Opinion Flash

January 8, 2003
Volume 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):
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
02 New Opinion(s) from the Tennessee Court of Appeals
07 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
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

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