Opinion FlashDecember 15, 2003Volume 9 — Number 228 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1215.wpd LINDA CAMPBELL v. OPAL A. CARROLL, ET AL. Court:TCA Attorneys: Michele Neal Scott, Springfield, Tennessee, Pro Se. Christine Brasher, Springfield, Tennessee, for the appellee and cross appellant, Linda Campbell. Judge: COTTERLL First Paragraph: This appeal involves the denial by the trial court of a motion for Rule 11 sanctions. The request for sanctions was made pro se by defendant Michele Scott against plaintiff and her counsel for failing to perform an adequate prefiling investigation as required under Rule 11. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/campbelll.wpd KEVIN STANLEY DEMERS v. KAREN ANNETTE WALLACE DEMERS Court:TCA Attorneys: Troy Lee Brooks, Mount Juliet, Tennessee, for the appellant, Kevin Stanley Demers. Gregory D. Smith, Nashville, Tennessee, for the appellee, Karen Annette Wallace Demers. Judge: KIRBY First Paragraph: This involves a post-divorce petition to reduce child support. The mother and father were divorced in 1998, and the mother was awarded custody of the parties' three children. The father was ordered to pay child support plus private school tuition, based on substantial annual earnings from self- employment. In December 2000, the father filed a petition to have his child support payments reduced based on a decline in his business. The father later liquidated the assets of his business and quit work. He subsequently amended his petition, asserting that he had earned no income since the liquidation of his business. After a bench trial, the trial court rejected the father's petition for a reduction in child support, finding that the father was willfully underemployed. The father now appeals. We affirm, finding that the evidence does not preponderate against the trial court's determination that the father was willfully underemployed. http://www.tba.org/tba_files/TCA/demersks.wpd LORRAINE M. MILLER v. BRUCE L. MILLER Court:TCA Attorneys: Ernest W. Williams; Anna E. Freeman, Franklin, Tennessee, for the appellant, Bruce L. Miller. Helen Sfikas Rogers; Lana L. Lennington, Nashville, Tennessee, for the appellee, Lorraine M. Miller. Judge: COTTERLL First Paragraph: The trial court awarded a divorce to a sixty-four year old woman with multiple health problems, and ordered her former husband to pay her $700 per month as alimony in futuro. The husband argues on appeal that the trial court erred, because the wife was capable of working, and was therefore only entitled to rehabilitative alimony. We affirm the trial court. http://www.tba.org/tba_files/TCA/millerl.wpd FRANK ROBERT BIGSBY v. STATE OF TENNESSEE DISSENTING OPINION Court:TCCA Judge: WADE DISSENTING OPINION http://www.tba.org/tba_files/TCCA/bigsbyfr_dis.wpd STATE OF TENNESSEE v. DETRICK COLE Court:TCCA Attorneys: Robert Wilson Jones, Public Defender; William L. Johnson (at trial), Dianne M. Thackery (at trial), W. Mark Ward (on appeal), Tony N. Brayton (on appeal), and Garland Erguden (on appeal), Assistant Public Defenders, for the appellant, Detrick Cole. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephen P. Jones and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee Judge: RILEY First Paragraph: Capital defendant Detrick Cole appeals as of right his sentence of death resulting from the October 2000 murder of Santeife Thomas. A Shelby County jury found the defendant guilty of premeditated first degree murder. Following a separate sentencing hearing, the jury unanimously found the presence of one statutory aggravating circumstance, i.e., the defendant had previously been convicted of one or more violent felony offenses; determined that this aggravating circumstance outweighed any mitigating circumstances; and imposed a sentence of death. The defendant now appeals, presenting for our review the following issues: (1) whether the evidence is sufficient to support premeditated first degree murder; (2) whether the trial court erred in permitting the state to introduce a photograph of the victim while he was alive; (3) whether the trial court erred in permitting the introduction of post-mortem photographs of the victim; (4) whether the fingerprinting of the defendant in the presence of the jury at the penalty phase was constitutional error; (5) whether the trial court erroneously prohibited the defendant from introducing hearsay evidence during the penalty phase; (6) whether the trial court's instructions to the jury as to the (i)(2) aggravating circumstance were contrary to the United States Supreme Court's holdings in Apprendi v. New Jersey and Ring v. Arizona; (7) whether there is a reasonable probability that the instruction on victim impact evidence coerced the death sentence from the jury; (8) whether the evidence is sufficient to establish the defendant had previously been convicted of one or more violent felony offenses; (9) whether the jury verdict form was clear as to whether the jury found the aggravating circumstance relied upon by the state; (10) whether the Tennessee death penalty statutory scheme is constitutional; and (11) whether the sentence of death imposed in this case is disproportionate. Upon review, we question, but need not determine, whether the trial court in the penalty phase had the authority under Apprendi and Ring to find the defendant's prior felony convictions were crimes of violence and to instruct the jury that these prior convictions were crimes of violence; however, we conclude that if there were error, any error was harmless beyond a reasonable doubt. Thus, we discern 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. http://www.tba.org/tba_files/TCCA/coled.wpd JERRY LEE COWAN v. STATE OF TENNESSEE Court:TCCA Attorneys: Jerry Lee Cowan, Pro Se. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and James Michael Taylor, District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Jerry Lee Cowan, seeks appellate review of the Blount County Circuit Court's denial of his motion to reopen his 1992 post-conviction relief petition. Finding no merit in the appeal, we affirm the lower court's judgment. http://www.tba.org/tba_files/TCCA/cowanjerrylee.wpd JASON MICHAEL CRIM v. STATE OF TENNESSEE Court:TCCA Attorneys: Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Jason Michael Crim. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Jason Michael Crim, appeals the trial court's denial of his application for post- conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/crimjm.wpd STATE OF TENNESSEE v. RICHARD DILLING Court:TCCA Attorneys: Didi Christie, Brownsville, Tennessee, (on appeal); Joseph P. Atnip, District Public Defender; and William K. Randolph, Assistant Public Defender, (at trial) for the appellant, Richard Dilling. Paul G. Summers, Attorney General & Reporter; Jennifer Bledsoe, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin Alpin, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Following a bench trial in the Circuit Court of Obion County, Defendant, Richard Dilling, was convicted of misdemeanor reckless endangerment. He was sentenced to serve 11 months and 29 days, with all but 30 days to be suspended. He now appeals, challenging both the sufficiency of the evidence to sustain the conviction and the sentence imposed by the trial court. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/dilling.wpd STATE OF TENNESSEE v. CALVIN REGINALD EDWARDS Court:TCCA Attorneys: Jeffrey L. Stimpson, Munford, Tennessee, for the appellant, Calvin Reginald Edwards. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Colin Campbell and James Walter Freeland, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Calvin Reginald Edwards, entered a plea of guilt to simple possession of marijuana, explicitly reserving a certified question of law challenging the legality of an investigatory stop. See Tenn. R. Crim. P. 37(b)(2)(i). Because the stop was based upon a reasonable and articulable suspicion, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/edwardsc.wpd ANDREW LEVI JEFFERSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the Appellant, Andrew Levi Jefferson. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and James H. Todd, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Andrew Levi Jefferson, appeals from the Davidson County Criminal Court's denial of post-conviction and habeas corpus relief. In his amended, combined petitions for relief, the petitioner challenges his 2001, guilty-pleaded convictions of second degree murder and attempt to commit especially aggravated robbery. On appeal, the petitioner claims post-conviction relief because his trial counsel were ineffective in failing to defeat the transfer of the petitioner's case from juvenile court to criminal court, in preventing the petitioner from testifying at the transfer hearing, by failing to investigate and discover the petitioner's mental status, and in failing to present a critical issue in pretrial motions. Also, the petitioner claims that his guilty pleas were involuntary and unknowing and that he was denied due process because he was not allowed to testify in the juvenile court transfer hearing. In his joined claim for habeas corpus relief, the petitioner claims that, because of errors in the transfer from juvenile court, the criminal court lacked jurisdiction to adjudicate his case. Based upon our review, we find no reversible error and affirm the actions of the post-conviction court. http://www.tba.org/tba_files/TCCA/jeffersonandrewlevi.wpd STATE OF TENNESSEE v. ANGALEE LOVE Court:TCCA Attorneys: William D. Massey and C. Michael Robbins (on appeal), and Coleman Garrett and Michelle Botseri (at trial), Memphis, Tennessee, for the appellant, Angalee Love. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience Branham and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of aggravated child abuse of her seventeen-month-old daughter. The defendant contends on appeal that the evidence was insufficient to support the conviction, and the trial court erred in allowing testimony by Dr. Lazar concerning the effects of acetone. We conclude that the evidence presented was sufficient to support the conviction, and any error in admitting the testimony of Dr. Lazar concerning the effects of acetone was harmless. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/lovea.wpd STATE OF TENNESSEE v. JAMES A. McCURRY Court:TCCA Attorneys: George M. Googe, District Public Defender, and Stephen P. Spracher, Assistant District Public Defender, for the appellant, James A. McCurry. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was charged with driving on a revoked license and misdemeanor evading arrest. The jury found him not guilty of driving on a revoked license and guilty of evading arrest. The defendant contends on appeal that the evidence was insufficient to support the verdict. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/mccurryja.wpd STATE OF TENNESSEE v. MELISSA A. MELLINGER Court:TCCA Attorneys: Lance B. Mayes and M. Don Himmelberg, Nashville, Tennessee, for the appellant, Melissa A. Mellinger. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Howard Lee Chambers, District Attorney General Pro Tem; and Jerry D. Hunt, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Melissa A. Mellinger, was convicted by a jury in the Wilson County Criminal Court of two counts of first offense driving under the influence (DUI), Class A misdemeanors. The trial court merged the convictions, imposed a three hundred fifty dollar ($350) fine, and sentenced the appellant to eleven months and twenty-nine days to be suspended upon serving two hundred seventy-three (273) days in the county jail. The trial court also suspended the appellant's driver's license for one year. On appeal, the appellant argues that the sentence imposed by the trial court was excessive. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mellingerma.wpd STATE OF TENNESSEE v. ANTRAY TERRILL MORROW Court:TCCA Attorneys: Wayne T. DeWees, Bolivar, Tennessee (at trial); Guy T. Wilkinson, District Public Defender; and Richard W. DeBerry, Assistant District Public Defender (on appeal), for the appellant, Antray Terrill Morrow. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: A Hardin County jury convicted the appellant of four counts of aggravated assault and one count of felony reckless endangerment. The trial court imposed an effective twelve-year sentence. In this appeal, the appellant argues: (1) there is insufficient evidence to support his convictions; and (2) the trial court erred in sentencing him. Upon review of the record and the parties' briefs, we affirm the appellant's convictions and sentences for aggravated assault. However, because felony reckless endangerment is not a lesser-included offense of aggravated assault, the jury was improperly instructed on that offense. Accordingly, we reverse the appellant's conviction for felony reckless endangerment and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/morrow.wpd STATE OF TENNESSEE v. STEVEN A. NORVELL Court:TCCA Attorneys: M. Scott Collins, Nashville, Tennessee, for the appellant, Steven A. Norvell. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jennifer Stribling Tackett and Scott R. McMurtry, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Steven A. Norvell, was convicted by a Davidson County Criminal Court jury of driving under the influence (DUI), third offense, a Class A misdemeanor. The trial court sentenced him to eleven months, twenty-nine days to be served as one hundred forty days in jail and the remainder on probation. In addition, the trial court ordered that he participate in an alcohol evaluation and treatment program, suspended his driving privileges for three years, and imposed a one thousand one hundred dollar fine. The defendant contends that the evidence is insufficient to support his conviction because the state offered no proof that the result of his breathalyzer test was accurate. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/norvellstevea.wpd STATE OF TENNESSEE v. JASPER TURNER Court:TCCA Attorneys: J. Colin Morris, Jackson, Tennessee (on appeal); and George Morton Googe, District Public Defender; and Stephen P. Spracher, Assistant Public Defender, Jackson, Tennessee (at trial) for the appellant, Jasper Turner. Paul G. Summers, Attorney General and Reporter; P. Robin Dickson, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, Jasper Turner, was convicted of identity theft, a Class D felony. He was sentenced to twelve years incarceration as a career offender. On appeal, Defendant challenges the sufficiency of the evidence to support the conviction, argues that the trial court erred in sentencing him, and contends that it was plain error for the trial court to allow the State to refer to the victim being attacked at the time the victim's wallet and credit cards were taken. After a thorough review of the evidence, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/turnerj.wpd STATE OF TENNESSEE v. TIMOTHY WAKEFIELD Court:TCCA Attorneys: Robert Wilson Jones and Garland Ergueden, Memphis, Tennessee, for the appellant, Timothy Wakefield. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Timothy Wakefield, pled guilty to DUI, fourth offense, and was sentenced to two years in confinement, suspended after service of 150 days. The Defendant was placed on community corrections. A petition for the revocation of the Defendant's community corrections sentence was subsequently filed and granted. The sole issue on appeal is whether the trial court erred by not allowing the Defendant full credit for the time that the Defendant had served in the community corrections program. We conclude that the trial court erred and remand to the trial court to modify its judgment to reflect ninety-eight days of credit for time served. http://www.tba.org/tba_files/TCCA/wakefie.wpd KENNEDY WOODS v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCCA Attorneys: Kennedy Woods, Nashville, Tennessee, Pro Se. Daniel W. Champney, John L. Kennedy, and Ann O'Connell, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County. Judge: CAIN First Paragraph: This case involves an Administrative Procedures Act appeal from the chancery court's determination of Appellant's Petition for Judicial Review. The petition sought review of the Civil Service Commission's final order affirming Appellant's termination for violation of the Metro Nashville Fire Department's Zero-Tolerance Policy on Substance Abuse. We affirm the order of the trial court. http://www.tba.org/tba_files/TCCA/woodskennedy.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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