Opinion Flash

September 26, 2003
Volume 9 — Number 175

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
03 New Opinion(s) from the Tennessee Court of Appeals
06 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


ROCKY D. HITSON v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:                          

Rocky D. Hitson, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Arthur Crownover
II, for the appellee, Tennessee Department of Correction.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Department
of Correction regarding a disciplinary hearing held at the Northeast
Correctional Complex in Mountain City.  The prisoner filed a petition
for writ of certiorari in the Chancery Court for Davidson County
alleging that he had been substantially prejudiced by the Department's
failure to follow its disciplinary rules.  The trial court, relying on
Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995), granted the
Department's Tenn. R. Civ. P. 12.02(6) motion and dismissed the
petition.  The petitioner has appealed.  We have determined that the
trial court's order should be vacated and remanded for further
consideration in light of Willis v. Tennessee Dep't of Corr., ___
S.W.3d ___, 2003 WL 22019138 (Tenn. Aug. 27, 2003).

http://www.tba.org/tba_files/TCA/hitsonrd.wpd

IN RE: MARTHA BLANKS MAXWELL, CONSERVATORSHIP

Court:TCA

Attorneys:                          

Thomas O. Bratcher, McMinnville, Tennessee, for the appellant, Daisy
Maxwell.

Mary M. Little, McMinnville, Tennessee, for the appellee, Martha
Blanks Maxwell.

Judge: COTTRELL

First Paragraph:

The niece of an elderly woman who suffered a stroke, followed by
memory loss and confusion, petitioned the court to be appointed as her
aunt's conservator.  The trial court granted the petition as well as
the conservator's plan to have her aunt moved to an assisted living
environment. There, the woman's condition improved, and the guardian
ad litem moved the court to consider whether it was advisable to
revoke the conservatorship and allow her to return to her own home.
After a hearing, the court terminated the conservatorship.  The former
conservator appeals, and we affirm.

http://www.tba.org/tba_files/TCA/maxwellm.wpd

DENICIA GAY BULLION WILLS v. RUSSELL BOYD WILLS

Court:TCA

Attorneys:                          

Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellant,
Russell Boyd Wills.

Paul A. Rutherford, Nashville, Tennessee, for the appellee, Denicia
Gay Bullion Wills.

Judge: FARMER

First Paragraph:

This case involves an appeal from an order of the trial court
modifying the father's child support obligation and denying the
father's request for change of custody.  We affirm in part, reverse in
part, and remand.

http://www.tba.org/tba_files/TCA/willsdeniciag.wpd

RITA DAVIS  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

John H. Richardson, Jr., Fayetteville, Tennessee, for the appellant,
Rita Davis.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; William Michael McCown, District Attorney
General; Weakley E. Bernard, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: SMITH

First Paragraph:

Petitioner, Rita Davis, appeals the trial court's denial of her
petition for post-conviction relief.  Petitioner entered an open plea
of guilty to felony failure to appear, a charge apparently stemming
from another case in which Petitioner was charged with possession of a
schedule II narcotic for resale, a Class B felony.  Petitioner was
convicted by a jury on the drug possession charge, and on August 18,
1999, she was sentenced on both convictions.  Petitioner filed a pro
se petition for relief from her conviction and sentence in the failure
to appear case.  The trial court denied post- conviction relief, but
granted a delayed appeal.  Petitioner appealed, and this Court
affirmed Petitioner's sentence, but reversed the denial of
post-conviction relief, remanding the case for dismissal of the
petition without prejudice.  Petitioner filed another post-conviction
petition, alleging that she received the ineffective assistance of
counsel and that her plea was not knowingly and voluntarily entered. 
Following a hearing, the trial court denied the petition.  In this
direct appeal, Petitioner challenges the trial court's denial of her
petition.  After a careful review of the record, we affirm the
judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/davisrita.wpd

STATE OF TENNESSEE v. WILLIAM PAUL EBLEN

Court:TCCA

Attorneys:                          

Mike Whalen, Knoxville, Tennessee, for the appellant, William Paul
Eblen.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Scott Green, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, William Paul Eblen, was convicted by a jury of two
counts of aggravated rape and one count of aggravated kidnapping.  The
trial court sentenced the Defendant to two concurrent terms of
twenty-four years for the rapes, and to a concurrent term of eleven
years for the kidnapping, all to be served in the Department of
Correction.  In this direct appeal, the Defendant challenges the
sufficiency of the evidence; alleges that the prosecutor committed
reversible misconduct during closing argument; and complains that the
trial court erred in overruling his petition for writ of error coram
nobis.  We affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/eblenwp.wpd

STATE OF TENNESSEE  v.  ROBERT FAULKNER

Court:TCCA

Attorneys:                          

Robert C. Brooks, Memphis, Tennessee, for the appellant, Robert
Faulkner.

Paul G. Summers, Attorney General and Reporter; Gill Geldreich,
Assistant Attorney General; William L. Gibbons, District Attorney
General, and Phillip Gerald Harris and Jennifer Nichols, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant Robert Faulkner appeals as of right his conviction for
first-degree murder and resultant sentence of death arising from the
January 1999, murder of his wife, Shirley Faulkner.  A Shelby County
jury convicted Defendant of first-degree premeditated murder.
Following a separate sentencing hearing, the jury found the proof
supported one aggravating circumstance beyond a reasonable doubt,
i.e., the defendant had been previously convicted of one or more
violent felonies, Tenn. Code Ann. S 39-13-204(i)(2), determined that
the aggravating circumstance outweighed any mitigating circumstances
beyond a reasonable doubt, and sentenced the Defendant to death.  The
trial court approved the sentencing verdict.  Defendant appeals,
presenting for our review the following issues: (1) the trial court
improperly excluded testimony regarding the Defendant's diminished
capacity;  (2) the trial court improperly permitted the introduction
of numerous gruesome photographs of the homicide victim; (3) the trial
court improperly instructed the jury; (4) the indictment failed to
charge a capital offense; (5) the death penalty violates treaties
which have been ratified by the United States, and violates
established international law; (6) the Tennessee death penalty
sentencing statute and the imposition of death are unconstitutional;
and (7) the criteria of Tenn. Code Ann. S 39-13-206(c)(1) have not
been satisfied in this case.  After review, we find no error of law
requiring reversal.  Accordingly, we affirm the Defendant's conviction
for first-degree murder and the jury's imposition of the sentence of
death in this case.

http://www.tba.org/tba_files/TCCA/faulkn.wpd

STATE OF TENNESSEE v. AARON BLAKE FRANZ

Court:TCCA

Attorneys:                          

Tony L. Maples, Murfreesboro, Tennessee, for the appellant, Aaron
Blake Franz.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William C. Whitesell, Jr.,
District Attorney General; and Tom Jackson, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

After several opportunities to comply with the conditions of his
probation, the trial court ordered the appellant, Aaron Blake Franz,
to serve thirty months in confinement, the original sentence imposed
for the appellant's burglary conviction.  On appeal, the appellant
argues that the trial court was without jurisdiction to revoke his
probation because the revocation warrant was filed after the first
extension of the probationary period expired.  Upon review of the
record and the parties' briefs, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/franzab.wpd

STATE OF TENNESSEE v. ROBERT NEWELL RODGERS

Court:TCCA

Attorneys:                          

Shawn Graham, Maryville, Tennessee, for the appellant, Robert Newell
Rodgers.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Mike Flynn, District Attorney
General; Edward P. Bailey, Jr. and Kirk Andrews, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Robert Newell Rodgers, was indicted by the Blount
County Grand Jury for one count of robbery and one count of assault. 
Following a bench trial, the Defendant was convicted of robbery, a
Class C felony.  See Tenn. Code Ann. S 39-13-401(b).  The trial court
dismissed the assault charge.  In this direct appeal, the Defendant
argues that the trial court erred by finding him guilty of robbery as
opposed to theft and assault.  We vacate the Defendant's conviction
for robbery and modify the judgment to reflect convictions for theft
and assault.  The case is remanded to the trial court for entry of new
judgments and for sentencing for the theft and assault convictions.

http://www.tba.org/tba_files/TCCA/rodgersrn.wpd

STATE OF TENNESSEE v. SHAWN MICHAEL WARD
ORDER

Court:TCCA

Judge: SMITH

First Paragraph:

The appellant, Shawn Michael Ward, entered guilty pleas to numerous
burglary and theft charges.  The parties agreed that the question of
sentencing would be left entirely to the trial court.  The trial court
ordered some of the numerous sentences to run concurrently and others
consecutively for an effective sentence of 21.6 years as a Range II
multiple offender.  In this appeal the appellant contends his sentence
is excessive.  Because we find that the trial judge considered
appropriate enhancing and mitigating factors and that consecutive
sentencing is appropriate, we affirm the judgments of the trial court
pursuant to Rule 20, Rules of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TCCA/wardshawn_ord.wpd

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