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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