Opinion FlashDecember 23, 2003Volume 9 — Number 234 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 DONALD WALLACE v. STATE OF TENNESSEE Court:TSC Attorneys: Richard McGee and James O. Martin, III, Nashville, Tennessee, for the Appellant, Donald Wallace. Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the Appellee, State of Tennessee Judge: ANDERSON First Paragraph: We granted this appeal to determine whether the trial court properly granted the defendant post- conviction relief in the form of a delayed direct appeal on the ground that counsel's failure to file a motion for new trial resulted in the waiver of all issues on direct appeal except for sufficiency of the evidence. The Court of Criminal Appeals dismissed the appeal after concluding that the trial court lacked the statutory authority to grant a delayed appeal and that the defendant had not suffered any prejudice from counsel's performance. After reviewing the record and applicable authority, we conclude that the trial court properly granted a delayed appeal based upon ineffective assistance of counsel. We therefore reverse the Court of Criminal Appeals, affirm the trial court's grant of a delayed appeal, and remand to the Court of Criminal Appeals for review of the issues presented by the defendant's motion for a new trial. http://www.tba.org/tba_files/TSC/wallaced.wpd BRANDON BRAVO, A MINOR, BY HIS NEXT FRIENDS AND PARENTS, LEONORILDA GAMBOA AND EPIFANIO BRAVO HERNANDEZ; AND LEONORILDA GAMBOA AND EPIFANIO BRAVO HERNANDEZ, INDIVIDUALLY V. SUMNER REGIONAL HEALTH SYSTEMS, INC., D/B/A SUMNER REGIONAL MEDICAL CENTER V. ROBERT DABNEY PHILLIPS, M.D. Court:TCA Attorneys: James D. Kay, Jr., John J. Griffin, and Joanna Thomson, Nashville, Tennessee, for the appellants, Leonorilda Gamboa and Epifanio Bravo Hernandez, individually and as next friends and parents of Brandon Bravo. Dixie W. Cooper and Lisa D. York, Nashville, Tennessee, for the appellee, Robert Dabney Phillips, M.D. Judge: KIRBY First Paragraph: This is a medical malpractice case. The plaintiff was pregnant and came to the hospital to have labor induced for delivery of her baby. The defendant obstetrician-gynecologist had not previously treated the plaintiff, but was the attending physician for the delivery of her baby. After a lengthy labor, the defendant physician attempted to deliver the baby vaginally. When problems developed, the defendant physician immediately delivered the baby by Cesarean section. The baby suffered injuries from the loss of oxygen during the birthing process. The plaintiffs, the child's mother and father, individually and on behalf of the child, sued the defendant physician, asserting that he breached the standard of care in underestimating the size of the baby and in the delivery of the baby. The defendant physician moved for summary judgment. In response, the plaintiffs submitted the expert affidavit of an obstetrician-gynecologist from Georgia, whose medical practice had been limited to gynecologic and fertility matters for several years. The defendant physician objected, arguing under Tennessee Code Annotated S 29-26-115 that the plaintiffs' proffered expert was not competent to testify regarding obstetrics since he had not practiced in that specialty for several years and that he did not satisfy the "locality rule." The trial court found that the expert was not competent and granted summary judgment in favor of the defendant physician. The plaintiffs now appeal. We reverse and remand, finding that the affidavit of the plaintiffs' expert indicated that he was competent to testify about obstetrics and satisfied the locality rule. http://www.tba.org/tba_files/TCA/bravob.wpd ROSE MARIE HARPER BRITT v. ELMER LEE BRITT Court:TCA Attorneys: K. Don Bishop, Henderson, Tennessee, for the appellant, Elmer Lee Britt. Mary Jo Middlebrooks and Betty S. Scott, Jackson, Tennessee, for the appellee, Rose Marie Harper Britt. Judge: FARMER First Paragraph: This appeal arises from a divorce action in which the trial court granted wife an absolute divorce and open-ended rehabilitative alimony, ordered the parties marital property sold and the assets divided, and entered a parenting plan submitted by wife. We affirm in part, modify in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/brittrosemarieharper.wpd CYNTHIA ANN COOPER v. JAMES RONNIE COOPER Court:TCA Attorneys: James Ronnie Cooper, Pro Se. Judge: FARMER First Paragraph: Petitioner sought an order from the trial court to require his former wife to turn over to him property awarded in the divorce action. Following a hearing, the trial court ruled that the Petitioner had not sustained his burden of proof and that Petitioner's former wife did not have in her possession any personal property granted to Petitioner in the divorce decree. The record is before this Court on Petitioner's appeal and absent a transcript or statement of the evidence. We affirm. http://www.tba.org/tba_files/TCA/coopercynthiaann.wpd ELAINE H. DEATHERIDGE, ET UX. v. RICHARD T. BARKSDALE Court:TCA Attorneys: Terrance E. McNabb; James R. Omer & Associates, Nashville, For Appellants, Elaine H. Deatheridge and Louise D. Deatheridge William B. Jakes, III, Nashville, For Appellee, Richard T. Barksdale Judge: CRAWFORD First Paragraph: Plaintiffs brought action against driver for damages arising from a rear-end automobile collision. Defendant raised affirmative defense of sudden emergency caused by a "phantom" non- party defendant's placing duct work in the roadway. The jury found that Defendant was not at fault. Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/deatheridgeelaine.wpd LARRY DEAN DICKERSON v. GARRY BROWN Court:TCA Attorneys: Larry Dean Dickerson, Only, Tennessee, pro se. Garry Brown, Trenton, Tennessee, pro se. Judge: KIRBY First Paragraph: This is a legal malpractice case. The defendant attorney represented the plaintiff in a criminal trial, which resulted in the plaintiff's conviction in February 2000. In October 2000, the attorney was granted permission to withdraw from his representation of the plaintiff in the criminal proceedings. In May 2002, the plaintiff filed the complaint below, alleging that the attorney committed legal malpractice in his defense of the criminal charges against the plaintiff. The attorney filed a motion to dismiss and for summary judgment asserting, among other things, that the complaint was filed beyond the applicable one-year statute of limitations. The trial court granted the attorney's motion. The plaintiff now appeals. We affirm, finding that the undisputed facts show that the plaintiff's legal malpractice claim was untimely, under Tennessee Code Annotated S 28-3-104(a)(2). http://www.tba.org/tba_files/TCA/dickersonld.wpd FOUR SEASONS HEATING & AIR CONDITIONING, INC. v. BEERS SKANSKA, INC. Court:TCA Attorneys: David K. Taylor and Jennifer L. Ditty, Nashville, Tennessee, for the appellant, Four Seasons Heating and Air Conditioning, Inc. Richard M. Smith and H. Brent Patrick, Nashville, Tennessee, for the appellee, Beers Skanska, Inc. Judge: KIRBY First Paragraph: This is a breach of contract case. The defendant general contractor was hired to construct a building on a state college campus. The contractor hired the plaintiff subcontractor to perform substantial work on the job. During the course of the project, the subcontractor sought additional labor costs incurred in the project. This issue was not resolved. Later, the subcontractor sought from the contractor the retainage kept by the contractor. When the check was ready, the subcontractor sent its project manager to retrieve it. In order to get the check, the project manager was required by the contractor to sign a document releasing all claims between the contractor and the subcontractor. Later, the subcontractor filed this lawsuit, seeking the additional labor costs. The contractor filed a motion to dismiss, arguing that, by the project manager's signature on the release, the subcontractor waived its claim to the additional labor costs. The subcontractor argued that its project manager did not have the authority to bind the company to the release. After a hearing, the trial court dismissed the subcontractor's complaint. The subcontractor now appeals. We reverse, finding that the evidence was insufficient to establish as a matter of law that the project manager had actual or apparent authority to bind the subcontractor or to establish as a matter of law that the subcontractor ratified the release signed by the project manager. http://www.tba.org/tba_files/TCA/fourseasons.wpd IN RE K.N.R., ET AL WITH CONCURRING OPINION Court:TCA Attorneys: Linda S. Fizer, Springfield, Tennessee, for the appellant, David Justin Rice and Rebekah Diane Pitt Rice. Paul G. Summers, Attorney General and Reporter; and Juan G. Villasenor, Assistant Attorney General for the appellee, State of Tennessee, Department of Children's Services. Judge: CLEMENT First Paragraph: Father of two minor children appeals the termination of his parental rights by the Robertson County Juvenile Court. Father generally alleges that there was insufficient evidence to terminate his parental rights. In the Final Decree of Guardianship the trial court set forth the following conclusions of law, holding (1) that the father abandoned his children; (2) that he was substantially noncompliant with the permanency plan; and (3) that the conditions which led to the child's removal still persist, there is little likelihood that these conditions will be remedied, and the continuation of the parent and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home. The final order failed to set forth findings of fact as required by Tenn. Code Ann. S 36-1-113(k). As a result, we are unable to review the case. Therefore, we vacate the final order and remand the matter to the trial court for entry of an order that sets forth findings of fact and conclusions of law. http://www.tba.org/tba_files/TCA/knr_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/knr_con.wpd MICHAEL C. ADAMS v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael J. LaGuardia, Kingsport, Tennessee, for the appellant, Michael C. Adams. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and H. Greeley Wells, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Michael C. Adams, appeals the denial of his petition for post-conviction relief from his conviction for second degree murder and four counts of aggravated assault. He argues that he was denied effective assistance of counsel because his trial counsel failed to properly advise him of his right to testify and failed to properly communicate a plea offer and recommended that he proceed to trial. Following our review, we affirm the post-conviction court's denial of the petition. http://www.tba.org/tba_files/TCCA/adamsmichaelc.wpd STATE OF TENNESSEE v. SHARON J. BREEDEN Court:TCCA Attorneys: Raymond Mack Garner, District Public Defender; Stacey D. Nordquist, Assistant District Public Defender (at hearing and on appeal); and Steve McEwen, Mountain City, Tennessee (on appeal), for the appellant, Sharon J. Breeden. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Rocky Young, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Sharon J. Breeden, appeals the revocation of her probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/breedensharon.wpd STATE OF TENNESSEE v. STANLEY E. CHATMAN Court:TCCA Attorneys: James Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Stanley E. Chatman. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; and James Sledge and Jennifer Tackett, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Stanley E. Chatman, was convicted in a bench trial of driving under the influence, second offense, and sentenced to eleven months, twenty-nine days, with all but fifty days suspended. See Tenn. Code Ann. S 55-10-401(a). In this appeal as of right, the defendant contends that the trial court erred by failing to suppress the results of his breath alcohol analysis. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/chatmanstanleyeugene.wpd STATE OF TENNESSEE v. WILLIAM EDWARD CRICK Court:TCCA Attorneys: Jim L. Fields, Paris, Tennessee, for the appellant, William Edward Crick. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals from the trial court's denial of an alternative sentence. The defendant pled guilty to a Class E felony, possession of a Schedule VI controlled substance with intent to manufacture, deliver, or sell. The trial court denied the defendant's request for an alternative sentence and imposed a two-year sentence in the special needs facility of the Tennessee Department of Correction. We affirm the sentence imposed by the trial court, but remand for correction of the judgment to reflect a guilty plea rather than a jury verdict. http://www.tba.org/tba_files/TCCA/crickwe.wpd STATE OF TENNESSEE v. MINDY S. DODD Court:TCCA Attorneys: Gerald L. Melton, District Public Defender, for the appellant, Mindy S. Dodd. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; Thomas F. Jackson, Jr., and John W. Price, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Mindy S. Dodd, appeals from her convictions by a jury in the Rutherford County Circuit Court of first degree murder and conspiracy to commit first degree murder. She received sentences of life and twenty years, respectively, to be served concurrently in the Department of Correction. The defendant contends that the evidence is insufficient to support either conviction. We affirm the judgments of conviction. http://www.tba.org/tba_files/TCCA/doddmindys.wpd STATE OF TENNESSEE v. HOWARD DUTY, JR. Court:TCCA Attorneys: Terry L. Jordan, Blountville, Tennessee, for the Appellant, Howard Duty, Jr. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Todd Martin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Convicted by a jury of assault and aggravated stalking, the defendant, Howard Duty, Jr., appeals. In addition to claiming that his convictions are not supported by sufficient evidence, he claims it was error for the trial court to enhance a charge of misdemeanor stalking to the felony of felony stalking. The lower court imposed the felony stalking conviction based upon a previous conviction of stalking that was adjudicated after the commission of the offense in the present case. Based upon our review, we conclude that sufficient evidence supports the stalking conviction; however, the aggravation of the stalking offense to a felony was improper. Thus, the lower court's actions are reversed in part and affirmed in part. http://www.tba.org/tba_files/TCCA/dutyhowardjr.wpd STATE OF TENNESSEE v. JAMES D. DYE Court:TCCA Attorneys: Jeffrey S. Burton, Assistant Public Defender, for the appellant, James Dye. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Bill Whitesell, District Attorney General; and John E. Price, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, James Dye, was convicted in a bench trial of two counts of aggravated assault through use or display of a firearm, and one court of possession of a firearm for the purpose of using it in the commission of an offense to wit: aggravated assault. See Tenn. Code Ann. SS 39-13-102; 39-17-1307. He received a three-year sentence for each aggravated assault conviction and a one- year sentence for the possession of a firearm offense, all to be served concurrently for an effective sentence of three years as a standard Range I offender. In this appeal, the defendant presents two issues: (1) whether the evidence is sufficient to support his convictions; and (2) whether convictions for aggravated assault and possession of a firearm for use in an aggravated assault, under the circumstances presented in this case, violated the defendant's rights under the double jeopardy provisions of the federal and state constitutions. After a thorough review of the record in this case and the applicable authorities we find no reversible error and therefore AFFIRM the judgments of the trial court. http://www.tba.org/tba_files/TCCA/dyejames.wpd RICKY LYNN FRAZIER v. STATE OF TENNESSEE Court:TCCA Attorneys: Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Ricky Lynn Frazier. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Ricky Lynn Frazier, appeals the trial court's dismissal of his post-conviction petition. In this appeal, he argues that the Department of Correction has failed to properly apply the jail credits he earned prior to the entry of his guilty plea. Because the proper avenue for review of the application of sentence reduction credits is the Administrative Procedures Act, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/frazierrickyl.wpd MICHAEL J. GRANT v. STATE OF TENNESSEE WITH DISSENTING OPINION Court:TCCA Attorneys: Michael Joseph Grant, Wartburg, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; Jerry N. Estes, District Attorney General, and Stephen D. Crump, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the summary dismissal of his post-conviction petition. The petitioner alleges his untimely petition should be tolled on due process grounds because of reliance on counsel's "guarantee" of release from incarceration after serving 30% of his sentence. We affirm the summary dismissal for failure to file for post-conviction relief within the one-year statute of limitations provided in Tennessee Code Annotated section 40-30-202(a) and affirm. http://www.tba.org/tba_files/TCCA/grantmj_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/grantmj_dis.wpd STATE OF TENNESSEE v. DAVID JENNINGS Court:TCCA Attorneys: Julie A. Rice, Contract Appellate Defender (on appeal); Stephen M. Wallace, District Public Defender; and Terry Jordan, Assistant District Public Defender (at trial), for the appellant, David Jennings. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, David Jennings, pled guilty to burglary, a Class D felony; theft over $1,000, a Class D felony; vandalism, a Class D felony; simple possession of marijuana, a Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced as a Range I, standard offender to an effective sentence of three years, fined a total of $400, and ordered to pay restitution. On appeal, he argues that the trial court erred in denying alternative sentencing. Following our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/jenningsdavid.wpd STATE OF TENNESSEE v. DANNY JOHNSON Court:TCCA Attorneys: M. Keith Davis (at trial and on appeal), L. Thomas Austin and Jennifer A. Mitchell (at trial), Dunlap, Tennessee, for the appellant, Danny Johnson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven H. Strain and Sherry Durham Gouger, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Danny Johnson, was convicted by a Sequatchie County jury of two counts of rape of a child, Class A felonies, and one count of aggravated sexual battery, a Class B felony. Following a sentencing hearing, the trial court sentenced the appellant to an effective sentence of twenty-one years in the Tennessee Department of Correction. On appeal, the appellant challenges (1) the selection process of the venire from which grand and petit jurors were selected; (2) the trial court's failure to allow into evidence as an excited utterance the statement of Thomas Zervos regarding prior abuse of the victim; and (3) the sufficiency of the evidence. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/johnsondanny.wpd STATE OF TENNESSEE v. DONALD P. MCGUIRE Court:TCCA Attorneys: Joseph F. Harrison, Blountville, Tennessee (at trial); and Steve McEwen, Mountain City, Tennessee (on appeal), for the Appellant, Donald P. McGuire. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Steven R. Finney, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals the trial court's revocation of his community corrections placement. Because the record supports the trial court's ordering the defendant to serve the balance of his original sentences, we affirm. http://www.tba.org/tba_files/TCCA/mcguiredonaldp.wpd JESSE CLEO MINOR b/n/f LEANN MORRISON v. STATE OF TENNESSEE Court:TCCA Attorneys: Hal D. Hardin, Nashville, Tennessee; J. G. Mitchell, III, Murfreesboro, Tennessee; and Hugh C. Howser, Jr., Nashville, Tennessee, for the appellant, Jesse Cleo Minor. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Jesse Cleo Minor, entered a best-interest plea to one count of attempted rape of a child. He is currently serving an eight-year sentence. See State v. Jesse Cleo Minor, No. M1998- 00424-CCA-R3-CD, 1999 WL 1179143 (Tenn. Crim. App. at Nashville, Dec. 15, 1999). The post- conviction petition at issue herein was filed by the petitioner's daughter Leann Morrison as next friend. The petition alleges that the petitioner is in poor health and suffers from irreversible dementia that seriously affects his cognitive abilities. The petitioner attacks his conviction based upon the following four allegations: (1) he was incompetent and unable to understand the prior proceedings and therefore incapable of entering a voluntary guilty plea; (2) the State failed to disclose material exculpatory evidence; (3) false and/or materially misleading statements were offered to the trial court; and (4) trial counsel was ineffective. We affirm the trial court's dismissal of the post-conviction petition. http://www.tba.org/tba_files/TCCA/minorcleo.wpd STATE OF TENNESSEE v. JOY NELSON Court:TCCA Attorneys: Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Joy Nelson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and Garry Brown, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Joy Nelson, appeals from the trial court's denial of her motion to correct an illegal sentence. The Defendant pled guilty to second degree murder, a Class A felony. She was classified as a Range I offender. She agreed to a sentence of forty years, which is outside the range of a Range I offender, Class A felony. We find that the sentence is proper because the Defendant knowingly and voluntarily agreed to it. http://www.tba.org/tba_files/TCCA/nelsonj.wpd STATE OF TENNESSEE v. DOYLE GILBERT NEWSOM Court:TCCA Attorneys: Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Doyle Gilbert Newsom. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Mike McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Doyle Gilbert Newsom, was convicted by a Bedford County jury of fifth offense driving under the influence of an intoxicant, driving on a revoked driver's license, and violation of the implied consent law. He received sentences of six years at 60% incarceration as a career D.U.I. offender, and 11 months, 29 days for driving on a revoked license. In this appeal the defendant claims that: (1) the evidence is insufficient to support the D.U.I. conviction because the testimony of an accomplice was not sufficiently corroborated; (2) he was improperly sentenced to 11 months, 29 days for driving on a revoked license; and (3) the prior judgments of conviction are invalid. We find no merit to any of these contentions. Therefore, the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/newsomdoyle.wpd STATE OF TENNESSEE v. CALVIN OWENS Court:TCCA Attorneys: Harry Sayle, Memphis, Tennessee, for the appellant, Calvin Owens. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Calvin Owens, was convicted of two counts of aggravated robbery, one count of attempt to commit especially aggravated robbery, and one count of attempted second degree murder, all Class B felonies. After a sentencing hearing, the trial court sentenced him as a Range I offender to eleven years for each of his four convictions. The trial court ordered three of the sentences to be served consecutively, with the sentence for the remaining conviction to be served concurrently, resulting in an effective sentence of thirty-three years. In this direct appeal, the Defendant argues that the evidence is insufficient to support his convictions and that the trial court erred in sentencing him to thirty-three years. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/owensc.wpd STATE OF TENNESSEE v. BENTON WILLIAM PAMPLIN Court:TCCA Attorneys: Matt Q. Bastian, Columbia, Tennessee, on appeal, for the Appellant, Benton William Pamplin. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Benton William Pamplin, was convicted by a Bedford County jury of simple assault and resisting arrest. On appeal, Pamplin presents two issues for our review: (1) whether the trial court committed reversible error by refusing to strike, for cause, a prospective juror who was a uniformed deputy sheriff and whose office presented testimony at the trial, and (2) whether the evidence was sufficient to sustain the verdicts. After review, we conclude that the trial court's refusal to strike the prospective juror constituted reversible error in that it denied Pamplin his right to a fair and impartial jury. Accordingly, the judgments of conviction are reversed and the case is remanded for a new trial. http://www.tba.org/tba_files/TCCA/pamplinbentonwilliam.wpd DEDRICK PATTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Dedrick Patton, Henning, Tennessee, pro se. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; William C. Whitesell, District Attorney General; and John W. Price, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Dedrick Patton, appeals from the denial of his petition for post-conviction relief. The issues presented for review are as follows: (1) whether he was denied the effective assistance of counsel; (2) whether he knowingly and voluntarily entered his plea of guilt; (3) whether a sufficient factual basis was entered to support the plea; (4) whether there was a violation of the right to due process; and (5) whether there was a racially biased grand jury. The judgment is reversed, the conviction set aside, and the cause remanded for trial. http://www.tba.org/tba_files/TCCA/pattondedrick.wpd MICHAEL PITTMAN v. STATE OF TENNESSEE Court:TCCA Attorneys: Joshua B. Spickler, Memphis, Tennessee, for the appellant, Michael Pittman. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner, Michael Pittman, appeals the denial of his post-conviction relief petition after his conviction for aggravated robbery. On appeal, the petitioner contends he received ineffective assistance of counsel at trial. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/pittmanmichael.wpd STATE OF TENNESSEE v. JAMES THOMAS PRATT Court:TCCA Attorneys: Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, James Thomas Pratt. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Steve L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, James Thomas Pratt, entered pleas of guilt to manufacturing a controlled substance and vandalism between $1,000 and $10,000. See Tenn. Code Ann. SS 39-17-417(a)(1)(G)(1), 39-14- 408(a). The trial court imposed Range I sentences of one and two years respectively and granted probation after a term of 90 days in jail. In this appeal of right, the defendant contends that he should be granted immediate probation because the trial court failed to articulate its reasons for the 90-day period of incarceration. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/prattjt.wpd STATE OF TENNESSEE v. GENE SHELTON RUCKER, JR. Court:TCCA Attorneys: Melanie R. Snipes, Chattanooga, Tennessee, for the Appellant, Gene Shelton Rucker, Jr. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, 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: WITT First Paragraph: A Hamilton County Grand Jury indicted the defendant, Gene Shelton Rucker, Jr., for felony murder and aggravated arson in connection with a fire that took the life of an individual who resided in the apartment structure that was burned. Following a jury trial, the defendant was convicted of the lesser-included offense of criminally negligent homicide and aggravated arson, as charged. The defendant now appeals his convictions and sentence. Specifically, the defendant argues (1) that the trial court erred by instructing the jury on criminal responsibility for the conduct of another; (2) that setting fire to personal property is a lesser-included offense of aggravated arson and should have been included in the charge to the jury; (3) that the instruction on the knowing mens rea element of aggravated arson was incorrect; (4) that the state violated the defendant's due process rights by advancing impermissibly inconsistent positions relative to the defendant and an indicted co- defendant; (5) that the evidence was insufficient to support his convictions; and (6) that his sentence should not have been enhanced on the basis of prior convictions that were not proven by certified copies of the underlying judgments. After a thorough review of the record, we affirm the defendant's convictions and sentence. http://www.tba.org/tba_files/TCCA/ruckergenesheltonjr.wpd STATE OF TENNESSEE v. DELSIE LUCILLE SARTAIN Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender; Curtis H. Gann, Assistant Public Defender, Shelbyville, Tennessee, for the Appellant, Delsie Lucille Sartain. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Christine M. Lapps, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Delsie Lucille Sartain, was convicted by a jury for the reckless aggravated assault of a five-month-old baby, which resulted in permanent injuries. Following a sentencing hearing, the trial court imposed a sentence of three years and two months incarceration as a range I standard offender. Sartain appeals the sentencing decision, arguing that the trial court erred by ordering a sentence of total confinement rather than the less restrictive alternative of probation. After review, we find no error and affirm the judgment of the Bedford County Circuit Court. http://www.tba.org/tba_files/TCCA/sartaindelsiel.wpd STATE OF TENNESSEE v. JAMES HEWLETT SMITH Court:TCCA Attorneys: Terry Abernathy, Selmer, Tennessee, for the appellant, James Hewlett Smith. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, James Hewlett Smith, was convicted at a bench trial of DUI. In this direct appeal, the Defendant challenges the legality of his arrest and the sufficiency of the evidence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/smithjh.wpd WILLIAM TERRY v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender; Karen Massey, Assistant Public Defender; and W. Mark Ward, Assistant Public Defender for the appellant, William Terry. Paul G. Summers, Attorney General and Reporter, Helena Walton Yarbrough, Assistant Attorney General, William L. Gibbons, District Attorney General, and Emily Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, William Terry, appeals the post-conviction court's denial of his petition for post- conviction relief. Petitioner argues that the post-conviction court erred in finding that Petitioner's plea of guilty was voluntary and knowing and in finding that Petitioner's trial counsel rendered effective assistance of counsel prior to and during plea negotiations. For the reasons discussed herein, we affirm the post-conviction court's dismissal of the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/terrywilliam.wpd STATE OF TENNESSEE v. STEVEN RAY THACKER Court:TCCA Attorneys: Charles S. Kelly, Sr., and Wayne Emmons, Dyersburg, Tennessee, for the appellant, Steven Ray Thacker. Paul G. Summers, Attorney General and Reporter; Gill R. Geldreich, Assistant Attorney General; C. Phillip Bivens, District Attorney General, and Karen Burns, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Capital defendant, Steven Ray Thacker, appeals his conviction and sentence of death resulting from the January 2, 2000, murder of Ray Patterson. A Dyer County jury convicted Thacker of first degree murder. Following a separate sentencing hearing, the jury found that the proof supported two aggravating circumstances beyond a reasonable doubt: (1) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant, Tenn. Code Ann. S 39-13-204(I)(6), and (2) the murder was knowingly committed by the defendant while the defendant had a substantial role in committing or was fleeing after having a substantial role in committing a first degree murder, rape, robbery, burglary, theft or kidnapping, Tenn. Code Ann. S 39-13-204(I)(7). The jury further determined that the mitigating circumstances did not outweigh the aggravating circumstances and imposed a sentence of death. The trial court approved the death verdict. The defendant appeals, presenting for our review the following claims: (1) the trial court erred in denying the defendant's motion for a change of venue to a county outside the judicial district; (2) the trial court erred in admitting a redacted statement made by the defendant; (3) the trial court erred in admitting evidence of other crimes; (4) the trial court erred in permitting the cause of death to be proven by lay testimony; (5) the trial court erred by failing to grant a mistrial based upon the State's comments during closing argument; (6) the trial court erred by not permitting the defendant to argue self-defense; (7) the evidence is insufficient to support a conviction; (8) the trial court erred in denying the motion to suppress the defendant's confession; (9) the trial court erred by prohibiting the introduction of mitigation evidence; (10) the State committed prosecutorial misconduct in eliciting testimony about the defendant's prior bad acts; (11) the trial court erred in refusing to permit an expert witness to explain details of the defendant's mental condition; (12) the trial court erred in permitting the prosecutor to argue that mitigators must outweigh aggravators beyond a reasonable doubt to impose a sentence of life without parole; (13) the trial court erred by limiting the defense to statutory mitigators; (14) the trial court erred in permitting the introduction of certain victim impact evidence; (15) the trial court erred by permitting the State to present evidence that the defendant was fleeing from present charges; (16) the death penalty is unconstitutional; and (17) the sentence of death is not proportionate. After review, we find no error of law requiring reversal. Accordingly, we affirm the jury's verdict of guilt as to the offense of first degree murder and the jury's imposition of the sentence of death in this case. http://www.tba.org/tba_files/TCCA/thackersr.wpd TAURYS K. WALLS v. STATE OF TENNESSEE Court:TCCA Attorneys: Marty B. McAfee, Memphis, Tennessee, for the appellant, Taurys K. Walls. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Julie Mosley; Assistant District Attorney General. Judge: WOODALL First Paragraph: Petitioner, Taurys K. Walls, appeals from the trial court's dismissal of his petition for post- conviction relief. Petitioner argues that his confession was coerced in violation of the United States and Tennessee constitutions. Additionally, Petitioner argues that he received ineffective assistance of counsel at trial and on direct appeal. After a careful review of the record, we affirm the judgment of the post-conviction court http://www.tba.org/tba_files/TCCA/wallstaurys.wpd JASON M. WEISKOPF v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert C. Brooks, Memphis, Tennessee, for the appellant, Jason M. Weiskopf. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; John Campbell, Assistant District Attorney General; and Raymond Lepone, Assistant District Attorney General, for the appellant, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Jason M. Weiskopf, was convicted of first degree premeditated murder and was sentenced to life imprisonment. This Court affirmed Petitioner's conviction. State v. Jason M. Weiskopf, No. W2000-02308-CCA-RM-CD, 2000 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. at Jackson, October 11, 2000). Petitioner timely filed a petition for post-conviction relief. Following an evidentiary hearing, the trial court denied post-conviction relief. In this appeal, Petitioner raises one issue for our review: whether trial counsel was ineffective for failing to present evidence of Petitioner's diminished capacity. After a careful review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/weiskopfjasonm.wpd STATE OF TENNESSEE v. JAMES CURTIS WESTBROOK Court:TCCA Attorneys: Richard W. Vaughn, Jr., Milan, Tennessee, for the appellant, James Curtis Westbrook. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister and Elaine Gwinn, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Gibson County jury convicted the defendant, James Curtis Westbrook, of possession of .5 grams or more of cocaine with intent to sell or deliver. The trial court sentenced him to twelve years as a Range II multiple offender to be served consecutively to a prior sentence. On appeal, the defendant contends: (1) the trial court erred in denying his motion to require the state to reveal the identity of its confidential informant; (2) the evidence was insufficient to support his conviction; (3) the trial court erred in permitting law enforcement officers to testify regarding footprint comparisons; (4) the trial court erred in permitting the state to treat a witness as a hostile witness; and (5) his sentence is improper. We remand for the empaneling of a jury to fix the fine. We otherwise affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/westbrookjames.wpd STATE OF TENNESSEE v. CHRISTOPHER TODD WHITAKER Court:TCCA Attorneys: Deborah Black Huskins, Johnson City, Tennessee, for the appellant, Christopher Whitaker. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Joe Crumley, District Attorney General; Steve Finney, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Washington County Grand Jury indicted the Defendant, Christopher Whitaker, for three counts of robbery, and one count of theft valued over $500. The Defendant pled guilty to all four counts. Following a sentencing hearing, the trial court denied the Defendant's request for alternative sentencing and sentenced the Defendant to serve six years in prison. The Defendant appeals, contending that the trial court erred when it denied his request for alternative sentencing. Finding no reversible error, we affirm the trial court's judgments. http://www.tba.org/tba_files/TCCA/whitakerc.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! 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