Opinion Flash

February 5, 2002
Volume 8 — Number 022

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


SAM MIRABELLA, et al. v. STATE OF TENNESSEE, et al.

Court:TCA

Attorneys:

Billy J. Stokes, Knoxville, Tennessee, for the Appellants Sam
Mirabella, Marie Mirabella, Charles Mirabelle and Joanne Mirabella

Ronald C. Leadbetter, Associate General Counsel, The University of
Tennessee, Knoxville, Tennessee, for the State of Tennessee and The
University of Tennessee                        

Judge: GODDARD

First Paragraph:

This is a suit by Sam Mirabella and his son Charles Mirabella and
their wives, seeking damages against the State of Tennessee and the
University of Tennessee for damages incurred as a result of the
unlawful arrest of both Mr. Mirabellas and negligence resulting in
injury to Sam Mirabella.  The Trial Court found it did not have
jurisdiction to hear the unlawful arrest claim and awarded damages for
the injury to Sam Mirabella in the amount of $4528 and to his wife in
the amount of $800.  As to Sam Mirabella we modify the judgment to
increase the award to the sum of $11,528 and as to his wife $1800.

http://www.tba.org/tba_files/TCA/mirabellas.wpd

JOHN KEVIN POORE v. SONYA JOYCE POORE

Court:TCA

Attorneys: 

Leslie Richard Hunt, Clinton, Tennessee, for Appellant.

Edward R. Sempkowski, Morristown, Tennessee, for Appellee.                         

Judge: FRANKS

First Paragraph:

In this custody dispute, the Trial Court awarded custody of the
children to the father who was not the biological parent of one of the
children.  We vacate the Judgment as to that child and remand  with
instructions to apply the correct analysis of the evidence as to the
custody of the child.

http://www.tba.org/tba_files/TCA/poorej.wpd

IN RE: GUARDIANSHIP OF ASHLEY J. TATUM, A MINOR

Court:TCA

Attorneys:

Earle J. Schwarz, Memphis, For Appellant, BellSouth

Michael G. McLaren; Vickie Hardy Jones, Memphis, For Appellee,
Fidelity & Deposit Company of Maryland                         

Judge: CRAWFORD

First Paragraph:

This case involves liability for misappropriation of funds in a
guardianship estate.  After a guardian was appointed by the probate
court, Fidelity and Deposit Company of Maryland executed a
guardianship bond as surety.  The order appointing the guardian
provided for the guardian's attorney to have joint control of the
guardianship estate with the guardian.  BellSouth Telecommunications,
Inc. owed certain sums to the ward and was notified by the guardian's
attorney of the joint control provision.  The guardian's attorney also
requested that the funds be sent to him to be deposited in the
guardianship accounts.  BellSouth ignored the request and sent the
check payable to the guardian.  Subsequently, the guardian
misappropriated the funds, and the substitute guardian was awarded
judgment against F & D.   F & D filed a third party complaint against
BellSouth for the sums so paid, and after a nonjury trial, the probate
court entered judgment for F & D against BellSouth.  BellSouth has
appealed.  We affirm.

http://www.tba.org/tba_files/TCA/tatumash.wpd

STATE OF TENNESSEE v. DELORES ANN BABB

Court:TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender, for the appellant, Delores
Ann Babb.

Paul G. Summers, Attorney General and Reporter; T. E. Williams, III,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: RILEY

First Paragraph:

The defendant was found guilty of DUI by a Henry County jury and
sentenced to 11 months and 29 days, all suspended except for ten days.
 On appeal, she argues the evidence was insufficient to support her
conviction.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/babbda.wpd

STATE OF TENNESSEE v. TORAYO OLANDIS BROWN

Court:TCCA

Attorneys: 

Jeannie Kaess, Bolivar, Tennessee, for the appellant, Torayo Olandis
Brown.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; and Walt Freeland, Assistant District
Attorney General, for the appellee, the State of Tennessee.                         

Judge: WADE

First Paragraph:

The defendant, Torayo Olandis Brown, was convicted of possessing with
intent to deliver more than .5 grams of cocaine, a class B felony. 
The trial court imposed a sentence of eight years and nine months,
ordering eight months to be served in the local jail and the balance
to be served in a community corrections program.  In this appeal of
right, the defendant contends that (1) the evidence is insufficient to
support his conviction; (2) the trial court erred by allowing the
state to impeach him with a prior conviction; and (3) the state
improperly argued that he was impeached by the prior conviction. 
Because of plain error in the trial court's failure to provide a
limiting instruction relating to the impeachment evidence, the
judgment is reversed and the cause is remanded for a new trial.

http://www.tba.org/tba_files/TCCA/brownto.wpd

STATE OF TENNESSEE v. EARL DEWAYNE COLE

Court:TCCA

Attorneys:

Stephen P. Spracher, Assistant Public Defender, Jackson, Tennessee,
for appellant, Earl Dewayne Cole.

Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Jody
Pickens, Assistant District Attorney, for appellee, State of
Tennessee.                         

Judge: SMITH

First Paragraph:

The appellant, Earl Dewayne Cole, was convicted by a Madison County
jury of the offense of aggravated assault with a deadly weapon.  He
was sentenced as a Range II offender to a term of seven (7) years
incarceration in the Tennessee Department of Correction.  In this
appeal the appellant claims the trial judge failed to adequately
respond to a jury question regarding the need for unanimity in their
verdict, that the written jury instructions showed the victim's name
and weapon only under the main charge, and that the trial judge should
have considered a lesser offense at sentencing.  We find that all of
these alleged errors have been waived by the failure of the appellant
to enter a contemporaneous objection to them, by the failure to raise
these issues in the motion for a new trial, and by the failure of the
appellant on appeal to cite to any relevant authority supporting his
arguments.  Moreover, we find that none of these alleged errors
constitute plain error.  We therefore affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/coleearld.wpd

STATE OF TENNESSEE v. TIMOTHY TEREZE DEWALT

Court:TCCA

Attorneys:

James S. Haywood, Jr., Brownsville, Tennessee, for the appellant,
Timothy Tereze Dewalt.

Paul G. Summers, Attorney General and Reporter; T.E. Williams, III,
Assistant Attorney General; and Steven L. Garrett and Beth Boswell,
Assistant District Attorneys General, for the appellee, the State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Timothy Tereze Dewalt, was indicted for selling a
controlled substance, a Class C felony.  After his plea of guilty, the
trial court imposed a standard Range I sentence of four years.  In
this appeal of right, the defendant contends (1) that he was denied
the right to counsel and (2) that his sentence is excessive.  The
judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/dewalttt.wpd

STATE OF TENNESSEE v. TERRENCE JEROME JACKSON

Court:TCCA

Attorneys:  

George Morton Googe, District Public Defender; and Stephen P.
Spracher, Assistant District Public Defender, for the appellant,
Terrence Jerome Jackson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
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: RILEY

First Paragraph:

The defendant appeals the revocation of his probation and
reinstatement of his original six-year sentence for aggravated
assault.  The trial court found the defendant violated the terms of
his probation by failing to verify employment, failing to exhibit
conduct consistent with good citizenship, and failing to comply with
curfew requirements; thus, it revoked his probation.  We affirm.

http://www.tba.org/tba_files/TCCA/jacksont.wpd

STATE OF TENNESSEE v. CHRISTOPHER D. LANIER

Court:TCCA

Attorneys:

Coleman W. Garrett, Memphis, Tennessee, for the Appellant, Christopher
D. Lanier.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Julie Mosley, Theresa McCusker and Lee Coffee, Assistant
District Attorneys General, for the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

The defendant, Christopher D. Lanier, was convicted by a Shelby County
jury of possession of one- half gram or more of cocaine with intent to
deliver, and the trial court sentenced him as a Range I offender to
incarceration for nine years in the Department of Correction.  On
appeal, he challenges the sufficiency of the convicting evidence and
the trial court's decision to not require a police officer who
testified for the state to reveal the identity of a confidential
informant.  Finding no error warranting reversal, we affirm.

http://www.tba.org/tba_files/TCCA/lanierc.wpd

STATE OF TENNESSEE v. ROLAND G. RANSOM

Court:TCCA

Attorneys:

William D. Massey, Memphis, Tennessee, for the appellant, Roland G.
Ransom.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephen P. Jones and William D. Bond, III, Assistant
District Attorneys General, for the appellee, State of Tennessee.     
                  
Judge: RILEY

First Paragraph:

Pursuant to a negotiated plea agreement, the defendant pled guilty to
facilitation of the sale of cocaine greater than 0.5 grams for an
agreed sentence of four years, with the manner of service to be
determined by the trial court.  Following a sentencing hearing, the
trial court denied alternative sentencing.  In this appeal, the
defendant challenges the denial of alternative sentencing.  We affirm.

http://www.tba.org/tba_files/TCCA/ransomr.wpd

STATE OF TENNESSEE v. EDWARD ARNOLD RIVERA

Court:TCCA

Attorneys:

Curtis F. Hopper, Savannah, Tennessee, for the appellant, Edward
Arnold Rivera.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Robert Radford, District Attorney General;
and John W. Overton, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Edward Arnold Rivera, was indicted by a Hardin County
grand jury on two counts of official misconduct, each a felony, and
one count of misdemeanor theft.  The Defendant submitted an
application for pre-trial diversion which was denied by the District
Attorney General.  The Defendant filed a petition for a writ of
certiorari in the Hardin County Circuit Court pursuant to Tennessee
Rule of Criminal Procedure 38 for review of the denial of pre-trial
diversion.  The Circuit Court found no abuse of discretion, denied the
petition, and granted the Defendant leave to seek an interlocutory
appeal to this Court pursuant to Tennessee Rule of Appellate Procedure
9(a).  The Defendant contends on appeal that (1) the District Attorney
General abused his discretion in denying pre-trial diversion and (2)
the record does not support the denial.  This Court granted the
Defendant's application, and we now affirm the Circuit Court's denial
of the petition.

http://www.tba.org/tba_files/TCCA/riveraea.wpd

MICHAEL W. SMITH v. JAMES DUKES, WARDEN

Court:TCCA

Attorneys:

Michael W. Smith, Henning, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Petitioner, Michael W. Smith,  filed a "Petition for Writ of Habeas
Corpus" in the Circuit Court of Lauderdale County.  He alleged that
his conviction for escape in the Circuit Court of Hardeman County was
invalid because of an illegal and void sentence.  Petitioner did not
attach to his petition the Hardeman County judgment or any other
portion of that record.  He also alleged that the sentence had been
served, that he was illegally sentenced as a Range II offender because
he had no prior felony convictions, and that no enhancement factors
could properly be applied to a Range I sentence.  The trial court
summarily dismissed the petition and assessed trial court costs
against Petitioner, who now appeals both the summary dismissal of his
petition and the assessment of costs against him.  We affirm the
dismissal of the petition for writ of habeas corpus, but reverse that
portion of the order taxing costs to Petitioner.

http://www.tba.org/tba_files/TCCA/smithm.wpd

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