Opinion FlashDecember 30, 2003Volume 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):
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 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 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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