Opinion Flash

May 29, 2003
Volume 9 — Number 097

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
08 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


ROBERT MORRIS v. COLUMBIA CONSTRUCTION COMPANY, INC.

Court:TCA

Attorneys:

Donald D. Zuccarello, Nashville, Tennessee, for the appellant, Robert
Morris.

James T. DuBois and D. Scott Porch, IV, Columbia, Tennessee, for the
appellee, Columbia Construction Company, Inc.                     

Judge: CAIN

First Paragraph:

In this suit for retaliatory discharge, Appellant asserts that his
filing of a worker's compensation claim was a substantial factor in
his employer's decision to terminate him.  The trial court granted
summary judgment to the employer.  We affirm.

http://www.tba.org/tba_files/TCA/morrisr1.wpd
								
NEWELL SMITH v. BRENDA CAROL SMITH Court:TCA Attorneys: Henry Clay Barry, Lebanon, Tennessee, for the appellant, Newell Lynn Smith. Brenda Carol Smith, Cookeville, Tennessee, pro se. Judge: COTTRELL First Paragraph: Wife filed petition for civil contempt against former Husband for failure to pay alimony as set forth in the Martial Dissolution Agreement and final decree. Husband responded, arguing that he did not have the ability to pay the alimony as agreed. The trial court found Husband in willful contempt of the previous order of the court due to his failure to pay the first two alimony installments and ordered Husband incarcerated if he did not appeal or make those payments within thirty days. Because the trial court found that Husband did not have the ability to pay at the time of the contempt hearing, we vacate the order incarcerating Husband if he does not pay. http://www.tba.org/tba_files/TCA/smithn.wpd
STATE OF TENNESSEE v. KATHYRN WHITE BYRD Court:TCCA Attorneys: Debbie Huskins, Assistant Public Defender, Johnson City, Tennessee, for the appellant, Kathryn White Byrd. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Joe Crumley, District Attorney General; and Steve Finney, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Kathryn L. Byrd, was convicted by a jury of one count of theft over $1,000. The trial court subsequently sentenced the Defendant to four years in the Department of Correction, to be served consecutively to a previous sentence. The Defendant now appeals, contesting the sufficiency of the evidence; claiming reversible error because the State was not required to elect the offense for which it was seeking a conviction; and contesting the trial judge's order of consecutive sentencing. We affirm the Defendant's conviction. We reverse the imposition of consecutive sentences and order the Defendant's sentences to run concurrently. http://www.tba.org/tba_files/TCCA/byrdkw.wpd
STATE OF TENNESSEE v. BRANDON CHARLES CAIN Court:TCCA Attorneys: Michael A. Little, Chattanooga, Tennessee, for the appellant, Brandon Charles Edward Cain. Paul Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Bill Cox, District Attorney General; and Barry A. Steelman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Brandon Charles Cain, was convicted by a jury of attempted first degree murder, a Class A felony. In this direct appeal, the Defendant raises two evidentiary issues: (1) whether the trial court erred by denying his motion to suppress statements he gave to law enforcement officers; and (2) whether the trial court erred by allowing the State to show the jury a videotape in which the victim's injuries were depicted. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/cainbc.wpd
STATE OF TENNESSEE v. RITA ELLIS Court:TCCA Attorneys: M.J. Hooover, III, Knoxville, Tennessee, for the appellant, Rita Ellis. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Chuck Pope, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Rita Ellis, was convicted upon a jury verdict of theft under the value of five hundred dollars, a Class A misdemeanor. She was sentenced to eleven months and twenty-nine days in the county jail, but her sentence was suspended, and she was placed on probation. She was fined two hundred and fifty dollars. The Defendant presents two issues for review, which she states as follows: (1) failure of counsel to request recording of proceedings denied right of effective appeal; and (2) appellant denied ability to properly argue that verdict was against the weight of the evidence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ellisr.wpd
STATE OF TENNESSEE v. LORENZO EDWARD ERVIN, DAMON McGEE and RALPH PEDRO MITCHELL Court:TCCA Attorneys: Donna Robinson Miller (on appeal) and William A. Dobson, Jr., (at trial), Chattanooga, Tennessee, for the appellant, Lorenzo Ervin. Mike A. Little, Chattanooga, Tennessee, for the appellant, Damon McGee. John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Ralph Pedro Mitchell. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William H. Cox, III, District Attorney General; Dean C. Ferraro and Mary Sullivan Moore, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Hamilton County Grand Jury indicted the Defendants, Lorenzo Ervin, Damon Christian McGee, and Ralph Pedro Mitchell, for disrupting a meeting, a Class B misdemeanor. The grand jury also indicted Mitchell for resisting arrest. The Defendants' cases were consolidated for trial. A jury convicted all three Defendants of disrupting a meeting and convicted Mitchell of resisting arrest. The Defendants raise the following issues on appeal: (1) whether the trial court properly rejected the Defendants' claim that the State improperly discriminated against persons in selecting a jury, (2) whether there was sufficient evidence presented at trial to convict the Defendants of the charged offenses, (3) whether Tennessee Code Annotated S 39-17-306, the statute prohibiting the disruption of a meeting, is constitutional, (4) whether the trial court erred by instructing the jury regarding knowing or reckless conduct where the statute did not state a particular mens rea, (5) whether the trial court properly denied the Defendants' request for a mistrial premised on revelations that certain jurors had heard about media reports of events at the courthouse, (6) whether the trial court erred in excluding defense counsel's question calling for a legal conclusion. Finding no error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/ervinetal.wpd
QUINCY L. GOODINE v. STATE OF TENNESSEE Court:TCCA Attorneys: Quincy L. Goodine, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William H. Cox, III, District Attorney General; and Charles B. Rucker, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: In September 1998, the Petitioner pled guilty to attempted rape, three counts of reckless endangerment, three counts of forgery, and three counts of theft of property. The trial court sentenced the Petitioner to an effective sentence of nine years, with eleven months and twenty-nine days of confinement followed by eight years of probation. The Petitioner served approximately six months of his sentence in jail and was released on probation. In December 1999, the trial court revoked the Petitioner's probation on seven of the ten felony charges based upon the Petitioner's acquisition of new charges, failure to pay restitution, failure to attend counseling, and violation of curfew. The Petitioner did not appeal the trial court's revocation of his probation. In September 2002, the Petitioner filed a petition for post-conviction relief. The post-conviction court dismissed the petition without a hearing, and this appeal ensued. Concluding that the Petitioner has failed to state a proper claim for post-conviction relief and that the post-conviction petition is barred by the applicable statute of limitations, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/goodineql.wpd
STATE OF TENNESSEE v. KENNETH RAY STEWART Court:TCCA Attorneys: Mike A. Little, Chattanooga, Tennessee, for the appellant, Kenneth Ray Stewart. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William H. Cox, III, District Attorney General; and Parke Masterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Kenneth Ray Stewart, was convicted by a Hamilton County jury of one count of attempted sexual battery. The trial court sentenced the Defendant to eleven months and twenty-nine days in the Hamilton County Workhouse, suspended the sentence, and ordered that the Defendant serve the sentence on supervised probation. Conditions of probation included counseling pursuant to a sex offender clinical evaluation and no contact with the victim. On appeal, the Defendant presents three issues for our review: (1) whether the trial court erred by allowing testimony by State witness Virgie Redden under the excited utterance exception to the hearsay rule; (2) whether the trial court erred by allowing the State to use leading questions during direct examination of the victim; and (3) whether the evidence was insufficient as a matter of law to support the Defendant's conviction for attempted sexual battery. Finding no reversible error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/stewartkr.wpd
STATE OF TENNESSEE v. TIM WILLIAM STRICKLAND Court:TCCA Attorneys: Micaela Burnham, Assistant Public Defender, Sevierville, Tennessee, for the appellant, Tim William Strickland. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was indicted for one count of rape of a child and for two counts of child abuse and neglect. A jury convicted the Defendant of all three counts. Following a sentencing hearing, the trial court sentenced the Defendant to twenty-five years for rape of a child and to four years for each count of child abuse. The trial court ordered that the sentences run concurrently for an effective sentence of twenty-five years. The Defendant now appeals, arguing the following: (1) that insufficient evidence was presented to convict him of the charged offenses, (2) that the trial court erred by admitting a note found at the scene and attributing it to the Defendant, and (3) that the trial court erred in sentencing the Defendant. Finding no error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/stricklandtw.wpd
STATE OF TENNESSEE v. CARVIN LAMONT THOMAS Court:TCCA Attorneys: Jay Norman and Matthew Mayo, Nashville, Tennessee, for the appellant, Carvin Lamont Thomas. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Angela Naylor, Assistant District Attorney General; and Pamela Sue Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Davidson County Grand Jury returned an eight count indictment against Defendant, Carvin Lamont Thomas, as follows: count one, especially aggravated robbery of Darrell Roundtree; count two, aggravated burglary of a habitation; count three, aggravated burglary of a habitation; count four, especially aggravated kidnapping of William Swift; count five, especially aggravated kidnapping of Darrell Roundtree; count six, especially aggravated kidnapping of Derrick Salter; count seven, unlawful possession of a handgun at a place open to the public; and count eight, possession with the intent to sell .5 grams or more of cocaine, a Schedule II controlled substance. At the close of the State's proof, the trial court dismissed count three, aggravated burglary of a habitation, and count five, especially aggravated kidnapping of Darrell Roundtree. Following a jury trial, Defendant was convicted of counts one, two, four, seven and the lesser included offense of simple possession on count eight. The trial court declared a mistrial as to count six. After a sentencing hearing, the trial court sentenced Defendant to ten years for the especially aggravated robbery conviction, six years for the aggravated burglary conviction, twenty-four years for the especially aggravated kidnapping conviction, eleven months and twenty-nine days for the possession of a handgun conviction, and eleven months and twenty-nine days for simple possession of a Schedule II controlled substance. The trial court ordered the sentences for especially aggravated robbery, aggravated burglary and especially aggravated kidnapping to run consecutively. Defendant's sentences for possession of a handgun and possession of a controlled substance were ordered to run concurrently with his other sentences, for an effective sentence of forty years. In his direct appeal, Defendant challenges only his conviction for especially aggravated kidnapping alleging that (1) the trial court erred in not granting Defendant's motion for judgment of acquittal as to the charge of especially aggravated kidnapping; and (2) Defendant's conviction for especially aggravated kidnapping violates due process principles as outlined in the Tennessee Supreme Court's decision in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/thomascarvinlamont.wpd

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