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TODAY'S OPINIONS: Friday, September 16, 2005
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 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
11 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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

SHIRLEY RUSSELL, Ph.D., ET AL. v. MEHARRY MEDICAL COLLEGE
CORRECTED OPINION ORIGINALLY ISSUED 9-14-2005

Court: TCA

Attorneys:

John L. Norris and Christina Norris, Nashville, Tennessee, for the appellants, Shirley Russell,Ph.D., James Russell, Ph.D., Joel Trupin, Ph.D. and Steven Fredman, Ph.D.

Robert D. Tuke, Paul C. Ney, Jr., and W. Justin Adams, Nashville, Tennessee, for the appellee,Meharry Medical College.

Judge: CLEMENT

Plaintiff, a college professor, appeals the dismissal of her breach of employment contract actionupon summary judgment. She was employed by Meharry Medical College for thirty-three (33) years but was not tenured because the tenure program, adopted in 1984, was never implemented.She is seeking entitlement to formal tenure, or de facto tenure. She also seeks damages, claiming she was entitled to but did not receive twelve (12) months notice her contract of employmentwould not be renewed. The trial court found plaintiff had not attained de facto tenure and had waived her claim for tenure. It also held plaintiffās employment contract entitled her to six (6)months notice her employment would not be renewed and she received the requisite notice. We affirm.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/2005/russells91605.pdf


STEVEN L. CRAWLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee, for the appellant, Steven L. Crawley.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant AttorneyGeneral; Victor S. Johnson, III, District Attorney General; and Pam Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

In January 2003, the petitioner, Steven L. Crawley, pled guilty to possession of over .5 grams ofcocaine for resale and was sentenced, as a Range I offender, to eight years confinement, which was to be served consecutively to an identical sentence for another conviction for the sameoffense but occurring at an earlier date, both of which were to be served concurrently to a thirtyday sentence for resisting arrest. Subsequently, he filed a petition for post-conviction relief,alleging that trial counsel was ineffective for failing to interview the petitionerās codefendant as to whether the cocaine in question was his and the petitionerās cousin, Barbara Crawley, whowould have testified, inter alia, that the petitioner had been invited to her residence on the day of his arrest and for failing to file a motion to suppress evidence of an illegal search of him bypolice officers or a motion to sever his case from that of his codefendant. Following an evidentiary hearing, the post-conviction court dismissed the petition, and we affirm that action.

http://www.tba.org/tba_files/TCCA/2005/crawleys91605.pdf


STATE OF TENNESSEE v. WILLIAM T. DAVIS

Court: TCCA

Attorneys:

Lance H. Selva, Murfreesboro, Tennessee, for the appellant, William T. Davis.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;William C. Whitesell, Jr., District Attorney General; and Jude P. Santana, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, William T. Davis, pled guilty to one count of cruelty to animals, a Class Amisdemeanor, and was sentenced to eleven months, twenty-nine days, suspended to probation. On appeal, he raises issues concerning the trial courtās denial of his motion to suppress evidencethat was acquired during a warrantless search of his private residence. As a condition of his guilty plea, the defendant reserved two certified questions of law that are dispositive of the case.We conclude that the certified questions are properly before this court1 and that the first warrantless entry into the defendantās residence was justified under the exigent circumstancesexception and the second entry was a continuation of the first to collect evidence that was in the plain view of the officers. We, therefore, affirm the trial courtās denial of the defendantās motionto suppress.

http://www.tba.org/tba_files/TCCA/2005/davisw91605.pdf


STATE OF TENNESSEE v. CAYLE WAYNE HARRIS

Court: TCCA

Attorneys:

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the appellant, Cayle Wayne Harris.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;T. Michael Bottoms, District Attorney General; and Patrick S. Butler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Cayle Wayne Harris, was convicted of three counts of rape of a child, a Class Afelony, involving two victims, and received an effective sentence of forty-two years in the Department of Correction. In this delayed appeal, he asserts the trial court erred by (1) notsevering each of the three counts; (2) seating a disqualified juror; and (3) not requiring the State to elect offenses. Finding merit in the defendantās severance argument, we reverse and remandfor new trials.

http://www.tba.org/tba_files/TCCA/2005/harrisc91605.pdf


STATE OF TENNESSEE v. CALVIN LEWIS HILL

Court: TCCA

Attorneys:

Hershell D. Koger (on appeal), Pulaski, Tennessee, and Chad L. Riddle (at trial), Murfreesboro,Tennessee, for the appellant, Calvin Lewis Hill.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;William Michael McCowan, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Marshall County Circuit Court jury convicted the appellant of burglary and theft over $500.The trial court sentenced him to concurrent sentences of six years, ten months for the burglary conviction and three years for the theft conviction. In this appeal, the appellant claims (1) thatthe evidence is insufficient to support the convictions and (2) that the trial court erred by refusing to allow a defense witness to testify and by refusing to allow him to present extrinsic proofconcerning the witnessā prior inconsistent statement. Upon review of the record and the partiesā briefs, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/hillc91605.pdf


STATE OF TENNESSEE v. CHRISTOPHER LYNN HOOSIER

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Christopher Lynn Hoosier.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant AttorneyGeneral; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr. and Arthur F. Bieber, Assistant District Attorneys General, for the appellant, State of Tennessee.

Judge: TIPTON

A Montgomery County Circuit Court jury convicted the defendant, Christopher Lynn Hoosier, ofpossession with the intent to sell one-half gram or more of cocaine, a Class B felony, simple possession of marijuana, a Class A misdemeanor, and possession of drug paraphernalia, a ClassA misdemeanor, and the trial court sentenced him as a Range II, multiple offender to concurrent terms of twenty years for the cocaine conviction and eleven months and twenty-nine days foreach of the misdemeanor convictions. The defendant appeals, claiming the trial court erred in sentencing him by finding enhancement factors that were not submitted to a jury or provenbeyond a reasonable doubt and by failing to apply a factor in mitigation. We affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/hoosierc91605.pdf


STATE OF TENNESSEE v. CHRISTOPHER LONNIE HUDGINS

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant AttorneyGeneral; Victor S. Johnson, III, District Attorney General; and Kristen Shea, Assistant District Attorney General, for the appellant, State of Tennessee.

David E. Brandon (at trial and on appeal), and Peter D. Heil (on appeal), Nashville, Tennessee,for the appellee, Christopher Lonnie Hudgins.

Judge: OGLE

The State appeals the trial courtās dismissal of its prosecution of the appellee, ChristopherLonnie Hudgins, for driving under the influence of an intoxicant (DUI), second offense, and violating the implied consent law. It contends the trial court erred by concluding the appelleeāsright to a speedy trial had been violated. Upon review of the record and the partiesā briefs, we affirm the judgment of the trial court as to the dismissal of the DUI charge. However, we reversethe dismissal of the implied consent law violation and remand the case to the trial court in order for it to make a determination as to whether the appellantās due process rights were violated.

http://www.tba.org/tba_files/TCCA/2005/hudginsc91605.pdf


BRIAN VAL KELLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee, for the appellant, Brian Val Kelley.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant AttorneyGeneral; Tom P. Thompson, Jr., District Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner appeals the denial of his post-conviction petition, contending specifically that: (1)the term ćwrongfulnessä as used in the insanity statute should have been defined to the jury so as to encompass moral wrongfulness; (2) the evidence was insufficient to support the verdict andsufficient to sustain the defense of insanity; (3) trial counsel rendered ineffective assistance; and (4) Tennessee Code Annotated section 39-11-501 is unconstitutional as applied to the petitioner.Following our review, we conclude that the issues presented were either previously determined, waived, or without merit and that the term wrongfulness as used in the insanity statuteencompasses both moral and legal wrongfulness. Therefore, we affirm the denial of postconviction relief.

http://www.tba.org/tba_files/TCCA/2005/kelleyb91605.pdf


STATE OF TENNESSEE v. JASON J. MELTON

Court: TCCA

Attorneys:

William H. Bryson, Woodbury, Tennessee, for the appellant, Jason J. Melton.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant AttorneyGeneral; and Tommy P. Thompson, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Cannon County Circuit Court jury convicted the appellant, Jason J. Melton, of aggravatedrobbery, aggravated burglary, and escape, and the trial court sentenced him to ten, six, and two years, respectively, in the Department of Correction (DOC). The trial court ordered the appellantto serve the ten-year and six-year sentences consecutively but ordered that he serve the two-year sentence for escape concurrently to the other two sentences for an effective sentence of sixteenyears in the DOC. In this appeal, the appellant claims (1) that the evidence is insufficient to support the convictions and (2) that he should have been tried for the escape charge separatelyfrom the remaining charges. Upon review of the record and the partiesā briefs, we affirm the appellantās convictions. However, because the sentence for escape must be served consecutivelyto the other two sentences, we remand the case for entry of a corrected judgment as to that offense.

http://www.tba.org/tba_files/TCCA/2005/meltonj91605.pdf


JAMES EDWARD MITCHELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James Edward Mitchell, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;Victor S. Johnson, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, James Edward Mitchell, appeals from the order of the trial court dismissing hispetition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court ofCriminal Appeals. We grant the Stateās motion and affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/mitchellj91605.pdf


LARRY W. TIMBERLAKE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Theodora A. Pappas, for the Appellant, Larry W. Timberlake.

Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Larry W. Timberlake, appeals his probation revocation and imposition of hisoriginal seven-year sentence. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/timberlakel91605.pdf


STATE OF TENNESSEE v. SENAD TOPORAN

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Senad Toporan.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant AttorneyGeneral; Victor S. (Torry) Johnson, III, District Attorney General; and Brian Holmgren and Bernard McEvoy, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Senad Toporan, was indicted on two counts for: (1) felony first degree murderduring the perpetration of aggravated child abuse; and (2) aggravated child abuse (a Class A felony). The defendant was convicted as charged by a jury and sentenced to life imprisonmentfor the felony murder conviction and to twenty-five years for the aggravated child abuse, to be served consecutively. The defendantās motion for new trial was filed untimely but was heardand denied. The defendant now appeals, asserting that: (1) the evidence was insufficient to support the convictions beyond a reasonable doubt, and (2) the trial court erred in allowingtestimony of domestic assault by the defendant in contravention of Tennessee Rule of Evidence 404.

http://www.tba.org/tba_files/TCCA/2005/toporans91605.pdf


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