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

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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

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