Opinion FlashJuly 14, 2004Volume 10 — Number 134 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 KATHRYN C. BLACK v. STEVAN L. BLACK Court:TCA Attorneys: Hal Gerber and Margaret M. Chesney, Memphis, Tennessee, for the appellant, Kathryn C. Black. Daniel L. Taylor, Memphis, Tennessee, for the appellee, Stevan L. Black. Judge: KIRBY First Paragraph: This is an independent action for fraud and coercion based on a marital dissolution agreement. On September 13, 2000, the parties executed a marital dissolution agreement, and they were divorced by final decree entered in circuit court ninety days later on December 12, 2000. In February 2003, the wife brought this independent action in the chancery court below for damages for fraud, deceit, and coercion. She alleged that the husband had coerced her into signing the marital dissolution agreement by the use of threats, had prevented her from obtaining the benefit of counsel, and had misrepresented the value of his marital assets. The husband filed a motion to dismiss, alleging that the wife had failed to state a claim upon which relief could granted. The trial court dismissed the wife's lawsuit, determining that the complaint was essentially an action to set aside the divorce decree, and that the wife did not set out sufficient facts to support that claim. From that decision, the wife now appeals. We affirm, finding that the allegations in the complaint cannot be the basis for an independent action essentially to set aside the divorce decree. http://www.tba.org/tba_files/TCA/blackkatc.wpd SHIRLEY HALE v. ERWIN OSTROW, ROSE OSTROW, MAX OSTROW WITH DISSENTING OPINION Court:TCA Attorneys: Stephen R. Leffler, Memphis, TN, for Appellant Matthew S. Russell, Gary R. Wilkinson, Attorneys for Appellees Erwin Ostrow & Rose Ostrow Minton P. Mayer, Memphis, TN, for Appellee Max Ostrow Judge: HIGHERS First Paragraph: This is a premises liability and nuisance case that arose when Plaintiff fell on a public sidewalk. Plaintiff's fall occurred on a patch of broken concrete located on the portion of sidewalk abutting Neighbor's property, which is located immediately to the north of the lot owned by Defendants. Plaintiff filed suit alleging that her fall was caused, in part, by overgrown bushes on Defendants' property that obstructed passage on the sidewalk. Defendants moved for summary judgment, arguing that, because the fall took place on broken concrete in front of Neighbor's property, Plaintiff cannot establish duty or causation. The trial court granted Defendants' motion, and, for the following reasons, we affirm. http://www.tba.org/tba_files/TCA/haleshirley_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/haleshirley_dis.wpd IN RE: R.C.P. WITH CONCURRING OPINION Court:TCA Attorneys: Christina B. Jackson, Murfreesboro, Tennessee, for the appellant, M.A.F. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. Judge: KOCH First Paragraph: This appeal involves the termination of a mother's parental rights with regard to her ten-year-old daughter. The Department of Children's Services obtained custody of the child after discovering that she had been sexually abused by her mother's boyfriend. Approximately three months later, the Department and the child's guardian ad litem filed separate petitions in the Juvenile Court for Coffee County to terminate the mother's parental rights based on abandonment under Tenn. Code Ann. S 36-1-113(g)(1) (Supp. 2003) and severe child abuse under Tenn. Code Ann. S 36-1-113(g)(4). Following a bench trial, the juvenile court determined that the Department and guardian ad litem had failed to present clear and convincing evidence of abandonment but concluded that the mother had committed severe child abuse by knowingly failing to protect her daughter from her boyfriend. The mother has perfected this appeal. We have determined that the record contains clear and convincing evidence supporting the juvenile court's conclusion that the mother knowingly failed to protect her child from her boyfriend's sexual abuse and that terminating the mother's parental rights is in the child's best interests. http://www.tba.org/tba_files/TCA/rcp_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/rcp_con.wpd STATE OF TENNESSEE v. ANDREW NEAL DAVIS WITH CONCURRING & DISSENTING OPINION Court:TCCA Attorneys: Jodie A. Bell, Nashville, Tennessee, (on appeal); and Ed Yarbrough, Nashville, Tennessee, (at trial), for the appellant, Andrew Neal Davis. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson III, District Attorney General; Bernard McEvoy, Assistant District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Andrew Neal Davis, was indicted on one count of first degree premeditated murder, one count of first degree felony murder, and one count of aggravated child abuse of a child under the age of eighteen. Defendant's first jury trial ended in a mistrial. On the first day of the second trial, the trial court granted the State's motion, over Defendant's objection, to amend count three of the indictment, aggravated child abuse, to substitute the words "under six years of age" for "under eighteen years of age." At the conclusion of his second jury trial, Defendant was convicted of one count of first degree felony murder and one count of aggravated child abuse of a child under the age of six. Prior to the jury's verdict, the State entered a nolle prosequi as to count one of the indictment, first degree premeditated murder. The trial court sentenced Defendant to life imprisonment with the possibility of parole for the felony murder conviction. Following a sentencing hearing, the trial court sentenced Defendant to twenty-two years imprisonment for the aggravated child abuse conviction as a Range I offender and ordered the sentence for aggravated child abuse to run concurrently with Defendant's life sentence. Defendant does not appeal his sentence for aggravated child abuse. Defendant appeals his convictions alleging (1) that the evidence is insufficient to support Defendant's convictions for first degree felony murder and aggravated child abuse beyond a reasonable doubt; (2) that the trial court erred in allowing the State to introduce autopsy photographs of the victim; (3) that the trial court erred in permitting the State's expert witness, Dr. Ellen Clayton, to offer opinions outside her area of expertise; (4) that the trial court erred in allowing Dr. Bruce Levy to testify as a rebuttal witness; (5) that the State's improper cross-examination of Dr. Charles Harlan at Defendant's first trial which led to Dr. Harlan's refusal to testify at Defendant's second trial resulted in a denial of Defendant's due process rights; and (6) that the trial court erred in allowing count two of the indictment, aggravated child abuse, to be amended on the day of trial to reflect that the victim was under the age of six. After a thorough review of the record and the arguments and briefs of counsel, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/davisandrewneal_opn..wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/davisandrewneal_con.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/davisandrewneal_dis.wpd MARCUS EPPS v. STATE OF TENNESSEE Court:TCCA Attorneys: Lance Chism, Memphis, Tennessee, for the appellant, Marcus Epps. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; David Zak, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Marcus Epps, pled guilty to second-degree murder, three counts of aggravated assault, two counts of attempted especially aggravated robbery, reckless endangerment, and unlawful possession of more than 0.5 grams of a controlled substance with intent to sell. The trial court sentenced the Petitioner to fifteen years in prison at 100 percent for the second-degree murder conviction and ordered that the other sentences, which were of shorter duration, run concurrently to the fifteen-year sentence. The Petitioner filed a petition seeking post-conviction relief, alleging that his attorney was ineffective for: (1) failing to explain the lesser-included charge of facilitation of felony murder; (2) denying to the Petitioner the right to testify at his motion hearing; and (3) depriving the Petitioner of his right to a speedy trial. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court's judgment. http://www.tba.org/tba_files/TCCA/eppsma.wpd STATE OF TENNESSEE v. ANTONIO FULLER AND MARCELLUS BETTY Court:TCCA Attorneys: Jeff Goldtrap (at trial) and Dwight E. Scott (on appeal), Nashville, Tennessee, for the appellant, Antonio Fuller. Justin Johnson (at trial) and Mike J. Urquhart (on appeal), Nashville, Tennessee, for the appellant, Marcellus D. Betty. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; and Dan Hamm and Sharon Brox, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendants, Antonio Fuller and Marcellus Betty, were each convicted of one count of aggravated burglary, one count of aggravated robbery, two counts of especially aggravated kidnapping, one count of evading arrest, and one count of reckless endangerment. The trial court sentenced defendant Fuller, a Range II offender, to ten years for aggravated burglary, eighteen years for aggravated robbery, thirty-five years for each especially aggravated kidnapping, seven years for evading arrest, and four years for reckless endangerment and ordered partially consecutive service for an effective sentence of fifty-six years. The trial court sentenced defendant Betty, a Range I offender, to six years for aggravated burglary, twelve years for aggravated robbery, twenty-five years for each especially aggravated kidnapping, four years for evading arrest, and two years for reckless endangerment. The terms for especially aggravated kidnapping were ordered to be served concurrently to each other and consecutively to the other sentences, which are to be served consecutively, for an effective sentence of forty-nine years. In this appeal, Fuller asserts that (1) the evidence is insufficient to support his convictions; (2) his conviction for especially aggravated kidnapping of one of the victims violates the rule established in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); (3) the trial court erred by refusing to provide a range of punishment instruction to the jury; and (4) the trial court misapplied certain enhancement factors and should not have imposed consecutive sentencing. Betty contends (1) that the trial court erred by refusing to sever his case from Fuller's; (2) that the evidence is insufficient to support his convictions; (3) that the trial court erred by not granting a mistrial when the state failed to disclose a recording of a 911 call; (4) that the trial court erred by failing to merge the convictions for aggravated robbery and especially aggravated kidnapping; (5) that the trial court misapplied certain enhancement and mitigating factors; and (6) that the trial court erred by imposing consecutive sentencing. Because each of the defendants' convictions for the especially aggravated kidnapping of one of the victims violates the rule established in Anthony, they are reversed and dismissed. Further, because the sentences for especially aggravated kidnapping were ordered to be served concurrently to each other, no modification of the effective sentence is necessary. Otherwise, the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/fullerbetty.wpd STATE OF TENNESSEE v. AGEE GABRIEL Court:TCCA Attorneys: Michael H. Sneed, Nashville, Tennessee, for the Appellant, Agee Gabriel. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; Mike Bottoms, District Attorney General; and Beverly White, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Agee Gabriel appeals from the Giles County Circuit Court's revocation of his probationary sentence. Alleging myriad procedural and substantive errors, he asks this court to reverse the revocation order. However, we are unpersuaded of error and therefore affirm the lower court. http://www.tba.org/tba_files/TCCA/gabrielagee.wpd STEVEN GRIFFIN v. STATE OF TENNESSEE WITH DISSENTING OPINION Court:TCCA Attorneys: Steven Griffin, Appellant, Pro Se. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Doug Thurman, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Steven Griffin, appeals the trial court's denial of his request for forensic DNA analysis, pursuant to the Post-Conviction DNA Analysis Act of 2001. Our review discloses that the trial court ruled correctly, and we affirm the denial of the petitioner's request. http://www.tba.org/tba_files/TCCA/griffinsteven_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/griffinsteven_dis.wpd STATE OF TENNESSEE v. ROBERT THOMAS HARRIS Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal), and Andrew Jackson Dearing, III, Assistant Public Defender (on appeal and at trial), for the appellant, Robert Thomas Harris. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Robert Thomas Harris, pled guilty to driving on a revoked license, fourth offense. A jury found the defendant guilty of felony evading arrest and driving under the influence, sixth offense. The trial court imposed sentences of eleven months and twenty-nine days for driving on a revoked license, twelve years for felony evading arrest, and six years for DUI. The sentences were ordered to be served concurrently. The defendant was sentenced as a career offender. See Tenn. Code Ann. S 40-35-108(a)(3). In this appeal of right, the defendant argues that the trial court erred by concluding that he was a career offender. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/harrisrt.wpd ANTHONY DARRELL HINES v. STATE OF TENNESSEE Court:TCCA Attorneys: Donald E. Dawson, Post-Conviction Defender; and Jon Joseph Tucci, Assistant Post-Conviction Defender, Nashville, Tennessee, for the appellant, Anthony Darrell Hines. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and B. Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The opinion of the court in this matter was released on January 23, 2004, and the petitioner filed an application for permission to appeal. On June 28, 2004, our supreme court granted the application and remanded to this court, directing that we reconsider our previous conclusion that "the trial court charged the incorrect version of the aggravating circumstance in Tennessee Code Annotated section 39-2-203(i)(5) (1982)." We have reconsidered this issue and conclude that the trial court utilized the correct version of this statute when instructing the jury at the resentencing hearing as to aggravating circumstances. Additionally, as explained in this opinion on remand, we erred in the original opinion by stating that our supreme court had addressed, in the direct appeal of the resentencing hearing, whether "instructing an inapplicable version of aggravating circumstance (i)(5) was harmless error." In fact, the court did not do so. In our opinion on remand, we again affirm the post-conviction court's denial of relief, and refile our opinion which has been altered only to reflect our consideration of those matters, as previously explained, set out in the remand order. http://www.tba.org/tba_files/TCCA/hinesanthonyd.wpd STATE OF TENNESSEE v. JAMES G. HUPPE, JR. Court:TCCA Attorneys: John Wayne Allen, Cookeville, Tennessee, for the appellant, James G. Huppe, Jr. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Clement Dale Potter, District Attorney General; and Larry G. Bryant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, James G. Huppe, Jr., was convicted of burglary and theft over $1000, Class D felonies, and was sentenced to concurrent terms of three years, suspended except for fifty-three days, with the balance to be served on probation. Additionally, he was ordered to pay restitution in the amount of $4278 and was fined a total of $10,000. On appeal, he argues that he was denied his right to a speedy trial, the court erred in restricting his cross-examination of the victim, and the evidence is insufficient to sustain the convictions. Following our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/huppejamesg.wpd STATE OF TENNESSEE v. ALFRED N. MASON Court:TCCA Attorneys: Richard McGee, Nashville, Tennessee, for the appellant, Alfred N. Mason. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Alfred N. Mason, pled guilty to possession of over twenty-six grams of cocaine with the intent to sell, a Class B felony, and was sentenced as a Range I, standard offender to ten years in the Department of Correction. On appeal, he argues that the trial court erred in denying alternative sentencing. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/masonalfredn.wpd STATE OF TENNESSEE v. DONNIE MOORE Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the Appellant, Donnie Moore. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michael Markham, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Donnie Moore, appeals from the ruling of the Carroll County Circuit Court, which found that Moore violated the conditions of probation imposed by the Carroll County General Sessions Court. Following a hearing, the general sessions court partially revoked Moore's probation and ordered him to serve ninety days in jail. Moore appealed to the Carroll County Circuit Court. The circuit court agreed that Moore had violated the terms of his probation and remanded the case to the general sessions court for enforcement of the sentence. On appeal, Moore argues that the circuit court erred by failing to conduct a de novo review of the sentence imposed by the general sessions court and that his sentence was the result of vindictive prosecution. Because the circuit court failed to review Moore's sentence following revocation of his probation, we remand the case to the circuit court for that limited purpose. http://www.tba.org/tba_files/TCCA/mooredonnie.wpd STATE OF TENNESSEE v. JUAN LUIS RAVELL Court:TCCA Attorneys: William J. Eledge, Lawrenceburg, Tennessee, for the appellant, Juan Luis Ravell. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; Mike Bottoms, District Attorney General; and Patrick S. Butler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant entered guilty pleas in Giles County to aggravated rape, especially aggravated burglary, and assault. After imposition of the sentences, but before the judgments became final, the defendant filed a pro se motion to withdraw the guilty pleas. The trial court denied the motion. The defendant also filed a motion alleging error coram nobis, which was denied by the trial court. Both denials were consolidated for this appeal. Upon review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/ravelljuan.wpd JOHN EARL SCALES v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, John Earl Scales. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Ryan D. Brown, 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 felony murder and attempted aggravated robbery. On appeal, the petitioner contends he received ineffective assistance of counsel at trial and on appeal. We affirm the judgment of the post- conviction court. http://www.tba.org/tba_files/TCCA/scalesjohn.wpd STATE OF TENNESSEE v. BRANDON SCOTT WATSON Court:TCCA Attorneys: Jeffery A. DeVasher, Assistant Public Defender, Nashville, Tennessee, for the Appellant, Brandon Scott Watson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Brandon Scott Watson, appeals from the sentencing decision of the Davidson County Criminal Court. In January of 2003, Watson pled guilty to two counts of burglary of an automobile, class E felonies. Pursuant to a negotiated plea agreement, Watson received concurrent two-year sentences and, following a sentencing hearing, he was placed in the Community Corrections program. On April 15, 2003, a warrant was issued, alleging that Watson had violated conditions of his behavioral contract. Following an evidentiary hearing, the trial court revoked his community corrections sentences and modified the previously imposed concurrent sentences to reflect that they be served consecutively. In this appeal, Watson contends that: (1) the trial court erred in revoking his community corrections sentence based on "unreliable hearsay" evidence, specifically, the testimony of his community corrections case officer's referencing a report prepared by a Davidson County Drug Court investigator, who was not present to testify at the revocation hearing, and (2) the trial court erred in ordering his sentences to run consecutively. After a review of the record, we find no reversible error and affirm the sentencing decision of the trial court. http://www.tba.org/tba_files/TCCA/watsonbrandons.wpd STATE OF TENNESSEE v. HARRIL JAY WISDOM
Court:TCCA
Attorneys:
Gerald L. Melton, District Public Defender; and Russell N. Perkins,
Assistant District Public Defender, for the appellant, Harril Jay
Wisdom.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and John W. Price, III, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant pled guilty to violation of a motor vehicle habitual
offender ("MVHO") order, a Class E felony, in exchange for a one-year
sentence in the Department of Correction. With the permission of the
trial court and the State, he sought to reserve as a certified
question of law whether the expiration prior to his offense of the
three-year time period specified in the order declaring him a MVHO
precluded his prosecution for the offense. Because we conclude that
the defendant failed to meet the requirements for properly reserving a
certified question of law pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2), we dismiss the appeal.
http://www.tba.org/tba_files/TCCA/wisdomharrilj.wpd
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