Opinion FlashFebruary 04, 2004Volume 10 — Number 023 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 CITY OF BRENTWOOD, TENNESSEE, ET AL. v. METROPOLITAN BOARD OF ZONING APPEALS, ET AL. Court:TCA Attorneys: James R. Tomkins, Nashville, Tennessee, and Roger A. Horner, Brentwood, Tennessee, for the appellants, City of Brentwood, Tennessee, Phil Hardeman, William J. Vaughn, Wesley Lamoureaux, and Clarence Reynolds. Karl F. Dean, Director of Law, J. Brooks Fox and John L. Kennedy, Nashville, Tennessee, for the appellees, The Metropolitan Board of Zoning Appeals and The Metropolitan Government. Lawrence P. Leibowitz and Pamela P. Gibson, Knoxville, Tennessee, for the appellee, Lamar Advertising Company. Judge: KOCH First Paragraph: This appeal involves the efforts of the City of Brentwood to stop the construction of a billboard located in Davidson County. After Nashville's zoning administrator granted a building permit for the billboard, the City of Brentwood appealed to the Metropolitan Board of Zoning Appeals. When the Board affirmed the building permit, the City of Brentwood and four neighboring property owners filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's decision. The trial court granted the motions to dismiss filed by the Board and the owner of the billboard on the ground that the City of Brentwood and the individual property owners lacked standing. We have determined that the trial court erred by determining that the City of Brentwood and its public officials lacked standing to seek judicial review of the Board's decision. http://www.tba.org/tba_files/TCA/brentwood.wpd MARY LEE DOTSON v. WILLIAM ENNIS DOTSON Court:TCA Attorneys: M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, William Ennis Dotson. Kim B. Tycer, Pulaski, Tennessee, for the appellee, Mary Lee Dotson. Judge: KOCH First Paragraph: This appeal involves the dissolution of a 28-year marriage by default. The wife filed for divorce in the Chancery Court for Maury County and, after the husband failed to file a timely answer, filed for a default judgment. The trial court granted the default judgment even though the husband had filed an answer and counterclaim on the day before the hearing and later denied the husband's Tenn. R. Civ. P. 55.02 motion to set aside the default. The husband has appealed. We have determined that the trial court properly granted the default judgment but erred by refusing to later set the default judgment aside. http://www.tba.org/tba_files/TCA/dotsonml.wpd LARRY FRANKENBACH v. LARRY ROSE, ET AL. Court:TCA Attorneys: G. Thomas Nebel and Suzette Peyton, Nashville, For Appellant, Larry Frankenbach R. Eddie Wayland and D'Lesli M. Davis, Nashville, For Appellees, Marc Ball, Scene 3, Inc., and STET, L.L.C. Judge: CRAWFORD First Paragraph: This appeal arises from a dispute over proceeds from a failed television series. Appellants contracted with the owner of the copyright to handle distribution of the series for which they were to receive a percentage of profits. Owner of the copyright also contracted with Appellees to secure funding for the series with Appellees' obligation limited to $1.6 million in expenses for the series. To that end, Appellees paid vouchers submitted by owner of the copyright, which included payment of agents fees to Appellants. When the $1.6 million cap was reached, Appellees stopped paying vouchers. The owner of the copyright subsequently filed for bankruptcy. Appellants sued Appellees and alleged numerous causes of action in both contract (i.e., oral contract, answering for debt of another, partial performance, promissory estoppel, and The Statute of Frauds) and tort (i.e., fraud, promissory fraud, negligent misrepresentation, tortious interference with contract, interference with business relationship, concert of action/joint enterprise). The trial court granted summary judgment to Appellees on all causes of action. Appellants appeal. We affirm. http://www.tba.org/tba_files/TCA/frankenbachlarry.wpd STATE OF TENNESSEE v. CHARLES RAY ALLEN Court:TCCA Attorneys: Michael Colavecchio, Nashville, Tennessee, for the appellant, Charles Ray Allen. Paul G. Summers, Attorney General; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Kimberly Cooper, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Charles Ray Allen, was convicted by a jury of first degree premeditated murder and attempted voluntary manslaughter. The Defendant subsequently filed for post-conviction relief alleging, among other things, ineffective assistance of counsel at trial. After an evidentiary hearing, the trial court denied relief, and the Defendant now appeals. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/allenc.wpd STATE OF TENNESSEE v. CRAIG PATRICK HEBERT Court:TCCA Attorneys: David E. Brandon, Nashville, Tennessee, for the appellant, Craig Patrick Hebert. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Victor S. Johnson, District Attorney General; and Scott McMurtry, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: A Metro Nashville police officer stopped the appellant for improper mounting of tags on his vehicle and drinking a beer while driving in downtown Nashville. After performing poorly on the field sobriety test, the police officer arrested the appellant and asked him to take a breathalyzer test. After taking the test, the officer determined the appellant was intoxicated and arrested him for Driving Under the Influence (DUI). The appellant now appeals arguing that the evidence was insufficient to support his conviction and the State did not meet the requirements under State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), for introducing the breathalyzer test. We conclude that there is sufficient evidence to support the conviction and that the Sensing requirements are not applicable to the case at hand because the results of the breathalyzer test were not introduced into evidence. We also hold that the arresting officer's testimony concerning the appellant's behavior while taking the breathalyzer test was admissible in evidence against the appellant. Therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hebertcraig.wpd JOHNNY MARVIN HENNING, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Johnny Marvin Henning, pro se. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: This matter is before the Court upon the State's motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner, Johnny Marvin Henning, appeals the trial court's denial of his petition for habeas corpus relief. Finding that the Petitioner has failed to assert a ground entitling him to habeas corpus relief, this Court affirms the judgment of the trial court dismissing the petition. http://www.tba.org/tba_files/TCCA/henning.wpd COREY JOHNSON, PRO SE v. TONY PARKER, WARDEN Court:TCCA Attorneys: Corey Johnson, pro se. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, III, Assistant Attorney General, for the appellee, the State of Tennessee. Judge: WILLIAMS First Paragraph: The Petitioner, Corey Johnson, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we grant the State's motion and affirm the judgment of the lower court. http://www.tba.org/tba_files/TCCA/johnsoncor.wpd STATE OF TENNESSEE v. JAMES A. JOHNSON Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender, and Richard W. DeBerry, Assistant Public Defender, for the appellant, James A. Johnson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Chief Deputy District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his convictions and sentences on two counts of aggravated sexual battery. The defendant was sentenced to two twelve-year terms, to be served consecutively for an effective sentence of twenty-four years. The defendant asserts three issues for review: (1) insufficiency of the evidence to support the convictions; (2) error in the use of enhancement factors in determining the length of the sentences imposed; and (3) error in ordering the sentences served consecutively. http://www.tba.org/tba_files/TCCA/johnsonja.wpd STATE OF TENNESSEE v. TERRANCE LEWIS Court:TCCA Attorneys: Jack S. Hinson, Lexington, Tennessee, for the appellant, Terrance Lewis. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Henderson County Circuit Court jury in consolidated cases of aggravated robbery, a Class B felony, and especially aggravated robbery, a Class A felony. He was sentenced by the trial court as a Range I, standard offender to eight years for the aggravated robbery conviction, and as a violent offender to twenty years for the especially aggravated robbery conviction, with the sentences ordered to be served concurrently, for an effective sentence of twenty years in the Department of Correction. He raises essentially one issue on appeal: whether the trial court erred in denying his pretrial motion to suppress his statement to police. Following our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/lewis.wpd STATE OF TENNESSEE v. QUINTON SANDERS Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Quinton Sanders. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; William L. Gibbons, District Attorney General; Jerry Kitchen and Amy Weirich, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Following his transfer from juvenile court, the appellant, Quinton Sanders, was convicted of first degree felony murder, attempted theft of property over $1,000 but less than $10,000 in value, and theft of property over $10,000 but less than $60,000 in value. He received sentences of life imprisonment, two years, and five years, respectively. All sentences are to be served consecutively. In this appeal, the appellant maintains that the trial court erred in failing to instruct the jury with respect to any lesser-included offenses of felony murder. The appellant also maintains that the trial court erred in excluding evidence of the Memphis Police Department's policies and procedures regarding high-speed chases. The State maintains that the trial court properly excluded evidence of the high speed chase policies and procedures, but concedes that the trial court erred in declining to instruct the jury with respect to the lesser-included offenses of felony murder. After an exhaustive examination of the record and applicable authorities, we conclude that the trial court did indeed err in declining to instruct the jury on the lesser-included offenses of felony murder and the error is not harmless beyond a reasonable doubt. We also conclude that the trial court properly excluded evidence of the high speed chase policies and procedures of the Memphis Police Department. Accordingly, the appellant's conviction for first degree felony murder is Reversed and Remanded for a new trial in accordance with this opinion. His remaining convictions for attempted theft and theft as well as the sentences for those offenses are affirmed. http://www.tba.org/tba_files/TCCA/sandersq.wpd STATE OF TENNESSEE v. RAY SAULSBERRY Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender; and Tony N. Brayton, Michael Johnson, and Gregg Carman, Assistant Public Defenders, for the appellant, Ray Saulsberry. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of robbery and driving while a habitual motor vehicle offender. The defendant contends on appeal that the trial court erred in 1) denying his constitutional right to the assistance of counsel, and 2) conducting the trial in absentia while the defendant was not represented by counsel. We conclude that once elbow counsel has been appointed, and the defendant is absent voluntarily or through removal because of behavior, the trial court should require elbow counsel to represent the absent defendant. Under the facts of this case, the trial court erred in not requiring elbow counsel to proceed to represent the defendant when he was removed from the courtroom. Accordingly, the judgments of conviction are reversed and remanded for a new trial. http://www.tba.org/tba_files/TCCA/saulsber.wpd JAMES E. TAYLOR, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Roger Swindle, Hendersonville, Tennessee, for the appellant, James E. Taylor, Jr. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Byrna Grant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, James E. Taylor, petitioned for post-conviction relief from his convictions of aggravated assault, aggravated burglary, and aggravated kidnapping. He alleged that he received ineffective assistance of counsel. After a hearing, the trial court denied relief, and the Defendant now appeals. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/taylorje.wpd JOSEPH MARTIN THURMAN v. STATE Court:TCCA Attorneys: Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Joseph Martin Thurman. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Joseph Martin Thurman, appeals the dismissal of his petition for post-conviction relief based upon its filing beyond the statute of limitations. He argues that due process considerations tolled the limitations period of Tennessee Code Annotated section 40-30-102(a) and that the trial court erred in dismissing the petition without an evidentiary hearing. Because the time for filing the petition cannot be tolled under the circumstances presented in this case, we conclude that the petition for post-conviction relief was untimely and we affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/thurmanjoseph.wpd EUGENE TURNER v. STATE OF TENNESSEE Court:TCCA Attorneys: Pamela Drewery-Rodgers, Selmer, Tennessee, for the appellant, Eugene Turner. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A McNairy County jury convicted the Petitioner, Eugene Turner, of two counts of premeditated first degree murder and the trial court sentenced the Petitioner to two concurrent life sentences with the possibility of parole. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner'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/turnere.wpd DARRELL WATKINS, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Darrell Watkins, pro se. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The Petitioner, Darrell Watkins, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a ground entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/watkins.wpd STATE OF TENNESSEE v. JAMES Q. WILKERSON Court:TCCA Attorneys: Troy L. Brooks, Mt. Juliet, Tennessee, for the Appellant, James Q. Wilkerson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Howard Chambers, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, James Q. Wilkerson, appeals the decision of the Wilson County Circuit Court sentencing him to three years confinement in the Department of Correction. On appeal, Wilkerson contends that the trial court erred in denying an alternative sentence. After review, we conclude that the sentencing proof is insufficient to overcome the statutory presumption that Wilkerson is a favorable candidate for alternative sentencing. Accordingly, we modify Wilkerson's sentence to reflect a sentence of split confinement. http://www.tba.org/tba_files/TCCA/wilkersonjamesq.wpd EDDIE WILLIAMS, JR., PRO SE v. DAVID MILLS, WARDEN Court:TCCA Attorneys: Eddie Williams, Jr., pro se. Paul G. Summers, Attorney General & Reporter; Kathy Denise Aslinger, Assistant Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: This matter is before the Court upon the State's motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court's denial of habeas corpus relief. The Petitioner fails to assert a cognizable ground for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/williaed.wpd ROBERT ZANDI, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Zandi, pro se Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General, for the appellee, the State of Tennessee. Judge: GLENN First Paragraph: The Petitioner, Robert Zandi, appeals the trial court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Concluding that the petition is barred by the one-year statute of limitations, the State's motion is granted and the denial of relief entered by the trial court is affirmed. http://www.tba.org/tba_files/TCCA/zant.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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