Opinion Flash

February 02, 2004
Volume 10 — Number 021

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):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
14 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0202.wpd

BRIDGECOURT APARTMENTS PARTNERSHIP v. CARMEN H. ELLERBE

Court:TCA

Attorneys:                          

Gene A. Stanley, Jr., Knoxville, Tennessee, for Appellants.

Thomas Privette, Jr., Knoxville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

Plaintiff paid off mortgage on apartments and then sued for an
accounting, alleging overpayment.  The Trial Court invoked the
voluntary payment rule and dismissed the case.  On appeal, we affirm.

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

ASHAD R. A. MUHAMMAD ALI v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Ashad R. A. Muhammad Ali, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General; W.
Michael McCown, District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Ashad R. A. Muhammad Ali,  appeals the Lincoln County
Circuit Court's summary dismissal of his petition requesting DNA
analysis under the Post-Conviction DNA Analysis Act.  On appeal, the
Appellant raises two issues for our review: (1) whether the trial
court properly dismissed the petition and (2) whether the trial judge
erred by not sua sponte recusing himself based upon the fact that the
trial judge was "part of the prosecutorial team that prosecuted the
original conviction against the Appellant."  Due to the sparseness of
the record with regard to the question of recusal, we remand the case
for a determination of this issue.

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

REGINALD GARNER BROWN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mike J. Urquhart, Nashville, Tennessee, for the appellant, Reginald
Garner Brown.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Roger Moore,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Davidson County jury convicted the Petitioner, Reginald Garner
Brown, of one count of first degree felony murder, one count of
especially aggravated kidnapping, one count of aggravated robbery and
one count of aggravated burglary.  The trial court sentenced the
petitioner as a Range I offender to consecutive terms of life with the
possibility of parole for murder, twenty-five years for especially
aggravated kidnapping, twelve years for aggravated robbery and six
years for aggravated burglary.  On direct appeal, this Court affirmed
the convictions, and the Tennessee Supreme Court denied the
Defendant's application for permission to appeal.  The Petitioner then
sought post-conviction relief in the trial court, alleging that he was
denied effective assistance of counsel.  Following a hearing, the
post-conviction court dismissed the petition.  Finding no error, we
affirm the post-conviction court's judgment.

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

STATE OF TENNESSEE  v. LESTER ARNOLD CLOUSE

Court:TCCA

Attorneys:                          

John E. Appman, Jamestown, Tennessee, for the Appellant, Lester Arnold
Clouse.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Helena Walton Yarbrough, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General, Pro Tem; and
Howard Chambers, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Lester Arnold Clouse, was convicted by a White County
jury of five counts of setting fire to land, two counts of aggravated
assault, and one count of resisting arrest.  These convictions
resulted in an effective sentence of twenty-one years, eleven months,
and twenty-nine days.  On appeal, Clouse raises three issues for our
review: (1) whether the evidence was sufficient to convict him of
setting fire to land and aggravated assault; (2) whether the trial
court erred by denying his motion for a mistrial after a co-defendant
invoked his Fifth Amendment privilege and testified before the jury
that he had been threatened; and (3) whether the jury instruction
regarding circumstantial evidence was proper.  After review of the
record, we conclude that the errors resulting from the co-defendant's
invocation of his Fifth Amendment privilege at trial affected the
jury's verdict.   Accordingly, we reverse the judgment of the trial
court and remand the case for a new trial.

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

STATE OF TENNESSEE v. MIKE LAFEVER

Court:TCCA

Attorneys:                          

Marshall Judd, Cookeville, Tennessee, for the appellant, Mike Lafever.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Bill Gibson, District Attorney General;
and David A. Patterson, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Mike Lafever, was indicted on three counts of theft.  A
jury subsequently convicted him of one count of theft over $10,000, a
Class C felony, and one count of theft over $1,000, a Class D felony. 
The jury assessed fines of $10,000 and $5,000 for these offenses,
respectively.  The jury acquitted him of the other count.  The trial
court sentenced the Defendant to five and one-half years for the Class
C felony, and to three and one-half years for the Class D felony.  The
sentences were ordered to run concurrently and to be served on
community corrections.  In this direct appeal, the Defendant argues
that the trial court erred in refusing to admit a statement he made to
the police; erred in refusing to instruct the jury on mistake or
ignorance of fact; that the evidence is not sufficient to support his
convictions; that his sentences are excessive; and that the trial
court should have waived his fines.  We affirm the judgments of the
trial court.

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

STATE OF TENNESSEE v. THOMAS G. LAMPLEY, JR.

Court:TCCA

Attorneys:                          

Jay Norman, Nashville, Tennessee, for the appellant, Thomas G.
Lampley.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Robert McGuire, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Thomas G. Lampley, Jr., was convicted of aggravated
burglary, a Class C felony.  After determining the Defendant to be a
Range III, persistent offender, the trial court sentenced him to
twelve years in the Department of Correction, consecutive to an prior
sentence.  The Defendant now appeals, alleging that his sentence for
the instant crime should be ten years.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. DOUGLAS MARSHALL MATHIS

Court:TCCA

Attorneys:                          

Jerred Creasy and Kirk Vandivort, Charlotte, Tennessee, for the
appellant, Douglas Marshall Mathis.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Carey J. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Douglas Marshall Mathis, was convicted of first degree
murder and sentenced to life imprisonment.  In this appeal, he
contends: (1) that the evidence is insufficient; (2) that the trial
court erred by giving an irrelevant definition of "knowing" as a part
of the instructions to the jury; (3) that the prosecutor's comments
during closing argument were improper; (4) that he was denied the
right to a fair and impartial jury; and (5) that the trial court erred
by admitting certain evidence.  Because the state's closing argument
was improper and the error cannot be classified as harmless, the
judgment of the trial court is reversed and the cause is remanded for
a new trial.

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

ANTON McDONALD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Terry A. Fann, Murfreesboro, Tennessee, for the appellant, Anton
McDonald.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and John W. Price, III, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Anton McDonald, appeals the dismissal of his petition
for post-conviction relief from a guilty plea to possession of over .5
grams of cocaine with the intent to sell or deliver, arguing that the
post-conviction court erred in finding that the petition was
time-barred.  Following our review, we affirm the dismissal of the
petition.

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

STATE OF TENNESSEE v. FLOYD PERROW

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, (on appeal), and Russell
Church, Assistant District Public Defender, Clarksville, Tennessee,
(at trial and on appeal), for the appellant, Floyd Perrow.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and Arthur Bieber,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Montgomery County jury convicted the Defendant, Floyd Perrow, of
aggravated burglary, two counts of aggravated rape, and aggravated
assault.  The trial court merged the two convictions of aggravated
rape and sentenced the Defendant to an aggregate thirty-six and a half
years in prison.  On appeal, the Defendant contends that: (1)
insufficient evidence exists in the record to support his convictions;
and (2) the trial court imposed an excessive sentence because it
should have merged all of the Defendant's convictions into a single
conviction.  The State also appeals, contending that the trial court
erred by merging the two aggravated rape convictions.  After
thoroughly reviewing the record, we conclude that sufficient evidence
exists to support the Defendant's convictions and that the trial court
did not err by failing to merge all of the convictions into a single
conviction.  However, we conclude that the trial court erred by
merging the two aggravated rape convictions.  Accordingly, we reverse
this judgment by the trial court, and we reinstate the two aggravated
rape convictions.  We remand the case to the trial court for
re-sentencing on those two convictions.

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

EDWARD PINCHON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David G. Hirshberg, Nashville, Tennessee, for the appellant, Edward
Pinchon.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret T. Gunn, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the dismissal of his petition for
post-conviction relief as time-barred, arguing that the
post-conviction court erred for failing to find that the one-year
statute of limitations was tolled due to his mental incompetence, or,
in the alternative, for failing to find that his petition was timely
because it was filed within one year from the date mandate issued. 
Following our review, we affirm the dismissal of the petition.

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

LETIVIAS D. PRINCE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Britt Phillips, Franklin, Tennessee, for the appellant, Letivias D.
Prince.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and  Lee E. Dryer, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Letivias D. Prince, filed a petition for post-conviction
relief, which was subsequently amended.  Following an evidentiary
hearing, the trial court dismissed Petitioner's petition.  On appeal,
Petitioner argues the trial court erred in dismissing his petition for
post-conviction relief and contends (1) that his counsel failed to
develop a reasonable trial strategy or defenses for Petitioner; (2)
that his counsel failed to fully investigate or adequately prepare the
witnesses for trial; (3) that his counsel failed to allow Petitioner
to testify at trial; and (4) that his counsel failed to ask for a
continuance to investigate certain exculpatory evidence presented by
the State at the time of trial.  After a thorough review of the
record, we affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. CRAIG U. QUEVEDO

Court:TCCA

Attorneys:                          

Merrilyn Feirman, Nashville, Tennessee (on appeal) and Edward DeWerff,
Clarksville, Tennessee (at trial) for the appellant, Craig Quevedo.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and Arthur Bieber,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Craig Quevedo, pled guilty to thirty counts of rape and
twenty-four counts of incest and pled nolo contendere to two counts of
aggravated sexual battery, four counts of rape of a child, nine counts
of rape and one count of aggravated rape in the Circuit Court for
Montgomery County. After a sentencing hearing, the trial court imposed
an aggregate sentence of ninety-two years in prison.  On appeal, the
Defendant contends that his sentence was excessive and contrary to
public policy.  Finding no reversible error, we affirm the trial
court's judgments.

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

STATE OF TENNESSEE v. ANDREW J. ROCHESTER

Court:TCCA

Attorneys:                          

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Andrew
J. Rochester.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; T. Michel Bottoms, District Attorney
General; J. Douglas Dicus, Assistant District Attorney General; for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of one count of burglary.  He contends on
appeal that 1) there is insufficient evidence to sustain the
conviction, 2) no proper foundation was laid for opinion testimony by
certain witnesses, 3)  the warrantless search of the vehicle was
improper, and 4) the trial court erred in sentencing the defendant. 
The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. MICHAEL WALLS

Court:TCCA

Attorneys:                          

Phillip A. Condra, District Public Defender; and David O. McGovern,
Assistant Public Defender, Jasper, Tennessee, for the appellant,
Michael Walls.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and William Copeland, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Michael Walls, was indicted for the following offenses:
count one, forgery; count two, passing a forged instrument; count
three, forgery; count four, passing a forged instrument; count five,
forgery; count six, passing a forged instrument; count seven, theft of
property under $500; and count eight, forgery.  The offense of theft
of property under $500 is a Class A misdemeanor.  The seven forgery
offenses are Class E felonies.  The State entered a nollo prosequi as
to counts three and four.  Following a jury trial, Defendant was
convicted of the remaining counts.  The trial court merged count one
with count two, and count five with count six, leaving Defendant with
convictions for three forgery offenses and one conviction for theft of
property under $500.  Following a sentencing hearing, the trial court
found that the following enhancement factors were applicable: that
Defendant has a previous history of criminal convictions and activity;
that Defendant has a previous history of unwillingness to comply with
the conditions of a sentence involving release into the community; and
that Defendant was adjudicated to have committed delinquent acts as a
juvenile that would constitute a felony if committed by an adult. 
Tenn. Code Ann. SS 40-35-114(2), (9) and (21).  The trial court
considered Defendant's request for leniency and his mental stability
as mitigating factors, but assigned these factors little weight.  See
id. -35-113.  The trial court declined to consider alternative
sentencing as an option and sentenced Defendant to two years
incarceration for each of the forgery convictions and eleven months
and twenty-nine days for the misdemeanor theft conviction.  The trial
court ordered Defendant's sentence for count one to run consecutively
to his conviction for count five, and counts seven and eight to run
concurrently with his other sentences, for an effective sentence of
four years.  Defendant now appeals, arguing that the evidence was
insufficient to support his convictions.  Defendant also challenges
the length of his sentences for his forgery convictions and the
imposition of consecutive sentencing.  Defendant does not challenge
the length of his sentence for his theft conviction.  After a careful
review of the record, we affirm the judgments of the trial court.

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

DONALD WALTON  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Donald F. Walton, Pro Se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Donald Walton, appeals from the trial court's summary
dismissal of his petition for writ of habeas corpus.  After a review
of the record and the briefs, we affirm the judgment of the trial
court.

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

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2004 Tennessee Bar Association