Opinion FlashJanuary 26, 2004Volume 10 — Number 016 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0126.wpd B & S ENTERPRISES v. WILLIAM ROWLAND, JR., Individually, WILLIAM ROWLAND, SR., Individually, and WILLIAM ROWLAND, JR., and WILLIAM ROWLAND, SR., d/b/a U.S.A. Windows Court:TCA Attorneys: Jason W. Blackburn, Johnson City, Tennessee, for Appellant. Charles L. Moffatt, Bristol, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Judge refused to onerate an individual associated with defendant corporation with an obligation of the corporation which had been discharged in bankruptcy. On appeal, we affirm. http://www.tba.org/tba_files/TCA/bs.wpd IN RE J.J.C., D.M.C., AND S.J.B. A/K/A K. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. JOHN CALABRETTA Court:TCA Attorneys: Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, John Calabretta. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services. Judge: KIRBY First Paragraph: This is a termination of parental rights case. While the father was incarcerated for driving offenses, the mother was arrested for possession of drug paraphernalia. As a result, the parties' two young children were placed in state custody. When the father was released from prison, he contacted the state to enter into a plan of permanency. Subsequently, the state filed a petition to terminate the parental rights of both the mother and the father, alleging that they had failed to comply with the permanency plan, and that they abandoned the children by willfully failing to pay child support to the state. Almost a year later, the trial court conducted a trial in the matter. After the trial, the trial court entered an order terminating the parental rights of both the mother and the father. The father's parental rights were terminated based, in part, upon abandonment. Only the father has appealed from the trial court's decision. We reverse, finding that the evidence does not establish by clear and convincing evidence that the father's failure to make support payments was willful. http://www.tba.org/tba_files/TCA/jjc.wpd METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v. BASIL MARCEAUX Court:TCA Attorneys: Basil Marceaux, Soddy Daisy, Tennessee, Pro Se. Ann O'Connell Simon; P. Jeff Campbell; John L. Kennedy, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County. Judge: COTTRELL First Paragraph: Because the record confirms that the appellant did not perfect an appeal from an adverse decision of the general sessions court within ten days of that decision, we affirm the trial court's dismissal of the late attempted appeal. http://www.tba.org/tba_files/TCA/marceauxb.wpd DAVID T. SEARS, ET AL. v. CHARLES GREGORY, ET AL. WITH DISSENTING OPINION Court:TCA Attorneys: Lawrence H. Hart, Nashville, Tennessee, for the appellants, David T. Sears and wife, Anita G. Sears, David T. Sears as natural guardian and next friend of M.L.S., a minor and B.S., a minor. M. Bradley Gilmore and Kathleen W. Smith, Nashville, Tennessee, for the appellees, Charles Gregory, d/b/a Charles Pest Control and Charles O'Brien, individually and severally, Western Surety Company. Judge: CAIN First Paragraph: Plaintiff homeowners sued Defendant pest control operators for negligent misrepresentation and breach of warranty relative to the issuance by the Defendants of a wood destroying insect infestation inspection report pursuant to Tennessee Code Annotated section 62-21-201 to 206. The trial court granted summary judgment to Defendants. Because civil liability is limited by section 62-21-202 and Plaintiffs allege no damages caused by the presence of wood-destroying insects, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/searsdavid_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/searsdavid_dis.wpd JOSEPH B. THOMPSON v. KEITH WILSON, TED COMO, BECKY CAMPBELL, and MICHELLE WILDER Court:TCA Attorneys: Joseph B. Thompson, Nashville, Tennessee, pro se. Darryl G. Lowe, Knoxville, Tennessee, for Appellees. Judge: FRANKS First Paragraph: Plaintiff's action for libel against defendants was dismissed on grounds the action was time-barred. We affirm. http://www.tba.org/tba_files/TCA/thompsj.wpd PATRICIA WATTERSON v. BENNY BYRD AND LINDA BYRD Court:TCA Attorneys: Scott D. Hall, Sevierville, Tennessee, for Appellant. Steven E. Marshall, Sevierville, Tennessee, for Appellees. Judge: FRANKS First Paragraph: Plaintiff was injured in a fall while being chased by a dog. Plaintiff claimed defendants had harbored the dogs on their property, but the Trial Court granted summary judgment. We vacate on the grounds that there is disputed material evidence as to the applicability of Tenn. Code Ann. S 44-8- 408. http://www.tba.org/tba_files/TCA/watterso.wpd CLAY C. WHITELAW, ET AL. v. JAMES BROOKS, ET AL. Court:TCA Attorneys: David A. Riddick, Jackson, TN, for Appellant William H. Lassiter, Jr., Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves a claim for surveyor negligence in which a property owner seeks recovery of damages in the form of attorney's fees from a previous quiet title action and the lost opportunity to sell a portion of the land for a value higher than the market value. The trial court awarded the plaintiff property owner both types of damages and we affirm. http://www.tba.org/tba_files/TCA/whitelaw.wpd STATE OF TENNESSEE v. ROBERT BENJAMIN BOWEN Court:TCCA Attorneys: Michael Fox, Nashville, Tennessee, for the appellant, Robert Benjamin Bowen. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Kristen Shea, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Upon his plea of guilty, the Defendant was convicted of DUI. In this appeal, he attempts to present two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). Because we conclude that this appeal does not properly present certified questions of law, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/bowenrb.wpd STATE OF TENNESSEE v. RODNEY LARON COVINGTON Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher and Jay Steed, Assistant Public Defenders (on appeal) and J. Michael Engle, Assistant Public Defender (at trial), Nashville, Tennessee, for the Appellant, Rodney Laron Covington. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bernard McEvoy and Amy Eisenbeck, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Rodney Laron Covington, was convicted by a Davidson County jury of one count of rape of a child and two counts of aggravated sexual battery. Covington received a twenty-year sentence for rape of a child and ten-year sentences for each aggravated sexual battery conviction. The sentences were ordered to be served concurrently. On appeal, he presents three issues for our review: (1) whether testimony by a nurse practitioner violated the holding of State v. Ballard, 855 S.W.2d 557 (Tenn. 1993); (2) whether the State's recitation of the facts supporting the charge of rape of a child was "specific enough to ensure that the jury would reach a unanimous decision" and "sufficiently corresponded to the State's proof;" and (3) whether the proof established that the offense of rape of a child occurred after July 1, 1992, as required for 100% service of the sentence imposed under Tennessee Code Annotated section 39-13-523(b). After review of the record, we find no reversible error. Accordingly, the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/covingtonrodneyl.wpd STATE OF TENNESSEE v. JOHN CRAWLEY, SR. Court:TCCA Attorneys: Robin Farber, Columbia, Tennessee, for the appellant, John Crawley, Sr. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, John Crawley, Sr., pled guilty to driving under the influence, first offense. As part of his plea agreement, he expressly reserved with the consent of the trial court and the State the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified question of law stems from the trial court's denial of the Defendant's motion to suppress all evidence obtained as a result of a police officer stopping the Defendant's automobile. Because we find that the police officer did not have reasonable suspicion to stop the Defendant, we reverse the trial court's denial of the motion to suppress. This case is remanded for entry of an order of dismissal. http://www.tba.org/tba_files/TCCA/crawleyj.wpd ALONZO LEONARDO GAYDEN v. STATE OF TENNESSEE Court:TCCA Attorneys: Larry D. Brandon, Murfreesboro, Tennessee, for the appellant, Alonzo Leonardo Gayden. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Alonzo Leonardo Gayden, appeals from the Rutherford County Circuit Court's denying him post-conviction relief from his 2001 conviction for theft of property valued at $1,000 or more, a Class D felony. He contends that he received the ineffective assistance of counsel. We affirm the trial court. http://www.tba.org/tba_files/TCCA/gaydenalonzol.wpd STATE OF TENNESSEE v. MARTIN STUART HAMMOCK Court:TCCA Attorneys: C. LeAnn Smith, Nashville, Tennessee, for the appellant, Martin Stuart Hammock. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Martin Stuart Hammock, was originally convicted of first degree murder following a jury trial. On appeal, this Court found that there was insufficient evidence of premeditation to support a conviction for first degree murder. Accordingly, we modified the judgment to reflect a conviction of second degree murder and remanded the case to the trial court for re-sentencing. State v. Martin Stuart Hammock, No. M2000-00334-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 824, (Tenn. Crim. App. at Nashville, Oct. 12, 2001), no perm. to app. filed. Following a new sentencing hearing, the trial court sentenced Defendant to serve twenty-five years. Defendant appeals. After a review of the record, the briefs, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hammockmartins.wpd ANTHONY DARRELL HINES v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Donald E. Dawson, Post-Conviction Defender; and Jon Joseph Tucci,
Assistant Post-Conviction Defender, Nashville, Tennessee, for the
appellant, Anthony Darrell Hines.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General; Dan
M. Alsobrooks, District Attorney General; and B. Dent Morriss,
Assistant District Attorney General, for the appellee, State of
Tennessee.
Judge: GLENN
First Paragraph:
The petitioner, Anthony Darrell Hines, convicted of first degree
felony murder and sentenced to death for a 1985 homicide, appeals from
the denial of his petition for post-conviction relief, alleging that
counsel were ineffective at his 1986 trial and 1989 resentencing
hearing, that women were excluded from both juries, and that
imposition of the death penalty violates his rights under the federal
and state constitutions. The post-conviction court denied the
petition after an evidentiary hearing. Following our review, we
affirm the denial.
http://www.tba.org/tba_files/TCCA/hinesanthonyd.wpd
SHAMAIN JOHNSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles E. Walker, Nashville, Tennessee, for the appellant, Shamain Johnson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Shamain Johnson, appeals from the trial court's denial of his petition for writ of habeas corpus. Finding that denial of the petition was appropriate, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsons.wpd STATE OF TENNESSEE v. DYWAND CARLOS PETTWAY Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender, and Curtis H. Gann, Assistant Public Defender (on appeal) and Andrew Jackson Dearing, III, Assistant Public Defender (at trial), for the appellant, Dywand Carlos Pettway. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael David Randles and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Bedford County Circuit Court jury convicted the defendant, Dywand Carlos Pettway, of aggravated robbery, a Class B felony, and possession of a Schedule II controlled substance, a Class A misdemeanor. The trial court sentenced him as a Range II offender to twenty years in the Department of Correction for the aggravated robbery conviction and eleven months, twenty-nine days for the possession of a Schedule II controlled substance conviction, to be served consecutively. In this appeal, the defendant claims (1) that the evidence is insufficient to support his aggravated robbery conviction and (2) that his sentences are excessive. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/pettwaydywandcarlos.wpd STATE OF TENNESSEE v. ALONZO MAURICE ROGAN WITH CONCURRING OPINION Court:TCCA Attorneys: Daniel McMurtry, Nashville, Tennessee (at trial), and David A. Doyle, District Public Defender (on appeal), for the appellant, Alonzo Maurice Rogan. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Lawrence R. Whitley, District Attorney General; and Sallie W. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant filed a delayed appeal, alleging error: (1) in denying the defendant the opportunity to file an amended motion for new trial; (2) in the failure to amend the indictment for attempted first degree murder to aggravated assault; (3) in the failure of the indictment for evading arrest to contain statutory language; and, (4) in admitting the defendant's confession in violation of an in limine order during the second phase of a bifurcated trial. We conclude that no reversible errors were attendant and affirm the convictions. http://www.tba.org/tba_files/TCCA/roganam_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/roganam_con.wpd STATE OF TENNESSEE v. CHRISTOPHER ROBERT SMITH Court:TCCA Attorneys: Cynthia M. Fort, Nashville, Tennessee, on appeal, for the Appellant, Christopher Robert Smith. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Tammy Meade and John Zimmerman, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Christopher Robert Smith, was convicted by a Davidson County jury of possession with intent to deliver over 300 grams of cocaine, a class A felony. Following this conviction, he was sentenced to twenty-one years imprisonment. Smith appeals, arguing that (1) the trial court erred by denying his motion to suppress and (2) the trial court improperly admitted evidence of prior criminal conduct. After a review of the record, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/smithchristopherr.wpd STATE OF TENNESSEE v. WALTER RAY SMITH, JR. Court:TCCA Attorneys: Jeffrey S. Burton, Murfreesboro, Tennessee, for the appellant, Walter R. Smith, Jr. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Walter R. Smith, Jr., was convicted by a jury of five counts of child rape. Following a sentencing hearing, the trial court imposed an effective sentence of forty years. In this direct appeal, the Defendant challenges the sufficiency of the evidence and his sentences. We affirm the Defendant's five convictions for child rape. The trial judge erred by failing to state on the record the facts that support the imposition of consecutive sentences. However, the record clearly shows that consecutive sentencing was proper. Therefore, we affirm the Defendant's sentences. http://www.tba.org/tba_files/TCCA/smithwr.wpd STATE OF TENNESSEE v. DAVID I. TUCKER Court:TCCA Attorneys: Ben Hall McFarlin, Burger Siskin, Scott, Goad & McFarlin, Murfreesboro, Tennessee, for the Appellant, David I. Tucker. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, David I. Tucker, appeals the dismissal of his petition requesting DNA analysis pursuant to the Post-Conviction DNA Analysis Act. After review, we find no error and affirm the judgment of the Cannon County Circuit Court. http://www.tba.org/tba_files/TCCA/tuckerdavidI.wpd STATE OF TENNESSEE v. EMERY WELLS Court:TCCA Attorneys: Robert L. Huskey, Manchester, Tennessee, for the Appellant, Emery Wells. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Charles Michael Layne, District Attorney General; and Jason Ponder, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Emery Wells, pled guilty to two counts of aggravated assault and was sentenced to an effective eight-year sentence, with the sentence being suspended after service of ninety days in jail. A probation violation warrant was subsequently issued alleging violation of the following conditions: (1) failure to report to his probation officer; (2) failure to obey the laws of this state; and (3) failure to report a new arrest. Following a hearing, the trial court revoked Wells' suspended sentence and ordered his eight-year sentence to be served with community corrections, after service of an additional ninety-day period of jail confinement. Wells concedes that the violations occurred, but he argues that the revocation did not "aid the interest of both the public and the [Appellant]," as it will likely result in the loss of his employment. http://www.tba.org/tba_files/TCCA/wellsemery.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! 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