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TODAY'S OPINIONS
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Knoxville, Tennessee
Editor-in-Chief, TBALink

PROGRESSIVE CASUALTY INSURANCE CO. v. HOWARD D. CHAPIN and ARTHUR BLAIR SAMUELS And SABRINA D. BALL, as GUARDIAN AD LITEM for NATASCHA BOUCHARD

Court: TCA

Attorneys:

Nicholas E. Bragorgos and Jonathan W. McCrary, Memphis, Tennessee, for Plaintiff/Appellant Progressive Casualty Insurance Co.

Dan Taylor, Memphis, Tennessee, for Defendant/Appellee Howard D. Chapin.

Arthur Blair Samuels, Eads, Tennessee, Defendant/Appellee, pro se.

Gary K. Smith and Karen M. Campbell, Memphis, Tennessee, for Intervener/Appellee Sabrina D. Ball, as Guardian Ad Litem for Natascha Bouchard.

Judge: KIRBY

This is an insurance case. The plaintiff insurer issued a policy of insurance for a motorcycle. The named insured kept the motorcycle at his home, and allowed his adult son unrestricted access to his home and the motorcycle. The adult son borrowed the motorcycle and drove it to a friend's house. While there, the adult son let the friend take his minor stepdaughter for a ride on the motorcycle. The friend lost control of the motorcycle and the stepdaughter was injured. The accident prompted the stepdaughter's biological father to file a petition against his daughter's mother in chancery court for a change of custody. During the custody dispute, the chancery court appointed both a guardian ad litem and an attorney ad litem for the stepdaughter, and ordered the attorney ad litem to pursue any legal actions on behalf of the stepdaughter for the accident. When the attorney ad litem filed a claim on the stepdaughter's behalf with the plaintiff insurer, payment was denied. The guardian ad litem then filed a separate tort action against the friend. While the tort action was pending, the plaintiff insurer filed this declaratory judgment action against the named insured and the friend, seeking a declaration that its insurance policy did not cover the friend. The guardian ad litem intervened in this action. After a bench trial, the trial court found that the insurance policy covered the friend for the motorcycle accident, and awarded the guardian ad litem discretionary costs, which included attorney's fees for the attorney ad litem. The plaintiff insurer now appeals. We reverse the trial court's decisions on the issue of coverage and discretionary costs, and remand for further proceedings as may be necessary.

http://www.tba2.org/tba_files/TCA/2007/progressive_070507.pdf


STATE OF TENNESSEE v. DERRICK CRAWLEY

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender; James Stevens and Collier Goodlett, Assistant District Public Defenders, for the Appellant, Derrick Nevelle Crawley.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; John W. Carney, Jr., District Attorney General; Arthur Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Derrick Crawley, pled guilty to sexual battery and was sentenced to serve two years on probation. The Defendant then pled guilty to a violation of the sex offender registry statute. A warrant was issued alleging a violation of probation, and after a hearing the Defendant's probation was revoked. On appeal, the Defendant contends that the trial court abused its discretion by revoking his probation because the State failed to prove that he willfully violated his probation. Concluding that no error exists, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/crawleyd_070507.pdf


STATE OF TENNESSEE v. ROWLAND KEITH HALL
Corrected Opinion


Court: TCCA

Attorneys:

John E. Appman, Jamestown, Tennessee (at trial); and Travis Hawkins, Nashville, Tennessee (at new trial and on appeal), for the Appellant, Rowland Keith Hall.

Robert E. Cooper, Jr., Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Scott McCluen, District Attorney General; and Roger Delp, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Following a two-day trial before a Morgan County jury, the defendant, Rowland Keith Hall, was convicted of manufacturing methamphetamine, see T.C.A. section 39-17-417 (2006), and possession of drug paraphernalia, see id. section 39-17-425. Prior to sentencing, the defendant filed a motion to substitute counsel, which the trial court granted. The trial court imposed a four-year sentence on the manufacturing conviction to be served in community corrections after service of 90-days' incarceration. The court ordered a suspended sentence of 11 months and 29 days for the paraphernalia conviction to be served concurrently with the four-year manufacturing sentence. On appeal, the defendant complains that the trial court admitted hearsay testimony that violated his confrontation rights and that trial counsel rendered ineffective assistance of counsel. After careful review, we affirm the judgments of conviction.

http://www.tba2.org/tba_files/TCCA/2007/hallr_corr_070507.pdf


BILLY HARRIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Billy Harris, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lora D. Fowler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, Billy Harris, appeals the summary dismissal of his pro se petition for post-conviction relief, arguing that he was entitled to the appointment of counsel and an evidentiary hearing. Following our review, we reverse the judgment of the post-conviction court and remand for the appointment of counsel.

http://www.tba2.org/tba_files/TCCA/2007/harrisb_070507.pdf


STATE OF TENNESSEE v. KENNETH EDWARD HOLSAPPLE

Court: TCCA

Attorneys:

Michael Collins, Assistant Public Defender, Lewisburg, Tennessee (at trial), and Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee (on appeal), for the appellant, Kenneth Edward Holsapple.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Charles Crawford, District Attorney General and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Kenneth Edward Holsapple, was convicted by a Marshall County jury of aggravated assault, assault, and reckless endangerment resulting from the attack upon his estranged wife and the stabbing of his wife's boyfriend. The trial court merged the convictions for aggravated assault and reckless endangerment. The Defendant was sentenced as a Range I, standard offender and received an effective sentence of three years in the Department of Correction. The Defendant's sole issue on appeal is whether the evidence was sufficient to support his conviction for aggravated assault beyond a reasonable doubt. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/holsapplek_070507.pdf


STATE OF TENNESSEE v. FREDRICO L. HORTON

Court: TCCA

Attorneys:

Danny J. Baxter, Nashville, Tennessee, for the Appellant, Fredrico L. Horton

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Brett Gunn and Ben Winters, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Fredrico L. Horton, of robbery. On appeal, the Defendant contends that: (1) the trial court erred when it refused to allow him to cross-examine a State witness about the witness's mental health; (2) the evidence is insufficient to support his conviction and the trial court should have granted his motion for judgement of acquittal; and (3) the trial court erred in its duty as a thirteenth juror. Concluding that no error exists, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/hortonf_070507.pdf


STATE OF TENNESSEE v. DIMECOS JONES

Court: TCCA

Attorneys:

Larry E. Copeland and Joseph S. Ozment, Memphis, Tennessee, for the Appellant, Dimecos Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; James Wax and Michelle Parks, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Dimecos Jones, was convicted by a Shelby County jury of first degree premeditated murder and sentenced to life imprisonment. On appeal, Jones raises two issues for our review: (1) whether the evidence is sufficient to support the conviction; and (2) whether the trial court erred by failing to instruct the jury on "defense of a third person." Following review, we find no error and affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2007/jonesd_070507.pdf


TRACY F. LEONARD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; John W. Carney, District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Kathryn B. Stamey, Clarksville, Tennessee, for the appellant, Tracy Frank Leonard.

Judge: WELLES

The Petitioner, Tracy F. Leonard, was convicted of first degree premeditated murder, felony murder, two counts of especially aggravated kidnapping, rape, and theft over $1,000. The trial court merged the convictions for first degree premeditated murder and felony murder and also merged the two convictions for especially aggravated kidnapping into a single conviction. The Petitioner received a sentence of life for first degree murder, twenty-five years for especially aggravated kidnapping, eight years for rape, and two years for theft over $1,000. The trial court ordered that the sentences for especially aggravated kidnapping and rape be served consecutively to the life sentence and consecutively to each other and that the sentence for theft be served concurrently with the sentence for rape. On direct appeal, this Court affirmed the convictions and sentences for first degree murder, especially aggravated kidnapping where the victim suffered serious bodily injury, rape, and theft over $1,000. However, this Court reversed the Petitioner's conviction for especially aggravated kidnapping accomplished by the use of a deadly weapon because of the trial court's failure to instruct the jury as to lesser-included offenses. The Petitioner filed a petition for post-conviction relief, which was denied by the post-conviction court. The Petitioner now asserts that he received the ineffective assistance of counsel, that his protection against double jeopardy was violated, that his convictions were based on actions of a grand jury and petit jury that were unconstitutionally impaneled, and that the jury instructions were unconstitutional. Finding no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/leonardt_070507.pdf


CHRISTOPHER LOVIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Christopher Lovin.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Christopher Lovin, was convicted of felony murder in the perpetration of aggravated child abuse and sentenced to life imprisonment. His conviction and sentence were upheld on direct appeal. Subsequently, he filed a petition for post-conviction relief, alleging that trial counsel was ineffective. After an evidentiary hearing, the post-conviction court dismissed the petition, and the petitioner timely appealed. Following our review, we affirm the dismissal.

http://www.tba2.org/tba_files/TCCA/2007/lovinc_070507.pdf


PAUL DENNIS REID, JR., BY AND THROUGH LINDA MARTINIANO, NEXT FRIEND v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kelly A. Gleason and Nicholas D. Hare, Nashville, Tennessee, for the appellant, Paul Dennis Reid, Jr., by and through Linda Martiniano, next friend.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Jennifer L. Smith, Associate Deputy Attorney General, John Wesley Carney, Jr., District Attorney General; and Art Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

Linda Martiniano, "next friend" for Paul Dennis Reid, Jr., appeals the trial court's dismissal of the post-conviction petition she filed on Reid's behalf. Although the trial court found that Martiniano qualified as Reid's "next friend," the court found that Martiniano's petition did not sufficiently demonstrate Reid's incompetence to warrant an evidentiary hearing on the issue. We hold that the trial court erred in its conclusion regarding the prima facie showing. We, therefore, reverse the judgment of the trial court and remand for further proceedings.

http://www.tba2.org/tba_files/TCCA/2007/reidpd_070507.pdf


STATE OF TENNESSEE v. DAVEN DECARLO TURNER

Court: TCCA

Attorneys:

R. Wilford Fraley, III, (on appeal); Gerald Melton, District Public Defender; and J.D. Driver, Assistant District Public Defender (at trial), Murfreesboro, Tennessee, for appellant, Daven Decarlo Turner.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Jennings Jones, Assistant District Attorney General, for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Daven Decarlo Turner, pled guilty in the Rutherford County Criminal Court to various charges resulting in a total effective sentence of twelve years as a Range II, multiple offender, suspended to probation upon the service of one year incarceration. Upon his second arrest for violations of his probation, the trial court revoked the defendant's probation and ordered him to serve his full sentence in prison. It is from this revocation that he now appeals, arguing that the trial court violated his due process rights and subjected him to cruel and unusual punishment in revoking his probation. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/turnerd_070507.pdf


HUGH WILLIAMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Timothy W. Flohr, Greeneville, Tennessee, for the appellant, Hugh Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Amber DePriest, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

In 2005, the petitioner pled guilty to second degree murder and conspiracy to commit first degree murder and received an effective sentence of fifty years. Subsequently, he filed a timely pro se petition for post-conviction relief, alleging that his plea of guilty to the latter offense was unknowing and involuntary and that counsel who had represented him at the time of the plea was ineffective. Following an evidentiary hearing, the post-conviction court dismissed the petition and this appeal followed. We affirm the dismissal.

http://www.tba2.org/tba_files/TCCA/2007/williamsh_070507.pdf


Court of Appeals Precedent

TN Attorney General Opinions

Date: 2007-07-03

Opinion Number: 07-98

http://www.tba2.org/tba_files/AG/2007/ag_07-98.pdf

TODAY'S NEWS

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6th applicant files for appeals court consideration
Andy D. Bennett, chief deputy attorney general in the state attorney general's office has filed papers to fill the Middle Division Court of Appeals seat left open by William Koch's appointment to the Tennessee Supreme Court. Candidates have until July 16 to apply.
Learn more or apply now
Review suggests distrust of state judges
The Economist argues in a recent editorial that low pay, partisan judicial elections and incidents of misconduct are leading to public distrust of state-level judges.
Read more
Court orders competency test for Reid
The Tennessee Court of Criminal Appeals has ordered a lower court to reconsider the mental competency of Paul Dennis Reid, a death row inmate convicted in the slayings of seven fast-food workers. Reid previously had asked to drop all appeals, but his sister successfully argued to continue the process for him.
Download the opinion
The News Sentinel has the story
Stovall takes chief administrative judge post
Thomas G. Stovall has been appointed director and chief administrative judge of the Administrative Procedures Division within the office of the secretary of state. The division provides administrative judges to conduct contested case hearings on behalf of state administrative agencies and agencies of the Metropolitan Government of Nashville and Davidson County. Stovall has served as assistant director of the division since 1993. He received his law degree from the University of Tennessee College of Law in 1980.

Knox attorney eyes county law job
Knoxville attorney Bill Lockett has announced he will challenge incumbent county law director John Owings in February's Republican primary. Lockett said Owings "seems to be a good attorney" but argues that the county needs a fresh perspective.
Read about his reasons for running in the Knoxville News Sentinel
Counties pay for two DAs
Counties in the 13th Judicial District are paying the salaries of two district attorneys -- elected DA Bill Gibson, whose law license has been suspended since last September and who is awaiting a final disciplinary ruling, and interim DA Tony Craighead, who is filling the spot until Gibson's fate is resolved. Taxpayers are starting to get upset and have little recourse. The only way to remove Gibson from office and eliminate his salary is for the state legislature to impeach him, reports WSMV-TV.

Shelby County desegregation hearing set
Before determining whether to dismiss Shelby County Schools' nearly 40-year-old desegregation order, U.S. District Court Judge Bernice Donald says she wants to hear from the public. That will happen at a newly scheduled hearing on July 23. The school board and the NAACP both agree that the county no longer requires strict supervision, but the local chapter of the Rainbow PUSH Coalition opposes the move.
The Commercial Appeal has more
Murfreesboro stores challenge 'adults-only' ordinance
Two "adults-only" video stores targeted by city officials for violating zoning restrictions are now suing the city, claiming the ordinance governing adult businesses is unconstitutional. The suit comes in the wake of a 2005 state Supreme Court ruling that another locality's law was too vague and violated freedom of speech.
The Murfreesboro Daily reports
Cumberland justice center moving forward
Contractor bids for a proposed expansion of the Cumberland County Justice Center, estimated to cost $16 million, are due July 17. When completed, the expansion will add four courtrooms, space for court clerks' offices and two offices for general sessions judges.
The Crossville Chronicle has more on the story
New bar leaders named
The Jackson Madison County Bar Association has named new leadership for the 2007-2008 bar year. Officers are: President Jeff Mueller with Mueller & Ellis PLC, Vice President Rick Kendall with Waldrop & Hall PA, Secretary John Hamilton with Hill & Boren, and Treasurer Todd Siroky with Rainey, Kizer, Reviere & Bell PLC.

Wrongful death suit lingers for 20 years
In 1987, a Memphis police officer shot and killed 16 year-old boy playing with a BB gun. The officer was tried for involuntary manslaughter, but acquitted. The family filed a civil suit and was awarded damages, but to this day has not seen a dime.
Read why at WREG-TV.com
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Amundsen to speak at library event
Memphis attorney Amy Amundsen will speak at the Poplar White Station Library's Second Thursday Community Lecture Series July 12 at 11:30 a.m. Amundsen, who is a family law attorney, will discuss legal procedures involved in divorce, childcare and property settlement. The event is free and open to the public. The library is located at 5094 Poplar Ave. For details call (901) 682-1616.

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