Opinion FlashApril 15, 2004Volume 10 — Number 73 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 ALICE JUNE ATKINS and CLARA OLLIE NEEDHAM v. STATE OF TENNESSEE Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Dawn Jordan and Sarah T. Chambers, Assistant Attorneys General, Nashville, Tennessee, for Appellant. Mark S. Stapleton, Rogersville, Tennessee, for Alice June Atkins. D. Scott Hurley, Knoxville, Tennessee, for Clara Needham. W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for Appellees on Appeal Only. Judge: FRANKS First Paragraph: The Claims Commissioner awarded damages for personal injuries to claimants on grounds the State was liable under Tennessee Code Annotated S 9-8-307(a)(1)(I). On appeal, we affirm. http://www.tba.org/tba_files/TCA/atkinsa.wpd JJ & TK CORP., ET AL. v. BOARD OF COMMISSIONERS OF THE CITY OF FAIRVIEW, TENNESSEE, ET AL. Court:TCA Attorneys: A. Scott Derrick and Phillip P. Welty, Nashville, Tennessee, for the appellants, JJ & TK Corp., Joanne McCord, Jeff McCord, Kristin Mathes and Tim Mathes. James D. Petersen, Franklin, Tennessee, for the appellees, Board Of Commissioners of the City of Fairview, Tennessee, Eddie Arney, Ken Brison, Wayne Hall, Mayor Darrell Mangrum, Vice-Mayor Stuart Johnson, and the City of Fairview Tennessee. Judge: WEATHERFORD First Paragraph: In this case the defendant, the Board of Commissioners of the City of Fairview, declined to grant a certificate of compliance to the plaintiffs, who sought to operate a retail liquor store at the entrance of Bowie Nature Park in Fairview, Tennessee. The plaintiffs contend they met all the legal requirements in effect at the time of their application; and that the defendant based its decision on a pending ordinance which required a minimum distance of 1000 feet between liquor stores and public parks. The trial court granted summary judgment for the defendant. We reverse the decision of the trial court. http://www.tba.org/tba_files/TCA/jj.wpd IN RE: ESTATE OF HARRY SANDERS Court:TCA Attorneys: Ted W. Daniel, Shelbyville, Tennessee, for the appellant, Marshall Sanders. Anthony W. Harris, Shelbyville, Tennessee, for the appellee, Estate of Harry Sanders, Rosalyn Vine, Executrix. Judge: COTTRELL First Paragraph: A fifty-two year old man brought a claim against his father's estate for twenty-seven semesters of post-secondary educational expenses, contending that the father had agreed to pay those expenses as part of a Michigan divorce settlement thirty-five years earlier, but had failed to make more than a nominal payment. The trial court dismissed the claim. The son argues on appeal that a correct interpretation of the relevant choice of law statutes would have compelled the trial court to approve his claim. We do not agree, and we affirm the trial court. http://www.tba.org/tba_files/TCA/sandersh1.wpd DANIEL LEE STEVENSON v. TRACY DAWN STEVENSON Court:TCA Attorneys: Robert D. Massey, Pulaski, Tennessee, for the appellant, Tracy Dawn Stevenson. Jon S. Jablonski, Nashville, Tennessee, for the appellee, Daniel Lee Stevenson. Judge: FARMER First Paragraph: This appeal arises from the trial court's award of primary residential custody of the parties' minor children to their father. We affirm. http://www.tba.org/tba_files/TCA/stevensd.wpd STATE OF TENNESSEE v. ALLISON L. BREWINGTON Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; William J. Steed, Assistant Public Defender (on appeal) for the Appellant, Allison L. Brewington. 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 Angelita Dalton, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Allison L. Brewington, appeals the decision of the Davidson County Criminal Court revoking his probation and ordering reinstatement of his original sentence. Brewington pled guilty to the aggravated assault of his girlfriend on October 28, 2002, and received a four-year suspended sentence. On December 5, 2002, a warrant was issued, alleging that Brewington violated his probation by harassing the victim on two occasions and failing to report his arrests for these offenses to his probation officer. On appeal, Williams raises the following issues for our review: (1) whether the trial court erred in revoking his probation because the State failed to prove by a preponderance of the evidence that he was guilty of harassment, (2) whether the trial court erred by requiring him to serve his entire sentence in confinement, and (3) whether the trial court improperly considered allegations not contained within the violation warrant. After review, we find that the trial court did not abuse its discretion by revoking Brewington's probation and ordering reinstatement of his original four-year sentence. http://www.tba.org/tba_files/TCCA/brewing.wpd STATE OF TENNESSEE v. RAFAEL A. BUSH Court:TCCA Attorneys: Terry A. Fann, Murfreesboro, Tennessee, for the appellant, Rafael A. Bush. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarborough, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Paul A. Holcombe, III, and John W. Price, III, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Rutherford County Circuit Court jury convicted the defendant, Rafael A. Bush, of especially aggravated robbery, a Class A felony; aggravated burglary, a Class C felony; and aggravated assault, a Class C felony. The trial court sentenced him as a violent offender to twenty-two years for the robbery conviction, four years for the burglary conviction, and four years for the assault conviction, all to run concurrently. The defendant appeals, claiming that (1) the evidence is insufficient to support his convictions; (2) the trial court erred by allowing the jury to hear about the defendant's other bad acts; (3) the trial court erred by refusing to allow the defense to cross-examine Detective Dan Goodwin about the victim's identifying someone other than the defendant as the person who shot the victim; (4) the trial court erred by allowing the state to ask Detective Goodwin questions on redirect examination that were outside the scope of his cross-examination testimony; (5) the trial court erred by refusing to allow the defense to ask codefendant Michael May a question in order to show his bias against the defendant; (6) the trial court erred by allowing a witness to testify for the state when the witness was not on the state's witness list and her testimony was irrelevant; (7) the trial court erred by telling the jury that the state dismissed an attempted first degree murder charge against the defendant; (8) a new trial is warranted because the state failed to prove that the crimes were committed before the indictment was returned as required by T.C.A. S 39-11-201(a)(4); (9) the trial court erred by refusing to charge attempt as a lesser included offense; (10) the defendant's sentence for especially aggravated robbery is excessive; and (11) cumulative errors denied the defendant his right to a fair trial. We conclude that the trial court erred by allowing the jury to hear about the defendant's other bad acts and by refusing to allow the defense to ask Michael May a question but that these errors do not warrant reversal. We also conclude that the defendant's sentence is not excessive, and we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/bushra.wpd STATE OF TENNESSEE v. RICKY ALLEN DAVIS Court:TCCA Attorneys: David O. McGovern, Assistant Public Defender, Jasper, Tennessee, for the appellant, Ricky Allen Davis. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Ricky Allen Davis, was convicted by a Franklin County Jury of one count of assault, a Class A misdemeanor; two counts of vandalism under $500, Class A misdemeanors; and one count of disorderly conduct, a Class C misdemeanor. Following a sentencing hearing, the trial court sentenced the appellant on each of the Class A misdemeanors to eleven months and twenty-nine days confinement and on the Class C misdemeanor to thirty days confinement to be served in the county jail at seventy-five percent. On appeal, the appellant contends that the trial court erred by allowing the victim's mother to testify at the sentencing hearing regarding the victim's nightmares resulting from the assault. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/davisra.wpd THOMAS WILLIAM FARR v. STATE OF TENNESSEE Court:TCCA Attorneys: David M. Hopkins, Nashville, Tennessee, for the appellant, Thomas William Farr. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Tom Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, Thomas Farr, pled guilty to one count of second degree murder and two counts of solicitation to commit first degree murder. In accordance with the plea agreement, the Defendant was sentenced to thirty years on the murder charge and to eight years on each of the solicitation charges, which terms were concurrent to each other but consecutive to the thirty year term, for an effective sentence of thirty-eight years. The Defendant subsequently filed for post-conviction relief on the grounds that his lawyer was ineffective and that his plea was not knowingly and voluntarily entered. After a hearing, the trial court denied relief. This appeal followed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/farr.wpd MONOLETO D. GREEN v. STATE OF TENNESSEE Court:TCCA Attorneys: R. Steve Waldron, Murfreesboro, Tennessee, for the Appellant, Monoleto Green. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Jennings Jones, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: CURWOOD First Paragraph: Monoleto D. Green appeals from the Rutherford County Circuit Court's denial of his petition for post-conviction relief. He claims that he did not receive the effective assistance of counsel in the conviction proceedings and, as a result, his guilty plea was involuntary. Because he has failed to demonstrate error in the lower court's ruling, we affirm. http://www.tba.org/tba_files/TCCA/greenm.wpd STATE OF TENNESSEE v. COREY LAMONT RADLEY Court:TCCA Attorneys: Emma Rae Tennent (on appeal); J. Michael Engle (at trial); and William J. Steed, Nashville, Tennessee, for the appellant, Corey Lamont Radley. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: A jury convicted the Defendant, Corey Lamont Radley, of second degree murder. The trial court subsequently sentenced him as a Range I offender to twenty-five years of incarceration. In this direct appeal, the Defendant challenges the sufficiency of the evidence; contests the admission of certain evidence; and complains that his sentence is excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/radleyc.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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