Opinion FlashSeptember 30, 2004Volume 10 — Number 189 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 JOHN E. ALLEN v. QUENTON T. WHITE, ET AL. Court:TCA Attorneys: John E. Allen, Tiptonville, TN, pro se Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Jennifer L. Brenner, Assistant Attorney General, Nashville, TN, for Appellees Judge: HIGHERS First Paragraph: This appeal concerns the dismissal of a common law writ of certiorari by the Circuit Court of Lake County. Appellant, an inmate in the custody of the Tennessee Department of Correction, filed a pro se Petition for Writ of Certiorari to challenge the results of a prison disciplinary proceeding instituted against him. The trial court granted Appellee's motion to dismiss the petition as untimely filed in violation of the applicable statute of limitations. For the reasons stated below, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/allenjohne.wpd SHIRLEY PATRICIA GILLIAM, Mother and next of kin of LaSHUN HALL, Decedent V. MICHAEL G. DERRICK, Administrator Ad Litem for the Estate of SANTRES A. JOHNSON, Decedent Court:TCA Attorneys: Walter Bailey, Jr., Memphis, Tennessee, for the appellant, Shirley Patricia Gilliam, Mother and next of kin of LaShun Hall, decedent. Edward M. Hurley, Jr., and Kimberly Schuerman, Memphis, Tennessee, for the appellee, Michael G. Derrick, Administrator Ad Litem for the Estate of Santres A. Johnson. Judge: KIRBY First Paragraph: This is a wrongful death action. The plaintiff's decedent was riding as a passenger in a car driven by the defendant's decedent. The car collided at a high rate of speed into the guard rail of a bridge. Both the driver and the passenger died in the accident. It was later determined that the driver was intoxicated, but that the passenger had not been drinking. The plaintiff, the mother of the passenger, filed this wrongful death action against the estate of the driver, alleging that the driver's negligent conduct caused the death of her son. After a jury trial, the jury returned a verdict in favor of the defendant. The jury concluded that the passenger was 50% at fault for his demise, because the passenger knew or should have known that the driver was intoxicated when he got into the car. The plaintiff now appeals. We reverse, finding no material evidence to support the jury's conclusion that the passenger knew or should have known that the driver was intoxicated. http://www.tba.org/tba_files/TCA/gilliamshirleyp.wpd DOLORES E. McNABB v. CHERYL L. GRAY, ET AL.
Court:TCA
Attorneys:
D. Mitchell Bryant, Cleveland, Tennessee, for the appellants, Cheryl
L. Gray and Joseph R. Evans, III.
Valerie A. Chastain, Athens, Tennessee, for the appellees, Dolores E.
McNabb and Cynthia Brock.
Judge: SUSANO
First Paragraph:
In these consolidated cases , the basic issue for resolution is
whether a warranty deed from Dolores E. McNabb ("the Grantor") to
Cheryl L. Gray and Joseph R. Evans, III ("the Grantees"), should be
set aside. The trial court set the deed aside. The Grantees appeal.
We affirm.
http://www.tba.org/tba_files/TCA/mcnabbdolorese.wpd
SHARI PARKER MORROW, ET AL. v. FAY A. JONES Court:TCA Attorneys: Margaret Barr-Myers and Susan L. Ratner, Memphis, Tennessee, and Norris A. Kessler, II, Winchester, Tennessee, for the Appellant, Shari Parker Morrow. Patricia A. Odell, Memphis, Tennessee, for the Appellee, Estate of Fay A. Jones. Judge: FARMER First Paragraph: Plaintiff/Buyer brought a cause of action alleging breach of a real estate contract and seeking specific performance. The trial court entered judgment for Defendant/Seller. We affirm in part, modify in part, and remand. http://www.tba.org/tba_files/TCA/morrowsharip.wpd ROSETTA WILLIS v. MIKE SETTLE, ET AL Court:TCA Attorneys: James I. Pentecost and William B. Mauldin of Jackson for Appellant, Corrections Corporation of America David W. Camp of Jackson for Appellee, Rosetta Willis Judge: CRAWFORD First Paragraph: This is an appeal from a judgment entered on a jury verdict for Plaintiff/Appellee. Plaintiff/Appellee was taken hostage by a prisoner who escaped from the control and custody of Defendant/Appellant, a private corporation contracting with the State of Tennessee to provide prison security. Defendant/Appellant asserts that it is entitled to immunity under the Public Duty Doctrine, that there was no material evidence on which the jury could have based its verdict, that the award of compensatory damages was excessive and not supported by the evidence, that Defendant/Appellant cannot be held responsible for the actions of its employees under the doctrine of respondeat superior, and that the trial court erred in not granting a mistrial. We affirm. http://www.tba.org/tba_files/TCA/willisrosetta.wpd STATE OF TENNESSEE v. FRANKLIN D. BROOKS Court:TCCA Attorneys: Ross E. Alerman, District Public Defender; William J. Steed (on appeal), Assistant Public Defender; and Paul Seusy (at trial), Assistant Public Defender, for the Appellant, Franklin D. Brooks. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the Appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Franklin D. Brooks, was indicted by the Davidson County Grand Jury for burglary, theft, and vandalism. Following a jury trial, Defendant was convicted of burglary, a Class D felony. Following a sentencing hearing, Defendant was sentenced as a Range II offender to serve seven years on community corrections. As a condition of his sentence, Defendant was ordered to complete the Lifelines program while incarcerated. Defendant appeals his sentence. We conclude that the trial court erred by sentencing Defendant to serve more than one year of his sentence of split confinement in continuous confinement. We also conclude that Defendant is entitled to receive credit for time served in confinement. Accordingly, we remand this case for entry of an Amended Judgment to allow credit for time served in confinement, and we modify the sentence, and order that Defendant be released from custody and placed on community corrections to serve the remainder of his sentence. http://www.tba.org/tba_files/TCCA/brooksfranklind.wpd STATE OF TENNESSEE v. LAMONT E. HAYES Court:TCCA Attorneys: John H. Henderson, District Public Defender; and Douglas P. Nanney, Assistant District Public Defender, for the appellant, Lamont E. Hayes. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; Ronald L. Davis, District Attorney General; Mary Katharine White, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Lamont E. Hayes, was indicted on twenty counts of forgery, attempted forgery, theft over $1,000, theft over $500, and fraudulent use of a credit card. Following a jury trial, Defendant was convicted of the following offenses: Count 1, theft of property over $1,000, a Class D felony; Count 2, fraudulent use of a credit card, a Class A misdemeanor; Counts 3, 7, 8, and 16, forgery, a Class E felony; Counts 4, 5, 10, 13, 14, 17, and 18, the lesser included offense of facilitation of a forgery, a Class A misdemeanor; and Count 12, theft of property under $500, a Class A misdemeanor. The jury found Defendant not guilty of Count 19, attempted forgery, a Class A misdemeanor. The State requested, and was granted, a nolle prosequi as to Counts 6, 9, 11, 15, and 20. Following a sentencing hearing the trial court sentenced Defendant as a Range I, standard offender, to four years for Count 1, theft of property over $1,000, and two years for each forgery conviction in Counts 3, 7, 8, and 16. The trial court sentenced Defendant to eleven months twenty- nine days for each misdemeanor conviction. The trial court ordered the felony sentences to be served consecutively, and the misdemeanor sentences to be served concurrently with each other and consecutively to the felony sentences, for an effective sentence of twelve years, eleven months, and twenty-nine days. On appeal, Defendant argues that the evidence is insufficient to support his convictions and that the trial court erred in determining the length of Defendant's sentence and imposing consecutive sentencing. Based on a review of the record, we conclude that the trial court improperly applied enhancement factor (5) in determining the length of Defendant's sentences. Based upon our de novo review, we modify the trial court's judgment to reduce Defendant's sentence for theft of property over $1,000 by one year to a sentence of three years. The trial court's judgment is affirmed in all other respects. http://www.tba.org/tba_files/TCCA/hayeslamonte.wpd STATE OF TENNESSEE v. KEVIN MAGNESS Court:TCCA Attorneys: Steven R. Roller, McMinnville, Tennessee, and Donald Capparella, Nashville, Tennessee, for the appellant, Kevin Magness. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Clement Dale Potter, District Attorney General; and Larry G. Bryant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Warren County Circuit Court jury convicted the defendant, Kevin Magness, of manufacturing more than one hundred grams of methamphetamine, a Class B felony, and the trial court sentenced him as a Range I, standard offender to eight years in confinement. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction, and (2) the trial court erred by allowing into evidence the manner by which the state calculated the weight of the substance containing methamphetamine. We hold that the evidence is sufficient to show felonious manufacturing but that an incorrect standard was used to calculate the weight of the controlled substance. We modify the defendant's conviction to reflect a conviction for a Class C felony, and we remand the case to the trial court for resentencing. http://www.tba.org/tba_files/TCCA/magnesskevin.wpd STATE OF TENNESSEE v. JIMMY M. McCRARY, JR. Court:TCCA Attorneys: Matthew Mayo, Nashville, Tennessee, (on appeal) and William Kennerly Burger, Murfreesboro, Tennessee, (at trial) for the appellant, Jimmy M. McCrary, Jr. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Jimmy M. McCrary, Jr., pled guilty to the following charges without a recommendation from the State as to sentencing: two counts of sale of .5 grams or more of cocaine in Case No. F53183A; one count of possession of .5 grams or more of cocaine with the intent to sell in Case No. F53594A; one count of sale of .5 grams or more of cocaine in Case No. F53916. Defendant also waived the presentment of Case No. F54156 to the Rutherford County grand jury and pled guilty to one count of sale of .5 grams or more of cocaine upon a criminal information. See Tenn. Code Ann. S 40-3-103. Each of the charged offenses is a Class B felony. As part of the plea agreement, the State agreed to the dismissal of count two of Case No. F53916 and count three of Case No. F53183A. Following a sentencing hearing, the trial court sentenced Defendant to an effective sentence of twenty-eight years as a Range I, standard offender. Defendant now appeals the length of his sentences in Case Nos. F53183A and F54156, and the trial court's order that his sentence in Case No. F54156 run consecutively to his sentences in Case No. F53183A. Defendant does not appeal the trial court's order that his sentences in Case Nos. F53183A and F54156 run consecutively to his sentences in Case Nos. F53594 and F53916. After a careful review of the record in this matter, we reverse the trial court's order that Defendant's sentence in Case No. F54156 run consecutively with his sentences in Case No. F53183A. We reverse the trial court's judgment as to sentencing in Case Nos. F53183A and F54156, and remand for a new sentencing hearing as to the length of the sentences in these cases. In all other aspects, the trial court's judgments are affirmed. http://www.tba.org/tba_files/TCCA/mccraryjimmym.wpd STATE OF TENNESSEE v. JIMMY L. MCGLOTHEN Court:TCCA Attorneys: B. Jeffery Harmon (at trial and on appeal) and Robert Morgan (at trial), Jasper, Tennessee, for the appellant, Jimmy L. McGlothen. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; J. Michael Taylor, District Attorney General; and Steven Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Jimmy L. McGlothen, pled guilty in the Sequatchie County Circuit Court to one count of aggravated sexual exploitation of a minor. He received a sentence of six years incarceration in the Tennessee Department of Correction. The trial court denied the appellant any form of alternative sentencing, and the appellant appeals that denial. 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/mcglothenjl.wpd STATE OF TENNESSEE v. ERIC DEVON MCLEAN Court:TCCA Attorneys: Richard McGee, Nashville, Tennessee (at trial and on appeal), and James O. Martin, III, Nashville, Tennessee (on appeal), for the appellant, Eric Devon McLean. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Eric Devon McLean, was found guilty by a jury in the Marshall County Circuit Court of one count of aggravated assault. He received a sentence of five and one-half years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and raises various sentencing issues. 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/mcleaned.wpd WILLIAM GLENN WILEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Lisa A. Naylor, Assistant District Attorney General, for the appellant, State of Tennessee. Jodie A. Bell, Nashville, Tennessee, for the appellee, William Glenn Wiley. Judge: RILEY First Paragraph: The post-conviction court ordered a new trial relating to the petitioner's felony murder conviction for which he was sentenced to life without parole, but denied him relief regarding his especially aggravated robbery conviction. The state appeals, contending the post-conviction court erred in granting relief based upon the trial court's failure to charge second degree murder as a lesser- included offense of felony murder. The petitioner cross-appeals, asserting: (1) he received ineffective assistance of counsel at the trial level; (2) he is entitled to relief based upon the results of DNA testing; (3) the trial court erred in failing to charge intoxication as a defense; (4) the trial court erred in admitting victim impact evidence and in failing to properly instruct the jury during the penalty phase; and (5) the trial court improperly instructed the jury regarding the prior violent felony aggravating circumstance. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/wileywm.wpd STATE OF TENNESSEE v. MICHAEL YARBROUGH Court:TCCA Attorneys: Haylee A. Bradley, Assistant District Public Defender, Ashland City, Tennessee, for the Appellant, Michael Yarbrough. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; and Lisa Donegan, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Michael Yarbrough, appeals the revocation of his community corrections sentence by the Humphreys County Circuit Court. Yarbrough was initially convicted of class C felony sale of cocaine and placed in the Community Corrections Program for a term of six years. Following a revocation hearing, Yarbrough was found to be in violation of his behavioral agreement contract, which resulted in the reinstatement of his sentence with the Department of Correction. On appeal, Yarbrough argues that the trial court's ruling was "arbitrary" and not justified by the evidence. After review, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/yarbroughmichael.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! 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