Opinion FlashMay 4, 2004Volume 10 — Number 086 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 OF TENNESSEE DEPT. OF CHILDREN'S SERVICES v. PAMELA ATKISON, et al IN THE MATTER OF T.J., DOB 2/15/99 A Child Under Eighteen Years of Age Court:TCA Attorneys: Richard W. Vaughn, Jr., Milan, TN, for Appellant Paul G. Summers, Attorney General and Reporter, Juan G. Villasenor, Assistant Attorney General, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves the termination of the parental rights of Mother and Father over Child. Only Mother appeals the Juvenile Court's decision. Specifically, the Juvenile Court found clear and convincing evidence to terminate Mother's parental rights on the basis of abandonment, persistent conditions, and noncompliance with the permanency plan. In addition, Mother appeals the trial court's denial of her motion to transfer the case and have the issue presented to a jury. Finally, Mother asserts the trial court judge erred when he did not recuse himself. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/atkins.wpd DOROTHY SUE BRYANT v. DAMON EUGENE BRYANT Court:TCA Attorneys: James H. Bradberry, Dredsen, for the appellant Dorothy Sue Bryant. Damon E. Campbell, Union City, for the appellee Damon Eugene Bryant. Judge: KIRBY First Paragraph: This case involves an antenuptial agreement. Prior to their marriage, the husband and wife entered into an antenuptial agreement which stated that each party waived his or her interest in any property acquired after the marriage in the individual spouse's name. After a nearly twenty-year marriage, the wife filed for divorce. During the divorce proceedings, the wife argued that the antenuptial agreement should not affect the trial court's division of property acquired during the marriage. The trial court enforced the antenuptial agreement, awarding all property held in the husband's name to the husband, regardless of whether it would otherwise have been classified as marital property. The wife appeals. We affirm, finding that the wife waived her interest in the property under the antenuptial agreement and that the evidence does not preponderate against either the enforceability of the agreement or the trial court's division of property. http://www.tba.org/tba_files/TCA/bryantds.wpd WAYNELL C. BURNETTE v. TEDDY SUNDEEN, ET AL.
Court:TCA
Attorneys:
Gary M. Kellar and R. Kreis White, Brentwood, Tennessee, for the
appellants, Teddy Sundeen and Elhame Dauti.
Linda G. Shown, Alcoa, Tennessee, for the appellee, Waynell C.
Burnette.
Judge: SUSANO
First Paragraph:
In this litigation arising out of an automobile accident, Waynell C.
Burnette ("the plaintiff") filed a motion asking the trial court to
sanction Teddy Sundeen and Elhame Dauti ("the defendants") for a
discovery abuse. Acting under the authority of Tenn. R. Civ. P.
37.02, the court entered a judgment by default against both defendants
and, in the same order, awarded the plaintiff damages of $100,000. The
defendants appeal, contending that they were not afforded proper
notice of the plaintiff's intention to raise the issue of damages at
the hearing on the motion for sanctions. We vacate so much of the
trial court's order as awards the plaintiff unliquidated damages of
$100,000.
http://www.tba.org/tba_files/TCA/burnette.wpd
IN RE: NELLIE ELIZABETH CROWELL Court:TCA Attorneys: Mark A. Ellmore, Jr., Nashville, Tennessee, for the appellants, Joseph H. Nickens, Katherine N. Moser, Agnes E. Baker and Dana A. Nickens. J. Frank Rudy, Jr. And W. Gregory Miller, Nashville, Tennessee, for the appellees, The Orphans' Homes Affiliated with the Free Will Baptist Church Denomination Judge: FARMER First Paragraph: This is a Will construction case. The decedent's Will provided that her estate would be distributed to her husband. However, the husband predeceased the decedent leaving no issue. The only remaining provision in the Will provided that her estate would be distributed to certain orphan's homes if she and her husband died at the same time. The trial court found it unreasonable to construe the Will to require simultaneous death and distributed the estate to the orphan's homes. We hold that the Will contains a failed condition resulting in intestate succession. We reverse and remand. http://www.tba.org/tba_files/TCA/crowellnelliee.wpd STATE OF TENNESSEE, EX REL., JOEANN KEE DAVIS v. FRANKIE LEE DAVIS Court:TCA Attorneys: Marcus M. Reaves, Denmark, Tennessee, For Appellant, Frankie Lee Davis Paul G. Summers, Attorney General and Reporter; Warren A. Jasper, Assistant Attorney General, For Appellee, State of Tennessee ex rel., Joeann Kee Davis Judge: CRAWFORD First Paragraph: Appellant seeks relief, under Tenn. R. Civ. P. 60.02, from final order setting child support obligations. Finding no extraordinary circumstances, extreme hardship, or excusable neglect, we affirm. http://www.tba.org/tba_files/TCA/davisjoeann.wpd PATRICIA ARCHARD DELL, Admrx. Of the Estate of James A. Archard v. CECELIA PAYNE WRIGHT, Personal Representative of Earnest Payne, Jr., Deceased Court:TCA Attorneys: Leonard E. Van Eaton, Memphis, TN, for Appellant Bruce A. McMullen, Craig C. Conley, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: Plaintiff brought suit alleging that Defendant committed medical malpractice in the treatment of Plaintiff's deceased father. Upon conclusion of the trial, the jury found that Plaintiff knew or should have known that Defendant's negligence caused injury to her father more than one year prior to commencement of Plaintiff's suit. Consequently, the trial court entered judgment on the verdict for Defendant, finding that Plaintiff's action is barred by the applicable one-year statute of limitations. Plaintiff appeals the verdict of the jury. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/dellp.wpd DANIEL HAMILTON v. T & W OF KNOXVILLE, INC., d/b/a LEXUS OF KNOXVILLE Court:TCA Attorneys: William Turner Boone and M. Douglas Campbell, Jr., Knoxville, Tennessee, attorneys for appellant, Daniel Hamilton. Albert J. Harb and Kristi M. Davis, Knoxville, Tennessee, attorneys for appellee, T & W of Knoxville, Inc., d/b/a Lexus of Knoxville. Judge: INMAN First Paragraph: By special verdict the jury found that the defendant automobile dealer willfully and knowingly violated the Consumer Protection Act by selling the Plaintiff a used Lexus automobile that had been wrecked but nevertheless was a certified vehicle under the manufacturer's guidelines. More than a year later - after the Plaintiff himself wrecked the vehicle and drag-raced it various times - he discovered that some panels had been re-painted, leading to the conclusion that the vehicle had been wrecked before he purchased it. The dealer agreed to repurchase the vehicle which was left in its charge, but the Plaintiff, after consulting counsel, returned to the Defendant's place of business and removed the vehicle. The jury assessed damages of $4000.00, remitted to $2500.00. The Plaintiff moved for treble damages and attorney fees: the Defendant moved for judgment NOV, because the issue of "willful and knowing" violation of the Tennessee Consumer Protection Act is a question of law for the court. The motion for judgment NOV was granted. Plaintiff was awarded $5000.00 attorney fees which he claims is inadequate. We affirm. http://www.tba.org/tba_files/TCA/hamilton.wpd STACEY G. HILL v. DONNA ELIZABETH FRAZIER HILL
Court:TCA
Attorneys:
Glenna M. Ramer, Chattanooga, Tennessee, for the appellant, Stacey G.
Hill.
William H. Horton, Chattanooga, Tennessee, for the appellee, Donna
Elizabeth Frazier Hill.
Judge: SUSANO
First Paragraph:
Donna Elizabeth Frazier Hill ("Mother") filed a complaint against
Stacey G. Hill ("Father") seeking to modify the parties' Permanent
Parenting Plan ("the parenting plan"). Father responded and filed a
counterclaim. Mother proposed a revised plan that would reduce
Father's visitation time and increase his child support obligation.
The trial court denied Mother's revised plan with respect to the
oldest child, but granted her proposed changes with respect to the
other children. The trial court designated Father as the primary
residential parent of the oldest child and increased his child support
obligation for the younger children; however, the trial court refused
to order Mother to pay child support for the oldest child on the
ground that Father "has not required the [oldest] child to comply with
the original Parenting Plan based on the child's expressed desires."
Father appeals, arguing that the trial court erred in deviating from
the Child Support Guidelines ("the Guidelines") based upon the ground
espoused by the court. We vacate so much of the trial court's order
as absolves Mother of any obligation to support the oldest child in
the custody of Father.
http://www.tba.org/tba_files/TCA/hillsg.wpd
MELISSA FRAZIER NORWOOD HOFFMEISTER now BRINK v. JOHN KENNETH HOFFMEISTER Court:TCA Attorneys: Melissa Hoffmeister Brink, Abita Springs, Louisiana, Pro Se. Wayne Decatur Wykoff, Knoxville, Tennessee, for appellee, John Kenneth Hoffmeister. Judge: INMAN First Paragraph: The custody of a four-year old boy is the pivotal issue in this case. The Chancellor found that the father was the better qualified to be the primary residential custodian of his son following a recitation of the bizarre conduct of the mother. We affirm. http://www.tba.org/tba_files/TCA/hoffmeist.wpd SAMUEL HUMPHREYS v. RICHARD SELVEY Court:TCA Attorneys: S. Russell Headrick and Jennifer Marie Eberle, Memphis, For Appellant, Samuel Humphreys Bill M. Wade, Memphis, For Appellee, Richard Selvey Judge: CRAWFORD First Paragraph: Plaintiff, Tennessee buyer, filed complaint in Shelby County, Tennessee circuit court against South Carolina seller for fraudulent, unlawful, and tortious conduct in connection with contract for purchase of antique soda dispensers. Seller filed motion to dismiss, alleging as grounds lack of personal jurisdiction and improper venue, and trial court granted motion on both grounds. Buyer appeals trial court's finding that there were insufficient contacts to establish personal jurisdiction of seller. We reverse and remand. http://www.tba.org/tba_files/TCA/humphr.wpd JONATHAN INMAN, ET AL. v. WILBUR S. RAYMER, ET AL.
Court:TCA
Attorneys:
C. Douglas Fields, Crossville, Tennessee, for the appellants, Jonathan
Inman and wife, Keena Inman.
No brief filed on behalf of the appellees, Wilbur S. Raymer and wife,
Lois O. Raymer.
Judge: SUSANO
First Paragraph:
The real property addressed in the complaint was sold at a tax sale on
March 20, 2002. That sale was confirmed by a judgment of the trial
court entered April 4, 2002. The sale was prompted by the apparent
nonpayment of 1996 property taxes. When the defendants, Wilbur S.
Raymer and wife, Lois O. Raymer ("the previous owners"), failed to
avail themselves of their right to redeem the property "within one (1)
year after entry of [the] order of confirmation of the tax sale" see
Tenn. Code Ann. S 67-5-2702(a) (2003), the plaintiffs, Jonathan Inman
and wife, Keena Inman ("the present owners") - who had received title
to the property as a result of a Clerk & Master's Deed dated April 4,
2003 - filed a complaint against the previous owners to quiet title.
The trial court, acting sua sponte, dismissed the complaint, but did
so without prejudice. The court concluded that Tenn. Code Ann. S
67-5-2504(d) (2003) prevents the present owners from suing to quiet
title prior to the expiration of the three-year period set forth in
that statute. The present owners appeal. We affirm.
http://www.tba.org/tba_files/TCA/Inman.wpd
WAYNE JERROLDS v. ROBERT D. KELLEY and wife, MITSY KELLEY v. EDDIE K. WHITLOW, TRUSTEE FOR THE HARDIN COUNTY BANK Court:TCA Attorneys: Ken Seaton, Selmer, TN, for Appellants Dennis W. Plunk, Savannah, TN, for Appellee Judge: HIGHERS First Paragraph: This cases involves an action for declaratory judgment regarding an easement for the benefit of a landlocked parcel. The lower court found that an easement does exist and that the owners of the servient parcel are not entitled to monetary damages. On appeal, the owners of the servient parcel maintain that the lower court demonstrated bias in its comments from the bench and, further, that it erred in failing to award damages. For the following reasons, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/jerrold.wpd JOHN W. JOHNSON v. BERNICE WADE Court:TCA Attorneys: John W. Johnson, Trenton, TN, pro se John C. Nowell, Jr., Trenton, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves a dispute over the ownership of certain real property abutting the parcels of two neighboring landowners in Gibson County, Tennessee. The trial court rendered a judgment for Appellee finding that Appellee owned the disputed property. Additionally, the trial court awarded Appellee her attorney's fees incurred in defending against and counter-suing the Appellant. We affirm the trial court and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/johnsonjohnw.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. SANDRA LILLY IN THE MATTER OF: K.M. , DOB 7/6/88, A CHILD UNDER EIGHTEEN YEARS OF AGE Court:TCA Attorneys: Renee M. Creasy, Dyersburg, TN, for Appellant Paul G. Summers, Attorney General & Reporter, Elizabeth C. Driver, Assistant Attorney General, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This case arises from the termination of parental rights of Mother and Father. Only Mother has appealed the decision of the trial court, terminating her parental rights on the grounds that (1) she abandoned Child by failing to visit, (2) she abandoned Child by failing to provide more than token support, and (3) the conditions which led to Child's removal still persist. Mother appeals arguing that the State of Tennessee Department of Children's Services failed to carry its burden of proof for these grounds. In addition, Mother argues that the Department of Children's Services failed to prove that such termination of parental rights is in the best interest of Child. Finally, Mother argues the trial court committed prejudicial error when it allowed the rebuttal testimony of a witness in violation of the sequestration rule. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/lilly.wpd JIMMIE LIPFORD, ET AL. v. FIRST FAMILY FINANCIAL SERVICES, INC., ET AL. Court:TCA Attorneys: Andrew S. Johnston, Somerville, Tennessee and Michael D. Hickman, Mobile, Alabama, for the Appellants, Tom Brown and Ora Polk. Leo Bearman, Jr., Eugene J. Podesta, Jr., and R. Alan Pritchard, Memphis, Tennessee, for the Appellees, First Family Financial Services, Inc., First Family Financial Services Management Corp., Associates Financial Services Company of Tennessee, Associates Investment Corporation, Associates Corp. of North America, Associates First Capital Corporation, Citigroup Inc., Citifinancial Credit Company, Stacy Powell, Lori Lax, Mary Robinson and Tammy Harper. Judge: FARMER First Paragraph: Plaintiffs in this lawsuit seek damages for fraud and under the Tennessee Consumer Protection Act. The trial court excluded parol evidence and awarded Defendant summary judgment. We reverse. http://www.tba.org/tba_files/TCA/lipford.wpd JAMES L. PEACH, ET UX. v. ROBERT WESLEY MEDLIN, ET AL. Court:TCA Attorneys: Phillip G. Hollis, Camden, For Appellants, Robert Wesley Medlin, Jimmy D. Medlin and Christopher D. Medlin Charles N. Griffith, Waverly, For Appellees, James L. Peach and wife, Venetia K. Peach Judge: CRAWFORD First Paragraph: Land owner filed complaint alleging trespass and seeking the removal of structures and signs erected by appellants encroaching upon his property. Owner further sought injunction prohibiting appellants from continued, unauthorized use of roads running across his property. The trial court found that appellants had an easement for use of one of two roads. The trial court's final order granted owner's request for attorney's fees. Both parties raise issues on appeal. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/peachj.wpd MOHAMMAD RAFIEETARY v. MARYAM KHOSHROO RAFIEETARY Court:TCA Attorneys: Kathleen D. Norfleet, J. Michael Fletcher, Steven R. Walker, Memphis, TN, for Appellant Stevan L. Black, John C. Ryland, Vickie Hardy Jones, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This case concerns issues of alimony, child support, and dependency exemptions, arising from the divorce of Husband and Wife. Following a hearing, the trial court awarded Wife rehabilitative alimony, ordered Husband to pay 80% of Child's uninsured medical expenses over $500, awarded each party the dependency exemption for Child on alternating years, and ordered Husband to pay for Child's violin lessons and Boy Scout expenses. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/rafiee.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. JULIE ANN TAYLOR & BRIAN K. TAYLOR IN THE MATTER OF S.A.T. & B.K.T., CHILDREN UNDER EIGHTEEN YEARS OF AGE Court:TCA Attorneys: Josh K. Polk, Waynesboro, TN, for Appellant Paul G. Summers, Attorney General and Reporter, Dianne Stamey Dycus, Deputy Attorney General, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves the termination of Mother's and Father's parental rights to their children, though only Mother appeals the decision of the Juvenile Court. After conducting a hearing, the lower court found that there was clear and convincing evidence to terminate Mother's parental rights on the bases of persistent conditions, noncompliance with the permanency plan, and abandonment. On appeal, Mother challenges each of the three grounds given for termination. For the following reasons, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/satbkt.wpd KELVIN SHOUGHRUE, ET AL. v. ST. MARY'S MEDICAL CENTER, INC., ET AL. Court:TCA Attorneys: W. Morris Kizer, Knoxville, Tennessee, for the Appellants, J.D. Lee and the law firm of Lee, Lee & Lee. Amelia G. Crotwell and Farrell A. Levy, Knoxville, Tennessee, for the Appellees, L. Martin McDonald and McDonald, Levy & Taylor. Brian H. Trammell, Knoxville, Tennessee, for the Appellee, Jennifer Bjornstad. Judge: SWINEY First Paragraph: In this appeal in a medical malpractice lawsuit, the Appellants, J.D. Lee and the law firm of Lee, Lee & Lee, contend that the Knox County Circuit Court erred in its award of attorneys' fees. We affirm the judgment of the Trial Court and remand. http://www.tba.org/tba_files/TCA/shoughr.wpd STATE OF TENNESSEE v. TYRIE BROWN Court:TCCA Attorneys: David O. McGovern, Jasper, Tennessee, for the appellant, Tyrie Brown. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Franklin County jury convicted the Defendant, Tyrie Brown, of possession with intent to deliver more than 0.5 grams of cocaine, assault and resisting arrest. The trial court sentenced the Defendant to thirteen years for the possession conviction and ninety days on both the assault conviction and the resisting arrest conviction. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. Finding no reversible error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/brownt.wpd STATE OF TENNESSEE v. PATRICK D. COLLINS Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Scott R. McMurtry, Assistant District Attorney General, for the appellant, State of Tennessee. V. Michael Fox, Nashville, Tennessee, for the appellee, Patrick D. Collins. Judge: WILLIAMS First Paragraph: The trial court dismissed count two of this indictment charging the violation of the implied consent law and barred the State from arguing in the defendant's trial for DUI that he knew he would suffer a loss of driver's license if he refused the breath test. The State appeals. We conclude that the defendant was sufficiently advised of the possible suspension of his driver's license upon his refusal to submit to testing to satisfy the warning requirement of Tennessee Code Annotated section 55-10- 406(a)(2). The defendant need not be advised of the correct and exact term of the suspension in order to satisfy the statutory warning requirements. The defendant was advised that he would suffer a loss of driver's license if he refused the breath test. We reverse the trial court's dismissal of the violation of implied consent law. Likewise, we reverse the trial court's limiting the State from arguing that the defendant knew he would suffer a loss of driver's license if he refused the breath test. Accordingly, we remand for trial consistent with this opinion. http://www.tba.org/tba_files/TCCA/collinspd.wpd STATE OF TENNESSEE v. ANTHONY CROWE WITH DISSENTING OPINION Court:TCCA Attorneys: Pamela Dewey-Rodgers, Selmer, Tennessee (at trial); and Karen T. Fleet, Bolivar, Tennessee (at trial and on appeal), for the Appellant, Anthony Crowe. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, Anthony Crowe, appeals as of right the McNairy County Circuit Court's denial of his motion to withdraw his guilty plea to facilitation of first degree murder, for which he is serving a sentence of eighteen years in the Department of Correction. He also complains that the length of his sentence is excessive and should be modified. We conclude that the defendant has failed to establish that the trial court abused its discretion in denying the motion to withdraw the guilty plea. Additionally, we find no error in the sentence imposed by the trial court. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/croweanthony_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/croweanthony_dis.wpd STATE OF TENNESSEE v. STANLEY RAY DAVIS IN RE: RAY D. DRIVER, d/b/a DRIVER BAIL BONDS ORDER Court:TCCA Judge: PER CURIAM First Paragraph: Upon its own motion, the court hereby withdraws the opinion and vacates the judgment previously filed on April 26, 2004, in this case. A new opinion and judgment will be filed. ORDER http://www.tba.org/tba_files/TCCA/daviss.wpd STATE OF TENNESSEE v. RONALD FIELDING Court:TCCA Attorneys: David G. Hirshberg, Nashville, Tennessee, for the appellant, Ronald Fielding. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bernard McEvoy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Ronald Fielding, pled guilty to three counts of rape of a child, one count of rape of an incapacitated victim and two counts of aggravated sexual battery. Following a sentencing hearing, the trial court imposed an aggregate sentence of fifty years in prison to be served at 100 percent. On appeal, the Defendant contends that: (1) the trial court improperly weighed the enhancement and mitigating factors; (2) the trial court abused its discretion by ordering that his sentences run consecutively; and (3) his sentence is excessive. Finding no error, we affirm the trial court's judgments. http://www.tba.org/tba_files/TCCA/fieldingr.wpd STATE OF TENNESSEE v. LAVERN "VON" GEANES Court:TCCA Attorneys: Wayne T. DeWees, Bolivar, Tennessee, for the appellant, Lavern "Von" Geanes. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: A jury convicted the defendant of delivery of 0.5 grams or more of a Schedule II controlled substance (cocaine), a Class B felony. He contends that the trial court erred in (1) overruling his Batson objection to the State's peremptory challenges of two prospective jurors, and (2) overruling his objection to the introduction of the cocaine seized and the subsequent test results based on the State's failure to properly establish chain of custody. The trial court's decision to overrule the Batson objection was not clearly erroneous because the State offered reasons for the challenges that do not inherently evidence a discriminatory intent. As to the second issue, we conclude that the record does not establish a reasonable assurance of the identity of the evidence. Therefore, we reverse and remand for a new trial. http://www.tba.org/tba_files/TCCA/geanes.wpd JOHN T. HEFLIN v. STATE OF TENNESSEE Court:TCCA Attorneys: H. Thomas Parsons, Manchester, Tennessee, for the appellant, John T. Helfin. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Mickey Layne, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On March 11, 1998, the petitioner, John T. Heflin, was convicted of first degree murder and sentenced to life imprisonment. On appeal this Court affirmed the judgment of conviction and the sentence. See, State v. Heflin, 15 S.W.3d 519 (Tenn. Crim. App. 2001). The petitioner subsequently sought post-conviction relief alleging that his trial attorney was ineffective in failing to object to the testimony of a state witness. The trial court concluded that the failure to object to this witness' testimony did not amount to the ineffective assistance of counsel. After a review of the record and the applicable authorities we conclude that the petitioner received the effective assistance of counsel at trial and therefore the judgment of the post-conviction court is AFFIRMED. http://www.tba.org/tba_files/TCCA/heflinjohn.wpd GARY JOHNSON v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Gary Johnson Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Kim Linville, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner pled guilty to one count of burglary and one count of theft of property between $1,000 and $10,000 on August 21, 2001. He was sentenced to twelve years for each offense to run concurrently to be served at sixty percent as a career offender. The petitioner filed a petition for post-conviction relief on April 16, 2002. The trial court denied the petition on January 13, 2003. The petitioner appeals this denial alleging that he was afforded ineffective assistance of counsel and his plea was not knowingly, intelligently and voluntarily entered. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/johnsongary.wpd DAMIEN LAMAR OWES v. STATE OF TENNESSEE Court:TCCA Attorneys: James P. McNamara, Nashville, Tennessee (on appeal); and Monte D. Watkins, Nashville, Tennessee (on appeal), for the Appellant, Damien Lamar Owes. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Derrick L. Scretchen, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Damien Lamar Owes, was found guilty by a Davidson County jury and stands convicted of especially aggravated robbery, aggravated burglary, and five counts of especially aggravated kidnapping. He is serving a 30-year sentence. Aggrieved by his convictions, the petitioner pursued a pro se action for post-conviction relief predicated on the alleged ineffective assistance of trial and appellate counsel. Following the appointment of counsel and a hearing, the petition was denied. The petitioner appeals and urges that he is entitled to relief. We disagree and affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/owesdamien.wpd STATE OF TENNESSEE V. CLAUD E. SIMONTON Court:TCCA Attorneys: David S. Stockton, Covington, Tennessee, for the appellant, Claud E. Simonton. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Claud E. Simonton, went to trial initially in November 2002, on charges of driving under the influence (DUI) third offense, and violation of the implied consent law. The jury was unable to reach a verdict and a mistrial was declared. On April 2, 2003, the defendant was retried and convicted by the jury of third offense DUI. The jury assessed a $1,200 fine. The trial judge found that the defendant had violated the implied consent law. The trial court ordered the defendant to serve his eleven month, twenty-nine day sentence in jail with release eligibility at 75% service. On appeal the defendant raises three issues. First, he argues that the evidence is insufficient to support a conviction for DUI. Second, the defendant maintains the trial court erred in denying a mistrial after the arresting officer referred to "seizing" the defendant's vehicle. Finally, the defendant asserts the trial court erred in ordering incarceration for 75% of the sentence imposed. We have examined each issue and determined that the judgment of the trial court must be AFFIRMED. http://www.tba.org/tba_files/TCCA/simonton.wpd WILLIAM ALEXANDER COCKE STUART v. STATE OF TENNESSEE Court:TCCA Attorneys: Theodora A. Pappas, Nashville, Tennessee, for the appellant, William Alexander Cocke Stuart. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Paul DeWitt, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, William Alexander Cocke Stuart, pled guilty in the Davidson County Criminal Court to theft of property over $10,000 and received a five-year sentence to be served in split confinement. Subsequently, he filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel and that his guilty plea was not knowing or voluntary. The post-conviction court, without holding an evidentiary hearing, dismissed the petition and the petitioner appealed. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for further proceedings. http://www.tba.org/tba_files/TCCA/stuartwac.wpd LLOYD EARL WILLIAMS v. STATE OF TENNESSEE Court:TCCA Attorneys: Lloyd Earl Williams, Tiptonville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Lloyd Earl Williams, appeals the summary dismissal of his application for writ of habeas corpus. On appeal, Williams argues that: (1) his six drug convictions are void because he was tried and sentenced in absentia and (2) his class B felony sentences are illegal because the indictments do not specify that the amount of cocaine sold or possessed was 0.5 grams or more. Finding these issues without merit, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/williams.wpd STATE OF TENNESSEE v. DAVID CLINTON YORK Court:TCCA Attorneys: Michael R. Giaimo, Livingston, Tennessee, for the appellant, David Clinton York. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William Edward Gibson, District Attorney General; and John A. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, David Clinton York, an inmate in the Clay County Jail, pled guilty to felony escape and was sentenced as a Range III, persistent offender to five years in the Department of Correction. On appeal, he argues that the trial court erred in determining that he was a persistent offender, in denying alternative sentencing, and in applying the enhancement and mitigating factors. Following our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/yorkdavidc.wpd 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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