Opinion FlashMarch 11, 2004Volume 10 — Number 048 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 STATE v. WILMORE HATFIELD Court:TSC Attorneys: Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General, for the appellant, State of Tennessee. Onnie Winebarger, Byrdstown, Tennessee, for the appellee, Wilmore Hatfield. Judge: BARKER First Paragraph: This is an appeal from the Criminal Court for Fentress County which convicted the defendant, Wilmore Hatfield, of felony reckless endangerment as a lesser-included offense of aggravated assault. Relying on this Court's decision in State v. Moore, 77 S.W.3d 132 (Tenn. 2002), the Court of Criminal Appeals reversed the conviction, concluding that felony reckless endangerment was not a lesser-included offense of aggravated assault. The State then sought, and this Court granted, permission to appeal on the sole issue of whether felony reckless endangerment is a lesser- included offense of aggravated assault committed by intentionally or knowingly causing bodily injury to another by the use of a deadly weapon. We hold that it is a lesser-included offense under State v. Burns, 6 S.W.3d 453 (Tenn. 1999). Consequently, the Court of Criminal Appeals' decision with respect to the felony reckless endangerment conviction is reversed, and that conviction is reinstated. http://www.tba.org/tba_files/TSC/hatfieldw.wpd STATE OF TENNESSEE v. TONYA JENNINGS Court:TSC Attorneys: William J. Steed, Assistant Public Defender (on appeal) and Laura Dykes, Deputy Public Defender (at trial), Nashville, Tennessee, for the appellant, Tonya M. Jennings. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; Gigi Braun, Assistant District Attorney General; Pamela Anderson, Assistant Attorney General; Jon P. Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: In a bench trial, the defendant was found not guilty by reason of insanity of the charge of stalking. Following her release from judicial hospitalization, she moved to have her public records in this case expunged under Tennessee Code Annotated section 40-32-101(a)(1). Because the pertinent statutory language only provides for expungement upon "a verdict of not guilty returned by a jury," we find that the defendant is not entitled to expungement and affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/jenningstm.wpd STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. SARAH OWENS, ET AL., IN THE MATTER OF S.L.O. Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the appellant, Tennessee Department of Children's Services. James S. Haywood, Jr., Brownsville, Tennessee, for the appellees, Frank A. Maddox and Burnett Maddox. Judge: BIRCH First Paragraph: This case presents an issue of jurisdiction-whether the circuit court or the Court of Appeals has the authority to hear and decide this appeal from the juvenile court. We hold that the Circuit Court for Haywood County has jurisdiction to hear this appeal. Accordingly, we remand the case to the Circuit Court for Haywood County to conduct an appeal de novo pursuant to Tennessee Code Annotated section 37-1-159(a). The parties have also challenged the circuit court's authority to transfer the case to the Court of Appeals. Because we hold that the circuit court has jurisdiction to hear the appeal, we do not consider the transfer issue. http://www.tba.org/tba_files/TSC/slo.wpd HENRY EARL CAMPBELL v. JIM KERAS BUICK COMPANY and GREAT AMERICAN INSURANCE COMPANIES Court:TSC - Workers Comp Panel Attorneys: James L. Gordon, Memphis, Tennessee, for the appellant, Henry Earl Campbell B. Duane Willis, Jackson, Tennessee, for the appellee, Jim Keras Buick Company and Great American Insurance Companies Judge: WALKER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee. Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of the finding of fact and conclusions of law. The trial court found that the Employee failed to prove causation, failed to give notice as required by Tennessee Code Annotated section 50-6-201, and waived his right to worker's compensation benefits for a back injury. We affirm on the basis that Employee failed to prove causation and failed to prove notice. http://www.tba.org/tba_files/TSC_WCP/campbelhe.wpd ROGER D. REYNOLDS v. TENNESSEE MUNICIPAL LEAGUE RISK MANAGEMENT POOL and SUE ANN HEAD, DIRECTOR OF DIVISION OF WORKERS' COMPENSATION, STATE OF TENNESSEE Court:TSC - Workers Comp Panel Attorneys: Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, Roger D. Reynolds John D. Burleson and Michael L. Mansfield, Jackson, Tennessee, for the appellee, Tennessee Municipal League Risk Management Pool Judge: WALKER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of the finding of fact and conclusions of law. The trial court found that the Employee failed to prove causation and failed to give notice as required by Tennessee Code Annotated section 50-6-201. We affirm. http://www.tba.org/tba_files/TSC_WCP/reynods.wpd WILLIAM R. SMOTHERS v. MARKEL LIGHTING, INC; CIGNA INSURANCE CO.; GENERAL ACCIDENT INSURANCE CO. and SUE ANN HEAD, DIRECTOR OF DIVISION OF WORKERS' COMPENSATION, STATE OF TENNESSEE Court:TSC - Workers Comp Panel Attorneys: Jay E. Degroot, Jackson, Tennessee, for the appellant, William R. Smothers. Lawrence W. White and Mark W. Raines, Memphis, Tennessee, for the appellees, Markel Lighting and General Accident Insurance Company. Robert O. Binkley, Jr., Tennessee, for the appellee, CIGNA Insurance Company. Paul Todd Nicks, Memphis, Tennessee, for the appellee, Revell Construction Company. Attorney General Paul G. Summers, and Dianne Dycus, Deputy Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund. Judge: WALKER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the Employee failed to give notice as required by TennesseeC.Annotated section 50- 6-201. We affirm. http://www.tba.org/tba_files/TSC_WCP/smothers.wpd DEBBIE LEGENS v. DARIN MARSHALL d/b/a MARSHALL RECOVERY SERVICE, INC. Court:TCA Attorneys: David W. Camp, Jackson, TN, for Appellant James H. Bradberry, Dresden, TN, for Appellee Judge: HIGHERS First Paragraph: This cases arises from the repossession of a 1998 GMC Yukon by the Defendant, Marshall Recovery Services, Inc. Plaintiff alleges that several items of personal property, including cash and jewelry, were in the vehicle at the time of repossession and that Defendant has failed to return these items. Upon conclusion of a bench trial, the lower court entered a final order on November 26, 2002, awarding Plaintiff damages in the amount of $15,099. Notice of appeal was then filed on December 20, 2002 by "Darin Marshall, d/b/a Marshall Recovery." An amended notice of appeal was thereafter filed on January 2, 2003, purporting to add "Marshall's Recovery Services, Inc." as a party to the appeal. For the following reasons, we find that notice of appeal in this matter was not timely filed and, consequently, that we lack jurisdiction to hear the appeal. http://www.tba.org/tba_files/TCA/legens.wpd JASON BLAKE BRYANT v. STATE OF TENNESSEE Court:TCCA Attorneys: Paul G. Whetstone, Mosheim, Tennessee, for the appellant, Jason Blake Bryant. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Eric Christiansen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner filed a Petition for Post-conviction Relief September 26, 2001. After holding a hearing on the petition, the trial court denied the petition. The petitioner appealed the trial court's decision. We have reviewed the petitioner's many issues, including allegations of ineffective assistance of counsel and entry of an involuntary guilty plea, and we affirm the trial court's decision to deny the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/bryantjason.wpd STATE OF TENNESSEE v. MICHAEL LENARD HALL Court:TCCA Attorneys: Mark Stephens, Knoxville, Tennessee (at trial); and Wade V. Davies, Knoxville, Tennessee (on appeal), for the Appellant, Michael Lenard Hall. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jo Helm, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Michael Lenard Hall appeals from his Knox County Criminal Court conviction of first degree murder of his ex-wife, Pamela Hall. He claims that insufficient evidence supports his conviction, that the jury instructions were flawed, and that the prosecution denied him a fair trial through improper questioning of witnesses and improper argument. Because we agree with the defendant that the state failed to present sufficient proof of premeditation, we modify the first degree murder conviction and impose a second degree murder conviction in its place. However, we are unpersuaded of error warranting a new trial. We remand for sentencing on the second degree murder conviction. http://www.tba.org/tba_files/TCCA/hallmichaellenard.wpd STATE OF TENNESSEE V. DARRELL DAVON KING Court:TCCA Attorneys: Theodora A. Pappas, Nashville, Tennessee, for the appellant, Darrell Davon King. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bernard McEvoy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: After being indicted on two counts of rape by force, two counts of rape, two counts of incest, and one count of sexual battery, the appellant, Darrell Davon King, pled guilty to two counts of rape, for which he received two, concurrent eight-year sentences at 100% service. The manner of the service of the sentences was left open. The trial court subsequently ordered the appellant to serve the sentences in incarceration. On appeal, the appellant argues that the trial court erred in denying him probation or community corrections. Upon review of the record and the parties' briefs, we conclude that the trial court erred in failing to state on the record its reasons for denying probation and/or a community corrections sentence. As a result we REVERSE the trial court's sentencing order and REMAND with directions that the trial court make specific findings of fact with respect to its sentencing determinations http://www.tba.org/tba_files/TCCA/kingdarrell.wpd JOE DAVIS MARTIN v. STATE OF TENNESSEE Court:TCCA Attorneys: David M. Hopkins (on appeal) and Mike Anderson (at hearing), Nashville, Tennessee, for the appellant, Joe Davis Martin. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Thomas B. Thurman, Deputy District Attorney General; and Katrin Novak Miller, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner appeals the denial of his post-conviction relief petition relating to his convictions for first degree murder, attempted first degree murder, and attempted second degree murder. On appeal, the petitioner contends: (1) the state withheld exculpatory evidence; (2) the state failed to correct perjured testimony at trial; and (3) he received ineffective assistance of counsel at trial. Upon review of the record and the applicable law, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/martinjoe.wpd STATE OF TENNESSEE v. ROBERT SIMERLY Court:TCCA Attorneys: Clifton Corker, Johnson City, Tennessee, for the Appellant, Robert Simerly. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General; Joe Crumley, District Attorney General; and Ken Baldwin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Robert Simerly, appeals from his Johnson County Criminal Court conviction of first degree felony murder. On appeal, he claims: 1. The convicting evidence is insufficient. 2. The trial court erred in allowing evidence of non-testifying co-defendants' and accomplices' statements that inculpated the defendant. 3. The trial court erred in denying a mistrial when (a) an officer testified that, during pretrial questioning, the defendant requested an attorney, and (b) another witness testified that he had been threatened during the trial. 1. The trial court erred in the admission of expert testimony. 5. The trial court erred in the admission of a prejudicial videotape that depicted the deceased victim's face. 6. The trial court erred in excluding the defendant's proffered evidence of judgments of convictions of two state witnesses. 7. The trial court erred in failing to instruct the jury on a lesser included offense. Discerning no reversible error in the proceedings below, we affirm the judgment. http://www.tba.org/tba_files/TCCA/simerlyrobert.wpd KEVIN TATE, PRO SE v. BRUCE WESTBROOK, WARDEN Court:TCCA Attorneys: Kevin Tate, pro se. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The Petitioner, Kevin Tate, 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 cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/tatek.wpd Implementation of 2003 Pub. Ch. 344 (Tennessee Commission of Indian Affairs) Date: March 3, 2004 Opinion Number: 04-032 http://www.tba.org/tba_files/AG/2004/op32.pdf Constitutionality of legislation prohibiting the issuance or renewal of license plates depicting the confederate flag. Date: March 4, 2004 Opinion Number: 04-033 http://www.tba.org/tba_files/AG/2004/op33.pdf Amendment to Pawnbroker Statute Date: March 8, 2004 Opinion Number: 04-034 http://www.tba.org/tba_files/AG/2004/op34.pdf Authority Of Tennessee Department Of Transportation To Investigate Alleged Violations Of Tennessee Water Quality Control Act Date: March 9, 2004 Opinion Number: 04-035 http://www.tba.org/tba_files/AG/2004/op35.pdf 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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