Opinion Flash

September 16, 2002
Volume 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):
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
09 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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. 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

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