Opinion FlashJune 18, 2004Volume 10 — Number 117 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 JOSEPH AND JEAN GONZALEZ v. STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, IN THE MATTER OF A.J.H. Court:TSC Attorneys: Thomas H. Miller, Franklin, Tennessee, for the appellants, Joseph and Jean Gonzalez. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. Judge: BIRCH First Paragraph: In this interlocutory appeal, we consider whether and under what circumstances grandparents may intervene in proceedings brought to terminate the parent-child relationship. In this case, the grandparents filed a motion in the juvenile court to intervene in a termination of parental rights proceeding. The juvenile court denied the motion, and the grandparents moved for interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. The trial court granted the motion. Following the Court of Appeals' denial of the grandparents' application for permission to appeal, they filed an application for permission to appeal to this Court; we granted the application. After a thorough review of the record and relevant legal authority, we conclude that the motion filed in juvenile court seeking intervention in the termination of parental rights case is to be analyzed under Tennessee Rule of Civil Procedure 24. Using this analysis, we find no error and affirm the denial of the motion to intervene. http://www.tba.org/tba_files/TSC/gonzalezjoseph.wpd STATE OF TENNESSEE v. TRACY LORENZO GOODWIN, alias LAWANDA CARTER CORRECTED OPINION Court:TSC Attorneys: A. Christian Lanier, III, Chattanooga, Tennessee, for the appellant, Tracy Lorenzo Goodwin. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: This is an appeal from the Criminal Court for Hamilton County which convicted the defendant, Tracy Goodwin, of two counts of reckless aggravated assault, one count of felony reckless endangerment, and one count of criminally negligent homicide. The issues before us are whether the evidence is sufficient to uphold the convictions, whether the trial court erred in failing to sever the aggravated assault charges from the reckless endangerment and criminally negligent homicide charges, whether the separate convictions for felony reckless endangerment and criminally negligent homicide violate the constitutional protection against double jeopardy, and whether the sentences were excessive. We find that the evidence was insufficient to support the convictions for reckless aggravated assault because as defined by the statute, reckless aggravated assault requires proof of bodily injury, and no such proof was offered at trial. We find sufficient evidence to support the remaining convictions of felony reckless endangerment and criminally negligent homicide. We further find, with respect to the remaining convictions, that the trial court did not err in failing to sever the trials, the separate convictions do not violate double jeopardy protections, and the sentencing was not excessive. Therefore, the decision of the Court of Criminal Appeals is reversed in part and affirmed in part. We remand the case for a new trial on charges of assault as lesser- included offenses of aggravated assault. CORRECTED OPINION http://www.tba.org/tba_files/TSC/goodwintl.wpd LANI THOMAS ARNOLD and AMES DAVIS, Administrator of the Estate of Mary Reeves Davis v. W. TERRY DAVIS Court:TCA Attorneys: Gregory H. Oakley and Daniel W. Small of Nashville for Appellant, W. Terry Davis Ames Davis and Sally B. Buntin of Nashville for Appellees, Lani Thomas Arnold and Ames Davis, Administrator of the Estate of Mary Reeves Davis R. Horton Frank III of Nashville for Appellee, Lani Thomas Arnold Judge: CRAWFORD First Paragraph: This case involves the interpretation of certain provisions of a Trust Instrument. The trial court found a latent ambiguity in the Instrument, allowed extrinsic evidence, and granted Appellee's Motion for Summary Judgment. Appellant appeals. We affirm. http://www.tba.org/tba_files/TCA/arnoldlani.wpd IN RE: DMD & JLA Court:TCA Attorneys: Melissa C. Berry, Memphis, Tennessee, for the appellants, Charlotte Diane Asbridge and Hugh Michael Asbridge. Virginia M. Alexander, Memphis, Tennessee, for the appellee, Amy Michelle Darby (Asbridge). Judge: FARMER First Paragraph: The trial court denied Appellants' petition for termination of Mother's parental rights and returned physical custody of children to Mother. We reverse and remand for determination of whether termination is in the best interests of the children. We vacate the order returning physical custody to Mother. http://www.tba.org/tba_files/TCA/dmd.wpd JUDITH MAE HARBER As Trustee of Trust B for the Estate of Edwin Erwin v. LEADER FEDERAL BANK FOR SAVINGS Court:TCA Attorneys: Everett B. Gibson, Lawrence Harris, Memphis, TN, for Appellant Robert E. Craddock, Jr., John S. Wilson, III, Jeffrey Fleishmann, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves the wrongful payment of funds by Defendant over Plaintiff's forged signature. The lower court found that the majority of Plaintiff's claims are barred by former Tenn. Code Ann. S 47-4-406, which places a one-year limit on certain claims by bank customers seeking to recover losses occasioned by unauthorized signatures. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings. http://www.tba.org/tba_files/TCA/harberjudithm.wpd CHERYL O'BRIEN v. RHEEM MANUFACTURING CO. Court:TCA Attorneys: Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Cheryl O'Brien. Michael North and Ronald G. Harris, Nashville, Tennessee, for the appellee, Rheem Manufacturing Co. Judge: CAIN First Paragraph: In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in favor of the defendant manufacturer. We affirm. http://www.tba.org/tba_files/TCA/obriencher.wpd DAVID SHARP v. STATE OF TENNESSEE Court:TCA Attorneys: David H. Sharp, Pro se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore Solicitor General and John H. Sinclair, Jr., Assistant Attorney General, for the State of Tennessee Judge: FARMER First Paragraph: An inmate filed a claim with the Claims Commission contending negligence on the part of the Tennessee Department of Correction in miscalculating his sentence credits. The Commission dismissed for lack of jurisdiction, the inmate appealed, and we affirm. http://www.tba.org/tba_files/TCA/sharpdav.wpd IN THE MATTER OF: T.S.R. Court:TCA Attorneys: Lynda F. Teems, Memphis, Tennessee, for the appellant, Marcus W. Reed. Paul G. Summers, Attorney General and Reporter and Warren A. Jasper, Assistant Attorney General, for the State of Tennessee, Department of Human Services as Assignee of Laterica R. McKinney. Judge: FARMER First Paragraph: The juvenile court entered an order declaring Appellant the father of T.S.R. and ordered child support. Appellant failed to pay child support and incurred an arrearage of $27,051.68. Appellant petitioned the court for Rule 60.02 relief from the final order and requested a blood paternity test. The DNA test indicated that Appellant was not the father. The trial court relieved Appellant of his ongoing child support but required him to pay the child support arrearage. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/tsr.wpd STATE OF TENNESSEE v. JAMES RAY BARTLETT Court:TCCA Attorneys: Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, James Ray Bartlett. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, Assistant Attorney General; and William Michael McCown, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, James Ray Bartlett, appeals the trial court's denial of his request for credit for time served in community corrections. Because the defendant has no appeal as of right under Tennessee Rule of Appellate Procedure 3(b), the cause is dismissed. http://www.tba.org/tba_files/TCCA/bartlettjamesr.wpd STATE OF TENNESSEE v. JON BREWBAKER Court:TCCA Attorneys: Richard Hughes, Public Defender, Cleveland, Tennessee, for the appellant, Jon Brewbaker. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Joseph V. Hoffer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jon Brewbaker, pled guilty to second degree murder, a Class A felony. After a hearing, the trial court sentenced the Defendant to twenty-three years in the Department of Correction. The sole issue on appeal is whether the sentence imposed by the trial court is excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brewbakerj.wpd CHRISTOPHER TODD BROWN v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Christopher Todd Brown. Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman, 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: RILEY First Paragraph: The petitioner appeals the denial of post-conviction relief relating to his convictions for attempted first degree murder and attempted second degree murder. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel at trial and on appeal; and (2) the trial court erroneously instructed the jury on the definition of the "knowing" mens rea for attempted second degree murder. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/brownchristopher.wpd RAYMON HAYMON v. STATE OF TENNESSEE Court:TCCA Attorneys: Ralph I. Lawson, Dyersburg, Tennessee, for the appellant, Raymon Haymon. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Raymon Haymon, was convicted by a jury in the Dyer County Circuit Court of first degree premeditated murder. Upon conviction, the petitioner was sentenced to life imprisonment. Subsequently, the petitioner filed a petition for writ of error coram nobis, alleging that one of the witnesses at his trial had recanted his testimony. The trial court denied the petition, finding that the petitioner failed to produce newly discovered evidence. The petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/haymonray.wpd WILLIAM LEWIS HOUSTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Lucy D. Henson and Dennis P. Stack, Pulaski, Tennessee, for the appellant, William Lewis Houston. Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant, Assistant Attorney General; Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Petitioner was convicted by a Giles County jury for several drug-related offenses and was given an effective sentence of 72 years. In his direct appeal to this Court, his conviction was affirmed, and his sentence was reduced to 46 years. Petitioner then filed a Petition for Post-conviction Relief. The post-conviction court denied the petition. Petitioner appeals the decision of the post-conviction court and argues three issues on appeal: (1) Whether the post-conviction court erred in finding that trial counsel was effective; (2) whether the post-conviction court erred in its decision with respect to the trial judge's presence in the jury room; and (3) whether newly-discovered evidence of officer/witness's wrong doing and character mandates a new trial. We affirm the decision of the post-conviction court. http://www.tba.org/tba_files/TCCA/houstonwilliam.wpd STATE OF TENNESSEE v. JOE KING Court:TCCA Attorneys: Philip A. Condra, District Public Defender, and David O. McGovern, Assistant Public Defender, for the appellant, Joe King. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, Joe King, appeals the sufficiency of evidence to support his conviction for theft and the amount of restitution ordered by the trial court. After review of the entire record in this cause, we conclude that the evidence amply supported the defendant's conviction. The issue of restitution is waived pursuant to Rule 10(b) of the Rules of the Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/kingjoe.wpd STATE OF TENNESSEE V. BARRY RAY LONG Court:TCCA Attorneys: Mike Mosier, Jackson, Tennessee, for the appellant, Barry Ray Long. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The Weakley County Grand Jury indicted the defendant for manufacturing not less than .5 ounce or more than 10 pounds of marijuana. The Weakley County Sheriff's Department found the marijuana pursuant to a search of the defendant's home based on a search warrant. The sheriff's department received the search warrant based on information garnered in a non-consensual warrantless search of a portable shed behind the defendant's home. Due to previous drug-related charges which were later dismissed, the portable shed had been the subject of forfeiture proceedings in 2000. The defendant made no efforts to contest the forfeiture, but the sheriff's department also made no efforts to remove the portable shed. The defendant filed a motion to suppress the evidence found as a result of the search of the portable shed. After a hearing, the trial court denied the motion. The defendant then entered a plea of guilty and purported to reserve this certified question for appeal: Whether or not the search of the storage shed predicated on a search warrant was preceded and based upon a prior warrantless search. Because of the ambiguity of the certified question as presented, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/longbarryr.wpd STATE OF TENNESSEE v. HUBERT E. NARD Court:TCCA Attorneys: Robert S. Peters, Winchester, Tennessee, for the appellant, Hubert E. Nard. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, in this appeal of right, challenges the sufficiency of the evidence to support his convictions for driving under the influence (DUI) and disorderly conduct. After a careful review of the record, we affirm both convictions. The disorderly conduct conviction is remanded for modification of judgment to conform to the statutory maximum sentence. http://www.tba.org/tba_files/TCCA/nardhe.wpd STATE OF TENNESSEE v. JOHN LEMONT PIERCE, a.k.a. JAMES OWENS, a.k.a. JOHN LAMONTE PIERCE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, John Lemont Pierce. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, John Lemont Pierce, indicted for two counts of especially aggravated kidnapping, three counts of aggravated assault, and simple assault, entered a guilty plea to one count of aggravated assault. The trial court imposed a fifteen-year sentence to be served consecutively to a prior six-year sentence. In this appeal, the defendant contends that the trial court erred by ordering a maximum sentence of 15 years and requiring consecutive service. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/piercejohn.wpd STATE OF TENNESSEE v. JONATHAN W. SUSMAN Court:TCCA Attorneys: Andrew L. Berke, Chattanooga, Tennessee, for the appellant, Jonathan W. Susman. Paul G. Summers, Attorney General and Reporter; Brent T. Cherry, Assistant Attorney General; Bill Cox, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jonathan W. Susman, pled guilty to driving while under the influence of an intoxicant. As part of his plea agreement, he expressly reserved with the consent of the trial judge and the State the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The question is whether there were sufficient specific and articulable facts to justify a police officer detaining the Defendant in order for him to perform field sobriety tests. We conclude that there were, and we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/susmanjw.wpd STATE OF TENNESSEE v. DANNY WILLIAMSON Court:TCCA Attorneys: Susanna L. Thomas, Newport, Tennessee, for the appellant, Danny Williamson. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James Bruce Dunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Danny Williamson, pled guilty in the Cocke County Criminal Court to possession of a Schedule VI controlled substance with intent to sell, a Class D felony. Pursuant to the plea agreement, the defendant received a two-year sentence as a Range I, standard offender with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court held that the need for deterrence warranted the defendant's serving his entire sentence in confinement. The defendant appeals, claiming that the trial court erred by denying his request for full probation. We affirm the defendant's sentence but remand the case for entry of a corrected judgment. http://www.tba.org/tba_files/TCCA/williamsondanny.wpd JIMMY WAYNE WILSON v. STATE OF TENNESSEE Court:TCCA Attorneys: E. Lynn Dougherty, Bristol, Tennessee, for the appellant, Jimmy Wayne Wilson. Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman, Assistant Attorney General; Greeley Wells, District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jimmy Wayne Wilson, petitioned for post-conviction relief under the Post- Conviction DNA Analysis Act of 2001, Tenn. Code Ann. S 40-30-301 et. seq. The trial court summarily denied relief upon the State's response that no evidence remained available for testing. The Defendant now appeals, asserting that he should have been afforded a hearing in which to test the veracity of the State's claim of no remaining evidence. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/wilsonjimmy.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! 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