Opinion Flash

January 10, 2003
Volume 9 — Number 7

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):
00 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
01 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


FLOYD GABRIEL v. ANNA FAYE HUBBS, et al.

Court:TCA

Attorneys:  

Craig J. Donaldson, Knoxville, Tennessee, for the appellant, Anna Faye
Hubbs.

Michael L. DeBusk, Knoxville, Tennessee, for the appellee, Floyd
Gabriel.                        

Judge: SUSANO

First Paragraph:

This is a will contest.  Floyd Gabriel ("the contestant") filed this
action contesting the validity of the purported last will and
testament of his grandfather, Floyd A. Harmon ("the decedent") on the
grounds of incapacity and undue influence.  Following a bench trial,
the court below declared the will invalid.  Anna Faye Hubbs ("Hubbs"),
the decedent's caretaker and the primary beneficiary under the will,
appeals, arguing that the trial court erred in finding that she
exercised undue influence over the decedent.  In the alternative,
Hubbs argues that any presumption of undue influence arising out of
her relationship with the decedent was overcome by the clear and
convincing proof that the decedent received independent advice before
executing his will.  We affirm.

http://www.tba.org/tba_files/TCA/gabrielf.wpd

STATE OF TENNESSEE v. JAMES LEE IVORY AND JERMAINE ANTONIO IVORY

Court:TCCA

Attorneys:

Clark Lee Shaw, Nashville, Tennessee for the appellants, James Ivory
and Jermaine Ivory.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, Victor S. Johnson, District Attorney
General; and Derrick Scretchen, Assistant District Attorney General
for the appellee, State of Tennessee.                      

Judge: SMITH

First Paragraph:

Jermaine Antonio and James Lee Ivory, along with their relative David,
faced numerous weapons and narcotics offenses arising out of Davidson
County on various dates.  After the trial court severed five counts
from one of the indictments, a jury trial was conducted to determine
whether: 1) Jermaine Ivory sold .5 grams or more of a substance
containing cocaine on March 16, 1998; 2) Jermaine Ivory sold 26 grams
or more of a substance containing cocaine on March 30, 1998; and 3)
Jermaine, James, and David Ivory conspired to sell 26 grams or more of
a substance containing cocaine between March 1st and April 30th of
1998.  Upon hearing the proof, the jury convicted Jermaine and James
Ivory as charged but acquitted David Ivory.  Additionally, James Ivory
later pled guilty to two counts from the above-referenced indictment
and two from another. In doing so, this defendant acknowledged his
guilt on two counts of possession with intent to sell over one half
ounce (14.175 grams) of marijuana, one count of felony possession of a
firearm, and one count of possession with intent to sell over .5 grams
of cocaine.  Following separate sentencing hearings, Jermaine Ivory
received an effective sentence of thirty-six years while James Ivory
received an effective sentence of twenty years.  Both individuals were
also found to be multiple offenders.  Thereafter, Jermaine Ivory
unsuccessfully moved for a new trial; however, James Ivory filed no
new trial motion.  Both now bring this appeal essentially raising the
same issues: (1) whether the State presented sufficient evidence to
support the aforementioned conspiracy convictions; (2) whether the
trial court erred in refusing to suppress evidence; and (3) whether
the trial court imposed excessive sentences. After reviewing the
record and applicable authorities, we find that the judgment of the
trial court must be affirmed.

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

STATE OF TENNESSEE v. DONALD C. MCCARY

Court:TCCA

Attorneys:  

Howell G. Clements, Chattanooga, Tennessee (on appeal), and Donald C.
McCary, pro se (at trial), for the appellant, Donald C. McCary.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; Stan Lanzo, Special Prosecutor; and C.
Leland Davis and Caldwell Huckaby, Assistant District Attorneys
General, for the appellee, the State of Tennessee.                        

Judge: WADE

First Paragraph:

The defendant, Donald C. McCary, was convicted in two separate trials
of two counts of aggravated sexual battery, one count of sexual
battery, and four counts of statutory rape.  There were two minor
victims.  The aggravated sexual battery convictions related to one
victim and the remaining offenses were against the other.  By consent
of the state and the defendant, this court consolidated the two
appeals during oral argument.  The defendant claims (1) that the state
failed to make a proper election of offenses at the close of the
proof; (2) that there was a fatal variance between the indictments and
the proof offered at both trials; (3) that the trial court erred by
the admission of certain of the evidence; (4) that the trial court
erred by denying his motion to suppress evidence seized during the
search of his office; (5) that the trial court erred by refusing to
suppress certain statements made during the search and after his
arrest; (6) that the prosecutor's comments during closing argument
were improper; (7) that the trial court erred by failing to declare
the defendant incompetent to stand trial; (8) that the trial court
erred by permitting amendment of the indictments; (9) that the
cumulative effect of the errors denied him the right to a fair trial;
and (10) that the trial judge should have recused himself from the
hearing on the motions for new trial.  The convictions on each count
of aggravated sexual battery are affirmed.  The remaining convictions
are reversed and  remanded for a new trial.

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

STATE OF TENNESSEE v. MITCHELL SHEPHARD

Court:TCCA

Attorneys:

Charles M. Corn, District Public Defender (at trial); and John B.
Nisbet, III, Cookeville, Tennessee (on appeal), for the appellant,
Mitchell Shephard.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
Amy F. Reedy and William W. Reedy, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

This case is before this court upon remand from the Supreme Court of
Tennessee.  In our original opinion we affirmed defendant's conviction
for first degree murder in perpetration of aggravated child abuse but
remanded to the trial court for a new sentencing hearing.  In our
original opinion we examined numerous issues, including whether the
trial court erred in failing to instruct the jury on the
lesser-included offenses of reckless homicide and criminally negligent
homicide.  We concluded the failure to charge these offenses
constituted harmless error.  The remand from the Supreme Court of
Tennessee indicates we should reconsider the lesser-included offense
issue in light of State v. Locke,          S.W.3d          , 2002
Tenn. LEXIS 474 (Tenn. Nov. 14, 2002).  We now conclude that the trial
court's failure to instruct the jury on the lesser-included offenses
of reckless homicide and criminally negligent homicide constitutes
reversible error.

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

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