Opinion Flash

July 1, 2002
Volume 8 — Number 113

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.

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
00 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


STATE OF TENNESSEE v. RONNIE DANIEL

Court:TCCA

Attorneys:

Robert D. Massey, Pulaski, Tennessee, for the appellant, Ronnie
Daniel.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Mike Bottoms, District Attorney
General; and J. Douglas Dicus, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

On March 6, 1997, the defendant pled guilty to a two-count indictment
for passing worthless checks in an amount over $10,000, a Class C
felony, and in an amount over $1,000, a Class D felony.  He was
granted judicial diversion and placed on probation.  The trial court
subsequently revoked the defendant's diversion and sentenced him to
concurrent sentences of four years and six months for the Class C
felony and two years for the Class D felony, all suspended except
seven months service in the county jail.  In this appeal, the
defendant contends he should have received full probation or community
corrections upon being revoked from judicial diversion.  We disagree
and affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. WILLIE GIVENS

Court:TCCA

Attorneys:

David A. Gold and Lance B. Mayes, Nashville, Tennessee (on appeal),
and Randy P. Lucas, Gallatin, Tennessee (at trial), for the appellant,
Willie Givens.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Lawrence Ray Whitley, District
Attorney General; and Sallie Wade Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.                            

Judge: MCGEE OGLE

First Paragraph:

The appellant, Willie Givens, appeals his convictions by a jury in the
Sumner County Criminal Court of four counts of rape of a child and
eight counts of aggravated sexual battery.  The trial court sentenced
the appellant to consecutive terms of twenty-three years incarceration
in the Tennessee Department of Correction for each rape of a child
offense and concurrent terms of ten years incarceration in the
Department for each aggravated sexual battery offense, resulting in an
effective sentence of ninety-two years.  The appellant is required to
serve 100% of his sentences for rape of a child and aggravated sexual
battery in accordance with the terms of Tenn. Code Ann. S 39-13-523
(1997) and Tenn. Code Ann. S 40-35-501(i) (1997).  On appeal, the
appellant raises the following issues for our consideration: (1)
whether the trial court erred in failing to discharge juror Sadie
Groves during the appellant's trial; (2) whether the trial court erred
in admitting at trial audio tape recordings of extrajudicial
statements made by the appellant following his offenses; (3) whether
the State failed to properly elect an offense for each count of the
indictment; (4) whether the evidence adduced at trial is insufficient
to support the jury's verdicts; (5) whether the cumulative effect of
any errors requires the reversal of the appellant's convictions and
the remand of this case for a new trial; and (6) whether the trial
court imposed excessive sentences.  Following a thorough review of the
record and the parties' briefs, we affirm in part, affirm and remand
in part, reverse and remand in part, reverse and dismiss in part, and
merge in part the judgments of the trial court.

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

STATE OF TENNESSEE v. BARRY K. HARRIS

Court:TCCA

Attorneys:

John K. Henderson, District Public Defender, and Cynthia Diane
Crosier, Assistant Public Defender, for the appellant, Barry K.
Harris.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Ronald L. Davis, District
Attorney General; and Sharon T. Guffee, Assistant District Attorney,
for the appellee, State of Tennessee.                         

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of theft over $500.00, two counts of theft
over $1000.00, and driving on a suspended license with prior
convictions.  He was given an effective sentence of eighteen years in
the Department of Correction.  The defendant contends that the
sentence imposed by the trial court is excessive.  The trial court
followed the statutory sentencing procedure, imposed a lawful sentence
after considering and weighing the proper factors and principles set
out under sentencing law, and the trial court's findings of fact are
supported by the record.  Accordingly, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. THOMAS DEE HUSKEY

Court:TCCA

Attorneys:

Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for
the appellant, Thomas Dee Huskey.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Erik W. Daab, Assistant Attorney General; and
Randall E. Nichols, District Attorney General, for the appellee, State
of Tennessee.                        

Judge: TIPTON

First Paragraph:

The defendant, Thomas Dee Huskey, appeals as of right from his
convictions and sentences for aggravated rape, rape, aggravated
robbery, robbery, especially aggravated kidnapping, and aggravated
kidnapping, for which he received an aggregate sentence of sixty-six
years.  The convictions relate to four victims and result from two
trials that were consolidated for this appeal.  The defendant raises
numerous issues.  Although we conclude that several errors occurred,
only one  requires reversal of any convictions.  Because of improper
consolidation, we reverse the judgments for the three aggravated rape
convictions and one especially aggravated kidnapping conviction
relating to the victim, D.C., but we affirm the remaining judgments of
conviction.

http://www.tba.org/tba_files/TCCA/huskeytd438.wpd

STATE OF TENNESSEE v. RHONDA PATRICIA MAYES

Court:TCCA

First Paragraph:

The opinion and judgment entered June 24, 2002, are hereby VACATED and
WITHDRAWN.  A corrected opinion and judgment will be filed in due
course.

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

STATE OF TENNESSEE v. DON WOODY MCGOWAN

Court:TCCA

Attorneys:

Philip A. Condra, District Public Defender, Jasper, Tennessee, for the
appellant, Don Woody McGowan.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General;  James Michael Taylor, District Attorney
General; Steve Blount, Assistant District Attorney General; and Sherry
Gouger, Assistant District Attorney General, for the appellee, State
of Tennessee.                      

Judge: WOODALL

First Paragraph:

Defendant, Don Woody McGowan, was convicted by a Marion County jury of
possession of drug paraphernalia, a Class E felony.  Defendant appeals
his conviction, presenting the following issues for review: (1)
whether the evidence was sufficient to support his conviction; (2)
whether he was denied a fair trial by the trial court's denial of his
motion to sever the cases when the co-defendant failed to appear on
the second day of trial; (3) whether the trial judge erred by failing
to recuse himself; and (4) whether his sentence was proper.  After a
review of the record, we find that the evidence was insufficient to
sustain the conviction.  The judgment of the trial court is reversed,
and the case is dismissed.

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

STATE OF TENNESSEE v. STEVEN MURRAY

Court:TCCA

Attorneys:  

Walter B. Johnson, III, Harriman, Tennessee, for the appellant, Steven
Murray.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Frank Harvey, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: WOODALL

First Paragraph:

In this case, the Defendant, Steven Murray, pled guilty to assault.
The Criminal Court of Roane County sentenced Defendant to serve the
agreed-upon 11 months and 29 days, suspended, on supervised probation,
and ordered restitution in the amount of $10,622.75.  In his sole
issue on appeal, Defendant asserts that the trial court erred in the
amount of restitution ordered and requests that the order of
restitution be set aside and this case remanded for a new hearing.  We
have found a clerical error in the order setting forth the conditions
of probation and remand for correction of that order.  Otherwise, the
judgment of the criminal court is affirmed.

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

RODNEY TIPTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Rodney Tipton, pro se, Mountain City, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; Michael
L. Flynn, District Attorney General; and Edward P. Bailey, Jr.,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                      

Judge: HAYES

First Paragraph:

The Appellant, Rodney Lee Tipton, proceeding pro se, appeals from the
dismissal of his petition for post-conviction relief.  Tipton was
convicted by a Blount County jury of aggravated rape and aggravated
robbery and received an effective thirty-three year sentence in the
Department of Correction.  On appeal, Tipton argues that he should
receive a new trial based upon the following grounds: (1) the State's
refusal to respond to his discovery requests, and the post-conviction
court's failure to address his motion to compel discovery; (2) denial
of the right to represent himself at his post-conviction hearing; (3)
denial of his right to testify at trial; (4) ineffective assistance of
counsel; (5) prosecutorial misconduct; (6) actual innocence; (7) the
cumulative effect of all errors; and (8) the post-conviction court's
failure to enter specific findings of fact and conclusions of law. 
After a review of the record, we affirm the dismissal of Tipton's
petition for post-conviction relief.

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

JOHN C. TOMLINSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

John C. Tomlinson, Mountain City, Tennessee, Pro Se.

Michael E. Moore, Solicitor General; David H. Findley, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General;
and Jon P. Seaborg, Assistant District Attorney General, for the
appellee, State of Tennessee.                           

Judge: RILEY

First Paragraph:

The petitioner appeals the trial court's denial of the appointment of
counsel and the dismissal of his petition for writ of habeas corpus. 
For many and varied reasons, we affirm.

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

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