Opinion FlashJune 30, 2004Volume 10 — Number 125 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 QUINTON ARMSTRONG v. MICHAEL MAGILL, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, AND PICCADILLY CAFETERIA Court:TCA Attorneys: Karen W. Tyler and Webb A. Brewer, Memphis, Tennessee, for the appellant, Quinton Armstrong. Paul G. Summers, Attorney General & Reporter, and Warren A. Jasper, Assistant Attorney General, Nashville, Tennessee, for the appellee, Michael Magill, Commissioner of the Tennessee Department of Labor and Workforce Development. Judge: KIRBY First Paragraph: This is a claim for unemployment benefits. The claimant was terminated from her employment at the defendant business. Her separation notice indicated that she was terminated for improper conduct and having a disrespectful attitude. Subsequently, the claimant filed a claim for unemployment benefits. The agency denied benefits. The claimant appealed. The appellate tribunal conducted a telephonic hearing and affirmed the denial of benefits. The claimant filed the instant petition for judicial review, claiming that the administrative proceedings were so fundamentally flawed that her procedural due process rights were violated. The trial court denied the petition and affirmed the denial of benefits. The claimant now appeals. We affirm, finding that the claimant's due process rights were not violated, and that there is substantial and material evidence to support the denial of benefits. http://www.tba.org/tba_files/TCA/armstroq.wpd MELANIE SUE GIBSON v. ERNESTINE W. FRANCIS Court:TCA Attorneys: H. Douglas Nichol and Harold C. Wimberly, Knoxville, Tennessee, for the appellant, Melanie Sue Gibson. John T. Johnson, Jr. and Deborah E. Johnson, Knoxville, Tennessee, for the appellee, Ernestine W. Francis. Judge: SUSANO First Paragraph: This tort action arises out of a two-vehicle accident. At trial, the defendant Ernestine W. Francis admitted liability. The jury returned a verdict in favor of the plaintiff Melanie Sue Gibson for property damage in the amount of $6,900; however, the jury declined to award her any damages on her claim for personal injuries. On appeal, the plaintiff argues that the trial court did not properly perform its role as thirteenth juror; that the verdict is contrary to the weight of the evidence; and that the trial court erred when it re-instructed the jury in response to a question from that body. We affirm. http://www.tba.org/tba_files/TCA/gibsonms.wpd JEFFREY LYNN MILLER v. JERRY ELLISON, ET AL. Court:TCA Attorneys: David H. Dunaway, LaFollette, Tennessee, attorney for appellant, Jeffrey Lynn Miller. J. Stephen Hurst, LaFollette, Tennessee, attorney for appellee, John D. Suttles and wife, Verda Suttles. Judge: CATE First Paragraph: Plaintiff, a customer who was injured when assaulted on the premises, brought action for damages against the owners-lessors of the premises and others. The Circuit Court, Campbell County, Conrad Troutman, Judge, dismissed the action as to the owners-lessors for failure to state a claim upon which relief could be granted, and plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/millerj.wpd GREGOR NADLER v. MOUNTAIN VALLEY CHAPEL BUSINESS TRUST, ET AL
Court:TCA
Attorneys:
Scott D. Hall, Sevierville, Tennessee, for the appellant, Gregor
Nadler.
Brian T. Mansfield, Sevierville, Tennessee, for the appellees,
Mountain Valley Chapel Business Trust, Gerald H. Lucas, Sharon M.
Lucas, Gerald Richard Lucas, and Timothy Barton Lucas.
Judge: SUSANO
First Paragraph:
Gregor Nadler ("the plaintiff") took a default judgment in the amount
of $68,270.98 against Gerald H. Lucas ("Mr. Lucas") in a Florida
proceeding. The judgment survived Mr. Lucas's subsequent bankruptcy
filing. The plaintiff domesticated his judgment in Tennessee and then
filed suit against, inter alia, the Mountain Valley Chapel Business
Trust and Mr. Lucas, claiming (1) that Mr. Lucas had engaged in a
fraudulent conveyance when he formed the trust and (2) that the trust
was his alter ego. Following a bench trial, the court dismissed the
plaintiff's complaint. From this judgment, the plaintiff appeals,
challenging the trial court's rulings with respect to his fraudulent
conveyance and alter ego claims. In addition, the plaintiff raises an
evidentiary issue. We affirm.
http://www.tba.org/tba_files/TCA/nadlerg.wpd
RUBY TUESDAY, INC. v. GERALD LARGEN Court:TCA Attorneys: Gerald Largen, Kingston, Tennessee, pro se. R. Louis Crossley, Jr., Knoxville, Tennessee, for the appellee Ruby Tuesday, Inc. Judge: CANTRELL First Paragraph: This case started out as a dispute over the title to a twenty to thirty-five foot wide strip along a state highway. The Chancery Court of Roane County held that the defendant held the title, but that the plaintiff had an access easement over the property. The defendant asserts on appeal that the Court erred because the plaintiff never claimed an easement in its pleadings and that the Court simply created one. The plaintiff asserts that the Court erred in finding that the defendant held the title to the property. We affirm. http://www.tba.org/tba_files/TCA/rubyt.wpd MARY RACHEL BROWN WILLIAMS v. JEWELINE R. CRENSHAW Court:TCA Attorneys: Newton P. Allen, Malinda C. Allen, Memphis, TN, for Appellant Thomas Barnett, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: Plaintiff brought suit on a defectively executed joint will, arguing that, despite its infirmities as a testamentary instrument, it is still enforceable as a contract for the benefit of a third party. In her suit, Plaintiff sought to recover certain property, purportedly covered by the defective joint will, that Decedent had devised to Defendant in a subsequent will. The lower court granted Defendant's motion for summary judgment, finding that the defective joint will does not constitute an enforceable contract. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/willimr.wpd STATE OF TENNESSEE v. LARRY ARNELL ADAMS Court:TCCA Attorneys: Bruce E. Poston, Knoxville, Tennessee, for the appellant, Larry Arnell Adams. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and G. Scott Green and Leland Price, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Larry Arnell Adams, was convicted by a jury in the Knox County Criminal Court of one count of especially aggravated kidnapping, one count of aggravated spousal rape, one count of assault, and two counts of rape. He received a total effective sentence of thirty-seven years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises numerous issues for our review, including consolidation and sufficiency. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/adamsla.wpd STATE OF TENNESSEE v. RENNE EFREN ARELLANO Court:TCCA Attorneys: William C. Barnes, Jr., Columbia, Tennessee, for the Appellant, Renne Efren Arellano. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Joseph L. Penrod, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Renne Efren Arellano, appeals from the sentencing decision of the Maury County Circuit Court. In a negotiated plea agreement, Arellano pled guilty to arson, eight counts of aggravated assault, and felony possession of a weapon and received an effective twelve-year sentence as a Range I standard offender. The manner of service was to be determined by the trial court. Following a sentencing hearing, the trial court denied any form of alternative sentencing and imposed total incarceration for the twelve-year sentence. On appeal, Arellano contends that the trial court erred in not sentencing him to any form of alternative incarceration. Finding no error, the sentences of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/arellanoreneeefren.wpd FRANK A. BARNARD v. STATE OF TENNESSEE Court:TCCA Attorneys: Frank A. Barnard, Turney Center Industrial Prison, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; and David H. Findley, Assistant Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Frank A. Barnard, was convicted in 1992 of first degree murder, aggravated robbery, and aggravated sexual battery, for which he was sentenced, respectively, to sentences of life, eight years, and ten years, with the latter sentence to be served consecutively to the first two. In a petition for writ of habeas corpus, he claimed that the trial court was without jurisdiction to impose judgment for the murder conviction. The trial court dismissed the petition, and this timely appeal followed. After review, we affirm the dismissal. http://www.tba.org/tba_files/TCCA/barnardfranka.wpd STATE OF TENNESSEE v. MARIO C. ESTRADA Court:TCCA Attorneys: Claudia S. Jack, District Public Defender; Robin Farber, Assistant Public Defender, Columbia, Tennessee, for the Appellant, Mario C. Estrada. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Joseph L. Penrod, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Mario C. Estrada, appeals the imposition of a sentence of twelve years confinement in the Department of Correction. The sentence arose from a guilty plea entered by Estrada to one count of arson, eight counts of aggravated assault, and one count of possession of a prohibited weapon. In this appeal, Estrada raises the issue of whether the trial court erred by ordering a sentence of total confinement rather than a less restrictive alternative. After review, we find no error. Accordingly, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/estradamarioc.wpd STATE OF TENNESSEE v. STEPHEN KEITH FRAZIER
Court:TCCA
Attorneys:
Richard W. DeBerry, Savannah, Tennessee, for the appellant, Stephen
Keith Frazier.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; G. Robert Radford, District Attorney
General; John Overton, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
A Hardin County jury convicted the Defendant, Stephen Keith Frazier,
of vehicular homicide and two counts of driving while under the
influence of an intoxicant or drug ("DUI"). The trial court merged
the two DUI convictions and sentenced the Defendant to ten years for
vehicular homicide, and eleven months and twenty-nine days for the DUI
conviction, with both sentences to run concurrently. On appeal, the
Defendant contends that: (1) the evidence was insufficient to support
the convictions; and (2) the trial court erred in sentencing the
Defendant by improperly applying enhancement factor (17) to increase
the length of the sentence and in not imposing alternative sentencing.
Based upon our review, we affirm the conviction for vehicular
homicide and vacate the conviction for DUI, this offense being merged
into the conviction for vehicular homicide. Additionally, we affirm
the Defendant's sentence for his vehicular homicide conviction, and we
vacate the Defendant's sentence for his DUI conviction. We therefore
remand to the trial court for the entry of a single judgment in
accordance with this opinion.
http://www.tba.org/tba_files/TCCA/fraziersk.wpd
STATE OF TENNESSEE v. BRIAN FRENCH Court:TCCA Attorneys: Roger Eric Nell, District Public Defender; and Russel A. Church, Assistant District Public Defender, for the appellant, Brian French. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Brian French, appeals the revocation of his probation. We dismiss the appeal due to the untimely filing of the notice of appeal. http://www.tba.org/tba_files/TCCA/frenchbrian.wpd STATE OF TENNESSEE v. THADDAEUS MEDFORD Court:TCCA Attorneys: Clifford K. McGowan, Jr., Waverly, Tennessee (on appeal), Gary F. Antrican and Julie K. Pillow, Somerville, Tennessee (at trial), for the appellant Thaddeaus Medford. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; Tracey Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Thaddeaus Medford, was convicted of three counts involving the delivery and attempted delivery of cocaine. In his first appeal, the Defendant contended, in part, that the State used a peremptory challenge to exclude a potential juror based on race. We remanded the case for the trial court to determine whether the State's challenge was based upon a racially-neutral reason. On remand, the trial court determined that the State's challenge was based upon a racially-neutral reason, and the Defendant appeals, contending that this finding by the trial court is in error. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/medfordt.wpd STATE OF TENNESSEE v. FELICIA MURPHY Court:TCCA Attorneys: David Brady, Public Defender; and John B. Nisbet, III, Assistant Public Defender, Cookeville, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; William Gibson, District Attorney General; and William Locke, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant, Felicia Murphy, appeals the sentencing decision of the DeKalb County Circuit Court following revocation of her probation. In December 2001, Murphy pled guilty to misdemeanor reckless endangerment and received a sentence of eleven months and twenty days, which was to be suspended after service of ten days. While on probation Murphy was found to be in violation of her probation, resulting in the extension of her probationary period for an additional six months. On the day before this extended period was to expire a violation warrant was issued, which alleged numerous violations of conditions of her probation. Following a hearing, the trial court revoked her probation and ordered reinstatement of her original sentence. On appeal, she argues that the trial court "acted too harshly" by revoking her sentence and, instead, should have extended her probationary period for one year. Finding no merit to Murphy's claim, the judgment of the trial court revoking her probation and ordering reinstatement of her original eleven-month and twenty- nine-day sentence is affirmed. http://www.tba.org/tba_files/TCCA/murphyfelicia.wpd STATE OF TENNESSEE v. WILLIAM GLENN ROGERS Court:TCCA Attorneys: Brock Mehler, Nashville, Tennessee and Jerome M. Converse, Springfield, Tennessee, for the appellant, William Glenn Rogers. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Assistant Attorney General; Angele M. Gregory, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier and Lance A. Baker, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, William Glenn Rogers, appeals his convictions by a jury for first degree premeditated murder, first degree felony murder in the perpetration of a kidnapping, first degree felony murder in the perpetration of a rape, especially aggravated kidnapping, rape of a child, and two counts of criminal impersonation. The felony murder convictions were merged into the first degree premeditated murder conviction. Following a separate sentencing hearing, the jury found that the proof supported four aggravating circumstances beyond a reasonable doubt: the murder was committed against a person less than twelve years of age and the defendant was eighteen years of age or older; the defendant had previously been convicted of one or more felonies, the statutory elements of which involve the use of violence to the person; the murder was committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of the defendant or another; and the murder was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any rape or kidnapping. See T.C.A. S 39-13-204(i)(1), (2), (6), and (7). The jury further determined that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt and sentenced the defendant to death for the murder. He received an effective consecutive sentence of forty-eight years in confinement for the other offenses. The defendant raises the following issues for review: (1) whether the evidence is sufficient to convict and to support a sentence of death; (2) whether the trial court erred in failing to grant the defendant's motion for a change of venue; (3) whether the trial court erred by not suppressing the defendant's statements to the police; (4) whether the trial court erred by not suppressing the defendant's statements to third parties; (5) whether the trial court erred by excluding two jurors for cause; (6) whether the trial court erred by limiting the cross-examination of Jeremy Beard; (7) whether the trial court erred in admitting a photograph of the victim's skull and a photograph of the victim taken during her life; (8) whether the trial court erroneously instructed the jury on the definition of "intentional" in the first degree murder charge; (9) whether the trial court erred by failing to instruct vehicular homicide as a lesser included offense of first degree murder; (10) whether T.C.A. SS 39-13-204(f) and 39-13-204(h) are unconstitutional; (11) whether the proportionality review mandated by T.C.A. S 39-13-206 is inadequate because it fails to apply meaningful standards for determining whether a death sentence is disproportionate; and (12) whether the death penalty is unconstitutional because it is imposed in a discriminatory manner. We conclude that the evidence is sufficient to support the jury's verdict and sentencing, that no errors requiring reversal exist, and that the sentence of death is proportional to the penalty imposed in similar cases, considering the nature of the crimes and the defendant. Accordingly, we affirm the convictions and the sentence of death. http://www.tba.org/tba_files/TCCA/rogerswilliamglenn.wpd STATE OF TENNESSEE v. MARSHA KAREN YATES Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender; and William A. Kennedy, Assistant District Public Defender, Blountville, Tennessee, (on appeal); and Carey Taylor, Kingsport, Tennessee, (at hearing), for the appellant, Marsha Karen Yates. Paul G. Summers, Attorney General and Reporter; Michelle Chapman, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Following a revocation hearing, the trial court revoked the probation of Defendant, Marsha Karen Yates, and ordered her to spend the remainder of her sentence in confinement. On appeal, Defendant argues that the trial court abused its discretion in revoking her probation. 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/yatesmarshakaren.wpd STATE OF TENNESSEE v. ROBERT JAMES YORECK, III Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Robert James Yoreck, III.. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Robert James Yoreck, III, pled guilty to aggravated assault, a class C felony. Following a sentencing hearing, the trial court sentenced Yoreck, as a Range II multiple offender, to nine years in the Department of Correction. On appeal, Yoreck argues that his sentence was excessive. After a review of the record, we affirm the sentence as imposed by the Montgomery County Circuit Court http://www.tba.org/tba_files/TCCA/yoreckrobertj.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! 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