Opinion FlashSeptember 8, 2004Volume 10 — Number 173 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 STATE OF TENNESSEE v. ROBERT L. LEACH, JR. WITH DISSENTING OPINION & APPDENDIX Court:TSC Attorneys: Ross E. Alderman, District Public Defender; and Jeffrey A. DeVasher and C. Dawn Deaner (on appeal), and Laura C. Dykes, Deputy Public Defender (at trial), and Amy D. Harwell, Assistant Public Defender (at trial), for the appellant, Robert L. Leach, Jr. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Thomas B. Thurman, Deputy District Attorney General; and Kathy Morante and Katrin Novak Miller, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: HOLDER First Paragraph: In this capital case, the defendant, Robert L. Leach, Jr., was convicted of two counts of first degree premeditated murder, two counts of first degree felony murder, one count of especially aggravated robbery, and one count of aggravated rape. The trial court merged the felony murder convictions with the premeditated murder convictions. The jury imposed sentences of death for the two murder convictions. The trial court imposed two consecutive sentences of twenty-five years for the especially aggravated robbery and aggravated rape convictions, which were ordered to run consecutively to the two death sentences. The Court of Criminal Appeals affirmed Leach's convictions and sentences. On automatic appeal under Tennessee Code Annotated section 39-13- 206(a)(1), we designated the following issues for oral argument: 1) whether the evidence is insufficient to support convictions for premeditated murder and felony murder; 2) whether the trial court erred in prohibiting Leach from presenting a witness to discredit the testimony of Joseph Walker; 3) whether the trial court committed reversible error in instructing the jury to consider evidence of Leach's attack on Dorianne Brown to "complete the story"; 4) whether the death penalty is precluded in this case under Apprendi v. New Jersey, 530 U.S. 466 (2000), because aggravating circumstances were not set out in the indictment; and 5) whether the sentences of death are disproportionate or invalid under the mandatory review of Tennessee Code Annotated section 39-13- 206(c)(1). Having carefully reviewed these issues and the remainder of the issues raised by Leach, we conclude that they do not warrant relief. Accordingly, we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/leachrobertl_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/leachrobertl_dis.wpd APPENDIX http://www.tba.org/tba_files/TSC/leachrobertl_apx.wpd CINDY R. LOURCEY, ET AL. v. ESTATE OF CHARLES SCARLETT, Deceased WITH CONCURRING OPINION Court:TSC Attorneys: Michele M. Brubaker, Parks T. Chastain and Stacey A. Terral, Nashville, Tennessee, for the Appellant, Estate of Charles Scarlett, Deceased. David L. Cooper, Nashville, Tennessee, for the Appellees, Cindy R. Lourcey and Vernon B. Lourcey. Judge: ANDERSON First Paragraph: We granted review to determine (1) whether the complaint states a claim for intentional infliction of emotional distress when it alleges that the defendant's conduct was outrageous because he shot his wife and then himself in plaintiff Cindy Lourcey's presence; and (2) whether the complaint states a claim for negligent infliction of emotional distress when it does not allege that Cindy Lourcey was related to the defendant or his wife. The trial court dismissed the complaint for failure to state a claim upon which relief may be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6). The Court of Appeals reversed the trial court's judgment after concluding that the complaint states claims for intentional and negligent infliction of emotional distress. After reviewing the record and applicable authority, we hold that the plaintiffs state a claim for intentional infliction of emotional distress because Cindy Lourcey witnessed an "outrageous" act, i.e., the defendant's shooting of his wife and himself, and that the plaintiffs state a claim for negligent infliction of emotional distress even though Cindy Lourcey is not related to the defendant or his wife. Accordingly, we affirm the Court of Appeals' judgment. http://www.tba.org/tba_files/TSC/lourceycr_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TSC/lourceycr_con.wpd DERRICK BRYANT v. STATE OF TENNESSEE Court:TCCA Attorneys: Mitzi Sweet, Morristown, Tennessee, for the appellant, James E. Beckner. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Victor Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Derrick Bryant, was convicted by a jury of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. Derrick Bryant, No. E2000-01835-CCA- MR3-CD, 2001 WL 1187916 (Tenn. Crim. App., Knoxville, Oct. 9, 2001). In this post-conviction proceeding, the Defendant alleges that he received ineffective assistance of counsel. After a hearing, the trial court denied relief. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bryantderr.wpd STATE OF TENNESSEE v. ALVIN DOBBINS, JR. Court:TCCA Attorneys: Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Alvin Dobbins, Jr. Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant appeals from an order of the trial court which found him to be in violation of the terms of his community corrections sentence. The trial court ordered that the remainder of the Defendant's sentence be served in confinement. On appeal, the Defendant argues that the trial court abused its discretion in ordering that the Defendant serve his sentence in confinement rather than allowing him to continue in the community corrections program. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/dobbinsalvin.wpd STATE OF TENNESSEE v. JOSEPH CARL GANUS Court:TCCA Attorneys: Richard W. DeBerry, Assistant District Public Defender, Camden, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer Bledsoe, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Joseph Carl Ganus, appeals the sentencing decision of the Hardin County Circuit Court. Ganus pled guilty to Violation of the Motor Vehicle Habitual Offender (MVHO) statute and DUI, third offense. Following a sentencing hearing, Ganus was sentenced to four years confinement in the Department of Correction for violation of the MVHO statute and to eleven months and twenty-nine days for DUI, third offense. These sentences were ordered to be served concurrently. On appeal, Ganus argues that the trial court erred: (1) by not granting him a non-incarcerative sentence and (2) by improperly weighing enhancing factors in establishing the length of his sentence. After review of the record, we find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ganusjc.wpd TONY IVENS v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles G. Currier, Knoxville, Tennessee, for the appellant, Tony Ivens. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Jon Chalmers Thompson, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Tony Ivens, appeals the trial court's denial of his motion for new trial. Following a jury trial, Defendant was convicted of sexual battery. Defendant was fined $3,000 and sentenced to serve two years with all but 90 days to be suspended and served on probation. Defendant filed a motion for new trial or mistrial, alleging that one of the jurors failed to disclose during voir dire that she was related to a staff member of the Monroe County Sheriff's Department. The trial court denied the motion, and Defendant appeals. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ivenstony.wpd STATE OF TENNESSEE v. SHERRY LYNN JOHNSON Court:TCCA Attorneys: Lee Borthick, Springfield, Tennessee, for the appellant, Sherry Lynn Johnson. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; John Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Following a bench trial, the Defendant, Sherry Lynn Johnson, was convicted of assault, a Class A misdemeanor. The trial court placed the Defendant on judicial diversion. In this appeal, the Defendant asserts that the trial court misinterpreted the assault statute and that the evidence is insufficient to support her conviction. Because the Defendant was placed on judicial diversion, no judgment of conviction has been entered, and the Defendant has no appeal as of right under Tennessee Rule of Appellate Procedure 3. Accordingly, the appeal is dismissed. http://www.tba.org/tba_files/TCCA/johnsonsherryl.wpd STATE OF TENNESSEE v. ROGER K. JONES Court:TCCA Attorneys: Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for the appellant, Roger K. Jones. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; J. Scott McCluen, District Attorney General; Frank A. Harvey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Roger K. Jones, appeals the order dismissing his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish either a void judgment or an expired sentence. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/jonesrogerk.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 |
|
© Copyright 2004 Tennessee Bar Association
|