Opinion FlashAugust 26, 2003Volume 9 — Number 155 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):
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Vogel TENNESSEE RULES OF APPELLATE PROCEDURE RULE 3 APPEAL AS OF RIGHT: AVAILABILITY; METHOD OF INITIATION Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/2003amnd_rules_appel.wpd TENNESSEE RULES OF CIVIL PROCEDURE RULE 4 PROCESS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/2003amnd_rules_civil.wpd TENNESSEE RULES OF CRIMINAL PROCEDURE RULE 44 RIGHT TO AND ASSIGNMENT OF COUNSEL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/2003amnd_rules_crim.wpd TENNESSEE RULES OF EVIDENCE RULE 412.1 RELEVANCE OF VICTIM'S SEXUAL BEHAVIOR IN CIVIL ACTIONS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/2003amnd_rules_evid.wpd RICKY FLAMINGO BROWN v. STATE OF TENNESSEE ORDER Court:TCCA Judge: SMITH First Paragraph: The appellant, Ricky Flamingo Brown, was convicted by a jury in 1987 of the aggravated rape of his then 12-year-old daughter. He subsequently escaped and remained at large until June 1990 when he was captured and commenced to serve the life sentence he received in absentia. http://www.tba.org/tba_files/TCCA/brownricky_ord.wpd STATE OF TENNESSEE v. VERNON LAMAR BRYANT Court:TCCA Attorneys: Mike A. Little, Chattanooga, Tennessee, for the appellant, Vernon Lamar Bryant. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William H. Cox, III, District Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Following a jury trial, the defendant was found guilty of attempted reckless homicide, aggravated burglary, and aggravated assault. The trial court merged the attempted reckless homicide conviction into the aggravated assault conviction, and the defendant was sentenced as a Range II, multiple offender, to ten years for aggravated assault and six years for aggravated burglary, with the sentences to run concurrently. The defendant contends that the trial court improperly merged the attempted reckless homicide conviction into his aggravated assault conviction and erred by instructing the jury on flight. The defendant also contends the trial court erroneously sentenced him as a Range II, multiple offender. We conclude that the merger of the defendant's two convictions were not in error and that a jury instruction regarding flight was proper. We conclude that the trial court correctly sentenced him as a Range II, multiple offender. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/bryantvl.wpd STATE OF TENNESSEE v. DAVID D. HARRIS Court:TCCA Attorneys: Jefre S. Goldtrap, Nashville Tennessee (on appeal) and Lionel Barrett, Nashville, Tennessee (at trial) for the Appellant, David D. Harris. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Charles R. Carpenter and Jon Seaborg, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, David D. Harris, pled guilty to seven counts of aggravated robbery, a Class B felony, in the Davidson County Criminal Court on June 16, 1999. The trial court sentenced the Defendant to three eight-year sentences, to be served consecutively. The trial court suspended the sentences and ordered the Defendant to serve three consecutive eight-year terms on supervised probation. The State appealed, and this Court reversed the portion of the sentence that ordered the Defendant to serve twenty-four years of probation on the three consecutive eight-year sentences, holding that a probationary sentence for aggravated robbery is contrary to Tennessee Code Annotated section 40-35-303(a). Accordingly, we reversed the trial court's judgment and remanded the case for re-sentencing. Upon re-sentencing, the trial court sentenced the Defendant to three eight-year prison terms and ordered that the sentences run consecutive to each other and consecutive to a sentence that the Defendant is currently serving in Williamson County. The Defendant appealed the trial court's re-sentencing order and raises the following issues: (1) whether the trial court erroneously denied his request for a new sentencing hearing and; (2) whether the trial court erroneously denied the Defendant's request, pursuant to Tennessee Rule of Criminal Procedure 35, for a reduced sentence. After a through examination of the record, we conclude that the trial court did not err when it denied the Defendant's request for a new sentencing hearing; however, because we conclude that the trial court erroneously believed that it was without the authority to impose concurrent sentences, we reverse and remand for it to determine whether the three sentences should run consecutively or concurrently. http://www.tba.org/tba_files/TCCA/harrisdd.wpd STATE OF TENNESSEE v. JOHNNIE W. REEVES Court:TCCA Attorneys: David A. Collins (on appeal) and Barry R. Tidwell (at trial), Nashville, Tennessee, for the appellant, Johnnie W. Reeves. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian K. Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County jury convicted the defendant, Johnnie W. Reeves, of two counts of aggravated child abuse of a child six years of age or less. The trial court imposed two concurrent twenty-year sentences. On appeal, the defendant contends: (1) the evidence was insufficient to support the convictions; and (2) the trial court erred in admitting certain photographs of the victim's injuries. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/reevesjohnnie.wpd JOHN W. WILCOX v. STATE OF TENNESSEE ORDER Court:TCCA Judge: PER CURIAM First Paragraph: It appears that the petitioner, John W. Wilcox, died on June 8, 2003, as evidenced by copy of a death certificate supplied to this Court by the State of Tennessee. This Court, unaware of the petitioner's death, filed an opinion in this cause on June 10, 2003. It is the policy of this Court that appeals are abated at the time of death. http://www.tba.org/tba_files/TCCA/wilcoxjohnw_ord.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! 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