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STATE OF TENNESSEE v. SHEILA TERESA GAYE BOBADILLA and BENJAMIN BERNAL BOBADILLA

Court: TSC

Attorneys:

J. Russell Pryor, Greeneville, Tennessee, for the Appellant, Benjamin B. Bobadilla.T. Wood Smith, Greeneville, Tennessee, for the Appellant, Sheila Bobadilla.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General;Elizabeth T. Ryan, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: BIRCH

We accepted review of this cause under the Tennessee Rules of Appellate Procedure, Rule 11, inorder to address a question properly preserved and certified pursuant to the provisions of the Tennessee Rules of Criminal Procedure, Rule 37(b)(2). The question, as certified, is: “Whetherthe search warrant and accompanying affidavit that led to the search of the defendant’s residence violated the United States and Tennessee Constitutions as well as Tennessee Rule ofCriminal Procedure 41(c), so as to render all of the evidence seized pursuant thereto, illegal and inadmissible.” In our painstaking review of the record, we have determined that the search warrant was notissued in accordance with the requirements of the Tennessee Rules of Criminal Procedure, specifically Rule 41(c). Thus, we are constrained to hold the search conducted pursuant to thewarrant unreasonable and the evidence obtained as a result inadmissible. Accordingly, the judgment of the Court of Criminal Appeals, affirming the trial court’s judgment on other groundsis reversed, and the indictment in this case is dismissed.

http://www.tba2.org/tba_files/TSC/2005/bobadillas113005.pdf


STATE OF TENNESSEE v. DAVID SCARBROUGH

Court: TSC

Attorneys:

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brent C.Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General; and William H. Crabtree, Assistant District Attorney General, for the Appellant, State of Tennessee.

Leslie M. Jeffress, Knoxville, Tennessee, for the Appellee, David Leon Scarbrough.

Judge: ANDERSON

We granted this interlocutory appeal prior to the defendant’s retrial for felony murder to addressthe following issue: whether the defendant may contest his guilt as to the felony underlying the felony murder charge where the felony conviction for aggravated burglary was affirmed ondirect appeal but the felony murder conviction was reversed. The trial court found that the defendant was prohibited from challenging his guilt as to the underlying felony of aggravatedburglary because that conviction was final. The Court of Criminal Appeals concluded, however, that the doctrine of collateral estoppel does not prevent the defendant from contesting his guilt asto the underlying felony of aggravated burglary during the retrial for the charge of felony murder. After reviewing the record and applicable authority, we conclude that the use ofcollateral estoppel by the prosecution against the defendant to establish an essential element of the charged offense violates the right to trial by jury under article I, section 6 of the TennesseeConstitution. We further conclude, however, that the prosecution is permitted to introduce evidence of the prior conviction of aggravated burglary if the trial court determines that itsprobative value is not substantially outweighed by the risk of unfair prejudice to the defendant. Accordingly, we affirm the Court of Criminal Appeals’ judgment, and we remand to the trialcourt to hold the retrial consistent with the principles in this opinion.

http://www.tba2.org/tba_files/TSC/2005/scarbroughd113005.pdf


STATE OF TENNESSEE v. WILLIAM GEORGE SOLLER

Court: TSC

Attorneys:

Richard L. Burnette, Knoxville, Tennessee, and Bryan E. Delius, Sevierville, Tennessee, for theappellant, William George Soller.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; BrentC. Cherry, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: BIRCH

We have before us the defendant’s appeal in this case pursuant to Rule 11 of the TennesseeRules of Appellate Procedure, and we granted the application in order to determine whether the trial court had authority, following imposition of an agreed sentence, to grant the defendantjudicial diversion. Because judicial diversion was not included in the agreement, we conclude that the trial court lacked authority to alter the plea agreement. Additionally, once the judgmentsof “guilty” were entered, the trial court was precluded from granting judicial diversion because judicial diversion must be granted, if at all, “without entering a judgment of guilty.”Accordingly, we affirm the judgment of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TSC/2005/sollerw113005.pdf


THOMAS POSTON STUDDARD v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; MichaelE. Markham, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellant, State of Tennessee.

Jim W. Horner, District Public Defender; H. Tod Taylor, Assistant District Public Defender; andPatrick R. McGill, Assistant District Public Defender, for the appellee, Thomas Poston Studdard.

Judge: BIRCH

We granted permission to appeal in this case pursuant to Rule 11 of the Tennessee Rules ofAppellate Procedure to determine whether the Court of Criminal Appeals erred in vacating the defendant’s conviction. The defendant, Thomas Poston Studdard, was indicted for three countsof rape of a child. To this original indictment he entered a negotiated plea of guilty to the charge of incest and was sentenced to a term of eight years as a Range II multiple offender. Pursuant toRule 35(b) of the Tennessee Rules of Criminal Procedure, he filed a motion seeking correction or reduction of his sentence. Following a hearing, the trial court overruled the motion, and heappealed. Without addressing the defendant’s stated concern, the Court of Criminal Appeals, ostensibly using the plain error doctrine, vacated the judgment of conviction on the grounds thatincest is not a lesser included offense of child rape and because the record failed to reflect that the indictment had been amended. The intermediate court reinstated the original indictment andremanded the case. Because we conclude that the trial court had jurisdiction to accept the plea and because the criteria for plain error have not been met, we reverse the judgment of the Courtof Criminal Appeals, reinstate the conviction for incest, and remand the case to the Court of Criminal Appeals for consideration of the defendant’s sentencing issues.

http://www.tba2.org/tba_files/TSC/2005/studdardt113005.pdf


DANNY RUSSELL v. THYSSENKRUPP ELEVATOR MANUFACTURING, INC.

Court: TWCA

Attorneys:

Gregory D. Jordan and James V. Thompson, Jackson, Tennessee, for the appellant, ThyssenKrupp Elevator Manufacturing, Inc.

Steve Taylor, Memphis, Tennessee, for the appellee, Danny Russell.

Judge: WEATHERFORD

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer contends that the trial court erred in finding: 1) that the employee’s pre-existing leg condition was aggravated by his work for the employer; 2) that the employee gave proper notice of his injuries; and 3) that the employee had sustained a 90% permanent partial disability to the body as a whole. For the reasons set out below, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2005/russelld113005.pdf


OFFICE OF THE ATTORNEY GENERAL, CONSUMER ADVOCATE AND PROTECTION DIVISION v. TENNESSEE REGULATORYAUTHORITY

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and JoeShirley, Assistant Attorney General, for the appellant, Office of the Attorney General, Consumer Advocate and Protection Division.

Henry Walker, Nashville, Tennessee; and Martha M. Ross-Bain, Atlanta, Georgia, for AT&TCommunications of the South Central States, LLC and amicus curiae Competitive Carriers of the South, Inc.

J. Richard Collier, Jean A. Stone, and Randal Gilliam, Nashville, Tennessee, for the appellee,Tennessee Regulatory Authority.

R. Dale Grimes, Brian Roark, Guy M. Hicks, and Joelle Phillips, Nashville, Tennessee, for theappellee, BellSouth Telecommunications, Inc.

Judge: KOCH

This appeal involves the Tennessee Regulatory Authority’s consideration of a tariff filed byBellSouth Telecommunications, Inc. A group of competing telecommunications providers and the Consumer Advocate and Protection Division of the Office of the Attorney General filedpetitions to suspend the proposed tariff and to open a contested case proceeding because the tariff was discriminatory and anti-competitive. The Authority considered the proposed tariff andthe requests for a contested case proceeding at three conferences. After BellSouth amended the tariff to meet several of the objections of its competitors and the Consumer Advocate andProtection Division, the Authority, by divided vote, declined to suspend the tariff or to convene a contested case proceeding and permitted the revised tariff to take effect. On this appeal, theConsumer Advocate Division and the competing telecommunications providers assert that the Authority erred by refusing to open a contested case proceeding regarding their objections to therevised tariff. They also insist that the Authority’s approval of the tariff is not supported by substantial and material evidence. We have determined that the Authority abused its discretionby refusing to open a contested case proceeding to resolve the contested issues regarding whether the revised tariff was discriminatory and anti-competitive.

http://www.tba2.org/tba_files/TCA/2005/consumera113005.pdf


RONALD DENNIS CRAFTON v. JOHN VAN DEN BOSCH, JR.

Court: TCA

Attorneys:

Ronald Dennis Crafton, Pro Se

Stephen L. Hughes of Milan, Tennessee, for Appellee, John Van Den Bosch, Jr.

Judge: CRAWFORD

This is the second appeal of this legal malpractice action. The trial court initially denied appellee/attorney’s motion for summary judgment and this Court, in Crafton v. Van den Bosch, No. W2002-00679-COA-R9-CV, 2003 WL 327515 (Tenn. Ct. App. June 30, 2003), affirmed the trial court and remanded the matter for further proceedings. Upon remand, the appellee/attorney filed a second Motion for Summary Judgment on the grounds that appellant’s cause of action was timebarred based upon the applicable statute of limitations found at T.C.A. §28-3-104(a)(2). The trial court granted appellee/attorney’s motion. We affirm.

http://www.tba2.org/tba_files/TCA/2005/craftonr113005.pdf


STATE OF TENNESSEE ex rel., SHANNON NICOLE FARMER v. RODERICK LAMONT PARSON

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Warren Jasper, Assistant Attorney General, For Appellant, State of Tennessee ex rel., Shannon Nicole Farmer

No appearance by Appellee.

Judge: CRAWFORD

This is a Title IV child support case. The State appeals from the trial court’s Order forgiving Father/Appellee’s child support arrears because Father/Appellee allegedly made support payments directly to the mother. The trial court made no findings to support a deviation from the child support guidelines as required by T.C.A. §36-2-311 (Supp. 2004). Consequently, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2005/farmers113005.pdf


FRANKLIN CAPITAL ASSOCIATES, L.P. v. ALMOST FAMILY, INC. f/k/a CARETENDERS HEALTH CORPORATION

Court: TCA

Attorneys:

Sheryl G. Snyder, Louisville, Kentucky and John R. Wingo, Nashville, Tennessee, for theappellant, Almost Family, Inc., f/k/a Caretenders Health Corp.

Ames Davis, Nancy S. Jones and Thomas H. Lee, Nashville, Tennessee, for the appellee,Franklin Capital Associates, L.P.

Judge: CLEMENT

This appeal involves a dispute regarding a shareholders agreement negotiated as part of a mergerbetween National Health Industries, Inc. and Senior Services Corporation. The merged companies became Caretenders Health Corporation. Franklin Capital Associates, a shareholderof Caretenders, filed this action against Caretenders alleging, inter alia, breach of the parties’ shareholders agreement. Franklin contends Caretenders failed to use its best efforts to registerthe stock issued in the merger. The trial court found Caretenders liable for failing to use its best efforts to register the shares under any registration form available, and awarded damages of$984,970 to Franklin. Caretenders appeals contending the trial court erred by: (1) not requiring Franklin to prove Caretenders acted in bad faith, (2) determining Caretenders must use bestefforts to register the stock under any registration form available, and (3) applying a 25% “block discount” to the net proceeds, rather than the price per share. Franklin appeals the denial of theirrequest for prejudgment interest. We affirm the trial court on the first two issues and the denial of prejudgment interest to Franklin but find the trial court incorrectly calculated the “blockdiscount.”

http://www.tba2.org/tba_files/TCA/2005/franklinc113005.pdf


RANDY KENNETH GREEN v. MELISSA RENA GREEN

Court: TCA

Attorneys:

Randy K. Green, Lafayette, Tennessee, appellant, Pro Se.

Melissa Green, appellee.

Judge: COTTRELL

Father appeals the trial court’s failure to grant his petition to modify custody of his three minordaughters to the extent he requested. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2005/greenr113005.pdf


NORMA JEAN FORD GRIFFIN v. DONNA LESTER and the UNKNOWN HEIRS of ARTHUR JEAN HENDERSON (DECEASED)

Court: TCA

Attorneys:

Brenda Oates-Williams, Memphis, Tennessee, for Appellant Donna Lester.

Elijah Noel, Jr., Memphis, Tennessee, for Appellee Norma Jean Ford Griffin.

Judge: KIRBY

This is a quiet title and ejectment action. The plaintiff filed this lawsuit to quiet title toresidential property and obtain a court order requiring the defendant to vacate the premises. The defendant asserted adverse possession as an affirmative defense, and filed a counter-claimarguing the existence of a constructive trust. During the trial, the plaintiff testified about a conversation with the defendant’s grandmother, deceased by the time of trial, in which theplaintiff agreed to permit the defendant’s grandmother to stay in the house if she paid the note and maintained the property. The trial court entered a judgment in favor of the plaintiff anddismissed the defendant’s counter-complaint. The trial court found that the plaintiff filed the lawsuit within the applicable limitations period, and that the evidence did not support theimposition of a constructive trust or any other equitable relief. The defendant appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2005/griffinn113005.pdf


SHARON MARCEL KEISLING v.DANIEL KERRY KEISLING v.FRANCISCO (FRANK) HUBERTO GUZMAN AND WIFE, BILLIE ANN GUZMAN

Court: TCA

Attorneys:

John E. Herbison, Nashville, Tennessee, for the appellants, Sharon Marcel Keisling, FrankGuzman, and Billie Ann Guzman.

Dan R. Alexander, Nashville, Tennessee, for the appellant, Sharon Marcel Keisling.

Gloria Jean Evins, Guardian Ad Litem, Lebanon, Tennessee, appellant, pro se.

Amanda G. Crowell, Lebanon, Tennessee, for the appellee, Daniel Kerry Keisling.

Judge: KIRBY

This is a post-divorce petition to modify custody. During the marriage, the mother and fatherlived with the mother’s parents. The parties were divorced in September 1998, and custody of the parties’ three children was granted to the mother. After the divorce, the mother and theparties’ children continued to live with the maternal grandparents. In March 2000, the mother filed a petition to restrict the father’s visitation, alleging that the father sexually abused theparties’ two daughters. A guardian ad litem was appointed for the children. After a hearing, the allegations of sexual abuse were determined to be unfounded. Approximately a year later, themother filed a second petition to restrict the father’s visitation, once again alleging sexual abuse. The father filed a counter-petition for custody based on a material change in circumstances. Thefather alleged that the mother and her parents were causing harm to the children by subjecting them to persistent questioning and repeated physical examinations in an attempt to prove sexualabuse. The mother’s parents were joined as third-party defendants. The mother’s parents then filed a cross-petition for grandparent visitation. After a bench trial, the trial court granted thefather’s petition for a change in custody and allowed the mother unsupervised visitation in the grandparents’ home. The grandparents’ petition for grandparent visitation was dismissed. At theconclusion of trial, the guardian ad litem for the children submitted a request for $15,000 in fees. The trial court denied the request, awarding the guardian ad litem only the $1,500 she hadalready been paid. The mother, the grandparents, and the guardian ad litem now appeal. We affirm the decision of the trial court, except that we remand to the trial court for reconsiderationof the guardian ad litem’s fee request in light of the applicable law.

http://www.tba2.org/tba_files/TCA/2005/keislings113005.pdf


FOUR EIGHTS, LLC., v. AHMAD SALEM

Court: TCA

Attorneys:

G. Kline Preston, IV., Nashville, Tennessee, for appellant, Ahmad Salem.

Harlan Dodson, III, and Donald Capparella, Nashville, Tennessee, for Appellee, Four Eights,LLC.

Judge: FRANKS

Option to purchase under lease was dismissed by the Trial Court. Consolidated action bydefendant for detainer and fees was granted by the Trial Court. We affirm the dismissal of the action on option but reverse the Judgment for detainer and fees.

http://www.tba2.org/tba_files/TCA/2005/salema113005.pdf


VANORY ASKEW v. STATE OF TENNESSEE, KEVIN MYERS, WARDEN

Court: TCCA

Attorneys:

Lindsay C. Barrett, Dickson, Tennessee, for the Petitioner, Vanory Askew.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney and Michael Markham,Assistant Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Vanory Askew, pled guilty to intent to sell or deliver 300 grams or more ofcocaine, and one count of possession of a deadly weapon with intent to employ it in the commission of an offense, and he was sentenced to eighteen years. Subsequently, the Petitionerpled guilty to possession of cocaine in an amount under .5 grams and was sentenced to four years in the Department of Correction to be served concurrently with his previous sentence. ThePetitioner filed a petition for a writ of habeas corpus, alleging that: (1) the trial court erred by summarily dismissing the his pro se petition for writ of habeas corpus and denying his requestfor the appointment of counsel; and (2) the concurrent sentence he received for his 2003 conviction was illegal, because he was on parole at the time of the offense. The trial courtdismissed the petition, and we reverse the judgment of the trial court, and remand the case for the appointment of counsel, and for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2005/askewv113005.pdf


STATE OF TENNESSEE v. RUBY BREEDEN, BILLY NICELY, and MARSHA SUTTON

Court: TCCA

Attorneys:

John E. Eldridge and Robert R. Kurtz, Knoxville, Tennessee, for the Appellant, Ruby Breeden.

Wesley D. Stone, Tazewell, Tennessee, for the Appellant, Billy Nicely.

Byron D. Bryant, Knoxville, Tennessee, for the Appellant, Marsha Sutton.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;William Paul Phillips, District Attorney General; John W. Galloway, Jr., Deputy District Attorney General; Lori Phillips Jones and Amanda Cox, Assistant District Attorneys General; forthe Appellee, State of Tennessee.

Judge: HAYES

The Appellants, Ruby Breeden, Billy Nicely, and Marsha Sutton, were indicted by a UnionCounty grand jury for conspiracy to commit the first degree murder of Michael Hood. In a second count of the indictment, the Appellants, Nicely and Sutton, were charged with theattempted first degree murder of Hood. At the close of the proof, the trial court granted a judgment of acquittal with regard to the conspiracy charge against Sutton. The jury returnedguilty verdicts in the conspiracy count against Breeden and Nicely. Under count two, the jury also found Nicely guilty of attempted first degree murder as charged and found Sutton guilty offacilitating attempted first degree murder. Because our criminal code provides that a defendant may not be convicted of both the inchoate offenses of conspiracy and criminal attempt where thecharged conduct is designed to culminate in the commission of the same offense, the trial court entered a “not guilty” verdict with regard to Nicely’s conviction for attempted first degreemurder. See Tenn. Code Ann. § 39-12-106(a) (2003). On appeal, Breeden has raised six issues for our review: (1) whether the trial court abdicated its duty, as required by Tenn. R. Crim. P.33(f), to act as the thirteenth juror; (2) whether the evidence was sufficient to support her conspiracy conviction; (3) whether the trial court erred in denying her motion to sever due toBruton violations; (4) whether the court committed reversible error by failing to provide an adequate limiting instruction to the jury regarding the use of co-conspirators’ statements; (5)whether the court erred in allowing the State to deviate from the bill of particulars; and (6) whether the trial court erred in refusing to instruct the jury regarding the overt act relied upon bythe State to establish the conspiracy charge. Nicely has raised five issues for our review: (1) whether the court erred in performing its role as the thirteenth juror; (2) whether the evidence issufficient to support his conspiracy conviction; (3) whether the State committed prosecutorial misconduct during the presentation of a State’s witness; (4) whether the court erred in denyinghis motion to sever the offenses by allowing the jury to adjudicate his guilt on two inchoate offenses in view of Tennessee Code Annotated section 39-12-106(a); and (5) whether the courterred in refusing to instruct the jury regarding the overt act relied upon by the State to establish the conspiracy charge. Sutton specifically raised four issues for our review: (1) whether thecourt erred in denying her motion to sever; (2) whether the court erred by failing to strike and order the jury not to consider statements made by the co-defendants against Sutton; (3) whetherThe Appellants, Ruby Breeden, Billy Nicely, and Marsha Sutton, were indicted by a UnionCounty grand jury for conspiracy to commit the first degree murder of Michael Hood. In a second count of the indictment, the Appellants, Nicely and Sutton, were charged with theattempted first degree murder of Hood. At the close of the proof, the trial court granted a judgment of acquittal with regard to the conspiracy charge against Sutton. The jury returnedguilty verdicts in the conspiracy count against Breeden and Nicely. Under count two, the jury also found Nicely guilty of attempted first degree murder as charged and found Sutton guilty offacilitating attempted first degree murder. Because our criminal code provides that a defendant may not be convicted of both the inchoate offenses of conspiracy and criminal attempt where thecharged conduct is designed to culminate in the commission of the same offense, the trial court entered a “not guilty” verdict with regard to Nicely’s conviction for attempted first degreemurder. See Tenn. Code Ann. § 39-12-106(a) (2003). On appeal, Breeden has raised six issues for our review: (1) whether the trial court abdicated its duty, as required by Tenn. R. Crim. P.33(f), to act as the thirteenth juror; (2) whether the evidence was sufficient to support her conspiracy conviction; (3) whether the trial court erred in denying her motion to sever due toBruton violations; (4) whether the court committed reversible error by failing to provide an adequate limiting instruction to the jury regarding the use of co-conspirators’ statements; (5)whether the court erred in allowing the State to deviate from the bill of particulars; and (6) whether the trial court erred in refusing to instruct the jury regarding the overt act relied upon bythe State to establish the conspiracy charge. Nicely has raised five issues for our review: (1) whether the court erred in performing its role as the thirteenth juror; (2) whether the evidence issufficient to support his conspiracy conviction; (3) whether the State committed prosecutorial misconduct during the presentation of a State’s witness; (4) whether the court erred in denyinghis motion to sever the offenses by allowing the jury to adjudicate his guilt on two inchoate offenses in view of Tennessee Code Annotated section 39-12-106(a); and (5) whether the courterred in refusing to instruct the jury regarding the overt act relied upon by the State to establish the conspiracy charge. Sutton specifically raised four issues for our review: (1) whether thecourt erred in denying her motion to sever; (2) whether the court erred by failing to strike and order the jury not to consider statements made by the co-defendants against Sutton; (3) whetherthe evidence is sufficient to support her facilitation conviction; and (4) whether the court erred infailing to instruct the jury as to the offense of accessory after the fact. Additionally, Sutton was granted permission to “adopt and join” all relevant portions of her co-appellants’ briefs.Following review of the record, we conclude that the evidence is insufficient to support Sutton’s conviction for facilitation of attempted first degree murder. Accordingly, her conviction isreversed and the case dismissed. With regard to Breeden and Nicely, we conclude that the trial court erred by failing to act as the thirteenth juror and by admitting hearsay statements of Nicelyagainst Breeden that were not made in furtherance of the conspiracy. While we find no merit to the remaining arguments, our findings of reversible errors entitle both Breeden and Nicely to anew trial on the charge of conspiracy to commit first degree murder. Accordingly, their convictions are reversed, and the case is remanded for a new trial.

http://www.tba2.org/tba_files/TCCA/2005/breedenr113005.pdf


DOLWIN DEON CORMIA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John G. McDougal, Chattanooga, Tennessee, for the appellant, Dolwin Deon Cormia.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; William H. Cox, III, District Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Hamilton County jury convicted the Petitioner, Dolwin Deon Cormia, of first degree murder and abuse of a corpse, and the trial court imposed a life sentence with the possibility of parole plus a concurrent two year sentence. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner then sought post-conviction relief, alleging that he was denied effective assistance of counsel. Following a hearing on the post-conviction petition, the trial court dismissed the petition, and this appeal ensued. We affirm the trial court’s dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2005/cormiad113005.pdf


STATE OF TENNESSEE v. THOMAS W. COTHRAN

Court: TCCA

Attorneys:

Michael Joseph Flanagan, Nashville, Tennessee, for the appellant, Thomas W. Cothran.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant AttorneyGeneral; Ron Davis, District Attorney General; and Michael J. Fahey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

This is a direct appeal as of right from four aggravated vehicular homicide convictions, threevehicular assault convictions, and one DUI third offense conviction. The Defendant, Thomas W. Cothran, received consecutive sentences totaling one hundred twelve years, eleven months andtwenty-nine days. The Defendant argues five issues on appeal: (1) the evidence was insufficient to support his convictions for aggravated vehicular homicide and vehicular assault; (2) the DUIconviction should merge with the vehicular assault and aggravated vehicular homicide convictions; (3) the trial court erred in admitting expert witness testimony concerning theextrapolation of blood alcohol content; (4) the State’s failure to preserve evidence violated his due process rights; and (5) the trial court imposed an excessive sentence. We vacate themisdemeanor DUI conviction, fine and sentence, but affirm the judgments of the trial court as to all of the remaining convictions and sentences.

http://www.tba2.org/tba_files/TCCA/2005/cothrant113005.pdf


STATE OF TENNESSEE v. ROBERT G. LANEY

Court: TCCA

Attorneys:

Edward Gross, Nashville, Tennessee, for the Appellant, Robert G. Laney.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General;Victor S. Johnson, III, District Attorney General; and Scott McMurtry, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Aggrieved of his Davidson County Criminal Court conviction of driving under the influence(DUI), a class A misdemeanor, the defendant, Robert G. Laney, appeals and claims only that the evidence of his physical control of the motor vehicle was insufficient to support his conviction.We disagree and affirm the conviction.

http://www.tba2.org/tba_files/TCCA/2005/laneyr113005.pdf


STATE OF TENNESSEE v. MELISSA POWELL

Court: TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender, and Andrew Jackson Dearing, III, AssistantPublic Defender, for the appellant, Melissa Powell.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General;William Michael McCown, District Attorney General; and Ann L. Filer and Melissa Thomas, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant appeals the trial court’s denial of alternative sentencing. Upon review, weconclude that the presumption of alternative sentencing is rebutted because measures less restrictive than confinement have recently been applied to the defendant unsuccessfully.Specifically, less than one year after being placed on probation for two counts of forgery, the defendant was convicted in the instant case of identity theft, theft under $500, and six counts offorgery. Therefore, we affirm the trial court’s denial of alternative sentencing.

http://www.tba2.org/tba_files/TCCA/2005/powellm113005.pdf


LAWRENCE EARL RALPH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

L. Scott Grissom, McMinnville, Tennessee, for the appellant, Lawrence Earl Ralph.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General;Clement Dale Potter, District Attorney General; and Larry Bryant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Lawrence Earl Ralph, was convicted in the Warren County Circuit Court ofpossession of a Schedule VI controlled substance with intent to resell and received a two-year sentence. Subsequently, he filed a petition for post-conviction relief, claiming that he receivedthe ineffective assistance of counsel and that his due process rights were violated when the trial court forced him to go to trial less than two weeks after he was reindicted for the offense. Thepost-conviction court denied relief. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2005/ralphl113005.pdf


JAMES SPURLING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

D. Mitchell Bryant, Cleveland, Tennessee (on appeal); and James Spurling, Pro Se (at trial), forthe appellant, James Spurling.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;and Jerry N. Estes, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, James T. Spurling, appeals the post-conviction court’s summary dismissal of hispro se petition as untimely. Because the petitioner’s claims, when taken as true, allege attorney misrepresentation concerning the filing of a post-conviction petition, we conclude that anevidentiary hearing is necessary to determine: (1) whether due process tolled the limitations period because counsel did, in fact, assure the petitioner that he would continue hisrepresentation through the filing of a post-conviction petition; and if so, (2) whether the petitioner was within the reasonable opportunity afforded him by due process. Therefore, wereverse the post-conviction court’s dismissal of the petition and remand the matter for an evidentiary hearing.

http://www.tba2.org/tba_files/TCCA/2005/spurlingj113005.pdf


STATE OF TENNESSEE v. CHARLES A. WEBSTER

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee, for the Appellant, Charles A. Webster.

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

Judge: WITT

Pursuant to a plea agreement in the Davidson County Criminal Court, the defendant, Charles A.Webster, pleaded guilty to especially aggravated kidnappng, a Class A felony, and agreed to submit the issue of sentencing to the trial court. Aggrieved of the trial court’s 20-year sentencein the Department of Correction, the defendant appeals. We affirm the judgment.

http://www.tba2.org/tba_files/TCCA/2005/websterc113005.pdf


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On Sept. 29, the Supreme Court of Tennessee imposed reciprocal discipline on Kansas attorney Marcus P. Potter Jr. by suspending his Tennessee law license. Potter was suspended indefinitely by the Supreme Court of Kansas in June. He did not respond to a notice to show cause why reciprocal discipline should not be imposed in Tennessee. In addition to the suspension, the court ordered that Potter pay for the costs of the proceeding.
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