Opinion FlashSeptember 26, 2002
Volume 8 Number 169
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. DAVID M. BLACK Court:TCA Judge: COTTRELL First Paragraph: The State has petitioned this court to rehear its decision in this case. The state also requested, and was twice granted, additional time to supplement or correct the appellate record to include an amended judgment reflecting the details of Mr. Black's 1997 conviction and sentencing. The State has now filed this amended judgment properly certified by the trial court which heard Mr. Black's petition for restoration of citizenship. The amended judgment was introduced at the hearing on the restoration petition but was not included in the record in the appeal. Because the trial judge has certified that the amended judgment was introduced and considered in the hearing, we grant the State's motion to supplement the record. http://www.tba.org/tba_files/TCA/blackdrehear.wpd
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. C. M. S., et al. Court:TCA Attorneys: Larry Samuel Patterson, Jr., Columbia, Tennessee, for the appellant, C.M.S. Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: COTTRELL First Paragraph: This case involves the termination of parental rights of the mother of two children, both of whom were born while the mother was a minor. At the time of the hearing the son was almost five and the daughter was almost three, and they have been in state custody since they were one year old and three months old, respectively. The trial court terminated the mother's parental rights because of the persistence of conditions which prevent the safe return of the children to the mother and because there was little likelihood the conditions would be remedied at an early date to allow a safe return in the near future. We affirm that decision. http://www.tba.org/tba_files/TCA/cms.wpd
WILLIAM H. HORTON v. TENNESSEE DEPT. OF CORRECTION, et al. WITH CONCURRING OPINION Court:TCA Attorneys: William H. Horton, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Pamela S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Tom Anderson, Jackson, Tennessee, for the appellee, Doctor R. Crants. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding two minor Class C disciplinary infractions. After his internal appeals were denied, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County challenging three procedural aspects of the disciplinary hearings. The Department filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss the petition. Instead of directing the Department to file the official records of the two proceedings, the trial court dismissed the prisoner's complaint regarding one proceeding and directed the Department to submit additional information regarding the other proceeding. After the Department submitted additional information, the trial court, now treating the Department's motion as a motion for summary judgment, dismissed the remainder of the prisoner's complaint. The prisoner has perfected this appeal. We have determine that the trial court properly dismissed the prisoner's challenges to the disciplinary proceeding regarding the being out of place infraction. However, we have determined that the prisoner has stated a claim with regard to the Department's compliance with Tenn. Dep't Corr. Policy No. 9502.01(VI)(D)(2) regarding the disrespect infraction. Therefore, we reverse the dismissal of this portion of the prisoner's petition and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/hortonw_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/hortonw_con.wpd
KENNETH E. NELSON, et al. v. METRIC REALTY, et al. Court:TCA Attorneys: H. Buckley Cole and Carol M. Joiner, Nashville, Tennessee, for the appellants, Kenneth E. Nelson and Nashville Lodging Co. Garry K. Grooms, Nashville, Tennessee, for the appellees, Metric Realty, Metric Realty Corp., Metric Holdings, Inc., Metric Management, Inc., GHI Associates II, L.P., Metric Realty Services, Inc., Chris Komanowski, Joseph D. Long, Ronald E. Zuzack, Robert A. Fiddaman, and W. Patrick McDowell. Judge: CAIN First Paragraph: Plaintiffs appeal the action of the trial court in converting a T.R.C.P. Rule 12.02 motion of those referred to as "affiliated defendants" into a T.R.C.P. Rule 56 motion and then granting it, and in sustaining a motion for summary judgment in favor of those described as "advisor defendants." The action against all Defendants asserted tortious interference with contract. Defendants appeal the trial court action in overruling their motion for summary judgment based upon the statute of limitations. We affirm the action of the Chancellor in granting summary judgment to the "affiliated defendants" and in granting the motion for summary judgment of the "advisor defendants." We further hold that the statute of limitations had expired as to all defendants. As modified, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCA/nelsonk.wpd
STATE OF TENNESSEE v. FREDDIE DEAN BLEDSOE Court:TCCA Attorneys: G. Earl Patton, Crossville, Tennessee, for appellant, Freddie Dean Bledsoe. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; Bill Gibson, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant was convicted by a jury of the offense of aggravated assault. He was sentenced to a term of six years incarceration and the jury assessed a $10,000 fine. On appeal he contends that the evidence is insufficient to support the verdict. After a careful review of the record we find that the evidence is sufficient to support the verdict and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bledsoefreddie.wpd
JERRY BRITT v. STATE OF TENNESSEE Court:TCCA Attorneys: P. Richard Talley and S. Douglas Drinnon, Dandridge, Tennessee, for the appellant, Jerry Britt. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Christopher Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner was charged with one count of aggravated sexual battery; five counts of rape of a child; two counts of possession with intent to sell or deliver a controlled substance; and six counts of the delivery of a controlled substance. The Petitioner subsequently pled guilty to two counts of possession with intent to sell or deliver a controlled substance and to six counts of the delivery of a controlled substance. He also entered an Alford plea to three counts of attempted rape of a child. Pursuant to his plea agreement, the trial court sentenced the Petitioner to an effective sentence of forty-eight years. The Petitioner subsequently filed a timely petition for post-conviction relief which was heard and denied by the trial court. In this post-conviction appeal, the Petitioner contends that he received ineffective assistance of counsel when he entered his pleas; that his counsel's deficient performance rendered his guilty pleas unknowing and involuntary; and that he should be granted post-conviction relief because of newly discovered evidence. Concluding that the Petitioner received adequate representation when he entered his plea; that his pleas were entered knowingly, voluntarily, and intelligently; and that the Petitioner is not entitled to post-conviction relief on the basis of newly discovered evidence, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brittj.wpd
STATE OF TENNESSEE v. EVANGELINE COMBS and JOSEPH D. COMBS WITH CONCURRING OPINION Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender; Terry L. Jordan, Assistant Public Defender; and Joseph F. Harrison, Assistant Public Defender, Blountville, Tennessee, for the appellant, Evangeline Combs; and Richard A. Spivey, Kingsport, Tennessee, for the appellant, Joseph D. Combs. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry Staubus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendants, Joseph D. Combs and Evangeline Combs (husband and wife), were charged by presentment returned by a Sullivan County grand jury with numerous offenses: Joseph Combs was indicted for one count of especially aggravated kidnapping, two counts of aggravated assault, one count of aggravated perjury, one count of aggravated rape, and seven counts of rape. Evangeline Combs was indicted for one count of especially aggravated kidnapping, three counts of aggravated assault, two counts of assault, and four counts of aggravated child abuse. Following the close of all proof, the trial court dismissed one count of aggravated assault in the presentment against both Defendants and three counts (one for aggravated assault and two for simple assault) against Evangeline, finding the offenses in these four counts were barred by the statute of limitations. Following deliberation, the jury found Defendant Evangeline Combs guilty of especially aggravated kidnapping and four counts of aggravated child abuse, and not guilty of one count of aggravated assault. Defendant Joseph Combs was found guilty of especially aggravated kidnapping, aggravated assault, aggravated perjury, and aggravated rape, in addition to seven counts of rape. Evangeline Combs received a sentence of 65 years, and Joseph Combs received an effective sentence of 114 years. The Defendants, represented by different counsel, filed separate notices of appeal. Thereafter, the two cases were consolidated to form the instant appeal which presents the following issues: (1) whether the trial court properly conducted voir dire proceedings; (2) whether the trial court erred by allowing the State to amend the presentment for especially aggravated kidnapping; (3) whether the State properly complied with Defendants' request for a bill of particulars regarding the charge of especially aggravated kidnapping; (4) whether the trial court improperly admitted evidence of prior bad acts; (5) whether the evidence was sufficient to support the Defendants' convictions; (6) whether the trial court's instructions to the jury included all appropriate lesser-included offenses; (7) whether the trial court failed to fully and properly instruct the jury concerning the especially aggravated kidnapping charge; (8) whether the trial court erred by failing to merge the convictions for certain offenses; and (9) whether the sentences imposed on both Defendants were proper. Defendant Joseph Combs additionally presents the issue of whether seven of his eight rape convictions should be reversed because the State failed to allege sufficient facts in the presentment to properly toll the statute of limitations for these offenses. After a thorough review of the record, we reverse Defendant Joseph Combs' conviction for aggravated perjury and remand the matter for a new trial on that charge. In all other respects, we affirm the judgments of the trial court as modified. http://www.tba.org/tba_files/TCCA/combse_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/combse_con.wpd
STATE OF TENNESSEE v. MELISSA D. HAYMAN Court:TCCA Attorneys: Mack Garner, Assistant District Public Defender, Maryville, Tennessee, for the appellant, Melissa D. Hayman. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Mike Flynn, District Attorney General; and William Reed, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: A jury convicted the Defendant, Melissa D. Hayman, of aggravated burglary, aggravated assault, and aggravated kidnapping. The trial court sentenced the Defendant as a Range I standard offender to six years each for the burglary and the assault convictions, and to twelve years as a Range I violent offender for the kidnapping. The six year sentences were ordered to be served consecutively to the twelve year sentence and to each other, for an effective sentence of twenty-four years. All of the Defendant's sentences were ordered to be served in the Department of Correction. In this direct appeal the Defendant contends that the kidnapping conviction violates her constitutional rights under State v. Anthony, and further challenges the length and manner of service of her sentences. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/haymanmd.wpd
STATE OF TENNESSEE v. JOSEPH LANTRIP Court:TCCA Attorneys: A C Wharton, Jr., District Public Defender, and Tony N. Brayton and William Yonkowski, Assistant Public Defenders, for the appellant, Joseph Lantrip. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilluly, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant pled guilty to aggravated rape and aggravated kidnapping. On appeal, defendant (1) asserts that the trial court erred in its application of enhancement factors to the sentences and (2) asserts that the imposition of consecutive sentences was improper. After reviewing the sentence de novo, we conclude that the trial court erred in sentencing defendant. We reverse and remand for resentencing. http://www.tba.org/tba_files/TCCA/lantripj.wpd
STATE OF TENNESSEE v. JEREMY WHITE Court:TCCA Attorneys: Mark S. McDaniel, Memphis, Tennessee, for the appellant, Jeremy White. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee and Alanda Dwyer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On May 2, 2000, a Shelby County Grand Jury indicted the appellant, Jeremy White, for attempt to commit first degree murder, especially aggravated robbery, especially aggravated burglary, and especially aggravated kidnapping. The appellant retained an attorney, Mark McDaniel, to defend him against the State's prosecution in the Shelby County Criminal Court. However, in addition to maintaining a private practice, McDaniel was a "part-time prosecutor" for the Town of Collierville in Shelby County. Accordingly, the State filed a motion to disqualify McDaniel from representing the appellant due to a conflict of interest. Following a hearing, the trial court granted the State's motion. From the trial court's order, the appellant now brings this interlocutory appeal. Having thoroughly reviewed the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/whitej.wpd
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