Opinion FlashJune 30, 2003Volume 9 — Number 115 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel FORMAL ETHICS OPINION NO. 2003-F-147 Court:TSC - Rules First Paragraph: DR 5-105(D) of Tennessee's prior ethics rules (Code of Professional Responsibility) required that when a lawyer moves to another firm, the new firm is disqualified "from any further participation in any of the cases in which the attorney had been representing the opposite side prior to the move." B.O.P.R. Formal Ethics Opinion 81-F-5. http://www.tba.org/tba_files/TSC_Rules/2003-F-147.wpd LEONARD EDWARD BAUGH, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: David M. Hopkins, Nashville, Tennessee, for the appellant, Leonard Edward Baugh, Jr. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Derrick L. Scretchen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Davidson County jury found the Petitioner, Leonard E. Baugh, Jr., guilty of one count of especially aggravated robbery, five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of unlawful possession of a weapon by a felon. The trial court imposed an effective sentence of thirty years. The convictions and sentences were affirmed on direct appeal. See State v. Leonard Edward Baugh, Jr., M2000-00477-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 415, (Tenn. Crim. App., Nashville, June 1, 2001). The Petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court dismissed the petition. We affirm the judgment of the post- conviction court. http://www.tba.org/tba_files/TCCA/baughlejr.wpd BILLY WAYNE COSBY v. STATE OF TENNESSEE Court:TCCA Attorneys: Lucy D. Henson, Pulaski, Tennessee, for the appellant, Billy Wayne Cosby. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Billy Wayne Cosby, pled nolo contendere in the Giles County Circuit Court to aggravated assault and received a sentence of eight years incarceration. Subsequently, the petitioner filed for post-conviction relief, which petition was denied. On appeal, the petitioner contests the summary dismissal of his post-conviction petition. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for the appointment of new counsel and further proceedings in accordance with this opinion. http://www.tba.org/tba_files/TCCA/cosbybw.wpd JASON CRAIG DeMARCUS v. STATE OF TENNESSEE Court:TCCA Attorneys: Thomas L. Whiteside, Atlanta, Georgia, for the appellant, Jason Craig DeMarcus. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief from his convictions for attempted first degree murder and three counts of aggravated assault, one of which was merged with the attempted murder conviction. He argues that the trial court did not have jurisdiction to try the juvenile petitioner as an adult and that he received ineffective assistance of trial counsel. Based upon our review, we affirm the post-conviction court's denial of the petition. http://www.tba.org/tba_files/TCCA/demarcusjasonc.wpd STATE OF TENNESSEE v. KERRY L. DOWELL Court:TCCA Attorneys: Ross E. Alderman, District Public Defender, and C. Dawn Deaner and William J. Steed, III, Assistant Public Defenders, for the appellant, Kerry L. Dowell. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, Kerry L. Dowell, was convicted by a jury of kidnapping, car jacking, robbery, felony evasion of arrest, and misdemeanor evading arrest, and was sentenced to an effective twenty- four years in the Tennessee Department of Correction. On appeal, the defendant claims that the evidence was insufficient to support his conviction for kidnapping, car jacking, and Class D felony evading arrest; the trial court erred in failing to suppress a statement he made to the police; the trial court erred in failing to give a limiting instruction to the jury regarding the defendant's prior convictions; the trial court failed to properly instruct the jury on lesser-included offenses; and the trial court erred in sentencing the defendant consecutively on one of the counts. The Class D felony evading arrest conviction is reversed. We affirm all other judgments of the trial court. http://www.tba.org/tba_files/TCCA/dowellkl.wpd STATE OF TENNESSEE v. RITA ELLIS Court:TCCA Attorneys: M.J. Hoover, 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. ANGELA E. ISABELL Court:TCCA Attorneys: Joel Kachinsky, Summertown, Tennessee (on appeal), and Fred J. Ramos, Nashville, Tennessee (at trial), for the appellant, Angela E. Isabell. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Angela E. Isabell, was convicted by a jury in the Lewis County Circuit Court of three counts of the sale or delivery of controlled substances. The trial court imposed a total effective sentence of four years incarceration in the Tennessee Department of Correction. On appeal, the appellant contests her convictions for the "sale or delivery" of controlled substances and further complains about statements made during trial by the State and the State's witnesses. The State concedes that there is reversible error. Finding the appellant's argument to have merit, we reverse all three of the appellant's convictions and remand to the trial court for further proceedings. http://www.tba.org/tba_files/TCCA/isabellae.wpd EARL JUNIOR PIKE v. STATE OF TENNESSEE Court:TCCA Attorneys: David M. Hopkins, Nashville, Tennessee, for the appellant, Earl Junior Pike. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Earl Junior Pike, appeals from the post-conviction court's denial of his petition for post-conviction relief, which alleged that his appointed trial counsel was ineffective for not allowing him to testify at trial. Following a hearing, the post-conviction court dismissed the petition, and we affirm. http://www.tba.org/tba_files/TCCA/pikeearlj.wpd STATE OF TENNESSEE v. JOSEPH LANCE RISNER Court:TCCA Attorneys: Richard L. Gaines, Knoxville, Tennessee, for the Appellant, Joseph Lance Risner. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Eric Christensen, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Joseph Lance Risner, appeals from the dismissal of his petition for post-conviction relief. Pursuant to a "package deal" plea, Risner, along with five of his co-defendants, pled guilty to three counts of first degree murder, one count of attempted murder, two counts of especially aggravated kidnapping, two counts of kidnapping, and one count of class D felony theft. On appeal, Risner presents the following issues for our review: (1) whether his plea was knowingly and voluntarily entered; (2) whether he was denied the effective assistance of counsel; and (3) whether the indictment, which did not include the aggravating circumstances qualifying him for the death penalty violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and is, thus, unconstitutional. Finding no reversible error, we affirm the judgment of the Greene County Criminal Court. http://www.tba.org/tba_files/TCCA/risnerjosephlance.wpd FLOYD W. SMITH, II v. STATE OF TENNESSEE Court:TCCA Attorneys: James H. Flood, Lebanon, Tennessee, for the appellant, Floyd W. Smith, II. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and David E. Durham, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Wilson County jury convicted the Petitioner of second degree murder. The trial court sentenced the Petitioner to twenty years in the Department of Correction. On direct appeal, the Petitioner's sole issue was that the twenty year sentence imposed by the trial court was excessive. This Court affirmed the trial court's twenty-year sentence. The Petitioner then filed a petition for post- conviction relief, alleging that he was denied effective assistance of counsel at trial and on appeal. The post-conviction court found that Petitioner failed to present clear and convincing evidence to support his claims and dismissed the petition. The Petitioner now appeals, arguing that the post- conviction court erred in denying post-conviction relief based on ineffective assistance of counsel and flaws in the voir dire. Finding no error, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/smithfw.wpd STATE OF TENNESSEE v. LAWRENCE E. TRUMAN Court:TCCA Attorneys: John L. Henderson, District Public Defender, and Douglas P. Nanney, Assistant Public Defender, for the appellant, Lawrence E. Truman. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Lawrence E. Truman, appeals as of right his conviction by the Williamson County Circuit Court for driving under the influence of an intoxicant (DUI), a Class A misdemeanor. The trial court sentenced the defendant to eleven months, twenty-nine days, with seven days of the sentence to be served in the county jail and the balance on probation. The defendant, who remained free on bond following his conviction, failed to appear for a subsequent review hearing, and the trial court issued a capias for his arrest. In this appeal, the defendant contends that the evidence is insufficient to support his DUI conviction. We dismiss the appeal because the defendant remains on escape status. http://www.tba.org/tba_files/TCCA/trumanlawrencee.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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