Opinion Flash

January 12, 2004
Volume 10 — Number 007

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
00	New Opinion(s) from the Tennessee Court of Appeals
10	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

STATE OF TENNESSEE v. SHAWN RAFAEL BOUGH

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender and John Halstead,
Assistant Public Defender for the appellant, Shawn Rafeal Bough.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and G. Scott Green, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Shawn Rafael Bough, was convicted by a jury of felony
murder and especially aggravated robbery.  A co-defendant was tried
separately.  The trial court immediately sentenced the appellant to
life in prison for the felony murder conviction.  After a sentencing
hearing, the trial court sentenced the appellant to a sentence of
twenty-one years at 100% for the especially aggravated robbery
conviction, to be served concurrently with the life sentence.  The
trial court denied the appellant's motion for new trial, amended
motion for new trial, and second amended motion for new trial, and he
appeals.  Because the first motion for new trial was not timely filed
in regards to the felony murder conviction and an untimely notice of
appeal resulted, we determine that the appellant has waived all issues
except for sufficiency of the evidence in regards to the felony murder
conviction, which we choose to address in the interests of justice. 
Because the amended motion for new trial and second amended motion for
new trial were likewise untimely, we hold that the only other issues
properly before this Court are those raised in the initial motion for
new trial that relate to the conviction for especially aggravated
robbery.  Those issues include: (1) whether the trial court erred in
allowing the State to comment on the appellant's failure to produce a
witness; (2) whether the evidence was insufficient to support the
conviction for especially aggravated robbery; and (3) whether the
trial court erred in failing to instruct the jury regarding the
corroboration of accomplice testimony and out-of-court confessions. 
After a thorough review of the record, we find the evidence sufficient
to sustain the convictions and affirm the judgment of the trial court.
 As to the remaining issues, we find no reversible error and,
therefore, affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JIMMY BUCK

Court:TCCA

Attorneys:                          

Mark S. Cizek, Clinton, Tennessee, for the appellant, Jimmy Buck.

Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan,
Assistant Attorney General;  James N. Ramsey, District Attorney
General; and Jan Hicks, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

An Anderson County grand jury indicted the defendant and two
co-defendants on a single count of aggravated robbery.  While one
co-defendant pled guilty to a reduced offense, the defendant and
remaining co-defendant elected a jury trial. Following the close of
proof, the trial court jury found these two individuals guilty as
charged.  For this offense the lower court sentenced the defendant to
ten years as a standard offender.  Thereafter the defendant
unsuccessfully pursued a new trial motion. In this appeal the
defendant continues to assert that his conviction cannot be upheld
because it is based on the uncorroborated testimony of a co-defendant.

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

ROBERT ANTHONY DEVITO v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

William F. Kroeger, Springfield, Tennessee, for the appellant, Robert
Anthony Devito.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Arthur F. Bieber, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Robert Anthony Devito, appeals from the Montgomery
County Circuit Court's dismissal of his petition for post-conviction
relief from a first degree murder conviction and life sentence.  He
contends that the trial court erred in concluding that his petition
was untimely filed.  We affirm the trial court.

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

STATE OF TENNESSEE v. LARRY LENORD FRAZIER

Court:TCCA

Attorneys:                          

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the
appellant, Larry Leonard Frazier.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael D.
Randles, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WEDEMEYER
 
First Paragraph:

The Defendant, Larry Lenord Frazier, pled guilty to one count of
possession of cocaine for resale, and one count of sale of a substance
containing cocaine.  Following a sentencing hearing, the trial court
denied the Defendant's request for alternative sentencing to community
corrections and sentenced the Defendant to serve prison terms of eight
years and nine months for the possession for resale conviction, and
nine years and four months for the sale conviction, and ordered that
the sentences run consecutively.  The Defendant appeals, contending
that the trial court erred when it denied his request for alternative
sentencing to community corrections.  Finding no reversible error, we
affirm the trial court's judgments.

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

STATE OF TENNESSEE v. LEVAR DERRON LEE

Court:TCCA

Attorneys:                          

William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Levar
Derron Lee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; T. Michel
Bottoms, District Attorney General; Joseph Lee Penrod, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Maury County jury found the Defendant, Levar Derron Lee, guilty of
domestic assault.  Following a sentencing hearing, the trial court
denied the Defendant's request for alternative sentencing and
sentenced the Defendant to serve 11 months and 29 days to be served at
75% in the county jail.  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
judgment.

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

STATE OF TENNESSEE v. MICHAEL RENEE LEE

Court:TCCA

Attorneys:                          

Stacey M. Brackeen, Franklin, Tennessee, for the appellant, Michael
Renee Lee.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Sharon T. Guffee, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

Following a bench trial, the defendant, Michael Renee Lee, was
convicted of aggravated burglary, a Class C felony, and theft over
$1000, a Class D felony, and was sentenced as a career offender to
fifteen years and twelve years, respectively.  The sentences were
ordered to be served consecutively for an effective sentence of
twenty-seven years in the Department of Correction.  On appeal, he
argues that the evidence is insufficient to support his convictions
and that the trial court erred in denying his motion for a
continuance.  Following our review, we affirm the judgments of the
trial court.

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

STATE OF TENNESSEE v. SHANNON MAYES

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Shannon
Mayes

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and J. Douglas Dicus, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Shannon Mayes, was convicted by a jury of first degree
murder and sentenced to life in prison.  The appellant appealed after
the denial of his motion for new trial.  The following issues are
presented for our review: (1) whether the trial court erred in
admitting the victim's dying declaration into evidence; and (2)
whether the evidence was sufficient to convict the appellant of first
degree murder.  After a review of the record, we find no reversible
error and, therefore, affirm the decision of the trial court.

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

JASON EUGENE MIZE v. STATE OF TENNESSEE
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

The State has filed a Petition for Rehearing, pursuant to Rule 39,
Tennessee Rules of Appellate Procedure, to have this court reconsider
its opinion previously filed in this case on December 18, 2003.  This
court held that the trial court erred by dismissing the Appellant's
petition for habeas corpus relief for failure "to file the partial
payment of the filing fee."  This court went on to state that, upon
remand, "the Appellant is entitled to a hearing to determine whether
he has alleged sufficient facts that entitle him to relief."

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

TERRY PROFFITT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Tim S. Moore, Newport, Tennessee, for the Appellant, Terry Lynn
Proffitt.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; Al Schmutzer, Jr., District Attorney
General; and Steven R. Hawkins, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Terry Proffitt appeals the Sevier County Criminal Court's denial of
his petition for post-conviction relief.  Proffitt claims that he was
deprived of the effective assistance of counsel during the proceedings
in which he was convicted of first degree murder for the death of his
ex-wife and that improper jury instructions were given during those
proceedings.  Because the lower court properly found that the
petitioner failed to carry his burden of proving these claims by clear
and convincing evidence, we affirm.

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

GARY MAURICE SEXTON, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gary Maurice Sexton, Jr., Wartburg, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Randall Eugene Nichols, District Attorney
General; and Patricia Cristil, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner, Gary Maurice Sexton, Jr.,  appeals the Knox County
trial court's denial of his pro se motion requesting "credit for time
at liberty."  On appeal, the petitioner asserts: (1) the trial court
erred in denying the motion; (2) the trial court erred in requiring
him to proceed pro se at the hearing; and (3) he received ineffective
assistance of counsel prior to the pro se hearing.  Upon review of the
record and the applicable law, we dismiss the appeal.

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

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