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


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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