Opinion Flash

May 21, 2003
Volume 9 — Number 092

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):

01	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
26	New Opinion(s) from the Tennessee Court of Criminal Appeals
03	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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Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

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STATE OF TENNESSEE v. MAURICE LASHAUN NASH

Court:TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Ryan D. Brown,
Assistant District Attorney General, for the appellant, State of
Tennessee.

C. Michael Robbins, Memphis, Tennessee, for the appellee, Maurice
Nash.                       

Judge: BARKER

First Paragraph:

Maurice Lashaun Nash was tried before a Tipton County jury for
possession of marijuana, a schedule VI controlled substance, with
intent to deliver.  The jury convicted Nash of the lesser-included
offense of facilitation of possession of marijuana with the intent to
deliver.  On appeal, the Court of Criminal Appeals concluded that
there was insufficient evidence to support an instruction to the jury
and conviction on the lesser-included offense of facilitation of
possession with the intent to deliver.  The Court of Criminal Appeals
reversed Nash's conviction and remanded the case to the trial court
for a new trial on the charge of simple possession.  Both Nash and the
State sought permission to appeal the decision of the Court of
Criminal Appeals.  We granted both petitions and after conducting a
thorough review of the record and applicable law, we hold that there
was sufficient evidence to support a conviction for facilitation of
possession of marijuana with the intent to deliver.  Accordingly, the
judgment of the Court of Criminal Appeals is reversed, and the case is
remanded to the trial court for enforcement of its judgment of
conviction.

http://www.tba.org/tba_files/TSC/nashml.wpd
								

								
CARROLL CLABO, et al v. GREAT AMERICAN RESORTS, INC. v. JIM FALIN,
d/b/a FALIN EXCAVATING AND DEVELOPMENT

Court:TCA

Attorneys:

C. Dan Scott, Sevierville, Tennessee, for the Appellant, Great
American Resorts, Inc.

Robert L. Ogle, Jr., Sevierville, Tennessee, and Jerry H. McCarter,
Gatlinburg, Tennessee, for the Appellees, Carroll Clabo and wife,
Blanche Clabo; Dorothy Reed and husband, Earl Reed; Edna Myers and
husband, Jerry Myers; and Kate Clabo and husband, Junior Clabo.

Judge: SWINEY

First Paragraph:

Carroll Clabo and wife, Blanche Clabo; Dorothy Reed and husband, Earl
Reed; Edna Myers and husband, Jerry Myers; and Kate Clabo and husband,
Junior Clabo ("Plaintiffs") and Great American Resorts, Inc.
("Defendant") own neighboring properties in Gatlinburg, Tennessee. 
Defendant developed its property and during construction altered the
natural drainage causing rainfall to be diverted onto Plaintiffs'
properties.  The diverted water caused a landslide that destroyed the
access roadway to Plaintiffs' properties and caused damage to Carroll
and Blanche Clabo's house.  The Trial Court found a permanent nuisance
existed and awarded all Plaintiffs damages for diminution in value and
$10,000 for the damage to Carroll and Blanche Clabo's house. 
Defendant appeals claiming the Trial Court erred in finding a
permanent nuisance.  We affirm.

http://www.tba.org/tba_files/TCA/claboc.wpd
								

								

BRUCE KELLY MARTIN v. BEVERLY JOYCE MARTIN

Court:TCA

Attorneys:

Ricky L. Wood, Parsons, Tennessee, for appellant, Bruce Kelly Martin.

Larry J. Logan, McKenzie, Tennessee, for appellee, Beverly Joyce
Martin.

Judge: LILLARD

First Paragraph:

This is a divorce case.  Prior to their marriage, the husband and the
wife executed a prenuptial agreement.  The agreement stated that upon
divorce, if jointly-held property were sold, each party would be
credited his or her share of separate property contributed to the
purchase of the jointly-held property, with the remaining funds
divided according to each party's ownership share.  After the parties
married, they purchased land with the intention of converting it into
a catfish farm.  The husband and the wife both contributed financially
towards the purchase of the land.  Both parties worked full time.  The
husband used his machinery that he owned separately and expended labor
to convert the land to a catfish farm.  The wife maintained their
home.  The parties divorced.  At the divorce hearing, the husband
argued that, under the terms of the prenuptial agreement, he should be
credited for his labor and the use of his heavy machinery to improve
the farm land.  The trial court declined to do so, and credited the
husband and the wife with their respective financial contributions. 
The parties' personal property was divided equally.  The husband
appeals, arguing that he should have been credited for his labor and
the use of his heavy machinery, and also disputing the division of the
personal property.  The wife asserts that she should have received a
larger percentage of the proceeds from the sale of the property.  We
affirm.

http://www.tba.org/tba_files/TCA/martinbk.wpd
								

								
STATE OF TENNESSEE v. DARRELL M. ANDERSON

Court:TCCA

Attorneys:

Marcus M. Reaves, Jackson, Tennessee, for the appellant, Darrell M.
Anderson.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; and Jody S. Pickens, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WADE

First Paragraph:

The defendant, Darrell M. Anderson, was convicted of aggravated
assault and simple assault.  The trial court imposed a Range III,
ten-year sentence for the aggravated assault and a concurrent 11-
month, 29-day sentence for the assault.  In this appeal of right, the
defendant argues that the evidence was insufficient to support either
conviction.  The judgments are affirmed.

http://www.tba.org/tba_files/TCCA/andersondm.wpd
								

								
STATE OF TENNESSEE v. HOWARD JEFFERSON ATKINS

Court:TCCA

Attorneys:

C. Michael Robbins and Leslie Ballin, Memphis, Tennessee, for the
appellant, Howard Jefferson Atkins

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Elizabeth Rice, District Attorney General; and James
W. Freeland, Jr., Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

Following a transfer of this case from juvenile court to circuit court
for trial, a Tipton County jury convicted the defendant, sixteen-year
old Howard Jefferson Atkins, of first-degree premeditated murder.  The
trial court subsequently ordered the defendant to serve a life
sentence with the possibility of parole.  The defendant now brings
this direct appeal of his conviction, challenging: (1) whether the
trial court properly denied his motion to suppress his pre-trial
statements to police; (2) whether the state's peremptory strike of
four female jurors violated Batson v. Kentucky, 476 U.S.79 (1986); (3)
whether the state improperly extracted a promise from the jury during
voir dire; (4) whether the trial court erred by allowing the victim's
son to offer certain testimony regarding the victim's peaceable
character; (5) whether the trial court erred by failing to give a
curative instruction following the victim's son's testimony; (6)
whether the trial court erred by allowing testimony describing the
graphic nature of photos that the court ruled were inadmissible
because of their overly prejudicial nature; (7) whether the trial
court erred by allowing the medical examiner to testify that she had
retained certain bones from the victim's body for forensic pathology;
and (8) whether the evidence is sufficient to support the defendant's
conviction for first degree murder.  After reviewing the record and
applicable law, we find that none of the defendant's allegations merit
relief and accordingly affirm the judgment of the lower court.

http://www.tba.org/tba_files/TCCA/atkinsh.wpd
								

								
MICHAEL J. BAILEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Michael J.
Bailey.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Bret Gunn and Michelle Thompson, Assistant
District Attorneys General, for the appellee, State of Tennessee.     
                    
Judge: MCGEE OGLE

First Paragraph:

The petitioner, Michael J. Bailey, filed a petition for
post-conviction relief alleging that he was denied effective
assistance of counsel.  Following an evidentiary hearing, the
post-conviction court denied relief and the petitioner timely
appealed.  Upon review of the record and the parties' briefs, we
affirm the judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/baileym.wpd
								

								
STATE OF TENNESSEE v. HUGHES D. CADWELL
CORRECTED OPINION

Court:TCCA

Attorneys:

J. Timothy Street, Franklin, Tennessee, for the appellant, Hughes D.
Cadwell.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Lee Dryer, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Defendant, Hughes D. Cadwell, was convicted in the Williamson County
General Sessions Court for driving on a suspended license on December
23, 1997.  He received a ninety-day suspended sentence and six months
probation.  On June 22, 1998, a probation violation warrant was
issued, alleging that Defendant had failed to maintain monthly contact
with his probation officer and that he had failed to pay probation
fees and respond to a written request for action.  Defendant was not
arrested on the warrant until February 6, 2002.  At the February 13,
2002, hearing in Williamson County General Sessions Court, Defendant
pled true to the probation violation, and the court ordered him to
serve the ninety-day sentence.  Defendant appealed to the Williamson
County Circuit Court on February 15, 2002.  The circuit court
conducted a hearing to determine whether to reinstate Defendant's
probation.  The court then dismissed the appeal on the basis that it
lacked jurisdiction because Defendant had pled true to the probation
violation.  We conclude that the circuit court had jurisdiction to
hear Defendant's appeal from the general sessions court, de novo, and
therefore, we remand the case to the circuit court for proceedings
consistent with this opinion.

http://www.tba.org/tba_files/TCCA/cadwellhughesd.wpd
								

								
STATE OF TENNESSEE v. RASHAD J. CHANDLER

Court:TCCA

Attorneys:

Dewun R. Settle, Memphis, Tennessee, for appellant, Rashad J.
Chandler.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and P. T. Hoover, Assistant District Attorney General, for
appellee, State of Tennessee.                       

Judge: SMITH

First Paragraph:

A Shelby County grand jury indicted the defendant on charges of first
degree premeditated  murder, felony murder, and especially aggravated
robbery.  A trial jury subsequently convicted him of first degree
premeditated murder and acquitted him of the remaining charges.  The
defendant then unsuccessfully pursued a new trial motion.  In this
appeal the defendant asserts that the trial court erred by not
suppressing his statement and that the jury's verdict is inconsistent
with the evidence presented at trial. After reviewing the record and
relevant authorities, we find neither of the defendant's claims
meritorious. We, therefore, affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/chandl.wpd
								

								
STATE OF TENNESSEE v. DONALD CLARK

Court:TCCA

Attorneys:

Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, for
appellant, Donald Clark.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steven Jones, Assistant District Attorney General, for
appellee, State of Tennessee.                        

Judge: SMITH

First Paragraph:

A Shelby County jury found the defendant, Donald Clark, guilty of
especially aggravated robbery.  The trial court subsequently sentenced
the defendant to serve twenty-seven years as a violent offender.  The
defendant now appeals his conviction, (1) challenging the sufficiency
of the evidence to support his conviction and (2) the trial court's
failure to charge the lesser-included offense of reckless aggravated
assault.  After a thorough review of the record, we find that the
evidence is sufficient to support the verdict, but that the trial
court erred by failing to instruct the jury on the offense of reckless
aggravated assault.  However, we find that error to be harmless beyond
a reasonable doubt.  Therefore, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/clark.wpd
								

								
STATE OF TENNESSEE v. MONTRELL CLEMENTS

Court:TCCA

Attorneys:

Robert Wilson Jones, Shelby County Public Defender, and Tony N.
Brayton (on appeal), Donna J. Armstard (at trial), and Glenda A. Adams
(at trial), Assistant Public Defenders, for the appellant, Montrell
Clements.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Michael S. Davis and Scot A. Bearup, Assistant District
Attorneys General, for the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant, Montrell Clements, was convicted of aggravated rape and
aggravated assault and sentenced to twenty-two years and six years,
respectively, to be served concurrently.  The defendant timely
appealed, arguing that the evidence was insufficient to support his
convictions.  Following our review, we affirm the judgments of the
trial court but remand for entry of a corrected judgment in No.
00-14457 to reflect the defendant's conviction offense, which was
omitted from the judgment form.

http://www.tba.org/tba_files/TCCA/clementl.wpd
								

								
JARVIS D. COHEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Jerry Stokes, Memphis, Tennessee, for the appellant, Jarvis D. Cohen.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General;  William L. Gibbons, District Attorney
General; and Scot A. Bearup, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief.  The petitioner contends his trial counsel failed to
investigate his case and meet with him regularly.  He further contends
his trial counsel never held a hearing on his motion to suppress his
identification, thus rendering his plea involuntary.  We conclude that
the evidence does not preponderate against the findings of the post-
conviction court. We affirm the post-conviction court's denial of
post-conviction relief.

http://www.tba.org/tba_files/TCCA/cohenjd.wpd
								

								
STATE OF TENNESSEE v. CHAUNCEY DAUGHERTY

Court:TCCA

Attorneys:

Robert Little, Maplewood, New Jersey (on appeal), and Darryl W.
Humphrey, Memphis, Tennessee (at trial), for the appellant, Chauncey
Daugherty.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and E. Greg Gilluly, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

A Shelby County jury convicted the defendant, Chauncey Daugherty, of
driving under the influence, second offense.  The trial court
sentenced him to eleven months and twenty-nine days and ordered 180
days be served in the county workhouse followed by probation.  On
appeal, the defendant maintains the evidence was insufficient to
support the conviction.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/daughe.wpd
								

								
FRED DELANEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Ted I. Jones, Memphis, Tennessee, for the appellant, Fred Delaney.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and John Campbell, Assistant District Attorney General, for
the appellee, State of Tennessee.                      

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief.  He claims ineffective assistance of counsel and that his
sentence is excessive. Because this Court previously determined that
the petitioner's sentence was not excessive on direct appeal, we
dismiss this issue.  We conclude that the evidence does not
preponderate against the findings of the trial court and affirm the
post- conviction court's denial of post-conviction relief.

http://www.tba.org/tba_files/TCCA/delaneyf.wpd
								

								
STATE OF TENNESSEE v. MARY LEE DILLIHUNT

Court:TCCA

Attorneys:

Stephanie L. Prentis, Savannah, Tennessee, for the appellant, Mary Lee
Dillihunt.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and John W. Overton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                      

Judge: GLENN

First Paragraph:

The defendant was convicted of delivery of less than .5 grams of
cocaine, a Class C felony, and sentenced to eight years as a Range II,
multiple offender, to be served consecutively to a sentence for a
prior conviction.  In a timely appeal to this court, she raises the
sole issue of whether the evidence was sufficient to support her
conviction.  Following our review, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/dillihunt.wpd
								

								
STATE OF TENNESSEE v. JIMMY WAYNE DUDLEY

Court:TCCA

Attorneys:

Didi Christie, Brownsville, Tennessee, for the appellant, Jimmy Wayne
Dudley. 

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Jody
S. Pickens, Assistant District Attorney General, for the appellee,
State of Tennessee.                        

Judge: SMITH

First Paragraph:

A Madison County grand jury indicted the defendant for aggravated
assault. Subsequently a trial jury convicted the defendant as charged.
By the time of the sentencing hearing, the parties had reached an
agreement involving a pending probation revocation matter, a pending
assault charge, and the instant conviction. With respect to the
probation revocation, the trial court ordered the defendant to serve
four years at 30% as a standard offender. On the assault conviction,
the court ordered the defendant to serve eleven months and twenty-nine
days at 75%.  Finally, the defendant received an agreed upon
four-and-one-half-year sentence to be served at 30% as a standard
offender for the aggravated assault conviction at issue in this case. 
The sentences were ordered run in such a manner that the defendant by
agreement received an effective sentence of eight and one-half years.
The defendant later filed a motion for new trial and an amended motion
for new trial unsuccessfully raising five issues. Through this appeal
the defendant continues to assert that 1) the evidence is insufficient
to support his aggravated assault conviction; 2) the trial court erred
in not allowing the defense to present evidence that the victim's
bodily injury resulted from another incident, not the defendant's
purported use of a deadly weapon; and 3) the trial court erred in
admitting a photograph allegedly showing the victim's injuries and in
admitting a shirt allegedly worn by the victim at the time of the
offense as these items were not provided to the defense in pre-trial
discovery. However, after reviewing the record and relevant
authorities, we find that these contentions lack merit or have been
waived. We, thus, affirm the lower court's denial of relief.

http://www.tba.org/tba_files/TCCA/dudleyj.wpd
								

								
STATE OF TENNESSEE v. ROBERT FROST

Court:TCCA

Attorneys:

C. Michael Robbins, Memphis, Tennessee, on appeal; and J. Thomas
Caldwell, Ripley, Tennessee, at trial, for appellant, Robert Frost.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and James Walt Freeland, Assistant District Attorney General, for
appellee, State of Tennessee.              

Judge: SMITH

First Paragraph:

A Tipton County jury convicted the defendant, Robert Frost, of bribery
of a public servant.  The trial court subsequently ordered the
defendant to serve three years as a standard offender in community
based alternative sentencing.  The defendant now brings this direct
appeal of his conviction, challenging (1) the trial court's decision
to admit certain exhibits over his objection; (2) a certain portion of
the trial court's instruction to the jury regarding his indicted
offense; and (3) the sufficiency of the evidence to support his
conviction.  After a thorough review of the record, we find that none
of the defendant's allegations merit relief and accordingly affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/frostrobert.wpd
								

								
STATE OF TENNESSEE v. STEPHEN DANIEL GRANDE, SR.

Court:TCCA

Attorneys:

Barton F. Robinson, Paris, Tennessee, for appellant, Stephen Daniel
Grande, Sr.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Robert Radford, District Attorney General;
and Steven L. Garrett, Assistant District Attorney General, for
appellee, State of Tennessee.                         

Judge: SMITH

First Paragraph:

The appellant, Stephen Daniel Grande, Sr., was convicted by a jury of
the unlawful manufacturing of methamphetamine and of introducing
contraband into a penal institution.  He received two concurrent three
year sentences to be served on community corrections following service
of a year of incarceration.  In this appeal the appellant raises seven
issues including whether the evidence is sufficient to support the
verdict.  However, in his brief the appellant cites no relevant
authority to support his arguments.  Indeed, the brief of the
appellant is little more than a written diatribe describing alleged
unlawful activities on the part of the authorities in Henry County,
Tennessee, and characterizing those alleged activities as
unconstitutional.  Under these circumstances we find that the
appellant has waived review of the issues on appeal.  Nevertheless, we
have in the interests of justice, reviewed the primary issue of the
sufficiency of the evidence.  We hold that the evidence is more than
sufficient to support the verdict of the jury.  Accordingly, the
judgments of the trial court are AFFIRMED.

http://www.tba.org/tba_files/TCCA/grande.wpd
								

								
STATE OF TENNESSEE v. TIMMY HERNDON

Court:TCCA

Attorneys:

Timmy Herndon, Whiteville, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General;  William L. Gibbons, District Attorney
General; and Glen Wright, Assistant District Attorney General, for
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

In this pro se appeal the appellant, Timmy Herndon, is seeking review
of the trial court's order denying his "Motion to Rectify Clerical
Mistakes Pursuant to Rule 36 of the Tennessee Rules of Criminal
Procedure."  In that motion the appellant claims that, following his
conviction of aggravated robbery, the pre-sentence report prepared
prior to sentencing the appellant contained information regarding
convictions which should have been "purged" from his criminal history
because he had successfully completed some type of diversionary
program for those offenses.  As a result of this allegedly "improper"
information, the appellant claims he was erroneously sentenced as a
Range II multiple offender.  In addition, he claims that the
pre-sentence report with the "purged" convictions is interfering with
the appellant's ability to obtain a favorable security classification
within the Department of Correction.  The appellant wanted the trial
court and now wants this Court to "rectify" the pre-sentence report to
delete any reference to these "purged" convictions.

We hold that under the circumstances presented, this Court has no
jurisdiction to entertain a direct appeal from the denial of a motion
filed pursuant to Tennessee Rule of Criminal Procedure 36, and that
the circumstances do not warrant granting review by way of certiorari
or habeas corpus.  Accordingly, the appeal is dismissed.

http://www.tba.org/tba_files/TCCA/herndo.wpd
								

								
STATE OF TENNESSEE v. BRUCE HOLLARS

Court:TCCA

Attorneys:

Michael Savage, Livingston, Tennessee, for the appellant, Bruce
Hollars.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Owen G. Burnett, Assistant District Attorney General, for
the appellee, State of Tennessee.                      

Judge: RILEY

First Paragraph:

The Overton County Criminal Court revoked the probation of the
defendant, Bruce Hollars, and ordered his original sentences of two
consecutive terms of eleven months and twenty-nine days be served in
confinement.  On appeal, the defendant contends that the trial court
erred by requiring him to serve the entire sentence.  We affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/hollarsbruce.wpd
								

								
STATE OF TENNESSEE v. JERRY LEE HONEY

Court:TCCA

Attorneys:

Ricky Griggs and Shana McCoy Johnson, Assistant Public Defenders,
Bolivar, Tennessee, for the appellant, Jerry Lee Honey.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and J. Walter Freedland, Jr. and Ryan Brown, Assistant District
Attorney Generals, for the appellee, State of Tennessee.                       

Judge: WELLES

First Paragraph:

The Defendant, Jerry Lee Honey, was convicted by a jury of two counts
of first degree premeditated murder and sentenced to two concurrent
terms of life imprisonment.  The Defendant now appeals, challenging
the sufficiency of the evidence.  We affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/honeyjl.wpd
								

								
STATE OF TENNESSEE v. ANTHONY HUMPHREY

Court:TCCA

Attorneys:

Marty B. McAfee (on appeal) and Coleman W. Garrett (at trial),
Memphis, Tennessee; Leon G. Scroggins, Granite City, Illinois (at
trial); and Jonathan Goldberg, Atlanta, Georgia (at trial), for the
appellant, Anthony Humphrey.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Lee V. Coffee, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant was convicted of voluntary manslaughter, attempted
voluntary manslaughter, attempted aggravated robbery, and attempted
especially aggravated robbery.  He was sentenced to six years for the
voluntary manslaughter conviction, four years for the attempted
voluntary manslaughter conviction, six years for the attempted
aggravated robbery conviction, and twelve years for the attempted
especially aggravated robbery conviction.  The attempted voluntary
manslaughter conviction was ordered concurrent with the other three
convictions which were ordered consecutive to one another, for an
effective sentence of twenty-four years.  On appeal, the defendant
raises three issues for our review:  (1) whether the evidence was
sufficient to support his convictions; (2) whether the trial court
committed plain error by allowing testimony concerning his gang
affiliations; and (3) whether the trial court appropriately sentenced
the defendant.  Following our review, we affirm the judgments of the
trial court.

http://www.tba.org/tba_files/TCCA/humphr.wpd
								

								
STATE OF TENNESSEE v. JERRY WINFRED KEATHLY

Court:TCCA

Attorneys:

B. F. "Jack" Lowery, Lebanon, Tennessee, for the Appellant, Jerry
Winfred Keathly.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; William
Edward Gibson, District Attorney General; and Anthony J. Craighead,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                        

Judge: HAYES

First Paragraph:

A DeKalb County jury convicted the Appellant, Jerry Winfred Keathly,
of vehicular assault, a class D felony.  After a sentencing hearing,
the trial court imposed a four-year sentence, suspended after service
of one year, followed by a probation period of six years.  On appeal,
Keathly challenges only the sentencing decision of the trial court,
arguing that (1) the procedures for allocution were not properly
followed, (2) his sentence was excessive, and (3) the trial court
erred in denying full probation.  After a review of the record, we
conclude that Keathly was denied his statutory right of allocution. 
Tenn. Code Ann . S 40-35-210(b)(6) (Supp. 2002).  Accordingly,
Keathly's sentence is vacated, and the case is reversed and remanded
for further proceedings consistent with the opinion.

http://www.tba.org/tba_files/TCCA/keathlyjerryw.wpd
								

								
STATE OF TENNESSEE v. GEORGE GLENN KING, JR.

Court:TCCA

Attorneys:

Wayne Emmons and Robert C. Brooks, Memphis, Tennessee (on motion for
new trial and appeal), and L. L. Harrell, Jr., and Jerald Campbell,
Trenton, Tennessee (at trial), for the appellant, George Glenn King,
Jr.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Hal Dorsey, Assistant District Attorney General, for the appellee,
State of Tennessee.                         

Judge: TIPTON

First Paragraph:

The defendant, George Glenn King, Jr., appeals his convictions by a
Gibson County Circuit Court jury for first degree murder for which he
received an effective sentence of life in prison.  He was also
convicted of especially aggravated burglary, a Class B felony, for
which he received a concurrent sentence of eight years.  He contends
that he is entitled to a new trial because the state's eliciting
expert testimony on the ultimate issue of his insanity and
prosecutorial misconduct in closing argument constitute plain error. 
He also argues that the trial court should have merged his 
convictions for premeditated and felony murder arising from a single
killing.  We agree that the defendant's first degree murder
convictions should be merged, but we otherwise discern no plain error
and affirm the judgments of conviction as modified.

http://www.tba.org/tba_files/TCCA/kingg.wpd
								

								
STATE OF TENNESSEE v. MARIO ANTOINE LEGGS

Court:TCCA

Attorneys: 

Michael Colavecchio, Nashville, Tennessee, for the appellant, Mario
Antoine Leggs.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Derrick Scretchen, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Mario Antoine Leggs, was convicted by a jury of theft,
robbery, two counts of reckless endangerment, aggravated robbery, two
counts of evading arrest, three counts of reckless aggravated assault,
leaving the scene of an accident, and driving on a suspended license. 
After a sentencing hearing, the trial court ordered the Defendant to
serve an effective sentence of twenty- three years, eleven months, and
twenty-eight days in the Department of Correction.  In this direct
appeal, the Defendant raises the following issues: (1) whether the
trial court erred by denying the Defendant's motion to sever the
offenses; (2) whether the trial court erred by admitting prior
identification testimony; (3) whether the Defendant is entitled to a
new trial based upon improper remarks made by the prosecutor during
closing argument; (4) whether the trial court erred by not reducing
the Defendant's three convictions for reckless aggravated assault to
simple assault; (5) whether the trial court erred by not merging one
of the Defendant's convictions for evading arrest with his conviction
for leaving the scene of an accident; and (6) whether the trial court
properly sentenced the Defendant.  We hold that the trial court erred
by not severing the offenses that occurred on November 16, 2000. 
However, we deem the error harmless.  Because we find insufficient
evidence to support the Defendant's second conviction for evading
arrest, we reverse it and dismiss that charge.  In all other respects,
we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/leggsma.wpd
								

								
STATE OF TENNESSEE v. ASHLEY NESBITT

Court:TCCA

Attorneys:

William C. Gosnell and Joshua B. Spickler, Memphis, Tennessee, for the
appellant, Ashley Nesbitt.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Dan Woody and Tom Hoover, Assistant District Attorneys
General, for the appellee, State of Tennessee.                       

Judge: WELLES

First Paragraph:

The Defendant, Ashley Nesbitt, was convicted by a jury of one count of
first degree murder, two counts of attempted first degree murder, and
one count of aggravated robbery.  The Defendant now appeals as of
right, challenging the sufficiency of the evidence.  Finding the
evidence insufficient to support one of the attempted murder
convictions, we reverse and dismiss the Defendant's conviction for the
attempted first degree murder of Carl Turner.  We affirm the remaining
convictions.

http://www.tba.org/tba_files/TCCA/nesbitta.wpd
								

								
ALLEN OLIVER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Allen Oliver, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; and William L. Gibbons, District Attorney
General, for the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

The petitioner, Allen Oliver, appeals the post-conviction court's
dismissal of his pro se petition for post-conviction relief as barred
by the one-year statute of limitations. The petitioner pled guilty to
various offenses pursuant to a plea agreement on July 2, 2001, and his
petition for post-conviction relief was stamped filed in the clerk's
office on July 3, 2002.  Because the judgment of conviction did not
become final until thirty days after its entry, the petition for
post-conviction relief was timely filed.  Thus, we reverse and remand
to the post-conviction court for further proceedings.

http://www.tba.org/tba_files/TCCA/oliverallen.wpd
								

								
DARRELL WAYNE TAYLOR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Paul J. Morrow, Jr., Deputy Post-Conviction Defender and Jefferson T.
Dorsey, Post-Conviction Defender, Nashville, Tennessee, for appellant,
Darrell Wayne Taylor.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; William L. Gibbons, District Attorney General; John
Campbell and Glenn R. Pruden, Assistant District Attorneys General,
for appellee, State of Tennessee.                          

Judge: SMITH

First Paragraph:

This appeal arises pursuant to Tenn. R. App. P. 9.  The appellant,
Darrell Wayne Taylor, seeks interlocutory review of the question of
whether a trial court in a post-conviction proceeding involving a
capital case is authorized following an ex parte grant of fees for
expert services pursuant to Tennessee Code Annotated Section
40-14-207(b), to issue ex parte orders directing the transportation of
evidence in state custody to a defense expert for independent forensic
tests.  After careful consideration of the applicable law, we hold
that there is no right on the part of an accused in a criminal case,
capital or otherwise, to obtain permission ex parte for independent
forensic testing of physical evidence in the custody of the State. 
However, following an adversarial hearing where both the prosecution
and the defense may be heard, the trial judge may grant a defense
request for independent testing of such physical evidence under such
conditions as the trial court may in its discretion deem appropriate
to protect the interests of both parties.  Accordingly the judgment of
the trial court staying the ex parte order to transport physical
evidence for independent testing is affirmed and the case is remanded
for further proceedings in accordance with this opinion.

http://www.tba.org/tba_files/TCCA/taylordl.wpd
								

								
STATE OF TENNESSEE v. N'KOSI TUGGLE

Court:TCCA

Attorneys:

John A. Peebles (on appeal) and Robert Felkner (at trial), Assistant
Public Defenders, for the appellant, N'Kosi Tuggle.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; and David Zak, Assistant District Attorney
General, for the appellee, State of Tennessee.                      

Judge: WADE

First Paragraph:

The defendant, N'Kosi Tuggle, entered a plea of guilt to aggravated
robbery.  The trial court imposed a Range I sentence of eight years. 
In this appeal of right, the defendant argues that he should have been
classified as an especially mitigated offender.  The judgment is
affirmed.

http://www.tba.org/tba_files/TCCA/tugglenk.wpd
								

								
STATE OF TENNESSEE v. SANDRA ANN WHALEY, ALIAS SANDY ANN WHALEY

Court:TCCA

Attorneys: 

Leonard M. "Mike" Caputo, Chattanooga, Tennessee, for the appellant,
Sandra Ann Whaley.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Thomas Kimball, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: MCGEE OGLE

First Paragraph:

The appellant, Sandra Ann Whaley, was convicted by a jury in the
Hamilton County Criminal Court of driving under the influence (DUI)
and assault.  The trial court imposed a total effective sentence of
eleven months and twenty-nine days incarceration in the workhouse, to
be suspended upon service of thirty days in confinement.  On appeal,
the appellant challenges the sufficiency of the evidence supporting
her DUI conviction and she also complains about the sentences imposed.
 Upon review of the record and the parties' briefs, we affirm the
judgments of the trial court.

http://www.tba.org/tba_files/TCCA/whaleys.wpd
								

								
Imposition of Hotel-Motel Tax by Home Rule City Located in County
Levying Such a Tax by Private Act

Date: May 14, 2003

Opinion Number: 03-062                         

http://www.tba.org/tba_files/AG/2003/OP62.pdf
								

								
Application of Open Meetings Act to Economic Development Board

Date: May 14, 2003

Opinion Number: 03-063                         

http://www.tba.org/tba_files/AG/2003/OP63.pdf
								

								
Tenure of County Financial Management Committee

Date: May 14, 2003

Opinion Number: 03-064                         

http://www.tba.org/tba_files/AG/2003/OP64.pdf

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