Opinion FlashOctober 21, 2002Volume 8 — Number 185 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel DANIEL M. JOHNSON v. SCHLEGEL TENNESSEE, INC. a/k/a/ BTR SEALING SYSTEMS NORTH AMERICA OPERATIONS d/b/a BTR, INC. and CIGNA PROPERTY & CASUALTY Court:TSC - Workers Comp Panel Attorneys: F. R. Evans, Chattanooga, Tennessee, for the appellants, Schlegel Tennessee, Inc. a/k/a BTR Sealing Systems, North America Operations d/b/a BTR, Inc. and Cigna Property & Casualty. Rex A. Dale, Lenoir City, Tennessee, for the appellee, Daniel M. Johnson. Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant appeals the trial judge's decision that the plaintiff has a permanent disability to the mental faculties which was caused by exposure to chemicals in the workplace. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/johnsond.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1021.wpd STATE OF TENNESSEE v. CLARENCE W. CARTER Court:TCCA Attorneys: C. Edward Fowlkes, Nashville, Tennessee, for the appellant, Clarence W. Carter. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General; John Zimmerman and Anna Escobar, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On March 29, 2000, a Davidson County jury convicted the defendant on one count of conspiracy to sell three hundred grams or more of a substance containing cocaine and one count of possession with intent to deliver twenty-six grams or more of a substance containing cocaine. For the conspiracy conviction the trial court sentenced him to thirty-six years as a multiple offender, and for the possession charge the defendant received a sixteen-year sentence also as a multiple offender. In addition, the trial court fined the defendant one hundred thousand dollars on each count. The court then determined that the possession conviction should run consecutively to the conspiracy conviction resulting in an effective sentence of fifty-two years. After unsuccessfully pursuing a motion for a judgment of acquittal and a new trial motion, the defendant brings this appeal raising a variety of issues. More specifically, the defendant alleges 1) that the trial court erred by not granting him a judgment of acquittal on the amended possession count; 2) that the charge of "possession of over 26 grams of cocaine fatally varied with the conviction of possession of over 26 grams of c[o]caine with intent to sell"; 3) that the conspiracy count is void for failing "to allege an overt act in pursuit of the conspiracy"; 4) that the evidence is insufficient to support both convictions; 5) that the trial court erred in failing to provide the lesser-included instruction regarding conspiracy to sell or deliver under three hundred grams of cocaine; 6) that the trial court erred in sentencing the defendant as a multiple offender; and 7) that the trial court excessively sentenced the defendant as a result of improperly ordering that the sentences arising from this case are to be served consecutively. After considering each of these, we find that none of them merit relief and, therefore, affirm the defendant's convictions. http://www.tba.org/tba_files/TCCA/carterclarence.wpd STATE OF TENNESSEE v. CHRISTOPHER LEE COOPER Court:TCCA Attorneys: Mack Garner, District Public Defender, Maryville, Tennessee, for the appellant, Christopher Lee Cooper. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Mike Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Christopher Lee Cooper, pled guilty to theft over $500, a class E felony. The length and manner of service of the sentence were to be determined by the trial court. The trial court sentenced the Defendant to two years in the Department of Correction as a Range I standard offender. The Defendant now appeals as of right the length and manner of service of his sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/coopercl.wpd STATE OF TENNESSEE v. ALLEN LEE DOTSON, SR. Court:TCCA Attorneys: William H. Ortwein, Chattanooga, Tennessee, for the appellant, Allen Lee Dotson, Sr. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Michael W. Catalano, Associate Solicitor General; James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant challenges the sufficiency of evidence, the trial court's failure to declare a mistrial, and the "knowing" jury instruction as it relates to his second degree murder conviction. We hold no reversible error occurred at trial and affirm the judgment from the trial court. http://www.tba.org/tba_files/TCCA/dotsonalsr.wpd WILLIE TOM ENSLEY v. HOWARD CARLTON, WARDEN AND STATE OF TENNESSEE Court:TCCA Attorneys: Willie Tom Ensley, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; and Glen Watson, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: In 1986, a Davidson County jury convicted the Petitioner of first degree murder and aggravated rape. The trial court sentenced the Petitioner to an effective sentence of life plus twenty-seven and a half years in the Tennessee Department of Correction. This Court affirmed the Petitioner's convictions and sentences on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The Petitioner filed a petition for writ of habeas corpus in 2000, alleging that he is entitled to habeas corpus relief because: (1) count one of the indictment, charging the Petitioner with felony murder, contains no reference to the applicable statute; (2) count two of the indictment, charging him with aggravated rape, fails to state an offense because it omits the required allegation of the appropriate mens rea for aggravated rape; and (3) count one of the indictment is not signed by the district attorney general. The trial court denied the Petitioner's request for habeas corpus relief, finding that the sufficiency of an indictment cannot be properly challenged in a habeas corpus proceeding and finding that the Petitioner failed to establish that the indictment was insufficient. After review, we conclude that the Petitioner has failed to establish a claim for habeas corpus relief, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ensleywt.wpd STATE OF TENNESSEE v. JASON HAMILTON Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Jason Hamilton. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Brian Holmgren, Assistant District Attorney General for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Jason Hamilton, was convicted of first degree felony murder, second degree murder, and attempted aggravated robbery. The victim was named Thomas Spivey. The trial court merged the two murder convictions and sentenced the defendant to serve life in prison for the merged conviction. For his attempted aggravated robbery conviction, the trial court ordered the defendant to serve a four-year sentence concurrently with his life sentence. The defendant now appeals those convictions, arguing that the trial court erred by denying his motion to suppress his self-incriminating statement and that the evidence is insufficient to support his convictions. After reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hamiltonjason.wpd STATE OF TENNESSEE v. JAMES F. MASSENGALE Court:TCCA Attorneys: Richard A. Tate, Blountville, Tennessee, for the appellant, James F. Massengale. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; and Barry Staubus and Teresa Murray-Smith, Assistant District Attorneys General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, James F. Massengale, who had been charged with eight counts of theft of property valued at greater than $10,000, three counts of theft of property valued at more than $1,000, three counts of attempted theft of property with a value greater than $10,000, and one count of burglary of an automobile, was convicted of five counts of theft over $10,000, one count of attempted theft over $10,000, and one count of burglary of a vehicle. The trial court imposed an effective sentence of eighteen years, with ten years to be served in the Department of Correction and eight years to be served on probation. In this appeal, the defendant asserts that the evidence is insufficient to support the convictions and that the trial court erred by ordering consecutive sentences. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/massengalejamesf.wpd FREDERICK J. ROBINSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Kathleen G. Morris, Nashville, Tennessee, for the appellant, Frederick J. Robinson. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Sharon L. Brox and Roger D. Moore, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: In 1999, petitioner pled guilty to three counts of first degree pre-meditated murder and received three concurrent life sentences without possibility of parole. Petitioner now appeals from the denial of his post-conviction relief petition, contending that his plea was not made knowingly and voluntarily and that he had been denied the effective assistance of counsel. We affirm the post-conviction court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/robinsonfj.wpd STATE OF TENNESSEE v. JERRY SIMMONS and CATHERINE MARTINEK Court:TCCA Attorneys: H. Louis Sirkin and Jennifer M. Kinsley, Cincinnati, Ohio; John E. Herbison, Nashville, Tennessee, for the appellants, Jerry Simmons and Catherine Martinek; and Mitchell B. Dugan, Dickson, Tennessee (at trial), for appellant Martinek. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendants, Jerry Simmons and Catherine Martinek, were tried for four counts of distribution of obscene material, a Class A misdemeanor, in violation of Tenn. Code Ann. S 39-17-902. Each was convicted of all four offenses, sentenced to concurrent suspended sentences of eleven months, twenty-nine days, and Simmons was ordered to pay a fine of $2500 in each count. Each appealed, alleging, inter alia, that three of the videotapes were not obscene; that the trial court improperly admitted check receipts into evidence; that the prosecutor's final arguments were so improper as to constitute reversible error; that the court improperly instructed the jury; and that the proof was not sufficient to sustain the convictions. Additionally, Martinek argued that she was convicted of crimes for which she was not indicted. As to Martinek, we affirm the conviction as to one of the videotapes, but reverse the convictions as to the three remaining videotapes, the proof being insufficient as to her having actual knowledge of their obscene nature. Additionally, we reverse all four of the convictions as to Simmons, the proof being insufficient that he had knowledge of the obscene nature of the videotapes. As to the reversed convictions of both defendants, we dismiss the indictments. http://www.tba.org/tba_files/TCCA/simmonsjerrymc.wpd PLEASE FORWARD THIS E-MAIL! 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