Opinion FlashJanuary 28, 2002Volume 8 — Number 016 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.
There are three ways for TBALink members to get the full-text versions of these opinions from the Web:
Howard H. Vogel STATE OF TENNESSEE v. JOHNNIE BELL, JR. Court:TSC Attorneys: George Todd East, Kingsport, Tennessee, for the appellant, Johnnie Bell, Jr. Paul G. Summers, Attorney and Reporter; Michael E. Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to determine the following issues: (1) whether the district attorney general abused his discretion by failing to consider and weigh evidence favorable to the defendant before denying the defendant's request for pretrial diversion; and (2) whether the trial court erred in upholding the denial of pretrial diversion despite the district attorney general's failure to consider and weigh evidence favorable to the defendant. A majority of the Court of Criminal Appeals recognized that the district attorney general abused his discretion by failing to consider and weigh all of the relevant factors, including evidence favorable to the defendant, but nevertheless concluded that the trial court properly found that substantial evidence supported the denial of pretrial diversion. After a thorough review of the record and relevant authority, we hold that when the district attorney general denies pretrial diversion without considering and weighing all the relevant factors, including substantial evidence favorable to the defendant, there is an abuse of prosecutorial discretion. We further hold that in such a case, the proper remedy under the applicable standards of review requires a remand for the district attorney general to consider and weigh all of the relevant factors to the pretrial diversion determination. The judgment of the Court of Criminal Appeals is reversed, and this case is remanded for the district attorney general's further consideration of the defendant's pretrial diversion application in a manner consistent with this opinion. http://www.tba.org/tba_files/TSC/belljohn_opn.wpd STATE OF TENNESSEE v. JOHNNIE BELL, JR. HOLDER DISSENTING http://www.tba.org/tba_files/TSC/belljohn_dis.wpd WHIRLPOOL CORPORATION v. KETKEO NAKHONEINH Court:TSC Attorneys: D. Russell Thomas and Herbert Schaltegger, Murfreesboro, Tennessee, for the appellant, Ketkeo Nakhoneinh. David Terence Hooper, Brentwood, Tennessee, for the appellee, Whirlpool Corporation. Judge: HOLDER First Paragraph: We granted this appeal to determine whether the employee proved by a preponderance of the evidence that (1) she complied with the notice requirement of Tenn. Code Ann. S 50-6-201 and that (2) her injury was caused by her employment as required by Tenn. Code Ann. S 50-6-103(a). We hold that she complied with the notice requirement and that her injury arose out of her employment. The judgment of the trial court and the Special Workers' Compensation Appeals Panel is reversed. The case is remanded to the trial court for proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/whirlpool.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0128.wpd CHERYL DIANE AUTRY v. JAMES TRAVIS AUTRY Court:TCA Attorneys: Thomas Edward Nelson, Nashville, Tennessee, for the appellant, James Travis Autry. Cheryl Diane Autry, Nashville, Tennessee, Pro Se. Judge: CAIN First Paragraph: This appeal involves the issuance of an order of protection. The parties were married on May 18, 1999. One minor daughter was born to the marriage. On June 10, 2001, there was a struggle between the parties over the child. The appellee sought an order of protection. A hearing was held on June 28, 2001, on Mrs. Autry's petition. Both parties were present at the hearing. After hearing the testimony, the trial court granted Mrs. Autry an order of protection, set child support, and ordered the minor child removed from TennCare insurance coverage. http://www.tba.org/tba_files/TCA/autrycheryl.wpd RANDALL DEWAYNE HENLEY, et al. v. RUSSELL DALE AMACHER, et al. Court:TCA Attorneys: Paul Campbell, Jr., Chattanooga, Tennessee, for the appellants, Kenneth D. Amacher and Russell Dale Amacher. Robert S. Peters, Winchester, Tennessee, for the appellees, Randall Dewayne Henley and Deborah Henley. Judge: KOCH First Paragraph: This appeal involves an early morning, drunken joyride by four teenagers that ended when their sport utility vehicle overturned. One of the passengers who was injured when he was thrown from the vehicle sued the driver and his father in the Circuit Court for Franklin County seeking $200,000. A jury assessed the passenger's damages and attributed 75% of the fault to the driver and 25% of the fault to the passenger. In accordance with the jury's verdict, the trial court awarded the passenger a $34,125 judgment against the driver and his father. On this appeal, the driver and his father take issue with (1) the allocation of less than 50% of the fault to the passenger, (2) the lack of evidence to support the application of the family purpose doctrine, (3) the awards for permanent impairment and future medical expenses, and (4) the trial court's refusal to give two requested instructions. We have determined that the only reversible error in the proceeding involves the jury's decision to award the passenger $20,000 for future medical expenses. Accordingly, we affirm the jury's verdict as to liability and allocation of fault. With regard to the damage award, we suggest a remittitur which, if accepted, will reduce the passenger's judgment to $19,125. http://www.tba.org/tba_files/TCA/henleyrd.wpd ALVIN MCNAIR v. CARLTON E. SMITH Court:TCA Attorneys: Carlton E. Smith, Pikeville, Tennessee, Appellant, pro se. Gary M. Kirk, Knoxville, Tennessee, for Appellee, Alvin McNair. Judge: FRANKS First Paragraph: The Trial Court entered Judgment finding a constructive trust and establishing its value on any interest defendant had in the property. On appeal, we affirm. http://www.tba.org/tba_files/TCA/mcnaira.wpd EVELYN ELAINE TOLLETT v. SHELBY LEE TOLLETT Court:TCA Attorneys: Phillip C. Lawrence, Chattanooga, Tennessee, for Appellant. Kiff L. Newkirk, Chattanooga, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Husband sought to set aside a Final Divorce Decree on the grounds of non-compliance with T.C.A. S36-4-103(a). The Trial Court refused. We Affirm. http://www.tba.org/tba_files/TCA/tollette.wpd STATE OF TENNESSEE v. JESSIE JAMES AUSTIN Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee (on appeal); Harold Gunn, Humboldt, Tennessee; Joseph P. Atnip, District Public Defender; and Kevin McAlpin, Assistant Public Defender, for the appellant, Jessie James Austin. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Allen Strawbridge, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Jessie James Austin, appeals as of right his convictions by a Weakley County Circuit Court jury for two counts of aggravated assault, a Class C felony. The trial court sentenced him as a Range III, persistent offender to twelve years in the Department of Correction for each count to be served concurrently. The defendant contends that the evidence is insufficient to prove either count of aggravated assault and that the trial court should have instructed the jury on the lesser included offense of reckless aggravated assault. We affirm the trial court's judgments of conviction. http://www.tba.org/tba_files/TCCA/austinj.wpd STATE OF TENNESSEE v. LAKEISHA JONES Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Tom W. Crider, District Public Defender, and J. Diane Stoots, Assistant Public Defender, Trenton, Tennessee (on appeal); and Ramsdale O'DeNeal, Jr., Jackson, Tennessee (at trial), for the appellant, Lakeisha Jones. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Hal Dorsey, Assistant District Attorney General; Ted Neumann, Assistant District Attorney General; and Guy Townsend, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Haywood County Circuit Court jury convicted the defendant, Lakeisha Jones, of second degree murder, and the trial court sentenced her as a violent offender to fifteen years in the Tennessee Department of Correction. The defendant appeals, contending that the evidence is insufficient to support her conviction and that the trial court failed to instruct the jury as to mutual combat. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/jonesl.wpd STATE OF TENNESSEE v. KHANH V. LE Court:TCCA Attorneys: A.C. Wharton, Jr., W. Mark Ward, and Robert W. Jones, Memphis, Tennessee, for the appellant, Khanh V. Le. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; John W. Pierotti, District Attorney General; Edgar A. Peterson, IV, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: On November 10, 1997, the appellant, Khanh V. Le, was convicted by a jury in the Shelby County Criminal Court of one count of first degree premeditated murder. The trial court sentenced the appellant to a term of life imprisonment in the Tennessee Department of Correction. The appellant filed an appeal, and this court affirmed the judgment of the trial court on March 9, 2000. Accordingly, the appellant filed an application for permission to appeal to our supreme court pursuant to Tenn. R. App. P. 11. The supreme court granted the appellant's application for the sole purpose of remanding the case to this court for reconsideration in light of the recent case of State v. Ely, 48 S.W.3d 710 (Tenn.), cert. denied, __ U.S. __, 122 S. Ct. 408 (2001). Upon reconsideration, we reverse the judgment of the trial court and remand this case for a new trial. http://www.tba.org/tba_files/TCCA/lekv_opn.wpd STATE OF TENNESSEE v. KHANH V. LE WOODALL CONCURRING ON REMAND http://www.tba.org/tba_files/TCCA/lekv_con.wpd STATE OF TENNESSEE v. KHANH V. LE WELLES CONCURRING http://www.tba.org/tba_files/TCCA/lekv_con2.wpd STATE OF TENNESSEE v. JEFFREY L. MARCUM Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, Stephen P. Spracher (at trial and on appeal), and J. Colin Morris (at trial), Jackson, Tennessee, for the appellant, Jeffrey L. Marcum. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; James G. "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, Jeffrey L. Marcum, appeals his convictions by a jury in the Madison County Circuit Court of one count of rape of a child, one count of aggravated sexual battery, and one count of incest. In this appeal, the appellant raises the following issues for our consideration: (1) whether the trial court erred under Tenn. R. Evid. 412 in limiting his cross-examination of the victim concerning her "sexual history and knowledge;" (2) whether the evidence adduced at trial is sufficient to support the jury's "verdict" of guilt; and (3) whether the trial court erred in failing to instruct the jury on the lesser-included offense of attempt to commit rape of a child. Following a careful review of the record and the parties' briefs, we affirm the judgments of the trial court for the offenses of aggravated sexual battery and incest, but we reverse the judgment for the offense of rape of a child and remand the case for a new trial on that charge. http://www.tba.org/tba_files/TCCA/marcumjl.wpd TIMOTHY POTTS v. STATE OF TENNESSEE Court:TCCA Attorneys: Scott G. Kirk, Jackson, Tennessee, for the appellant, Timothy Potts. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; James G. Woodall, District Attorney General; and Alfred Lynn Earls and James W. Thompson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Timothy Potts, pled guilty to second degree murder, a Class A felony, and was sentenced as a Range II, multiple offender to thirty-five years in the Tennessee Department of Correction. He appeals the trial court's denial of his petition for post-conviction relief, claiming (1) that his guilty plea was not knowingly, voluntarily, and intelligently made because he did not understand that he was pleading guilty as a Range II offender and (2) that he received the ineffective assistance of counsel. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/pottst.wpd IN RE: SPEEDY RELEASE BAIL BONDS Court:TCCA Attorneys: Marcus M. Reaves, Jackson, Tennessee, for the appellant, Speedy Release Bail Bonds. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The appellant, Speedy Release Bail Bonds, appeals the order of the Madison County Circuit Court denying its motion for reimbursement of a forfeited bail bond. Following a review of the record and the parties' briefs, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/speedy_opn.wpd IN RE: SPEEDY RELEASE BAIL BONDS MCGEE OGLE CONCURRING AND DISSENTING http://www.tba.org/tba_files/TCCA/speedy_con.wpd Liability coverage of Tennessee State Guard and members Date: January 10, 2002 Opinion Number: 02-011 http://www.tba.org/tba_files/AG/OP11.pdf Same Individual Running for Office of Sheriff and Constable Date: January 18, 2002 Opinion Number: 02-012 http://www.tba.org/tba_files/AG/OP12.pdf 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 |
|
© Copyright 2002 Tennessee Bar Association
|