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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