Opinion Flash

December 30, 2003
Volume 9 — Number 236

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
17 New Opinion(s) from the Tennessee Court of Appeals
09 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


LYNN ASTON BLEVINS v. LESTER STEVE BLEVINS

Court:TCA

Attorneys:                          

Charles Hill Beaty, Gallatin, Tennessee, for the appellant, Lester
Steve Blevins.

Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the
appellee, Lynn Aston Blevins.

Judge: CLEMENT

First Paragraph:

This appeal arises from Wife's complaint for divorce.  Based on
Husband's failure to file an answer, Wife filed a motion for default
and notice of hearing.  Husband attended the hearing pro se and was
afforded the opportunity to continue the hearing to retain legal
counsel but declined to do so.  After receiving testimony, the trial
court awarded Wife a divorce, divided marital property and awarded
Wife rehabilitative alimony for 60 months.  Husband appeals, asserting
that the trial court's division of marital property was not fair and
equitable and that Wife did not provide proof sufficient to establish
a proper basis for an award of rehabilitative alimony.  We reverse and
modify in part the division of marital property and indebtedness and
reclassify the alimony from rehabilitative to in solido.  In all other
respects, we affirm the trial court.

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

DONALD R. BRITT, ET AL. v. ROXANNE HOWELL

Court:TCA

Attorneys:                          

Gary M. Howell, Columbia, Tennessee, for the appellant, Roxanne S.
Howell.

Thomas W. Hardin, Columbia, Tennessee, for the appellees, Donald G.
Britt and Jane G. Britt.

Judge: CAIN

First Paragraph:

The parties are adjacent commercial landowners of two story buildings
with the second floors of their buildings being serviced by a common
stairway between the two properties.  The dispute involves use of the
stairway and storage closets under and over the stairwell.  The trial
court held that the stairway was a common stairway, owned in equal
undivided interests by the parties as was the upper floor storage
area.  The trial court further held that the lower floor storage area
belonged exclusively to Appellees.  We affirm the judgment of the
trial court.

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

CONAN DOYLE CLARK, JR. v. CAROL MICHELLE CLARK

Court:TCA

Attorneys:                          

Jim Wiseman, Murfreesboro, Tennessee, for the appellant, Conan Doyle
Clark.

David W. Kious, Janet D. Powell, Murfreesboro, Tennessee, for the
appellee, Carol Michelle Clark.

Judge: COTTRELL

First Paragraph:

A divorced mother of two girls sent a letter to her former husband,
declaring her intention to move with the children to Virginia in order
to marry her new fiance.  The father filed a petition objecting to the
relocation and asking for a change of custody.  The trial court held
that under the provisions of Tenn. Code Ann. S 36-6-108, the mother
was entitled to relocate once she remarried.  We affirm.

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

IN RE: D. D. K., D. M. M., and T. J. M., JR.

Court:TCA

Attorneys:                          

Adrian R. Bohnenberger, Clarksville, Tennessee, for the appellant, T.
J. M., Sr.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services.

Judge: COTTRELL

First Paragraph:

This appeal involves a petition filed by the Department of Children's
Services to terminate the parental rights of Father to his two minor
children.  The trial court granted the petition and Father appeals the
decision.  Because we find the petition was improperly granted, we
vacate and remand.

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

ELEONORA KOGAN, D.D.S. v. TENNESSEE BOARD OF DENTISTRY

Court:TCA

Attorneys:                          

Frank J. Scanlon, Nashville, Tennessee, for the appellant, Eleonora
Kogan.

Paul G. Summers, Attorney General and Reporter; Sue A. Sheldon, Senior
Counsel, for the appellee, Tennessee Board of Dentistry.

Judge: CAIN

First Paragraph:

In this case we are asked to determine the type of notice required to
be given a defendant in a contested case hearing before a state
administrative agency.  We determine that Tennessee Compilation of
Administrative Rules and Regulations 13604-1-.06 applies and requires
personal service, return receipt mail, or, in the event of evading
service, personal service with a person at the parties' dwelling
place.  In the case at bar, service of notice of the new trial date
was made through regular mail only.  This method of service is
insufficient.  The decision of the Board of Dentistry is vacated, and
the case is remanded.

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

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. L.L.T. , ET
AL.

Court:TCA

Attorneys:                          

Cara C. Welsh, Chattanooga, Tennessee, for the appellant, L.L.T.

Paul G. Summers, Attorney General and Reporter, and Juan G.
Villase_or, Assistant Attorney General, for the appellee, State of
Tennessee Department of Children's Services.

Judge: SUSANO

First Paragraph:

The trial court terminated the parental rights of L.L.T. ("Mother")
with respect to her minor child, J.C.T. (DOB: January 31, 2002), a
male.  Mother appeals, arguing that the evidence preponderates against
the trial court's findings, by clear and convincing evidence, (1) that
statutory grounds for termination exist and (2) that termination is in
the best interest of the child.  We affirm.

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

MEAJI  LYNN NISLEY LOCKMILLER v. MARK DOUGLAS LOCKMILLER

Court:TCA

Attorneys:                          

Wanda G. Sobieski, Diane M. Messer, and Donna C. Looper, Knoxville,
Tennessee, for the appellant, Meaji Lynn Nisley Lockmiller.

Randy G. Rogers, Athens, Tennessee, for the appellee, Mark Douglas
Lockmiller.

Judge: SUSANO

First Paragraph:

In this divorce case, the parties contested, among other things, the
issues of divorce and the custody of their minor children, Victoria
Grace Lockmiller (DOB: August 27, 1994) and James Roman Lockmiller
(DOB: November 24, 1998).  Expressing its belief that Mark Douglas
Lockmiller ("Father") would not tell "a knowing untruth," the trial
court granted him a divorce from Meaji Lynn Nisley Lockmiller
("Mother") on the ground of inappropriate marital conduct and
designated him as the primary residential parent of the parties'
children.  Wife appeals, contending  that the evidence preponderates
against the trial court's award of primary custody to Father.  We
affirm.

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

PATRICIA A. LYMAN v. LAWRENCE A. JAMES

Court:TCA

Attorneys:                          

Phillip C. Lawrence, Chattanooga, Tennessee, for the Appellant
Patricia A. Lyman.

Richard A. Schulman and R. Jonathan Guthrie, Chattanooga, Tennessee,
for the Appellee Lawrence A. James.

Judge: SWINEY

First Paragraph:

After over thirty years of marriage, Patricia A. Lyman ("Wife") left
Lawrence A. James ("Husband") and moved to the state of Washington and
began living with her new boyfriend.  After Husband learned of Wife's
affair, the parties agreed to a divorce based on irreconcilable
differences and entered into a marital dissolution agreement ("MDA"). 
Both parties signed the MDA before a Notary Public, but neither party
was administered an oath prior to his or her signing.  The MDA
provided that Husband would receive the entire amount of his pension. 
Over six months after the parties were granted a divorce, Wife filed a
new lawsuit claiming she gave up any claim to Husband's pension
because of Husband's fraud and/or misrepresentations.  Wife also
claimed the court which granted the divorce lacked personal
jurisdiction to enter the final divorce decree because neither Husband
nor Wife were administered oaths prior to signing the MDA, which Wife
claimed resulted in the MDA not being properly notarized.  The Trial
Court concluded the failure of the Notary Publics to administer oaths
did not render the MDA invalid.  The Trial Court also concluded Wife
failed to meet her burden of proving fraud and/or misrepresentations
on the part of Husband.  Wife appeals, and we affirm.

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

R. SCOTT MARTIN v. JOHN CURTIS KING

Court:TCA

Attorneys:                          

Philip R. Crye, Jr., Clinton, Tennessee, for the appellant, R. Scott
Martin.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellee, John
Curtis King.

Judge: SUSANO

First Paragraph:

This is a breach of contract case.  R. Scott Martin ("Plaintiff") sued
John Curtis King ("Defendant"), alleging that Defendant had breached
his agreement to give Plaintiff a 3% interest in Defendant's landfill
venture.  The trial court found that the parties' agreement did not
pertain to or cover the particular landfill business out of which
Plaintiff sought a 3% interest.  The trial court did conclude that
Plaintiff was entitled to a judgment against Defendant for $4,500 for
monetary contributions made by Plaintiff in connection with the
parties' agreement.  Plaintiff appeals, contending that the trial
court erred in finding that a novation had occurred, in admitting
parol evidence, and in calculating damages.  We affirm.

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

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. MARGARET
HUDSON

Court:TCA

Attorneys:                          

Joseph H. Johnston and Marbut Glenn Gaston, Jr., Nashville, Tennessee,
for the Appellant, Margaret Hudson.

Lora A. Barkenbus, Metropolitan Attorney, Nashville, Tennessee, for
the Appellee, Metropolitan Government of Nashville and Davidson
County.

Judge: FARMER

First Paragraph:

This case involves an appeal from the trial court's grant of
Appellee's motion for summary judgment.  Appellee filed suit seeking
to enjoin Appellant to remove vinyl siding that she had installed on
her house in violation of a historic zoning ordinance.  Appellant
counter-complained alleging that the ordinance was void and
unenforceable on grounds that the ordinance was unconstitutional and
never properly adopted.  Appellee subsequently moved for summary
judgment which the trial court granted.  We affirm.

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

GOVINDASWAMY NAGARAJAN v. MICHAEL E. TERRY

Court:TCA

Attorneys:                          

Richard J. Braun and Patricia E. Crotwell, Nashville, Tennessee, for
the appellant, Govindaswamy Nagarajan.

Stephanie H. Gore, Nashville, Tennessee, for the appellee, Michael E.
Terry.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a lawyer and his former client
regarding unpaid fees.  After the client sued the lawyer for
malpractice in the Circuit Court for Davidson County, the lawyer
counterclaimed for unpaid fees.  The trial court granted the lawyer's
summary judgment motion and dismissed the malpractice claims. 
Thereafter, the trial court conducted a bench trial on the lawyer's
counterclaim and awarded the lawyer a $53,884.86 judgment.  The former
client asserts on this appeal that the trial court erred by denying
his request for a continuance, granting a judgment by default on the
question of liability, denying his request for a jury trial, and
considering expert evidence regarding the reasonableness of the
lawyer's fee without affording him the opportunity for
cross-examination.  We affirm the judgment.

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

LYNN RAITERI EX REL. MARY HELEN COX v. NHC HEALTHCARE/KNOXVILLE, INC.,
ET AL.

Court:TCA

Attorneys:                          

Richard C. May and Loring E. Justice, Knoxville, Tennessee, for the
appellant, Lynn Raiteri.

Dan D. Rhea and F. Michael Fitzpatrick, Knoxville, Tennessee, for the
appellees, NHC Healthcare/Knoxville, Inc. and NHC
Healthcare/Knoxville, LLC.

Judge: SUSANO

First Paragraph:

Lynn Raiteri, as the daughter and next friend of the late Mary Helen
Cox ("Mrs. Cox"), sued NHC Healthcare/Knoxville, Inc. ("the
defendant"), as well as others,  for the wrongful death of Mrs. Cox,
whose death allegedly resulted from improper care at the defendant's
nursing home.  We granted the plaintiff's Tenn. R. App. P. 9
application for an interlocutory appeal in order to review the trial
court's order granting the defendant's motion to compel mediation and
arbitration pursuant to the dispute resolution procedures contained in
the defendant's nursing home admission agreement.  We reverse.

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

INEZ JEAN SEALS and TERRY HURD v. LIFE INVESTORS INSURANCE COMPANY OF
AMERICA, ET AL.

Court:TCA

Attorneys:                          

Charles J. Gearhiser, Sam D. Elliott, Chattanooga, TN, for Appellant

Howard L. Upchurch, Pikeville, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This is a case involving the reformation of a settlement agreement
terminating claims on two policies between plaintiffs and the
defendant insurance company.  The trial court refused to reform the
settlement agreement and denied defendants their attorney's fees.  For
the following reasons, we affirm in part, reverse in part, and remand
this case for further proceedings.

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

EARL M. SHAHAN v. FRANKLIN COUNTY, ET AL.

Court:TCA

Attorneys:                          

Clifton N. Miller and Felicia B. Walkup, Tullahoma, Tennessee, for the
appellant, Earl M. Shahan.

John B. Curtis and Steve E. Smith, Chattanooga, Tennessee, for the
appellees, Franklin County, Tennessee, Montgomery Adams, and John W.
Woodall.

J. Stanley Rogers, Christina Henley Duncan, and Laura D. Riddle,
Manchester, Tennessee, for the appellees, Ron Cunningham, Linda
Hudson, George Peckinpaugh, Dorothy Peckinpaugh, Jackson Graham, and
Joyce Graham.

Judge: KOCH

First Paragraph:

This case involves a dispute between Franklin County and the developer
and residents of a subdivision over the maintenance of roads in the
subdivision.  After the county declined the developer's public
dedication of the roads and denied applications for building permits
in the subdivision because of inadequate roads, the developer and
several property owners filed separate suits against the county in the
Chancery Court for Franklin County to determine the responsibility for
maintaining the roads.  The property owners also sought specific
performance and damages from the developer.  The trial court
consolidated the cases and, following a bench trial, held that the
county was not responsible for maintaining the roads.  The trial court
also directed the developer to bring the roads up to 1990 subdivision
standards.  The developer asserts on this appeal that there had been
an implied public dedication of the roads and, therefore, that the
county was responsible for maintaining them.  For their part, two
property owners assert that they are entitled to damages in addition
to specific performance.  We have determined that the trial court
correctly determined that the roads were not public roads and that the
property owners were not entitled to damages as well as specific
performance.  However, we have also determined that the trial court
should have ordered the developer to bring the roads up to the
county's current road standards.

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

IRBY C. SIMPKINS, JR. v. PEACHES G. BLANK, formerly Simpkins

Court:TCA

Attorneys:                          

Rose Palermo, Denty Cheatham, Nashville, TN, for Appellant

Robert J. Walker, Clisby Hall Barrow, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves an appeal from a grant of summary judgment
equitably dividing a tax refund of the parties and refusing to reopen
the parties' marital dissolution agreement.  In addition, appellant
contends the trial court erred by awarding attorney's fees to appellee
for issues relating to child support litigated below.  For the
following reasons, this Court affirms the decision of the trial court.

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

SUSAN TAYLOR v. SQUARE D COMPANY

Court:TCA

Attorneys:                          

Robert L. Huskey, Manchester, Tennessee, for the appellant, Susan
Taylor.

James H. London, Libba Bond, Lori M. Ritter, Knoxville, Tennessee;
Jeffrey L. Reed, Murfreesboro, Tennessee, for the appellee, Square D
Company.

Judge: COTTRELL

First Paragraph:

Disobeying the direct orders of his supervisor, an electrician began
work on a substation without following the proper safety procedures. 
He was electrocuted and perished almost instantly.  The widow of the
electrician brought suit against the manufacturer of the substation,
alleging that the manufacturer was negligent and had defectively
designed an unreasonably dangerous product.  The trial court granted
summary judgment for the manufacturer.  Because there are no material
factual disputes, and the negligence of the electrician was clearly
greater than that of the manufacturer, we affirm the decision of the
trial court.

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

MARY CATHERINE WATKINS v. BRYAN KEITH WATKINS

Court:TCA

Attorneys:                          

Tusca R.S. Alexis, Luvell L. Glanton, Nashville, TN, for Appellant

Donald M. Bullorch, Murfreesboro, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This is an appeal from an order denying a Tenn. R. Civ. P. 60.02
motion to set aside a default judgment entered in favor of Wife in her
divorce from Husband.  For the following reasons, we vacate the order
of the trial court and remand for further proceedings.

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

TERRY L. BAKER v. STATE OF TENNESSEE
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Paul J. Bruno, Nashville, Tennessee, for the appellant, Terry L.
Baker.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson, III,
District Attorney General; Jon P. Seaborg and Kymberly L. A. Haas,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner sought post-conviction relief because of ineffective
assistance of counsel at the resentencing hearing and on appeal.  The
trial court found that the sentence imposed was pursuant to an
agreement.  We conclude the record preponderates against such a
finding.  We further conclude that the record was insufficient to show
that the guilty plea was knowingly and voluntarily entered. The
defendant's twenty-year sentence is vacated, and this cause remanded
for resentencing

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/bakertl_con.wpd

STATE OF TENNESSEE v. RICKY RAYMOND BRYAN

Court:TCCA

Attorneys:                          

Gerald L. Melton, District Public Defender, at trial and on appeal,
and Sean G. Williams, Assistant Public Defender, at trial, for the
appellant, Ricky Raymond Bryan.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; Paul A. Holcombe, III, Assistant District Attorney;
and John W. Price, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Ricky Raymond Bryan, was first tried and convicted of the
first degree murder of Charlotte Scott in 1995.  At the conclusion of
Defendant's first trial, the trial judge, acting in his capacity as
thirteenth juror, granted Defendant's motion for a new trial. 
Defendant's second trial was held in April 1996, and the jury once
again found Defendant guilty of first degree murder and sentenced him
to life imprisonment.  On appeal, this Court remanded for a new trial
because the introduction of Defendant's statement of November 15,
1994, violated Defendant's Fifth Amendment right against
self-incrimination.  At the same time, this Court held that the
evidence was sufficient to sustain the conviction.  State v. Bryan,
990 S.W.2d 231, 241 (Tenn. Crim. App. 1998).  Following a third jury
trial, Defendant was again convicted of first degree murder and
sentenced by the jury to life imprisonment without the possibility of
parole. Defendant now appeals his conviction arguing that the evidence
was insufficient to show beyond a reasonable doubt that Defendant was
the person who killed the victim, Charlotte Scott.  Alternatively,
Defendant argues that the evidence was insufficient to establish that
Defendant acted with premeditation and deliberation as required at the
time of the offense in order to sustain a conviction of first degree
murder.  Defendant also contends that the evidence was insufficient to
support the jury's finding that the murder was especially heinous,
atrocious, or cruel in that it involved torture or serious bodily
injury beyond a reasonable doubt.  After a thorough review of the
record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. BENJAMIN DAMRON
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Charles M. Layne, District Attorney
General; and Jason M. Ponder, Assistant District Attorney General, for
the appellant, State of Tennessee.

Robert S. Peters, Winchester, Tennessee, for the appellee, Benjamin
Damron.

Judge: WILLIAMS

First Paragraph:

This interlocutory appeal, brought by the State, seeks to answer
whether a defendant's statements made during the third phase of a
polygraph examination are admissible evidence.  We conclude the trial
court correctly suppressed the defendant's statements because the
"post-instrument phase" of the polygraph examination was an integral
part of the examination process and not a separate and discrete event.
 We affirm the judgment from the trial court.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/damronb_dis.wpd

STATE OF TENNESSEE v. GRADY PAUL DAVERSON

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; and William A. Dobson, Jr.
(at trial) and Donna Robinson Miller (on appeal), Assistant District
Public Defenders, for the appellant, Grady Paul Daverson.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William H. Cox, III, District
Attorney General; and Thomas E. Kimball, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A jury convicted the defendant, Grady Paul Daverson, of driving under
the influence, fourth or subsequent offense.  In this appeal, the
defendant argues his arrest was illegal; therefore, the trial court
erred by not suppressing the evidence against him.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. LORI ANN DUNCAN

Court:TCCA

Attorneys:                          

Terry L. Jordan, Blountville, Tennessee (at trial); and Julie A. Rice,
Knoxville, Tennessee (on appeal), for the Appellant, Lori Ann Duncan.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Joseph Eugene Perrin, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Lori Ann Duncan appeals the Sullivan County Criminal Court's
revocation of her probationary sentence.  Duncan claims that the lower
court abused its discretion in ordering her to serve her sentence in
incarceration in the Department of Correction.  However, we are
unpersuaded and affirm the lower court's judgment.

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

MILBURN L. EDWARDS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dwight E. Scott and  Paul Walwyn, (at trial) Nashville, Tennessee; and
Milburn L. Edwards, pro se, (on appeal) for the petitioner, Milburn L.
Edwards.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Katrin Miller, Assistant District Attorney, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Milburn L. Edwards, filed a petition for post-conviction
relief, which was subsequently amended.  Following an evidentiary
hearing, the petition for post-conviction relief was dismissed.  On
appeal, Petitioner argues (1) that the post-conviction court erred in
not stating its findings of fact and conclusions of law in its order
denying Petitioner post-conviction relief; (2) that Petitioner
received ineffective assistance of counsel at trial and on appeal; and
(3) that Petitioner was not afforded a full and fair evidentiary
hearing.  After a thorough review of the record, we find no error and
affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. CHARLES JOHNSTON

Court:TCCA

Attorneys:                          

Leroy Tipton, Greeneville, Tennessee, for the Appellant, Charles
Johnston.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Ken Baldwin, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Charles Johnston appeals from his Carter County Criminal Court
conviction of contempt of court.  He claims that the evidence does not
sufficiently support the conviction, that his due process rights were
violated in the conviction proceedings, that the court erroneously
admitted an audiotape of prior proceedings in the general sessions
court, that he was sentenced too harshly and unfairly denied judicial
diversion, and that the lower court abused its discretion in setting
his appeal bond.  Because we discern no reversible error, we affirm
the defendant's conviction and sentence.

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

STATE OF TENNESSEE v. PHILLIP M. MULLINS

Court:TCCA

Attorneys:                          

John E. Appman, Jamestown, Tennessee, for the appellant, Phillip M.
Mullins.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; Bill Gibson, District Attorney General; and David A.
Patterson, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant was indicted by a Putnam County Grand Jury for one count
of first degree murder, one count of especially aggravated robbery and
one count of especially aggravated burglary.  On September 18, 2000,
the State filed a Notice of Intent to Seek Punishment of Imprisonment
for Life Without Possibility of Parole.  The Grand Jury later returned
a Superceding Indictment including charges of First Degree Felony
Murder, First Degree Premeditated Murder, Especially Aggravated
Robbery and Especially Aggravated Burglary.  At trial, the trial court
reduced the premeditated first degree murder count to second degree
murder for consideration by the jury.  At the conclusion of the trial,
the jury convicted the defendant of felony murder, second degree
murder, especially aggravated robbery and especially aggravated
burglary, and immediately sentenced the defendant to life without
parole on the first degree felony murder count.  The trial court
merged the defendant's second degree murder conviction into the first
degree felony murder conviction and sentenced the defendant to
twenty-five (25) years for the especially aggravated robbery
conviction and to twelve (12) years for the especially aggravated
burglary conviction.  The trial court ran the twenty-five (25) year
sentence consecutive to the life without parole sentence and ran the
twelve (12) year sentence concurrent to the twenty-five (25) year
sentence.  The defendant appeals from the trial court based on four
issues: (1) Whether the trial court erred in instructing the jury; (2)
whether the evidence was sufficient to establish the defendant's guilt
beyond a reasonable doubt; (3) whether the Tennessee sentencing scheme
for life imprisonment without parole is unconstitutional if the
aggravating circumstances, contained in Tennessee Code Annotated
section 39-13-204, are not part of the indictment; and (4) whether the
Tennessee sentencing scheme for life imprisonment without parole is
unconstitutional.  We find these issues do not merit a reversal of
this conviction and affirm the trial court.

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

STATE OF TENNESSEE v. PAUL DENNIS REID, JR.

Court:TCCA

Attorneys:                          

James A. Simmons and Thomas F. Bloom, Nashville, Tennessee for the
appellant, Paul Dennis Reid, Jr.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Arthur F. Bieber,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Paul Dennis Reid, Jr., was found guilty by a jury of
two counts of premeditated murder, two counts of felony murder, two
counts of especially aggravated kidnapping, and one count of
especially aggravated robbery.  The felony murder convictions were
merged into the premeditated murder convictions.  Thereafter, the jury
sentenced the appellant to death based upon the existence of three
aggravating circumstances: the appellant had previously been convicted
of one or more felonies, other than the present charge, the statutory
elements of which involve the use of violence to the person; the
murders were committed for the purpose of avoiding, interfering with
or preventing a lawful arrest or prosecution of defendant or another;
and the murder was especially heinous, atrocious, or cruel in that it
involved torture or serious physical abuse beyond that necessary to
produce death.  The trial court sentenced the defendant as a violent
offender to twenty- five years imprisonment for especially aggravated
robbery and especially aggravated kidnapping, to run consecutively to
his sentences for first degree murder and to a prior out-of-state
sentence.  On appeal, appellant presents forty-five issues.  After an
extensive review of the record and the applicable law, we find that
none of these issues warrants a reversal of this case.  Therefore, the
judgments of the trial court are AFFIRMED.

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

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