Opinion FlashJuly 8, 2004Volume 10 — Number 130 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 CHRISTY JOHNSON, ET AL. v. DUNCAN E. RAGSDALE Court:TCA Attorneys: David Burlison, Memphis, TN; John J. Allan, St. Louis, MO, for Appellants David M. Cook, Virginia M. Patterson, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves the dismissal of Appellant's legal malpractice claim against Appellee on the basis that Appellee, after the initial dismissal of Appellant's medical malpractice claim, failed to file a lawsuit before the statutory period for refiling expired. The General Sessions Court of Shelby County entered a judgment for Appellee. Appellant subsequently appealed this decision to the Circuit Court of Shelby County, which dismissed Appellant's cause for lack of jurisdiction. We reverse the circuit court's decision and remand for further proceedings. http://www.tba.org/tba_files/TCA/johnschr.wpd SAM SPICER, ET AL. v. STACE THOMPSON, ET AL. Court:TCA Attorneys: James Douglas Kay, Matthew Brothers, Tom Price Thompson, III, Nashville, Tennessee, for the appellees, cross-appellants, Sam Spicer and wife, Karen Spicer. Gregory Hall Oakley, Nashville, Tennessee, for the appellant, Don Pickard and, cross-appellees, Don Pickard, Stace Thompson and Howard Morris. Judge: CAIN First Paragraph: Appellant Don Pickard appeals the action of the trial court finding that he defamed Sergeant Sam Spicer in public statements to the news media. Spicer cross appeals from the action of the trial court in dismissing his malicious prosecution action against Don Pickard, Stace Thompson and Howard Morris. We affirm the action of the trial court in the defamation case and affirm the action of the trial court in the malicious prosecution case as to Howard Morris. The malicious prosecution case against Don Pickard and Stace Thompson is affirmed in part and reversed in part. The case is remanded to the trial court for further proceedings. http://www.tba.org/tba_files/TCA/spicersam.wpd STATE OF TENNESSEE v. RICKY GROVER AARON Court:TCCA Attorneys: Jeffrey DeVasher, Assistant Public Defender, Nashville, Tennessee, for the appellant, Ricky Grover Aaron. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson , District Attorney General; Brian Holmgren and Lisa Naylor, Assistant Districts Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On October 28, 1999, the defendant, Ricky Grover Aaron, was indicted by the Davidson County Grand Jury for especially aggravated sexual exploitation of a minor and especially aggravated kidnapping. Following a jury trial in June of 2001, the defendant was convicted of especially aggravated sexual exploitation of a minor and false imprisonment. The trial court sentenced the defendant to eleven years for especially aggravated sexual exploitation of a minor and eleven months, twenty-nine days for false imprisonment. The sentences were to run concurrently to each other and consecutively to a federal sentence the defendant was serving at the time of trial. The defendant argues eight issues on appeal:(1) whether the trial court erred in denying the defendant's motion to dismiss due to unnecessary delay; (2) whether the trial court erred in denying the defendant's pretrial motion to suppress his alleged admissions to police because the defendant was subjected to custodial interrogation without having been given Miranda warnings; (3) whether the trial court erred in denying the defendant's motion to suppress a handgun seized by police from his vehicle; (4) whether the evidence in the record is sufficient to support a finding by a rational trier of fact that the defendant is guilty beyond a reasonable doubt of especially aggravated sexual exploitation of a minor and false imprisonment; (5) whether the trial court erred in admitting alleged hearsay testimony related to the alleged victim's mother's response to her daughter's characterization of the defendant as a "pervert"; (6) whether the trial court erred in admitting evidence that another person had been convicted of a sexual offense involving the alleged victim in an unrelated case; (7) whether the trial court erred in failing to declare a mistrial when the prosecutor, in direct violation of the trial court's pretrial ruling, elicited testimony from a police detective that the defendant admitted having child pornography on his computer; and (8) whether the trial court erred in imposing an excessive sentence for the defendant's conviction for especially aggravated sexual exploitation of a minor, and did the court further err in ordering that the sentences in this case be served consecutively to the defendant's federal sentence. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/aaronrg.wpd STATE OF TENNESSEE v. ROGER DALE BRYAN Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee; Michael Collins & Curtis Gann, Assistant Public Defenders, Shelbyville, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; W. Michael McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Roger Dale Bryan, was convicted of driving under the influence (DUI), fourth offense, and driving on a revoked license, third offense, by a Bedford County jury. The verdict returned by the jury found Bryan guilty of both driving and being in physical control while under the influence. On appeal, Bryan challenges the legal sufficiency of the proof supporting each basis for conviction. After review of the record, we find the evidence sufficient for both and affirm the judgments of conviction, which were merged into a single conviction for DUI. http://www.tba.org/tba_files/TCCA/bryanrogerd.wpd STATE OF TENNESSEE v. BRYAN K. MILLER Court:TCCA Attorneys: David McGovern, Assistant Public Defender, Jasper, Tennessee, for the Appellant, Bryan K. Miller. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michelle R. Chapman, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Bryan K. Miller, appeals his conviction for driving under the influence (DUI), fourth offense. On appeal, Miller raises the single issue of whether the evidence was sufficient to support his conviction. Finding the evidence legally sufficient, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/millerbryank.wpd SKYLA SEPEDA SMITH v. CHERRY LINDAMOOD, WARDEN, and STATE OF TENNESSEE Court:TCCA Attorneys: John C. Ford, Nashville, Tennessee, for the appellant, Skyla Sepeda Smith. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Skyla Sepeda Smith, filed a petition for habeas corpus relief in the Davidson County Criminal Court. In the petition she alleged that the conviction she received after pleading guilty to one count aggravated child abuse is illegal and void because a conflict between the guilty plea and the judgment effectively resulted in an illegal sentence. The Davidson County Criminal Court dismissed the petition. Because the petitioner does not present a cognizable claim for habeas corpus relief, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/smithskyla.wpd ROGER LEE WILSON v. STATE OF TENNESSEE Court:TCCA Attorneys: David A. Stuart, Clinton, Tennessee, for the appellant, Roger Lee Wilson. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Roger Lee Wilson, was indicted by the Anderson County Grand Jury on 28 counts, including charges of child rape, aggravated sexual battery, and statutory rape, and against multiple victims. The trial court severed the counts, and count five was the only count to be tried by a jury. The jury found Petitioner guilty of the charged offense of rape of a child. Following the jury trial, Petitioner entered "best interest" guilty pleas to several other counts, and the remaining counts were dismissed by nolle prosequi. Pursuant to the negotiated plea agreement, Petitioner waived his right to a direct appeal from his conviction and sentence in count five. For all of his convictions, Petitioner received an effective sentence of 22 years. Petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. Specifically, Petitioner argues that trial counsel was ineffective for failing to raise as an issue at trial that there was a fatal variance between the indictment and the proof; failing to call Hubert Wallace, Art Moore, and Dwayne Wilson as witnesses at trial; and requesting to reserve his opening statement until after the close of the State's proof. Petitioner also argues that his counsel who withdrew from representation prior to trial was ineffective for misplacing evidence. Finally, Petitioner argues that his guilty pleas were not knowingly and voluntarily entered, and that the waiver of his right to appeal is not valid. The trial court denied post-conviction relief and Petitioner appeals. After reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wilsonrogerlee.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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