Opinion Flash
February 24, 2003
Volume 9 — Number 032
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 |
| 01 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 04 |
New Opinion(s) from the Tennessee Court of Appeals |
| 12 |
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
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/certlist_0224.wpd
A.I.J.J. ENTERPRISES, INC. v. NORMAN WEIZER
Court:TCA
Attorneys:
Donald Capparella, Brentwood, Tennessee, for the appellant, Norman
Weizer.
Howard R. Peppel, Memphis, Tennessee, for the appellee, A.I.J.J.
Enterprises, Inc.
Judge: FARMER
First Paragraph:
This dispute regards a contractual obligation of an employee to repay
recruitment costs incurred by his employer should he leave his
position within a two year period. The trial court applied Florida
law to the dispute and awarded judgment to the employer. We hold the
contract is governed by New York law. We further find the provision
was not applicable where the employee was terminated and reverse the
judgment.
http://www.tba.org/tba_files/TCA/aijj.wpd
MICHAEL HIGGINS v. SHERIFF A. C. GILLESS, JR.
Court:TCA
Attorneys:
Kevin Bernstein, Memphis; Alan Bryant Chambers, Memphis for Appellant,
Michael Higgins
Alan G. Crone, James J. Webb, Jr., Memphis, For Appellee, Sheriff A.
C. Gilless, Jr.
Judge: CRAWFORD
First Paragraph:
Petitioner, off-duty deputy sheriff, was arrested during bust of known
drug house for possession of drug paraphernalia. Upon deputy
sheriff's arrest, Internal Affairs twice ordered petitioner to submit
to drug test. At time of requests, petitioner did not have assistance
of counsel; however, two Sheriff's Association representatives were
present and available for consultation. Petitioner refused both
orders, but on third day following arrest, after consulting with an
attorney, voluntarily requested drug test. Department refused
request, and subsequently charged petitioner with insubordination,
possession and use of illegal drugs, and conduct unbecoming an
officer. After hearing before the Deputy Chief, petitioner was
terminated. Civil Service Merit Board upheld termination, and
petitioner filed common law writ of certiorari with chancery court.
Chancery court affirmed the Civil Service Merit Board. We affirm.
http://www.tba.org/tba_files/TCA/higginsm.wpd
JAMES S. JORDAN, JR. v. KELLY K. JORDAN
Court:TCA
Attorneys:
Richard A. Gordan, Memphis, For Appellant, James S. Jordan, Jr.
Mitchell D. Moskovitz, Adam N. Cohen, Memphis, For Appellee, Kelly K.
Jordan
Judge: CRAWFORD
First Paragraph:
This case involves the enrollment of a foreign divorce decree,
enforcement of the child support obligation therein, and the
modification of the visitation privileges set out in the decree. The
trial court enrolled the foreign decree, entered judgment for
arrearages and child support, and amended the enrolled judgment as to
the visitation privileges for Father. Father appeals. We affirm.
http://www.tba.org/tba_files/TCA/jordanj.wpd
IN THE MATTER OF S.Y., J.Y., AND D.Y.
Court:TCA
Attorneys:
William T. Winchester, Memphis; Webb A. Brewer, Memphis, For
Appellant, Gloria Jean Young
Paul G. Summers, Attorney General and Reporter, Dianne Stamey Dycus,
Deputy Attorney General, For Appellee, Tennessee Department of
Children's Services
Judge: CRAWFORD
First Paragraph:
Department of Children's Services filed petition to terminate parental
rights of mother of dependent and neglected minor children.
Department's termination petition was based on allegations of
abandonment, mother's failure to substantially comply with a
permanency plan, and the removal of the children for at least six
months with little likelihood that the condition causing removal will
be remedied. Juvenile Court granted petition terminating mother's
parental rights. Mother appeals, asserting that juvenile court
violated her due process rights by failing to appoint an attorney for
the dependent and neglect proceeding, and erred in concluding that
clear and convincing evidence exists to support findings that warrant
termination of parental rights. We affirm.
http://www.tba.org/tba_files/TCA/sy.wpd
STATE OF TENNESSEE v. TERRY LYNN CARTER
Court:TCCA
Attorneys:
Wayne T. DeWees, Bolivar, Tennessee, for the appellant, Terry Lynn
Carter.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Walter Freeland, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
Defendant, Terry Lynn Carter, appeals her conviction in the Hardeman
County Circuit Court for aggravated assault. Defendant was sentenced,
as a Range II multiple offender, to serve nine years in the Department
of Correction. On appeal, Defendant argues that the evidence is
insufficient to support a finding of guilt beyond a reasonable doubt;
that the trial court erred by allowing the assistant district attorney
to make improper comments at trial; and that the prosecuting attorney
failed to provide defense counsel prior to trial with a copy of a
letter that Defendant wrote to the victim. After reviewing the
record, we conclude that the trial court erred in admitting the letter
into evidence because the State violated its discovery obligation to
Defendant. We reverse the judgment of the trial court and remand for
a new trial.
http://www.tba.org/tba_files/TCCA/cartertln.wpd
STATE OF TENNESSEE v. ROLANDO ROSAS CONTRERAS
Court:TCCA
Attorneys:
John H. Henderson, District Public Defender and Douglas P. Nanney,
Assistant Public Defender, Franklin, Tennessee, for the appellant,
Rolando Rosas Contreras.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Ron Davis, District Attorney General; and
Derek K. Smith, Assistant District Attorney General, for the appellee,
State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Rolando Rosas Contreras, was convicted by a jury of
three counts of aggravated rape and two counts of aggravated assault.
After a sentencing hearing, the Defendant was sentenced as a violent
offender to twenty-five years for each of the three rape convictions,
and he was sentenced as a Range I standard offender to six years for
each of the two convictions for aggravated assault. The trial court
ordered all sentences to be served concurrently for a total effective
sentence of twenty-five years. In this direct appeal, the Defendant
argues that the evidence presented at trial is insufficient to support
his convictions and that the trial court erred by sentencing him to an
effective sentence of twenty-five years. We affirm the convictions
and modify the sentence imposed by the trial court.
http://www.tba.org/tba_files/TCCA/contrerasrr.wpd
STATE OF TENNESSEE v. GENORE DANCY
Court:TCCA
Attorneys:
Pam Skelton and Harry Sayle (at trial), Memphis, Tennessee, and W.
Mark Ward and Tony N. Brayton (on appeal), Memphis, Tennessee, for the
Appellant, Genore Dancy.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Jones, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
After a Shelby County Criminal Court jury found the defendant, Genore
Dancy, guilty of four counts of aggravated rape, seven counts of
especially aggravated kidnapping, five counts of aggravated robbery,
and one count of aggravated burglary, the trial court merged the
aggravated rape verdicts into two aggravated rape convictions, imposed
the remaining convictions, and sentenced the defendant to an effective
incarcerative term of 150 years. In his appeal, the defendant claims
that his especially aggravated kidnapping convictions violate
principles of due process, that the evidence in one of the aggravated
rape counts was insufficient to support that conviction, that the
trial court erred in failing to instruct the jury as to the
lesser-included offense of facilitation, and that, in sentencing the
defendant, the trial court erred in not applying a mitigating factor
and in misapplying various enhancement factors. Discerning no
reversible error, we affirm.
http://www.tba.org/tba_files/TCCA/dancyg.wpd
STATE OF TENNESSEE v. BETSY DOWDY
Court:TCCA
Attorneys:
Brett B. Stein, Memphis, Tennessee, for the appellant, Betsy Dowdy.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Michael S. Davis, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
On September 20, 1999, the Defendant pled guilty to theft of property
valued over $1000 and to attempted aggravated robbery. The trial
court sentenced the Defendant to two years for the theft conviction
and to six years for the aggravated robbery conviction. The trial
court suspended both sentences and placed the Defendant on six years'
probation. On June 24, 2001, the Defendant was arrested for theft of
property valued over $500. Based on the arrest, the trial court
revoked the Defendant's probation. The Defendant now appeals, arguing
that the trial court erred by revoking her probation. Finding no
error, we affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/dowdyb.wpd
STATE OF TENNESSEE v. STACY R. DOWELL
Court:TCCA
Attorneys:
H. Randolph Fallin, Mountain City, Tennessee, for the appellant, Stacy
R. Dowell.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Anthony Wade Clark, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant, Stacy R. Dowell, appeals as of right his conviction,
following a bench trial before the Johnson County Criminal Court, for
driving while his blood alcohol concentration was .10 or greater, a
Class A misdemeanor. The trial court sentenced the defendant to
eleven months, twenty- nine days with forty-eight hours to be served
in the county jail and the remainder on probation. The defendant
challenges the sufficiency of the evidence relative to his blood
alcohol concentration. We affirm the trial court's judgment.
http://www.tba.org/tba_files/TCCA/dowellsr.wpd
STATE OF TENNESSEE v. WILLIAM ROY GRAY
Court:TCCA
Attorneys:
Didi Christie, Brownsville, Tennessee (on appeal) and Vanessa D. King,
Jackson, Tennessee (at trial), for the appellant, William Roy Gray.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Shaun A. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, William Roy Gray, was convicted in the Circuit Court of
Madison County of possession of drug paraphernalia, a Class A
misdemeanor, and resisting arrest, a Class B misdemeanor. The trial
court sentenced the appellant to eleven months and twenty-nine days in
the county jail and imposed a one hundred fifty dollar fine ($150) for
the possession of drug paraphernalia conviction and six months in the
county jail for the resisting arrest conviction. The trial court
ordered the sentences to be served consecutively. On appeal, the
appellant contends that the trial court erred in denying the
appellant's motion to suppress, in failing to consider certain
mitigating factors when sentencing the appellant, and in ordering the
appellant to serve his sentences consecutively. After a review of the
record and the parties' briefs, we affirm the judgments of the trial
court.
http://www.tba.org/tba_files/TCCA/graywr1.wpd
STATE OF TENNESSEE v. CHRISTOPHER CHARLES HALL
Court:TCCA
Attorneys:
Scott Daniel and Russ F. Eagle, Murfreesboro, Tennessee, for the
appellant, Christopher Charles Hall.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and Jennings A. Jones, Jr., and Thomas F. Jackson,
Jr., Assistant District Attorneys General, for the appellee, State of
Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant pled nolo contendere to reckless homicide, a Class D
felony. The defendant contends the trial court erred in refusing to
grant him full probation and sentencing him to two years of split
confinement, with six (6) months to be served in the county jail and
the remainder served on probation. Due to the reckless nature of the
killing, involving alcohol use simultaneous with the handling of
weapons, we conclude the trial court did not erroneously sentence the
defendant to a two-year sentence involving some form of confinement.
We affirm the defendant's sentence imposed by the trial court.
http://www.tba.org/tba_files/TCCA/hallcc.wpd
GREGORY LAMONT JORDAN v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
T. Lance Carter, Fayetteville, Tennessee, for the appellant, Gregory
Lamont Jordan.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Mike McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Gregory Lamont Jordan, brings this appeal from the
trial court's denial of post- conviction relief. The Defendant pled
guilty to aggravated robbery and possession of a weapon. In this
appeal, he argues that he was denied the effective assistance of
counsel during the course of his plea. We affirm the judgment of the
trial court.
http://www.tba.org/tba_files/TCCA/jordangl.wpd
STATE OF TENNESSEE v. MICHAEL KENNEDY
Court:TCCA
Attorneys:
George Morton Googe, District Public Defender; and Nina Wong Seiler,
Assistant District Public Defender, for the appellant, Michael
Kennedy.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Jody S. Pickens, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The defendant, Michael Kennedy, pled nolo contendere to numerous
burglary, theft and vandalism charges in Chester and Henderson
Counties. He received an effective sentence of fifteen years. The
cases were consolidated at the trial level and on appeal. Pursuant to
the plea agreement reserving a certified question of law, the
defendant contends the trial court erred in denying his motion to
suppress items found during an illegal search. We conclude that we do
not have jurisdiction as to three of the cases in Henderson County
because the certified question of law is not dispositive of these
cases. We affirm the remaining judgments of the trial court.
http://www.tba.org/tba_files/TCCA/kennedym.wpd
STATE OF TENNESSEE v. DOLLIE R. LUCAS
Court:TCCA
Attorneys:
Gerald L. Melton, District Public Defender, and Brion J. Payne,
Assistant Public Defender, for the appellant, Dollie R. Lucas.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and J. Paul Newman, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant contends the trial court erred in denying her judicial
diversion and full probation following her guilty plea for identity
theft, a Class D felony. The trial court sentenced her to two years
in split confinement, with ninety days to be served in weekend
confinement, and the balance served on probation. The trial court
ordered the defendant to pay one thousand dollars ($1000) in
restitution. Because the trial court failed to place its findings on
the record, we remand for a new sentencing hearing.
http://www.tba.org/tba_files/TCCA/lucasdr.wpd
EDWARD DEAN MULLINS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Douglas L. Payne, Greeneville, Tennessee, for the appellant, Edward
Dean Mullins.
Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant
Attorney General; and Eric Christiansen, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The petitioner, Edward Dean Mullins, appeals the trial court's denial
of post-conviction relief. The issues presented for review are (1)
whether the petitioner was denied the effective assistance of counsel;
(2) whether the petitioner's guilty pleas were knowingly and
voluntarily entered; (3) whether the trial court erred by denying the
petitioner's claim of prosecutorial misconduct; (4) whether the trial
court erred by denying the petitioner's motion for severance; and (5)
whether the trial court erred by ruling that the indictment need not
include the applicable aggravating circumstances. The judgment is
affirmed.
http://www.tba.org/tba_files/TCCA/mullinsed.wpd
STATE OF TENNESSEE v. DENA PAULETTE RACKLIFF
Court:TCCA
Attorneys:
Dennis Campbell, Sevierville, Tennessee, for the appellant, Dena
Paulette Rackliff.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; John Carney, District Attorney General;
and Dent Morris, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Dena Paulette Rackliff, was found guilty by a jury of
falsely accusing her ex- husband of sexually abusing their
seven-year-old daughter, which constitutes a class E felony. The
trial court sentenced the Defendant as a Range I offender to eighteen
months in the Robertson County jail. The trial court further ordered
that after the Defendant served ten days in jail, her sentence would
be probated for six years. The Defendant presents three issues in
this appeal as of right: (1) whether the evidence is sufficient to
support the conviction for falsely reporting child sexual abuse; (2)
whether the trial court erred in instructing the jury on the conduct
that constitutes the crime of falsely reporting child sexual abuse;
and (3) whether the sentence imposed by the trial court is excessive.
We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/rackliffdp.wpd
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