Opinion FlashMay 12, 2004Volume 10 — Number 092 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 JOHNNY PHILLIPS v. A&H CONSTRUCTION COMPANY, INC. and EVERGREEN NATIONAL INDEMNITY Court:TSC Attorneys: Scott Daniel and Melanie Lepp, Murfreesboro, Tennessee, for the appellant, Johnny Phillips. Owen R. Lipscomb, Nashville, Tennessee, for the appellees, A&H Construction Company, Inc. and Evergreen National Indemnity. Judge: DROWOTA First Paragraph: We granted permission to appeal in this case to determine whether the Chancellor erred in denying temporary total disability benefits because he concluded that injuries due to an idiopathic loss of consciousness are not compensable under the Workers' Compensation Act. We hold that an injury due to an idiopathic condition is compensable if an employment hazard causes or exacerbates the injuries. The accident arises out of employment if there is a causal connection between the conditions under which the work is performed and the resulting injury. This causal link must be between the employment and the injury, rather than between the employment and the idiopathic episode. We affirm the Chancellor's factual finding that Phillips's injuries occurred within the course of his employment. Thus, the judgment of the Chancellor is reversed in part, affirmed in part, and this case is remanded to the chancery court for reinstatement of temporary total disability benefits and further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/phillipsjohnny.wpd GREGORY THOMPSON v. STATE OF TENNESSEE WITH DISSENTING OPINION Court:TSC Attorneys: Michael J. Passino, Nashville, Tennessee, and B. Campbell Smoot, District Public Defender, Fourteenth Judicial District, Tullahoma, Tennessee, for the appellant, Gregory Thompson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General; C. Michael Layne, District Attorney General, Fourteenth Judicial District, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: The appellant, death-row inmate Gregory Thompson, challenges the trial court's order denying a hearing on the issue of his competency to be executed. The trial court concluded that Thompson had failed to make a sufficient threshold showing. After carefully considering de novo the petition, the trial court's order, and the entire record in this cause, we conclude that the trial court correctly held that Thompson failed to make a threshold showing sufficient to warrant a hearing on his competence for execution. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC/thompsongregory_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/thompsongregory_dis.wpd JESSIE MORROW v. INTERNATIONAL MILL SERVICE, INC. Court:TSC - Workers Comp Panel Attorneys: B. Duane Willis, Jackson, Tennessee, for the appellant, International Mill Service, Inc. Jay E. DeGroot, Jackson, Tennessee, for the appellee, Jessie Morrow 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. We affirm the award of twenty-five percent permanent partial disability and the payment of the medical expenses as ordered by the trial court. http://www.tba.org/tba_files/TSC_WCP/morrowj.wpd MICHAEL W. LAMBERSON v. KATHY SUE LAMBERSON Court:TCA Attorneys: Clark Lee Shaw, John David Moore, Nashville, Tennessee, for the appellant, Michael W.Lamberson. David Lyle, Nashville, Tennessee, for the appellee, Kathy Sue Lamberson. Judge: CAIN First Paragraph: In this appeal, the ex-husband challenges the trial court's order denying his post-divorce petition to modify alimony and finding him in "technical contempt." We find that the proof is inadequate to establish willful efforts to defeat alimony obligations, that his change of employment was not voluntary and that a substantial and material change of circumstances has occurred, justifying some relief from the alimony obligation. The trial court did not err in holding the ex-husband to be in contempt. We reverse the judgment in part, affirm the judgment in part, and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/lambersonmichael.wpd EDWIN EARL SANBORN v. CARLOTTA JOAN SANBORN Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Edwin Earl Sanborn. D. Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for the appellee, Carlotta Joan Sanborn. Judge: CLEMENT First Paragraph: After twenty-five years of marriage, Father filed for divorce asserting irreconcilable differences and inappropriate marital conduct due to Mother's alleged prescription drug abuse. Father requested that he be the primary residential parent of the parties' two minor children. Mother filed an answer and counterclaim also requesting to be the primary residential parent. The trial court granted Father the divorce but designated Mother as the primary residential parent. Father appealed, asserting that the trial court erred in designating Mother as the primary residential parent and in setting the residential schedule. We affirm http://www.tba.org/tba_files/TCA/sanbornedwin.wpd LARRY STEPHEN BRUMIT v. STATE OF TENNESSEE Court:TCCA Attorneys: W.H. Stephenson, II, Nashville, Tennessee, for the appellant, Larry Stephen Brumit. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; and William C. Whitesell, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Larry Stephen Brumit, filed for post-conviction relief from 1996 convictions for two counts of first degree murder and one count of conspiracy to commit first degree murder. The post- conviction court denied the petition. In this appeal, the petitioner argues (1) that the petition was not barred by the applicable statute of limitations; and (2) that he was denied the effective assistance of counsel. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/brumitlarry.wpd STATE OF TENNESSEE v. WILLIAM F. CARTWRIGHT Court:TCCA Attorneys: Edwin G. Sadler, Cookeville, Tennessee, for the appellant, William F. Cartwright. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel, Office of the Attorney General; William Edward Gibson, District Attorney General; and David Alan Patterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, William F. Cartwright, appeals as of right from his convictions by a jury in the Putnam County Criminal Court for possession with intent to deliver one-half gram or more of cocaine, a Class B felony, and simple possession of cocaine, a Class A misdemeanor. The trial court sentenced him as a standard offender to concurrent sentences of nine years for possession of one-half gram or more of cocaine with intent to deliver and eleven months, twenty-nine days for simple possession of cocaine. However, the trial court ordered these convictions merged. The petitioner contends (1) that the evidence is insufficient to support his conviction for possession with intent to deliver one-half gram or more of cocaine, (2) that the trial court erred in not requiring the state to elect which offense it was prosecuting, and (3) that his convictions for possession with intent to deliver one-half gram or more of cocaine and for simple possession of cocaine violate double jeopardy. We hold that the evidence is sufficient and that the trial court did not err by not requiring the state to elect between offenses with regard to his cocaine convictions. We also hold that although the trial court ordered the cocaine convictions to be merged, it should have entered only one judgment of conviction and noted the merger of the counts in that judgment. We vacate the judgments and remand the case for entry of a single judgment of conviction http://www.tba.org/tba_files/TCCA/cartwrightwilliamf.wpd STATE OF TENNESSEE v. STANLEY RAY DAVIS IN RE: RAY D. DRIVER d/b/a DRIVER BAIL BONDS CORRECTED OPINION WITH DISSENTING OPINION Court:TCCA Attorneys: Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, Ray D. Driver d/b/a Driver Bail Bonds. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: Ray D. Driver appeals the Campbell County Criminal Court's judgment requiring his bail bonding company, Driver Bail Bonds, to pay $570.50 as a bond forfeiture because Stanley Ray Davis failed to appear at a general sessions court probation hearing. The appellant contends that T.C.A. S 40-11- 138(b) relieved his company from liability under the bond because the defendant already had pled guilty and been sentenced. He also claims that his company is not liable for the defendant's fine and costs because his company did not assume such obligations in the defendant's bond. We hold that appellant remained obligated under the bond and that the trial court did not require him to pay the defendant's fine and costs. The trial court is affirmed. CORRECTED OPINION http://www.tba.org/tba_files/TCCA/davisstanleyray.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/davisstanleyray_dis.wpd JAMES GORDON FREEMAN v. STATE OF TENNESSEE WITH ORDER Court:TCCA Attorneys: Kathleen G. Morris, Nashville, Tennessee, for the appellant, James Gordon Freeman. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, James Gordon Freeman, filed a pro se petition for post-conviction relief, which was amended by appointed counsel. Following an evidentiary hearing, the trial court dismissed the petition. On appeal, Petitioner argues that the post-conviction court erred in finding that Petitioner received effective assistance of counsel at trial. After a thorough review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/freemanjamesgordon_opn.wpd ORDER http://www.tba.org/tba_files/TCCA/freemanjamesgordon_ord.wpd STATE OF TENNESSEE v. JARRET A. GUY Court:TCCA Attorneys: John G. Oliva, Nashville, Tennessee, for the appellant, Jarret A. Guy. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; and Dan Hamm and Katrin Miller, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Jarret A. Guy, was convicted of facilitation of first degree premeditated murder, felony murder, and robbery. The trial court merged the facilitation of premeditated first degree murder conviction into the conviction for felony murder and, after finding the existence of five aggravating circumstances, the jury imposed a sentence of life without the possibility of parole. The trial court imposed a concurrent sentence of fifteen years for the robbery conviction. In this appeal, the defendant asserts that (1) the evidence is insufficient to support his convictions; (2) the trial court included erroneous definitions of "knowing" and "intentional" in its instructions to the jury; (3) the trial court erred by severing his trial from that of his co-defendant, Jacob Edward Campbell; (4) the sentence is excessive; and (5) the cumulative effect of the errors at trial require reversal. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/guyjarreta.wpd STATE OF TENNESSEE v. BRYAN CHRISTOPHER HESTER Court:TCCA Attorneys: James Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Bryan Christopher Hester. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante and Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Davidson County Criminal Court jury convicted the defendant, Bryan Christopher Hester, of second degree murder, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty-five years in confinement. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction; (2) the trial court erred by denying his motion to continue when the state revealed three days before trial that the victim had been taking an antidepressant and seeing a psychiatrist; (3) the trial court erred by allowing hearsay into evidence; (4) the trial court erred by allowing the state to introduce a bow saw into evidence; (5) the trial court erred by allowing a witness to testify about experiments conducted on the murder weapon when the state failed to prove the chain of custody; (6) the trial court erred by allowing the state medical examiner to testify; and (7) the defendant's sentence is excessive. We conclude that the trial court erred by allowing hearsay into evidence but that the error was harmless. We also conclude that the defendant's sentence is not excessive, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hesterbryanchris.wpd MICHAEL D. HUGHES v. STATE OF TENNESSEE Court:TCCA Attorneys: David R. Heroux, Nashville, Tennessee, for the appellant, Michael D. Hughes. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On November 30, 1992, the petitioner, Michael Douglas Hughes, entered a plea of no contest to one (1) count of aggravated rape and a plea of guilty to ten (10) counts of aggravated rape. He received an effective eighty-year sentence after a sentencing hearing. The petitioner's sentence was affirmed in a delayed appeal. See State v. Michael Douglas Hughes, No. 01C01-9701-CR-00021, 1998 WL 301730, at *1 (Tenn. Crim. App. at Nashville, June 10, 1998), perm. to appeal denied (Tenn. Feb. 22, 1999). The petitioner sought post-conviction relief on various grounds. After the trial court denied the petition as untimely, the petitioner appealed. This Court reversed the trial court's dismissal of the petition and remanded for an evidentiary hearing. See Hughes v. State, 77 S.W.3d 801 (Tenn. Crim. App. 2001). On remand, the trial court denied the petition after an evidentiary hearing. The petitioner then presented this appeal, arguing that the trial court erred finding that the petitioner received the effective assistance of counsel and that his guilty plea was knowingly and voluntarily entered. We affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/hughesmichael.wpd RONALD L. JOHNSON v. FLORA HOLLAND, Warden Court:TCCA Attorneys: Ronald L. Johnson, Middle Tennessee Correctional Complex, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Ronald L. Johnson, appeals as of right from the Davidson County Criminal Court's summary dismissal of his petition for writ of habeas corpus. He argues that his convictions for two counts of passing worthless checks are void because they were not ordered to be served consecutively to a sentence from which he had been paroled at the time of the check offenses, his parole subsequently being revoked. The habeas corpus court dismissed his petition without a hearing, and we affirm that action. http://www.tba.org/tba_files/TCCA/johnsonronaldl.wpd DON WESLEY MCMILLEN v. STATE OF TENNESSEE Court:TCCA Attorneys: Roger J. Bean, Tullahoma, Tennessee, for the appellant, Don Wesley McMillen. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; Mickey Layne, District Attorney General; and Doug Aaron, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Don Wesley McMillen, entered a plea of guilty to two (2) counts of attempted rape of a child in May of 1998. In exchange for the guilty pleas, the petitioner received concurrent, seventeen-year sentences at 35% as a Range II Offender. The petitioner timely filed a petition for post-conviction relief arguing that he received ineffective assistance of counsel and that his guilty plea was not knowing or voluntary because the trial court violated the provisions of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). The trial court denied the petition following an evidentiary hearing and this appeal followed. We affirm the dismissal of the post-conviction petition. http://www.tba.org/tba_files/TCCA/mcmillandon.wpd STATE OF TENNESSEE v. JOHN BRIAN MESSER Court:TCCA Attorneys: Tony L. Maples, Murfreesboro, Tennessee, for the appellant, John Brian Messer. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, John Brian Messer, entered a plea of guilt to robbery. See Tenn. Code Ann. S 39-13- 401. Pursuant to a plea agreement, the trial court ordered the sentence of four and one-half years in the Department of Correction to be served on probation. After the entry of the second violation of the terms of his probation, the trial court ordered that the defendant serve the sentence originally imposed. The defendant sought to withdraw his plea, arguing that the state had violated the plea agreement. After finding that it lacked jurisdiction, the trial court denied the motion without a hearing. In this appeal of right, the defendant contends that the trial court erred by denying the motion to withdraw the guilty plea without appointing counsel and holding a hearing. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/messerjb.wpd STATE OF TENNESSEE v. JAMES D. ROWLAND Court:TCCA Attorneys: R. Steven Waldron, Waldron & Fann, Murfreesboro, Tennessee, for the Appellant, James D. Rowland. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and John W. Price, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: This appeal involves review of a certified question of law following the Defendant, James D. Rowland's, guilty plea to DUI. See Tenn. R. Crim. P. 37(b)(2)(1). Because we find that the certified question is not dispositive, we are without jurisdiction to entertain the appeal. Accordingly, the appeal is dismissed. http://www.tba.org/tba_files/TCCA/rowlandjamesd.wpd PATRICK E. SIMPSON v. RICKY BELL, WARDEN Court:TCCA Attorneys: Patrick E. Simpson, Riverbend Maximum Security Institution, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Stephen Douglas Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Patrick E. Simpson, pled guilty to two counts of aggravated assault and was sentenced to concurrent terms of three years to be served consecutively to his parole violation. He appeals the summary dismissal of his petition for habeas corpus relief, arguing that the trial court failed to enforce his guilty plea agreement and that his sentence has expired. Following our review, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/simpsonpatricke.wpd STATE OF TENNESSEE v. ROXANNE R. VANCE Court:TCCA Attorneys: James C. Vance, Nashville, Tennessee, for the appellant, Roxanne R. Vance. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jim Todd and Katie Hagan, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: Following a bench trial, the defendant, Roxanne R. Vance, was convicted of DUI per se, a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days, all suspended except seven days with the balance to be served on probation. In addition, her driver's license was suspended for one year and she was ordered to pay a fine of $350 and attend alcohol and drug safety school. On appeal, she argues that the trial court erred in finding that her breath alcohol test results created an irrebuttable presumption of DUI per se and that the evidence was insufficient to support her conviction. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/vanceroxanner.wpd RANDY D. VOWELL v. STATE OF TENNESSEE Court:TCCA Attorneys: Richard L. Gaines, Knoxville, Tennessee, for the appellant, Randy D. Vowell. Michael E. Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner appeals the Anderson County Criminal Court's denial of habeas corpus relief relating to his convictions for aggravated rape and rape. On appeal, the petitioner contends the original sentencing court erred in amending the judgments to reflect 100% release classification after they became final. We affirm the lower court's judgment denying habeas corpus relief. http://www.tba.org/tba_files/TCCA/vowellrandy.wpd Fee for Service of Criminal Process Date: May 6, 2004 Opinion Number: 04-088 http://www.tba.org/tba_files/AG/2004/op88.pdf Constitutionality of Proposed House Bill 3186 Date: April 10, 2004 Opinion Number: 04-089 http://www.tba.org/tba_files/AG/2004/op89.pdf Authority of General Sessions Judge to Correct a Judgment Date: May 10, 2004 Opinion Number: 04-090 http://www.tba.org/tba_files/AG/2004/op90.pdf State Fire Marshal Adoption of Uniform Fire Code Date: May 11, 2004 Opinion Number: 04-091 http://www.tba.org/tba_files/AG/2004/op91.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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