Opinion FlashFebruary 12, 2002Volume 8 — Number 027 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 TENNESSEE SUPREME COURT RULE 40: GUIDELINES FOR GUARDIANS AD LITEM FOR CHILDREN IN JUVENILE COURT NEGLECT, ABUSE AND DEPENDENCY PROCEEDINGS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule40.wpd CANDACE FLECK v. COOPER REALTY MANAGEMENT COMPANY, et al. Court:TCA Attorneys: Christopher L. Taylor, Memphis, For Appellant, Candace Fleck John S. Golwen, John W. Campbell, Memphis, For Appellee, Schindler Elevator Corporation Judge: CRAWFORD First Paragraph: Plaintiff allegedly sustained injuries at Mid Memphis Tower Building when she exited an elevator which failed to level. She and her husband sued the building's management company and the company that owns the manufacturer of the elevator. The suit against the elevator company alleges that the company was negligent "by failing to insure that the elevator in question was properly inspected, maintained, and repaired." The elevator company's interrogatories, inter alia, requested the identity of any expert witness the plaintiffs planned to use at trial. Plaintiffs answered this interrogatory in December, 1998: "Plaintiffs have not identified such individuals at this time." The interrogatories were never supplemented, and the case was set for trial on December 1, 1999. In October, 1999, the elevator company filed a motion for summary judgment on the ground that the lack of an expert witness prevented plaintiffs from proving essential elements of the case. Plaintiffs were granted additional time within which to obtain an expert witness and subsequently announced that plaintiffs did not intend to have an expert witness. The trial court granted summary judgment to the elevator company. Subsequently, the building's management company settled its case and upon dismissal of that suit, the grant of summary judgment became final. Plaintiff-wife appealed. We reverse. http://www.tba.org/tba_files/TCA/fleckcan.wpd ANDREW LEE MAYS v. DEBORAH JANE ROGERS MAYS Court:TCA Attorneys: Kay Farese Turner and Martin W. Cash, Jr., Memphis, Tennessee, for the appellant, Andrew Lee Mays. Charles W. McGhee, Memphis, Tennessee, for the appellee, Deborah Jane Rogers Mays. Judge: FARMER First Paragraph: This is a divorce and child custody case. Husband sued for divorce, and Wife countersued. Husband dismissed his complaint on the day of trial. Wife was granted the divorce and custody of the parties' minor child. On appeal, Husband argues that the trial court erred in its division of marital property, its decision to deny Husband rehabilitative alimony, its award of attorney's fees to Wife, and its decision not to hear evidence on the issue of child custody. We affirm in part, reverse in part, and remand the case to the trial court for a hearing on child custody. http://www.tba.org/tba_files/TCA/maysa.wpd TRACY McGOWAN v. DOCTOR R. CRANTS and ALAN BARGERY Court:TCA Attorneys: Tracy McGowan, pro se. Tom Anderson, Jackson, Tennessee, for the appellees Doctor R. Crants and Alan Bargery. Judge: LILLARD First Paragraph: This is a civil lawsuit filed by a prisoner. The inmate filed a complaint against the prison warden and the chairman of the board of the company which owns and operates the prison, alleging negligence and violations of his constitutional rights. The inmate moved for default judgment, which was denied. The defendants then filed a motion for summary judgment, asserting that there were no material facts in dispute. The trial court granted the defendants' motion for summary judgment. The inmate now appeals. We reverse, finding that there are genuine issues of material fact. http://www.tba.org/tba_files/TCA/mcgowant.wpd LORENE NELSON, CO-ADMINISTRATOR v. LUCILLE CAMPBELL, IN RE: ESTATE OF MARTHA MURRAY Court:TCA Attorneys: Charles B. Hill, Kingston, Tennessee, for Appellant. Browder G. Williams, Harriman, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Plaintiff's action was held by the Probate Court to be barred by the equitable doctrine of laches. We dismiss the appeal for failure to file timely notice of appeal. http://www.tba.org/tba_files/TCA/nelsonl.wpd STATE OF TENNESSEE ex rel. JACQUELINE PATTERSON v. RICHARD FRENCH Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Kim Beals, Assistant Attorney General, and Stuart F. Wilson-Patton, Senior Counsel for General Civil Division, for the appellant, State of Tennessee. Richard French, Pro se. Judge: LILLARD First Paragraph: This is an attempt to collect child support arrearages. In a 1993 order, the father was ordered to pay current support as well as a lesser amount for an existing arrearage. The father failed to comply with this order. In 1999, the child reached majority. The State filed an action on the mother's behalf to set arrearage payments and hold the father in contempt. The trial court set the arrearage payments at an amount less than the total support the father had previously been ordered to pay. In addition, the trial court refused to consider the contempt petition because the child had reached majority. Finally, the court ordered the father to make payments through the clerk of the court rather than through the State disbursement unit. The State appeals all three decisions. We reverse, finding that the trial court was required to set the arrearage payments at the total amount of support previously ordered, that the child reaching majority is not a basis for refusing to consider the contempt petition, and that the father is required to make the payments through the State disbursement unit. http://www.tba.org/tba_files/TCA/pattersonj.wpd LINDSAY L. TAYLOR, PAMELA J. TAYLOR, and JOHN SIDNEY TAYLOR v. AL BEARD and SOUTHEASTERN MOTOR FREIGHT COMPANY, INC. Court:TCA Attorneys: Larry E. Parrish, Memphis, Tennessee, for the appellants Pamela J. Taylor and John Sidney Taylor Tim W. Hellen, Memphis, Tennessee, for the appellee Al Beard. Judge: LILLARD First Paragraph: This case involves the application of the statute of limitations to personal injury claims. The plaintiffs are the parents of a minor child who was injured in an automobile accident with the defendant in October 1995. The plaintiffs reached a settlement agreement with the defendants for compensation of their child's injuries, and the parties filed a joint petition with the trial court to have the settlement approved. For reasons which are unclear in the record, the trial court failed to approve the settlement. In February 1999, the plaintiffs withdrew the joint petition to approve the settlement and substituted a claim for damages on behalf of the minor child as well as the parents. In May 1999, the defendants filed a motion for summary judgment on the individual claims of the parents, arguing that these claims were barred by the one-year statute of limitations. The trial court granted the defendants' summary judgment motion. The plaintiffs appealed. We affirm, finding that the issues raised on appeal were not raised to the trial court and therefore cannot be considered on appeal. http://www.tba.org/tba_files/TCA/taylorpj.wpd BILLY WAYNE WALKER, individually and on behalf of his deceased wife, MAYREAN WALKER v. STATE OF TENNESSEE Court:TCA Attorneys: Al H. Thomas and Regina Guy, Memphis, TN for the appellant, Billy Wayne Walker. Thomas McAlexander, Memphis, TN for the appellee, State of Tennessee. Judge: LILLARD First Paragraph: This is a medical malpractice action before the Tennessee Claims Commission. The Commission found that the evidence presented by the plaintiff was insufficient to establish that the defendant's employees failed to meet the required standard of care. The plaintiff appealed the decision of the Claims Commission, asserting that the Commission improperly reviewed medical sources not presented at trial. We affirm, finding that the Commission did not base its decision on information outside the record and that any such review was harmless error. http://www.tba.org/tba_files/TCA/walkerbw.wpd STATE OF TENNESSEE v. JAMES CLEVELAND BREER Court:TCCA Attorneys: Michael L. Ainley and Vicki Hoover, Paris, Tennessee, for the appellant, James Cleveland Breer. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, James Cleveland Breer, was convicted by a Henry County jury of three counts of aggravated sexual battery. Tenn. Code Ann. S 39-13-504(a)(4). In this appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to convict him; (2) whether the trial court erred by allowing the jury to hear hearsay statements under the "prior consistent statement" rule; (3) whether the trial court erred by allowing the testimony of witnesses whose testimony either was not disclosed to defense counsel prior to trial or was disclosed too late for Defendant to properly prepare; and (4) whether the trial court erred by overruling Defendant's motions for a mistrial. Following a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/breerjamesc.wpd STATE OF TENNESSEE v. PRESTON CARTER Court:TCCA Attorneys: Coleman W. Garrett and Howard Manis, Memphis, Tennessee, for the appellant, Preston Carter. Paul G. Summers, Attorney General and Reporter; Elizabeth Ryan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Phillip G. Harris and Reginald Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Capital Defendant Preston Carter appeals as of right his sentences of death resulting from the 1993 murders of Thomas and Tensia Jackson. On January 24, 1995, Defendant Carter pled guilty to two counts of first-degree felony murder and, following a separate sentencing hearing, was sentenced to death. On direct appeal, our supreme court affirmed Carter's convictions for first-degree murder but reversed the sentences of death and remanded for a new sentencing hearing. Specifically, the Supreme Court found that, because the verdict forms omitted the beyond a reasonable doubt standard, the verdict forms were illegal, void, and of no effect. See State v. Carter, 988 S.W.2d 145, 153 (Tenn. 1999). Accordingly, the case was remanded to the Criminal Court for Shelby County for re-sentencing. At the conclusion of the resentencing hearing in February 2000, the jury found the presence of two statutory aggravating circumstances, i.e., (1) that the murder was especially heinous, atrocious or cruel, Tenn. Code Ann. S 39-13-204(i)(5), and (2) that the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person, Tenn. Code Ann. S 39-13-204(i)(2). The jury further determined beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances and imposed sentences of death. The trial court approved the sentencing verdict. Defendant Carter appeals presenting for our review the following issues: (1) whether the State's introduction of color photographs of the victims' corpses was unduly prejudicial, (2) whether the trial court erred in permitting the introduction of victim impact testimony, (3) whether the trial court improperly restricted the introduction of mitigating evidence, (4) whether the evidence is sufficient to support application of the heinous, atrocious, cruel aggravating circumstance, and (5) whether the evidence is sufficient to support application of aggravating circumstance (i)(2), prior violent felony conviction. After review, we find no error of law requiring reversal. Accordingly, we affirm the jury's imposition of the sentences of death in this case. http://www.tba.org/tba_files/TCCA/carterp.wpd STATE OF TENNESSEE v. JERMAINE DRIVER Court:TCCA Attorneys: Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Jermaine Driver. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Smith Nichols, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, Jermaine Driver, appeals his conviction of attempted first-degree murder, which was based on an assault by the defendant and two other men upon the victim. After a thorough review of the record, we conclude that there is sufficient evidence to establish that the assault was a premeditated and intentional attempt to kill the victim. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/driverj.wpd STATE OF TENNESSEE v. JAMES ROOSEVELT FLEMING, aka "WOO" Court:TCCA Attorneys: Frank Deslauriers, Covington, Tennessee, for the appellant, James Roosevelt Fleming. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of three counts of delivery of .5 grams or more of cocaine, a Schedule II controlled substance, and one count of simple possession of cocaine. The trial court imposed an effective sentence of twenty-six years. On appeal, the defendant argues that his sentences were excessive and the trial court erred in imposing consecutive sentencing. After a careful review of the record, we affirm the judgment of the trial court but remand for entry of corrected judgments in Counts 2 and 3. http://www.tba.org/tba_files/TCCA/flemingj.wpd GEORGE LANGFORD v. STATE OF TENNESSEE Court:TCCA Attorneys: Juni S. Ganguli, Memphis, Tennessee, for the appellant, George Langford. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Katrina Earley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, George Langford, was convicted of first degree felony murder, aggravated burglary, aggravated assault, and reckless endangerment. He was sentenced to life without the possibility for parole for the murder and to concurrent sentences of four, five, and two years for the other crimes respectively. The Defendant appealed his convictions and this Court affirmed the convictions and the sentences. Our supreme court granted the Defendant's application for appeal and also affirmed his convictions and sentences. The Defendant then filed a petition for post-conviction relief alleging ineffective assistance of counsel. The trial court dismissed the petition. The Defendant now appeals to this Court alleging that the trial court erred in denying him relief. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/langfordg.wpd MARVIN ANTHONY MATHEWS v. STATE OF TENNESSEE Court:TCCA Attorneys: Alicia A. Howard, Memphis, Tennessee, for the appellant, Marvin Anthony Mathews. Michael E. Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scott D. Gordon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Marvin Anthony Mathews, is currently serving a life sentence as an habitual criminal as a result of a larceny conviction. He filed for post-conviction relief, which petition the post- conviction court dismissed because of its untimeliness. The petitioner now appeals this ruling, arguing that the post-conviction court erred in finding the petition to be time-barred because the petitioner is serving an illegal sentence. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/mathewsm.wpd STATE OF TENNESSEE v. DONALD MAYS Court:TCCA Attorneys: AC Wharton, Jr., Shelby County Public Defender; W. Mark Ward, Assistant Shelby County Public Defender, Memphis, Tennessee, for the Appellant, Donald Mays. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Donald Mays, appeals the verdict of a Shelby County jury finding him guilty of one count of aggravated robbery and two counts of especially aggravated kidnapping. Mays was sentenced to 30 years for aggravated robbery and to 60 years on each count of kidnapping. The kidnapping sentences were ordered to be served concurrently, but consecutive to the aggravated robbery sentence, for an effective sentence of 90 years. On appeal, Mays raises the following issues for our review: (1) whether the evidence presented at trial is sufficient to support the verdict; (2) whether there was a material variance between the indictment and the proof; and (3) whether Mays' two convictions for kidnapping constitute double jeopardy. After review, we find Mays' multiple convictions for kidnapping violate double jeopardy principles. Accordingly, one count of kidnapping is dismissed. In all other respects, the remaining judgments of conviction are affirmed. http://www.tba.org/tba_files/TCCA/maysdonald.wpd STATE OF TENNESSEE v. ANTHONY DEWAYNE McELRATH Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); and Louis W. Ringger, Decaturville, Tennessee (at trial), for the appellant, Anthony Dewayne McElrath. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; G. Robert Radford, District Attorney General; and Jerry Wallace, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, Anthony Dewayne McElrath, was found guilty of sale of cocaine, a Class B felony. In this appeal, he challenges the sufficiency of the evidence to sustain the conviction, and argues that he was so prejudiced by the trial court's comments to a witness called by the defense, that the conviction should be reversed. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcelratha.wpd STATE OF TENNESSEE v. REGINALD MERRIWEATHER Court:TCCA Attorneys: J. Colin Morris, for the appellant, Reginald Merriweather. Paul G. Summers, Attorney General, Mark E. Davidson, Assistant Attorney General, Jerry G. Woodall, District Attorney General, and Donald H. Allen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: This case returns to this court after remand by order of the Tennessee Supreme Court. The defendant appeals his jury convictions of attempted second degree murder, aggravated assault, and especially aggravated robbery. He raises the following issues: (1) whether the trial judge erred in denying defendant's request for a mistrial based on a juror's response during voir dire; (2) whether the trial court erred in directing a witness to answer questions on cross-examination; (3) whether the evidence was sufficient to support his convictions; and (4) whether the trial court erred in failing to instruct the jury as to certain lesser-included offenses. This court initially reversed the appellant's conviction for aggravated assault, based on double jeopardy considerations, and affirmed the judgment of the trial court on all other issues. See State v. Reginald Merriweather, No. W1999- 2050-CCA-R3-CD, 2001 WL 242570 (Tenn. Crim. App., Jackson, March 6, 2001) (perm. to appeal granted). On June 5, 2001, the Supreme Court released its decision in the case of State v. Curtis Jason Ely and State v. Laconia Lamar Bowers, 48 S.W.3d 710 (Tenn. 2001). In Ely and Bowers, the Court announced new standards regarding the duty to instruct on lesser-included offenses. In light of the decision in Ely and Bowers, the Supreme Court remanded the case to this court to determine whether error in not instructing facilitation was harmless. See State v. Reginald Merriweather, No. W2001-02206-CCA-RM-CD, Madison County (Tenn., September 10, 2001). After revisiting this issue under the standards announced in Ely and Bowers, we reverse the defendant's convictions and remand this matter for a new trial. Because Ely and Bowers involve the issue of lesser-included offenses only, the remand does not alter the analyses in our original opinion as to other issues. However, the necessity of a new trial does render premature our earlier determination to dismiss the conviction for aggravated assault. So as to avoid confusion, sections I and II from our original opinion will be restated in their entirety. Sections III and IV, dealing with the conviction for aggravated assault and the issue of lesser- included offenses, have been changed. http://www.tba.org/tba_files/TCCA/merriweatherr2.wpd STATE OF TENNESSEE v. ANTHONY LEON MOORE Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee; George Morton Googe, District Public Defender; and Vanessa D. King, Assistant Public Defender, for the appellant, Anthony Leon Moore. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney General for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Madison County Circuit Court jury convicted the defendant, Anthony Leon Moore, of aggravated robbery, a Class B felony, and aggravated burglary, a Class C felony. The trial court sentenced him as a Range II, multiple offender to consecutive sentences of fifteen years in the Tennessee Department of Correction for the aggravated robbery conviction and ten years for the aggravated burglary conviction. The defendant appeals, claiming that (1) the evidence is insufficient to support his aggravated robbery conviction; (2) the trial court improperly enhanced his sentence for aggravated burglary; and (3) the trial court improperly found him to be a dangerous offender and ordered consecutive sentencing. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/moorea.wpd STATE OF TENNESSEE v. MAURICE LASHAUN NASH Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee (on appeal); J. Thomas Caldwell, Ripley, Tennessee (at trial), for the Appellant, Maurice LaShaun Nash. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Ryan Brown, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Maurice LaShaun Nash, was found guilty by a Tipton County jury of possession of a Schedule VI controlled substance with the intent to deliver, a Class E felony. The trial court sentenced Nash, as a Range I standard offender, to eighteen months in the Department of Correction. On appeal, Nash raises three issues for our review: (1) whether the search warrant was issued upon probable cause; (2) whether introduction of Nash's presence during a prior drug sale at the same residence constituted evidence of a prior bad act in violation of Rule 404(b) of the Tennessee Rules of Evidence; and (3) whether the evidence presented at trial was sufficient to support the verdict. After review, we find the issues presented are without merit. Accordingly, the judgment of conviction is affirmed. http://www.tba.org/tba_files/TCCA/nashml.wpd STATE OF TENNESSEE v. ANTHONY NORFLEET Court:TCCA Attorneys: Marvin E. Ballin, Memphis, Tennessee, for the appellant, Anthony Norfleet. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Karen Cook, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant was convicted by a jury of aggravated robbery. Defendant appeals on three grounds: (1) that insufficient evidence exists to uphold the conviction, (2) that the trial court erred in failing to instruct the jury as to the lesser-included offense of theft, and (3) that the trial court erred in rejecting defendant's guilty plea. We conclude there was no error and affirm. http://www.tba.org/tba_files/TCCA/norfleeta.wpd ANTHONY RICHARDSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Gerald Stanley Green, Memphis, Tennessee (on appeal) and John Finklea, Memphis, Tennessee (at trial) for the appellant, Anthony Richardson. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Elaine Sanders, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Anthony Richardson, was convicted of first-degree murder in the Shelby County Criminal Court. This Court affirmed the conviction on direct appeal. See State v. Richardson, 995 S.W.2d 119 (Tenn. Crim. App. 1998). Petitioner filed a petition for post conviction relief, which the post- conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issues: (1) whether the trial court's comments during a witness' testimony deprived him of his sixth amendment right to a jury trial; (2) whether Petitioner was denied his sixth amendment right to a jury trial when the trial court "forced" counsel to proceed to trial; (3) whether the prosecutor's biblical reference at trial constituted reversible error; and (4) whether there was a conflict of interest when the same judge presided at both his trial and post-conviction hearing. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/richardson.wpd STATE OF TENNESSEE v. YEVETTE SOMERVILLE Court:TCCA Attorneys: Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Yevette Somerville. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Yevette Somerville, was convicted of theft of property valued under $500, a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days in the county jail. As her sole issue on appeal, the defendant argues that the State's failure to inquire about and preserve potentially exculpatory evidence violated her due process rights under the United States and Tennessee Constitutions. Having reviewed the entire record, we conclude that the loss of the evidence did not unfairly prejudice the defendant's case. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/somerville.wpd JAMES P. STOUT v. STATE OF TENNESSEE Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee, for the appellant, James P. Stout. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas Hoover, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: On March 12, 1996, the petitioner, James P. Stout, was convicted by a jury in the Shelby County Criminal Court of one count of especially aggravated robbery and was sentenced to forty years incarceration in the Tennessee Department of Correction. The petitioner elected not to pursue a direct appeal of his conviction and instead filed a petition for post-conviction relief, alleging the ineffective assistance of his trial counsel. The post-conviction court denied the petition, and the petitioner now appeals this ruling. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/stoutjp.wpd MARCUS A. TERRY v. STATE OF TENNESSEE Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the Appellant, Marcus A. Terry. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Julie Mosley, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Marcus A. Terry, appeals the dismissal of his petition for post-conviction relief. Terry is currently serving a thirty-year sentence as a result of two convictions by a Shelby County jury for vehicular homicide. On appeal, Terry asserts: (1) that he received ineffective assistance of counsel at trial; and (2) that the trial court erred by failing to instruct the jury that he could potentially receive consecutive sentences for his multiple convictions. After review, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/terryma.wpd STATE OF TENNESSEE v. JAVON WEBSTER Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Javon Webster. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jerry Kitchen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Javon Webster, was convicted of felony murder and attempted especially aggravated robbery. The trial court sentenced the Defendant to life in the Department of Correction for the felony murder conviction. The trial court merged the Defendant's attempted especially aggravated robbery conviction with the felony murder conviction. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erred by admitting photographs of the deceased, (3) the trial court erred by denying the Defendant's request for a special jury instruction on duress, and (4) the trial court erred by denying the Defendant's motion to suppress his statement to police. The State also raises an issue on appeal, arguing that the trial court erred by merging the Defendant's conviction for attempted especially aggravated robbery into his felony murder conviction. We affirm the felony murder conviction and reinstate and remand for sentencing the especially aggravated robbery conviction. http://www.tba.org/tba_files/TCCA/websterj.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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