Opinion FlashOctober 02, 2003Volume 9 — Number 179 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 STATE OF TENNESSEE v. GERALD E. SAYLOR CORRECTED OPINION Court:TSC Attorneys: Clifton Corker, Johnson City, Tennessee, for the appellant, Gerald E. Saylor. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Braden H. Boucek, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted review to determine (1) whether the trial court erred by refusing to suppress the defendant's confession on the ground that he did not invoke his right to counsel; (2) whether the trial court erred by excluding the testimony of a witness as to an uncommunicated threat made by the victim; and (3) whether the trial court erred by denying a mistrial based on the admission of statements regarding the defendant's parole status. We conclude that the trial court properly refused to suppress the defendant's confession; that the trial court committed harmless error when it excluded proof of an uncommunicated threat; and that the trial court properly exercised its discretion by not declaring a mistrial. http://www.tba.org/tba_files/TSC/saylorge.wpd STATE OF TENNESSEE v. ANDERSON TOLIVER WITH CONCURRING AND DISSENTING OPINIONS Court:TSC Attorneys: Jerry H. Summers and Thomas Greenholtz, Chattanooga, Tennessee, for the appellant, Anderson Toliver. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; William H. Cox, III, District Attorney General; and Kelli Black, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: The defendant was convicted of two counts of aggravated child abuse. The trial court imposed a nine-year sentence for each conviction and ordered concurrent service of these sentences. The defendant appealed, raising numerous issues, but the Court of Criminal Appeals affirmed the convictions and sentences. We granted the defendant's application for permission to appeal and, after thoroughly reviewing the record, conclude that the trial court abused its discretion in consolidating the two indictments for trial. Furthermore, we have concluded that the erroneous consolidation of the indictments, in conjunction with the erroneous admission of evidence of other crimes, wrongs, or acts, affirmatively appears to have affected the verdict of the jury. Accordingly, the judgments of the trial court and Court of Criminal Appeals are reversed, and these cases are remanded for new trials at which evidence of other crimes, wrongs, or acts committed by the defendant against the victim or others shall not be admitted unless relevant to a material issue. http://www.tba.org/tba_files/TSC/tolivera_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TSC/tolivera_con.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/tolivera_dis.wpd AMBROSE ASSOCIATES, v. W. AUSTIN MUSSELMAN, JR. Court:TCA Attorneys: Todd E. Panther, Nashville, Tennessee, for Appellant. John R. Wingo, Nashville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Action to collect rent owed by surety was dismissed by the Trial Court. On appeal, we affirm. http://www.tba.org/tba_files/TCA/ambroseass.wpd FIRST UNION NATIONAL BANK OF TENNESSEE v. DONALD R. ABERCROMBIE, SR. Court:TCA Attorneys: Trippe S. Fried, Nashville, Tennessee, for the appellant, Donald R. Abercrombie, Sr. David G. Mangum, Nashville, Tennessee, for the appellee, First Union National Bank of Tennessee, formerly known as Brentwood National Bank. Judge: KOCH First Paragraph: This appeal involves a dispute stemming from a defaulted note. The lender filed suit against the purported borrower in the Chancery Court for Williamson County asserting that he was liable for $57,778.20. The defendant moved to dismiss the complaint on the ground that he was not personally liable on the note because he was simply an officer of the corporation named as the borrower on the note and because he was not a guarantor of the corporation's debts. Thereafter, the lender moved for a default judgment, and the purported borrower then filed an answer denying liability on the note and a counterclaim against the lender for compensatory and punitive damages. The trial court granted the lender a default judgment for $57,778.20 without addressing the pending motion to dismiss or the answer and counterclaim. We have determined that the trial court erred by granting the default judgment and, accordingly, reverse the judgment and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/firstunion.wpd STATE OF TENNESSEE, EX REL. CHRISTINE MITCHELL v. DONALD FILMORE JOHNSON Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton, Senior Counsel, for the appellant, State of Tennessee ex rel. Christine Mitchell. T. Lance Carter, Fayetteville, Tennessee, for the appellee, Donald Filmore Johnson. Judge: COTTRELL First Paragraph: In this appeal, Christine Mitchell brought an action to enforce a child support order which was entered in 1971. The trial court dismissed the petition as untimely due to the statute of limitations in Tenn. Code Ann. S 28-3-110. Because one of the five children benefitting from the child support order was still a minor at the time Tenn. Code Ann. S 36-5-103(g), abolishing the statute of limitations with respect to child support, became effective, we affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/mitchellc.wpd WILLIAM JEFFREY TARKINGTON v. REBECCA JUANITA TARKINGTON Court:TCA Attorneys: Karla C. Hewitt, Nashville, Tennessee, for the appellant, William Jeffrey Tarkington. John David Moore, Nashville, Tennessee, for the appellee, Rebecca Juanita Tarkington. Judge: CAIN First Paragraph: This appeal arises from the Father's post-divorce petition to set child support and to terminate previously ordered alimony in futuro. From an adverse decision of the trial court denying child support and termination of the alimony obligation, Father appeals. We affirm the portions of the trial court's ruling regarding alimony and reverse the award of attorney's fees and denial of support. http://www.tba.org/tba_files/TCA/tarkingtonwm.wpd ROBERT I. GWIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Ron Munkeboe, Jr., for the appellant, Robert I. Gwin. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Robert I. Gwin, appeals the trial court's denial of habeas corpus relief. The single issue presented for review is whether the trial court erred by denying an evidentiary hearing on the petition. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/gwinri.wpd PAMELA J. MOSES v. STATE OF TENNESSEE Court:TCCA Attorneys: Mark Stephens and Bob Edwards, Knoxville, Tennessee, for the appellant, Pamela J. Moses. Paul G. Sumers, Attorney General and Reporter; ReneeW. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Patti Cristil, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Pamela J. Moses, pled guilty pursuant to a plea agreement to aggravated assault and numerous misdemeanors. The plea agreement encompassed the length of the sentences, but left the manner of service for the trial court's determination. The trial court denied an alternative sentence and ordered the Defendant to serve her terms in confinement. The Defendant subsequently filed for post-conviction relief, alleging ineffective assistance of counsel in conjunction with her plea. After an evidentiary hearing, the post-conviction court denied relief and this appeal followed. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/mosespj.wpd STATE OF TENNESSEE v. CHETT ALLEN WALKER Court:TCCA Attorneys: Bryan H. Hoss, Chattanooga, Tennessee, for the appellant, Chett Allen Walker. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Bill Cox, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Chett Allen Walker, was indicted for first degree premeditated murder, setting fire to personal property, and abuse of a corpse. Prior to trial, the Defendant expressed his intent to plead guilty to setting fire to personal property and abuse of a corpse, which he did. However, the trial court submitted those charges to the jury, along with the charge of first degree murder, to which the Defendant pled not guilty. Following the jury trial, the Defendant was convicted of all three charges. In this direct appeal, the Defendant raises six issues: (1) whether the trial court erred by denying the Defendant's motion to suppress his confession; (2) whether the trial court erred by allowing the charges of setting fire to personal property and abuse of a corpse to be determined by the jury after the Defendant expressed his desire to plead guilty to those charges; (3) whether the trial court erred by allowing the jury to view certain photographs and the car that the Defendant burned; (4) whether the trial court erred by allowing the prosecutor to display a photograph of the remains of the victim to the jury during his closing argument; (5) whether the trial court erred by denying the Defendant's motion with respect to the jury instructions; and (6) whether the evidence is legally sufficient to support the Defendant's conviction for first degree premeditated murder. Finding no reversible error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/walkerca.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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