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August 30, 2001
Volume 7 — Number 160
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.
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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 |
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New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
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New Opinion(s) from the Tennessee Court of Appeals |
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New Opinion(s) from the Tennessee Court of Criminal Appeals |
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New Opinion(s) from the Tennessee Attorney General (PDF format) |
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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
STATE OF TENNESSEE v. ALAN LAWRENCE ADLER
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Ryan D. Brown, Assistant District Attorney General, for
the appellant, State of Tennessee.
Robert L. Hutton, Memphis, Tennessee, for the appellee, Alan Lawrence
Adler.
Judge: RILEY
First Paragraph:
The petitioner was indicted for aggravated child neglect of a child
under six years of age, a Class A felony. Following a trial, a
Fayette County jury convicted him of the lesser offense of reckless
endangerment, a Class A misdemeanor. The petitioner, pursuant to
Tenn. Code Ann. S 40-32-101, petitioned for the destruction of the
public records concerning his arrest and prosecution for the felony
charge on which he was acquitted. The trial court ordered that all
records relating to the petitioner's arrest and prosecution be
expunged, except those records relating to reckless endangerment. In
this appeal, the state argues the petitioner was not entitled to
expungement since he was convicted of a lesser-included offense. The
petitioner argues this court is without jurisdiction to hear the
state's appeal as a matter of right; the trial court properly ordered
expungement; and the trial court erroneously charged reckless
endangerment as a lesser-included offense of aggravated child neglect.
After a thorough review of the record, we conclude (1) the state
appeal as of right is properly before this court; (2) records relating
to the petitioner's arrest and prosecution are not subject to
expungement; and (3) petitioner may not collaterally attack his
conviction on a lesser offense in an expungement action. Accordingly,
we reverse the trial court's order of expungement.
http://www.tba.org/tba_files/TCCA/adleral.wpd
STATE OF TENNESSEE v. DARLENE RENEE BLACKHURST
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and James Goodwin, Assistant District Attorney General, for
the appellant, State of Tennessee.
Richard A. Spivey, Kingsport, Tennessee, for the appellee, Darlene
Renee Blackhurst.
Judge: WOODALL
First Paragraph:
The defendant, Darlene Renee Blackhurst, pled guilty to second offense
driving under the influence of an intoxicant ("DUI"), leaving the
scene of an accident involving injury, and three counts of reckless
aggravated assault. Following a sentencing hearing, the trial court
imposed an effective sentence of three years, eleven months, and
twenty-nine days, to be served on intensive probation following a
mandatory period of 45 days in confinement for the DUI second offense.
In this appeal, the State contends that the trial court erred when it
placed Defendant on full probation because the trial court failed to
properly consider the victim's testimony during the sentencing
hearing. Our de novo review reveals that the trial court did err in
its application of the law concerning victims' statements and in
granting probation for the full time remaining in Defendant's sentence
following confinement. However, our conclusion regarding the
impropriety of probation is based on sentencing considerations other
than the testimony of the victim. Accordingly, we reverse the trial
court's judgment regarding the manner of service of Defendant's
sentence and remand this matter to the trial court to determine
whether Defendant should be incarcerated for the full term of her
sentence or, in the alternative, serve the balance of her sentence in
split confinement.
http://www.tba.org/tba_files/TCCA/blackhurstdarlener_final.wpd
STATE OF TENNESSEE v. ROBERT BLANTON, JR.
Court:TCCA
http://www.tba.org/tba_files/TCCA/blantonrjr_ord.wpd
STATE OF TENNESSEE v. ALLEN BOWERS, JR.
Court:TCCA
Attorneys:
David L. Raybin (on appeal), Nashville, Tennessee; and Leonard M.
Caputo (at trial), Chattanooga, Tennessee, for the Appellant, Allen
Bowers, Jr.
Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and James W. Pope, III, Assistant District Attorney General,
for the Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
A Bledsoe County jury convicted the Defendant of rape of a child, and
the trial court sentenced the Defendant to eighteen years in the
Tennessee Department of Correction. The Defendant now appeals,
arguing (1) that his conviction should be reversed because a
prospective juror for this case stated in the presence of other
prospective jurors that he had been a prospective juror in a previous
criminal case in which the Defendant was on trial; (2) that the trial
court erred by not ordering a new trial for the Defendant based on a
letter that the Defendant's mother received from the victim subsequent
to the Defendant's trial in which the victim stated that "nothing
happened" between the Defendant and the victim; (3) that the trial
court erred by not granting the Defendant a new trial based on
evidence presented during the hearing on the Defendant's motion for
new trial that a document introduced into evidence at trial as a filed
divorce complaint had actually not been filed and contained
prejudicial and improper statements about the Defendant; (4) that the
State, during its closing argument, improperly mentioned facts not in
the record; (5) that the trial court erroneously instructed the jury
concerning a "deadlock" in a supplemental instruction; and (6) that
the trial court erred by giving the jury the dictionary definition of
"captious" and by sending the definition in writing to the jury room
without reading it to the jury. After a thorough review of the
record, we find no reversible error and therefore affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/bowersa.wpd
STATE OF TENNESSEE v. ROBERT LEWIS CARPENTER, JR.
Court:TCCA
Attorneys:
Robert L. Hutton, Glankler Brown, PLLC, Memphis, Tennessee, for the
Appellant.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General, for the Appellee, State
of Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Robert Lewis Carpenter, Jr., was indicted by a Fayette
County Grand Jury for one count of premeditated murder, one count of
felony murder, one count of especially aggravated kidnapping, and one
count of especially aggravated robbery. Carpenter waived both his
right to a trial by jury and his right to have a jury determine
punishment. On June 15, 2000, a bench trial was held and Carpenter
was found guilty on all counts. Following the sentencing hearing,
the trial court sentenced Carpenter to life without the possibility of
parole, based upon its finding of three aggravating circumstances
(Tenn. Code Ann. S 39-13-204(i)(5), (i)(6) and (i)(7)). On appeal,
Carpenter raises three issues for our review: (1) Whether the trial
court erred in its application of aggravating circumstance (i)(5),
i.e., the murder was especially heinous, atrocious or cruel; (2)
whether the trial court erred in failing to find specific mitigating
circumstances; and (3) whether Carpenter's convictions violate double
jeopardy principles and the International Covenant on Civil and
Political Rights, based upon his prior convictions for federal crimes
arising from the same factual circumstances. After review, we find no
error and affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/carpenterrljr.wpd
STATE OF TENNESSEE v. WYGENZO COBURN
Court:TCCA
Attorneys:
Marvin E. Ballin, Memphis, Tennessee, for the appellant, Wygenzo
Coburn.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Charles W. Bell, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant was convicted of voluntary manslaughter, a Class C
felony, and sentenced as a Range I, standard offender to four years,
six months in the county workhouse. In this appeal as of right, he
raises the following issues: (1) whether the evidence was sufficient
to support his conviction; (2) whether the trial court erred in
failing to include "moral certainty" language in its reasonable doubt
instruction to the jury; and (3) whether the trial court erred in its
application of enhancement factor (10). Based upon a careful review,
we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/coburnw.wpd
STATE OF TENNESSEE v. RALPH D. COOPER
Court:TCCA
Attorneys:
Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, Ralph
D. Cooper.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Scott McCullough, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
This is an appeal from an order denying a petition for reinstatement
of a motor vehicle operator's license pursuant to Tennessee Code
Annotated Section 55-10-615(b). The court ruled that a subsequent
conviction for driving without a license precluded the court from
restoring the petitioner's driving privileges for a period of three
years after the new conviction. After a careful review, we hold that
the court incorrectly concluded it did not have discretion to grant
driving privileges and remand to the court for reconsideration of the
petition.
http://www.tba.org/tba_files/TCCA/cooperralphd.wpd
STATE OF TENNESSEE v. MARK A. DOOLEN, JR.
Court:TCCA
Attorneys:
Chris Young, Ashland City, Tennessee, for the appellant, Mark A.
Doolen, Jr.
Paul G. Summers, Attorney General and Reporter' Elizabeth T. Ryan,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; Suzanne Lockert, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
In this appeal, Mark A. Doolen, Jr. challenges the order of the
Dickson County Circuit Court requiring the appellant's payment of
restitution in the amount of $6,611.76 for his vandalism of two
antique automobiles. Following a review of the record and the parties'
briefs, we conclude that the appellant should have filed his appeal
with the Tennessee Court of Appeals.
http://www.tba.org/tba_files/TCCA/doolen.wpd
EDWARD DRUMMER v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Deborah M. Henderson, Memphis, Tennessee, for the Appellant, Edward
Drummer.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Lee Coffee, Assistant
District Attorney General, for the Appellee, State of Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Edward Drummer, appeals from the dismissal of his
petition for post-conviction relief by the Shelby County Criminal
Court. In September, 1997, Drummer pled guilty to one count of
aggravated rape and was sentenced to fifteen years confinement in the
Department of Correction. In 1998, Drummer filed a petition for
post-conviction relief challenging the validity of his guilty plea
upon grounds of (1) voluntariness and (2) ineffective assistance of
counsel. The post-conviction court, finding the claims unsupported,
dismissed the petition. On appeal, Drummer contends that he was
denied the effective assistance of counsel. After review, we affirm
the judgment of the post- conviction court.
http://www.tba.org/tba_files/TCCA/drummeredward.wpd
STATE OF TENNESSEE v. ROSCOE W. FIELDS
Court:TCCA
Attorneys:
Roscoe W. Fields, Knoxville, Tennessee, pro se.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Jan Hicks, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
The Defendant, Roscoe W. Fields, was convicted of driving a motor
vehicle while his Tennessee driving privileges were suspended (Tenn.
Code Ann. S 55-50-504) and violation of the motor vehicle registration
laws (Tenn. Code Ann. S 55-50-504). The trial court sentenced the
Defendant to an effective sentence of six (6) months probation. On
appeal, he argues that: (1) the evidence was insufficient to convict
him of driving a motor vehicle while his Tennessee driving privileges
were suspended; and (2) he was denied his due process right to a fair
trial. After a review of the record, we affirm the judgment of the
trial court.
http://www.tba.org/tba_files/TCCA/fieldsroscoew.wpd
STATE OF TENNESSEE v. EDDIE McNABB
Court:TCCA
Attorneys:
Philip A. Condra, District Public Defender, and Francis W. Pryor,
Assistant Public Defender, for the appellant, Eddie McNabb.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith,
Assistant Attorney General, and James Michael Taylor, District
Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant appeals from his maximum sentence of six (6) years for
voluntary manslaughter and the trial court's imposition of consecutive
sentences. After review, we hold that the trial court properly
sentenced the defendant to six (6) years for the voluntary
manslaughter conviction and correctly ordered the defendant's
convictions for voluntary manslaughter and aggravated assault be
served consecutive to one another. Therefore, we affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/mcnabbe.wpd
JEFFREY MILLER v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
William B. McKenzie, Decatur, Tennessee, for the Appellant, Jeffrey
Miller.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; Frank Harvey and Dennis Humphrey, Assistant District
Attorneys General, for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Jeffrey Miller appeals the Meigs County Criminal Court's dismissal of
his petitions for writ of error coram nobis and writ of habeas corpus.
Both petitions seek redress for Miller's grievance that he has been
required to serve felony sentences in the Department of Correction,
although his plea agreements designated the location of confinement to
be the Meigs County Jail. Because neither coram nobis nor habeas
corpus relief is available to address a concern of this nature and
because the petitioner's claims are factually unfounded, we affirm.
http://www.tba.org/tba_files/TCCA/millerj.wpd
STATE OF TENNESSEE v. GLENN RUSSELL PARVIN
Court:TCCA
Attorneys:
Steve McEwen, Mountain City, Tennessee, on appeal; and Terry L.
Jordan, Assistant Public Defender, Blountville, Tennessee, at trial;
for appellant, Glenn Russell Parvin.
Paul G. Summers, Attorney General & Reporter; Glen C. Watson,
Assistant Attorney General; Greeley Wells, District Attorney General;
and B. Todd Martin, Assistant District Attorney, for appellee, State
of Tennessee.
Judge: SMITH
First Paragraph:
The Sullivan County grand jury issued presentments against the
defendant on one count of operating a motor vehicle without a face
shield; two counts of speeding; three counts of driving under the
influence; three counts of driving on a revoked license; two counts of
driving on revoked license after second or subsequent conviction for
driving while intoxicated; one count of driving on revoked license
after second or subsequent conviction for driving under the influence;
one count of driving while intoxicated, fourth offense; and one count
of driving under the influence, fourth offense. The charges resulted
from three separate cases. The defendant pled to all of the crimes in
two different plea hearings and the defendant was sentenced as a
career offender to a total of eighteen years, with a minimum jail time
of 585 days, and with his last six years to be served on probation.
The trial court sentenced the defendant as a career offender and did
not apprise the defendant of the possibility that he could be
sentenced as a persistent offender, as opposed to a career offender.
He moved to withdraw his guilty pleas on this ground. The trial court
denied his motion, and he appeals the denial. Furthermore, the
defendant waived his right to request probation or alternative
sentencing in one case, and the state agreed to allow the defendant to
serve probation in one case. In the third case, the defendant
requested probation or alternative sentencing. The trial court denied
his request, citing his extensive criminal history in support of its
denial. The defendant also appeals this denial. After reviewing the
record and applicable case law, we find these issues to be without
merit and therefore affirm the lower court's denial of defendant's
motion to withdraw his guilty pleas and its denial of probation or
alternative sentencing.
http://www.tba.org/tba_files/TCCA/parvinglen.wpd
STATE OF TENNESSEE v. MARCIA LYNN WILLIAMS
Court:TCCA
Attorneys:
Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the
appellant, Marcia Lynn Williams.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Marcia Lynn Williams, entered a best interest guilty
plea in the Circuit Court of Marshall County to one count of obtaining
drugs by false pretense, a class D felony. Following a sentencing
hearing, the trial court imposed a sentence of three years
incarceration in the Tennessee Department of Correction. On appeal,
the appellant argues that the trial court erred by denying the
appellant a sentence in the community corrections program. After a
review of the record and the parties' briefs, we affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/williamsml.wpd
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