Opinion Flash

December 23, 2003
Volume 9 — Number 234

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):
01 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
07 New Opinion(s) from the Tennessee Court of Appeals
29 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


DONALD WALLACE v. STATE OF TENNESSEE

Court:TSC

Attorneys:                          

Richard McGee and James O. Martin, III, Nashville, Tennessee, for the
Appellant, Donald Wallace.

Michael E. Moore, Solicitor General; David H. Findley, Assistant
Attorney General; Dan Alsobrooks, District Attorney General; and
Robert S. Wilson, Assistant District Attorney General, for the
Appellee, State of Tennessee

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether the trial court properly
granted the defendant post- conviction relief in the form of a delayed
direct appeal on the ground that counsel's failure to file a motion
for new trial resulted in the waiver of all issues on direct appeal
except for sufficiency of the evidence.  The Court of Criminal Appeals
dismissed the appeal after concluding that the trial court lacked the
statutory authority to grant a delayed appeal and that the defendant
had not suffered any prejudice from counsel's performance.  After
reviewing the record and applicable authority, we conclude that the
trial court properly granted a delayed appeal based upon ineffective
assistance of counsel.  We therefore reverse the Court of Criminal
Appeals, affirm the trial court's grant of a delayed appeal, and
remand to the Court of Criminal Appeals for review of the issues
presented by the defendant's motion for a new trial.

http://www.tba.org/tba_files/TSC/wallaced.wpd

BRANDON BRAVO, A MINOR, BY HIS NEXT FRIENDS AND PARENTS, LEONORILDA
GAMBOA AND EPIFANIO BRAVO HERNANDEZ; AND LEONORILDA GAMBOA AND
EPIFANIO BRAVO HERNANDEZ, INDIVIDUALLY V. SUMNER REGIONAL HEALTH
SYSTEMS, INC., D/B/A SUMNER REGIONAL MEDICAL CENTER V. ROBERT DABNEY
PHILLIPS, M.D. 

Court:TCA

Attorneys:                          

James D. Kay, Jr., John J. Griffin, and Joanna Thomson, Nashville,
Tennessee, for the appellants, Leonorilda Gamboa and Epifanio Bravo
Hernandez, individually and as next friends and parents of Brandon
Bravo.

Dixie W. Cooper and Lisa D. York, Nashville, Tennessee, for the
appellee, Robert Dabney Phillips, M.D.

Judge: KIRBY

First Paragraph:

This is a medical malpractice case.  The plaintiff was pregnant and
came to the hospital to have labor induced for delivery of her baby. 
The defendant obstetrician-gynecologist had not previously treated the
plaintiff, but was the attending physician for the delivery of her
baby.  After a lengthy labor, the defendant physician attempted to
deliver the baby vaginally.  When problems developed, the defendant
physician immediately delivered the baby by Cesarean section.  The
baby suffered injuries from the loss of oxygen during the birthing
process.  The plaintiffs, the child's mother and father, individually
and on behalf of the child, sued the defendant physician, asserting
that he breached the standard of care in underestimating the size of
the baby and in the delivery of  the baby.  The defendant physician
moved for summary judgment.  In response, the plaintiffs submitted the
expert affidavit of an obstetrician-gynecologist from Georgia, whose
medical practice had been limited to gynecologic and fertility matters
for several years.  The defendant physician objected, arguing under
Tennessee Code Annotated S 29-26-115 that the plaintiffs' proffered
expert was not competent to testify regarding obstetrics since he had
not practiced in that specialty for several years and that he did not
satisfy the "locality rule."  The trial court found that the expert
was not competent and granted summary judgment in favor of the
defendant physician.  The plaintiffs now appeal.  We reverse and
remand, finding that the affidavit of the plaintiffs' expert indicated
that he was competent to testify about obstetrics and satisfied the
locality rule.

http://www.tba.org/tba_files/TCA/bravob.wpd

ROSE MARIE HARPER BRITT v. ELMER LEE BRITT

Court:TCA

Attorneys:                          

K. Don Bishop, Henderson, Tennessee, for the appellant, Elmer Lee
Britt.

Mary Jo Middlebrooks and Betty S. Scott, Jackson, Tennessee, for the
appellee, Rose Marie Harper Britt.

Judge: FARMER

First Paragraph:

This appeal arises from a divorce action in which the trial court
granted wife an absolute divorce and open-ended rehabilitative
alimony, ordered the parties marital property sold and the assets
divided, and entered a parenting plan submitted by wife.  We affirm in
part, modify in part, reverse in part, and remand.

http://www.tba.org/tba_files/TCA/brittrosemarieharper.wpd

CYNTHIA ANN COOPER v. JAMES RONNIE COOPER 

Court:TCA

Attorneys:                          

James Ronnie Cooper, Pro Se.

Judge: FARMER

First Paragraph:

Petitioner sought an order from the trial court to require his former
wife to turn over to him property awarded in the divorce action. 
Following a hearing, the trial court ruled that the Petitioner had not
sustained his burden of proof and that Petitioner's former wife did
not have in her possession any personal property granted to Petitioner
in the divorce decree.  The record is before this Court on
Petitioner's appeal and absent a transcript or statement of the
evidence.  We affirm.

http://www.tba.org/tba_files/TCA/coopercynthiaann.wpd

ELAINE H. DEATHERIDGE, ET UX. v. RICHARD T. BARKSDALE

Court:TCA

Attorneys:                          

Terrance E. McNabb; James R. Omer & Associates, Nashville, For
Appellants, Elaine H. Deatheridge and Louise D. Deatheridge

William B. Jakes, III, Nashville, For Appellee, Richard T. Barksdale

Judge: CRAWFORD

First Paragraph:

Plaintiffs brought action against driver for damages arising from a
rear-end automobile collision.  Defendant raised affirmative defense
of sudden emergency caused by a "phantom" non- party defendant's
placing duct work in the roadway.  The jury found that Defendant was
not at fault.  Plaintiffs appeal.  We affirm.

http://www.tba.org/tba_files/TCA/deatheridgeelaine.wpd

LARRY DEAN DICKERSON v. GARRY BROWN

Court:TCA

Attorneys:                          

Larry Dean Dickerson, Only, Tennessee, pro se.

Garry Brown, Trenton, Tennessee, pro se.

Judge: KIRBY

First Paragraph:

This is a legal malpractice case.  The defendant attorney represented
the plaintiff in a criminal trial, which resulted in the plaintiff's
conviction in February 2000.  In October 2000, the attorney was
granted permission to withdraw from his representation of the
plaintiff in the criminal proceedings.  In May 2002, the plaintiff
filed the complaint below, alleging that the attorney committed legal
malpractice in his defense of the criminal charges against the
plaintiff.  The attorney filed a motion to dismiss and for summary
judgment asserting, among other things, that the complaint was filed
beyond the applicable one-year statute of limitations.  The trial
court granted the attorney's motion.  The plaintiff now appeals.  We
affirm, finding that the undisputed facts show that the plaintiff's
legal malpractice claim was untimely, under Tennessee Code Annotated S
28-3-104(a)(2).

http://www.tba.org/tba_files/TCA/dickersonld.wpd

FOUR SEASONS HEATING & AIR CONDITIONING, INC. v. BEERS SKANSKA, INC.

Court:TCA

Attorneys:                          

David K. Taylor and Jennifer L. Ditty, Nashville, Tennessee, for the
appellant, Four Seasons Heating and Air Conditioning, Inc.

Richard M. Smith and H. Brent Patrick, Nashville, Tennessee, for the
appellee, Beers Skanska, Inc.

Judge: KIRBY

First Paragraph:

This is a breach of contract case.  The defendant general contractor
was hired to construct a building on a state college campus.  The
contractor hired the plaintiff subcontractor to perform substantial
work on the job.  During the course of the project, the subcontractor
sought additional labor costs incurred in the project.  This issue was
not resolved.  Later, the subcontractor sought from the contractor the
retainage kept by the contractor.  When the check was ready, the
subcontractor sent its project manager to retrieve it.  In order to
get the check, the project manager was required by the contractor to
sign a document releasing all claims between the contractor and the
subcontractor.  Later, the subcontractor filed this lawsuit, seeking
the additional labor costs.  The contractor filed a motion to dismiss,
arguing that, by the project manager's signature on the release, the
subcontractor waived its claim to the additional labor costs.  The
subcontractor argued that its project manager did not have the
authority to bind the company to the release.  After a hearing, the
trial court dismissed the subcontractor's complaint.  The
subcontractor now appeals.  We reverse, finding that the evidence was
insufficient to establish as a matter of law that the project manager
had actual or apparent authority to bind the subcontractor or to
establish as a matter of law that the subcontractor ratified the
release signed by the project manager.

http://www.tba.org/tba_files/TCA/fourseasons.wpd

IN RE K.N.R., ET AL
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Linda S. Fizer, Springfield, Tennessee, for the appellant, David
Justin Rice and Rebekah Diane Pitt Rice.

Paul G. Summers, Attorney General and Reporter; and Juan G.
Villasenor, Assistant Attorney General for the appellee, State of
Tennessee, Department of Children's Services.

Judge: CLEMENT

First Paragraph:

Father of two minor children appeals the termination of his parental
rights by the Robertson County Juvenile Court.  Father generally
alleges that there was insufficient evidence to terminate his parental
rights.  In the Final Decree of Guardianship the trial court set forth
the following conclusions of law, holding (1) that the father
abandoned his children; (2) that he was substantially noncompliant
with the permanency plan; and (3) that the conditions which led to the
child's removal still persist, there is little likelihood that these
conditions will be remedied, and the continuation of the parent and
child relationship greatly diminishes the child's chances of early
integration into a safe, stable and permanent home.  The final order
failed to set forth findings of fact as required by Tenn. Code Ann. S
36-1-113(k).  As a result, we are unable to review the case. 
Therefore, we vacate the final order and remand the matter to the
trial court for entry of an order that sets forth findings of fact and
conclusions of law.

http://www.tba.org/tba_files/TCA/knr_opn.wpd


CONCURRING OPINION
http://www.tba.org/tba_files/TCA/knr_con.wpd

MICHAEL C. ADAMS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Michael J. LaGuardia, Kingsport, Tennessee, for the appellant, Michael
C. Adams.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; and H. Greeley Wells, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Michael C. Adams, appeals the denial of his petition
for post-conviction relief from his conviction for second degree
murder and four counts of aggravated assault.  He argues that he was
denied effective assistance of counsel because his trial counsel
failed to properly advise him of his right to testify and failed to
properly communicate a plea offer and recommended that he proceed to
trial.  Following our review, we affirm the post-conviction court's
denial of the petition.

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

STATE OF TENNESSEE v. SHARON J. BREEDEN

Court:TCCA

Attorneys:                          

Raymond Mack Garner, District Public Defender; Stacey D. Nordquist,
Assistant District Public Defender (at hearing and on appeal); and
Steve McEwen, Mountain City, Tennessee (on appeal), for the appellant,
Sharon J. Breeden.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Rocky Young, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant, Sharon J. Breeden, appeals the revocation of her
probation.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. STANLEY E. CHATMAN

Court:TCCA

Attorneys:                          

James Robin McKinney, Jr., Nashville, Tennessee, for the appellant,
Stanley E. Chatman.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; and James Sledge and Jennifer Tackett, for
the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Stanley E. Chatman, was convicted in a bench trial of
driving under the influence, second offense, and sentenced to eleven
months, twenty-nine days, with all but fifty days suspended.  See
Tenn. Code Ann. S 55-10-401(a).  In this appeal as of right, the
defendant contends that the trial court erred by failing to suppress
the results of his breath alcohol analysis.  The judgment of the trial
court is affirmed.

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

STATE OF TENNESSEE v. WILLIAM EDWARD CRICK

Court:TCCA

Attorneys:                          

Jim L. Fields, Paris, Tennessee, for the appellant, William Edward
Crick.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General;  G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals from the trial court's denial of an alternative
sentence.  The defendant pled guilty to a Class E felony, possession
of a Schedule VI controlled substance with intent to manufacture,
deliver, or sell.  The trial court denied the defendant's request for
an alternative sentence and imposed a two-year sentence in the special
needs facility of the Tennessee Department of Correction.  We affirm
the sentence imposed by the trial court, but remand for correction of
the judgment to reflect a guilty plea rather than a jury verdict.

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

STATE OF TENNESSEE v. MINDY S. DODD

Court:TCCA

Attorneys:                          

Gerald L. Melton, District Public Defender, for the appellant, Mindy
S. Dodd.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; Thomas F. Jackson, Jr., and John W. Price, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Mindy S. Dodd, appeals from her convictions by a jury
in the Rutherford County Circuit Court of first degree murder and
conspiracy to commit first degree murder.  She received sentences of
life and twenty years, respectively, to be served concurrently in the
Department of Correction.  The defendant contends that the evidence is
insufficient to support either conviction.  We affirm the judgments of
conviction.

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

STATE OF TENNESSEE v. HOWARD DUTY, JR.

Court:TCCA

Attorneys:                          

Terry L. Jordan, Blountville, Tennessee, for the Appellant, Howard
Duty, Jr.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Todd Martin, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Convicted by a jury of assault and aggravated stalking, the defendant,
Howard Duty, Jr., appeals.  In addition to claiming that his
convictions are not supported by sufficient evidence, he claims it was
error for the trial court to enhance a charge of misdemeanor stalking
to the felony of felony stalking.  The lower court imposed the felony
stalking conviction based upon a previous  conviction of stalking that
was adjudicated after the commission of the offense in the present
case.  Based upon our review, we conclude that sufficient evidence
supports the stalking conviction; however, the aggravation of the
stalking offense to a felony was improper.  Thus, the lower court's
actions are reversed in part and affirmed in part.

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

STATE OF TENNESSEE v. JAMES D. DYE

Court:TCCA

Attorneys:                          

Jeffrey S. Burton, Assistant Public Defender, for the appellant, James
Dye.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Bill Whitesell, District Attorney General; and John
E. Price, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, James Dye, was convicted in a bench trial of two counts
of aggravated assault through use or display of a firearm, and one
court of possession of a firearm for the purpose of using it in the
commission of an offense to wit: aggravated assault.  See Tenn. Code
Ann. SS 39-13-102; 39-17-1307.  He received a three-year sentence for
each aggravated assault conviction and a one- year sentence for the
possession of a firearm offense, all to be served concurrently for an
effective sentence of three years as a standard Range I offender.  In
this appeal, the defendant presents two issues: (1) whether the
evidence is sufficient to support his convictions; and (2) whether
convictions for aggravated assault and possession of a firearm for use
in an aggravated assault, under the circumstances presented in this
case, violated the defendant's rights under the double jeopardy
provisions of the federal and state constitutions.  After a thorough
review of the record in this case and the applicable authorities we
find no reversible error and therefore AFFIRM the judgments of the
trial court.

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

RICKY LYNN FRAZIER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Ricky Lynn
Frazier.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; and Al Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Ricky Lynn Frazier, appeals the trial court's
dismissal of his post-conviction petition.  In this appeal, he argues
that the Department of Correction has failed to properly apply the
jail credits he earned prior to the entry of his guilty plea.  Because
the proper avenue for review of the application of sentence reduction
credits is the Administrative Procedures Act, the judgment of the
trial court is affirmed.

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

MICHAEL J. GRANT v. STATE OF TENNESSEE
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Michael Joseph Grant, Wartburg, Tennessee, Pro Se.
   
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Jerry N. Estes, District Attorney General,
and Stephen D. Crump, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the summary dismissal of his post-conviction
petition.  The petitioner alleges his untimely petition should be
tolled on due process grounds because of reliance on counsel's
"guarantee" of release from incarceration after serving 30% of his
sentence.  We affirm the summary dismissal for failure to file for
post-conviction relief within the one-year statute of limitations
provided in Tennessee Code Annotated section 40-30-202(a) and affirm.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/grantmj_dis.wpd

STATE OF TENNESSEE v. DAVID JENNINGS

Court:TCCA

Attorneys:                          

Julie A. Rice, Contract Appellate Defender (on appeal); Stephen M.
Wallace, District Public Defender; and Terry Jordan, Assistant
District Public Defender (at trial), for the appellant, David
Jennings.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and James F. Goodwin, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, David Jennings, pled guilty to burglary, a Class D
felony; theft over $1,000, a Class D felony; vandalism, a Class D
felony; simple possession of marijuana, a Class A misdemeanor; and
possession of drug paraphernalia, a Class A misdemeanor.  He was
sentenced as a Range I, standard offender to an effective sentence of
three years, fined a total of $400, and ordered to pay restitution. 
On appeal, he argues that the trial court erred in denying alternative
sentencing.  Following our review, we affirm the judgments of the
trial court.

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

STATE OF TENNESSEE v. DANNY JOHNSON

Court:TCCA

Attorneys:                          

M. Keith Davis (at trial and on appeal), L. Thomas Austin and Jennifer
A. Mitchell (at trial), Dunlap, Tennessee, for the appellant, Danny
Johnson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Steven H. Strain and Sherry Durham Gouger, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Danny Johnson, was convicted by a Sequatchie County
jury of two counts of rape of a child, Class A felonies, and one count
of aggravated sexual battery, a Class B felony.  Following a
sentencing hearing, the trial court sentenced the appellant to an
effective sentence of twenty-one years in the Tennessee Department of
Correction.  On appeal, the appellant challenges (1) the selection
process of the venire from which grand and petit jurors were selected;
(2) the trial court's failure to allow into evidence as an excited
utterance the statement of Thomas Zervos regarding prior abuse of the
victim; and (3) the sufficiency of the evidence.  Upon review of the
record and the parties' briefs, we affirm the judgments of the trial
court.

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

STATE OF TENNESSEE v. DONALD P. MCGUIRE

Court:TCCA

Attorneys:                          

Joseph F. Harrison, Blountville, Tennessee (at trial); and Steve
McEwen, Mountain City, Tennessee (on appeal), for the Appellant,
Donald P. McGuire.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Steven R. Finney, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant appeals the trial court's revocation of his community
corrections placement.   Because the record supports the trial court's
ordering the defendant to serve the balance of his original sentences,
we affirm.

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

JESSE CLEO MINOR b/n/f LEANN MORRISON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Hal D. Hardin, Nashville, Tennessee; J. G. Mitchell, III,
Murfreesboro, Tennessee; and Hugh C. Howser, Jr., Nashville,
Tennessee, for the appellant, Jesse Cleo Minor.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Roger D. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Jesse Cleo Minor, entered a best-interest plea to one
count of attempted rape of a child.  He is currently serving an
eight-year sentence.  See State v. Jesse Cleo Minor, No. M1998-
00424-CCA-R3-CD, 1999 WL 1179143 (Tenn. Crim. App. at Nashville, Dec.
15, 1999).  The post- conviction petition at issue herein was filed by
the petitioner's daughter Leann Morrison as next friend.  The petition
alleges that the petitioner is in poor health and suffers from
irreversible dementia that seriously affects his cognitive abilities. 
The petitioner attacks his conviction based upon the following four
allegations: (1) he was incompetent and unable to understand the prior
proceedings and therefore incapable of entering a voluntary guilty
plea; (2) the State failed to disclose material exculpatory evidence;
(3) false and/or materially misleading statements were offered to the
trial court; and (4) trial counsel was ineffective.  We affirm the
trial court's dismissal of the post-conviction petition.

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

STATE OF TENNESSEE v. JOY NELSON

Court:TCCA

Attorneys:                          

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Joy
Nelson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; and Garry Brown, District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Joy Nelson, appeals from the trial court's denial of
her motion to correct an illegal sentence.  The Defendant pled guilty
to second degree murder, a Class A felony.  She was classified as a
Range I offender.  She agreed to a sentence of forty years, which is
outside the range of a Range I offender, Class A felony.  We find that
the sentence is proper because the Defendant knowingly and voluntarily
agreed to it.

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

STATE OF TENNESSEE v. DOYLE GILBERT NEWSOM

Court:TCCA

Attorneys:                          

Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee,
for the appellant, Doyle Gilbert Newsom.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; Mike McCown, District Attorney General;
and Michael Randles, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, Doyle Gilbert Newsom, was convicted by a Bedford County
jury of fifth offense driving under the influence of an intoxicant,
driving on a revoked driver's license, and violation of the implied
consent law.  He received sentences of six years at 60% incarceration
as a career D.U.I. offender, and 11 months, 29 days for driving on a
revoked license.  In this appeal the defendant claims that: (1) the
evidence is insufficient to support the D.U.I. conviction because the
testimony of an accomplice was not sufficiently corroborated; (2) he
was improperly sentenced to 11 months, 29 days for driving on a
revoked license; and (3) the prior judgments of conviction are
invalid.  We find no merit to any of these contentions.  Therefore,
the judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. CALVIN OWENS

Court:TCCA

Attorneys:                          

Harry Sayle, Memphis, Tennessee, for the appellant, Calvin Owens.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Carnesale, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES
 
First Paragraph:

The Defendant, Calvin Owens, was convicted of two counts of aggravated
robbery, one count of attempt to commit especially aggravated robbery,
and one count of attempted second degree murder, all Class B felonies.
 After a sentencing hearing, the trial court sentenced him as a Range
I offender to eleven years for each of his four convictions.  The
trial court ordered three of the sentences to be served consecutively,
with the sentence for the remaining conviction to be served
concurrently, resulting in an effective sentence of thirty-three
years.  In this direct appeal, the Defendant argues that the evidence
is insufficient to support his convictions and that the trial court
erred in sentencing him to thirty-three years.  We affirm the
judgments of the trial court.

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

STATE OF TENNESSEE v. BENTON WILLIAM PAMPLIN

Court:TCCA

Attorneys:                          

Matt Q. Bastian, Columbia, Tennessee, on appeal, for the Appellant,
Benton William Pamplin.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; William
Michael McCown, District Attorney General; and Michael Randles,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Benton William Pamplin, was convicted by a Bedford
County jury of simple assault and resisting arrest.  On appeal,
Pamplin presents two issues for our review: (1) whether the trial
court committed reversible error by refusing to strike, for cause, a
prospective juror who was a uniformed deputy sheriff and whose office
presented testimony at the trial, and (2) whether the evidence was
sufficient to sustain the verdicts.  After review, we conclude that
the trial court's refusal to strike the prospective juror constituted
reversible error in that it denied Pamplin his right to a fair and
impartial jury.  Accordingly, the judgments of conviction are reversed
and the case is remanded for a new trial.

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

DEDRICK PATTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dedrick Patton, Henning, Tennessee, pro se.  

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; William C. Whitesell, District Attorney General; and
John W. Price, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Dedrick Patton, appeals from the denial of his
petition for post-conviction relief.  The issues presented for review
are as follows: (1)  whether he was denied the effective assistance of
counsel; (2) whether he knowingly and voluntarily entered his plea of
guilt; (3)  whether a sufficient factual basis was entered to support
the plea; (4)  whether there was a violation of the right to due
process; and (5) whether there was a racially biased grand jury.  The
judgment is reversed, the conviction set aside, and the cause remanded
for trial.

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

MICHAEL PITTMAN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Joshua B. Spickler, Memphis, Tennessee, for the appellant, Michael
Pittman.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Hagerman, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner, Michael Pittman, appeals the denial of his
post-conviction relief petition after his conviction for aggravated
robbery.  On appeal, the petitioner contends he received ineffective
assistance of counsel at trial.  We affirm the judgment of the
post-conviction court.

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

STATE OF TENNESSEE v. JAMES THOMAS PRATT

Court:TCCA

Attorneys:                          

Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, James
Thomas Pratt.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; and Steve L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, James Thomas Pratt, entered pleas of guilt to
manufacturing a controlled substance and vandalism between $1,000 and
$10,000.  See Tenn. Code Ann. SS 39-17-417(a)(1)(G)(1), 39-14- 408(a).
 The trial court imposed Range I sentences of one and two years
respectively and granted probation after a term of 90 days in jail. 
In this appeal of right, the defendant contends that he should be
granted immediate probation because the trial court failed to
articulate its reasons for the 90-day period of incarceration.  The
judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. GENE SHELTON RUCKER, JR.

Court:TCCA

Attorneys:                          

Melanie R. Snipes, Chattanooga, Tennessee, for the Appellant, Gene
Shelton Rucker, Jr.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
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: WITT

First Paragraph:

A Hamilton County Grand Jury indicted the defendant, Gene Shelton
Rucker, Jr., for felony murder and aggravated arson in connection with
a fire that took the life of an individual who resided in the
apartment structure that was burned.  Following a jury trial, the
defendant was convicted of the lesser-included offense of criminally
negligent homicide and aggravated arson, as charged.  The defendant
now appeals his convictions and sentence.  Specifically, the defendant
argues (1) that the trial court erred by instructing the jury on
criminal responsibility for the conduct of another; (2) that setting
fire to personal property is a lesser-included offense of aggravated
arson and should have been included in the charge to the jury; (3)
that the instruction on the knowing mens rea element of aggravated
arson was incorrect; (4) that the state violated the defendant's due
process rights by advancing impermissibly inconsistent positions
relative to the defendant and an indicted co- defendant; (5) that the
evidence was insufficient to support his convictions; and (6) that his
sentence should not have been enhanced on the basis of prior
convictions that were not proven by certified copies of the underlying
judgments.  After a thorough review of the record, we affirm the
defendant's convictions and sentence.

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

STATE OF TENNESSEE v. DELSIE LUCILLE SARTAIN

Court:TCCA

Attorneys:                          

Donna Leigh Hargrove, District Public Defender; Curtis H. Gann,
Assistant Public Defender, Shelbyville, Tennessee, for the Appellant,
Delsie Lucille Sartain.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Christine M. Lapps, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael
Randles, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Delsie Lucille Sartain, was convicted by a jury for the
reckless aggravated assault of a five-month-old baby, which resulted
in permanent injuries.  Following a sentencing hearing, the trial
court imposed a sentence of three years and two months incarceration
as a range I standard offender.  Sartain appeals the sentencing
decision, arguing that the trial court erred by ordering a sentence of
total confinement rather than the less restrictive alternative of
probation.  After review, we find no error and affirm the judgment of
the Bedford County Circuit Court.

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

STATE OF TENNESSEE v. JAMES HEWLETT SMITH

Court:TCCA

Attorneys:                          

Terry Abernathy, Selmer, Tennessee, for the appellant, James Hewlett
Smith.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Robert Radford, District Attorney General;
and John W. Overton, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, James Hewlett Smith, was convicted at a bench trial of
DUI.  In this direct appeal, the Defendant challenges the legality of
his arrest and the sufficiency of the evidence.  We affirm the
judgment of the trial court.

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

WILLIAM TERRY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; Karen Massey, Assistant
Public Defender; and W. Mark Ward, Assistant Public Defender for the
appellant, William Terry.

Paul G. Summers, Attorney General and Reporter, Helena Walton
Yarbrough, Assistant Attorney General, William L. Gibbons, District
Attorney General, and Emily Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, William Terry, appeals the post-conviction court's denial
of his petition for post- conviction relief.  Petitioner argues that
the post-conviction court erred in finding that Petitioner's plea of
guilty was voluntary and knowing and in finding that Petitioner's
trial counsel rendered effective assistance of counsel prior to and
during plea negotiations.  For the reasons discussed herein, we affirm
the post-conviction court's dismissal of the petition for
post-conviction relief.

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

STATE OF TENNESSEE v. STEVEN RAY THACKER

Court:TCCA

Attorneys:                          

Charles S. Kelly, Sr., and Wayne Emmons, Dyersburg, Tennessee, for the
appellant, Steven Ray Thacker.

Paul G. Summers, Attorney General and Reporter; Gill R. Geldreich,
Assistant Attorney General; C. Phillip Bivens, District Attorney
General, and Karen Burns, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

Capital defendant, Steven Ray Thacker, appeals his conviction and
sentence of death resulting from the January 2, 2000, murder of Ray
Patterson.  A Dyer County jury convicted Thacker of first degree
murder. Following a separate sentencing hearing, the jury found that
the proof supported two aggravating circumstances beyond a reasonable
doubt: (1) the murder was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or prosecution of the
defendant, Tenn. Code Ann. S 39-13-204(I)(6), and (2) the murder was
knowingly committed by the defendant while the defendant had a
substantial role in committing or was fleeing after having a
substantial role in committing a first degree murder, rape, robbery,
burglary, theft or kidnapping, Tenn. Code Ann. S 39-13-204(I)(7).  The
jury further determined that the mitigating circumstances did not
outweigh the aggravating circumstances and imposed a sentence of
death.  The trial court approved the death verdict.  The defendant
appeals, presenting for our review the following claims: (1) the trial
court erred in denying the defendant's motion for a change of venue to
a county outside the judicial district; (2) the trial court erred in
admitting a redacted statement made by the defendant; (3) the trial
court erred in admitting evidence of other crimes; (4) the trial court
erred in permitting the cause of death to be proven by lay testimony;
(5) the trial court erred by failing to grant a mistrial based upon
the State's comments during closing argument; (6) the trial court
erred by not permitting the defendant to argue self-defense; (7) the
evidence is insufficient to support a conviction; (8) the trial court
erred in denying the motion to suppress the defendant's confession;
(9) the trial court erred by prohibiting the introduction of
mitigation evidence; (10) the State committed prosecutorial misconduct
in eliciting testimony about the defendant's prior bad acts; (11) the
trial court erred in refusing to permit an expert witness to explain
details of the defendant's mental condition; (12) the trial court
erred in permitting the prosecutor to argue that mitigators must
outweigh aggravators beyond a reasonable doubt to impose a sentence of
life without parole; (13) the trial court erred by limiting the
defense to statutory mitigators; (14) the trial court erred in
permitting the introduction of certain victim impact evidence; (15)
the trial court erred by permitting the State to present evidence that
the defendant was fleeing from present charges; (16) the death penalty
is unconstitutional; and (17) the sentence of death is not
proportionate.  After review, we find no error of law requiring
reversal.  Accordingly, we affirm the jury's verdict of guilt as to
the offense of first degree murder and the jury's imposition of the
sentence of death in this case.

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

TAURYS K. WALLS  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Marty B. McAfee, Memphis, Tennessee, for the appellant, Taurys K.
Walls.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Julie Mosley; Assistant District Attorney General.

Judge: WOODALL

First Paragraph:

Petitioner, Taurys K. Walls, appeals from the trial court's dismissal
of his petition for post- conviction relief.  Petitioner argues that
his confession was coerced in violation of the United States and
Tennessee constitutions.  Additionally, Petitioner argues that he
received ineffective assistance of counsel at trial and on direct
appeal.  After a careful review of the record, we affirm the judgment
of the post-conviction court

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

JASON M. WEISKOPF  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert C. Brooks, Memphis, Tennessee, for the appellant, Jason M.
Weiskopf.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; John Campbell, Assistant District Attorney General; and
Raymond Lepone, Assistant District Attorney General,  for the
appellant, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Jason M. Weiskopf, was convicted of first degree
premeditated murder and was sentenced to life imprisonment.  This
Court affirmed Petitioner's conviction.  State v. Jason M. Weiskopf,
No. W2000-02308-CCA-RM-CD, 2000 Tenn. Crim. App. LEXIS 787 (Tenn.
Crim. App. at Jackson, October 11, 2000).  Petitioner timely filed a
petition for post-conviction relief.  Following an evidentiary
hearing, the trial court denied post-conviction relief.  In this
appeal, Petitioner raises one issue for our review: whether trial
counsel was ineffective for failing to present evidence of
Petitioner's diminished capacity.  After a careful review of the
record, we affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. JAMES CURTIS WESTBROOK

Court:TCCA

Attorneys:                          

Richard W. Vaughn, Jr., Milan, Tennessee, for the appellant, James
Curtis Westbrook.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Edward L. Hardister and Elaine Gwinn, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Gibson County jury convicted the defendant, James Curtis Westbrook,
of possession of .5 grams or more of cocaine with intent to sell or
deliver.  The trial court sentenced him to twelve years as a Range II
multiple offender to be served consecutively to a prior sentence.  On
appeal, the defendant contends: (1) the trial court erred in denying
his motion to require the state to reveal the identity of its
confidential informant; (2) the evidence was insufficient to support
his conviction; (3) the trial court erred in permitting law
enforcement officers to testify regarding footprint comparisons; (4)
the trial court erred in permitting the state to treat a witness as a
hostile witness; and (5) his sentence is improper.  We remand for the
empaneling of a jury to fix the fine.  We otherwise affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. CHRISTOPHER TODD WHITAKER

Court:TCCA

Attorneys:                          

Deborah Black Huskins, Johnson City, Tennessee, for the appellant,
Christopher Whitaker.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
Joe Crumley, District Attorney General; Steve Finney, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Washington County Grand Jury indicted the Defendant, Christopher
Whitaker, for three counts of robbery, and one count of theft valued
over $500.  The Defendant pled guilty to all four counts.  Following a
sentencing hearing, the trial court denied the Defendant's request for
alternative sentencing and sentenced the Defendant to serve six years
in prison.  The Defendant appeals, contending that the trial court
erred when it denied his request for alternative sentencing.  Finding
no reversible error, we affirm the trial court's judgments.

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

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