Opinion Flash

February 12, 2002
Volume 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.

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
17 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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Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

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Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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

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