March 23, 2001
Volume 7 -- Number 054

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
18 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. WILLIAM CHARLES BOGGS, JR.
Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal only); George
Morton Googe, District Public Defender (of counsel on appeal); and Joe
H. Byrd, Jr., Jackson, Tennessee (at trial) for the appellant, William
Charles Boggs.

Paul G. Summers, Attorney General & Reporter; Mark E. Davidson,
Assistant Attorney General; James (Jerry) Woodall, District Attorney
General; and James W. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: WOODALL

First Paragraph:

Defendant William Charles Boggs was convicted by a Madison County jury
of aggravated child abuse, Tenn. Code Ann. S 39-15-402, a Class A
felony.  The trial court sentenced Defendant as a violent 100%
offender to a term of twenty-one years.  Defendant's sole issue in
this appeal is whether the evidence was sufficient to support his
conviction.  After a thorough review of the record, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/boggswc.wpd


GEORGE MILTON BROOKS v. STATE OF TENNESSEE Court:TCCA Attorneys: Anthony L. Winchester, Dyersburg, Tennessee, for the appellant, George Milton Brooks. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The petitioner, George Milton Brooks, appeals as of right from the Dyer County Circuit Court's denial of his petition for post-conviction relief. Petitioner contends that he received ineffective assistance of counsel during his pre-trial proceedings when counsel: (1) failed to investigate all apparent substantial defenses on Petitioner's behalf; (2) failed to assert certain Fourth Amendment violations during the hearing on Petitioner's motion to suppress; and (3) incorrectly advised Petitioner whether he could properly reserve two questions of law for appellate review. After a review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/brooksgm.wpd
STATE OF TENNESSEE v. C. CURTIS BROWN Court:TCCA Attorneys: Gerald S. Green, Memphis, Tennessee, for the appellant, C. Curtis Brown. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kenneth Roach, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, after having his authority to write bonds in the 30th Judicial District revoked, appeals the trial court's decision and asserts that there was insufficient evidence to support the trial court's findings. Furthermore, the defendant asserts that the trial court's action was excessive. After review, we affirm the trial court in all respects. http://www.tba.org/tba_files/TCCA/browncc.wpd
STATE OF TENNESSEE v. RICHARD CRAWFORD WITH DISSENTING OPINION Court:TCCA Attorneys: Kendall Reeves (on appeal) and Timothy Joel Williams (at trial), Memphis, Tennessee, for the appellant, Richard Crawford. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant, Richard Crawford, was convicted at a bench trial of theft of a motor vehicle valued over $10,000. On appeal, the defendant raises the following two issues for our review: (1) whether the evidence was sufficient to support his conviction for theft; and (2) whether the value of the vehicle was properly established. The judgment of the Shelby County Criminal Court is affirmed. http://www.tba.org/tba_files/TCCA/crawfordr_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/crawfordr_dis.wpd
STATE OF TENNESSEE v. FREDERICK LAMAR DIXON Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee, and George M. Googe, District Public Defender (on appeal); Scott Kirk, Jackson, Tennessee (at trial), for the appellant, Frederick Lamar Dixon. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The Defendant, after a jury trial for aggravated robbery, was found guilty of the lesser included offense of robbery. Tenn. Code Ann. S 39-13-401. The Defendant challenges his robbery conviction relying upon the recent Supreme Court holding in State v. Owens, 20 S.W.3d 634 (Tenn. 2000). We agree with the Defendant that Owens is controlling and hold that the violence or intimidation by the Defendant occurred subsequent to the theft he committed, such that the facts in Owens are indistinguishable from the facts in the instant case. Therefore, the Defendant's conviction of robbery is reversed; however, we modify the trial court's judgment to show a conviction of theft of merchandise, a Class A misdemeanor. See Tenn. Code. Ann. S 39-14-103 & 105(1). Further, the case is remanded for re-sentencing consistent with the theft of merchandise conviction. http://www.tba.org/tba_files/TCCA/dixonfl.wpd
CLAUDE FRANCIS GARRETT v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Claude Francis Garrett. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and John C. Zimmermann, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, after being convicted of first degree murder and sentenced to life imprisonment, was denied post-conviction relief by the Criminal Court of Davidson County. Defendant now appeals that denial and asserts that (1) the State withheld exculpatory evidence in violation of Brady v. Maryland, thereby undermining the confidence of the outcome of the trial; (2) the trial court erred by unconstitutionally instructing the jury; (3) the defendant was not afforded effective assistance of counsel; and (4) juror misconduct and bias violated the defendant's constitutional rights. The issue of juror misconduct was addressed by this court on direct appeal and, therefore, is not properly before this court. After review, we affirm the trial court's finding that the defendant received effective assistance of counsel; however, we reverse and remand the case for a new trial because the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, thereby undermining the confidence in the outcome of the trial. http://www.tba.org/tba_files/TCCA/garrettc.wpd
JAMES R. HANKINS v. STATE OF TENNESSEE Court:TCCA Attorneys: Jeffery S. Glatstein, Memphis, Tennessee, for the appellant, James R. Hankins. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; William D. Bond, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: James R. Hankins appeals the Shelby County Criminal Court's denial of his petition for post- conviction relief. All of his allegations are without merit, save one. Hankins has established by clear and convincing evidence that his counsel on direct appeal failed to follow the required procedures for withdrawal of counsel under Supreme Court Rule 14. Accordingly, we affirm in part, reverse in part, and vacate and reinstate our judgment in Hankins' direct appeal. http://www.tba.org/tba_files/TCCA/hankinsjr.wpd
STATE OF TENNESSEE v. DAVID JOHNSON Court:TCCA Attorneys: STATE OF TENNESSEE v. DAVID JOHNSONMichael E. Scholl, Memphis, Tennessee (on appeal); A.C. Wharton, Jr., District Public Defender; Phyllis Aluko, Assistant Public Defender; and Gwendolyn Rooks, Assistant Public Defender (at trial), for the appellant, David Johnson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Jerry Kitchen, Assistant District Attorney General; and Julie Mosley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from his Shelby County Criminal Court conviction and sentence for second degree murder. The trial court sentenced the defendant to 37 years in the Department of Correction as a Range II multiple offender. In this direct appeal, the defendant complains that the evidence is insufficient; that double jeopardy barred his retrial following the grant of a mistrial; that Jencks Act material, police reports, and arrest histories of state witnesses were improperly withheld; that he was not allowed to impeach a key witness in violation of his confrontation rights; that the trial court erred in ruling that his prior convictions could be used to impeach him if he testified; that the jury was improperly instructed; and that his sentence is excessive. We are unpersuaded that reversible error occurred and therefore affirm the judgment and sentence of the trial court. http://www.tba.org/tba_files/TCCA/johnsond.wpd
STATE OF TENNESSEE v. JOHN EDWARD JOHNSON, JR. WITH DISSENTING OPINION Court:TCCA Attorneys: Lance E. Webb, Union City, Tennessee, for the appellant, John Edward Johnson, Jr. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant pled guilty to felonious possession of a handgun for an agreed sentence of one year. The parties reserved a certified question of law; namely, whether an individual, who was previously convicted of aggravated assault with a deadly weapon but subsequently had his full citizenship rights restored pursuant to Tenn. Code Ann. S 40-29-101--105, can lawfully possess a handgun. We conclude that a convicted felon, otherwise prohibited from possessing a handgun under Tenn. Code Ann. S 39-17-1307(b)(1)(A), may lawfully possess a handgun in his residence after his "full citizenship rights" have been restored. http://www.tba.org/tba_files/TCCA/johnsonje_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/johnsonje_dis.wpd
LaKREASHA KIMBLE v. STATE OF TENNESSEE Court:TCCA Attorneys: John E. Finklea, Murray, Kentucky, for the appellant, LaKreasha Kimble. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy P. Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This is an appeal of a denial of post-conviction relief. The petitioner and two codefendants were each convicted of murder in the perpetration of robbery and of especially aggravated robbery for the robbery and killing of a man who had given them a ride in his car. The petitioner appealed her convictions to the post-conviction court, arguing, inter alia, that her counsel provided ineffective assistance by his failure to petition for a severance of trial from her codefendants. The post- conviction court denied relief, finding the petitioner's claims to be without merit. Based upon a thorough review, we affirm the post-conviction court's denial of relief. http://www.tba.org/tba_files/TCCA/kimblel.wpd
PHYLLIS McBRIDE v. STATE OF TENNESSEE Court:TCCA Attorneys: Joe M. Brandon, Jr., Smyrna, Tennessee, for the appellant, Phyllis McBride Michael E. Moore, Solicitor General; Todd R. Kelley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and David L. Puckett, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Phyllis McBride, was convicted by a Rutherford County jury of first degree murder. On appeal, this Court affirmed the conviction. The Petitioner filed an application for permission to appeal to the Tennessee Supreme Court which was denied. The Petitioner then filed a petition for post-conviction relief. Following a hearing, the petition was dismissed. The Petitioner now appeals the trial court's denial of post-conviction relief. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcbridep.wpd
STATE OF TENNESSEE v. PHAREZ N. PRICE Court:TCCA Attorneys: J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Pharez N. Price. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Lewis County jury of criminal responsibility for facilitation of a felony and possession of drug paraphernalia. The underlying felony conviction was for possession of cocaine in an amount of .5 gram or more with intent to sell or deliver. The defendant's brother pled guilty to this felony, a Class B felony. The defendant was sentenced as a Range II, multiple offender to nine years in continuous confinement on the facilitation conviction and eleven months and twenty-nine days in the workhouse on the drug paraphernalia conviction, with the sentences to be served concurrently for an effective sentence of nine years. In this appeal as of right, the defendant contends that his sentence on the facilitation conviction was inappropriate both as to length and manner of service. Having reviewed the limited record, we conclude that the sentence is appropriate and therefore affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/pricepn.wpd
STATE OF TENNESSEE v. SHERMAN SHAW Court:TCCA Attorneys: Michael E. Scholl, Memphis, Tennessee, for the appellant, Sherman Shaw. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen C. Baity, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendant of aggravated robbery. The trial court sentenced him to 15 years as a Range II multiple offender. In this appeal, the defendant alleges (1) the trial court erroneously admitted the defendant's custodial statement; (2) the evidence was insufficient to sustain the defendant's conviction; (3) the cumulative effect of the trial court's errors requires a new trial; and (4) the defendant's sentence is excessive. After a thorough review of the record, we affirm the judgment and sentence imposed by the trial court. http://www.tba.org/tba_files/TCCA/shaws.wpd
STATE OF TENNESSEE v. STEPHEN LESTER THOMAS Court:TCCA Attorneys: Lee Ofman, Franklin, Tennessee, for the appellant, Stephen Lester Thomas. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was charged in the Williamson County Circuit Court with DUI, first offense, after a police officer observed him operating his vehicle in an erratic fashion. A videotape was made and admitted into evidence of the defendant's taking field sobriety tests, upon which the officer testified that he did poorly. Following his conviction for this offense, the defendant timely appealed. In his appeal, he raised several issues, including the refusal of the trial court to instruct as to a lesser- included offense, complaints about the admission of evidence, the conduct of the trial, and rulings of the trial court. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/thomassl.wpd
GEORGE TODD v. WARDEN FRED RANEY ORDER Court:TCCA Judge: WILLIAMS First Paragraph: The Petitioner, George Todd, appeals from the Lake County Circuit Court's denial of his petition for writ of habeas corpus. In 1985, the Petitioner entered into a negotiated plea agreement and pled guilty to second degree murder. As part of the plea agreement the Petitioner received a forty-five year sentence as a Range II offender. The Petitioner subsequently filed a petition for post-conviction relief alleging ineffective assistance of counsel. The petition was denied and the Petitioner appealed the denial of his petition to this Court. On December 21, 1989, this Court affirmed the lower court's denial of the Petitioner's petition for post-conviction relief. On August 24, 2000, the Petitioner filed a petition for writ of habeas corpus in the Lake County Circuit Court, alleging that the passage of the Criminal Sentencing Reform Act of 1989 served to void his sentence and all other sentences in the State of Tennessee, and was the equivalent of a pardon. The Lake County Circuit Court denied the Petitioner's petition. http://www.tba.org/tba_files/TCCA/toddg_ord.wpd
DONNIE WHEELER, et al. v. STATE OF TENNESSEE WITH 2 CONCURRING OPINIONS Court:TCCA Attorneys: Ricky L. Jenkins, Sparta, Tennessee, for the appellant, Donnie Wheeler. Cindy A. Howell, Sparta, Tennessee, for the appellant, Lonnie Wheeler. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; G. Robert Radford, District Attorney General; and William M. Locke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The Petitioners filed pro-se petitions for post-conviction relief on September 25, 1997, in accordance with the Post Conviction Relief Act. Tenn. Code Ann. S 40-30-101. Amended petitions were subsequently filed by court appointed counsel on November 14, 1997. The Petitioners' petitions were later dismissed and this appeal followed. In this appeal, the Petitioners set forth several grounds upon which they claim that post-conviction relief should have been granted. Specifically, the Petitioners allege ineffective assistance of counsel, claiming that counsel: failed to file a motion for judgment of acquittal; failed to appeal the judgment of conviction for second degree murder; failed to dismiss two jurors who were alleged to be biased against the Petitioners, which resulted in a denial of their right to a fair and impartial jury; failed to interview and cross-examine a witness of the State's; and failed to file a motion to suppress photographs that were entered into evidence. Petitioner Donnie Wheeler also contends that post-conviction relief should have been granted because counsel failed to request an instruction on the lesser-included offense of criminal responsibility for the facilitation of a felony, and because the trial court failed to charge the jury with the same lesser-included offense. After careful examination of the issues set forth herein, we affirm the post-conviction court's denial of post-conviction relief to the Petitioners. http://www.tba.org/tba_files/TCCA/wheelerdetal_opn.wpd CONCURRING OPINION 1 (HAYES) http://www.tba.org/tba_files/TCCA/wheelerdetal(Hayes)_con.wpd CONCURRING OPINION 2 (WITT) http://www.tba.org/tba_files/TCCA/wheelerdetal(Witt)_con.wpd
EARNEST L. WHITE v. STATE OF TENNESSEE ORDER Court:TCCA Judge: SMITH First Paragraph: The petitioner, Earnest L. White, appeals the order of the Shelby County Criminal Court summarily dismissing his habeas corpus/post-conviction petition without conducting an evidentiary hearing or appointing counsel. Though styled as a petition for habeas corpus relief, White asserts therein that ten of his 1984 convictions should be set aside because of constitutional infirmities in the process surrounding the entry of his guilty pleas for these offenses. As the issues raised provide no basis for habeas corpus relief but rather set out traditional post-conviction concerns, the trial court considered this pro se petition as one for post-conviction relief. However, the trial court thereafter found that the petition had been filed past the applicable statute of limitations and, therefore, dismissed the petition. After a review of the record before this Court, we find that the judgment of the trial court should be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/whiteearn_ord.wpd
STATE OF TENNESSEE v. LAWRENCE WYATT Court:TCCA Attorneys: Pamela J. Drewery (on appeal) and Ramsdale O'DeNeal (at trial), Jackson, Tennessee, for the appellant, Lawrence Wyatt. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from his convictions for conspiracy to commit aggravated robbery and facilitation of aggravated robbery. He contends that the evidence is insufficient to support his convictions and that his sentences are excessive. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/wyattl.wpd

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