Opinion Flash

March 1, 2004
Volume 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):
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
18 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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

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