Opinion FlashJanuary 06, 2003Volume 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):
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. 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 PLEASE FORWARD THIS E-MAIL! 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