Opinion FlashAugust 14, 2003Volume 9 — Number 147 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 LINDA BRADLEY, ET AL. v. JOHN A. WADERKER, ET AL. Court:TCA Attorneys: Timothy K. Barnes, Clarksville, Tennessee, for the appellants, Linda Bradley, Stephen M. Deep, and Tamara Deep. W. Timothy Harvey, Clarksville, Tennessee, for the appellees, John A. Waderker and The City of Clarksville Police Department. Judge: CAIN First Paragraph: A driver and the passengers in his 1993 Ford Explorer appeal a non-jury judgment of the Circuit Court of Montgomery County. The Ford Explorer collided with a police cruiser at an intersection in the City of Clarksville. The trial court held both drivers to be equally at fault and dismissed the case. We affirm the trial court. http://www.tba.org/tba_files/TCA/bradleyl.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. CARAH PAIGE JONES DEMARR Court:TCA Attorneys: David L. Allen and C. Wayne Tomerlin, Lawrenceburg, Tennessee, for the appellant, Carah Paige Jones Demarr. Paul G. Summers, Attorney General & Reporter and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: CAIN First Paragraph: This case involves termination of parental rights of a mother and custody of the child. The child at issue was found wandering away from his mother's house on March 3, 1999, and was taken into DCS custody, after which the matter languished for over a year without appropriate administration by DCS and with the mother having very little contact with her child. The mother eventually moved out of state and requested that her child be transferred to that state. The case was not transferred, and the mother continued to receive very little cooperation from DCS and have sparse communication with her child. She was, however, attempting to fulfill the requirements of the DCS prepared Permanency Plan. Her parental rights were terminated by the Juvenile Court for Lawrence County in December 2001 for abandonment by willful failure to visit and willful failure to support the child for four months prior to the filing of the termination petition. We reverse the trial court's finding that the mother's failure to visit and failure to support was willful. http://www.tba.org/tba_files/TCA/demarr.wpd TAMARA LYNN FONTAINE, ET AL. v. WEEKLY HOMES, L.P., d/b/a DAVID WEEKLY HOMES, LLC, ET AL. Court:TCA Attorneys: James.S. Higgins, Nashville, Tennessee, for the Appellants, Weekly Homes, L.P., d/b/a David Weekly Homes, L.L.C., and Scott Bauer. Larry L. Crain, Brentwood, Tennessee, for the appellee, Tamara Lynn Fontaine. Judge: FARMER First Paragraph: Defendants/appellants appeal the trial court's denial of their motion to compel arbitration. We affirm. http://www.tba.org/tba_files/TCA/fontaine.wpd JOE R. HALES v. SHELBY COUNTY, TENNESSEE Court:TCA Attorneys: Carroll C. Johnson, Memphis, TN, for Appellant Joseph Michael Cook, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a claim involving an injury sustained by a county employee. The trial court awarded the plaintiff $216,400.00 for injuries sustained while working for Shelby County. The trial court then denied Shelby County's post-trial motion seeking a credit or offset for wage continuation benefits already paid to the plaintiff. The parties raise multiple issues on appeal. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/halesjoer.wpd TRUMBO, INC. V. WITCO CORPORATION Court:TCA Attorneys: Gary K. Smith and Sherry S. Fernandez, Memphis, Tennessee, for appellant, Trumbo, Inc. James B. Summers and Richard S. Wade, Memphis, Tennessee, for appellee, Witco Corporation. Judge: KIRBY First Paragraph: This case involves the loss of evidence. A metal fabrication company modified a fat melting tank for another company. Later, an employee of the melting tank company was severely injured by hot melted fat while working with the modified tank. Following the accident, as part of an investigation, the employer removed the two temperature gauges attached to the tank. The employer paid workers' compensation benefits to the employee. The employee then sued the fabrication company that modified the tank. The employer intervened to assert its statutory lien under the workers' compensation laws, so that it could recover any monies paid to the employee by the fabrication company. Five years after the accident, the fabrication company sought production of the temperature gauges from the employer, as part of its defense in the lawsuit filed against it by the employee. The employer was unable to locate the gauges. The fabrication company settled the lawsuit filed by the injured employee, and filed a claim against the employer for spoliation of evidence and negligence. The fabrication company argued that it was forced to settle the underlying lawsuit with the employee, in part because of the missing gauges. The trial court granted a motion for summary judgment in favor of the employer, finding that the employer did not have a duty to preserve the evidence and that the fabrication company had not established causation. The fabrication company appeals. We affirm, finding that regardless of whether the employer had a duty to preserve the temperature gauges, the fabrication company had not proffered evidence that the gauge would have materially assisted it in defending the lawsuit filed by the employee, and thus was unable to establish causation. http://www.tba.org/tba_files/TCA/trumbo.wpd STATE OF TENNESSEE v. THOMAS MITCHELL Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender; W. Mark Ward, Assistant Public Defender; and Russell White, Assistant Public Defender, for the appellant, Thomas Mitchell. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; Alonda Dwyer, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Thomas Mitchell, was indicted by the Shelby County Grand Jury for burglary of a building other than a habitation, a Class D felony. Following a jury trial, Defendant was convicted as charged and sentenced as a persistent offender to ten years and six months confinement. In this appeal as of right, Defendant presents a single issue, whether the trial court erred in failing to instruct the jury on the lesser-included offense of facilitation. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mitchellt.wpd STATE OF TENNESSEE v. MICHAEL SALVATORE MORANI Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal), and Cynthia S. Lyons, Assistant Public Defender (at trial), for the appellant, Michael Salvatore Morani. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; and Thomas Tansil and Gary McKenzie, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Michael Salvatore Morani, was convicted of one count of attempted first degree murder and one count of theft over $10,000. The trial court imposed consecutive Range I, standard sentences of twenty-three years and five years respectively. The defendant was fined a total of $60,000. In this appeal of right, the defendant contends that the twenty-three-year sentence for attempted murder is excessive and that the trial court erred by imposing the maximum fines on each count. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/moranims.wpd STATE OF TENNESSEE v. GREGORY ROBINSON Court:TCCA Attorneys: Joseph S. Ozment and Steffen G. Schreiner, Memphis, Tennessee (at trial); and Edmund L. Carey, Jr., Nashville, Tennessee, and Robert C. Brooks, Memphis, Tennessee (on appeal), for the appellant, Gregory Robinson. Paul G. Summers, Attorney General and Reporter; Alice B. Lustre, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience R. Branham and Paula Wulff, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Gregory Robinson, appeals as of right his conviction for premeditated first degree murder and sentence of death arising from the May 1, 1997, murder of Vernon Green. He also appeals from the judgment of conviction for especially aggravated kidnapping and its twenty-five- year consecutive sentence. A Shelby County jury convicted the defendant of premeditated first degree murder based upon the theory of criminal responsibility for the conduct of another. Following a separate sentencing hearing, the jury sentenced the defendant to death after finding two aggravating circumstances beyond a reasonable doubt, i.e., the murder was especially "heinous, atrocious, or cruel," see Tenn. Code Ann. S 39-13-204(i)(5), and the murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit a kidnapping, see id. S 39-13-204(i)(7). The defendant appeals, presenting for our review the following contentions: (1) the trial court erred in denying the defendant's motion for individual and sequestered voir dire; (2) the trial court's conclusory rejection of a timely Batson challenge warrants a remand; (3) the evidence was insufficient to sustain the guilty verdicts; (4) the defendant did not receive a fair trial in the guilt phase due to the state's use of inconsistent theories in the trial of the defendant and the subsequent trial of a co-defendant; (5) prosecutorial misconduct regarding witness Jarvis Shipp deprived the defendant of a fair trial; (6) the state engaged in multiple instances of misconduct affecting identification issues; (7) the display of the victim's skull and admission of gruesome photographs during the guilt phase were unduly prejudicial; (8) numerous instances of prosecutorial misconduct deprived the defendant of a fair trial; (9) the trial court erroneously instructed the jury as to intentional and knowing conduct, direct and circumstantial evidence, and reasonable doubt; (10) the trial court erred by failing to instruct the jury on the lesser-included offenses of facilitation and solicitation of first degree murder and especially aggravated kidnapping; (11) the trial court erred by failing to declare a mistrial due to instances of jury perjury and likely intrusions into the sequestration of the jury; (12) the trial court erred by not granting a new trial in its role as thirteenth juror; (13) cumulative error warrants reversal of the convictions; (14) the sentence for especially aggravated kidnapping was excessive; (15) the "heinous, atrocious, or cruel" and felony murder aggravators are unconstitutional; (16) the trial court erred in the penalty phase by denying a mistrial when there was testimony regarding the defendant's prior arrest; (17) the trial court erred by permitting prejudicial and inaccurate information to reach the jurors regarding "aggravating circumstances"; (18) the trial court unconstitutionally prevented the jury from considering relevant mitigating evidence; (19) the admission of a gruesome photograph during the penalty phase was unduly prejudicial; (20) the prosecutor presented improper jury argument during the penalty phase; (21) the trial court gave erroneous jury instructions during the penalty phase concerning reasonable doubt and the "knowing" mens rea for the felony murder aggravator; (22) the aggravating circumstances were not established; (23) the state's use of inconsistent theories in the trials of the defendant and a co-defendant deprived the defendant of a fair sentencing determination involving the death penalty; (24) the death sentence should be vacated based upon a violation of Apprendi v. New Jersey; (25) the trial court erred by not granting a new sentencing hearing based upon its role as thirteenth juror; (26) the trial court erred in failing to find the death penalty, lethal injection, and the system of capital punishment in Tennessee are unconstitutional; and (27) a comparative proportionality review should result in vacating his death sentence. Upon our review, we reverse both convictions and remand for a new trial due to the failure to instruct on facilitation and solicitation as lesser-included offenses. http://www.tba.org/tba_files/TCCA/robinsng.wpd THOMAS D. SMITH v. STATE OF TENNESSEE Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and B. Dent Morriss, Assistant District Attorney General, for the appellant, State of Tennessee. Gregory D. Smith, Clarksville, Tennessee, for the appellee, Thomas D. Smith. Judge: RILEY First Paragraph: The state appeals the Robertson County Circuit Court's granting of post-conviction relief to the petitioner, Thomas D. Smith. The state contends the post-conviction court erred in granting relief based upon the original trial court's failure to reduce to writing its answer to a jury question posed during deliberations at the petitioner's trial. Upon review of the record and the applicable law, we reverse the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/smithth.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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