Opinion Flash

September 16, 2004
Volume 10 — Number 179

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):
00 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
02 New Opinion(s) from the Tennessee Court of Appeals
09 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


IN RE:  ESTATE OF CORA VEAL
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Barry K. Maxwell, Knoxville, Tennessee, for the appellant, Monroe
County Senior Citizens Center.

W. Holt Smith, Madisonville, Tennessee, for the appellees, Randall
Tallent and Lon Shoopman, Co- Executors of the Estate of Cora Veal.

Judge: SUSANO

First Paragraph:

The Monroe County Senior Citizens Center ("the Center") - a 501(c)(3)
non-profit corporation - filed a claim against the Estate of Cora Veal
("the Estate").  The Center alleges that Cora Veal ("Mrs. Veal")
personally promised to pay for repairs to the Center's roof, but that
she failed to completely honor her promise prior to her death at the
age of 92 on September 16, 2002.  The trial court denied the Center's
claim.  The Center appeals, claiming the trial court erred in its
interpretation of Tenn. Code Ann. S 24-1-203 (2000), the so-called
Tennessee Dead Man's Statute ("the Statute").  We affirm

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/vealcora_dis.wpd

SUSAN LOUISE MOOR WEISSFELD v. STEVEN CURTIS WEISSFELD

Court:TCA

Attorneys:                          

Kevin W. Shepherd, Maryville, Tennessee, for the Appellant, Susan
Louise Moor Weissfeld

Gregory H. Harrison, Knoxville, Tennessee, for the Appellee, Steven
Curtis Weissfeld

Judge: LEE

First Paragraph:

This appeal arises from a post-divorce case in which the trial court
found the Appellant to be in both criminal and civil contempt for her
failure to comply with the court's order respecting co-parenting time
and division of property.  The Appellant contends that the trial court
erred in its finding of criminal contempt because she was not provided
adequate notice under Tenn. R. Crim. P. 42(b).  The Appellant also
contends that the trial court erred  in its award of attorney's fees
to opposing counsel.  We reverse the trial court's order to the extent
that it decrees the Appellant to be in criminal contempt and we modify
the trial court's order which awards attorney's fees to opposing
counsel.

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

STATE OF TENNESSEE v. L.H. CUTSHALL

Court:TCCA

Attorneys:                          

Frank L. Slaughter, Jr., Bristol, Tennessee, for the appellant, L. H.
Cutshall

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Greeley Wells, District Attorney General;
and Rebecca Davenport, Assistant District Attorney General,  for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On November 13, 2002, the defendant, Leonard H. Cutshall, was indicted
by the Sullivan County Grand Jury for (1) transportation of untaxed
beer in excess of 100 cases and (2) depriving the State of lawful
revenue, both Class E felonies.  The defendant pled guilty to these
charges at a hearing held on April 21, 2003.  As part of the plea
agreement, the defendant was to be sentenced to two years as a Range
II offender for each count and pay a fine of $2,000 for each count. 
In addition, the defendant was ordered to pay the State $511.27 in
lost revenue.  At a hearing held on September 15, 2003, the trial
court denied the defendant alternative sentencing and probation.  The
defendant has appealed that decision to this Court.  We have found no
error on the part of the trial court.  Therefore, we affirm the
decision of the trial court.

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

STATE OF TENNESSEE v. LILLY BELL GIFFORD

Court:TCCA

Attorneys:                          

Cynthia Hall Templeton, Gallatin, Tennessee, for the appellant, Lilly
Bell Gifford.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Dee Gay, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Lilly Bell Gifford, pled guilty in the Sumner County
Criminal Court to the sale of cocaine, and the trial court sentenced
her to six years incarceration in the Tennessee Department of
Correction.  However, the appellant was permitted to serve the bulk of
her sentence on probation.  Thereafter, the trial court revoked the
appellant's probation and ordered her to serve the balance of her
sentence in confinement.  On appeal, the appellant challenges the
revocation of her probationary sentence.  Upon our review of the
record and the parties' briefs, we affirm the judgment of the trial
court.

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

STATE OF TENNESSEE v. CHRISTOPHER HATCHER

Court:TCCA

Attorneys:                          

Juni Ganguli and James Thomas, Memphis, Tennessee, for the appellant,
Christopher Hatcher.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Tom Hoover and Michelle Parks, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Christopher Hatcher, was tried and convicted for first
degree felony murder, second degree murder, attempted first degree
murder and reckless endangerment for shooting three victims.  The
trial court merged the second degree murder conviction with the felony
murder conviction and then sentenced the Defendant to life with the
possibility of parole for the felony murder conviction, twenty years
for the attempted murder conviction, and eleven months and twenty-nine
days for the reckless endangerment conviction.  The Defendant appeals,
contending that:  (1) the trial court erred by not granting his motion
for new trial because the State failed to give the Defendant
exculpatory evidence; (2) the trial court improperly allowed the State
to refer to an alleged robbery previously committed by the Defendant;
(3) the trial court erred when it allowed a witness to testify about
the alleged robbery; (4) the trial court improperly allowed expert
fingerprint testimony; (5) the trial court erred when it did not grant
a mistrial based upon the State's biblical references; (6) the trial
court erred by refusing to dismiss a sleeping juror; (7) the trial
court erred when it allowed hearsay testimony of a witness; and (8)
the evidence is insufficient to sustain his conviction.  After a
thorough review of the record and applicable case law, we conclude
that there is no reversible error in the judgments of the trial court.
 Accordingly, we affirm its judgments.

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

DEMETRIUS LANCASTER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lucy D. Henson, Pulaski, Tennessee, for the appellant, Demetrius
Lancaster.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; T. Michel Bottoms, District Attorney
General; and Patrick S. Butler, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Demetrius Lancaster, appeals as of right from the
order of the Giles County Circuit Court holding that his petition for
post-conviction relief was barred by the statute of limitations.  The
petitioner contends that the trial court erred in dismissing his
petition for being filed outside the one- year statute of limitations
for filing post-conviction relief.  We affirm the trial court.

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

STATE OF TENNESSEE v. JEREMY DANIEL LOADER

Court:TCCA

Attorneys:                          

David Brady, District Public Defender; John B. Nisbet, III, Assistant
Public Defender; and Joe L. Finley, Jr., Assistant Public Defender,
for the appellant, Jeremy Daniel Loader.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William Gibson, District
Attorney General; and William M. Locke, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Jeremy Loader, pled guilty on July 12, 2002, pursuant to a
negotiated plea agreement, to two counts of theft of property over
$1,000, a Class D felony, and two counts of arson, a Class E felony in
Case No. 02-002.  In Case No. 01-146, Defendant pled guilty to two
counts of burglary other than a habitation, a Class D felony.  The
terms of Defendant's plea agreement set the length and manner of
service of Defendant's sentence as follows.  In Case No. 02-002,
Defendant would serve four years on each of the theft of property
convictions, all suspended but nine months, and two years for each of
the arson convictions, all suspended but 144 days, with Defendant
placed on probation for the remainder of his sentences on each count. 
For Case No. 01-146, Defendant would serve four years for each arson
conviction, all suspended but nine months, with Defendant placed on
probation for the remainder of his sentences.  The sentences in Case
No. 02-002 and Case No. 01-146 would be served concurrently for an
effective sentence of four years.  In exchange, the State withdrew
other charges against Defendant.  Defendant spent nine months in jail
before entering his guilty pleas because he was unable to make bond.
The trial court granted Defendant's request for judicial diversion,
and Defendant was placed on judicial diversion for a period of six
years.  Defendant's judicial diversion in both cases was revoked on
April 21, 2003, and the trial court sentenced Defendant to an
effective sentence of four years in the Tennessee Department of
Correction, with pretrial jail credit of nine months, in accordance
with the terms of his plea agreement.  Defendant does not appeal the
revocation of his judicial diversion but argues that the trial court
erred in ordering a sentence of confinement.  Defendant contends that
the terms of his plea agreement called for a sentence of split
confinement, with the period of confinement already served, in the
event his judicial diversion was subsequently revoked.  Alternatively,
Defendant argues that the trial court erred in not conducting a
sentencing hearing prior to imposing Defendant's sentence.  Following
a thorough review, we affirm the judgments of the trial court.

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

ROBERT MCCHRISTIAN v. STATE OF TENNESSEE
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Robert McChristian, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; and Thomas E. Williams,
III, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Robert McChristian, appeals from a summary dismissal
of his petition for habeas corpus relief.  We affirm.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/mcchristrobert_con.wpd

STATE OF TENNESSEE v. MARCUS VASHAWN NIXON

Court:TCCA

Attorneys:                          

Didi Christie, Brownsville, Tennessee (on appeal); Gary F. Antrican,
District Public Defender; and Julie K. Pillow, Assistant Public
Defender (at trial), for the Appellant, Marcus Vashawn Nixon.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Marcus Vashawn Nixon, appeals his jury conviction for
rape of a child in the Lauderdale County Circuit Court.  As grounds,
he asserts that the trial court erred in denying his motion to
suppress pre-trial photo identification evidence based upon a Rule 16
discovery violation.  After review of the record, we find no
reversible error and affirm the decision of the trial court.

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

STATE OF TENNESSEE v. MONQUEZE L. SUMMERS

Court:TCCA

Attorneys:                          

James L. Weatherly, Nashville, Tennessee, for the Appellant, Monqueze
L. Summers.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and James H. Todd, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The case before us concerns the untimely death of Montrell Mason and
the aggravated robbery of Clinton Anderson and Christopher Fears.  The
defendant stands convicted of Mason's felony murder in the
perpetration of robbery, two counts of aggravated robbery, and weapon
possession.  We affirm the convictions and sentences.

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

STEVEN DOUGLAS TUTT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Steven Douglas Tutt, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; and Jennifer L. Bledsoe,
Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Steven Douglas Tutt, appeals the Marshall County
Circuit Court's order that retired his motion for expungement.  We
dismiss the appeal.

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

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