Supreme Court Elects Barker Chief Justice

William M. Barker of Chattanooga was unanimously elected Tuesday by the Tennessee Supreme Court to serve as its chief justice. He will be sworn in Wednesday at the Supreme Court Building in Nashville prior to the start of a 10 a.m. docket.

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TODAY'S OPINIONS: Tuesday, October 04, 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
09 - 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

JESSICA DIANE TOMS v. JAMES ANTHONY TOMS

Court: TCA

Attorneys:

William T. Winchester, Memphis, Tennessee, for the appellants, Jessica Diane Toms, JamesAnthony Toms, William Littlefield and Pamela Littlefield.

William M. Monroe, Memphis, Tennessee, for the appellees, Robin and Gerald Williams.

Judge: FARMER

This divorce action was dismissed by the trial court after the parties resumed cohabiting. Thisruling was not appealed. The issues on appeal involve Grandparentsā right to intervene, joinder of third parties, the appointment of an attorney ad litem and the assessment of fees of theguardian ad litem and attorney ad litem. We affirm.

http://www.tba.org/tba_files/TCA/2005/tomsj10405.pdf


STATE OF TENNESSEE v. JOE SHELTON BERRY

Court: TCCA

Attorneys:

Emma Rae Tennent (on appeal) and Amy Harwell, (at trial) for the appellant, Joe Shelton Berry.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bernard McEvoy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Joe Shelton Berry, pled no contest to one count of rape. The trial court sentenced the defendant to eight years at 100%, but suspended service of the sentence and placed him on supervised probation. Thereafter, the trial court revoked the defendantās probation and placed his entire sentence into effect. On appeal, the defendant challenges the trial courtās revocation of his probation. Following our review, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/berryj10405.pdf


STATE OF TENNESSEE v. LAJUN M. COLE, SR.

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Lajun M. Cole, Sr.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; John Carney, District Attorney General; and Dan Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

This is an appeal from convictions on a jury verdict of criminal trespass of a habitation, especially aggravated kidnapping, misdemeanor reckless endangerment, and theft of property over $1,000. The Defendant was sentenced to eleven months and twenty-nine days for his misdemeanor trespass and reckless endangerment convictions, two years for his theft conviction, and twenty years as a violent offender for his especially aggravated kidnapping conviction. All of the sentences were to be served concurrently for an effective twenty year term of incarceration in the Department of Correction. On appeal, the Defendant challenges only his conviction for especially aggravated kidnapping, asserting there is insufficient evidence to support a conviction for this offense. We affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/colel10405.pdf


ROLANDO CONTRERAS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dana M. Ausbrooks, Franklin, Tennessee (at trial and on appeal), and Patrick Frogge (on appeal), for the appellant, Rolando Contreras.

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

Judge: WADE

The petitioner, Rolando Contreras, appeals the denial of post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel. The judgment of the post-conviction court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/contrerasr10405.pdf


STATE OF TENNESSEE v. STEVEN BRADLEY HEFLIN

Court: TCCA

Attorneys:

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher (on appeal) and Richard Tennent (at trial), Assistant Public Defenders, for the appellant, Steven Bradley Heflin.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and James F. Todd and Tammy Meade, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Steven Bradley Heflin, was originally indicted for aggravated assault with a deadly weapon, a Class C felony. The defendant entered an open plea of guilty to reckless aggravated assault with a deadly weapon, a Class D felony, pursuant to Tennessee Code Annotated section 3913-102(a)(2)(B), as a Range I, standard offender. The defendant was sentenced to four years, to serve nine months with the remainder on probation. The defendant now appeals the sentence, contending that certain enhancement factors were applied in error and that one mitigating factor was improperly rejected. After review, we remand the cause to modify the sentence to three years, to serve nine months and the remainder on probation.

http://www.tba.org/tba_files/TCCA/2005/heflins10405.pdf


STATE OF TENNESSEE v. KERRY D. HEWSON

Court: TCCA

Attorneys:

Lee Offman, Franklin, Tennessee (at trial); and Jennifer Lynn Thompson, Nashville, Tennessee (on appeal), for the Appellant, Kerry D. Hewson.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, 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

The defendant, Kerry D. Hewson, appeals from his Williamson County Circuit Court convictions of aggravated assault, for which he received an incarcerative sentence of six years, and reckless endangerment, for which he received a concurrent incarcerative sentence of two years. On appeal, he challenges the sufficiency of the convicting evidence, the lack of a jury instruction on reckless driving as a lesser included offense of reckless endangerment, and the trial courtās sentencing determinations. Following our review, we affirm the convictions but modify the sentencing determinations.

http://www.tba.org/tba_files/TCCA/2005/hewsonk10405.pdf


JOSEPH MILES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Joseph Miles.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The petitioner, Joseph Miles, appeals from the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel. The judgment is affirmed.

http://www.tba.org/tba_files/TCCA/2005/milesj10405.pdf


STATE OF TENNESSEE v. KELLY MICHAEL PICKETT

Court: TCCA

Attorneys:

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Kelly Michael Pickett.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bernard McEvoy and Brian Holmgren, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

After a bench trial, the Davidson County Criminal Court convicted the appellant of eleven counts of sexual exploitation of a minor, a Class E felony. The trial court sentenced him to an effective four-year sentence to be served as ninety days in the county workhouse at one hundred percent and the remainder on probation. The appellant appeals, claiming (1) that the sexual exploitation of a minor statute is unconstitutional, (2) that the evidence is insufficient to support the convictions because the State failed to prove that he ćpossessedä pornographic images as required by the statute and because the State failed to prove that the images were real as opposed to virtual; (3) that his convictions are multiplicitous; and (4) that the trial court erred by not sentencing him to full probation and by not granting him judicial diversion. Upon review of the record and the partiesā briefs, we conclude that the offenses are multiplicitous and reverse the appellantās convictions for counts two through eleven. We also modify the sentence for count one to reflect that the appellant is eligible to receive applicable statutory credits.

http://www.tba.org/tba_files/TCCA/2005/pickettk10405.pdf


STATE OF TENNESSEE v. CLAUD SIMONTON

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Garland Erguden, Assistant Public Defender; andDiane Thackery, Assistant Public Defender, Memphis, Tennessee, for the appellant, Claud Simonton.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Claud Simonton, pled guilty to one count of vehicular homicide by intoxication, aClass B felony, and one count of simple possession of cocaine, a Class A misdemeanor. Pursuant to a plea agreement, Defendant agreed to a minimum sentence of eight years as a RangeI, standard offender, for his vehicular homicide conviction, and an eleven month, twenty-nine day sentence for his possession conviction, without an agreement as to the manner of service ofthe sentences. The trial court ordered Defendant to serve his sentences concurrently for an effective sentence of eight years. Following a sentencing hearing, the trial court orderedDefendant to serve his eight-year sentence in confinement. In this appeal, Defendant argues that the trial court erred in not granting Defendantās request for alternative sentencing. Following athorough review of the record, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/simontonc10405.pdf


STATE OF TENNESSEE v. HARVEY LILLARD WEBB

Court: TCCA

Attorneys:

Adrian Chick, Nashville, Tennessee, for the appellant, Harvey Lilliard Webb.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Rob McGuire and Brett Gunn, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Harvey Lillard Webb, was indicted for premeditated first degree murder. He was convicted by a jury of the lesser-included offense of second degree murder. He was sentenced to twenty years in confinement as a violent offender. On appeal, the defendant challenges the sufficiency of the convicting evidence. After review, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/webbh10405.pdf


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