Opinion FlashAugust 13, 2002
Volume 8 Number 140
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):
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Howard H. Vogel
WASHSHUKRU AL-JABBAR A'LA v. STATE OF TENNESSEE Court:TCA Attorneys: Washshukru Al-Jabbar A'La, pro se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General and Nichon Shannon, Assistant Attorney General, Nashville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Prisoner's claim for medical treatment was dismissed by Claims Commission on jurisdictional grounds. On appeal, we affirm and remand. http://www.tba.org/tba_files/TCA/ala_opn.wpd
WASHSHUKRU AL-JABBAR A'LA v. STATE OF TENNESSEE Court:TCA SWINEY CONCURRING http://www.tba.org/tba_files/TCA/ala_con.wpd
DEBRA DENECE BOLIN v. CARL DEAN BOLIN Court:TCA Attorneys: Carrie Kersh-Gasaway, Clarksville, Tennessee, for the appellant, Carl Dean Bolin. Gregory D. Smith, Clarksville, Tennessee, for the appellee, Debra Denece Bolin. Judge: FARMER First Paragraph: Wife filed for divorce soon after Husband was sentenced to four years in prison for causing the death of Son. The trial court granted Wife the divorce on the grounds of inappropriate marital conduct. The court also determined that section 31-1-106 of the Tennessee Code prohibited Husband from collecting his portion of Son's life insurance policy. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/bolind.wpd
KENNETH L. BONNER v. TENNESSEE DEPARTMENT OF CORRECTION CORRECTED OPINION Court:TCA Attorneys: Kenneth L. Bonner, Mountain City, Tennessee, Pro se. Paul G. Summers, Attorney General, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: COTTRELL First Paragraph: The petitioner contends that the trial court erred in dismissing his petition regarding the Department of Correction's calculation of his release eligibility date. An adjustment of the release eligibility date, made subsequent to the filing of this appeal, has rendered most of the petitioner's arguments moot. As to the remaining issue, we affirm the dismissal of the petition because we agree with the trial court that it lacked jurisdiction to consider the petition. http://www.tba.org/tba_files/TCA/bonnerkcorr.wpd
JULIA SLEDGE LEACH BRYAN v. JAMES WENDELL LEACH CORRECTED OPINION Court:TCA Attorneys: Wm. Kennerly Burger, Murfreesboro, Tennessee, Gregory D. Smith, Nashville, Tennessee, for the appellant, James Wendell Leach. James DuBois, Columbia, Tennessee, John A. Day, Nashville, Tennessee, for the appellee, Julia Sledge Leach Bryan. Judge: COTTRELL First Paragraph: This case involves post-divorce disputes over alimony and child support and issues of contempt of court. The father commenced this appeal after the trial court declined to modify or terminate his alimony obligation and awarded the mother more than $50,000 in child support arrearages and, later, found the father in contempt of court and ordered him to pay a fine of $100 per day until all judgments were paid to the mother. On appeal, the father argues that his alimony obligation should have terminated or decreased, that a portion of his child support payments should be placed in trust for the benefit of the children, and that the trial court erred by fining him for contempt. We affirm the trial court's orders but modify the fine imposed upon the father. http://www.tba.org/tba_files/TCA/bryanleachjcorr.wpd
JAMES R. CONE, deceased, by next friend TIM CONE v. STATE OF TENNESSEE Court:TCA Attorneys: Pamela R. O'Dwyer and Randall D. Larramore, Chattanooga, Tennessee, and Joseph K. Dughman, Nashville, Tennessee, for the Appellant James R. Cone, deceased, by next friend Tim Cone. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Michael B. Leftwich, Assistant Attorney General, Nashville, Tennessee, for the Appellee State of Tennessee. Judge: SWINEY First Paragraph: After his father was killed while crossing railroad tracks located in Sumner County, Tim Cone ("Plaintiff"), as next friend and on behalf of his father James R. Cone, sued the State of Tennessee ("Defendant") in the Claims Commission. Plaintiff claimed Defendant exercised control over the railroad crossing and was responsible for the dangerous condition at that crossing. Plaintiff also claimed Defendant negligently deprived James R. Cone of certain statutory rights. The Claims Commission granted Defendant's motion to dismiss for failure to state a claim upon which relief could be granted holding it did not have jurisdiction over Plaintiff's three claims. Plaintiff appeals. We affirm in part, reverse in part, and remand this case to the Claims Commission. http://www.tba.org/tba_files/TCA/conej.wpd
RONALD L. DAVIS v. THE TENNESSEAN, et al. CORRECTED OPINION Court:TCA Attorneys: Ronald L. Davis, Only, Tennessee, Pro se. Alfred H. Knight, Nashville, Tennessee, for the appellees, The Tennessean, et al. Judge: COTTRELL First Paragraph: The plaintiff filed a libel action against a newspaper, The Tennessean, its publisher and its editor, alleging his reputation had been harmed by a sentence in an article which stated that he had shot a man, when, in fact, his co-defendant had killed the victim. The trial court granted the defendants' motion to dismiss, finding the plaintiff to be "libel proof" in this matter because he had been convicted of aiding and abetting in the murder and incarcerated for the remainder of his life for the crime, "render[ing] any reputation he may have had virtually valueless." We affirm. http://www.tba.org/tba_files/TCA/davisrcorr.wpd
JEFFREY WAYNE HAITHCOTE v. DONAL CAMPBELL Court:TCA Attorneys: Jeffrey W. Haithcote, Shelbyville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Pamela S. Lorch, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: A prisoner convicted of numerous crimes filed a Petition for Declaratory Judgment, arguing that the Department of Correction had erred in its calculation of his sentence expiration date, and that he was entitled to be released. The Department stood by the correctness of its calculations. The petitioner's sentence expired during the course of the proceedings, and he was released. The trial court then dismissed the petition as moot. We affirm. http://www.tba.org/tba_files/TCA/haithcotej.wpd
MARCHELLA ANN RICHARDSON v. TERRY STACEY Court:TCA Attorneys: William Kennerly Burger, Murfreesboro, For Appellant, Terry Stacey Jeff Reed, Murfreesboro, For Appellee, Marchella Ann Richardson Judge: CRAWFORD First Paragraph: Plaintiff, landowner, sued defendant, adjoining landowner, to enjoin him from trespassing on her land, committing a nuisance, and for damages. Plaintiff secured a temporary restraining order, and after a nonjury trial, plaintiff was granted injunctive relief in several particulars and was awarded compensatory and punitive damages. Defendant appeals. We modify in part and affirm as modified. http://www.tba.org/tba_files/TCA/richardsonm.wpd
RONNIE SYKES v. ROBBIE RICHARDSON, et al. Court:TCA Attorneys: John H. Baker, III of Murfreesboro for Appellant, Ronnie Sykes Robert G. Wheeler, Jr., Nashville, for Appellees, Robbie Richardson and the Smith County Board of Education Judge: CRAWFORD First Paragraph: Tenured teacher filed a petition for review of board of education action discharging him from his teaching position. The trial court, the Honorable Don R. Ash, presiding by interchange, upheld the decision by the board of education. Petitioner appeals. We affirm. http://www.tba.org/tba_files/TCA/sykesr.wpd
STATE OF TENNESSEE v. ELMER W. CROSS Court:TCCA Attorneys: Ardena J. Garth, District Public Defender (on appeal), and Donna Robinson Miller (on appeal) and William Dobson (at trial), Assistant District Public Defenders, for the appellant, Elmer W. Cross. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and Lila Statom, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Elmer W. Cross, entered pleas of guilt to presenting a fraudulent insurance claim and arson. See Tenn. Code Ann. SS 39-14-133, 39-14-301. The trial court imposed Range I concurrent sentences of three years, granted probation for 10 years, and ordered restitution to his residential insurer in the amount of $24,752.03. In this appeal of right, the defendant asserts that the insurer is not a "victim" within the meaning of the statutory provisions authorizing restitution. See Tenn. Code Ann. S 40-35-304; State v. Alford, 970 S.W.2d 944 (Tenn. 1998) (holding that "the victim's insurer cannot be awarded restitution under Tenn. Code Ann. S 40-35-304"). Because the insurer in this case was the actual victim of the crimes, the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/crosselmer.wpd
CHAD DANIEL EASTERLY v. STATE OF TENNESSEE Court:TCCA Attorneys: Douglas Payne, Greeneville, Tennessee, for the appellant, Chad Daniel Easterly. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Eric Christiansen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Chad Daniel Easterly, pled guilty to kidnapping and evading arrest. The plea agreement included an effective eight year sentence as a Range I standard offender. The Defendant subsequently filed a post-conviction petition, alleging that his convictions were the result of ineffective assistance of counsel and prosecutorial misconduct. After a hearing, the trial court denied relief. The Defendant now appeals as of right. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/easterlycd.wpd
STATE OF TENNESSEE v. PERRY SINGO Court:TCCA Attorneys: William B. (Jake) Lockert, III, District Public Defender, for the appellant, Perry Singo. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his convictions for four counts of rape of a child and four counts of aggravated sexual battery, for which he received an effective sentence of 50 years, arguing: (1) his confession was involuntary; (2) the evidence was not sufficient to support his convictions; (3) the trial court erred in admitting sexually explicit photographs of the defendant depicting prior bad acts and improperly instructed the jury regarding consideration of the photographs; (4) the trial court improperly admitted defendant's letters and other writings; (5) the trial court improperly allowed a non-qualified witness to testify regarding certain matters; (6) the trial court failed to require the state to elect offenses; (7) the trial court erred in failing to charge the jury on simple assault as a lesser- included offense of aggravated sexual battery; and (8) the trial court erred in its oral response to a question posed by the deliberating jury. The state concedes the evidence is insufficient to support three of the child rape convictions, and we agree. We find no other reversible error. Therefore, we reverse and dismiss these three convictions and affirm all other convictions. We remand to the trial court for a redetermination of concurrent/consecutive sentencing. http://www.tba.org/tba_files/TCCA/singop.wpd
STATE OF TENNESSEE v. WADE P. TUCKER Court:TCCA Attorneys: Robert S. Peters, Winchester, Tennessee, for the Appellant, Wade P. Tucker. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steve Blount, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Wade P. Tucker, appeals from his Franklin County Circuit Court convictions of especially aggravated robbery and aggravated burglary. These convictions resulted from a bench trial in which the facts were stipulated by the defendant and the state. On appeal, the defendant challenges the sufficiency of the convicting evidence. We conclude that sufficient evidence supports the conviction of especially aggravated robbery; however, we hold that the conviction of aggravated burglary is infirm because the defendant, as an owner of the property, effectively consented to his entry into the house where the crime took place. Accordingly, we reverse and vacate the conviction of aggravated burglary but affirm the conviction of especially aggravated robbery. http://www.tba.org/tba_files/TCCA/tuckerwadep_opn.wpd
STATE OF TENNESSEE v. WADE P. TUCKER Court:TCCA ORDER Upon the court's sua sponte action, it is ORDERED that the opinion in this cause filed on July 17, 2002 is withdrawn, and in lieu thereof, the clerk shall file the replacement opinion attached to this order. http://www.tba.org/tba_files/TCCA/tuckerwadep_ord.wpd
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