Opinion FlashApril 13, 2004
Volume 10 Number 071
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):
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Howard H. Vogel
CITY OF CHATTANOOGA v. CINEMA 1, INC., ET AL. Court:TCA Attorneys: H. Louis Sirkin, Jennifer M. Kinsley, Cincinnati, Ohio, John Herbison, Nashville, Tennessee, and Arvin H. Reingold, Chattanooga, Tennessee, for the Appellants Cinema 1, Inc., and David Franklin. Phillip A. Noblett and Jennifer T. Flowers, Chattanooga, Tennessee, for the Appellee City of Chattanooga. Judge: SWINEY First Paragraph: David Franklin ("Franklin") operates an adult bookstore in Chattanooga known as Cinema 1, Inc. ("Cinema 1"). Numerous undercover visits by Chattanooga Police Department officers discovered a significant amount of sexual activity happening at Cinema 1. This sexual activity violated the Chattanooga city ordinance regulating adult oriented establishments. Based on police reports detailing what the undercover officers observed at Cinema 1, the Mayor of Chattanooga revoked Franklin's adult oriented establishment license, a decision later affirmed by the Chattanooga City Council and then the Trial Court. The primary issues on appeal concern whether the Chattanooga ordinance regulating adult oriented establishments provides the necessary procedural safeguards required by the First Amendment to be considered facially constitutional under the federal Constitution. We conclude the licensing scheme provides the necessary First Amendment procedural safeguards. We further conclude that there was sufficient evidence presented to revoke Franklin's license. The judgment of the Trial Court, therefore, is affirmed. http://www.tba.org/tba_files/TCA/cinema1.wpd
JULIE JILES, ET AL. v. STATE OF TENNESSEE Court:TCA Attorneys: James L. Milligan, Jr., Knoxville, Tennessee, for the Appellants, Julie Jiles and husband, Bryan Jiles. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mary M. Bers, Senior Counsel, for the Appellee, State of Tennessee. Judge: SWINEY First Paragraph: Julie Jiles ("Plaintiff") and her husband, Bryan Jiles , sued the State of Tennessee ("State") for medical malpractice regarding medical care Plaintiff received at the Sevier County Health Department. The case was tried before the Claims Commission and an Order of Judgment was entered in March of 2003, holding, inter alia, that the standard of care was not breached and dismissing Plaintiff's case. In dicta, the Judgment also suggested that another health care provider was the proximate cause of Plaintiff's damages. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/jilesj.wpd
SIERRA SUMMERALL v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL. Court:TCA Attorneys: Sierra Summerall, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Stephen R. Butler, Assistant Attorney General, for the appellees, Tennessee Department of Correction, Lt. Cheryl Hargett, James M. Dukes, and Donal Campbell. Judge: KOCH First Paragraph: This appeal arises from a prisoner disciplinary proceeding at the West Tennessee State Penitentiary. After a disciplinary board punished him for possession of marijuana, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Department of Correction had deprived him of due process by substantially departing from its Uniform Disciplinary Policies. The trial court dismissed the petition because it was not timely filed. The prisoner has appealed. We affirm the trial court. http://www.tba.org/tba_files/TCA/summeralls.wpd
STATE OF TENNESSEE v. CLIFTON BROWN Court:TCCA Attorneys: Larry Samuel Patterson, Jr., Columbia, Tennessee, for the appellant, Clifton Brown. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Mike Bottoms, District Attorney General; Larry Nickell, Assistant District Attorney General; and Brent Cooper, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Clifton Brown, was indicted on one count of first degree felony murder of John Maupin, one count of premeditated first degree murder of John Maupin, one count of aggravated burglary of Ricky Howard's home, and one count of especially aggravated kidnapping of John Maupin. Prior to the case going to the jury, the State asked for and received a nolle prosequi as to the charge of premeditated first degree murder. Following a jury trial, Defendant was found guilty of especially aggravated kidnapping and aggravated burglary. The jury found Defendant not guilty of first degree felony murder, and found Defendant guilty of the lesser included offense of reckless homicide. Defendant waived a sentencing hearing and agreed to be sentenced as a Range I, standard offender, to twenty years for the especially aggravated kidnapping conviction, three years for the aggravated burglary conviction and two years for the reckless homicide conviction, with all sentences to run concurrently. Defendant appealed the sufficiency of the convicting evidence for all three convictions. In his brief, however, Defendant limits his argument on appeal to the sufficiency of the evidence pertaining to his conviction for especially aggravated kidnapping, and Defendant does not present any argument to support his contention that the evidence was insufficient to sustain his convictions for reckless homicide and aggravated burglary. Defendant has thus waived a review of the issues pertaining to his aggravated burglary and reckless homicide convictions. Tenn. R. Crim. P. 10(b). After a thorough review of the record, we affirm all three judgments of the trial court. http://www.tba.org/tba_files/TCCA/brownclifton.wpd
JERRY MITCHELL v. STATE OF TENNESSEE Court:TCCA Attorneys: Cynthia F. Burns, Nashville, Tennessee, for the Appellant, Jerry Mitchell. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Doug Thurman, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Jerry Mitchell appeals from the Davidson County Criminal Court's denial of his petition for post- conviction relief, in which he claimed that his guilty plea to the offense of attempted first degree murder was involuntary because his attorney erroneously advised him that he would serve only three years of his fifteen year sentence. The lower court found that the petitioner failed to prove his claim by clear and convincing evidence and denied relief. Because the petitioner has not carried his appellate burden of demonstrating error in the lower court's ruling, we affirm. http://www.tba.org/tba_files/TCCA/mitchelljerry.wpd
STATE OF TENNESSEE v. PAUL E. ORR, JR. Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellant, State of Tennessee. Walter W. Bussart, Lewisburg, Tennessee, for the appellee, Paul E. Orr, Jr. Judge: TIPTON First Paragraph: The Marshall County Circuit Court ruled that T.C.A. S 55-10-403(n), which effectively allows Davidson County to have first-time DUI offenders perform public service instead of serving a jail sentence, violates equal protection rights and that the doctrine of elision renders the general DUI sentencing statute, T.C.A. S 55-10-403, unconstitutional. The state appeals, claiming (1) that the defendant's constitutional challenge to the statute was not properly before the circuit court and (2) that T.C.A. S 55-10-403 and subsection (n) are constitutional. We hold that the defendant's constitutional challenge to T.C.A. S 55-10-403(n) was properly before the circuit court but fruitless. In addition, we hold that even if subsection (n) were unconstitutional, the general DUI sentencing statute would remain in effect. We reverse the trial court's order dismissing the defendant's conviction. http://www.tba.org/tba_files/TCCA/orrpaule.wpd
STATE OF TENNESSEE v. JOSEPH RUSHING Court:TCCA Attorneys: William B. Lockert, III, District Public Defender; and Richard D. Taylor, Jr., Assistant Public Defender, for the appellant, Joseph Rushing. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Joseph Rushing, was indicted for one count of rape of a child and one count of aggravated sexual battery. Following a jury trial, the jury found Defendant guilty of count one, rape of a child. The State entered a nolle prosequi as to count two, aggravated sexual battery. Following a sentencing hearing, the trial court sentenced Defendant to twenty-three years imprisonment. On appeal, Defendant argues that (1) the trial court erred in allowing Defendant's statements to the police to be introduced at trial; (2) the sentence imposed on Defendant was excessive; (3) the evidence was insufficient to support Defendant's conviction for rape of a child; and (4) Defendant's conviction and sentence violated principles of fundamental fairness. After a careful review of the record in this matter, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/rushingjoseph.wpd
STATE OF TENNESSEE v. ANTHONY LAMONT SINGLETON Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender, and William Andrew Kennedy, Assistant Public Defender, for the appellant, Anthony Lamont Singleton. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kent L. Chitwood, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Anthony Lamont Singleton, pled nolo contendere to aggravated assault, a Class C felony; possession of marijuana, fourth offense, a Class E felony; evading arrest and possession of drug paraphernalia, Class A misdemeanors; and resisting arrest, a Class B misdemeanor. The trial court sentenced him as a Range I, standard offender to an effective five-year sentence. After a sentencing hearing, the trial court ordered that he serve his sentences in confinement. The defendant appeals, claiming that the trial court should have sentenced him to community corrections. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/singletonanthonyl.wpd
STATE OF TENNESSEE v. DAVID K. WACHTEL, III Court:TCCA Attorneys: Joshua G. Strickland, Nashville, Tennessee, for the appellant, David K. Wachtel, III. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Cara Harr and Joe James, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, David K. Wachtel, III, was convicted in the Sumner County Criminal Court of three counts of domestic assault. The trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Sumner County Jail for each conviction, with one sentence consecutive to the other two, and placed the appellant on probation. On appeal, the appellant raises issues concerning the trial court's rulings, the sufficiency of the evidence supporting his convictions, and sentencing. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/wachteldk.wpd
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