massey, Assistant District Public Defender, for the appellant, Adrian Crane. Paul G. Summers, Attorney General, Angele M. Gregory, Assistant Attorney General, William L. Gibbons, District Attorney General, Alanda Horne Dwyer, Assistant District Attorney General, Betsy Carnesdale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: A Shelby County jury convicted the defendant of rape of a child, a Class A felony. The sole issue in this appeal is the sufficiency of the evidence of unlawful sexual penetration of the victim. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/cranea.wpd
STATE OF TENNESSEE v. ROBERT A. CUMMINS Court:TCCA Attorneys: Jeffery S. Glatstein, Memphis, Tennessee, for the appellant, Robert A. Cummins. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Jerry Kitchen and Reginald Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Robert A. Cummins, was convicted of first degree felony murder. The trial court imposed a sentence of life imprisonment with the possibility of parole. On appeal, the defendant presents two issues: (1) whether the trial court erred by denying his motion to suppress; and (2) whether the trial court erred by failing to instruct the jury as to any lesser included offenses of first degree felony murder. Because the trial court erred by not charging the jury with the lesser included offenses of felony murder, the judgment is reversed and the case is remanded for a new trial. http://www.tba.org/tba_files/TCCA/cumminsroba.wpd
STATE OF TENNESSEE v. QUINCY DAVIS Court:TCCA Attorneys: Gerald Stanley Green, Memphis, Tennessee, for the appellant, Quincy Davis. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; Karen Cook, Assistant District Attorney General; and Greg Gilluly, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant and his four co-defendants were indicted for the aggravated robbery of a convenience store in Memphis. He was convicted of this offense, while a co-defendant was convicted for robbery. The defendant was sentenced to ten years in the Tennessee Department of Correction. The defendant appealed his conviction, asserting as the single assignment of error that the verdicts were inconsistent, and, therefore, his conviction could not stand. Based upon our review, we affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/davisq.wpd
STATE OF TENNESSEE v. HAROLD J. DOUGLAS Court:TCCA Attorneys: Bill Anderson, Jr., Memphis, Tennessee, for the Appellant, Harold J. Douglas. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Harold J. Douglas, was indicted by a Shelby County Grand jury on one count of second degree murder. Following a jury trial, Douglas was convicted of voluntary manslaughter and was sentenced to fourteen years in the Department of Correction. On appeal, Douglas raises one issue for our review: Whether the evidence presented at trial was sufficient to find him guilty of voluntary manslaughter. Finding the evidence legally sufficient to support the verdict, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/douglashj.wpd
STATE OF TENNESSEE v. LAWRENCE DOUGLAS Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee, for the appellant, Lawrence Douglas. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rosemary Andrews, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Lawrence Douglas, was indicted by a Shelby County Grand Jury for one count of especially aggravated robbery and one count of attempted first degree murder, both Class A felonies. He was found guilty of especially aggravated robbery and attempted second degree murder, a Class B felony, and sentenced to twenty years for the especially aggravated robbery conviction at 100% and a concurrent sentence of twelve years for the attempted second degree murder conviction, as a Range I, standard offender, for an effective sentence of twenty years. The defendant challenges: (1) the ruling of the trial court excluding testimony of the defendant's grandmother concerning his childhood and (2) his sentences. Finding no error, we affirm the judgment of the trial court. However, we remand for entry of corrected judgments in order that the appropriate classes of the convictions may be indicated on the judgments. http://www.tba.org/tba_files/TCCA/douglaslawrence.wpd
JAMES DUMAS v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Little (on appeal) and John E. Finklea (at trial), Memphis, Tennessee, for the appellant, James Dumas. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Daniel R. Woody, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner filed a petition for post-conviction relief, claiming that he had received ineffective assistance of counsel during the sentencing hearing following his trial in which he was convicted of second degree murder. Specifically, he argues that trial counsel should have presented evidence of his youth and mental condition. The petitioner appealed after being denied relief by the post- conviction court. Based upon our review, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/dumasj.wpd
MYRON GARMON V. STATE OF TENNESSEE Court:TCCA Attorneys: Stephen A. Sauer (at hearing) and Gerald S. Green (on appeal), Memphis, Tennessee, for the appellant, Myron Garmon. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; William L. Gibbons, District Attorney General; and William D. Bond, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner was convicted of aggravated sexual battery by a Shelby County jury. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief on the ground that his trial counsel was ineffective for failing to protect his right to be tried within one hundred eighty days under the Interstate Compact on Detainers. The petition was denied by the post-conviction court. After a thorough review of the record, we conclude that the trial court correctly denied post- conviction relief. http://www.tba.org/tba_files/TCCA/garmonmv.wpd
STATE OF TENNESSEE v. REGINALD HENDERSON Court:TCCA Attorneys: Christine W. Stephens (on appeal) and Howard L. Wagerman (at trial), Memphis, Tennessee, for the appellant, Reginald Henderson. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; William L. Gibbons, District Attorney General; William Bond, Assistant District Attorney General; and Stephen P. Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of second degree murder for a shooting which occurred during a birthday outing at a nightclub and was sentenced to confinement for twenty years. He appealed, raising as issues, that the trial court erred: (1) in not correctly instructing the jury as to reasonable doubt; (2) in admitting proof of another bad act of the defendant; (3) in not allowing impeachment with prior convictions of a prosecution witness; (4) in allowing proof as to a prior consistent statement; and (5) in requiring the defendant to show his teeth to the jury. Based upon our review, we affirm the judgment of conviction of the trial court. http://www.tba.org/tba_files/TCCA/hendersonreginald.wpd
STATE OF TENNESSEE v. MARCUS DUVALLE HURSTON Court:TCCA Attorneys: J. Colin Morris, Jackson, Tennessee, for the appellant, Marcus Duvalle Hurston. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; James C. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Marcus Duvalle Hurston, was convicted by a jury in the Madison County Circuit Court of one count of aggravated assault. The trial court sentenced the appellant as a Range II multiple offender to eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issue for our review: whether the evidence was sufficient to sustain his conviction of aggravated assault. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hurstonm.wpd
STATE OF TENNESSEE v. KEVIN JERMAINE MORRIS Court:TCCA Attorneys: George Morton Googe, District Public Defender, and Stephen P. Spracher, Assistant District Public Defender, for the appellant, Kevin Jermaine Morris. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The State sought revocation of the defendant's probation for his allegedly failing to report to his probation officer within seventy-two hours of his release from jail, failing to provide proof of employment, failing to complete required community service work, failing to provide a DNA sample, and failing to pay probation fees. After a hearing, the trial court revoked the probation, finding that the defendant had violated four of its conditions. On appeal to this court, the defendant presents the sole issue of whether the trial court erred in revoking his probation. Based upon our review, we affirm the judgment of the trial court. However, we remand for entry of a corrected judgment. http://www.tba.org/tba_files/TCCA/morriskj.wpd
STATE OF TENNESSEE v. GEORGE REDD Court:TCCA Attorneys: John Finklea, Murray, Kentucky, for the appellant, George Redd. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dan Byer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Following a jury trial, the Defendant, George Redd, was convicted of burglary. He was sentenced as a career offender to twelve years incarceration. In this appeal as of right, the Defendant asserts that the evidence presented at trial was insufficient to support his conviction and that the trial court erred by failing to instruct the jury on the lesser included offenses of burglary. We hold that the evidence was sufficient to support the Defendant's conviction but that the trial court erred by failing to instruct the jury on the lesser included offenses of burglary. Because we conclude that the error was harmless beyond a reasonable doubt, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/reddg.wpd
STATE OF TENNESSEE v. CHARLES THOMPSON and VERICO JACKSON Court:TCCA Attorneys: Paula Skahan and Gerald Skahan, Memphis, Tennessee, for appellant, Charles Thompson James Ball and Joseph Ozment, Memphis, Tennessee, for appellant, Verico Jackson. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Jerry Harris; Jerry Kitchen, Assistant District Attorneys; for appellee, State of Tennessee. Judge: SMITH First Paragraph: On October 31, 1996, a Shelby County Grand Jury indicted Charles Thompson and Verico Jackson for first-degree murder. Later, the defendants were also indicted for conspiracy to commit murder. Following a jury trial, the defendants were convicted on both counts. The trial court dismissed the conspiracy charges, and, following a sentencing hearing, sentenced Charles Thompson to life without parole and sentenced Verico Jackson to life. On appeal, both defendants claim (1) that the evidence was insufficient to sustain the verdicts; (2) that the trial court should have severed the defendants' trials; (3) that the trial court erred by shackling defense witnesses and/or providing extra security in the courtroom; (4) that the trial court erroneously excluded the victim's "dying declaration"; (5) that the trial court erroneously excluded evidence that people other than the defendants had recently threatened the victim; and (6) that the trial court erroneously overruled a motion for mistrial after a witness testified that Defendant Thompson had previously ordered other murders. Additionally, Defendant Thompson claims (1) that the trial court erroneously allowed the state to use exhibits that had been used in a previous trial of a codefendant; (2) that the trial court erroneously overruled a motion for mistrial after an attorney mentioned the trial of a codefendant in violation of a court order; (3) that Defendant Jackson's attorney had a conflict of interest that prejudiced Defendant Thompson; (4) that the trial court erroneously excluded the prior inconsistent statements of a witness; (5) that the trial court erroneously excluded evidence of a witness's reputation for truthfulness; (6) that the trial court erroneously denied Defendant Thompson's request for a special jury instruction; and (7) that, at sentencing, the trial court erroneously allowed the state to introduce prejudicial evidence of prior bad acts. Finding no reversible error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/thompsonjackson.wpd
Public Building Authority Subject to 2001 Tenn. Pub. Acts Ch. 364 Date: August 7, 2001 Opinion Number: 01-123 http://www.tba.org/tba_files/AG/OP123.pdf
Sheriff and Police Qualifications -- Minimum Educational Requirements Date: August 7, 2001 Opinion Number: 01-124 http://www.tba.org/tba_files/AG/OP124.pdf
Requiring Connection to New Sewer System Date: August 7, 2001 Opinion Number: 01-125 http://www.tba.org/tba_files/AG/OP125.pdf
Correctional Officers Carrying Firearms While Off-Duty Date: August 7, 2001 Opinion Number: 01-126 http://www.tba.org/tba_files/AG/OP126.pdf
Constitutionality of a proposal to publish names and photographs of those convicted of prostitution-related offenses. Date: August 9, 2001 Opinion Number: 01-127 http://www.tba.org/tba_files/AG/OP127.pdf

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