Opinion Flash

January 06, 2003
Volume 9 — Number 003

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 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. GERALD POWERS
WITH DISSENTING OPINION

Court:TSC

Attorneys:  

W. Mark Ward, Tony N. Brayton, and Garland Ergueden, Memphis,
Tennessee, for the appellant, Gerald Powers.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Alice B. Lustre, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.                        

Judge: HOLDER

First Paragraph:

A Shelby County jury convicted the defendant, Gerald Powers, of first
degree felony murder and aggravated robbery.  He was sentenced to
death for the felony murder charge and to a consecutive thirty-year
prison sentence for the aggravated robbery charge.  The Court of
Criminal Appeals affirmed the conviction and death sentence for the
felony murder but reduced Powers' sentence for the aggravated robbery
to twenty years.  Thereafter, the case was automatically docketed in
this Court pursuant to Tennessee Code Annotated section
39-13-206(a)(1) (1997).  We entered an order designating the following
issues for oral argument:  1) whether allowing Powers' wife to testify
violated the confidential marital communications privilege in
Tennessee Code Annotated section 24-1-201(b) (Supp. 1998); 2) whether
the trial court erred in excluding evidence and restricting
cross-examination indicating that other persons might have had the
motive and opportunity to kill the victim; 3) whether the deposition
of Margaret York was admissible; 4) whether the evidence was
sufficient to establish beyond a reasonable doubt the aggravating
circumstance in Tennessee Code Annotated section 39-13-204(i)(6)
(Supp. 1996); 5) whether the facts underlying Powers' prior violent
felony convictions were admissible; 6) whether the trial court erred
in not allowing the defense to attack the character of the victim at
the sentencing hearing; and 7) whether the sentence of death is
disproportionate, and all other issues mandated by Tennessee Code
Annotated section 39-13-206(c)(1) (1997).  Having carefully reviewed
these issues and the issue of identification testimony raised by
Powers, we find no merit to his arguments.  Accordingly, we affirm the
judgment of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TSC/powersgd_opn.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/powersgd_dis.wpd

STATE OF TENNESSEE v. CARLOS E. BRYAN
ORDER

Court:TCCA

Judge: RILEY

First Paragraph:

Appellant, Carlos E. Bryan, has filed a respectful petition to rehear
our dismissal of his appeal for failure to properly certify a question
of law.  We deny the petition.

Firstly, appellant contends the state took inconsistent positions by
acquiescing in the certified question of law in the trial court and
then seeking dismissal on the basis of an improperly certified
question of law in this court.  Although we agree the state indeed
took inconsistent positions, this court, nevertheless, has no
jurisdiction to address the appeal in the absence of a properly
certified question of law.  The inconsistency of the state's position
has no bearing on jurisdiction.

Next, appellant contends the negotiated plea agreement should be
vacated because the appeal of the certified question of law was an
integral part of the plea agreement.  Although we agree that it
appears the appeal of the certified question of law was an integral
part of the negotiated plea agreement, we do not agree that the
appropriate method of setting aside the plea of guilty is for this
court to order the plea vacated.  Again, this court has no
jurisdiction due to the improperly certified question of law. 
Appellant should seek the appropriate relief in the trial court.

It is ordered that the petition to rehear be denied.  Costs are taxed
to the appellant, Carlos E. Bryan.

http://www.tba.org/tba_files/TCCA/bryancarlos.wpd

STATE OF TENNESSEE v. RANDY RAY AND BOBBY PRYOR

Court:TCCA

Attorneys:

Philip A. Condra, District Public Defender, for the appellant, Randy
Ray.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Will Dunn, Assistant District Attorney General, for the
appellee, State of Tennessee.                           

Judge: GLENN

First Paragraph:

The defendants, Bobby Pryor and his son-in-law, Randy Ray, were
indicted by a Marion County Grand Jury for one count of aggravated
assault and one count of vandalism over $1000 based on a November 8,
1999, altercation with the victim, Randy Hutchins.  A third count of
the indictment charged Pryor with another aggravated assault against
the same victim, based on a separate incident on November 8, 1999, in
which Ray was not involved.  At the conclusion of the defendants'
joint trial, Pryor was found guilty of assault, a Class A misdemeanor,
in count one; vandalism over $1000, a Class D felony, in count two;
and reckless endangerment with a deadly weapon, a Class E felony, in
count three.  Ray was found guilty of reckless endangerment with a
deadly weapon, a Class E felony, in count one; and vandalism of $500
or less, a Class A misdemeanor, in count two.  Following the denial of
their motions for new trial, both defendants filed timely appeals to
this court.  However, during the pendency of the appeal, Pryor's
counsel filed a suggestion of Pryor's death, followed by a copy of his
death certificate.  Consequently, on May 1, 2002, this court entered
an order declaring that the criminal proceedings against Pryor were
abated by his death, leaving only Ray's appeal to continue.  Ray
raises four issues for our review:  (1) whether he was denied a fair
trial by the victim's allegedly having tampered with the jury; (2)
whether he was denied his right to an impartial trial judge; (3)
whether the evidence was sufficient to support his conviction for
vandalism; and (4) whether count one of the indictment was fatally
defective.  Based on our review of the record and of applicable law,
we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/rayr.wpd

STATE OF TENNESSEE v. MARTY W. STANFILL

Court:TCCA

Attorneys: 

Thomas J. Drake, Jr., Nashville, Tennessee, for the appellant, Marty
W. Stanfill.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General;  Victor S. (Torry) Johnson, III, District
Attorney General; and Pamela Sue Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

The defendant appeals the trial court's judgment ordering his
eight-year drug sentence to run consecutively to a federal sentence. 
The trial court rejected the defendant's contention that, under
Tennessee Rule of Criminal Procedure 32(c)(2), "good cause" existed to
run the sentences concurrently.  We affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/stanfillmarty.wpd

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