Opinion FlashSeptember 16, 2004Volume 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):
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 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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