Opinion FlashJuly 28, 2004
Volume 10 Number 144
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):
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Howard H. Vogel
WAYLAND MOSLEY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: Francis H. Young, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County. John M. Cannon, Goodlettsville, Tennessee and David L. Cooper, Nashville, Tennessee, for the appellee, Wayland Mosley. Judge: CAIN First Paragraph: Metropolitan Government of Nashville and Davidson County appeals from the judgment of the trial court in favor of Plaintiff Mosley, a motorcycle patrolman, who was seriously injured in an on-duty motorcycle accident. Applying comparative fault principles the trial judge held Metro 75% at fault and Mr. Mosley 25% at fault for his injuries. Finding that Plaintiff has failed to establish cause-in- fact between the alleged defect in the helmet and the injuries to Plaintiff, we reverse the action of the trial court. http://www.tba.org/tba_files/TCA/mosleyway.wpd
VANDERBILT MORTGAGE & FINANCE, INC. v. JOSEPH ROTELLO, ET AL. Court:TCA Attorneys: George T. Underwood, Jr., Knoxville, Tennessee, for the Appellants Joseph and Nina Rotello. Anthony R. Steele, Knoxville, Tennessee, for the Appellee Vanderbilt Mortgage & Finance, Inc. Judge: SWINEY First Paragraph: Joseph and Nina Rotello ("Defendants") purchased a mobile home from Clayton Sevierville and financed the purchase through Vanderbilt Mortgage & Finance, Inc. ("Plaintiff"). After Defendants defaulted on the installment contract, Plaintiff filed suit and then filed a properly supported motion for summary judgment seeking possession of the mobile home. Defendants, who were proceeding pro se, filed a response to the motion for summary judgment, but failed to offer any competent proof to establish a genuine issue of material fact for trial. The Trial Court granted Plaintiff's motion for summary judgment, and we affirm. http://www.tba.org/tba_files/TCA/vanderbmort.wpd
STATE OF TENNESSEE v. DAVID SCOTT AKERS Court:TCCA Attorneys: John W. Palmer and Jason L. Hudson, Dyersburg, Tennessee, (on appeal); and H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee, (at trial), Attorneys for the Appellant, David Scott Akers. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Charles Dyer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, David Scott Akers, was indicted for the crimes of robbery and attempted robbery and, following a jury trial, was convicted of theft under $500 and attempted robbery. The trial court consolidated the sentencing hearing for these convictions with Akers' two pending probation revocation hearings. Following this hearing, Akers received an effective ten-year sentence for his two jury convictions and two one-year sentences from the revocation of his sentences for violation of the Motor Vehicle Habitual Offender (MVHO) Act. On appeal, Akers raises three issues for our review: (1) whether the trial court erred in admitting Akers' three prior MVHO convictions for impeachment purposes; (2) whether he was denied the effective assistance of counsel at trial and at sentencing; and (3) whether the trial court erred in conducting the revocation hearing without proper notice. Finding no error, the judgments of the Dyer County Circuit Court are affirmed. http://www.tba.org/tba_files/TCCA/akersdav.wpd
MICHAEL DOUGLAS v. STATE OF TENNESSEE Court:TCCA Attorneys: Lance R. Chism, Memphis, Tennessee, Attorney for Appellant, Michael Douglas. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Michael Douglas, appeals as of right from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. Douglas was convicted in 2000 of attempted second degree murder and especially aggravated robbery. On appeal, Douglas contends that he was denied the effective assistance of counsel due to trial counsel's (1) failure to seek suppression of a photo array because the photograph used was obtained following an unlawful arrest and (2) failure to adequately cross-examine a witness as to whether an agreement existed between the witness and the State. After review of the issues presented, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/douglasmic.wpd
WILLIAM HACKWORTH v. STATE OF TENNESSEE Court:TCCA Attorneys: Anne M. Davenport, Nashville, Tennessee, for the appellant, William Hackworth. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, William Hackworth, pled guilty to four counts of incest and received an effective twelve- year sentence as a Range I offender. Petitioner filed a pro se petition for post-conviction relief, alleging, in part, that his trial counsel was ineffective for failing to seek DNA testing in order to establish the paternity of the child borne of the victim in this case. The trial court summarily dismissed the petition, finding that it was filed outside the one-year statute of limitations and that Petitioner was not entitled to post-conviction DNA analysis. Petitioner appeals the trial court's denial of post-conviction relief. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hackworthwilliam.wpd
STATE OF TENNESSEE v. MICHAEL K. MILLER Court:TCCA Attorneys: Joseph Ozment and Jesse W. Dalton, III, Memphis, Tennessee, for the Appellant, Michael K. Miller. Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kevin Rardin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Aggrieved of the order to serve 90 days of his two-year sexual battery sentence in confinement, the defendant, Michael K. Miller, appeals. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/millermik.wpd
STATE OF TENNESSEE v. BERNARD E. ROLLER, JR. Court:TCCA Attorneys: Edward L. Holt, Jr., Murfreesboro, Tennessee, for the appellant, Bernard E. Roller, Jr. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Gigi Braun, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Following a jury trial, the appellant, Bernard E. Roller, Jr., was convicted of driving under the influence. The trial court sentenced the appellant to an eleven month, twenty-nine-day sentence and suspended all of the sentence except for fifteen days, which the appellant was ordered to serve in the workhouse. After the denial of a motion for new trial, the appellant filed a timely notice of appeal challenging: (1) his sentence as excessive; (2) the trial court's decision to exclude evidence about the tachograph in the police officer's car; (3) comments made by the prosecutor during rebuttal argument; (4) the trial court's failure to take corrective action following the prosecutor's prejudicial comments; and (5) the trial court's failure to question the appellant in accordance with Momon v. State, 18 S.W.3d 152 (Tenn. 1999). Although we conclude that issues (1), (2), (3), and (4) are without merit, the record is devoid of evidence to allow this Court to determine whether the appellant personally and knowingly waived his right to testify. Therefore, we remand the case to the trial court for a hearing to determine whether the appellant's right to testify was violated, and if so, whether the violation of the appellant's right to testify was harmless beyond a reasonable doubt. http://www.tba.org/tba_files/TCCA/rollerbernard.wpd
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