Opinion FlashJanuary 10, 2003Volume 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):
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 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 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! 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