Opinion FlashJanuary 8, 2002Volume 8 — Number 005 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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Howard H. Vogel IN THE MATTER OF: ALLAN RUSSELL BURKE V. MAUREEN JO BURKE Court:TCA AMENDMENT TO OPINION http://www.tba.org/tba_files/TCA/burkevburkeamend.wpd IN THE MATTER OF: ALLAN RUSSELL BURKE v. MAUREEN JO BURKE Court:TCA ORDER ON PETITION TO REHEAR First Paragraph: The appellant, Allen Russell Burke, has filed a petition to rehear in the above styled case, contending that this Court's Judgment relies upon matter of fact or law upon which the parties have not been heard and that are open to reasonable dispute. This Court readily acknowledges the very capable representation of all parties by their respective counsel. However, having once again reviewed the record in this case, we conclude that the Appellant's Petition for Rehearing is respectfully denied. The costs of this petition are divided equally between the parties. http://www.tba.org/tba_files/TCA/burkevburkeorder.wpd FREEDOM BROADCASTING OF TN, INC., et al. v. TENNESSEE DEPARTMENT OF REVENUE Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General and Margaret M. Huff, Assistant Attorney General, for the Appellant, Tennessee Department of Revenue. Larry D. Crabtree, Douglas R. Pierce, and R. Christopher Lowe, Nashville, Tennessee, for the appellees, Freedom Broadcasting of TN, Inc. and Holston Valley Broadcasting Corp. Judge: FARMER First Paragraph: Taxpayers petitioned the Tennessee Department of Revenue seeking an industrial machinery exemption from taxes on certain broadcasting equipment pursuant to section 67-6-206 of the Tennessee Code. After the administrative law judge concluded that Taxpayers provided a service and were not in the business of producing tangible personal property, the Department issued a final denial of Taxpayers' applications. The Taxpayers appealed that decision to the chancery court which reversed the administrative law judge's decision and held that Taxpayers were entitled to the industrial machinery exemption. The Department appeals. For the reasons set forth below, we affirm the decision of the chancery court. http://www.tba.org/tba_files/TCA/freedomopn.wpd ROBERT VAUGHN ODOM v. MARY JO ODOM Court:TCA Attorneys: Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Mary Jo Odom. Karla C. Hewitt, Nashville, Tennessee, for the appellee, Robert Vaughn Odom. Judge: KOCH First Paragraph: This appeal involves a bitter custody dispute over three children between the ages of nine and fourteen. During the divorce proceeding in the Chancery Court for Dickson County, the parties agreed that the mother would have custody of the children and also agreed on visitation arrangements that accommodated the mother's planned move to another state. Several months after the entry of the divorce decree, the father petitioned to change custody and to hold the mother in contempt for interfering with his relationship with the children. During the ensuing three years, the parties traded allegations of sexual and physical abuse of the children and other misconduct. Following a bench trial in December 1998, the trial court found that there had been a material change in the children's circumstances and granted the father custody of the children. On this appeal, the mother asserts that she was denied due process by the trial court's refusal to require the parties and their children to undergo a psychological examination and that the trial court unlawfully delegated its judicial authority to a psychologist who had been counseling the children. We have determined that the mother received an essentially fair hearing on this custody dispute and, therefore, affirm the trial court. http://www.tba.org/tba_files/TCA/odomrv.wpd VP BUILDINGS, INC. v. POLYGON GROUP, INC., et al. Court:TCA Attorneys: Roger A. Maness, Clarksville, Tennessee, for the appellant, Dawn Schmuck. Michael K. Williamson, Craig Hargrow, Clarksville, Tennessee, for the appellees, First Missionary Baptist Church of Clarksville, Inc., Fred Dale, Trustee. Judge: COTTRELL First Paragraph: In this appeal the sole shareholder and director of Polygon appeals the trial court's decision to hold her personally liable for a debt owed by Polygon. The corporate officer contracted to do business in Tennessee, knowing that Polygon was not qualified to do business here and knowing that Polygon had not filed an annual report in three years, which made it subject to administrative dissolution. After suit was filed against Polygon, the shareholder encumbered all of the corporation's assets. Further, after she was sued personally, she filed to have Polygon's charter retroactively reinstated. The trial court held that the shareholder abused the corporate form, that the corporate entity should be disregarded and that the sole shareholder and director should be held personally liable. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/vpbuildings.wpd STATE OF TENNESSEE v. DONALD W. BRANCH Court:TCCA Attorneys: A.C. Wharton, Jr., District Public Defender; W. Mark Ward, Assistant Public Defender; Mozella Ross, Assistant Public Defender; and Marty McAfee, Assistant Public Defender, Memphis, Tennessee, for the appellant, Donald W. Branch. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; Michael Leavitt, Assistant District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: After Defendant was convicted of two counts of aggravated vehicular homicide and one count of driving while license revoked, the trial court imposed an effective sentence of forty-nine years in confinement. On appeal, Defendant argues that the evidence was insufficient to sustain the convictions for aggravated vehicular homicide, the trial court's instructions to the jury were erroneous, the blood alcohol test results were admitted in error, the State's closing argument was improper, and his sentence is excessive. After a thorough review of the record, we find that the trial court improperly applied two enhancement factors. However, the errors affect only Defendant's sentence for one count of aggravated vehicular homicide and, therefore, we reduce this sentence by six months. We affirm the judgment of the trial court in all other aspects. http://www.tba.org/tba_files/TCCA/branchdw.wpd STATE OF TENNESSEE v. ANTHONY DWIGHT COX Court:TCCA Attorneys: J. Colin Morris, Jackson, Tennessee, for the appellant, Anthony Dwight Cox. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; James G. Woodall, District Attorney General; and Donald H. Allen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Anthony Dwight Cox, appeals from his convictions for aggravated rape and aggravated assault, contesting the sufficiency of the evidence. We affirm the judgments of conviction. http://www.tba.org/tba_files/TCCA/coxad.wpd STATE OF TENNESSEE v. CHARLES ORLANDO FIELDS Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P. Atnip, District Public Defender and Kevin McAlpin, Assistant Public Defender (on appeal); and Tom Rogers, South Fulton, Tennessee (at trial), for the appellant, Charles Orlando Fields. Paul G. Summers, Attorney General & Reporter; Laura McMullen Ford, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Charles Orlando Fields, was indicted for one count of selling one-half gram or more of cocaine within one thousand feet of a school, a Class A felony, and one count of distributing one- half gram or more of cocaine within one thousand feet of a school, a Class A felony. An Obion County Circuit Court jury convicted him of both counts. The trial court merged the distributing cocaine conviction into the selling cocaine conviction and sentenced the defendant as a Range II, multiple offender to thirty-three years in the Tennessee Department of Correction. The defendant appeals, contending that the evidence is insufficient to support his conviction and that his sentence is excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/fieldsc.wpd STATE OF TENNESSEE v. JOSEPH S. HAYES Court:TCCA Attorneys: Thomas C. Jessee, Johnson City, Tennessee, and Thomas Dossett, Kingsport, Tennessee, for the Appellant, Joseph S. Hayes. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James Goodwin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Joseph S. Hayes, appeals the Sullivan County Criminal Court's denial of alternative sentencing in the defendant's three Class B misdemeanor convictions of assault. Finding no reversible error, we affirm. http://www.tba.org/tba_files/TCCA/hayesjs.wpd ANTHONY M. HUNTER v. STATE OF TENNESSEE Court:TCCA Attorneys: Brent Horst (at hearing) and C. LeAnn Smith (on appeal), Nashville, Tennessee, for the appellant, Anthony M. Hunter. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: This is an appeal from the denial of post-conviction relief. The petitioner contends he was deprived of the effective assistance of counsel which led to an involuntary guilty plea. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hunteram.wpd JASON MICHON v. STATE OF TENNESSEE Court:TCCA Attorneys: Jason Michon, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Petitioner appeals the summary dismissal of his petition for post-conviction relief after the trial court found it was barred by the statute of limitations. We conclude that due process considerations may have tolled the running of the statute of limitations if trial counsel misled petitioner concerning his intention to pursue an appeal. We, therefore, reverse and remand for an evidentiary hearing on the issue of tolling. http://www.tba.org/tba_files/TCCA/michonj.wpd STATE OF TENNESSEE v. THOMAS WAYNE SHIELDS Court:TCCA Attorneys: Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Thomas Wayne Shields. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Thomas Wayne Shields, challenges both his conviction by a jury in the Circuit Court of Henry County of one count of assault and his consequent sentence. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court, concluding that (1) the evidence adduced at trial is sufficient to support the appellant's conviction of assault; (2) the appellant waived any objection to the trial court's response to a question posed by the jury during deliberations, and the trial court's remarks do not constitute plain error within the meaning of State v. Smith, 24 S.W.3d 274 (Tenn. 2000); and (3) the trial court properly denied the appellant full probation. http://www.tba.org/tba_files/TCCA/shieldstw.wpd STATE OF TENNESSEE v. JOE DAVID SLOAN Court:TCCA Attorneys: Clifford K. McGowan, Jr., Waverly, Tennessee (on appeal) and George Morton Googe, District Public Defender; and Vanessa D. King, Assistant Public Defender (at trial) for the appellant, Joe David Sloan. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; James G. Woodall, District Attorney General; Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant was convicted of Class E felony evading arrest and operating a vehicle without valid registration. In this appeal, he challenges his conviction for evading arrest and raises the following issues: (1) whether the evidence is sufficient to support his conviction; (2) whether the trial court erred by not charging the jury on the lesser-included offense of "failure to yield to law enforcement officials," Tenn. Code Ann. S 55-8-104; and (3) whether his sentence is excessive when the trial court erred by imposing a sentence of four years based, in part, on prior convictions which were not proved at the sentencing hearing by certified copies of the judgments. After a review of the record, we find plain error in the conviction for felony evading arrest, and reduce that conviction to misdemeanor evading arrest. Accordingly, we sentence Defendant to serve eleven (11) months and twenty-nine (29) days, with a seventy-five (75%) percent minimum service prior to release, concurrent with the conviction for violation of vehicle registration law and consecutive to his prior convictions in Gibson County as classified in the judgment of the trial court. We remand this matter to the trial court for entry of a judgment in accordance with the opinion of this court. We affirm the conviction for violation of the vehicle registration law. http://www.tba.org/tba_files/TCCA/sloanj.wpd STATE OF TENNESSEE v. JASPER EVERETT STEWART Court:TCCA Attorneys: F. Glen Sisson (at trial) and K. Jayaraman (at trial and on appeal), Memphis, Tennessee, for the appellant, Jasper Everett Stewart. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Tipton County jury convicted the defendant of first degree felony murder, especially aggravated robbery, and theft under $500. The trial court sentenced the defendant to concurrent sentences of life with the possibility of parole for first degree felony murder, 20 years for especially aggravated robbery, and 11 months and 29 days for theft. In this appeal, the defendant contends: (1) the trial court erroneously admitted his tape-recorded telephone calls from the jail and items seized from his residence; (2) the state failed to turn over all tape recordings of his telephone conversations pursuant to his discovery request; (3) the trial court erroneously permitted a state witness to respond to an "open-ended" question in narrative form; and (4) the trial court erroneously neglected to instruct the jury concerning the definition of specific intent. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/stewartje.wpd THOMAS A. STREET v. HOWARD CARLTON, WARDEN, and STATE OF TENNESSEE Court:TCCA Attorneys: Thomas A. Street, Northeast Correctional Complex, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; and Patricia C. Kussmann, Assistant Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner was convicted of first degree murder for a killing that occurred in 1985, and was unsuccessful both in a direct appeal of his conviction and a petition for post-conviction relief. Subsequently, he filed a petition for writ of habeas corpus, the denial of which is the basis for this appeal. In that petition, he claimed, as he had in his earlier petition for post-conviction relief, that his conviction should be reversed because the jurors were allowed to separate during the trial. Based upon our review, we affirm the post-conviction court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/streethomasa.wpd STATE OF TENNESSEE v. CHARLES WILBURN TAYLOR Court:TCCA Attorneys: Craig L. Garrett, Maryville, Tennessee, for the appellant, Charles Wilburn Taylor. Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Daryl Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: A petition to declare the defendant a motor vehicle habitual offender was filed and served on him. He did not appear at the hearing, where a default judgment was entered. Subsequently, he filed a motion to set aside the default order, arguing that the service of the order on him was inadequate. The trial court denied the motion, and we affirm that denial. http://www.tba.org/tba_files/TCCA/taylorcharlesw.wpd DERRICK WILLIAMS v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Little, Memphis, Tennessee, for the appellant, Derrick Williams. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alonda Horn Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The petitioner, Derrick Williams, pled guilty to three counts of simple robbery, a Class C felony, and one count of aggravated robbery, a Class B felony. The trial court sentenced Petitioner as a Range III persistent offender to fifteen years for each of the simple robbery convictions and twenty-five years for the aggravated robbery conviction, with the sentences to be served concurrently for an effective sentence of twenty-five years. Thereafter, Petitioner filed a pro se petition, with one amendment filed by appointed counsel, for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court denied Petitioner relief, which resulted in this appeal wherein Petitioner claims ineffective assistance of counsel based on the following: (1) counsel failed to argue that the indictment concerning aggravated robbery was insufficient whereas it did not allege an essential element of the offense, i.e., that Petitioner used a deadly weapon to commit the crime; and (2) counsel pressured Petitioner to plead guilty, which coercion caused his plea to be involuntary and, therefore, constitutionally infirm. After a review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/williamsder.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN TBALink! SUBSCRIBE TO OPINION FLASH! For the HTML Text Version: UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: Home • Contact Us • PageFinder • What's New • Help |
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