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.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
14 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
 

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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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