Opinion FlashNovember 14, 2002Volume 8 — Number 201 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 STATE OF TENNESSEE v. TAKEITA M. LOCKE Corrected Opinion Court:TSC Attorneys: Wade V. Davies (on appeal) and Gerald Lee Gulley, Jr. (at trial), Knoxville, Tennessee for the appellant, Takeita M. Locke. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The defendant, Takeita M. Locke, was tried and convicted in the Knox County Criminal Court of felony murder and especially aggravated robbery in the death of Chuck Newman. The Court of Criminal Appeals unanimously affirmed both convictions. We granted this appeal to determine if the trial court committed reversible error by failing to instruct the jury on certain lesser-included offenses of felony murder, namely: second degree murder, reckless homicide, and criminally negligent homicide. Additionally, with respect to her conviction for especially aggravated robbery, the defendant maintains that the trial court committed reversible error by failing to instruct the jury on the lesser-included offenses of facilitation of a felony (especially aggravated robbery), aggravated robbery, and robbery. After examining the facts and the law relevant to these issues, we hold that the trial court's failure to instruct the jury on the lesser-included offenses of second degree murder, reckless homicide, and criminally negligent homicide was reversible error. We also hold that the trial court's failure to instruct on the lesser-included offenses of facilitation of especially aggravated robbery, aggravated robbery, and robbery was erroneous, but such errors were harmless beyond a reasonable doubt. http://www.tba.org/tba_files/TSC/locketmcorr.wpd STATE OF TENNESSEE v. LINNELL RICHMOND Corrected Opinion Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney; for the appellant, State of Tennessee. Wade V. Davies, Knoxville, Tennessee (on appeal) and Keith E. Haas, Sevierville, Tennessee (at trial) for the appellee, Linnell Richmond. Judge: BARKER First Paragraph: Following a jury trial, the defendant, Linnell Richmond, was found guilty by a Knox County jury of aggravated robbery, attempted aggravated robbery and two counts of attempted first degree premeditated murder. The trial court sentenced the defendant to an effective sentence of twenty-two years for his convictions, to be served consecutively to a federal sentence arising out of the same criminal episode. The Court of Criminal Appeals reversed the judgment of the trial court upon finding that the trial court erred in failing to instruct the jury on: (1) the "natural and probable consequence rule" in relation to the charges of attempted first degree murder; and (2) robbery as a lesser-included offense of aggravated robbery, and attempted robbery as a lesser-included offense of attempted aggravated robbery. The State appealed to this Court, and we granted the application. We hold that: (1) it was harmless error by the trial court to fail to instruct the jury on the natural and probable consequences rule in relation to the charge of attempted first degree murder; and (2) it was likewise harmless error by the trial court in failing to instruct the jury regarding robbery as a lesser included offense of aggravated robbery, and attempted robbery as a lesser-included offense of attempted aggravated robbery. Therefore, the judgment of the Court of Criminal Appeals is reversed, and the defendant's convictions are reinstated. This case is remanded to the trial court for enforcement of the judgment. http://www.tba.org/tba_files/TSC/richmondlcorr.wpd NANCY CRAWFORD, et al. v. ROGER CRAWFORD, et al. Court:TCA Attorneys: Douglas T. Jenkins, Rogersville, Tennessee, for the Appellants, Nancy Crawford, et. al. R.B. Baird, III, Rogersville, Tennessee, for the Appellees, Roger Crawford, et. al. Judge: SWINEY First Paragraph: Plaintiff/Appellant Nancy Crawford owns an interest in a parcel of real property located in Hawkins County, Tennessee as tenants in common with the Defendants/Appellees. Appellant Nancy Crawford filed suit seeking a partial partition in kind of the subject property and requesting a tract containing approximately .604 acre be set aside for her. The .604 acre adjoins land owned by Ms. Crawford. The .604 acre contains a barn, which Ms. Crawford and her late husband had maintained, improved, and used since the late 1980's believing it was located on their property. Appellees opposed a partition in kind and requested a partition sale. The Trial Court found it in the manifest best interest of all parties for the property to be sold, rather than partitioned in kind, and ordered a sale. We modify the judgment, affirm as modified, and remand. http://www.tba.org/tba_files/TCA/crawfordn.wpd WILLIAM C. DUTY and wife WANDA DUTY, v. JOSEPH R. DAUGHERTY and LORENE DAUGHERTY Court:TCA Attorneys: Harold G. Jeffers, Oneida, Tennessee, for Appellants, William C. Duty and wife, Wanda Duty. Max E. Huff, Oneida, Tennessee, for Appellees, Lorene Daugherty and Joseph Daugherty. Judge: FRANKS First Paragraph: In this boundary line dispute, the Trial Court established the boundary line between the parties' properties based on testimony that prior owners had agreed on the location of the boundary, which altered the boundary established by an accurate survey. We reverse. http://www.tba.org/tba_files/TCA/dutyw.wpd KELSO OIL COMPANY, INC. v. EAST WEST TRUCK STOP, INC., et al. Court:TCA Attorneys: Gary D. Copas, Nashville, Tennessee, for the Appellants East West Truck Stop, Inc., and Frank Webb. Robert S. Stone and Katherine M. Hamilton, Knoxville, Tennessee, for the Appellee Kelso Oil Company, Inc. Judge: SWINEY First Paragraph: This main issue in this appeal involves an Unconditional Guaranty signed by Frank Webb ("Webb"), the president and owner of East West Truck Stop, Inc. In this document, Webb guaranteed the debt of the "buyer", which was identified as "Frank Webb d/b/a East West Truck Stop." The "buyer", however, was the corporate entity, East West Truck Stop, Inc. The Trial Court concluded the parties intended for the document to state the "buyer" was the corporate entity and entered judgment against Webb personally. Webb appeals, claiming the Trial Court improperly used parol evidence to supply an essential term of the Unconditional Guaranty (i.e. the identity of the "buyer") in violation of the Statute of Frauds. We affirm. http://www.tba.org/tba_files/TCA/kelso.wpd OMAWALI ASHANTI SHABAZZ, a/k/a FRED EDMOND DEAN v. GREELEY WELLS, et al. Court:TCA OPINION ON PETITION TO REHEAR Judge: GODDARD Omawali Ashanti Shabazz has filed a petition to rehear, calling to our attention the fact that no criminal proceeding is now pending as to him. A criminal case was pending at the time the matter was heard in the Trial Court and was the predicate for denial of his suit seeking access to certain files in the possession of the District Attorney General, both below and on appeal. In view of the fact that there is presently no criminal proceeding pending as to Mr. Shabazz, the petition to rehear is granted, the opinion and judgment heretofore entered are vacated and the cause remanded for the Trial Court to determine what materials Mr. Shabazz is entitled to receive, and what costs Mr. Shabazz should pay in connection with the copying and transmittal of the materials he is entitled to receive. Costs incident to this petition are adjudged one-half against Omawali Ashanti Shabazz and one-half against Greeley Wells and Barry Staubus. http://www.tba.org/tba_files/TCA/shabazzoma_reh.wpd BILLY JOE SMITH v. LISA NIDIFER RICE, et al. Court:TCA Attorneys: Billy Joe Smith, Mountain City, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Heather C. Ross, Senior Counsel, Attorney General's Office, Nashville, Tennessee, for the Appellees, Steve Finney and Lisa Nidifer K. Erickson Herrin, Johnson City, Tennessee, for the Appellees, Debbie Barron and Steve Smith Thomas L. Kilday, Greeneville, Tennessee, for the Appellees, Gregg Masters, Ron Arnold and David Pauley Judge: GODDARD First Paragraph: In this appeal from the Circuit Court for Johnson County the Appellant, Billy Joe Smith, asserts that the Circuit Court erred in denying his motion to alter or amend the Court's prior judgment dismissing his complaint for alleged violations of his civil rights upon grounds that the complaint failed to allege any causes of action other than violations of the United States Constitution. We affirm the judgment of the Circuit Court. http://www.tba.org/tba_files/TCA/smithbilly.wpd STATE OF TENNESSEE v. VENITA MICHELLE BURCHELL Court:TCCA Attorneys: Edward S. Ryan, Nashville, Tennessee, for the Appellant, Venita Michelle Burchell. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin Miller and Philip Wehby, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Venita Michelle Burchell appeals from her aggravated child abuse and criminally negligent homicide convictions. Her convictions result from a jury trial in the Davidson County Criminal Court pertaining to fatal injuries inflicted upon Nicholas Boyd Cotton, who was sixteen months old at the time of his death. Ms. Burchell urges us to find error in the lower court's acceptance of the verdict, the admission of prior bad act evidence, and the limiting of defense expert testimony. Because no harmful error occurred, we affirm. http://www.tba.org/tba_files/TCCA/burchellvenita.wpd MICHAEL EUGENE DUFF v. STATE OF TENNESSEE Court:TCCA Attorneys: Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Michael Eugene Duff. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Michael Eugene Duff, appeals the Knox County Criminal Court's denial of his petition for post-conviction relief from his convictions for two counts of aggravated rape and one count of aggravated kidnapping for which he received three twenty-five-year sentences to be served consecutively. This court affirmed the judgments of conviction on direct appeal. See State v. Michael Eugene Duff, No. 03C01-9501-CR-00008, Knox County (Tenn. Crim. App. Feb. 8, 1996), app. denied (Tenn. July 8, 1996). The petitioner claims that he received the ineffective assistance of counsel because his trial attorney (1) failed to call a DNA serologist to testify and (2) failed to present witnesses who could testify about his physical appearance at the time of the offenses. We conclude that the trial court's findings are insufficient for us to determine whether the petitioner received the ineffective assistance of counsel. We reverse the trial court's judgment and remand the case in order for the trial court to make findings of fact and conclusions of law consistent with this opinion. http://www.tba.org/tba_files/TCCA/duffme_opn.wpd MICHAEL EUGENE DUFF v. STATE OF TENNESSEE Court:TCCA ORDER The state has filed a Petition to Rehear relative to our opinion's apparent imposition of limitations upon the trial court's reconsideration of the facts upon remand. The state asserts that the trial court should have the ability to determine whether prejudice exists by considering the evidence in toto. The state notes that the trial court has not made any findings regarding prejudice and should not be restricted in its assessment. The petitioner responds that our court's opinion foreclosed any need for the trial court to assess prejudice generally. He states that we have already concluded that prejudice exists if the trial court finds a particular witness to be credible. We believe that the petitioner's arguments beg the question because they hinge upon the part of our opinion that the state seeks to change. In this respect, given the responsibility of the trial court to make findings of fact and conclusions of law, we conclude that the state raises a valid concern. Therefore, in consideration of the foregoing, it is hereby ORDERED that the judgment and opinion entered on September 11, 2002, are vacated. http://www.tba.org/tba_files/TCCA/duffme_ord.wpd STATE OF TENNESSEE v. GEORGE WILLIAM KING Court:TCCA Attorneys: Robert Turner, Nashville, Tennessee, for the appellant, George William King. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, George William King, has appealed the sentence imposed upon him by the trial court after he pled guilty to one count of statutory rape. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/kinggeorgewilliam.wpd STATE OF TENNESSEE v. WILLIAM JERRY NEAL, aka WILLIAM JAY NEAL Court:TCCA Attorneys: Stephen W. Pate, Murfreesboro, Tennessee (on appeal), and Robert Marlow, Shelbyville, Tennessee (at trial), for the appellant, William Jerry Neal. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, William Jerry Neal, also known as William Jay Neal, appeals his jury convictions for especially aggravated burglary, a Class B felony, and vandalism under $500, a Class A misdemeanor, resulting in concurrent sentences of eleven years, three months and eleven months, twenty-nine days, respectively. On appeal, the defendant argues: (1) the evidence was insufficient to establish serious bodily injury, as required for a conviction for especially aggravated burglary; and (2) the trial court erred by failing to grant a new trial after learning that one of the jurors had once been incarcerated with the defendant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/nealwilliamj.wpd LON S. WALKER v. STATE OF TENNESSEE Court:TCCA Attorneys: Daryl A. Colson, Livingston, Tennessee, for the appellant, Lon S. Walker. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William Edward Gibson, District Attorney General; Ben Fann, Assistant District Attorney General; and Lillie Ann Sells, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Lon Walker, filed a petition for post-conviction relief from his conviction for second degree murder, alleging that he was denied effective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief. In his appeal to this court, Petitioner raises the issue of whether the trial court erred in finding that Petitioner received effective assistance of counsel at trial. After a careful review, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/walkerlons.wpd 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! 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