Opinion FlashMay 28, 2002
Volume 8 Number 93
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
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Howard H. Vogel
STATE OF TENNESSEE v. DAVID WALTER TROXELL Court:TSC Attorneys: William B. (Jake) Lockert, III, District Public Defender, Twenty-Third Judicial District, for the appellant, David Walter Troxell. Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor General; Daryl J. Brand, Associate Solicitor General; Marvin E. Clements, Jr., Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Kim G. Menke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: The defendant, David Walter Troxell, was charged with possession with intent to sell and/or deliver a controlled substance after officers discovered approximately 300 grams of cocaine in the gas tank of his pickup truck. The trial court suppressed the evidence after finding that the search of the undercarriage and gas tank of the defendant's vehicle exceeded the scope of the defendant's consent to search. The Court of Criminal Appeals reversed the judgment of the trial court and remanded the case for further proceedings. After carefully considering the record and the relevant authorities, we conclude that the officer's search of the undercarriage and gas tank of the defendant's vehicle violated the Fourth Amendment to the United States Constitution and article I, S 7 of the Tennessee Constitution because it exceeded the scope of the defendant's consent and resulted in the prolonged and unreasonable detention of the defendant. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court. http://www.tba.org/tba_files/TSC/troxell_opn.wpd
STATE OF TENNESSEE v. DAVID WALTER TROXELL Court:TSC DROWOTA DISSENTING http://www.tba.org/tba_files/TSC/troxell_dis.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0527.wpd
IRENE NEIGHBORHOOD ASSOCIATION, A Tennessee Not for Profit Corporation, DR. BURGIN E. CLAIBORNE, LAVERENE RUSSELL, and HARRY STEWART v. QUALITY LIFE, LLC, d/b/a QUALITY LIFE COMMUNITIES, CITY OF MEMPHIS, MEMPHIS CITY COUNCIL, COUNTY OF SHELBY, and SHELBY COUNTY BOARD OF COMMISSIONERS Court:TCA Attorneys: David Wade and Elizabeth J. Landrigan, Martin, Tate, Morrow & Marston, P.C., of Memphis, Tennessee, for the appellants, Irene Neighborhood Association, Inc., a Tennessee Not for Profit Corporation, Dr. Burgin E. Claiborne, Laverene Russell, and Harry Stewart. Nathan A. Bicks, Burch, Porter & Johnson, PLLC, of Memphis, Tennessee, for the appellee, Quality of Life LLC d/b/a/ Quality Life Communities. Allan J. Wade and Lori Hackleman Patterson, Baker, Donelson, Bearman & Caldwell of Memphis, Tennessee, for the appellees, City of Memphis and Memphis City Council. Fred E. Jones, Jr., and Kelly Rayne Brayton of Memphis, Tennessee, for the appellees, County of Shelby and Shelby Board of County Commissioners. Judge: LILLARD First Paragraph: This is a challenge by a neighborhood association to the municipal approval of a proposed development. Both the county commission and the city council approved the challenged development. The neighborhood association filed a petition for a writ of certiorari and for injunctive relief against the county commission, arguing that the reconsideration of its original rejection of the development was invalid, and against the city council, arguing that the association did not receive proper notice of the council's vote on the development. The trial court granted summary judgment in favor of the defendants. We affirm, finding that the county commission could, within reasonable time limits, reconsider its original vote, and that the city council substantially complied with the applicable notice requirements. http://www.tba.org/tba_files/TCA/ireneneighborhood.wpd
ALEXIS JOHNSON and wife, GERRY JEAN JOHNSON, v. JESSIE DAVID MALONE and wife, NANCY MARIE MALONE, THOMAS MALONE and wife, REBECCA BETH MALONE Court:TCA Attorneys: Hallie H. McFadden, Chattanooga, Tennessee, for Appellants. Lynne D. Swafford, Pikeville, Tennessee, for Appellees. Judge: FRANKS First Paragraph: Plaintiffs alleged their neighbor's chicken houses constituted a nuisance and sought abatement. The Chancellor determined the operation was not a nuisance. On appeal, we affirm. http://www.tba.org/tba_files/TCA/johnsona.wpd
DEBORAH ANN SMITH KELLER v. DONALD LABRON KELLER Court:TCA Attorneys: D. Michael Bryant, Cleveland, Tennessee, for Appellant. Randy Sellers, Cleveland, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Appellant held in contempt by Trial Judge was ordered not to have any guns whatsoever around the parties' minor child. We affirm. http://www.tba.org/tba_files/TCA/kellerd.wpd
JOAN LOREVA KRETH v. TIMOTHY KERWIN KRETH Court:TCA Attorneys: David E. Caywood, Memphis, For Appellant, Timothy Kerwin Kreth Amy J. Amundsen, Memphis, For Appellee, Joan Loreva Kreth Judge: CRAWFORD First Paragraph: This case is before the Court on application for extraordinary appeal pursuant to Tenn. R. App. P. 10. The applicant-father filed a petition to modify the final decree of divorce concerning his child support obligation, because the minor child was currently living with him. Mother filed an answer stating that the child should not be living with father and that father was violating the provisions of the permanent parenting plan entered at the time of the divorce. Subsequently, Mother filed, among other things, a "Motion for Psychological Evaluation of the Parties and Their Child." The trial court granted the motion and ordered such psychological evaluations as requested. Father has filed an application for a Rule 10 appeal. We grant the application and reverse the order of the trial court and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/krethjoan.wpd
CONNIE J. OTIS v. LILY M. FRYE Court:TCA Attorneys: Van R. Michael, Sweetwater, Tennessee, for Appellant. Janet L. Hogan, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Plaintiff claimed damages from defendant's motor vehicle sliding into plaintiff's vehicle. The jury returned a verdict for defendant. On appeal, we affirm. http://www.tba.org/tba_files/TCA/otisc.wpd
STATE OF TENNESSEE v. CARL G. DODD Court:TCCA Attorneys: Jeffrey Harmon, Jasper, Tennessee, for the Appellant, Carl G. Dodd. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; James Michael Taylor, District Attorney General; and Will Dunn, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Carl G. Dodd appeals his rape conviction from the Rhea County Circuit Court. Dodd's conviction stems from a sexual assault upon a mentally retarded adult man. He is presently serving an eleven- year sentence in the Department of Correction for this crime. In this direct appeal, he claims that the trial court erred in admitting a psychological report as a business record even though it was not prepared by the agency through whose employee it was admitted, that the lower court erred in admitting evidence of the victim's statements to a caseworker about the crime, and that he was sentenced too harshly. Because we are unpersuaded of harmful error, we affirm. http://www.tba.org/tba_files/TCCA/doddcarig.wpd
STAT E OF TENNESSEE v. CHARLES KIRBY Court:TCCA Attorneys: Shannon A. Jones, Alamo, Tennessee, for the appellant, Charles Kirby. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; Garry Brown, District Attorney General; and Larry Hardister and William Bowen, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Charles Kirby, was found guilty of facilitation of the sale of cocaine in the amount of .5 gram or more. He was sentenced to five years incarceration in the Tennessee Department of Correction. The appellant timely filed a notice of appeal, alleging that the evidence is insufficient to support his conviction. After review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/kirbyc.wpd
STATE OF TENNESSEE v. STEVIE LAWSON Court:TCCA Attorneys: C. Christopher Raines, Mt. Carmel, Tennessee, for the Appellant, Stevie Lawson. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Doug Godbee and Jack Marecic, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Convicted of facilitation of aggravated burglary, theft, and contributing to the delinquency of a minor, the defendant appeals and claims that (1) the trial court erroneously admitted the videotape deposition of the aggravated burglary and theft victim, (2) the jury's verdicts were inconsistent, and (3) the testimony of an accomplice was not adequately corroborated. On the issue of the admission of the victim's videotape deposition that was taken to preserve his testimony, we hold that the assistant district attorney general who took the deposition lacked authority to administer the oath to the deponent and that the lack of authority effectively resulted in no deposition being taken. However, we hold that the resulting videotape was a hearsay statement that was admissible into evidence for lack of a timely objection and that no plain error review is warranted. We also hold that the verdicts are valid despite any apparent inconsistency among them and that the testimony of an accomplice was adequately corroborated. Finding no reversible error, we affirm. http://www.tba.org/tba_files/TCCA/lawsonstevie.wpd
JERMAINE A. PAINE v. STATE OF TENNESSEE Court:TCCA Attorneys: C. Ann Tipton, Memphis, Tennessee, for the appellant, Jermaine A. Paine. Paul G. Summers, Attorney General; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirch, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: On February 23, 1999, the Defendant, Jermaine Payne, pled guilty to one count of second degree murder and two counts of attempted first degree murder. He was sentenced to twenty-five years for the second degree murder and fifteen years for each of the attempted murders. The sentences were to be served concurrently. The Defendant subsequently filed a pro se Petition for Post-Conviction relief which was amended with the aid of appointed counsel. The petition alleged that the Defendant was denied effective assistance of counsel. A hearing was held on the petition on January 12, 2001, and relief was denied. The Defendant now appeals the trial court's denial of post-conviction relief. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/paineja.wpd
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