Opinion FlashSeptember 16, 2002Volume 8 — Number 161 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 STATE OF TENNESSEE v. RICHARD HALE AUSTIN Court:TSC Attorneys: Frank J. Glankler, Jr. and Robert L. Hutton, Memphis, Tennessee, for the Appellant, Richard Hale Austin. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Amy L. Tarkington, Deputy Attorney General, for the Appellee, State of Tennessee. Judge: HOLDER First Paragraph: The appeal in this capital case arises from the resentencing of Richard Hale Austin, who originally was convicted and sentenced to death in 1977 as an accessory before the fact in the premeditated murder of Julian Watkins. This Court affirmed the conviction and sentence. See State v. Austin, 618 S.W.2d 738 (Tenn. 1981), cert. denied, 454 U.S. 1128 (1981). In 1997 the Sixth Circuit Court of Appeals granted habeas corpus relief as to Austin's sentence, holding that counsel was ineffective at the penalty phase of the original trial. See Austin v. Bell, 126 F.3d 843 (6th Cir. 1997), cert. denied, 523 U.S. 1079 and 532 U.S. 1088 (1998). Following a resentencing hearing, the jury again imposed a sentence of death, and the Court of Criminal Appeals affirmed. On automatic appeal under Tennessee Code Annotated section 39-13-206(a)(1) (1997), we designated the following issues for oral argument: 1) whether the trial court committed reversible error in excluding certain mitigating evidence; 2) whether the trial court committed reversible error in admitting victim impact evidence; and 3) whether the sentence of death is disproportionate, and all other issues mandated by Tennessee Code Annotated section 39-13-206(c)(1). Having carefully reviewed these issues and the remainder of the issues raised by Austin, we conclude that they do not warrant relief. Accordingly, we affirm the Court of Criminal Appeals in all respects. http://www.tba.org/tba_files/TSC/austinr_opn.wpd STATE OF TENNESSEE v. RICHARD HALE AUSTIN Court:TSC BIRCH DISSENTING http://www.tba.org/tba_files/TSC/austinr_dis.wpd STATE OF TENNESSEE v. RICHARD HALE AUSTIN Court:TSC APPENDIX http://www.tba.org/tba_files/TSC/austinr_apend.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0916.wpd ROY ERNEST YOUNG v. JOYLEE MAYHEW Court:TCA Attorneys: Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Roy Ernest Young. Dennis W. Plunk, Savannah, Tennessee, for the appellee, Joylee Mayhew. Judge: FARMER First Paragraph: This is an appeal by Father from an order of the court below adopting a permanent parenting plan which provided that Mother have responsibility for the care of the child except for the dates and times set forth therein. We affirm the trial court's order. http://www.tba.org/tba_files/TCA/youngr.wpd MICHAEL A. CARTER v. STATE OF TENNESSEE Court:TCCA Attorneys: Mike Anderson, Nashville, Tennessee, for the appellant, Michael A. Carter. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Sue Anderson and Kathy Morante, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner originally pled guilty to aggravated robbery on June 1, 2000. He sought post- conviction relief alleging he received ineffective assistance of counsel which led to an involuntary guilty plea. Following a hearing, the trial court dismissed the petition. We affirm. http://www.tba.org/tba_files/TCCA/carterma.wpd STATE OF TENNESSEE v. VASILE CAVOPOL Court:TCCA Attorneys: John Weithe (at trial and sentencing) and C. LeAnn Smith (on appeal), Nashville, Tennessee, for the Appellant, Vasile Cavopol. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Apparently serving probationary terms on judicial diversion, Vasile Cavopol attempts to appeal from the Davidson County Criminal Court. He claims (1) that the lower court should have dismissed the vandalism and resisting arrest cases against him when the state's witnesses did not appear for trial on two occasions and (2) that the evidence insufficiently supports the determinations of guilt. Because the defendant who was granted judicial diversion has no rightful appeal, we dismiss this appeal. http://www.tba.org/tba_files/TCCA/cavopolvasile.wpd STATE OF TENNESSEE v. JASON HOWARD COPELY Court:TCCA Attorneys: Mark E. Stephens, District Public Defender, and David Gall, Assistant District Public Defender, Knoxville, Tennessee, for the appellant, Jason Howard Copely. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; Marsha Mitchell, Assistant District Attorney General; and Ben Whitehouse, Special Prosecuting Attorney, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to facilitation of attempt to commit especially aggravated robbery. The trial court sentenced the Defendant as a Range II multiple offender to seven years in the Tennessee Department of Correction, with eleven months of the sentence to be served in the Knox County jail followed by probation for the remainder of the sentence. A probation violation warrant was subsequently issued against the Defendant, alleging that the Defendant had violated his probated sentence by leaving his residence without permission and by removing his electronic monitor. An amended probation violation warrant was later filed alleging that the Defendant had also violated his probation by committing misdemeanor theft. Following a hearing, the trial court revoked the Defendant's probation and ordered him to serve his sentence in the Tennessee Department of Correction. This appeal ensued. After reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/copelyjh.wpd STATE OF TENNESSEE v. JONATHAN OMAR ECHEVARRIA Court:TCCA Attorneys: Amy D. Harwell and C. Dawn Deaner, Assistant Public Defenders, Nashville, Tennessee, for the Appellant, Jonathan Omar Echevarria. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Jonathan Omar Echevarria, appeals from the sentencing decision of the Davidson County Criminal Court imposing a sentence of four years incarceration. The sentence arose from a guilty plea entered by Echevarria to one count of attempted aggravated robbery. In this appeal, Echevarria raises the issue of whether the trial court erred by ordering a sentence of total confinement rather than a less restrictive alternative. After review, we find no error. Accordingly, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/echevarriajon.wpd STATE OF TENNESSEE v. RANDAL WAYNE FAULK Court:TCCA Attorneys: Ross E. Alderman, Public Defender; Hollis I. Moore, Jr., Assistant Public Defender (at trial and on appeal); and Jeffrey A. DeVasher, Assistant Public Defender (on appeal), for the appellant, Randal Wayne Faulk. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and David G. Vorhaus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Davidson County jury of driving under the influence, third offense, and driving on a revoked license. He appeals only his DUI conviction, arguing the evidence was insufficient to support a finding that he was under the influence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/faulk.wpd STATE OF TENNESSEE v. ASATA LOWE Court:TCCA Attorneys: F. D. Gibson, Maryville, Tennessee, for the Appellant, Asata Lowe. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Michael L. Flynn, District Attorney General; Edward P. Bailey, Jr., Assistant District Attorney General; and Kirk E. Andrews, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Blount County jury convicted the Defendant of two counts of first degree premeditated murder and imposed concurrent sentences of life imprisonment without the possibility of parole. The jury also convicted the Defendant of especially aggravated robbery, and the trial court sentenced the Defendant to twenty-five years incarceration, to be served consecutive to the two sentences for first degree premeditated murder. The Defendant now appeals, raising the following issues: (1) whether the trial court properly instructed the jury on all lesser-included offenses raised by the evidence, (2) whether the trial court erred by refusing to instruct the jury on duress, necessity and accessory after the fact, (3) whether the trial court erred by allowing into evidence testimony regarding the Defendant's pending aggravated assault trial, (4) whether the trial court erred by allowing into evidence a magazine clip confiscated from the Defendant by police two months before the murders, (5) whether the trial court erred by refusing to find the sentencing provisions of the Tennessee homicide laws to be unconstitutional, (6) whether the Defendant's convictions for especially aggravated robbery and theft violated his right against double jeopardy, (7) whether the indictment was constitutionally defective on its face, and (8) whether there was sufficient evidence to convict the Defendant of the charged offenses. We affirm the judgment of the trial court, but remand for entry of a corrected judgment form in Count III of indictment number 11329. http://www.tba.org/tba_files/TCCA/lowea.wpd STATE OF TENNESSEE v. WILLIAM R. MCLEOD, JR. Court:TCCA Attorneys: Judson W. Phillips, Franklin, Tennessee, for the appellant, William R. McLeod, Jr. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon T. Guffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, William R. McLeod, Jr., pled guilty in the Williamson County Circuit Court to two counts of aggravated sexual battery, a Class B felony. Pursuant to the plea agreement, the defendant received an eight-year sentence for each conviction with the issue of concurrent or consecutive sentencing to be decided by the trial court. After a sentencing hearing, the trial court ordered that the defendant serve his sentences consecutively for an effective sentence of sixteen years in the Tennessee Department of Correction. The defendant appeals, claiming that the trial court erred in ordering consecutive sentences. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/mcleodw.wpd JOHN DAVID NEBLETT v. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, John David Neblett. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner originally pled guilty to aggravated vehicular homicide, vehicular assault, and second offense driving on a revoked license. The trial court sentenced him to an effective sentence of twenty-four years. The effective sentence was affirmed on direct appeal. The petitioner sought post- conviction relief, alleging an unknowing guilty plea and ineffective assistance of counsel. The post- conviction court denied relief. In this appeal, the petitioner contends the post-conviction court erred in summarily dismissing the petition based solely upon the guilty plea transcript. We disagree and affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/neblettj.wpd COREY LAMONT RADLEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Peter Skeie, Nashville, Tennessee, for the appellant, Corey Lamont Radley. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: In this appeal from the denial of post-conviction relief, the sole issue is whether petitioner was deprived of the effective assistance of counsel in proceedings that led to his conviction for first degree murder with a resulting life sentence. We find no merit to his arguments and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/radleycl.wpd Payment Professional Privilege Tax Date: September 11, 2002 Opinion Number: 02-097 http://www.tba.org/tba_files/AG/2002/OP97.pdf Payment Professional Privilege Tax Date: September 11, 2002 Opinion Number: 02-098 http://www.tba.org/tba_files/AG/2002/OP98.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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