Opinion FlashMarch 1, 2004Volume 10 — Number 040 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 DARCUS WILLIAMS v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TSC - Workers Comp Panel Attorneys: Aundreas Wattley-Smith, Nashville, Tennessee, for the appellant Metropolitan Government of Nashville and Davidson County, Tennessee Acting By and Through The Electric Power Board Through Said Government a/k/a Nashville Electric Service. Jerry D. Mayo, Nashville, Tennessee, for the appellee Darcus Williams. Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer appeals the trial court's judgment that the employee suffered an injury arising out of and in the course and scope of her employment when the employee left her work station to go to a break area on the employer's premises to hand some money to her friend to repair her car and slipped in a puddle of water and injured her back as she was about to re-enter the building. The employee contends that the trial court erred in finding the employee suffered only a 20% anatomical impairment and a 40% vocational disability for this injury. The panel has concluded that the judgment of the trial court should be affirmed. http://www.tba.org/tba_files/TSC_WCP/williamsdarcus.wpd RICHARD CALDWELL AND WIFE, SHEILA CALDWELL v. TIM WOOD AND JULIE WOOD D/B/A WOOD'S CUSTOM FLOORS Court:TCA Attorneys: A. Russell Larson, Jackson, Tennessee, for the appellants, Tim Wood and Julie Wood, d/b/a Wood's Custom Floors. J. Brandon McWherter, Jackson, Tennessee, for the appellees, Richard Caldwell and wife, Sheila Caldwell. Judge: KIRBY First Paragraph: This case involves the subject matter jurisdiction of General Sessions Courts. The plaintiffs filed a lawsuit against the defendants in General Sessions Court. The defendants failed to appear at trial. The General Sessions Court entered a default judgment against the defendants. The defendants filed a motion to set aside the judgment, which the General Sessions Court granted. The plaintiffs appealed to the Circuit Court. The Circuit Court reversed the General Sessions Court's order setting aside the judgment. We affirm the decision of the Circuit Court, holding that section 16-15-747 of the Tennessee Code Annotated, which authorizes the General Sessions Courts to correct judgments, does not authorize the General Sessions Courts to set aside judgments. http://www.tba.org/tba_files/TCA/caldwellr.wpd WILLIAM THURMAN GREENLEE, ET AL. v. GEORGE HODGSON Court:TCA Attorneys: Jack W. Piper, Jr., Knoxville, Tennessee, Attorney for Appellants, William Thurman Greenlee, Mary Jane Greenlee, Dan Allen Hill and Judy Hill. Kenneth W. Ward, Knoxville, Tennessee, Attorney for Appellee, George Hodgson. Judge: INMAN First Paragraph: This case was filed April 15, 1985 and non-suited October 30, 1986. It was re-filed June 23, 1987 and dismissed March 14, 2001 by Order which provided that the dismissal was "without prejudice." The case was re-filed January 30, 2002, and the defendant's motion for summary judgment was granted January 27, 2003. Judgment affirmed. http://www.tba.org/tba_files/TCA/greenleewilliamt.wpd IN RE: ESTATE OF LURLINE HESS PAULA JEAN HESS, ET AL. v. ROBERT RAY HESS. Court:TCA Attorneys: Thomas D. Yeaglin, Memphis, Tennessee, Petitioner/Appellant pro se, and for the Petitioner/Appellant, Wayne Vaiden, attorneys, representing Paula Jean Hess and Maria Hess- Florow. Kathleen N. Gomes, Memphis, Tennessee, Guardian Ad Litem, for the Respondent/Appellee Christopher L. Hess. Judge: KIRBY First Paragraph: This case involves a claim for attorney's fees in connection with an intestate estate. The attorneys entered into a fee agreement with the decedent's daughters. The attorneys petitioned on behalf of the daughters to require the administrator of the estate to return assets to the estate for proper distribution. The petition also asserted a claim against the administrator in favor of the minor son of one of the daughters. The minor was not mentioned in the attorneys' fee agreement. The ensuing litigation resulted in a favorable settlement for the decedent's daughters, as well as for the minor. The attorneys collected fees from the daughters, pursuant to the fee agreement. The attorneys then petitioned the probate court to assess fees against the minor's proceeds from the settlement agreement. The probate court denied this petition, finding that the attorneys had been adequately compensated for their efforts by the fees collected from the decedent's daughters. The attorneys waited until the estate was closed and then filed a motion to alter or amend the order denying their request for attorney's fees from the minor. This was found untimely and denied. The attorneys appeal. We affirm, finding no abuse of discretion. http://www.tba.org/tba_files/TCA/hesspj.wpd PAUL IVY v. ALTON HESSON, ET AL. Court:TCA Attorneys: Paul Ivy, pro se, Mountain City, TN Paul G. Summers, Attorney General & Reporter, Michael Moore, Solicitor General, Pamela S. Lorch, Senior Counsel, Nashville, TN, for Appellees Judge: HIGHERS First Paragraph: This case arises from a 42 U.S.C. S 1983 federal civil rights complaint filed by Ivy, an inmate of the Tennessee Department of Correction. Ivy maintains that he received a disciplinary conviction in retaliation for reporting an alleged incident of harassment involving a prison official. At trial, the lower court granted the defendants' motion to dismiss, which argued that: (1) Ivy does not have a cognizable 42 U.S.C. S 1983 claim because his underlying disciplinary conviction was never overturned; (2) Ivy cannot prove the causation element necessary to his retaliation claim; and (3) Ivy's claim is subject to dismissal without prejudice for failure to exhaust administrative remedies. On appeal, Ivy challenges not only the dismissal of his complaint, but also the lower court's refusal to grant him attorney's fees arising from a prior unrelated appeal in this matter. For the following reasons, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/ivypaul.wpd ANTOINE LAMARR v. CITY OF MEMPHIS, ET AL. WITH CONCURRING OPINION Court:TCA Attorneys: Robert L. J. Spence, Jr., City Attorney, Jack L. Payne, Jr., Assistant City Attorney, Memphis, TN, for Appellants Thomas E. Hansom, Debra L. Fessenden, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from the lower court's reversal of the decision of the Memphis Civil Service Commission. The Memphis Police Department dismissed Plaintiff following a single-vehicle automobile accident, in which alcohol use was suspected. Plaintiff appealed the decision to the Civil Service Commission, who affirmed the dismissal. Plaintiff then filed a petition, which was granted, for judicial review of the administrative agency's decision. The lower court reversed and remanded, finding that there was insufficient evidence before the commission to determine whether notice of the police department's new zero tolerance policy for DUIs had been properly communicated to all officers. For the following reasons, we reverse the holding of the lower court and affirm the decision of the Memphis Civil Service Commission. http://www.tba.org/tba_files/TCA/lamarrantoine_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/lamarrantoine_con.wpd WELLESLEY BUILDERS, LLC v. VILLAGE OF CHERRY GLEN ASSOCIATION, INC. Court:TCA Attorneys: Keith C. Dennen; Natalya Rose, Nashville, Tennessee, for the appellants, Wellesley Builders, L.L.C., S.H. Property, LLC. Barbara J. Perutelli, Gary S. Rubenstein, Nashville, Tennessee; Gerald C. Wigger, Nashville, Tennessee, for the appellee, Village of Cherry Glen Association, Inc. Judge: COTTRELL First Paragraph: The Homeowners' Association of a residential subdivision organized as a planned unit development assessed maintenance fees against the owner of twenty-two unimproved lots in the subdivision. The owner of those lots filed a suit to obtain a declaration that it was not liable for those fees, alleging that the developer had waived all assessments on vacant lots. The trial court found that the Association was entitled to rescind the waiver, granted summary judgment to the Association, and ordered the lot owners to pay the fees, as well as significant late charges and attorney fees, for a total of over $45,000. We reverse the judgment because there is no evidence in the record that the Board of Directors of the Homeowners' Association ever officially rescinded the waiver, and there is thus a material question of fact as to whether its assessments were valid. http://www.tba.org/tba_files/TCA/wellesleyb.wpd WINCOR, INC. v. JOHN DUNLAP Court:TCA Attorneys: Marshall L. Gerber, Memphis, TN, for Appellant James L. Kirby, Shannon E. Holbrook, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves Plaintiff's claim that Defendant committed legal malpractice while representing Plaintiff in certain bankruptcy proceedings. The Defendant filed a motion for summary judgment, alleging that the applicable statute of limitations bars the malpractice action, as does the doctrine of res judicata. The trial court granted Defendant's motion, and Plaintiff filed the instant appeal. For the following reasons, we affirm the ruling of the lower court. http://www.tba.org/tba_files/TCA/wincor2.wpd GEORGE D. WOODARD, Jr. v. THE ESTATE OF MARTHA ALMEDA SWOPE WOODARD,
DECEASED, ET AL.
Court:TCA
Attorneys:
Timothy R. Simonds, Rossville, Georgia, for the Appellant George D.
Woodard.
F.R. Evans, Chattanooga, Tennessee, for the Appellees Sandra Norton
and Martha Scissom, each individually and as co-executrix of the
Estate of Martha Almeda Swope Woodard.
Judge: SWINEY
First Paragraph:
In 1964, Mr. and Mrs. Woodard executed a Joint Last Will and Testament
(the "Joint Will") which provided that the survivor would receive the
decedent's entire estate in fee simple. The Joint Will further
provided that, upon the death of the survivor, the survivor's estate
would be divided in equal one-fourth shares among George D. Woodard
("Plaintiff"), Mr. Woodard's son from a previous marriage, and Mr. and
Mrs. Woodard's three daughters. Mrs. Woodard executed a new will in
1998 (the "1998 Will"), approximately twenty years after Mr. Woodard's
death. Pursuant to the terms of the 1998 Will, Plaintiff was to
receive $10,000, with the remainder of Mrs. Woodard's estate to be
divided equally among her three daughters. Mrs. Woodard's three
daughters sought to probate the 1998 Will after she passed away.
Plaintiff then filed this lawsuit claiming, among other things, that
the Joint Will created a contractual obligation on the part of Mrs.
Woodard to distribute her estate in accordance with the terms of the
Joint Will and, therefore, Plaintiff was entitled to one-fourth of
Mrs. Woodard's estate. Plaintiff sued Mrs. Woodard's estate as well
as his three half-sisters, Sandra Norton, Martha Scissom, and Barbara
Lambert (collectively referred to as "Defendants"). The Trial Court
granted Defendants' motion for summary judgment. We conclude there is
a genuine issue of material fact regarding whether there existed a
contractual obligation on the part of Mrs. Woodard to distribute her
estate according to the terms of the Joint Will. Accordingly, we
vacate the judgment of the Trial Court and remand for further
proceedings.
http://www.tba.org/tba_files/TCA/woodardg.wpd
STATE OF TENNESSEE v. CARLOS SALVADOR ANGEL, JR. Court:TCCA Attorneys: Cynthia F. Burnes, Nashville, Tennessee, for the Appellant, Carlos Salvador Angel, Jr. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Carlos Salvador Angel, Jr., was convicted of aggravated sexual battery by a Davidson County jury and sentenced to ten years in the Department of Correction. On appeal, Angel argues that: (1) the admission of testimony by his former girlfriend, who was not the victim in this case, was irrelevant and unduly prejudicial and (2) the ten-year sentence imposed was excessive. After review of the record, the judgment of conviction and sentence are affirmed. http://www.tba.org/tba_files/TCCA/angelcarloss.wpd STATE OF TENNESSEE v. DONALD W. BRYMER, JR. Court:TCCA Attorneys: Eugene Honea, Franklin, Tennessee, for the appellant, Donald W. Brymer Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Donald W. Brymer, Jr., appeals from the Williamson County Circuit Court's revocation of his probation that he received for his guilty plea to one count of statutory rape. The Defendant contends that the trial court abused its discretion by revoking his probation and sentencing him to confinement. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/brymerd.wpd CONLEY R. FAIR v. STATE OF TENNESSEE Court:TCCA Attorneys: Conley R. Fair, Mountain City, Tennessee, Pro se. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Anthony Wade Clark, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Conley R. Fair, filed for post-conviction relief, alleging the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition without an evidentiary hearing and without the appointment of counsel, finding that the petition was not timely filed. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for the appointment of counsel and an evidentiary hearing. http://www.tba.org/tba_files/TCCA/fairc.wpd STATE OF TENNESSEE v. BOYD FREEMAN Court:TCCA Attorneys: Micaela Burnham-Russell, Sevierville, Tennessee, for the appellant, Boyd Freeman. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Boyd Freeman, pled guilty to two counts of aggravated sexual battery and two counts of rape of a child. See Tenn. Code Ann. SS 39-13-504, 39-13-522. The trial court imposed a ten- year sentence on each aggravated sexual battery offense and a twenty-three-year sentence on each rape of a child offense. The sentences were ordered to be served concurrently, for an effective sentence of twenty-three years. In this appeal of right, the defendant contends that his sentence is excessive. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/freemanb.wpd STATE OF TENNESSEE v. DAVID KYLE GILLEY Court:TCCA Attorneys: Alfred H. Knight and Roger T. May, Nashville, Tennessee, for the appellant, David Kyle Gilley. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Pursuant to Rule 9, Tennessee Rules of Appellate Procedure, both the defendant and the State were granted appeals from an interlocutory order of the trial court granting in part, and denying in part, Defendant's motion to exclude Rule 404(b), Tennessee Rules of Evidence, testimony. After a careful review of the evidence, we affirm in part and reverse in part the trial court's order. http://www.tba.org/tba_files/TCCA/gilleydavidkyle.wpd STATE OF TENNESSEE v. BRIAN GOODRICH Court:TCCA Attorneys: Lance B. Mayes, Madison, Tennessee, for the appellant, Brian Goodrich. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Jennings H. Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant pled guilty to possession of marijuana with intent to sell or deliver, a Class E felony, and simple possession of cocaine, a Class A misdemeanor. The Rutherford County trial court imposed an effective one-year sentence with ninety days incarceration followed by probation. On appeal, the defendant raises two issues: (1) whether the trial court erred in denying judicial diversion; and (2) whether the trial court erred in denying full probation. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/goodrichbrian.wpd STATE OF TENNESSEE v. THOMAS MARION HARDIN Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Thomas Marion Hardin. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Thomas Marion Hardin, entered "open" pleas of guilty to two counts of sale of cocaine in an amount of 0.5 grams or more, and one count of conspiracy to sell cocaine in an amount of 0.5 grams or more. Following a sentencing hearing, the trial court sentenced Defendant to serve ten years as a Range I standard offender for each Class B felony conviction for sale of cocaine, and to four years to serve as a Range I standard offender to the Class C felony conviction for conspiracy. The sentences for the sale of cocaine convictions were ordered to be served concurrently with each other, and the conspiracy charge was ordered to be served consecutively to the convictions for sale of cocaine. Therefore, the effective sentence was fourteen years of confinement. In his sole issue on appeal, Defendant argues that the trial court erred by not ordering his sentence to be served in the Community Corrections Program, rather than by incarceration. After a review of the briefs of the parties and the entire record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/hardinthomasmarion.wpd STATE OF TENNESSEE v. DAVID G. HOUSLER Court:TCCA Attorneys: Michael E. Terry, Terry & Gore, Nashville, Tennessee, for the Appellant, David G. Housler. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; Robert "Gus" Radford, District Attorney General Pro Tem, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: A Montgomery County jury convicted the Appellant, David G. Housler, of four counts of felony murder. Housler's convictions stem from the robbery of a Clarksville Taco Bell and the execution- style murders of four of its employees. Following a sentencing hearing, the trial court imposed four consecutive life sentences. http://www.tba.org/tba_files/TCCA/houslerdavidg.wpd RICKY HILL KRANTZ v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael A. Colavecchio, Easterly & Associates, Nashville, Tennessee, for the Appellant, Ricky Hill Krantz. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Dan Hamm and Katrin Miller, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Ricky Hill Krantz, appeals the dismissal of his petition for post-conviction relief by the Davidson County Criminal Court. Krantz is currently incarcerated as a result of his jury convictions for first degree felony murder and aggravated assault. On appeal, Krantz raises the single issue of whether he received ineffective assistance of counsel at trial. After review of the issue, the judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/krantzrickyh.wpd STATE OF TENNESSEE v. JONATHAN M. LIGHT Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant Public Defender, Blountville, Tennessee, for the appellant, Jonathan M. Light. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; B. Todd Martin, Assistant District Attorney General; Joseph Eugene Perrin, Assistant District Attorney General; and Rebecca H. Davenport, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Jonathan M. Light, pled guilty to two counts of Class D felony burglary, one count of Class D felony theft, and one count of Class E felony theft. Pursuant to the negotiated plea agreement, he received sentences of two years for each of the Class D felonies, and one year for the Class E felony, all to be served concurrently with each other for an effective sentence of two years. Pursuant to the agreement, the manner of service of the sentence was to be determined by the trial court following a sentencing hearing. Defendant requested to serve his sentence in the Community Corrections program, but the trial court ordered the entire sentence to be served by incarceration. Defendant has now appealed this decision by the trial court. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/lightjonathan.wpd STATE OF TENNESSEE v. LEROY NEVILS WITH CONCURRING OPINION Court:TCCA Attorneys: Joseph D. Baugh, Franklin, Tennessee, for the appellant, Leroy Nevils. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Matthew T. Colvard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of DUI, second offense. He contends that 1) the evidence was insufficient, 2) the trial court erred in instructing the jury on reasonable doubt, 3) the trial court erred in instructing the jury as to the inference from refusal to submit to a chemical test, and 4) the trial court erred in failing to grant the motion to strike the enhancement count. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/nevilsl_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/nevilsl_con.wpd ROGER LYNN PERRY, PRO SE v. TONY PARKER, WARDEN Court:TCCA Attorneys: Roger Lynn Perry, pro se. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General, for the appellee, the State of Tennessee. Judge: WILLIAMS First Paragraph: The Petitioner, Roger Lynn Perry, 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. Because Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court. http://www.tba.org/tba_files/TCCA/perryr.wpd STATE OF TENNESSEE v. JASON D. PILLOW Court:TCCA Attorneys: James Marshall (at trial) and Barton E. Kelley (on appeal), Columbia, Tennessee, for the appellant, Jason D. Pillow. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Mike Bottoms, District Attorney General; and J. Daniel Runde, Robert C. Sanders, and Joseph L. Penrod, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Jason D. Pillow, was convicted of second degree murder, two counts of facilitation of attempted first degree murder, three counts of facilitation of attempted especially aggravated robbery, reckless endangerment, and facilitation of aggravated burglary. The trial court imposed a sentence of 25 years, which must be served at 100%, see Tenn. Code Ann. S 40-35-501(I)(1), (2)(B) (2003), for the second degree murder. Range I sentences of 12 years for each facilitation of attempted first degree murder, 6 years for each facilitation of attempted especially aggravated robbery, 2 years for reckless endangerment, and 4 years for facilitation of aggravated burglary were also imposed. The trial court ordered that the sentence for each facilitation of attempted first degree murder sentence be served consecutively to each other and to the second degree murder sentence. Further, the reckless endangerment sentence was ordered to be served consecutively to the sentences for second degree murder and facilitation of attempted first degree murder. The sentences for facilitation of attempted especially aggravated robbery are to be served concurrently to all the other sentences. Finally, the sentence for facilitation of aggravated burglary is to be served consecutively to the reckless endangerment sentence making the aggregate term 55 years. In this appeal, the defendant presents the following issues for review: (1) that the evidence was insufficient to support the convictions for facilitation of attempted first degree murder and facilitation of especially aggravated robbery; (2) that the trial court committed plain error by failing to instruct the jury on the lesser included offenses of facilitation of felony murder, aggravated assault, facilitation of aggravated assault, facilitation of attempted aggravated robbery, and attempted aggravated assault; (3) that the trial court committed plain error by failing to instruct the jury on the natural and probable consequences rule; (4) that the definitions of criminal responsibility and facilitation provided to the jury were inconsistent; (5) that the multiple convictions violate constitutional protections against double jeopardy; (6) that the trial court erred by refusing to suppress the defendant's pretrial statement; (7) that the closing argument by the state was improper; and (8) that the sentence is excessive. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/pillowjasond.wpd THOMAS POSTON STUDDARD v. STATE OF TENNESSEE Court:TCCA Attorneys: Jim W. Horner, District Public Defender, and H. Tod Taylor, Assistant District Public Defender, for the appellant, Thomas Poston Studdard. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner was indicted on three counts of rape of a child, a Class A felony, and pled guilty to one count of incest, a Class C felony, in exchange for an eight-year sentence as a Range II, multiple offender. Following his conviction, he filed a timely motion for reduction of sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. After conducting a hearing, the trial court denied the motion, and the petitioner appealed to this court. We agree that the petitioner should be allowed to withdraw his plea of guilty, although for a different reason than he argues. Incest, to which he pled guilty, is not a lesser-included offense of rape of a child, and the record on appeal does not reflect that the indictment was amended to charge incest. Accordingly, we vacate the judgment of conviction and remand this matter to the trial court. http://www.tba.org/tba_files/TCCA/studdard.wpd STATE OF TENNESSEE v. ANDREW THOMAS AND ANTHONY BOND WITH DISSENTING OPINION Court:TCCA Attorneys: Lorna S. McClusky and Howard Manis, Memphis, Tennessee (at trial and on appeal), for the appellant, Anthony Bond. Michael E. Scholl and Jeffery Glatstein, Memphis, Tennessee (at trial), for the appellant, Andrew Thomas. Robert Brooks, Memphis, Tennessee (on appeal), for the appellant, Andrew Thomas. Paul G. Summers, Attorney General and Reporter; Alice B. Lustre, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Defendants Andrew Thomas and Anthony Bond appeal as of right their convictions for the first degree felony murder of Loomis Fargo employee, James Day, during the perpetration of a robbery. Following a separate sentencing hearing, the jury found, as to each defendant, that the proof supported one aggravating circumstance beyond a reasonable doubt, that is, the defendant had been previously convicted of one or more violent felonies. See Tenn. Code Ann. S 39-13-204(i)(2). With respect to Defendant Thomas, the jury further determined that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt, and sentenced Defendant Thomas to death. As to Defendant Bond, the jury found that the aggravating circumstance did not outweigh the mitigating circumstances and imposed a sentence of life without the possibility of parole. The trial court approved the sentencing verdicts. In this appeal as of right, Defendant Thomas raises the following issues for this Court's review: (1) the sufficiency of the evidence; (2) whether the trial court erred by denying various pre-trial motions; (3) whether the trial court erred by failing to continue the case after the events of September 11, 2001; (4) whether the trial court erred by excusing prospective juror Pannell for cause; (5) whether the trial court erred by admitting photographs of the victim; (6) whether the trial court erred by admitting items from Defendant's prior federal trial arising out of the robbery; (7) whether the trial court erred in restricting the Defendant's impeachment of Angela Jackson; (8) whether the trial court erred in failing to voir dire a prospective witness regarding her relationship with defense witness Russell Carpenter; (9) whether the trial court erred in sustaining an objection to the testimony of John Hibbler; (10) whether the trial court erred in permitting testimony regarding fingerprints despite stipulation; (11) whether the trial court erred in the admission of expert testimony; (12) whether the trial court erred by failing to charge lesser-included offenses of felony murder; (13) whether the trial court erred by failing to charge the jury with an accomplice instruction; (14) whether it was plain error for the State to refer to Thomas and Bond as "Greed and Evil" in opening statement and closing argument; (15) whether the trial court erred in permitting the State to argue that the jury had a job to find the Defendants guilty; (16) whether the trial court erred by not instructing on specific mitigating factors; (17) whether the trial court erred by permitting the State to cross-examine the Defendant's mother regarding disciplinary actions taken against the Defendant while in prison; (18) whether the verdict of the jury was against the weight of the evidence; (19) whether the indictment failed to charge a capital offense; (20) whether the death penalty violates international treaties ratified by the United States; (21) whether the Tennessee death penalty scheme is unconstitutional; and (22) whether the sentence is proportionate. Defendant Bond raises the following issues: (1) whether it was error for the trial judge to fail to recuse himself for failure to follow Local Rule 4.01; (2) whether the trial court erred by overruling Bond's objection to the testimony of Dr. Smith; (3) whether the trial court erred by declaring Dr. Smith an expert in firearms identification; (4) whether the trial court erred by permitting the prosecution to engage in improper argument; (5) whether the trial court erred by permitting the prosecution to elicit testimony from Angela Jackson regarding her attendance at trial; and (6) whether the trial court erred by failing to instruct the jury as to lesser-included offenses of felony murder. After review of the record and the applicable law, we find no errors of law requiring reversal as to Defendant Thomas. Accordingly, we affirm the jury's verdict finding Defendant Thomas guilty of first degree murder. Additionally, we affirm the jury's imposition of the sentence of death as to Defendant Thomas. However, with respect to Defendant Bond, we are unable to conclude that the failure of the trial court to instruct the jury as to the lesser-included offenses of felony murder was harmless beyond a reasonable doubt. Accordingly, we vacate Defendant Bond's conviction for felony murder and accompanying sentence of life without the possibility of parole. With respect to Defendant Bond, this matter is remanded to the trial court for a new trial. http://www.tba.org/tba_files/TCCA/thomasandrew_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/thomasandrew_dis.wpd STATE OF TENNESSEE v. MARCUS THOMPSON Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); William A. Kennedy, Blountville, Tennessee (on appeal); and James Bowman, Johnson City, Tennessee (at trial), for the appellant, Marcus Thompson. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Robert Montgomery, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Marcus Thompson, was convicted in the Sullivan County Criminal Court of one count of conspiracy to sell or deliver cocaine, one count of possession of cocaine with the intent to sell or deliver, and one count of selling and delivering cocaine. The trial court imposed a total effective sentence of forty years incarceration in the Tennessee Department of Correction and fines totaling $150,000. On appeal, the appellant raises several issues for our review, including speedy trial, sufficiency of the evidence, double jeopardy, evidentiary rulings, and sentencing. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court but reduce the amount of the appellant's fines to a total amount of $50,000. http://www.tba.org/tba_files/TCCA/thompsonm.wpd STATE OF TENNESSEE v. MICHAEL DAVID TOTTY Court:TCCA Attorneys: Kenneth K. Crites, Centerville, Tennessee, for the appellant, Michael David Totty. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Kim Menke, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Michael David Totty, was indicted on one count of burglary of a building other than a habitation, a Class D felony, and one count of theft of property over $1,000 but less than $10,000, a Class D felony. The jury found Defendant guilty of the lesser-included offense of facilitation of a burglary other than a habitation on count one and guilty on count two, theft of property. The trial court sentenced Defendant as a Range III persistent offender to ten years on the theft conviction and six years on Defendant's conviction of facilitation of a burglary. The trial court ordered Defendant's sentences to run concurrently for an effective sentence of ten years. Defendant does not appeal his sentence. On appeal, Defendant argues that the trial court's denial of his motion for a continuance prevented Defendant from securing a material witness for trial and denied his counsel an adequate opportunity to evaluate Defendant's competency to stand trial. Defendant also argues that the evidence was insufficient to support his convictions. After a thorough review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/tottymichaeldavid.wpd STATE OF TENNESSEE v. SEDRICK WILLIAMS Court:TCCA Attorneys: Richard L. Gaines and Kenneth F. Irvine, Jr., Knoxville, Tennessee (on appeal); and Charles Thomas, Knoxville, Tennessee (at trial), for the appellant, Sedrick Williams. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; Kevin Allen, Assistant District Attorney General; and Marsha Mitchell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, Sedrick Williams, was found guilty of one count of first degree murder and one count of attempt to commit first degree murder. The trial court sentenced Defendant to life imprisonment for the first degree murder conviction. Following a sentencing hearing, the trial court sentenced Defendant to twenty-five years imprisonment for the attempted first degree murder conviction, and ordered his sentence for attempted first degree murder to run concurrently with his sentence for first degree murder. On appeal Defendant argues that the evidence was insufficient to support his convictions. Specifically, Defendant contends that the jury misapplied the law in rejecting his defense of self-defense, and the State failed to prove beyond a reasonable doubt that he acted with premeditation. Defendant also argues that the trial court's charge to the jury on flight, coupled with prosecutorial misconduct during closing argument, denied Defendant a fair trial. Defendant does not appeal his sentences. After a careful review of the record in this matter, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/williamssedrick.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! 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