Opinion FlashFebruary 02, 2004Volume 10 — Number 021 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_0202.wpd BRIDGECOURT APARTMENTS PARTNERSHIP v. CARMEN H. ELLERBE Court:TCA Attorneys: Gene A. Stanley, Jr., Knoxville, Tennessee, for Appellants. Thomas Privette, Jr., Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Plaintiff paid off mortgage on apartments and then sued for an accounting, alleging overpayment. The Trial Court invoked the voluntary payment rule and dismissed the case. On appeal, we affirm. http://www.tba.org/tba_files/TCA/bridgect.wpd ASHAD R. A. MUHAMMAD ALI v. STATE OF TENNESSEE Court:TCCA Attorneys: Ashad R. A. Muhammad Ali, pro se, Nashville, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; W. Michael McCown, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Ashad R. A. Muhammad Ali, appeals the Lincoln County Circuit Court's summary dismissal of his petition requesting DNA analysis under the Post-Conviction DNA Analysis Act. On appeal, the Appellant raises two issues for our review: (1) whether the trial court properly dismissed the petition and (2) whether the trial judge erred by not sua sponte recusing himself based upon the fact that the trial judge was "part of the prosecutorial team that prosecuted the original conviction against the Appellant." Due to the sparseness of the record with regard to the question of recusal, we remand the case for a determination of this issue. http://www.tba.org/tba_files/TCCA/aliashad.wpd REGINALD GARNER BROWN v. STATE OF TENNESSEE Court:TCCA Attorneys: Mike J. Urquhart, Nashville, Tennessee, for the appellant, Reginald Garner Brown. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Davidson County jury convicted the Petitioner, Reginald Garner Brown, of one count of first degree felony murder, one count of especially aggravated kidnapping, one count of aggravated robbery and one count of aggravated burglary. The trial court sentenced the petitioner as a Range I offender to consecutive terms of life with the possibility of parole for murder, twenty-five years for especially aggravated kidnapping, twelve years for aggravated robbery and six years for aggravated burglary. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Defendant's application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court's judgment. http://www.tba.org/tba_files/TCCA/brownrg.wpd STATE OF TENNESSEE v. LESTER ARNOLD CLOUSE Court:TCCA Attorneys: John E. Appman, Jamestown, Tennessee, for the Appellant, Lester Arnold Clouse. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General, Pro Tem; and Howard Chambers, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Lester Arnold Clouse, was convicted by a White County jury of five counts of setting fire to land, two counts of aggravated assault, and one count of resisting arrest. These convictions resulted in an effective sentence of twenty-one years, eleven months, and twenty-nine days. On appeal, Clouse raises three issues for our review: (1) whether the evidence was sufficient to convict him of setting fire to land and aggravated assault; (2) whether the trial court erred by denying his motion for a mistrial after a co-defendant invoked his Fifth Amendment privilege and testified before the jury that he had been threatened; and (3) whether the jury instruction regarding circumstantial evidence was proper. After review of the record, we conclude that the errors resulting from the co-defendant's invocation of his Fifth Amendment privilege at trial affected the jury's verdict. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial. http://www.tba.org/tba_files/TCCA/clouselestera.wpd STATE OF TENNESSEE v. MIKE LAFEVER Court:TCCA Attorneys: Marshall Judd, Cookeville, Tennessee, for the appellant, Mike Lafever. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Bill Gibson, District Attorney General; and David A. Patterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Mike Lafever, was indicted on three counts of theft. A jury subsequently convicted him of one count of theft over $10,000, a Class C felony, and one count of theft over $1,000, a Class D felony. The jury assessed fines of $10,000 and $5,000 for these offenses, respectively. The jury acquitted him of the other count. The trial court sentenced the Defendant to five and one-half years for the Class C felony, and to three and one-half years for the Class D felony. The sentences were ordered to run concurrently and to be served on community corrections. In this direct appeal, the Defendant argues that the trial court erred in refusing to admit a statement he made to the police; erred in refusing to instruct the jury on mistake or ignorance of fact; that the evidence is not sufficient to support his convictions; that his sentences are excessive; and that the trial court should have waived his fines. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/lafeverm.wpd STATE OF TENNESSEE v. THOMAS G. LAMPLEY, JR. Court:TCCA Attorneys: Jay Norman, Nashville, Tennessee, for the appellant, Thomas G. Lampley. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Robert McGuire, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Thomas G. Lampley, Jr., was convicted of aggravated burglary, a Class C felony. After determining the Defendant to be a Range III, persistent offender, the trial court sentenced him to twelve years in the Department of Correction, consecutive to an prior sentence. The Defendant now appeals, alleging that his sentence for the instant crime should be ten years. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lampleytg.wpd STATE OF TENNESSEE v. DOUGLAS MARSHALL MATHIS Court:TCCA Attorneys: Jerred Creasy and Kirk Vandivort, Charlotte, Tennessee, for the appellant, Douglas Marshall Mathis. Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. Because the state's closing argument was improper and the error cannot be classified as harmless, the judgment of the trial court is reversed and the cause is remanded for a new trial. http://www.tba.org/tba_files/TCCA/mathisdouglasm.wpd ANTON McDONALD v. STATE OF TENNESSEE Court:TCCA Attorneys: Terry A. Fann, Murfreesboro, Tennessee, for the appellant, Anton McDonald. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and John W. Price, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Anton McDonald, appeals the dismissal of his petition for post-conviction relief from a guilty plea to possession of over .5 grams of cocaine with the intent to sell or deliver, arguing that the post-conviction court erred in finding that the petition was time-barred. Following our review, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/mcdonaldanton.wpd STATE OF TENNESSEE v. FLOYD PERROW Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, (on appeal), and Russell Church, Assistant District Public Defender, Clarksville, Tennessee, (at trial and on appeal), for the appellant, Floyd Perrow. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Montgomery County jury convicted the Defendant, Floyd Perrow, of aggravated burglary, two counts of aggravated rape, and aggravated assault. The trial court merged the two convictions of aggravated rape and sentenced the Defendant to an aggregate thirty-six and a half years in prison. On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to support his convictions; and (2) the trial court imposed an excessive sentence because it should have merged all of the Defendant's convictions into a single conviction. The State also appeals, contending that the trial court erred by merging the two aggravated rape convictions. After thoroughly reviewing the record, we conclude that sufficient evidence exists to support the Defendant's convictions and that the trial court did not err by failing to merge all of the convictions into a single conviction. However, we conclude that the trial court erred by merging the two aggravated rape convictions. Accordingly, we reverse this judgment by the trial court, and we reinstate the two aggravated rape convictions. We remand the case to the trial court for re-sentencing on those two convictions. http://www.tba.org/tba_files/TCCA/perrowf.wpd EDWARD PINCHON v. STATE OF TENNESSEE Court:TCCA Attorneys: David G. Hirshberg, Nashville, Tennessee, for the appellant, Edward Pinchon. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the dismissal of his petition for post-conviction relief as time-barred, arguing that the post-conviction court erred for failing to find that the one-year statute of limitations was tolled due to his mental incompetence, or, in the alternative, for failing to find that his petition was timely because it was filed within one year from the date mandate issued. Following our review, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/pinchonedward.wpd LETIVIAS D. PRINCE v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Britt Phillips, Franklin, Tennessee, for the appellant, Letivias D. Prince. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Letivias D. Prince, filed a petition for post-conviction relief, which was subsequently amended. Following an evidentiary hearing, the trial court dismissed Petitioner's petition. On appeal, Petitioner argues the trial court erred in dismissing his petition for post-conviction relief and contends (1) that his counsel failed to develop a reasonable trial strategy or defenses for Petitioner; (2) that his counsel failed to fully investigate or adequately prepare the witnesses for trial; (3) that his counsel failed to allow Petitioner to testify at trial; and (4) that his counsel failed to ask for a continuance to investigate certain exculpatory evidence presented by the State at the time of trial. After a thorough review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/princelativiasd.wpd STATE OF TENNESSEE v. CRAIG U. QUEVEDO Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee (on appeal) and Edward DeWerff, Clarksville, Tennessee (at trial) for the appellant, Craig Quevedo. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Craig Quevedo, pled guilty to thirty counts of rape and twenty-four counts of incest and pled nolo contendere to two counts of aggravated sexual battery, four counts of rape of a child, nine counts of rape and one count of aggravated rape in the Circuit Court for Montgomery County. After a sentencing hearing, the trial court imposed an aggregate sentence of ninety-two years in prison. On appeal, the Defendant contends that his sentence was excessive and contrary to public policy. Finding no reversible error, we affirm the trial court's judgments. http://www.tba.org/tba_files/TCCA/quevedoc.wpd STATE OF TENNESSEE v. ANDREW J. ROCHESTER Court:TCCA Attorneys: J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Andrew J. Rochester. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; T. Michel Bottoms, District Attorney General; J. Douglas Dicus, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of one count of burglary. He contends on appeal that 1) there is insufficient evidence to sustain the conviction, 2) no proper foundation was laid for opinion testimony by certain witnesses, 3) the warrantless search of the vehicle was improper, and 4) the trial court erred in sentencing the defendant. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/rochesteraj.wpd STATE OF TENNESSEE v. MICHAEL WALLS Court:TCCA Attorneys: Phillip A. Condra, District Public Defender; and David O. McGovern, Assistant Public Defender, Jasper, Tennessee, for the appellant, Michael Walls. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; James Michael Taylor, District Attorney General; and William Copeland, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Michael Walls, was indicted for the following offenses: count one, forgery; count two, passing a forged instrument; count three, forgery; count four, passing a forged instrument; count five, forgery; count six, passing a forged instrument; count seven, theft of property under $500; and count eight, forgery. The offense of theft of property under $500 is a Class A misdemeanor. The seven forgery offenses are Class E felonies. The State entered a nollo prosequi as to counts three and four. Following a jury trial, Defendant was convicted of the remaining counts. The trial court merged count one with count two, and count five with count six, leaving Defendant with convictions for three forgery offenses and one conviction for theft of property under $500. Following a sentencing hearing, the trial court found that the following enhancement factors were applicable: that Defendant has a previous history of criminal convictions and activity; that Defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release into the community; and that Defendant was adjudicated to have committed delinquent acts as a juvenile that would constitute a felony if committed by an adult. Tenn. Code Ann. SS 40-35-114(2), (9) and (21). The trial court considered Defendant's request for leniency and his mental stability as mitigating factors, but assigned these factors little weight. See id. -35-113. The trial court declined to consider alternative sentencing as an option and sentenced Defendant to two years incarceration for each of the forgery convictions and eleven months and twenty-nine days for the misdemeanor theft conviction. The trial court ordered Defendant's sentence for count one to run consecutively to his conviction for count five, and counts seven and eight to run concurrently with his other sentences, for an effective sentence of four years. Defendant now appeals, arguing that the evidence was insufficient to support his convictions. Defendant also challenges the length of his sentences for his forgery convictions and the imposition of consecutive sentencing. Defendant does not challenge the length of his sentence for his theft conviction. After a careful review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/wallsmichael.wpd DONALD WALTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Donald F. Walton, Pro Se, Clifton, Tennessee. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Donald Walton, appeals from the trial court's summary dismissal of his petition for writ of habeas corpus. After a review of the record and the briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/waltondonald.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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