Opinion FlashJanuary 8, 2003Volume 9 — Number 005 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 Corrected 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/powersgcorr_opn.wpd STATE OF TENNESSEE v. GERALD POWERS Corrected Opinion Court:TSC BARKER DISSENTING http://www.tba.org/tba_files/TSC/powersgdcorr_dis.wpd JACK and RUTH PARNELL, v. DELTA AIRLINES, INC., COMAIR, INC., ATLANTIC SOUTHEAST AIRLINES, INC., ROBERT FRANKLIN, and WINSTON MCCARTY Court:TCA Attorneys: Joe E. Manuel, Chattanooga, Tennessee, for Appellants. Joseph R. White and C. Eugene Shiles, Chattanooga, Tennessee, for Appellees. Judge: FRANKS First Paragraph: The Trial Court granted defendants summary judgment by finding defendants' conduct did not constitute outrageous conduct. We affirm. http://www.tba.org/tba_files/TCA/parnellj.wpd TENNESSEE SPORTS COMPLEX, INC., v. LENOIR CITY BEER BOARD and GONDOLIER OF LENOIR CITY, INC. D/b/a THE GONDOLIER Court:TCA Attorneys: A. Wayne Henry, Loudon, Tennessee, for Appellant. Robert G. Hinton, Lenoir City, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court revoked appellant's permit to sell beer in Lenoir City. On appeal, we affirm. http://www.tba.org/tba_files/TCA/tnsports.wpd RONALD TROY AGEE v. STATE OF TENNESSEE Court:TCCA Attorneys: William E. Porter, Nashville, Tennessee, for the appellant, Ronald Troy Agee. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and John Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Ronald Troy Agee, appeals the trial court's denial of his petition for post-conviction relief, in which he alleges ineffective assistance of counsel. Petitioner entered guilty pleas to one count of conspiracy to distribute over 300 pounds of marijuana and one count of possession with intent to deliver over seventy pounds of marijuana and received an effective sentence of thirty-five years. The indictment alleges that the conspiracy, charged in count one, commenced in August of 1997 and continued through December of 1999. In 1998, the legislature amended the law, designating conspiracy to deliver 300 or more pounds of marijuana as a Class A felony offense. Prior to the enactment of the new statute, the offense was a Class B felony. Petitioner argues that his trial counsel was ineffective in setting out the range of punishment for the offense charged. Consequently, Petitioner argues, he entered a guilty plea to Class A felony, rather than a Class B felony, and his sentence exceeds the maximum sentence available for a Range II offender of a Class B felony. We conclude that Petitioner received the effective assistance of counsel and that his pleas were entered voluntarily and intelligently. The judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/ageer.wpd STATE OF TENNESSEE v. COURTNEY ANDERSON Court:TCCA Attorneys: William L. Johnson, Memphis, Tennessee, for the appellant, Courtney Anderson. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his resentencing of 162 years, 11months and 29 days, as excessive. The defendant failed to provide this Court with transcripts of the sentencing hearing, the presentence report, or the guilty plea submission hearing. Therefore, the record is insufficient and incomplete for our review. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/andersonc.wpd TONY BLAND v. STATE OF TENNESSEE Court:TCCA Attorneys: Ross A. Sampson, Memphis, Tennessee (in post-conviction court), for the appellant, Tony Bland; and Tony Bland, Pro Se (on appeal). Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; William L. Gibbons, District Attorney General; and Gail Ann VerMaas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner challenges the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court, which dismissed the petition based upon the statute of limitations. We affirm. http://www.tba.org/tba_files/TCCA/bland.wpd STATE OF TENNESSEE v. KEVIN JONES Court:TCCA Attorneys: Marty B. McAfee, Memphis, Tennessee (on appeal), and James O. Marty, Memphis, Tennessee (at trial), for the appellant, Kevin Jones. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille Nicole McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Shelby County Criminal Court jury convicted the defendant, Kevin Jones, of aggravated child abuse, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty years in confinement. The defendant appeals, claiming (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by failing to grant his request for a mistrial when a police officer testified that the defendant refused to give a statement to the police; (3) that the trial court should have ordered a mistrial when the state failed to provide him with Jencks material; and (4) that his sentence is excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/joneskevin.wpd STATE OF TENNESSEE v. CARL MARTIN Court:TCCA Attorneys: Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, Carl Martin. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and Katrina Earley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby county jury convicted the defendant, Carl Martin, of driving under the influence by impairment and driving under the influence per se. See Tenn. Code Ann. S 55-10-401(a)(1), (2). The trial court merged the DUI per se conviction into the DUI by impairment conviction and sentenced the defendant to eleven months and twenty-nine days, with thirty days in the county workhouse followed by probation. In this appeal, the defendant raises the following issues: (1) whether the trial court erred in denying the defendant's motion to suppress evidence obtained as a result of the vehicle stop; (2) whether the trial court erred in admitting into evidence the result of the breath alcohol test; (3) whether the trial court erred in admitting into evidence the videotaped recording of profane statements made by the defendant after his arrest; and (4) whether the sentence was excessive. Upon reviewing the record, we conclude the admission of the breathalyzer test result was error; however, the error was harmless as to the DUI by impairment conviction. We remand to the trial court to vacate the guilty verdict as to DUI per se. We further determine there were no errors regarding the remaining issues. http://www.tba.org/tba_files/TCCA/martinc.wpd STATE OF TENNESSEE v. ROGER DALE QUILLEN Court:TCCA Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee (on appeal), and Larry Dillow and Richard Hopson, Kingsport, Tennessee (at trial), for the appellant, Roger Dale Quillen. Paul. G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry Staubus and Gene Perrin, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Roger Dale Quillen, was convicted by a jury in the Criminal Court of Sullivan County of aggravated burglary, felony murder, premeditated first degree murder, and simple assault. The trial court merged the murder convictions and sentenced the appellant to an effective sentence of life imprisonment. On appeal, the appellant asserts that he established the affirmative defense of insanity by clear and convincing evidence and, therefore, he should have been found not guilty by reason of insanity. After a careful review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/quillenrd.wpd STATE OF TENNESSEE v. FREDERICK SLEDGE Court:TCCA Attorneys: Paula Skahan and Gerald Skahan, Memphis, Tennessee, for the appellant, Frederick Sledge. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jerry Harris and John W. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of first degree murder and especially aggravated robbery and was originally sentenced to death and twenty years, respectively. The trial court ordered the sentences to be served consecutively. On appeal, this court affirmed both convictions but reversed the death sentence and remanded it for resentencing. On remand, the defendant was sentenced to life imprisonment after a new sentencing hearing. The life sentence was ordered to be served consecutively to the original twenty-year sentence for especially aggravated robbery. The only issue raised on this appeal is whether, on remand, the trial court erred by not reconsidering the issue of consecutive sentencing when resentencing the defendant for the murder conviction. We affirm the sentence as imposed on remand by the trial court. http://www.tba.org/tba_files/TCCA/sledgef.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! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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