Opinion FlashOctober 21, 2003Volume 9 — Number 192 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. CARL EDWARD BELL Court:TCCA Attorneys: Ross E. Alderman, District Public Defender, and William J. (Jay) Steed, III, Assistant Public Defender, for the appellant, Carl Edward Bell. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: In a plea agreement, the defendant pled guilty to the sale of under .5 grams of cocaine and agreed to a seven-year sentence. The manner of service of the sentence was to be determined at a sentencing hearing. The trial court ordered the defendant to serve the entire sentence in the Tennessee Department of Correction, because the defendant had not demonstrated the potential for rehabilitation or treatment. We find no error in the sentence and, therefore, affirm. http://www.tba.org/tba_files/TCCA/bellce.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. Also, the trial court erred in instructing the jury on flight. We conclude, following plain error review, that attempted reckless homicide is not a recognized crime in Tennessee. We reverse and dismiss the defendant's conviction for attempted reckless homicide. Further, we conclude that the jury instruction regarding flight was not error, and the trial court correctly sentenced the defendant as a Range II, multiple offender. We affirm the defendant's convictions and sentences for aggravated burglary and aggravated assault. http://www.tba.org/tba_files/TCCA/bryantvl.wpd BOBBY JOE CARTER v. STATE OF TENNESSEE Court:TCCA Attorneys: Larry F. Wallace, Jr., Shelbyville, Tennessee, for the appellant, Bobby Joe Carter. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, serving an effective twenty-year sentence on three counts of especially aggravated kidnapping, argues the trial court erred in denying his petition for post-conviction relief because: (1) his guilty plea was not entered voluntarily and intelligently; and (2) his trial counsel was ineffective. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/carterbobby.wpd STATE OF TENNESSEE v. MONA RAY CLOUD ALIAS MONA R. HEADRICK, ALIAS MONA R. CLOUD, ALIAS MONA HEADRICK Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack Garner, District Public Defender; and Stacey D. Nordquist, Assistant District Public Defender (at trial), for the appellant, Mona Ray Cloud, alias Mona R. Headrick, alias Mona R. Cloud, alias Mona Headrick. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Michael L. Flynn, District Attorney General; and James T. Brooks, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Mona Ray Cloud, pled guilty in the Blount County Circuit Court to aggravated burglary, a Class C felony; violating the Motor Vehicle Habitual Offender (MVHO) Act, a Class E felony; and criminal impersonation, a Class A misdemeanor. Pursuant to the plea agreement, she received four-year, one-year, and six-month sentences, respectively, with the one-year and six-month sentences to be served concurrently to each other but consecutively to the four-year sentence for an effective sentence of five years in the Department of Correction (DOC). The manner of service was to be determined by the trial court. After a sentencing hearing, the trial court ordered the defendant to serve her sentences in confinement. The defendant appeals, claiming that she should have received alternative sentences. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/cloudmonaray.wpd LARRY COULTER v. STATE OF TENNESSEE Court:TCCA Attorneys: Larry Coulter, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner's filing of a motion to reconsider did not toll the running of the thirty day requirement for filing notice of appeal. We conclude that the record evinces no basis for determining that justice requires us to excuse the timely filing of a notice of appeal. http://www.tba.org/tba_files/TCCA/coulterl.wpd STATE OF TENNESSEE v. BARRY INMAN Court:TCCA Attorneys: Nathaniel H. Koenig, Nashville, Tennessee, for the appellant, Barry Inman. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Ronald L. Davis, District Attorney General; Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Barry Inman, was convicted by a jury in the Williamson County Circuit Court of possession of over .5 grams of cocaine with the intent to sell or deliver, possession of Alprazolam with the intent to sell or deliver, possession of marijuana, possession of drug paraphernalia, and speeding. Additionally, the appellant pled guilty to driving on a revoked license. The trial court sentenced the appellant to a total effective sentence of nine years incarceration in the Tennessee Department of Correction. On appeal, the appellant contends that the trial court should have granted his motion for judgments of acquittal and that the evidence adduced at trial was insufficient to sustain his convictions. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/inmanb.wpd STATE OF TENNESSEE v. GERALDRICK JONES Court:TCCA Attorneys: Bill Anderson and James V. Ball, Memphis, Tennessee, for the appellant, Geraldrick Jones. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Katrina U. Early and James M. Lammey, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: This direct appeal of right for first degree murder for which the defendant received a sentence of life without parole raises five issues of alleged error: (1) sufficiency of evidence; (2) failure to suppress the defendant's statements; (3) improper admission of photographs; (4) improper testimony of experts at the penalty phase of trial; and (5) improper admission of evidence concerning a prior conviction of the defendant. We conclude that the evidence was sufficient to support the first degree murder conviction. The issue concerning admissibility of the defendant's statement is waived by the defendant's failure to include the suppression hearing in the appellate record. We conclude that the remaining issues were properly decided by the trial court, and we, therefore, affirm the conviction. http://www.tba.org/tba_files/TCCA/jonesg.wpd STATE OF TENNESSEE v. CHARLES LAWUARY Court:TCCA Attorneys: Michael D. Rasnake, Jackson, Tennessee, for the appellant, Charles Lawuary Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; James W. Thompson, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Charles Lawuary, appeals from the trial court's order revoking Defendant's community corrections sentence and requiring him to serve the sentence in incarceration. Defendant argues that the trial court abused its discretion in revoking the community corrections sentence. After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lawuar.wpd STATE OF TENNESSEE v. JOHNNY LEE LEWIS Court:TCCA Attorneys: Larry M. Warner, Crossville, Tennessee, for the appellant, Johnny Lee Lewis. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Clement Dale Potter, District Attorney General; and Larry G. Bryant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appealed his convictions on two counts of facilitation of second degree murder and one count of aggravated arson, as well as the effective 65-year sentence. The defendant's appeal raised the following issues: insufficiency of evidence to support the convictions; error in allowing hearsay testimony under the conspiracy exception; error in allowing cross-examination of the defendant during limited purpose jury-out hearing; error in allowing a medical expert to testify outside his area of expertise; failure to instruct the jury on inadequate crime scene investigation; and error in application of "particularly vulnerable" enhancement factor during the sentencing phase. We conclude that the defendant's issues are without merit and affirm the convictions and sentence as imposed by the trial court. http://www.tba.org/tba_files/TCCA/lewisjl.wpd STATE OF TENNESSEE v. CHARLES R. PALMQUIST Court:TCCA Attorneys: William A. Cameron, Cookeville, Tennessee, for the appellant, Charles R. Palmquist. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William Edward Gibson, District Attorney General; Thomas Tansil, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Charles R. Palmquist, pursuant to a negotiated plea agreement, pled guilty to DUI first offense and reserved a certified question of law for appeal pursuant to Tenn. R. Crim. P. 37(b)(2)(i). After a review of the record and the briefs of the parties, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/palmquistcharlesr.wpd STATE OF TENNESSEE v. PAUL PETTIBONE Court:TCCA Attorneys: William J. Steed, Assistant Public Defender (on appeal), and Paul B. Seusy, Assistant Public Defender (at trial), Nashville, Tennessee, for the appellant, Paul Pettibone. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Paul Edward Pettibone, Jr., pled guilty to the offense of attempted aggravated robbery, a Class C Felony. He was sentenced to four years as a Range I, standard offender. The trial judge ordered the appellant to serve his sentence in incarceration, but asserted that if the appellant successfully completed an addiction treatment program known as Lifeline Therapeutic Community, he could apply to the court to suspend the rest of his sentence. In this appeal as of right, the appellant contends that the trial court erred by failing to grant either an alternative sentence or a term of probation after a period of confinement. After a review of this case, we conclude that the evidence did not support the grant of an alternative sentence or a term of probation after a period of confinement and thus affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pettibonepaul.wpd STATE OF TENNESSEE v. JAMES H. THOMPSON Court:TCCA Attorneys: Robert S. Peters, Winchester, Tennessee, for the appellant, James H. Thompson. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough; Assistant Attorney General; James Michael Taylor, District Attorney General; Steven M. Blount, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Following a conviction for DUI, third offense, after entering a guilty plea, Defendant James H. Thompson appeals, asserting that he has presented a certified question of law for review. Because we conclude that the question of law, even if properly reserved at the guilty plea hearing, is not dispositive of the case, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/thompsonjamesh.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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