Opinion Flash
April 15, 2003
Volume 9 — Number 067
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 |
| 00 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 02 |
New Opinion(s) from the Tennessee Court of Appeals |
| 07 |
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 |
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.
Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.
Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
RICHARD MANSON, et al. v. ANTHONY L. GOSS, et al.
Court:TCA
Attorneys:
Luther Wright, Jr. and Keli Jean Stewart, Nashville, Tennessee, for
the appellant, Western Surety Company.
Suzette Peyton, Nashville, Tennessee, for the appellee, Richard
Manson, Administrator Estate of Gertrude K. Torbert.
Judge: CAIN
First Paragraph:
This appeal concerns Western Surety Company's liability on a bond it
executed with Anthony Goss. The trial court entered judgment against
Western Surety Company on the bond. This Court affirms the judgment
of the trial court.
http://www.tba.org/tba_files/TCA/mansonrichard.wpd
ANN S. WING v. ESTATE OF JAMES E. WING, et al.
Corrected Opinion
Court:TCA
Attorneys:
Markley Runyon Gill, Erin, Tennessee for the appellants Estate of
James E. Wing and Kathy Parchman.
Karl F. Dean, Daniel W. Champney, Michael B. Bligh and John L.
Kennedy, Nashville, Tennessee for the appellant, Metropolitan
Government of Nashville and Davidson County.
Clark Lee Shaw and Richard E. Norman, Nashville, Tennessee, for
appellee, Ann S. Wing.
Paul G. Summers, Attorney General and Reporter; Stuart F.
Wilson-Patton, Senior Counsel, for the appellee, State of Tennessee.
Judge: CANTRELL
First Paragraph:
The Circuit Court of Davidson County ordered the husband involved in a
divorce to pay $230 per week in support payments to the wife after the
husband retired from the Metropolitan Government of Nashville and
Davidson County. When the husband retired he elected to receive
guaranteed payments for 120 months and designated his daughter as the
beneficiary to receive the payments if he died within the 120 month
period. The court then modified its prior order to provide that the
payments were a division of the husband's pension from the
Metropolitan Government of Nashville and Davidson County. After the
husband's untimely death, the court ordered the Metropolitan
Government and/or the husband's daughter who had been made the
beneficiary of the pension to make the payments. Because we find that
the court lacked personal jurisdiction over Metro and the daughter, we
reverse the court's order and remand for further proceedings.
http://www.tba.org/tba_files/TCA/wingascorrex.wpd
CONNIE LEE ARNOLD v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Connie Lee Arnold, Only, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Kenneth C. Baldwin, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner appealed from the criminal court's dismissal of his
petition for post-conviction relief. This court agreed with the
determination of the post-conviction court that the petition consisted
only of conclusory allegations without supporting facts, and, thus,
affirmed the dismissal. See Connie Lee Arnold v. State, No.
E2001-02526-CCA-R3-PC, 2002 WL 31512404 (Tenn. Crim. App. Nov. 13,
2002). On March 10, 2003, our supreme court granted the petitioner's
application for permission to appeal and remanded this case to us for
reconsideration in light of Burnett v. State, 92 S.W.3d 403 (Tenn.
2002). Following our reconsideration, we affirm the post-conviction
court's dismissal of the petition.
http://www.tba.org/tba_files/TCCA/arnoldc_opn.wpd
CONNIE LEE ARNOLD v. STATE OF TENNESSEE
Court:TCCA
TIPTON DISSENTING
http://www.tba.org/tba_files/TCCA/arnoldcl_dis.wpd
STATE OF TENNESSEE v. DERICK BAILEY
Court:TCCA
Attorneys:
Michael A. Colavecchio and Paul J. Bruno, Nashville, Tennessee, for
the appellant, Derick Bailey.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Pamela Anderson and Shelli Neal, Assistant
District Attorneys General, for the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Derick Bailey, was convicted by a jury in the Davidson
County Criminal Court of one count of felony murder and one count of
premeditated first degree murder. The trial court merged the
convictions and sentenced the appellant to life imprisonment. On
appeal, the appellant contends that the evidence was not sufficient to
support the verdicts. Although we conclude that the evidence was not
sufficient to support the conviction for premeditated murder, the
evidence was sufficient to support the conviction of felony murder.
Accordingly, we affirm the appellant's conviction for first degree
felony murder.
http://www.tba.org/tba_files/TCCA/baileyd1.wpd
STATE OF TENNESSEE v. JAMES ARTHUR KIMBRELL
Court:TCCA
Attorneys:
David L. Raybin, Nashville, Tennessee, for the appellant, James Arthur
Kimbrell.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and John W. Galloway, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
On September 3, 1999, a Fentress County jury convicted the Defendant
of four counts of rape of a child, a Class A felony; five counts of
rape, a Class B felony; and thirteen counts of incest, a Class C
felony. The trial court imposed an effective sentence of forty years.
The Defendant now appeals arguing that ineffective assistance of
counsel at trial, along with newly discovered evidence, prejudiced the
Defendant to the point of depriving him of a fair trial with a
reliable result. After a review of the record, we conclude that the
Defendant was denied due process through ineffective assistance of
counsel. We therefore reverse the Defendant's convictions and remand
this case to the Fentress County Circuit Court for a new trial.
http://www.tba.org/tba_files/TCCA/kimbrellja.wpd
STATE OF TENNESSEE v. JERRY W. SOUDER
Corrected Opinion
Court:TCCA
Attorneys:
Wayne Culbertson, Kingsport, Tennessee, for the appellant, Jerry W.
Souder.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Greeley Wells, District Attorney General;
and James Goodwin, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Jerry W. Souder, pled nolo contendere to one count of
attempted aggravated sexual battery. As part of the plea agreement,
the Defendant was sentenced as a Range II offender to six years, with
the manner of service to be determined by the trial court. After a
hearing, the trial court ordered the Defendant to serve his sentence
in the Department of Correction. The Defendant now appeals as of
right, alleging that the trial court erred by denying him an
alternative sentence, specifically probation. We affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/souderjwcorrex.wpd
STATE OF TENNESSEE v. BRIAN ANTIONE STARKS
Court:TCCA
Attorneys:
David A. Collins, Nashville, Tennessee, for the appellant, Brian
Antione Starks.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and James F. Todd and Gigi Braun, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant, Brian Antione Starks, was convicted, by jury, of first
degree felony murder and attempted especially aggravated robbery.
The defendant was sentenced to life imprisonment for the murder
conviction and eleven years as a Range I, standard offender for the
robbery conviction, to be served consecutively to the life sentence.
The defendant timely appealed, alleging that the evidence was
insufficient to support his convictions and that the testimony of his
accomplices was not sufficiently corroborated. Based upon our review,
we affirm the judgments of the trial court but remand for entry of a
corrected judgment in Count 2.
http://www.tba.org/tba_files/TCCA/starksbriana.wpd
AUTHOR R. TURNER v. STATE OF TENNESSEE
Court:TCCA
ORDER
http://www.tba.org/tba_files/TCCA/turnerauthorrord.wpd
STATE OF TENNESSEE v. NATHAN ALEX WEAVER
Court:TCCA
Attorneys:
Tony L. Maples, Murfreesboro, Tennessee, for the appellant, Nathan
Alex Weaver.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Mary K. Harvey, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
A Williamson County jury convicted the Defendant of attempt to possess
with intent to sell or deliver ten pounds or more of marijuana and
conspiracy to sell or deliver between ten and seventy pounds of
marijuana. The trial court sentenced the Defendant as a multiple
offender to consecutive sentences of four years' incarceration for
attempt to possess with intent to sell or deliver ten pounds or more
of marijuana and to two years' incarceration for conspiracy to sell or
deliver between ten and seventy pounds of marijuana. In this appeal
as of right, the Defendant presents the following issues for our
review: (1) whether the trial court erred by failing to suppress
evidence obtained as a result of a search warrant; (2) whether the
trial court improperly allowed testimony regarding statements made by
Defendant after the search; (3) whether the trial court erred in
allowing the State to proceed on one count from an original
presentment and one count from a superceding presentment; (4) whether
the trial court properly denied the Defendant's motion for a judgment
of acquittal; and (5) whether the trial court improperly allowed
testimony concerning statements made by a non-testifying accomplice.
Following oral argument, this Court ordered the parties to submit
supplemental briefs concerning an additional issue: whether the
Defendant was deprived of his right to confront a material witness and
whether this was plain error. Having reviewed the record, we conclude
that the Defendant's confrontation rights were violated in this case,
but that the error was harmless beyond a reasonable doubt. We
therefore affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/weaverna.wpd
PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.
GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.
JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.
To join the TBA go to: http://www.tba.org/join_bar.mgi
SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.
Visit the TBALink web site at: http://www.tba.org/op-flash.mgi
UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi
Home • Contact Us • PageFinder • What's New • Help
