8th Annual Labor & Employment Law Forum
April 7 - Nashville

The traditional CLE format will be pushed beyond the norm with a pair
of intriguing and informative panels. These panels will offer labor
and employment practitioners an invaluable opportunity to gain insight
that will directly and immediately improved their practice
Additionally, the forum will include an update on the new developments
at the National Labor Relations Board and recent case law involving
EEO issues.

Today's Opinions: February 9, 2005
Volume 11 — Number 026
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.
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
04 New Opinion(s) from the Tennessee Court of Appeals
16 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

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


MARVIN MARTIN v. MEMBERS AND CHAIRMAN OF BOARD OF PROBATION AND PAROLE

Court:TCA

Attorneys:                          

Marvin Martin, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Stephanie R.
Reevers, Associate Deputy Attorney General, for the appellees, Members
and Chairman of Board of Probation and Parole

Judge: KOCH

First Paragraph:

This appeal involves a prisoner's concerns about overcrowding at the
correctional facility in which he is incarcerated.  The prisoner filed
a petition for common-law writ of certiorari in the Chancery Court for
Davidson County seeking an order compelling the Tennessee Board of
Probation and Parole to advance his release eligibility date.  The
trial court granted the Board's Tenn. R. Civ. P. 12.02(6) motion to
dismiss, and the prisoner appealed.  We vacate the judgment and remand
the case with directions to dismiss the petition because it was filed
in the wrong county.

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

TERRY McKEE v. TENNESSEE DEPARTMENT OF CORRECTION ET AL.

Court:TCA

Attorneys:                          

Terry McKee, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Arthur Crownover,
II, Senior Counsel, for the appellees, Tennessee Department of
Correction and Donal Campbell.

Judge: KOCH

First Paragraph:

This appeal involves a prisoner who desires to rescind a waiver he
signed in 1986 to become entitled to earn sentence reduction credits. 
The prisoner filed a pro se petition for a common-law writ of
certiorari in the Chancery Court for Davidson County requesting an
order directing the Tennessee Department of Correction to permit him
to withdraw his waiver.  The Department moved to dismiss the
prisoner's petition because it was not timely filed.  The trial court
granted the motion, and the prisoner has appealed.  We vacate the
judgment and remand the case with directions to dismiss the petition
because it was filed in the wrong county.

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

OUTFITTERS SATELLITE, INC., AND EARTHTRAK VEHICLE TRACKING SYSTEMS,
INC., v. CIMA, INC., et al.

Court:TCA

Attorneys:                          

Henry Clay Barry, Lebanon, Tennessee, for Appellant.

David I. Komisar, Nashville, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

This case involves a dispute over the enforcement of non-compete and
confidentiality agreements in an employment contract.  A company
selling satellite telephone and GPS equipment filed suit in the
Chancery Court for Davidson County seeking to enforce a non-compete
agreement against a former employee who was allegedly interfering with
its business relations with customers and suppliers.  Following a
bench trial, the Trial Court determined that the employee had breached
the agreements and enjoined the employee from competing with his
former employer for one year in North America.  The employee has
appealed, asserting that the non-compete agreement is unenforceable
or, in the alternative, that its geographic coverage is too broad.  We
have determined that the non-compete agreement is enforceable but that
its geographic coverage should be limited to the United States rather
than to North America.

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

CLARENCE WASHINGTON v. TENNESSEE DEPARTMENT OF CORRECTION ET AL.

Court:TCA

Attorneys:                          

Clarence Washington, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Stephanie R.
Reevers, Associate Deputy Attorney General, for the appellee,
Tennessee Department of Correction.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding the calculation of his release
eligibility date.  The prisoner filed a petition for a declaratory
judgment in the Chancery Court for Davidson County asserting that the
Department had not "adequately" processed and calculated his
sentences.  Both the prisoner and the Department filed motions for
summary judgment.  The trial court granted the Department's motion,
and the prisoner appealed.  We affirm the trial court.

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

STATE OF TENNESSEE v. RANDOLPH ANDERSON

Court:TCCA

Attorneys:                          

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

Randolph Anderson, Nashville, Tennessee, pro se

Judge: WADE

First Paragraph:

The defendant, Randolph Anderson, appealed a conviction in the Sumner
County General Sessions Court for simple possession of marijuana.  In
the trial court, the defendant filed a motion to suppress which was
granted.  In this appeal from the order of suppression, the state
argues that the trial court erred by concluding that the arresting
officer lacked any basis to stop the vehicle driven by the defendant. 
The judgment is affirmed.

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

STATE OF TENNESSEE v. DERRELL BENDER

Court:TCCA

Attorneys:                          

Derrell Bender, Pro Se, Tiptonville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Seth P. Kestner, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Pamela Anderson,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Derrell Bender, appeals the Davidson County Criminal
Court's denial of his "Motion for Reduction or Modification of
Sentence" filed pursuant to Tenn. R. Crim. P. 35(b).  Bender pled
guilty to voluntary manslaughter and received an agreed-upon sentence
of ten years as a Range III career offender.  In his motion, Bender
requested that the trial court impose a sentence within the sentence
range of a Range I standard offender.  The trial court denied the
motion, finding that Bender was "not an appropriate candidate for a
suspended sentence."  Bender seeks review pursuant to a "Petition for
Common Law Writ of Certiorari."  Because the trial court's order fails
to address Bender's request for sentencing as a Range I offender, we
reverse and remand to the trial court for reconsideration of the Rule
35 motion.

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

STATE OF TENNESSEE v. TIM BRAWLEY 

Court:TCCA

Attorneys:                          

Robert T. Carter, Franklin, Tennessee, for the Appellant, Tim Brawley.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Mary Katharine White, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Tim Brawley, appeals from the Williamson County Circuit
Court's order revoking his probation.  On appeal, he claims that the
trial court lacked jurisdiction to revoke his probation because his
sentences had expired before the violation warrant was issued.  We
disagree and affirm the trial court's order.

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

STATE OF TENNESSEE v. JOHN RAMSEY DUNCAN

Court:TCCA

Attorneys:                          

David R. Heroux, Nashville, Tennessee, (on appeal) and Mike Anderson,
Nashville, Tennessee, (at trial) for the appellant, John Ramsey
Duncan.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Brian Holmgren, Assistant District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, John Ramsey Duncan, was convicted
of four counts of rape of a child, a Class A felony, and four counts
of aggravated sexual battery, a Class B felony.  After a sentencing
hearing, the trial court sentenced Defendant to twenty-two years for
each rape of a child conviction, and ten years for each aggravated
sexual battery conviction.  The trial court ordered Defendant's
sentence for his rape of a child conviction in count two to run
consecutively to his sentence for his rape of a child conviction in
count one, and all other sentences to run concurrently to count one,
for an effective sentence of forty-four years.  On appeal, Defendant
argues that the evidence is insufficient to support his convictions,
and that the trial court erred in ruling certain out-of-court
statements made by the victim to witnesses Lisa Dupree and Julie
Carter as admissible.  In addition, since the filing of the briefs,
Defendant has also asked us to consider the impact of the ruling in
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) on the
length of his sentences and the trial court's imposition of
consecutive sentencing.  After a thorough review of the record, we
affirm Defendant's convictions and the imposition of consecutive
sentencing.  We modify under Blakely each of Defendant's sentences for
rape of a child to twenty years, and each of his sentences for
aggravated sexual battery to eight years.

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

GREGORY EIDSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gregory Eidson, pro se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Gregory Eidson, appeals from the dismissal of his
petition for the writ of habeas corpus.  The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  We find
the State's motion has merit.  Accordingly, the motion is granted and
the appeal is affirmed pursuant to Rule 20, Rules of the Court of
Criminal Appeals.

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

STATE OF TENNESSEE v. RONALD EUGENE HALL and HENRY LEE DIXON

Court:TCCA

Attorneys:                          

Paul J. Bruno, Nashville, Tennessee, for the appellant, Ronald Eugene
Hall; Cynthia M. Fort, Nashville, Tennessee (on appeal); and Glenn
Funk, Nashville, Tennessee (at trial), for the appellant, Henry Lee
Dixon.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendants Ronald Eugene Hall and Henry Lee Dixon were each indicted
on one count of first degree felony murder, one count of first degree
premeditated murder and one count of attempted especially aggravated
robbery.  Following a jury trial, Defendant Hall was convicted of the
lesser included offense of second degree murder on counts one and two
and was found not guilty on count three, attempted especially
aggravated robbery.  The trial court merged Defendant Hall's
conviction of second degree murder in count two with his second degree
murder conviction in count one and sentenced him to twenty years. 
Defendant Dixon was found not guilty in counts two and three and
convicted in count one of the lesser included offense of facilitation
of second degree murder.  The trial court sentenced Defendant Dixon to
nine years in the Tennessee Department of Correction.  Defendant Hall
argues on appeal that (1) the trial court erred in its instruction to
the jury on the definition of reasonable doubt; (2) the trial court
erred in providing the jury with an instruction on the introduction of
fingerprint evidence; (3) the trial court erred in admitting certain
photographs during Officer George Bouton's testimony; and (4) the
trial court erred in failing to instruct the jury as to facilitation
as a lesser included offense of the indicted offenses.  Defendant
Dixon challenges the sufficiency of the convicting evidence and argues
that the trial court erred in not admitting a video animation
portraying the sequence of events described during Defendant Dixon's
testimony.  Defendant Dixon also argues that his sentence is
excessive.  Defendant Hall did not appeal the length of his sentence. 
After a thorough review of the record and the parties' briefs, we
affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JAMES WAYNE KIMBROUGH

Court:TCCA

Attorneys:                          

Richard McGee (at trial and on appeal) and Wendy S. Tucker (at trial),
Nashville, Tennessee, for the appellant, James Wayne Kimbrough.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; and Katrin Novak Miller, Brian K. Holmgren,
and Kathy Morante, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, James Wayne Kimbrough, was convicted in the Davidson
County Criminal Court of first degree premeditated murder, felony
murder, and two counts of spousal rape.  Following a capital
sentencing hearing, the jury imposed a sentence of life imprisonment
in the Tennessee Department of Correction without the possibility of
parole for his felony murder conviction.  Additionally, he received a
sentence of  fifteen years for each of his spousal rape convictions as
a Range III, persistent offender.  On appeal, the appellant contends
that the trial court erred in failing to grant "all aspects" of his
motions to suppress, that the evidence is not sufficient to support
his convictions, and that the trial court made numerous errors during
the sentencing phase of his trial.  Upon our review of the record and
the parties' briefs, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. WILLIAM KEITH MATTHEWS

Court:TCCA

Attorneys:                          

William B. "Jake" Lockert, III, Public Defender, Ashland City,
Tennessee, for the appellant, William Keith Matthews.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Dan Alsobrooks, District Attorney General;
and Carey Thompson, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is a direct appeal as of right from a bench trial conviction of
first degree premeditated murder.  The Defendant, William Keith
Matthews, was sentenced to life in prison.  On appeal, the Defendant
argues four issues: (1) there was insufficient evidence to find the
Defendant guilty of first degree premeditated murder beyond a
reasonable doubt, and in the alternative, the defense of insanity was
established; (2) the trial court erred in not granting the Defendant's
motion for judgment of acquittal; (3) the Defendant was not competent
to stand trial; and (4) the Tennessee statute providing for the
insanity defense is unconstitutional.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. MICHAEL MCKELLAR

Court:TCCA

Attorneys:                          

Richard D. Taylor, Jr., Assistant Public Defender, Ashland City,
Tennessee, for the appellant, Michael McKellar

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Dan Alsobrooks, District Attorney General;
and Lisa Donegan, Assistant District Attorney General,  for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Michael McKellar, pled nolo contendere to multiple
charges of theft of property between $10,000 and $60,000 arising from
indictments in both Cheatham County and Humphreys County where the
appellant and a partner solicited funds from investors to finance the
purchase of a defaulted Nigerian oil contract.  In Cheatham County,
the appellant was sentenced to a three (3) year sentence in the
Tennessee Department of Correction, but the sentence was suspended. 
In Humphreys County, the appellant was sentenced to a four (4) year
sentence in the Tennessee Department of Correction.  The Humphreys
County sentence was also suspended.  After a joint restitution
hearing, the trial court ordered the appellant to pay restitution to
one of the victims in Cheatham County in the amount of $1,000 and to
one of the victims in Humphreys County in the amount of $22,900 based
on finding that the appellant had converted that amount of money to
his own personal use.  On appeal, the appellant argues that the
evidence presented at the restitution hearing was insufficient to
support the award of restitution and that the trial court erred in
ordering the appellant to pay restitution without making specific
findings or reviewing evidence of the appellant's ability to pay the
restitution.  Because we hold the trial court erred in determining the
amount of restitution by focusing on whether the appellant had
converted the money for his own use rather than the actual pecuniary
loss suffered by the victims and because the trial court did not make
specific findings regarding the appellant's ability to pay
restitution, we remand for a new restitution hearing.

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

STATE OF TENNESSEE v. FREDDIE ALTON MOSS

Court:TCCA

Attorneys:                          

Michelle W. Vanderee, Assistant Public Defender, for the appellant,
Freddie Alton Moss.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and William Doak Patton, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Freddie Alton Moss, appeals the trial court's
revocation of probation.  The single issue presented for review is
whether the trial court abused its discretion by  revoking the
probation based upon charges for driving under the influence and
violation of the implied consent law.  The judgment of the trial court
is affirmed.

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

STATE OF TENNESSEE v. VICK R. NICHOLS, JR.

Court:TCCA

Attorneys:                          

Matt Q. Bastain, Columbia, Tennessee, Attorney for the Appellant, Vick
R. Nichols, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kathy Denise Aslinger, Assistant Attorney General;
Jeffrey L. Long, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Vick R. Nichols, Jr., appeals his convictions by a
Lewis County jury finding him guilty of two counts of felony reckless
endangerment as lesser included offenses of the indicted charges of
aggravated assault. Following a sentencing hearing, Nichols was
granted judicial diversion.  On appeal, Nichols raises five issues for
our review: (1) whether felony reckless endangerment is a lesser
included offense of aggravated assault; (2) whether the trial court
violated Tenn. R. Crim. P. 30(c) by failing to reduce supplemental
jury instructions to writing; (3) whether the trial court properly
declined to instruct the jury with regard to certain hunting rules and
regulations contained in Title 70, Tennessee Code Annotated; (4)
whether the trial court erred by refusing to instruct the defense of
third parties; and (5) whether the evidence was sufficient to support
the verdicts.   The State concedes that felony reckless endangerment
is not a lesser included offense of aggravated assault as indicted. 
We agree.  Notwithstanding reversible error, we conclude that no
appeal of right, as provided by Rule 3, Tenn. R. App. P., lies, as the
Appellant was granted judicial diversion and no judgment of conviction
has been entered.  Accordingly, the appeal is dismissed.

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

STATE OF TENNESSEE v. ABEL TORRES

Court:TCCA

Attorneys:                          

Dan T. Bryant, McMinnville, Tennessee, for the appellant, Abel Torres.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Clement Dale Potter, District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Warren County jury convicted the defendant, Abel Torres, of one
count of attempted especially aggravated robbery and two counts of
attempted second degree murder, Class B felonies, and the trial court
sentenced him to twelve years for each conviction, to be served
consecutively for an effective sentence of thirty-six years in the
Department of Correction (DOC).  On appeal, this court affirmed the
defendant's convictions but modified the length of his sentences from
twelve years to ten and remanded the case for a determination by the
trial court of the reasons justifying the imposition of consecutive
sentencing.  State v. Abel Caberra Torres, No. M2001-01412-CCA-R3-CD,
Warren County (Tenn. Crim. App. June 10, 2003).  On remand, the trial
court again imposed consecutive sentencing and the defendant appeals,
claiming the trial court erred under both state law and the rule
announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531
(2004).  The state contends the trial court properly sentenced the
defendant.  We affirm the trial court's imposition of consecutive
sentencing but conclude that Blakely requires us to modify the
defendant's sentences from ten years to eight for an effective
sentence of twenty-four years.

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

STATE OF TENNESSEE v. EMMANUEL S. TROTTER

Court:TCCA

Attorneys:                          

Patricia L. Snyder, Nashville, Tennessee, for the appellant, Emmanuel
S. Trotter.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; John Carney, District Attorney General;
and C. Daniel Brollier, Assistant District Attorney General,  for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Emmanuel S. Trotter, also known as "Batman," was
indicted on charges of felony murder, first degree premeditated
murder, especially aggravated burglary, and especially aggravated
robbery.  The appellant primarily represented himself at trial and was
ultimately convicted by a jury of criminally negligent homicide,
especially aggravated burglary, criminal attempt to commit especially
aggravated robbery, and second degree murder.  The trial court merged
the criminally negligent homicide conviction with the second degree
murder conviction and sentenced the appellant to an effective sentence
of fifty-five years.  The issues presented on appeal are whether: (1)
the appellant made a knowing and intelligent waiver of his right to
counsel; (2) the evidence sufficiently corroborated the accomplice
testimony of Helen Trotter; (3) the evidence was sufficient to support
the verdict; and (4) the State knowingly proffered false testimony. 
We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. JOHN C. WALKER, III
ORDER WITH DISSENTING OPINION

Court:TCCA

Judge: WILLIAMS

First Paragraph:

This matter is before the Court on a motion to rehear, pursuant to
Rule 39 of the Tennessee Rules of Appellate Procedure.  In his motion,
the defendant challenges both the application of enhancement factors
absent a jury finding, following the holding in Blakely v. Washington;
and the rejection of three mitigating factors.  Initially, we note
that the latter is not cognizable in this proceeding;  Tennessee Rule
of Appellate Procedure 36(a) states:  "A rehearing will not be granted
to permit reargument of matters fully argued."  In the instant case,
the trial court's rejection of the mitigating factors in question was
fully litigated on direct appeal; as such, our analysis will be
confined to the applicability of the enhancement factors in light of
the Supreme Court's holding in Blakely.

ORDER
http://www.tba.org/tba_files/TCCA/walkerjciii_ord.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/walkerjciii_dis.wpd

DONALD WALLACE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Richard McGee, Nashville, Tennessee; and James O. Martin, III,
Nashville, Tennessee, for the Appellant, Donald Wallace.

Michael E. Moore, Solicitor General; David H. Findley, Assistant
Attorney General; Dan Alsobrooks, District Attorney General; and
Robert S. Wilson, Assistant District Attorney General, for the
Appellee, State of Tennessee

Judge: WITT

First Paragraph:

This case has taken a rather Byzantine course through the Tennessee
courts.  Originally, the defendant was convicted of the 1996 first
degree premeditated murder of Melinda Sue Perrin.  This court reversed
the conviction based upon insufficiency of evidence of a premeditated
killing.  We imposed a conviction of second degree murder and remanded
to the trial court for sentencing.  See State v. Donald Wallace, No.
01C01-9711-CC-00526 (Tenn. Crim. App., Nashville, Sept. 30, 1998)
(Wallace I).  In Wallace I, this court declined to adjudicate certain
issues on appeal for lack of a timely motion for a new trial.  Id.,
slip op. at 7-8.   On remand, the court imposed a sentence of 25
years, and this court affirmed the sentence.  See State v. Donald
Wallace, No. M1999-00954-CCA-R3-CD (Tenn. Crim. App., Nashville, Nov.
29, 1999) (Wallace II).  During the pendency of the sentencing appeal,
the defendant filed a petition for post-conviction relief.  The
post-conviction court denied relief except to grant the defendant a
new opportunity to file a motion for new trial and an appeal.  See
Donald Wallace v. State, No. M2001-02722-CCA-R3-PC (Tenn. Crim. App.,
Nashville, Dec. 9, 2002) (Wallace III).  The post-conviction ruling
was not appealed, but after the trial court denied the defendant's new
motion for new trial, the defendant appealed the denial of the motion,
resulting in the opinion in Wallace III.  In that opinion, this court
held that the defendant was entitled to no statutory delayed appeal
and that the post-conviction court had erred in availing a new
opportunity for a new trial motion and appeal without requiring a
showing of prejudice as a prerequisite of a claim of ineffective
assistance of counsel.  Wallace III, slip op. at 5-8.  Our supreme
court granted an appeal, reversed, and remanded the case to this court
for adjudication of the issues raised in the dispensatory motion for
new trial and appeal in Wallace III.  See Wallace v. State, 121 S.W.3d
652 (Tenn. 2003) (Wallace IV).   We now undertake to fulfill the terms
of the supreme court's remand by determining whether (1) the trial
court erred in allowing the state to use hearsay evidence and (2) the
prosecutor was guilty of misconduct that deprived the defendant of due
process and a fair trial.  Upon our review, we discern no reversible
error and affirm the conviction of second degree murder.

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

STATE OF TENNESSEE v. ROBERT WILSON

Court:TCCA

Attorneys:                          

Philip A. Condra, District Public Defender, for the appellant, Robert
Wilson.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant,
Assistant Attorney General; and Sherry Gouger and Julia Oliver,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Robert Wilson, was convicted of attempted aggravated
sexual battery and rape of a child.  The trial court imposed
consecutive sentences of six years and twenty-five years,
respectively.  In this appeal, the defendant contends (1) that the
evidence is insufficient to support the convictions; (2) that the
evidence presented to the grand jury was insufficient to support the
finding of the indictment; (3) that the state engaged in prosecutorial
misconduct by failing to adequately respond to the motion for a bill
of particulars; (4) that the state elicited and failed to correct
false testimony in violation of his due process rights; (5) that the
trial court failed to exercise its role as the thirteenth juror; and
(6) that the sentence is excessive.  The judgments of conviction are
affirmed.  The sentences are modified to four years and twenty-three
years, respectively, and are to be served consecutively.

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

Contracts by Local Government and Similar Entities for Energy-Related
Services

Date: February 3, 2005

Opinion Number: 05-015

http://www.tba.org/tba_files/AG/2005/op15.pdf

Regulation of the Erection of Crosses on State Highway Rights-of-Way

Date: February 3, 2005

Opinion Number: 05-016

http://www.tba.org/tba_files/AG/2005/op16.pdf

County Financial Management Committee Member Whose Spouse Is County
Employee

Date: February 3, 2005

Opinion Number: 05-017

http://www.tba.org/tba_files/AG/2005/op17.pdf

Pre-set Bond Schedules

Date: February 4, 2005

Opinion Number: 05-018

http://www.tba.org/tba_files/AG/2005/op18.pdf

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