Opinion Flash

September 15, 2004
Volume 10 — Number 178

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):
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


THE CITY OF MEMPHIS v. SHELBY COUNTY ELECTION COMMISSION, ET AL.

Court:TSC

Attorneys:                          

Allan J. Wade, Lori Hackleman Patterson, Brandy S. Parrish, Sara L.
Hall, Memphis, Tennessee, for the appellant, The City of Memphis.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Ann Louise Vix, Senior Counsel, Charles L. Lewis,
Deputy Attorney General, Nashville, Tennessee, for the appellee,
Shelby County Election Commission, Gregory M. Duckett, Richard J.
Holden and Maura Black Sullivan, Members.

Judge: DROWOTA

First Paragraph:

In this expedited appeal, this Court is asked to decide whether the
Shelby County Election Commission exceeded its authority by refusing
to place Referendum Ordinance No. 5072 on the November 2, 2004, ballot
based upon the State Election Coordinator's opinion that the Ordinance
is unconstitutional.  We hold that the Shelby County Election
Commission exceeded its authority in refusing to place the measure on
the ballot.  Accordingly, the judgment of the trial court is reversed,
and the Commission is hereby ordered to include Referendum Ordinance
No. 5072 on the November 2, 2004, ballot.

http://www.tba.org/tba_files/TSC/cityofmemphis.wpd

J.E.B. v. J.C.W.

Court:TCA

Attorneys:                          

Kevin W. Shepherd, Maryville, for the Appellant J.C.W.

Sandra E. Myatt, Maryville, for the Appellee J.E.B.

Judge: LEE

First Paragraph:

This is a child custody case.  After a trial, the trial court
designated the Father as primary residential custodian of the parties'
child.  Mother appeals, arguing that the trial court should have
awarded her primary residential custody.  We find that the evidence
does not preponderate against the trial court's finding that the
child's best interests are served by awarding Father primary
residential custody.  Consequently, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCA/jeb.wpd

STATE OF TENNESSEE v. CORNELIUS D. HICKS, aka "HOLLYWOOD," and TROY
LEE SPRINGFIELD

Court:TCCA

Attorneys:                          

D. Michael Dunavant, Ripley, Tennessee, for the appellant, Cornelius
D. Hicks; and David M. Livingston, Brownsville, Tennessee, for the
appellant, Troy Lee Springfield.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendants, Cornelius D. Hicks and Troy Lee Springfield, and two
codefendants, Bryan T. Oldham and Kenyale M. Pirtle, were charged with
aggravated assault, a Class C felony, for firing a gun at the victim,
Keiston Campbell, as he drove his car down a Henning street.  Pirtle
subsequently pled guilty to aggravated assault, and a fifth individual
involved in the incident had his case handled in juvenile court.  The
three remaining defendants, Springfield, Hicks, and Oldham, were tried
jointly before a Lauderdale County Circuit Court jury, which acquitted
Oldham but convicted both Hicks and Springfield of the lesser-included
offense of facilitation of aggravated assault, a Class D felony.  The
trial court sentenced Hicks as a Range I, standard offender to three
years in the Department of Correction, with the sentence suspended and
the defendant placed on supervised probation following service of 250
days, to be served consecutively to a sentence for an offense for
which he was on probation at the time of the instant offense. 
Springfield was sentenced as a Range I, standard offender to three
years in the Department of Correction, with the sentence ordered to be
served consecutively to his sentence for violation of parole.  The
sole issue Hicks raises on appeal is whether the evidence was
sufficient to sustain his conviction.  Springfield challenges the
trial court's denial of his motions to sever his trial and for
judgment of acquittal.  Following our review, we affirm the judgments
of the trial court.

http://www.tba.org/tba_files/TCCA/hickscornd.wpd

STATE OF TENNESSEE v. LARRY HUNT

Court:TCCA

Attorneys:                          

W. Mark Ward (on appeal) and Trent Hall (at trial), Assistant Public
Defenders, Memphis, Tennessee, for the appellant, Larry Hunt.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephen Jones, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Larry Hunt, was convicted by a jury in the Shelby
County Criminal Court of one count of aggravated rape, one count of
aggravated robbery, and one count of aggravated kidnapping.  Following
a hearing, the trial court sentenced the appellant to twenty-five
years incarceration for the aggravated rape conviction, twelve years
incarceration for the aggravated robbery conviction, and twelve years
incarceration for the aggravated kidnapping conviction.  The trial
court ordered the sentence for aggravated rape be served consecutively
to the remaining sentences, for an effective thirty-seven year
sentence.  On appeal, the appellant challenges the sufficiency of the
evidence to support his conviction of aggravated rape and the
imposition of consecutive sentencing.  In light of the United States
Supreme Court's decision in Blakely v. Washington, __ U.S. __, 124 S.
Ct. 2531 (2004), we modify the appellant's sentence for aggravated
rape to twenty-two years and the sentences for aggravated robbery and
aggravated kidnapping to ten years, for an effective sentence of
thirty-two years incarceration.  We also vacate the judgment of
conviction for count two of indictment number 00-12640, which judgment
was entered in error.  We otherwise affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/huntlarry.wpd

STATE OF TENNESSEE v. ALFONSO MARTINEZ

Court:TCCA

Attorneys:                          

Bradley G. Kirk, Lexington, Tennessee (at trial and on appeal) and
Frankie K. Stanfill, Lexington, Tennessee (at trial), for the
appellant, Alfonso Martinez.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and William R. Martin, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Alfonso Martinez, was found guilty by a jury in the
Henderson County Circuit Court of felony possession of drug
paraphernalia and was sentenced to two years incarceration in the
Tennessee Department of Correction.  On appeal, the appellant's sole
issue is the constitutionality of Tennessee Code Annotated sections
39-17-424 and 39-17-425 (2003).  Upon review of the record and the
parties' briefs, we conclude that the appellant has waived his issue. 
Therefore, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/martinezalf.wpd

STATE OF TENNESSEE v. DARRY MILLER

Court:TCCA

Attorneys:                          

Julie K. Pillow, Somerville, Tennessee (at trial and on appeal); and
Clifford K. McGown, Jr., Waverly, Tennessee (on appeal only), for the
Appellant, Darry Miller.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey Brewer, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Darry Miller appeals from his Lauderdale County Circuit Court
conviction of delivery of a Schedule II controlled substance less than
0.5 grams.  He claims that the evidence presented at trial is
insufficient to sustain a conviction.  We disagree and affirm.

http://www.tba.org/tba_files/TCCA/millerdarry.wpd

STATE OF TENNESSEE v. GREGORY MORROW

Court:TCCA

Attorneys:                          

Jack McNeil, Memphis, Tennessee (at trial and on appeal), and Lance
Chism, Memphis, Tennessee (at trial), for the appellant, Gregory
Morrow.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Scot A. Bearup and Tiffani Taylor, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Gregory Morrow, was found guilty by a jury in the
Shelby County Criminal Court of possessing 300 grams or more of
cocaine with the intent to sell, possessing 300 grams or more of
cocaine with the intent to deliver, and two counts of possessing
marijuana.  The appellant received a total effective sentence of
fifteen years incarceration in the Tennessee Department of Correction.
 On appeal, the appellant challenges the trial court's ruling on his
motion to suppress and raises complaints regarding the application of
Rule 41(g) of the Tennessee Rules of Criminal Procedure.  Upon our
review of the record and the parties' briefs, we affirm the judgments
of the trial court, but we remand for a merger of the appellant's two
cocaine convictions and his two marijuana convictions.

http://www.tba.org/tba_files/TCCA/morrowgreg.wpd

STATE OF TENNESSEE v. SYREETA PATTERSON

Court:TCCA

Attorneys:                          

Jake Erwin, Memphis, Tennessee, for the appellant, Syreeta Patterson.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Lee Coffee, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Syreeta Patterson, pled guilty in the Shelby County
Criminal Court to voluntary manslaughter.  Pursuant to a plea
agreement, the appellant was sentenced to six years with the manner of
service to be determined by the trial court.  Following a hearing, the
trial court denied the appellant's request for alternative sentencing,
and the appellant timely appealed.  Upon review of the record and the
parties' briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/pattersnsyreeta.wpd

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