Opinion Flash

September 09, 2003
Volume 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):
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
11 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


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

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