April 10, 2003
Volume 9 Number 064
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.This Issue (IN THIS ORDER):
||New Opinion(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Court of Appeals
||New Opinion(s) from the Tennessee Court of Criminal Appeals
||New Opinion(s) from the Tennessee Attorney General (PDF format)
||New Judicial Ethics Opinion(s)
||New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Howard H. Vogel
HERBERT ARTHUR HEINZE v. PATRICIA CHRISTINE SEVERT (HEINZE)
J. Ronnie Greer, Greeneville, Tennessee, for the Appellant, Herbert
David L. Leonard, Greeneville, Tennessee, for the Appellee, Patricia
Christine Severt (Heinze)
In this appeal from the Chancery Court for Greene County the
Appellant, Herbert Arthur Heinze, contends that the Trial Court erred
in finding that a valid accord and satisfaction was entered into
between him and the Appellee, Patricia Christine Severt (Heinze), with
respect to the distribution of proceeds realized from the sale of the
parties' marital residence pursuant to a divorce judgment. We affirm
the judgment of the Trial Court and remand for collection of costs and
enforcement of the judgment.
EVAN J. ROBERTS v. MILLER INDUSTRIES, INC., et al.
Attorneys: William Alexander Blue, Jr., Nashville, Tennessee, for the
Appellants, Miller Industries, Inc. and Road One, Inc.
John Tate Rice, Chattanooga, Tennessee, for the Appellee, Evan J.
In this appeal from the Chancery Court for Hamilton County the
Appellants/Defendants, Miller Industries, Inc. and Road One, Inc.,
contend that the Trial Court erred in awarding the Appellee/
Plaintiff, Evan J. Roberts, damages for breach of contract. The
judgment of the Trial Court is affirmed in part and reversed and
vacated in part, and the cause is remanded for collection of costs
ANNE STRICKLAND v. DANIEL R. CARTWRIGHT, et al.
L. Lee Kull and Irma G. Freestate, Maryville, Tennessee, for the
Appellants Daniel R. Cartwright and Lorraine S. Cartwright.
Brian T. Mansfield, Sevierville, Tennessee, for the Appellee Anne
Anne Strickland ("Plaintiff") approached Daniel Cartwright
("Defendant") about the possible purchase of Defendant's restaurant.
Unable to come up with the full purchase price of $1.5 million,
Plaintiff made an initial payment of $170,000 and began leasing the
restaurant with monthly rental payments of $7,000. No written
agreement ever was finalized between the parties. Plaintiff vacated
the premises after six months allegedly due to the poor condition of
the building and the amount of repairs that were needed. Plaintiff
filed suit seeking a return of the $170,000, claiming this money was
intended by the parties to be a down payment on the purchase of the
restaurant, an event which never occurred. Defendant claimed the
parties had agreed to a nonrefundable initial payment of $250,000 to
allow Plaintiff the privilege of being able to walk in and take over a
fully staffed and operational restaurant. Since Plaintiff paid only
$170,000 toward the initial $250,000 payment, Defendant filed a
counterclaim for the remaining $80,000. After a trial, the Trial
Court awarded Plaintiff a judgment in the amount of $138,000. Both
parties appeal. We affirm.
STATE OF TENNESSEE v. GDONGALAY P. BERRY
Attorneys: Thomas F. Bloom and James A. Simmons, Nashville, Tennessee,
for the Appellant, Gdongalay P. Berry.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Dana M. Ausbrooks, Assistant Attorney General;
Katrin Miller and David Hamm, Assistant District Attorneys General,
for the Appellee, State of Tennessee.
The Appellant, Gdongalay P. Berry, was found guilty by a jury of two
counts of first degree murder, two counts of especially aggravated
robbery, and two counts of especially aggravated kidnapping. Berry's
convictions stem from the execution-style murder of two individuals
involved in the illicit sale of weapons. The jury returned a sentence
of death for each of the homicides based upon its finding of three
aggravating factors; i.e., prior violent felonies, murder committed
for the purpose of avoiding prosecution, and murder committed during
commission of a robbery or kidnapping. Tenn. Code Ann. S
39-13-204(i)(2), (6), (7) (Supp. 2002). The Davidson County Criminal
Court subsequently imposed concurrent twenty-five-year sentences for
the especially aggravated robbery convictions and concurrent
twenty-five-year sentences for the especially aggravated kidnapping
convictions. The robbery and kidnapping sentences were ordered to run
consecutive to one another and consecutive to the sentences of death,
resulting in an effective sentence of death plus fifty years. Berry
appeals, presenting the following issues for our review:
I. Whether Tennessee's death penalty procedures are constitutional;
II. Whether he was denied his right to a speedy trial;
III. Whether the trial court erred by denying his request for hybrid
representation, and whether the trial court erred in allowing him to
represent himself at the suppression hearing; IV. Whether the
trial court erred in failing to suppress his statement; V. Whether,
during the jury selection process, the trial court abused its
discretion regarding rehabilitation issues;
VI. Whether the trial court erred in admitting evidence of gang
affiliation; VII. Whether the trial court erred by permitting
testimony of a hearsay statement made by the co-defendant which
VIII. Whether the prosecutor made an inappropriate religious comment
during closing argument;
IX. Whether the trial court properly instructed the jury as to
X. Whether the evidence was sufficient to support his convictions;
XI. Whether, during the penalty phase of the trial, the trial court
erred by allowing a victim's mother to testify that her son pled for
his life prior to being shot.
After review, we find no error of law requiring reversal.
Accordingly, we affirm Berry's convictions and the imposition of the
sentences of death in this case.
TONY ALLEN LEONARD v. STATE OF TENNESSEE
A.D. Jones, Jr., Bristol, Tennessee, for the Appellant, Tony Allen
Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; H. Greeley Welles, Jr., District Attorney
General; and James G. Goodwin, Assistant District Attorney General,
for the Appellee, State of Tennessee.
Following an evidentiary hearing, the Sullivan County Criminal Court
denied the petitioner, Tony Allen Leonard, post-conviction relief. On
appeal, the petitioner claims that the post-conviction court erred in
failing to find that his trial counsel rendered ineffective
assistance. Because the record supports the lower court's findings
and holding, we affirm.
STATE OF TENNESSEE v. TOBY P. LEONARD
Hershell D. Koger, Pulaski, Tennessee, for the appellant, Toby P.
Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Patrick Butler, Assistant District Attorney General, for the
appellee, State of Tennessee.
The defendant, Toby P. Leonard, entered pleas of guilt to aggravated
assault and civil rights intimidation. As a part of the plea
agreement, the defendant received Range I, consecutive sentences of
six and two years, respectively, for an effective sentence of eight
years. The trial court denied probation. In this appeal of right,
the defendant argues that he should have been granted an alternative
sentence. The judgment is affirmed.
AUSTIN EUGENE LINEBACK v. STATE OF TENNESSEE
Gary F. Antrican, Somerville, Tennessee, for the Appellant, Austin
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Walt Freeland, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Through a 2001 Tipton County Circuit Court post-conviction petition,
Austin Eugene Lineback challenges his 2001 convictions in that court
of statutory rape and especially aggravated sexual exploitation of a
minor. The convictions resulted from his guilty pleas, which the
petitioner now alleges are involuntary and unknowing due to
ineffective assistance of counsel. Following an evidentiary hearing,
the lower court denied post-conviction relief, and the petitioner now
appeals. Upon our review of the record, the parties' briefs, and the
applicable law, we affirm.
STATE OF TENNESSEE v. GABOR PALASTI
William L. Brown and Travis R. McDonough, Chattanooga, Tennessee, for
appellant, Gabor Palasti.
Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; Bill Cox, District Attorney General; and
Thomas E. Kimball, Assistant District Attorney General for appellee,
State of Tennessee.
The defendant, Gabor Palasti, was convicted upon his pleas of guilty
to the charges of vehicular assault and three counts of reckless
endangerment. He originally received a four year effective sentence
with 11 months, 29 days of incarceration followed by probation. This
was ultimately altered by the trial judge to require that the
defendant serve six (6) months in confinement with thirty days of
continuous confinement followed by five months of work release and
then supervised probation. In this appeal the defendant contends he
should have received full probation for these offenses and he cites
numerous alleged deficiencies in the trial court's sentencing
procedures. We find that in sentencing the defendant the trial court
failed to make appropriate findings on the record and that therefore
our review of the defendant's sentence is de novo without a
presumption of correctness. Nevertheless, we find that the record
contains sufficient evidence from which this Court concludes that six
(6) months confinement of the defendant is appropriate. However, we
believe the entire confinement should be served on work release. We
therefore AFFIRM the decision of the trial court with the modification
that the entire period of incarceration be served on work release.
STATE OF TENNESSEE v. ERIC ALONZO SMITH
Gregory D. Smith, Clarksville, Tennessee (on appeal), and Roger Nell,
District Public Defender (at trial), for the appellant, Eric Alonzo
Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; and Helen Young, Assistant District
Attorney General, for the appellee, the State of Tennessee.
The defendant, Eric Alonzo Smith, was convicted of driving on a
revoked license, aggravated robbery, and evading arrest. The trial
court imposed concurrent sentences of 6 months, 8.5 years, and 11
months, 29 days, respectively. In this appeal of right, the defendant
asserts that the evidence is insufficient to support the conviction
for aggravated robbery. The judgments of the trial court are
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