What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.
- 00-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 04-New Opinons From TSC-Workers Comp Panel
- 17-New Opinons From TCA
- 13-New Opinons From TCCA
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Lucian T. Pera
ANGELA BILBREY vs. AMERICAN NATIONAL BANK and TRUST COMPANY Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Randy Wilson Ronald J. Berke James Williams Berke, Berke & Berke Miller & Martin Chattanooga, Tennessee Judge:Loser First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellant contends the evidence preponderates against the chancellor's findings that the employee's permanent mental and physical injuries arose out of and in the course of her employment. As discussed below, the panel has concluded the judgment should be affirmed. URL:http://www.tba.org/tba_files/TSC-WCP/bilbvame_doc.WP6 SCOTT M. SHULTZ vs. BANEBERRY GOLF COURSE and UNITED STATES FIDELITY & GUARANTY COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellants: For the Appellee: Thomas L. Kilday James M. Davis Milligan & Coleman 214 North Jackson St. P.O. Box 1060 Morristown, Tn. 37814 Greeneville, Tn. 37444-1060 Judge:THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. URL:http://www.tba.org/tba_files/TSC-WCP/shultzsc_wc.WP6 LARRY DONALD SETSOR vs. ENGLAND CORSAIR UPHOLSTERY MFG. COMPANY, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: William A. Simms James M. Davis ARNETT, DRAPER & HAGOOD 214 North Jackson Street 2300 First Tennessee Plaza Morristown, TN 37814 Knoxville, TN 37929 Judge:INMAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. URL:http://www.tba.org/tba_files/TSC-WCP/setsor_wc3.WP6 THE TRAVELERS INSURANCE COMPANY vs. KAREN MORRISETT Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: P. Richard Talley David M. Sanders P.O. Box 950 800 S. Gay St., Suite 1209 Dandridge, Tenn. 37725 Knoxville, Tenn. 37929 Judge:THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. URL:http://www.tba.org/tba_files/TSC-WCP/traveler_wc.WP6 WILLIAM BAUMGARDNER and wife, SUSAN BAUMGARDNER vs. ACD TRIDON NORTH AMERICA, INC. Court:TCA Attorneys: GUY R. DOTSON, JR. 102 South Maple Street Murfreesboro, Tennessee 37130 ATTORNEY FOR PLAINTIFFS/APPELLANTS JOHN R. RUCKER, JR. 14 Public Square North Murfreesboro, Tennessee 37130 ATTORNEY FOR DEFENDANT/APPELLEE Judge:CORLEW First Paragraph: This is an appeal by plaintiff from summary judgment rendered by the trial court in favor of the defendant in a personal injury case. URL:http://www.tba.org/tba_files/TCA/baumgard_opn.WP6 R.S. BRANDT, K.M. LUNDIN, M.I. LUNDIN, N.B. LUNDIN, and A.T. WILTSHIRE, JR., vs. BIB ENTERPRISES, LTD., A Tennessee Limited Partnership, and GREGORY SMITH, Individually, and VIRGINIA ABERNETHY Court:TCA First Paragraph: Appellees' petition for rehearing has been considered and is respectfully denied. URL:http://www.tba.org/tba_files/TCA/brandtr2_ord.WP6 IN RE: LAURA ANN CAMPBELL Court:TCA Attorneys: For Plaintiff/Appellant: For Defendant/Appellee: William Landis Turner No Appearance KEATON, TURNER & SPITZER Hohenwald, Tennessee Judge:PARNELL First Paragraph: This appeal involves a biological father's attempt to gain custody of his eleven-year-old daughter. Apparently ignoring the biological father's petition for custody, the Perry County Juvenile Court placed the child in the custody of her former stepfather who had recently divorced her biological mother. The father asserts on this appeal that the juvenile court failed to give him an opportunity to present evidence to support his petition for custody and also failed to employ the proper evidentiary standard in deciding to award custody to his daughter's former stepfather. We vacate the juvenile court's custody order because the natural father was not afforded a hearing on his custody petition and because the juvenile court did not make the requisite findings of fact to support awarding custody of a child to someone other than a biological parent. URL:http://www.tba.org/tba_files/TCA/campbela_opn.WP6 JAMES CARROLL and FORESTINE CARROLL, for the use and benefit of the Estate of JESSIECA RENEE CARROLL, a minor, deceased, and JAMES CARROLL and FORESTINE CARROLL, Individually vs. CAROLYN WHITNEY, M.D., GROVER W. BARNES, M.D., P.C., and LEBONHEUR CHILDREN'S MEDICAL CENTER, INC., acting by and through its Agents, Servants, Employees and Others Court:TCA Attorneys: Carl I. Jacobson of McKnight, Hudson, Lewis, Ford & Harrison of Memphis Ross Higman of Wyatt, Tarrant & Combs of Memphis For Appellants Thomas R. Prewitt, Jr. and Donna L. Boyce of Memphis For Defendant Lebonheur Children's Medical Center Robert L. J. Spence, Jr. and Chapman Sellers Morrow of The Hardison Law Firm of Memphis For Defendants Carolyn Whitney, M.D. and Grover W. Barnes, M.D., P.C. Judge:CRAWFORD First Paragraph: The appeal of this medical malpractice case presents issues concerning comparative fault principles. Plaintiffs, James Carroll and Forestine Carroll, for the use and benefit of the Estate of Jesse Renee Carroll, a minor, deceased, and James Carroll and Forestine Carroll, individually, appeal the trial court's judgment on a jury verdict for defendants, Carolyn Whitney, M.D., Grover W. Barnes, M.D., P.C., and Lebonheur Children's Medical Center, Inc. URL:http://www.tba.org/tba_files/TCA/carrollj_opn.WP6 CRYE-LEIKE REALTORS, INC. A Tennessee Corporation vs. WDM, INC., a subsidiary of DERLAN, INDUSTRIES LIMITED, and GEORGE C. RICHERT, TRAMMELL CROW SE, INC. and SCOTT PAHLOW Court:TCA Attorneys: Roger A. Stone, STONE, HIGGS & DREXLER, Memphis, Tennessee Attorney for Plaintiff/Appellant. Anthony Sammons, BRANSON & BEARMAN, PLLC, Memphis, Tennessee Attorney for Defendants/Appellees WDM, Inc. and George C. Richert. William L. Hendricks, Jr., GLANKLER BROWN, PLLC, Memphis, Tennessee Attorney for Defendant/Appellee Trammell Crow SE, Inc. Judge:FARMER First Paragraph: In this action for breach of contract and procurement of breach of contract, Plaintiff Crye-Leike Realtors, Inc., appeals the trial court's final order entering summary judgment in favor of Defendants/Appellees WDM, Inc., George C. Richert, Trammell Crow SE, Inc., and Scott Pahlow. We reverse the trial court's judgment because we conclude that the record reveals the existence of genuine issues of material fact which preclude summary judgment on these claims. URL:http://www.tba.org/tba_files/TCA/crye-lei_opn.WP6 BIANCA ARNESHE ASKEW DOROTHY LEWIS vs. JULIE DONOHO Court:TCA Judge:LILLARD First Paragraph: Y KIRBY LILLARD, J. I agree with the result reached by the majority, as well as the standard of proof adopted by the majority for a non-custodial parent to regain custody from a nonparent custodian. However, I write separately to clarify my understanding of this standard and its application in this case. URL:http://www.tba.org/tba_files/TCA/donoho_con.WP6 MARY F. HALL and DON K. HALL vs. MARY ROSE PIPPIN and DALE DELANEY Court:TCA Attorneys: For Plaintiffs/Appellees: For Defendants/Appellants: Manuel F. Edwards William R. Draper Cookeville, Tennessee Cookeville, Tennessee T. Michael O'Mara Thomas F. Bloom Cookeville, Tennessee Nashville, Tennessee Jerry Scott Murfreesboro, Tennessee William Capelle Keaton Hohenwald, Tennessee Judge:NEAL First Paragraph: This appeal stems from a dispute between neighbors over the use of an old road in rural Putnam County. After the owners of one tract began to erect a fence across the road, the owners of the neighboring tract filed suit in the Chancery Court for Putnam County seeking injunctive and declaratory relief concerning their right to continue to use the road to gain access to their property. The trial court heard the case without a jury and determined that the disputed road ran along the roadbed of an old public road and that the abutting landowners had not abandoned their use of the old road even though it had ceased being used by the general public. Accordingly, the trial court granted the plaintiff landowners an easement over the portion of the defendant neighbors' property where the old road ran. On this appeal, the defendant neighbors assert that the old road had been abandoned by both the general public and the abutting landowners. Accordingly, they insist that the old road could not supply a basis for an easement. We have determined that the judgment should be affirmed. URL:http://www.tba.org/tba_files/TCA/hallmf_opn.WP6 MARY F. HALL and DON K. HALL vs. MARY ROSE PIPPIN and DALE DELANEY Court:TCA Judge:TODD First Paragraph: Mary Rose Pippin and Dale Delaney have filed a petition requesting this court to reconsider its August 19, 1998 opinion in light of seven exhibits that were not transmitted to this court with the rest of the record on appeal. At our request, Mary F. Hall and Don K. Hall have filed a response to the petition for rehearing. The clerk and master has also transmitted a supplemental record containing the seven missing exhibits and an affidavit concerning the reasons why these exhibits were not included with the original appellate record. URL:http://www.tba.org/tba_files/TCA/hallmf_reh.WP6 WALTER K. JOHNSON vs. TENNESSEE DEPARTMENT OF CORRECTIONS Court:TCA Attorneys: Walter K. Johnson, #94955 R.M.S.I., Unit 6, A-123 7475 Cockrill Bend Road Nashville, Tennessee 37209-1010 PRO SE/ PLAINTIFF/APPELLANT John R. Miles, #13346 Counsel for the State Civil Rights & Claims Division Cordell Hull Bldg., Second Floor 425 Fifth Avenue North Nashville, Tennessee 37243-0488 ATTORNEY FOR DEFENDANT/APPELLEE Judge:TODD First Paragraph: The captioned petitioner, a prisoner in the custody of the Tennessee Department of correction, has appealed from the judgment of the Trial Court dismissing his "Petition for a Declaratory Judgment", which is, in reality an action seeking review of an administrative decision of the Department regarding sentence credits. The grounds of the dismissal were twofold: 1. Application for judicial review was not filed within 60 days after final action of the administrative agency as required by T.C.A. S 4-5-322(b)(1), and 2. Failure to state a claim for which relief can be granted because the "sentence credits" sought by petitioner are not matters of right but of discretion by the administrative authorities. T.C.A. S 41-21-236(a)(2) and (3). URL:http://www.tba.org/tba_files/TCA/johnswal_opn.WP6 DORIS KEOWN vs. FIDDLER'S INN, d/b/a FIDDLERS INN NORTH and JAH, INC Court:TCA Attorneys: David B. Lyons, #11046 601 Woodland Street Nashville, Tennessee 37206 ATTORNEY FOR PLAINTIFF/APPELLANT Scott A. Rhodes, #16870 BREWER, KRAUSE & BROOKS P.O. Box 23890 Nashville, Tennessee 37202-3890 ATTORNEY FOR DEFENDANTS/APPELLEES Judge:TODD First Paragraph: This is a premises liability case in which the plaintiff, Doris Keown, sued the defendants, owner and tenant, for injuries sustained by plaintiff in a fall allegedly caused by a 3 inch rise from a parking area to the concrete walkway at the entrance of a hotel. The Trial Judge rendered summary judgment for the defendants, and plaintiff appealed. The sole issue on appeal is the correctness of the summary judgment. URL:http://www.tba.org/tba_files/TCA/keowndo_opn.WP6 BIANCA ARNESHE ASKEW DOROTHY LEWIS vs. JULIE DONOHO Court:TCA Attorneys: MARGARET R. BARR Memphis, Tennessee Attorney for Appellant JAMES F. GOODWIN Germantown, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: This case presents for review a dispute over custody of a minor child between a parent and a nonparent where a prior judicial decree awarded custody to the nonparent. The parent has appealed the trial court's Rule 41.02(2) dismissal of her petition to restore custody of her child. We find that the evidence does not preponderate against the trial court's finding that Donoho failed to satisfy her burden of proof of establishing a material change in circumstances and, therefore, affirm. URL:http://www.tba.org/tba_files/TCA/lewisd_opn.WP6 METRIC PARTNERS GROWTH SUITE INVESTORS, L.P. vs. NASHVILLE LODGING COMPANY; 2300 ELM HILL PIKE, INC., Defendant/Appellant, and ORLANDO RESIDENCE, LTD.; and LA SALLE NATIONAL BANK as trustee under that certain pooling and servicing agreement dated July 11, 1995, for the holders of the WHP Commercial Mortgage Pass Through Certificates, Series 1995C1, and ROBERT M. HOLLAND, JR., Trustee Court:TCA Attorneys: ALAN T. FISTER STEWART, ESTES & DONNELL 424 Church Street Nashville, Tennessee 37219-2392 MIKE BUCKLEY CROSBY, HEAFEY, ROACH & MAY 1999 Harrison Street Oakland, California 94604-2084 Attorneys for Plaintiff/Appellee SAMUEL L. FELKER JOSEPH F. WELBORN, III BASS, BERRY & SIMS 2700 First American Center Nashville, Tennessee 37238-2700 Attorneys for Defendant/Appellant EUGENE N. BULSO, JR. BOULT, CUMMINGS, CONNERS & BERRY 414 Union Street Nashville, Tennessee 37219-8062 Attorney for Defendant/Appellee Orlando Residence, Ltd. KENNETH M. BRYANT TRABUE, STURDIVANT & DEWITT 522 Union Street Nashville, Tennessee 37219-1738 HUNTER T. CARTER ARENT, FOX, KINTNER, PLOTKIN & KAHN 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5339 Attorneys for Defendants/Appellees LaSalle National Bank and Robert M. Holland Judge:CANTRELL First Paragraph: The owner of a hotel subject to a first mortgage sold the building and its contents to the plaintiff and took a second mortgage to secure the purchase price. The plaintiff also operated the hotel under a ground lease with the owner. When the owner failed to pay the first mortgage, the plaintiff sought a declaratory judgment that the owner was in default, that the plaintiff could pay the first mortgage directly to the mortgagee, and that the plaintiff was discharged from its obligation to the owner. The owner resisted the declaration on the ground that it had certain defenses against the first mortgagee. The Chancery Court of Davidson County granted summary judgment to the plaintiff. We affirm. URL:http://www.tba.org/tba_files/TCA/metricpg_opn.WP6 STATE OF TENNESSEE, ex rel. PEGGY A. RICHARDSON vs. MICHAEL W. RICHARDSON Court:TCA Attorneys: JOHN KNOX WALKUP Attorney General & Reporter KIMBERLY M. FRAYN Assistant Attorney General General Civil Division 425 Fifth Avenue North Cordell Hull Building, 2nd Floor Nashville, Tennessee 37243-0499 ATTORNEYS FOR PLAINTIFF/APPELLEE CLARK LEE SHAW 2525 Lebanon Road Nashville, Tennessee 37214 ATTORNEY FOR DEFENDANT/APPELLANT Judge:BUSSART First Paragraph: Appellant Michael Richardson is the former husband of Peggy Richardson and they are the parents of the minor child whose financial support is the basis for this case. The State of Tennessee ex rel Ms. Richardson filed a petition for contempt seeking a judgment for the accumulated arrearage in child support. The lower court found Mr. Richardson in criminal contempt of court pursuant to Tennessee Code Annotated sections 29-9-102 and 29-9-103 and granted an arrearage judgment against him in the amount of $18,194.58. He has appealed to this court. URL:http://www.tba.org/tba_files/TCA/richardp_opn.WP6 DEPARTMENT OF HUMAN SERVICES, and THE ASSOCIATION FOR GUIDANCE, AID, PLACEMENT AND EMPATHY vs. ROBERT RUDD Court:TCA Attorneys: M. ALLEN EHMLING McClellan, Powers, Ehmling &Dix, P.C. 116 Public Square Gallatin, TN 37066 ATTORNEY FOR THE PETITIONERS/APPELLEES J. MICHAEL O'NEIL P.O. Box 60125 Nashville, TN 37206 ATTORNEY FOR THE RESPONDENT/APPELLANT Judge:CAIN First Paragraph: This case represents a father's appeal from an order terminating his parental rights with regard to three minor children. On appeal, the father raises the following issue: "Whether a relative can enjoy the same placement preference as a parent where termination of parental rights and non-relative adoption are the only alternative to relative placement." Mr. Rudd attempts to advance the position that as long as a parent or parental relative (in this case a paternal grandmother) can provide a stable safe environment for a dependent and neglected child, termination of parental rights is not a viable option under the statutes. Appellant seeks to rely on the parental relative-preference noted in the Title 37, Chapter 2. Tenn. Code. Ann. S 37-2-403 (1996). No statement of facts was filed with the appeal. See Tenn. R. App. P. 24 (1998). Due to appellate counsel's able argument regarding the rights at stake, this court issued an order to consider this case on the briefs and technical record alone. URL:http://www.tba.org/tba_files/TCA/ruddr_opn.WP6 MATTHEW SEFFERNICK vs. SAINT THOMAS HOSPITAL AND BARRY E. YARBROUGH, M.D. Court:TCA Judge:TODD First Paragraph: In accordance with the opinion of the Court filed herein, the petition to rehear filed by the appellees is denied at the cost of appellees.. URL:http://www.tba.org/tba_files/TCA/sefferni_ord.WP6 IN RE: BANKS DEWEY THOMPSON CHRISTINE PERRY vs. JAMES EARL RUBLEY Court:TCA Attorneys: PAUL D. CROSS 100 Highway 64 West P. O. Box 99 Monteagle, Tennessee 37356 Attorney for Plaintiff/Appellant AUBREY L. HARPER 114 North College Street P. O. Box 588 McMinnville, Tennessee 37111-0588 Attorney for Defendant/Appellee Judge:CANTRELL First Paragraph: The trial court set aside the testator's 1992 will on the ground that the sole beneficiary under that will had exerted undue influence upon the testator. We reverse, because we find that the evidence in the record preponderates against the trial court's finding of undue influence. URL:http://www.tba.org/tba_files/TCA/thompbd_opn.WP6 JIMMY WAYNE WILSON vs. JAMES T. FITE, VIVIEN TROY COOK, DEWEY SCOTT FRAZIER, JERRY L. CHILTON, PAUL CARRIER, ET AL. vs. STATE OF TENNESSEE, GOVERNOR NED RAY McWHERTER, PAROLE ELIGIBILITY REVIEW BOARD & MEMBERS, JIM THRASHER, JOHN S. WILDER, JIMMY NAIFEH, AND CHARLES BURSON, ET AL. Court:TCA Judge:TODD First Paragraph: Jimmy Wayne Wilson has filed a pro se request for a rehearing, claiming that this court's opinion of January 16, 1998 is in conflict with well-established principles of law. While Rule 39 of the Rules of Appellate Procedure provides that an appeals court may grant a rehearing in situations where "the court's opinion is in conflict with a statute, prior decision, or other principle of law," Mr. Wilson has not stated any principle of law nor cited any statute that would require us to find that he is entitled to the relief he seeks. URL:http://www.tba.org/tba_files/TCA/wilsnjw_reh.WP6 STATE OF TENNESSEE vs. DON L. ADKINS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID NEAL BRADY JOHN KNOX WALKUP District Public Defender Attorney General & Reporter JOE L. FINLEY, JR. CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General 215 Reagan Street 2nd Floor, Cordell Hull Building Cookeville, TN 38501 425 Fifth Avenue North Nashville, TN 37243 WILLIAM EDWARD GIBSON District Attorney General DAVID A. PATTERSON Assistant District Attorney General 145 South Jefferson Avenue Cookeville, TN 38501 Judge:WOODALL First Paragraph: The Defendant, Don L. Adkins, appeals as of right following his sentencing hearing in the Cumberland County Criminal Court. The Defendant was indicted on four (4) counts of aggravated sexual battery. In an agreement with the District Attorney's office, Defendant agreed to plead guilty to one (1) count of attempted aggravated sexual battery, a Class C felony. Defendant also agreed to a sentence of six (6) years with the trial court to determine the manner of service of his sentence. Following the sentencing hearing, the trial court ordered Defendant to serve his entire sentence in the Department of Correction. Defendant argues that the trial court erred in denying a sentence of split confinement. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/adkinsdl_opn.WP6 STATE OF TENNESSEE vs. TIMMY BEAVERS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CURTIS H. GANN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter DONNA L. HARGROVE ELIZABETH B. MARNEY Assistant Public Defender Assistant Attorney General 2nd Floor, Cordell Hull Building JOHN H. DICKEY 425 Fifth Avenue North Assistant Public Defender Nashville, TN 37243 MICHAEL D. RANDLES WILLIAM MICHAEL McCOWN Assistant Public Defender District Attorney General P.O. Box 1119 Fayetteville, TN 37334 WEAKLEY E. BARNARD Assistant District Attorney General GERALD L. GULLEY, JR. Marshall County Courthouse, Room 407 P.O. Box 1708 Lewisburg, TN 37091 Knoxville, TN 37901-1708 (ON APPEAL ONLY) Judge:WOODALL First Paragraph: This appeal by Defendant Timmy Beavers attempts to present a certified question of law pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure and Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The certified question Defendant attempts to present to this Court involves the trial court's denial of a motion to suppress certain evidence obtained from Defendant. Because we conclude that this matter is not properly before us, the judgment below is affirmed and the appeal is dismissed. URL:http://www.tba.org/tba_files/TCCA/beaverst_opn.WP6 TIMOTHY BICKERS, THOMAS CARTER, and GREGORY HEDGES vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellants: For the Appellee: Lionel R. Barrett John Knox Walkup 222 Second Avenue Attorney General and Reporter Suite 418 Nashville, TN 37201 Peter M. Coughlan Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General 109 S. Main Street Suite 501 Greeneville, TN 37743 Judge:Barker First Paragraph: The appellants, Timothy Bickers, Thomas Carter, and Gregory Hedges, appeal as of right the dismissal in the Greene County Criminal Court of their petitions for post-conviction relief. The trial court granted their motions to reopen, but found that the petitions were barred by the statute of limitations and that the ground for relief was waived. Although we conclude that the trial court erred in granting the motions to reopen, we nevertheless affirm the trial court's judgment dismissing the petitions for post-conviction relief. URL:http://www.tba.org/tba_files/TCCA/bickerst_opn.WP6 STATE OF TENNESSEE vs. DAVID BORNFRIEND Court:TCCA Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: STEVE CONLEY JOHN KNOX WALKUP BRUCE S. CONLEY Attorney General & Reporter Conley, Campbell, Moss & Smith P.O. Box 427 ELIZABETH T. RYAN Union City, TN 38261 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 THOMAS A. THOMAS District Attorney General JAMES T. CANNON Assistant District Attorney General P.O. Box 218 Union City, TN 38261-0218 Judge:WOODALL First Paragraph: The Appellant, the State of Tennessee (state), appeals from a judgment of the trial court suppressing three statements made by David Bornfriend (defendant) to law enforcement officers. The state appeals pursuant to Rule 3(c) of the Tennessee Rules of Appellate Procedure on the basis that the trial court's order granting the motion to suppress had the substantive effect of dismissing the indictment against the defendant. In this court, the state contends "the trial court erroneously suppressed the three statements given by the defendant because none of the statements were involuntary." After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this court that the judgment of the trial court should be affirmed. URL:http://www.tba.org/tba_files/TCCA/brnfrndd_opn.WP6 STATE OF TENNESSEE vs. ANDREW COLE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Clifford K. McGown, Jr. John Knox Walkup 113 North Court Square Attorney General & Reporter P.O. Box 26 Waverly, TN 37185 Clinton J. Morgan (Appeal Only) Counsel for the State 425 Fifth Avenue North Tom W. Crider 2nd Floor, Cordell Hull Building District Public Defender Nashville, TN 37243-0493 107 South Court Square Trenton, TN 38382 Clayburn Peeples (Trial and Of Counsel on Appeal) District Attorney General Larry Hardister Asst. District Attorney General 110 South College Street, Suite 200 Trenton, TN 38382 Judge:Wedemeyer First Paragraph: On September 16, 1997, the appellant, Andrew Cole, was convicted by a jury of one count of attempted first degree murder, one count of attempted second degree murder, one count of aggravated assault and one count of unlawful possession of a firearm. In this appeal, the appellant's sole complaint is that the evidence was insufficient to support either the attempted first degree murder or attempted second degree murder convictions. Following our review of the evidence, we affirm the convictions. URL:http://www.tba.org/tba_files/TCCA/cole_wpd.WP6 STATE OF TENNESSEE vs. ROBERT EMMET DUNLAP, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Matthew M. Maddox John Knox Walkup Maddox, Maddox & Maddox Attorney General & Reporter 19695 East Main Street P.O. Box 430 Elizabeth T. Ryan Huntingdon, TN 38344 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Robert "Gus" Radford District Attorney General John W. Overton, Jr. Asst. District Attorney General P.O. Box 686 Huntingdon, TN 38344 Judge:SUMMERS First Paragraph: The appellant, Robert Emmet Dunlap, Jr., was convicted by a jury of three counts of the sale of cocaine in the Henry County Circuit Court. The court imposed concurrent sentences of ten years for each conviction. The court denied the appellant's motion for a new trial and this appeal followed. The appellant presents the following issues for our review: I. Whether the trial court erred in denying his motion to subpoena jurors to determine if the jury received and relied upon extrajudicial information in reaching their verdict. II. Whether the trial court erred in refusing to order the state to provide him with the criminal record of the confidential informant who testified against him. III. Whether the trial court erred in denying his motion for a judgment of acquittal on count five of the indictment. URL:http://www.tba.org/tba_files/TCCA/dunlapre_opn.WP6 SEAN PATRICK GOBLE vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: SEAN P. GOBLE, pro se JOHN KNOX WALKUP R.M.S.I., U-5 B110 Attorney General & Reporter 7475 Cockrill Bend Road Nashville, TN 37209 ELLEN H. POLLACK Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 C. BERKELEY BELL District Attorney General 109 South Main Street Greeneville, TN 37743 Judge:WOODALL First Paragraph: The Petitioner/Appellant, Sean Patrick Goble, appeals as of right from the trial court's order dismissing his petition for post-conviction relief. The petition was dismissed without an evidentiary hearing. URL:http://www.tba.org/tba_files/TCCA/goblesp_opn.WP6 JEFFERY J. HANKINS vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GEORGE MORTON GOOGE JOHN KNOX WALKUP District Public Defender Attorney General & Reporter (On Appeal) GEORGIA BLYTHE FELNER DANIEL J. TAYLOR Counsel for the State Asst. Public Defender Criminal Justice Division 227 West Baltimore Street Cordell Hull Building, Second Floor Jackson, TN 38301 425 Fifth Avenue North (At PC Hearing) Nashville, TN 37243-0493 Jerry Woodall District Attorney General Al Earls Asst. District Attorney General P.O. Box 2825 Jackson, TN 38301 Judge:WEDEMEYER First Paragraph: On October 13, 1993, the petitioner was convicted by a jury on two counts of aggravated robbery and one count of use of a weapon in the commission of a felony and upon a guilty plea to possession of cocaine. On direct appeal, the aggravated robbery counts were affirmed; however, the use of a weapon conviction was reversed. State v. Jeffery Hankins, No. 02C01-9404-CC-00069 (Tenn. Crim. App. Jan. 11, 1995). On March 25, 1996, the petitioner filed a petition for post-conviction relief in which he claimed that his trial counsel was ineffective. Following an evidentiary hearing, the trial court denied the petition. From this denial, the petitioner appeals. URL:http://www.tba.org/tba_files/TCCA/hankins_wpd.WP6 STATE OF TENNESSEE vs. JOHN R. LEWIS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Randall E. Self John Knox Walkup P. O. Box 501 Attorney General & Reporter Fayetteville, TN 37334 425 Fifth Avenue, North Nashville, TN 37243-0493 Karen M. Yacuzzo Assistant Attorney General 425 Fifth Avenue, North Nashville, TN 37243-0493 William M. McCown District Attorney General 215 East College Fayetteville, TN 37334 Weakley E. Barnard Assistant District Attorney General Marshall County Courthouse, Room 407 Lewisburg, TN 37091 Judge:LAFFERTY First Paragraph: The defendant, John R. Lewis, was convicted of aggravated sexual battery by a Lincoln County jury. The trial court imposed a sentence of ten (10) years in the Department of Correction. URL:http://www.tba.org/tba_files/TCCA/lewisjr_opn.WP6 STATE OF TENNESSEE vs. COREY LEMONT POWELL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL E. SCHOLL JOHN KNOX WALKUP 200 Jefferson Avenue, Suite 202 Attorney General & Reporter Memphis, TN 38103 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 ELIZABETH T. RICE District Attorney General CHRISTOPHER MARSHBURN Asst. District Attorney General 302 Market Street Somerville, TN 38068 Judge:WOODALL First Paragraph: The Defendant, Corey Lemont Powell, appeals as of right from his conviction in the Fayette County Circuit Court. Defendant was indicted on three counts, including especially aggravated robbery, murder during the perpetration of a robbery, and premeditated first degree murder. Following a jury trial, Defendant was convicted of second degree murder, felony murder and especially aggravated robbery. The trial court merged the second degree murder conviction with the felony murder conviction and sentenced Defendant to serve a life sentence for felony murder concurrent with a sentence of fifteen (15) years for the especially aggravated robbery conviction. Defendant submits the following issues for appellate review: 1) whether the trial court erred in denying Defendant's motion to suppress his statement; 2) whether the trial court erred in refusing Defendant access to the results of a polygraph test for use as evidence; 3) whether the trial court erred by refusing to suppress evidence of the murder weapon and the ballistics test; 4) whether the trial court erred in denying Defendant's motion regarding the striking of specific jurors and motion for a change of venue; 5) whether the trial court erred in denying Defendant's motion for a mistrial due to admission of evidence of Defendant's arrest; 6) whether the trial court erred in refusing to admit testimony regarding Defendant's restricted access to the telephone during police questioning; 7) whether the trial court erred in overruling Defendant's motion for a judgment of acquittal; 8) whether the trial court erred by refusing to charge lesser included offenses of premeditated first degree murder; and 9) whether the trial court erred by allowing prosecutorial misconduct during the trial. After a thorough review of the record and the briefs in this matter, we affirm the judgment of the trial court in all respects. URL:http://www.tba.org/tba_files/TCCA/powellcl_opn.WP6 ANTONIO SWEATT vs. STATE OF TENNESSEE Court:TCCA Judge:RILEY First Paragraph: This matter is before the Court upon motion of the state to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. This case represents an appeal from the trial court's denial of the petitioner's petition for writ of habeas corpus. The petitioner pled guilty to two counts of aggravated rape in 1990 and received an effective 25 year sentence. No appeal was taken. In his present petition, the petitioner claims that he was induced to plead guilty by a misrepresentation of the extent of his sentence and that his sentence has expired. Specifically, the petitioner claims he was informed that he would be released from prison after serving 30% of his effective sentence because he was sentenced as a Range I offender. URL:http://www.tba.org/tba_files/TCCA/sweatt2_ord.WP6 ARTHUR R. TURNER vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID A. COLLINS JOHN KNOX WALKUP 211 Printers Alley Building Attorney General & Reporter Fourth Floor Nashville, TN 37203 TIMOTHY F. BEHAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General NICHOLAS A. BAILEY Asst. District Attorney General Washington Square 222 Second Ave. North, Suite 500 Nashville, TN 37201-1649 Judge:WOODALL First Paragraph: The Petitioner, Arthur R. Turner, appeals as of right the trial court's dismissal of his petition of post-conviction relief. Petitioner raises the following two issues in this appeal: (1) whether he received the effective assistance of counsel and (2) whether it was plain error for the trial court to run his aggravated rape sentence consecutive to his other sentences. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/turnerar_opn.WP6 STATE OF TENNESSEE vs. JAMIE WALKER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CHARLES P. RONEY JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter P.O. Box 542 Union City, TN 38282-0542 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General MARK DAVIDSON Asst. District Attorney General P.O. Box 562, 302 Market St. Somerville, TN 38068 Judge:WITT First Paragraph: The defendant, Jamie Walker, entered best-interest guilty pleas to three counts of statutory rape in the Lauderdale County Circuit Court. With the consent of the state and the trial court, he reserved the certified question of whether the trial court correctly determined he was competent to stand trial. Thereafter, he perfected his appeal to this court, and that certified question is now before us for consideration. After studying the record and the briefs of the parties, we have determined (1) that the certified question is properly before us, and (2) the trial court did not abuse its discretion in ruling the defendant was competent to stand trial. Accordingly, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/walkerj_opn.WP6
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