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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