Opinion Flash

August 2, 2002
Volume 8 — Number 134

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):
 
01 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
08 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


MICHAEL EUGENE SAMPLE, et al. v. STATE OF TENNESSEE

Court:TSC

Attorneys:

David M. Eldridge, Knoxville, Tennessee, and Harry R. Reinhart,
Columbus, Ohio, for the appellant, Michael Eugene Sample.

Michael E. Moore, Solicitor General; Jennifer L. Smith and Erik W.
Daab, Assistant Attorneys General; William L. Gibbons, District
Attorney General; and Reginald Henderson and John W. Campbell,
Assistant District Attorneys General, for the appellee, State of
Tennessee.                        

Judge: ANDERSON

First Paragraph:

We granted review in this post-conviction capital case to address two
issues:  (1) whether the trial court properly ruled that the
petitioner's claim that the prosecution suppressed exculpatory
evidence was barred by the statute of limitations; and (2) whether the
trial court properly determined that the jury's reliance on the felony
murder aggravating circumstance in imposing a death sentence for the
offense of felony murder in violation of article I, S 16 of the
Tennessee Constitution was harmless error beyond a reasonable doubt. 
The Court of Criminal Appeals affirmed the denial of post-conviction
relief.

After carefully reviewing the record and applicable authority, we hold
that our decision in Wright v. State, 987 S.W.2d 26 (Tenn. 1999), did
not create a per se rule requiring the dismissal of all late-arising
suppression of exculpatory evidence claims, and that the record in
this case preponderates against the trial court's determination that
the petitioner's liberty interest in raising such an issue was
outweighed by the State's interest in finality.  We therefore remand
for further proceedings on this claim.  We further hold that the
violation of article I, S 16 of the Tennessee Constitution under the
present facts in the record was harmless error beyond a reasonable
doubt under State v. Howell, 868 S.W.2d 238 (Tenn. 1993).  We
therefore reverse the Court of Criminal Appeals' judgment and remand
to the trial court for further proceedings consistent with this
opinion.

http://www.tba.org/tba_files/TSC/samplem_opn.wpd

MICHAEL EUGENE SAMPLE, et al. v. STATE OF TENNESSEE

Court:TSC

BARKER CONCURRING IN PART, DISSENTING IN PART

http://www.tba.org/tba_files/TSC/samplem_dis.wpd

MICHAEL EUGENE SAMPLE, et al. v. STATE OF TENNESSEE

Court:TSC

DROWOTA CONCURRING

http://www.tba.org/tba_files/TSC/samplem_con.wpd

NICOLE JEAN KEELER v. MICHAEL WINN KEELER

Court:TCA

Attorneys:    

Andrew M. Cate, Nashville, Tennessee, for the appellant, Nicole Jean
Keeler.

Andrea C. Rawlings, Clarksville, Tennessee, for the appellee, Michael
Winn Keeler.                      

Judge: CANTRELL

First Paragraph:

In this divorce case, the trial court awarded the parties joint
custody of their minor children, with primary physical custody awarded
to the father.  The mother contends on appeal that she is the more fit
parent and should have been given primary custody.  We affirm the
trial court.

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

DON SHAFER, et al. v. CITY OF DICKSON, BOARD OF ZONING APPEALS, et al.

Court:TCA

Attorneys:  

Tony L. Turnbow, Franklin, Tennessee, for the appellants, Don Shafer
and Mary Shafer.

Dudley M. West, Nashville, Tennessee, for the appellees, Welton
Investments and Premier Construction Company, LLC.

Jerry V. Smith, Dickson, Tennessee, for the appellee, City of Dickson,
Board of Zoning Appeals.                        

Judge: COTTRELL

First Paragraph:

Petitioners sought common-law writ of certiorari in suit against Board
of Zoning Appeals, owner of property, and contractor, after the Board
granted a request for a setback variance to allow construction of a
proposed convenience store in Dickson, Tennessee, and the Board
declined to reconsider its decision.  The trial court granted the
Respondents' Motion to Dismiss for lack of subject matter jurisdiction
because the petition was filed outside the mandatory, jurisdictional
time requirement set forth in Tenn. Code Ann. S 27-9-102.  We affirm
the decision of the trial court because the petition was not filed
within the time limitation set forth in the statute and no basis was
shown for tolling the limitation period.

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

ROGER DALE THOMAS v. GAIL THOMAS

Court:TCA

Attorneys:         

Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Roger
Dale Thomas.

Joseph Ward Henry, Jr., Pulaski, Tennessee, for the appellee, Gail C.
Thomas.                 

Judge: COTTRELL

First Paragraph:

This appeal involves a husband's objection to the classification,
valuation, and distribution of the parties' property made by the trial
court as part of the divorce.  The parties agreed to and participated
in a procedurally unconventional process for submitting the property
issues to the court.  Each party met separately with the trial court,
submitted her and his respective positions regarding the
classification and valuation of the parties' property, and submitted
proposed distribution plans and other "exhibits" and documentation. 
After meeting with each party separately in chambers, the trial court
ordered the property to be divided according to the wife's proposal. 
Because neither a  transcript nor a statement of the evidence taken by
the trial court was filed, we must affirm the trial court's judgment
on the very fact-specific issues raised by the husband.

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

ROGER DALE THOMAS v. GAIL THOMAS

Court:TCA

KOCH CONCURRING

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

STATE OF TENNESSEE v. ISRAEL MICHUA CAMACHO

Court:TCCA

Attorneys:

Edward L. Kershaw, Greeneville, Tennessee, for the appellant, Israel
Michua Camacho.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Eric D. Christiansen, Assistant District Attorney
General, for the appellee, State of Tennessee.                       

Judge: TIPTON

First Paragraph:

The defendant, Israel Michua Camacho, appeals his convictions in the
Greene County Criminal Court for facilitation of possession of
one-half gram or more of cocaine with intent to deliver, a Class C
felony, and facilitation of possession of not less than ten pounds nor
more than seventy pounds of marijuana with intent to deliver, a Class
E felony.  The trial court sentenced him as a Range I, standard
offender to concurrent sentences of four years in the Tennessee
Department of Correction for the facilitation of possession of cocaine
conviction and two years for the facilitation of possession of
marijuana conviction.  The defendant claims that the evidence is
insufficient to support his convictions and that he deserves a new
trial because the state failed to provide the defense with a
discoverable videotape in a timely manner.  We affirm the judgments of
the trial court.

http://www.tba.org/tba_files/TCCA/camachoIm1.wpd

STATE OF TENNESSEE v. JAMES ALFRED CAREY

Court:TCCA

Attorneys:

Randy P. Lucas, Gallatin, Tennessee, for the Appellant, James Alfred
Carey.

Paul G. Summers, Attorney General; Jennifer L. Bledsoe, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and
Dee David Gay, Assistant District Attorney General, for the Appellee,
State of Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

The Defendant pled guilty to one count of selling less than 0.5 grams
of cocaine, a Schedule II controlled substance, and to three counts of
domestic assault.  The trial court sentenced the Defendant as a Range
II, multiple offender to ten years incarceration for the drug
conviction and to eleven months and twenty-nine days for each of the
assault convictions.  The trial court ordered that the sentences be
served concurrently, but consecutive to a prior sentence.  The
Defendant now appeals, arguing that he was improperly sentenced. 
Finding no error, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. DERRICK S. CHANEY

Court:TCCA

Attorneys:  

Gene Honea, Assistant Public Defender (on appeal), and John H.
Henderson, Jr., District Public Defender, Franklin, Tennessee (at
trial), for the Appellant, Derrick S. Chaney.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Derek K. Smith, Assistant District Attorney General, for
the Appellee, State of Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

The Defendant pleaded guilty to first offense DUI, for which he was
sentenced to eleven months and twenty-nine days incarceration,
suspended after service of forty-eight hours; and to driving with a
suspended, cancelled, or revoked license, for which he was sentenced
to six months incarceration, suspended after service of forty-eight
hours.  The trial court ordered that the two sentences be served
concurrently.  The Defendant was subsequently arrested for probation
violation, and the trial court conducted a hearing to determine
whether the Defendant's probation should be revoked.  At the
conclusion of the hearing, the trial court ordered that the Defendant
serve the remainder of his sentences in custody.  The Defendant
appeals this decision, arguing that the State failed to prove by a
preponderance of the evidence that he had violated his probation and
that the trial court erred by ordering him to serve his full sentence
in custody.  We conclude that sufficient evidence was presented at the
hearing to support revocation of the Defendant's probation and that
the trial court did not err by ordering the Defendant to serve his
sentence in custody.  We thus affirm the judgment of the trial court.

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

BLAKE E. HALLUM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Michael Noel, at trial and sentencing; and David A. Gold,
post-conviction, Nashville, Tennessee, for the appellant, Blake E.
Hallum.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Katrin Miller, Assistant District Attorney General, for
the appellee, the State of Tennessee.                      

Judge: SMITH

First Paragraph:

A Davidson County jury convicted the petitioner, Blake Edward Hallum,
of felony murder and especially aggravated robbery, and the trial
court sentenced the petitioner to serve consecutive sentences of life
imprisonment for his felony murder conviction and 17 years for his
especially aggravated robbery conviction.  The petitioner appealed his
convictions to this Court, and we affirmed  the judgment of the trial
court.  See State v. Richard Bruce Halfacre, No. 01C01-9703-CR- 00083,
1998 Tenn. Crim. App. LEXIS 1117, at *1 (Tenn. Crim. App. at
Nashville, Oct. 29, 1998).  The petitioner sought post-conviction
relief, and the trial court denied his petition after a hearing on the
merits.  The petitioner now appeals the trial court's denial of his
petition for post-conviction relief, alleging that he is entitled to
post-conviction relief because a state's trial witness testified at
the post-conviction hearing and contradicted her trial testimony,
invoked her Fifth Amendment right against self-incrimination, and/or
pleaded lack of memory in response to questions about the truthfulness
of her trial testimony.  After reviewing the record and applicable
case law, we find that the petitioner's claim does not merit relief.

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

MARIO HAWKINS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for appellant, Mario Hawkins.

Paul G. Summers, Attorney General & Reporter; T.E. Williams, III,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Kimberly Haas, Assistant District Attorney General, for
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

After a juvenile court transferred the petitioner's case, a Davidson
County grand jury indicted the petitioner on one count of first degree
murder. Following a jury trial, the petitioner stood convicted of this
offense and for this conviction received a life sentence. Thereafter
he unsuccessfully sought relief through a direct appeal. See State v.
Mario Hawkins, No. 01C01-9701- CR-00014, 1998 Tenn. Crim. App. LEXIS
685, at *2, *21 (Tenn. Crim. App. at Nashville, July 2, 1998).
Subsequently, he filed a pro se petition for post-conviction relief
and was appointed counsel. Counsel filed an amended petition alleging
ineffective assistance of trial counsel.  After conducting a hearing
on this matter, the trial court denied the petitioner the relief
requested.  Through this appeal the petitioner continues to assert
that trial counsel provided ineffective assistance by failing to
adequately investigate the petitioner's mental health and utilize this
information as a defense to the first degree murder charge. However,
after reviewing this assertion, we find it to lack merit. We,
therefore, affirm the trial court's denial of the post-conviction
petition.

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

STATE OF TENNESSEE v. JENNY BEA HUFFSTETLER

Court:TCCA

Attorneys:  

Mack Garner, Maryville, Tennessee, for the appellant, Jenny Bea
Huffstetler.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Mike Flynn, District Attorney General; and
Tammy Harrington, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: WELLES

First Paragraph:

The Defendant, Jenny Bea Huffstetler, pled guilty to three counts of
forgery, one count of fraudulent use of a credit card, one count of
misdemeanor assault, and one count of theft under $500.  For these
offenses, the Defendant received an effective sentence of three years
as a Range I, standard offender.  Her sentence was suspended and she
was placed on intensive probation.  Following a hearing on allegations
that the Defendant had violated the terms of her probation, the trial
court ordered the Defendant to serve nine months in jail and the
balance of her sentence on community corrections.  The Defendant now
appeals.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. TERRY STEWART MOORE

Court:TCCA

Attorneys:

Michael H. Meares (on appeal and at trial) and Charles Dungan (at
trial), Maryville, Tennessee, for the appellant, Terry Stewart Moore.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; and Tammy Harrington and William B. Reed,
Assistant District Attorneys General, for the appellee, State of
Tennessee.                        

Judge: WADE

First Paragraph:

The defendant, Terry Stewart Moore, was convicted of voluntary
manslaughter.  See Tenn. Code Ann. S 39-13-211.  The trial court
imposed a Range II sentence of 10 years.  In this appeal of right, the
defendant challenges the sufficiency of the evidence and argues that
the trial court erred by the admission of certain evidence.  The
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. TIMOTHY KEN SEXTON

Court:TCCA

Attorneys:

Donna Robinson Miller, Chattanooga, Tennessee (on appeal), and Michael
Acuff, Chattanooga, Tennessee (at trial), for the Appellant, Timothy
Ken Sexton.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Rodney C. Strong, Assistant District Attorney General,
for the Appellee, State of Tennessee.                       

Judge: WEDEMEYER

First Paragraph:

The Hamilton County Grand Jury indicted the fifteen-year-old
Defendant, charging him with second degree murder.  Following a
transfer hearing, the Defendant was tried as an adult. A Hamilton
County jury found the Defendant guilty of the indicted charge, and the
trial court sentenced him to twenty years in the Department of
Correction.  The Defendant now appeals, arguing the following:  (1)
that there was insufficient evidence to convict the Defendant of
second degree murder, (2) that the juvenile court erred by
transferring the Defendant to be tried as an adult, (3) that the trial
court erred by denying the Defendant's motion to suppress his
statement, (4) that the trial court erred by allowing the State to
cross-examine two character witnesses for the defense about their
knowledge of the Defendant's juvenile record, and (5) that the trial
court erred in sentencing the Defendant to twenty years in the
Department of Correction.  Concluding that the trial court erred by
allowing the State to introduce evidence of the Defendant's prior
juvenile record during the cross-examination of character witnesses
for the Defendant, we reverse and remand for a new trial.

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

Veteran's Service Officer under Tenn. Code Ann. S 58-3-111(c)

Date: July 29, 2002

Opinion Number: 02-083                         

http://www.tba.org/tba_files/AG/2002/OP83.pdf

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