Opinion FlashSeptember 09, 2003Volume 9 — Number 164 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 KAY GILLIAM DULIN v. MICHAEL JAY DULIN Court:TCA Attorneys: Michael Jay Dulin, pro se, Eads, TN S. Denise McCrary, Stephanie M. Micheel, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a custody dispute involving parental relocation with a minor child. The lower court dismissed Father's petition to oppose Mother's relocation and granted Mother's motion to dismiss. Father raises multiple issues on appeal. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/dulin.wpd HAREN CONSTRUCTION CO., INC. v. B&G ELECTRICAL CONTRACTORS, INC. Court:TCA Attorneys: Howard B. Jackson, Knoxville, TN, for Appellant David A. Velander, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This is an appeal from the denial of Appellants' motion to vacate an arbitration award. Appellants contend that one of the arbitrators chosen by their opponents exhibited behavior showing evident partiality. Appellants further contend that the trial court erred in not applying the Federal Arbitration Act to the case and in awarding Appellees Rule 11 sanctions. For the following reasons, we affirm the court below. http://www.tba.org/tba_files/TCA/haren2.wpd STATE OF TENNESSEE v. LIONEL CHAMPION Court:TCCA Attorneys: Benjamin C. Mayo, Jackson, Tennessee, for the appellant, Lionel Champion. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals the trial court's revocation of his probation. While on probation, the defendant had been arrested for aggravated robbery. He contends the evidence was insufficient to support the revocation. The burden required to revoke probation is by the preponderance of the evidence, not beyond a reasonable doubt. The alleged victim of the aggravated robbery testified at the revocation hearing, and his testimony was found credible by the trial court. We affirm the trial court's revocation of the defendant's probation. http://www.tba.org/tba_files/TCCA/championl.wpd STATE OF TENNESSEE v. REX A. GIBSON Court:TCCA Attorneys: Keith E. Haas, Sevierville, Tennessee, for the appellant, Rex A. Gibson. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, 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: A Sevier County jury convicted the Defendant of driving under the influence and failure to carry a driver's license. The trial court sentenced him to ninety days of incarceration, followed by supervised probation, and suspended his license for two years. He now appeals, claiming: (1) that the trial court erred in failing to suppress all evidence gained as a result of his traffic stop; and (2) that the trial court erred by admitting into evidence the results of his breathalyzer test. In the event that this Court finds that either the traffic stop was unconstitutional or the breathalyzer test was inadmissable, then, the Defendant contends, the remaining evidence is insufficient to support his conviction. Finding no reversible error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/gibsonra.wpd STATE OF TENNESSEE v. BARTON DEREK GRANDE Court:TCCA Attorneys: Barton F. Robison, Paris, Tennessee, for the Appellant, Barton Derek Grande. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Barton Derek Grande, appeals his conviction by a Henry County jury for the manufacturing of methamphetamine, a class C felony. On appeal, Grande challenges the sufficiency of the convicting evidence and raises various other issues, including those of bias and selective prosecution by the State and the legality of a warrantless search of a vehicle. After review, we conclude that all of the issues raised by Grande have been procedurally defaulted except for his challenge to the sufficiency of the evidence. Because we find the evidence legally sufficient, the judgment of conviction is affirmed. http://www.tba.org/tba_files/TCCA/grande.wpd STATE OF TENNESSEE v. RAYMON HAYMON Court:TCCA Attorneys: Raymon Haymon, Pro Se, Whiteville, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Raymon Haymon, was convicted by a Dyer County jury of the premeditated first degree murder of Jody McPherson and was sentenced to life imprisonment. In this appeal as of right, Haymon, proceeding pro se, presents the following issues for our review: (1) whether the evidence was insufficient (a) because the accomplice's testimony was not independently corroborated, and (b) due to conflicting and contradictory testimony from the State's witnesses and his proof of alibi; and (2) whether the State committed prosecutorial misconduct by (a) presenting perjured testimony at trial, and (b) during closing argument. Finding no error, the judgment of the Dyer County Circuit Court is affirmed. http://www.tba.org/tba_files/TCCA/haymon.wpd STATE OF TENNESSEE v. KENNETH NOLAN HUMPHRIES Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; Robert C. Edwards, Assistant Public Defender, for the appellant, Kenneth Nolan Humphries. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; Zane Scarlett, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Kenneth Nolan Humphries, appeals the trial court's revocation of probation. Defendant was separately indicted for three counts of Class D theft. On September 17, 1993, Defendant entered guilty pleas to all three charges, and the trial court sentenced him to serve three consecutive sentences of four years each and ordered him to pay restitution. Defendant's sentences were suspended, and he was placed on probation for twelve years. A probation violation warrant was filed and later amended. The revocation warrant was dismissed, and the trial court ordered Defendant to complete a drug and alcohol rehabilitation program. Subsequently, a second probation violation warrant was filed and later amended to include additional allegations. On April 16, 1997, Defendant pled guilty to two more charges of theft and received two six-year sentences to be served concurrently with each other and consecutively to Defendant's previous twelve-year sentence, for a total effective sentence of eighteen years. The trial court ordered that Defendant's sentence be supervised by the Community Alternatives to Prison Program (CAPP), to expire on April 16, 2015. A warrant for violation of CAPP was filed. Defendant was ordered to serve the remainder of his sentence on regular probation. A fourth probation violation warrant was filed. Following a hearing, the trial court found that Defendant had violated the conditions of probation and ordered Defendant to serve the remainder of his sentence in confinement. Defendant appeals the trial court's decision. After reviewing the record, we affirm the judgment of the trial court in part and reverse in part. http://www.tba.org/tba_files/TCCA/humphrieskennethn.wpd STATE OF TENNESSEE v. MARCUS JOHNSON Court:TCCA Attorneys: C. Anne Tipton, Memphis, Tennessee, for the appellant, Marcus Johnson. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Marcus Johnson, was convicted by a jury in the Shelby County Criminal Court of felony murder and two counts of especially aggravated robbery. Defendant was sentenced to life imprisonment for the felony murder conviction and twenty years for each especially aggravated robbery conviction. The trial court ordered the twenty-year sentences to run consecutive to each other, and one twenty-year sentence to run concurrent with the life sentence, and the other to run consecutive with the life sentence. In this appeal as of right, Defendant argues that: (1) the trial court erred in denying his motion to suppress incriminating statements made by Defendant to the police; (2) the evidence at trial was insufficient to support his convictions beyond a reasonable doubt; and (3) the trial court erred in failing to instruct the jury as to the weight to be given to the supplemental jury charge. After a review of the record, we affirm Defendant's conviction for felony murder. We conclude, however, that the constitutional protections against double jeopardy require reversal of one of Defendant's convictions for especially aggravated robbery. Accordingly, we affirm one of Defendant's especially aggravated robbery convictions. We modify the other especially aggravated robbery conviction to aggravated assault and remand for resentencing, for the reasons stated herein. http://www.tba.org/tba_files/TCCA/johnsnm.wpd STATE OF TENNESSEE v. DIALLO JAMEL LAUDERDALE Court:TCCA Attorneys: B. Kirk Vandivort and Jerred A. Creasy, Charlotte, Tennessee, for the appellant, Diallo Jamel Lauderdale. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Diallo Jamel Lauderdale, was convicted by a Henry County Circuit Court jury of first degree felony murder, and the trial court sentenced him as a violent offender to life in the Department of Correction. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction; (2) the wording of the felony murder by aggravated child abuse and neglect statute resulted in an indictment that failed to inform him of the charged offense, is vague, and resulted in him being convicted by less than a unanimous verdict; (3) the trial court erred by denying his motion to suppress; and (4) these cumulative errors and a juror's failing to mention until after the jury had been sworn that she was a friend of the victim's family denied him the right to a fair trial. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lauderdal.wpd STATE OF TENNESSEE v. KEITH PETTIGREW Court:TCCA Attorneys: W. Mark Ward, Memphis, Tennessee (on appeal) and Mary K. Kent, Memphis, Tennessee (at trial) for the appellant, Keith Pettigrew. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Shelby County jury convicted the Defendant for theft of property valued between $1,000 and $10,000 and burglary of a motor vehicle. The trial court sentenced the Defendant as a Range III persistent offender to ten years of incarceration for the theft offense and five years of incarceration for the burglary offense, both sentences to be served concurrently. The Defendant now appeals, contending that the evidence is insufficient to sustain his theft conviction. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pettigrew.wpd STATE OF TENNESSEE v. ALBERT D. WILSON, II Court:TCCA Attorneys: Robert W. White (on appeal) and Charles Deas (at trial), Maryville, Tennessee, for the appellant, Albert D. Wilson, II. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Mike Flynn, District Attorney General; and John Bobo, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Albert D. Wilson, II, pled guilty in the Blount County Circuit Court to possession of a Schedule II controlled substance and was sentenced to eight years incarceration in the Tennessee Department of Correction. The appellant reserved two certified questions of law relating to the propriety of the search of his motel room. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wilsonad.wpd STATE OF TENNESSEE v. SAMMY CLAUDE WILSON Court:TCCA Attorneys: Dwayne D. Maddox, III, Huntingdon, Tennessee, for the appellant, Sammy Claude Wilson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General, Robert "Gus" Radford, District Attorney General; Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Carroll County jury convicted the Defendant of manufacturing the controlled substance methamphetamine. The trial court sentenced the Defendant as a standard offender to four years and six months of incarceration. The Defendant now appeals, contending the following: (1) that insufficient evidence was presented at trial to support the conviction; and (2) that the jury's indication on the special verdict form showed its confusion with regard to the trial court's instructions rendering the verdict unsustainable or, in the alternative, constituting "plain error." Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wilsonsammyc.wpd STATE OF TENNESSEE v. LEE ANN WOLFE and EDWARD CARL BARNETT Court:TCCA Attorneys: John S. Anderson (on appeal) and Mark S. Stapleton (at trial), Rogersville, Tennessee, for the appellant, Lee Ann Wolfe. James F. Taylor, Mt. Carmel, Tennessee, for the appellant, Edward Carl Barnett. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; C. Berkeley Bell, District Attorney General; J. Douglas Godbee, Jr. and Jack Marecic, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: At a joint trial, a Hawkins County jury convicted each Defendant of numerous drug-related offenses. The same jury also convicted Defendant Wolfe of tampering with evidence and convicted Defendant Barnett of two theft offenses. Wolfe received an effective sentence of five years of incarceration, and Barnett's effective sentence was twelve years of incarceration. On appeal, both Defendants challenge the sufficiency of the convicting evidence and the propriety of the sentences imposed by the trial court. Finding no error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/wolfelabarnettec.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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