Opinion Flash

January 31, 2003
Volume 9 — Number 018

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
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
11 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


JOYCE MULLINS v. CROTTY CORP., et al.

Court:TSC - Workers Comp Panel

Attorneys:   

Kirk L. Clements, Nashville, Tennessee, for the appellants, Crotty
Corp. and Employee Benefit Insurance Company

Edwin Sadler and James D. Madewell, Cookeville, Tennessee, for the
appellee, Joyce Mullins                       

Judge: LOSER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  In this
appeal, the employer questions the trial court's findings as to
causation, permanency, extent of vocational disability and mileage
reimbursement.  As discussed below, the panel has concluded the
evidence fails to preponderate against the findings of the trial
court.

http://www.tba.org/tba_files/TSC_WCP/mullinsjoyce.wpd
								
KENNY SEARCY v. UNIPRES U.S.A., INC., et al. Court:TSC - Workers Comp Panel Attorneys: M. Clark Spoden and Irene L. Wolfe, Nashville, Tennessee, for the appellant Unipres U.S.A., Inc. Clinton L. Kelly, Hendersonville, Tennessee, for the appellee, Kenny Searcy Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the trial court erred in concluding the plaintiff's impairment was the result of his work related injury and (2) the award of permanent partial disability benefits based on 35 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/searcykenny.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0131.wpd
STATE OF TENNESSEE v. MICHAEL R. BLAKELY, JR. Court:TCCA Attorneys: Karl Dean, District Public Defender; C. Dawn Deaner, Assistant Public Defender (on appeal); Collins W. Hooper and Richard L. Tennent, Assistant Public Defenders (at hearing), for the appellant, Michael R. Blakely, Jr. Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted by a jury for attempted voluntary manslaughter and voluntary manslaughter. The defendant appeals his maximum sentence of six years, contending that the trial court failed to appropriately apply and give adequate weight to statutory mitigating factors in sentencing and failed to impose an alternative sentence. We reduce the length of the sentences to the minimum in the Range, but we affirm the requirement of confinement. http://www.tba.org/tba_files/TCCA/blakelymjr.wpd
STATE OF TENNESSEE v. CHAD CRABTREE Court:TCCA Attorneys: Donna Robinson Miller (on appeal) and Myrlene Marsa (at trial), Assistant District Public Defenders, for the appellant, Chad Crabtree. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; and Yolanda Mitchell and Barry A. Steelman, Assistant District Attorneys General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, Chad Crabtree, was convicted of three counts of rape of a child, Class A felonies. The trial court imposed concurrent twenty-five-year sentences. In this appeal, the defendant asserts (1) that the trial court erred by denying his access to certain records regarding the victim and the lead investigator; (2) that the evidence was insufficient to support one of his convictions; (3) that the trial court was not impartial; (4) that a witness for the state improperly bolstered the credibility of the victim; and (5) that the sentence was excessive. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/crabtreechad.wpd
STATE OF TENNESSEE v. RICHARD L. HOWELL, JR. Court:TCCA Attorneys: Paula Ogle Blair, Nashville, Tennessee, for the appellant, Richard L. Howell, Jr. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Ana Escobar, Assistant District Attorney General; and Grady Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Richard L. Howell, Jr., was convicted by a jury of one count of possession of over seventy pounds of a controlled substance with intent to sell and one count of conspiracy to possess over three hundred pounds of a controlled substance with intent to sell. The trial court sentenced Defendant to concurrent sentences of ten years for possession and twenty-three years for conspiracy. In his appeal, Defendant contends that (1) the evidence was insufficient to sustain his conviction for possession of over seventy pounds of a controlled substance with intent to sell; (2) the evidence was insufficient to sustain his conviction for conspiracy to possess over three hundred pounds of a controlled substance with intent to sell; and (3) the trial court erred in finding Defendant a leader in the commission of the offenses for which he was charged. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/howellrichard.wpd
WILLIAM T. KIRK v. STATE OF TENNESSEE Court:TCCA Attorneys: William T. Kirk, Pro Se, Appellant. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: William T. Kirk appeals from the Davidson County Criminal Court's dismissal of his petition for the writ of habeas corpus. We reject his claim that his convictions are void because he was tried in absentia and affirm the lower court's dismissal. http://www.tba.org/tba_files/TCCA/kirkwilliamt.wpd
STATE OF TENNESSEE v. DON WOODY MCGOWAN Court:TCCA Attorneys: Philip A. Condra, District Public Defender, Jasper, Tennessee, for the appellant, Don Woody McGowan. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Gouger, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was indicted for driving on a revoked license, driving on a revoked license second offense, evading arrest, and reckless driving. After the State presented its proof at trial, the trial court entered judgments of acquittal for the charges of evading arrest and reckless driving. At the conclusion of the trial, a Marion County jury convicted the Defendant of driving on a revoked license and assessed a fine of $500. The Defendant waived a jury as to the second offense driving on a revoked license, and the trial court found him guilty. The trial court sentenced the Defendant to eleven months and twenty-nine days for second offense driving on a revoked license and ordered that the sentence be served on probation except for thirty days to be served in the county jail. The Defendant now appeals, arguing that the trial court erred by admitting into evidence a Tennessee Department of Safety driving record as proof of the Defendant's prior conviction for driving on a revoked license. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcgowandw.wpd
DONALD RAY MIDDLEBROOKS v. STATE OF TENNESSEE Court:TCCA First Paragraph: Appellant, Donald Ray Middlebrooks, has filed a petition to rehear with regard to our opinion filed January 9, 2003. He contends our opinion conflicts with Goad v. State, 938 S.W.2d 363 (Tenn. 1996). Specifically, he contends that in determining whether he was prejudiced by trial counsels' failure to present sufficient mitigating evidence, we overlooked (1) the nature and extent of available mitigating evidence; and (2) whether substantially similar mitigating evidence was presented to the jury. See id. at 371. He contends we only considered the strong evidence of the aggravating circumstance, which is the third applicable criterion. See id. Our opinion noted the mitigating evidence that was not presented as well as the mitigating evidence that was presented. We concluded the strong evidence of the aggravating circumstance was "far too overwhelming to be offset" by the available mitigating evidence. See Donald Ray Middlebrooks v. State, No. M2001-01865-CCA-R3-PD, 2003 Tenn. Crim. App. LEXIS 15, at *32 (Tenn. Crim App. Jan. 9, 2003, at Nashville). The court considered all applicable criteria in reaching our conclusion. It is ORDERED that the petition to rehear be denied. It appearing the appellant is indigent, costs are taxed to the state. http://www.tba.org/tba_files/TCCA/middlebrooksrehear.wpd
STATE OF TENNESSEE v. ANTHONY TONY SANDY Court:TCCA Attorneys: Robert D. Massey, Pulaski, Tennessee, for the appellant, Anthony Tony Sanders. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and James G. White, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Anthony "Tony" Sandy, was indicted by the Lawrence County Grand Jury for first degree murder. Defendant was convicted by a jury of the lesser-included offense of voluntary manslaughter. The trial court sentenced Defendant, as a Range I standard offender, to serve four years and six months in the Tennessee Department of Correction and imposed a fine of $10,000, which was assessed by the jury. In this appeal as of right, Defendant argues that the evidence at trial was insufficient to support a finding of guilt beyond a reasonable doubt and that the trial court erred in sentencing Defendant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/sandyanthony.wpd
STATE OF TENNESSEE v. REGINOL L. WATERS Court:TCCA Attorneys: Ross E. Alderman, Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); and J. Michael Engle, Assistant Public Defender (at trial), for the appellant, Reginol L. Waters. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Keith Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County jury convicted the defendant, Reginol L. Waters, of two counts of aggravated rape, one count of aggravated robbery, and one count of aggravated burglary. The trial court sentenced him as a Range I offender to twenty-three years for the first count of aggravated rape, twenty-five years for the second count of aggravated rape, ten years for aggravated robbery, and as a Range II offender to ten years for aggravated burglary. The trial court further ordered the two sentences for aggravated rape and the sentence for aggravated burglary be served consecutively and the sentence for aggravated robbery be served concurrently, for an effective sentence of fifty-eight years. In this appeal of right, the defendant raises the following issues: (1) whether the trial court erred in denying the motion to suppress testimony regarding the "showup" identification of the defendant; (2) whether the trial court erred in denying the motion to suppress the defendant's statements to the police; (3) whether the trial court erred in admitting the tape recording of the victim's telephone call to the police; (4) whether the state failed to establish a proper chain of custody for evidence found during a search of the defendant's vehicle; (5) whether the two convictions for aggravated rape should be merged; (6) whether the conviction for aggravated burglary violates due process because it was incidental to the offenses of aggravated rape and aggravated robbery; and (7) whether the sentences are excessive. Upon review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/watersreginol.wpd
STATE OF TENNESSEE v. FRANKIE L. WOODARD Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); and Jerome Converse, Springfield, Tennessee (at trial) for the appellant, Frankie L. Woodard. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Robertson County Grand Jury indicted the Defendant for aggravated burglary and theft of property valued under $500, and a Robertson County jury found the Defendant guilty of both offenses. The trial court sentenced the Defendant as a Range III, persistent offender to twelve years for the aggravated burglary conviction and to eleven months and twenty-nine days for the theft conviction. The trial court ordered that the sentences run concurrently. The Defendant now appeals, arguing that insufficient evidence was presented at trial to convict him of aggravated robbery and theft; and that the trial court erred by sentencing the Defendant as a Range III, persistent offender. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/woodardfrankiel.wpd
RICKY FRANKLIN YORK v. STATE OF TENNESSEE Court:TCCA Attorneys: David R. Howard, Gallatin, Tennessee, for the Appellant, Ricky Franklin York. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Brown, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Ricky Franklin York, appeals the denial of his petition for post-conviction relief by the Sumner County Criminal Court. On November 1, 2000, York pled guilty to one count of aggravated assault and, following a sentencing hearing, was sentenced to six years in the Department of Correction. On appeal, York argues that he received ineffective assistance of counsel. Specifically, York contends that his trial counsel's failure to present mitigating factors, along with his failure to challenge the application of enhancing factors, denied him his Sixth Amendment right to effective assistance of counsel at sentencing. After review, we affirm the judgment of the post- conviction court. http://www.tba.org/tba_files/TCCA/yorkrickyf.wpd
STATE OF TENNESSEE v. WILLIAM DOUGLAS ZUKOWSKI Court:TCCA Attorneys: C. Dawn Deaner, Nashville, Tennessee (on appeal); Richard Tennent and Blair Beasley, Nashville, Tennessee (at trial), for the appellant, William Douglas Zukowski. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Philip H. Wehby and Bernard McEvoy, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Davidson County Grand Jury indicted the Defendant for six counts of rape of a child. At the conclusion of the State's proof, the trial court granted a motion of acquittal as to one of the counts, and a Davidson County jury found the Defendant guilty of the remaining five counts. The trial court sentenced the Defendant to twenty-five years for each count and ordered that the sentences be served consecutively for an effective sentence of 125 years to be served at one hundred percent. The Defendant now appeals, arguing the following: (1) that the trial court erred by finding that the victim was competent to testify at trial, (2) that the trial court erred by allowing into evidence photographs of the victim's genitalia, and (3) that the trial court erred by imposing excessive sentences. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/zukowskiwd.wpd

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