Opinion FlashJanuary 13, 2004
Volume 10 Number 008
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):
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Howard H. Vogel
JERRY NEAL CARPENTER v. STATE OF TENNESSEE WITH CONCURRING OPINION Court:TSC Attorneys: Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender, Knoxville, Tennessee, for the Appellant, Jerry Neal Carpenter. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark A. Fulks, Assistant Attorney General, for the appellee, State of Tennessee. Judge: HOLDER First Paragraph: The sole issue before the Court in this post-conviction proceeding is whether the petitioner, Jerry Neal Carpenter, was denied his constitutional right to the effective assistance of appellate counsel. At trial, the jury was given instructions on first degree premeditated murder, first degree felony murder, and robbery. The trial court declined trial counsel's request to provide the jury with lesser- included offense instructions, and Carpenter was convicted of first degree felony murder. Carpenter argues that he was denied the effective assistance of counsel on direct appeal because appellate counsel failed to challenge the trial court's refusal to instruct the jury on second degree murder as a lesser-included offense. After reviewing the record and applicable authority, we hold that Carpenter has failed to establish his claim of ineffective assistance of appellate counsel. We therefore affirm the Court of Criminal Appeals' judgment denying post-conviction relief. http://www.tba.org/tba_files/TSC/carpenterj_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TSC/carpenterj_con.wpd
LOUIS ERNEST CUNNINGHAM v. CHERYL LYNNE CHEATHAM CUNNINGHAM Court:TCA Attorneys: Kay Farese Turner and Rachael Emily Putnam, Memphis, Tennessee, and Jerry Charles Cox, Jackson, Tennessee, for the appellant, Louis Ernest Cunningham. Mary Jo Middlebrooks, Jackson, Tennessee, for the appellee, Cheryl Lynne Cheatham Cunningham. Judge: FARMER First Paragraph: This is the second appeal of this divorce case. On the first appeal, we remanded the case for a revaluation of Husband's medical practice and reconsideration of the division of marital property and alimony awards. On remand, the trial court reduced the valuation of Husband's medical practice and recalculated the alimony awards, but made no change to the division of marital property and refused Husband's request for a downward deviation from the child support guidelines. The court further ordered Husband to refinance the marital home. Husband appeals. We affirm. http://www.tba.org/tba_files/TCA/cunninghamlouis.wpd
EASTMAN CHEMICAL COMPANY v. LOREN L. CHUMLEY Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Michael W. Catalano, Associate Solicitor General, for the appellant, Loren L. Chumley, Commissioner of Revenue of the State of Tennessee. Charles A. Trost, Michael G. Stewart, and Brett R. Carter, Nashville, Tennessee, for the appellee, Eastman Chemical Company. Judge: KOCH First Paragraph: This appeal involves a dispute between a chemical manufacturer and the Tennessee Department of Revenue concerning whether the use tax exemption for industrial machinery covers the catalysts used in its manufacturing processes. The manufacturer paid use tax during 1995, 1996, and 1997 and then sought a refund for those three tax years. After the Department denied its claim for a refund, the manufacturer filed suit in the Chancery Court for Davidson County seeking a refund of $1.25 million. The court determined that the catalysts qualified as industrial machinery and awarded the manufacturer a refund of the use taxes paid on the catalysts. The Department has appealed. We have determined that the catalysts do not fit within the industrial machinery exemption in Tenn. Code Ann. S 67-6-102(a)(13)(A) (1998), and, therefore, we reverse the trial court. http://www.tba.org/tba_files/TCA/eastmanchemical.wpd
IN RE: ESTATE OF RICHARD L. LEATH, DECEASED, ET AL. v. DAVID K. LEATH Court:TCA Attorneys: Charles M. Cary, Bolivar, Tennessee, for the appellant, David Leath. John S. Wilder, Sr. And Lee S. Saunders, Somerville, Tennessee, for the appellees, Michael Tapp, Bryant Tapp, Raymond Tapp, Richard Leath and Sara Jane Leath. Judge: FARMER First Paragraph: The pivotal dispute in this case concerns the payment of taxes, including penalties and interest, incurred by the estate. We dismiss the appeal, finding that it is not an appeal from a final order. http://www.tba.org/tba_files/TCA/leath.wpd
ROY MCPHERSON v. FORTIS INSURANCE COMPANY, ET AL. Court:TCA Attorneys: Michael M. Castellarin, Nashville, Tennessee, attorney for appellant, Roy McPherson. Louis Marshall Albritton and Laura C. Elliott, Nashville, Tennessee, attorneys for appellee, Fortis Insurance Company. Winston N. Harless, attorney for appellee, John Rutledge, Jr. Judge: INMAN First Paragraph: An application for a policy of health insurance was filled out by a secretary in the office of the agent for the insurance company following a conversation by telephone with the plaintiff who later signed the application without reading it. Four of the questions were concerned with the plaintiff's health history, all of which were answered 'No', which were incorrect. The company rescinded the policy because of the misrepresentations. In the meantime, the plaintiff developed back problems, underwent surgery, and incurred considerable medical expenses. He filed this action, insisting that he answered all questions truthfully, but that the secretary noted his answers differently. Summary judgment was granted on motion of the defendant. We affirm. http://www.tba.org/tba_files/TCA/mcpherson.wpd
PEGGY PISTOLE v. STEPHANIE D. HAYES, ET AL. Court:TCA Attorneys: Joseph P. Bednarz, Jr., Nashville, Tennessee, for the Appellant, Peggy Pistole William G. McCaskill and W. Carl Spinning, Nashville, Tennessee, for the Appellees, Stephanie D. Hayes and Jennifer C. Penney Judge: GODDARD First Paragraph: In this appeal from the Circuit Court for Davidson County the Plaintiff/Appellant, Peggy Pistole, argues that the Trial Court erred in excluding witness testimony upon grounds that their identity was not disclosed in Ms. Pistole's response to interrogatories. We reverse the judgment of the Trial Court and remand. http://www.tba.org/tba_files/TCA/pistolepeggy.wpd
STATE OF TENNESSEE v. HOWARD COLEMAN Court:TCCA Attorneys: Juni S. Ganguli (on appeal), and Coleman W. Garrett and Kevin Reed (at trial), Memphis, Tennessee, for the appellant, Howard Coleman. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience R. Branham and Dan Woody, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his convictions for first degree murder and especially aggravated robbery on the grounds of the insufficiency of the evidence to support the convictions. We conclude that the evidence abundantly supported the convictions and affirm the same. http://www.tba.org/tba_files/TCCA/colemanh.wpd
STATE OF TENNESSEE v. BARRY GRAHAM Court:TCCA Attorneys: Gerald L. Melton, District Public Defender, and Russell N. Perkins, Assistant District Public Defender, for the appellant, Barry Graham. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Paul A. Holcombe, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Barry Graham, was convicted by a Rutherford County Circuit Court jury of aggravated burglary, a Class C felony, and theft of property under $500, a Class A misdemeanor. He was sentenced by the trial court as a Range III, persistent offender to concurrent sentences of thirteen years for the aggravated burglary conviction, and eleven months, twenty-nine days for the theft conviction, to be served consecutively to a sentence in a previous case. The sole issue the defendant raises on appeal is whether the circumstantial evidence at trial was sufficient to establish his guilt of the offenses. We conclude the evidence was sufficient for a rational jury to find him guilty of aggravated burglary and theft under $500 beyond a reasonable doubt. Accordingly, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/grahambarry.wpd
WHEATLEY JAMAR GRAHAM, III v. STATE OF TENNESSEE Court:TCCA Attorneys: Benjamin C. Mayo, Jackson, Tennessee, for the appellant, Wheatley Jamar Graham, III. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Alfred Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Wheatley Graham, appeals the trial court's denial of his petition for post-conviction relief alleging that he was denied the effective assistance of counsel. The judgment of the post- conviction court is affirmed. http://www.tba.org/tba_files/TCCA/grahamwj.wpd
MacARTHUR ENGLISH v. STATE OF TENNESSEE Court:TCCA Attorneys: Paul G. Whetstone, Mosheim, Tennessee, for the appellant, MacArthur English. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief from his guilty pleas to two counts of felony reckless endangerment, arguing that the post-conviction court erred in finding he received the effective assistance of counsel and that his guilty pleas were knowingly, voluntarily, and intelligently entered. Following our review, we affirm the denial of the petition. http://www.tba.org/tba_files/TCCA/englishmacarthur.wpd
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