Opinion Flash

September 8, 2004
Volume 10 — Number 173

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):
02 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
06 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


STATE OF TENNESSEE v. ROBERT L. LEACH, JR.
WITH DISSENTING OPINION & APPDENDIX

Court:TSC

Attorneys:                          

Ross E. Alderman, District Public Defender; and Jeffrey A. DeVasher
and C. Dawn Deaner (on appeal), and Laura C. Dykes, Deputy Public
Defender (at trial), and Amy D. Harwell, Assistant Public Defender (at
trial), for the appellant, Robert L. Leach, Jr.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Thomas B. Thurman,
Deputy District Attorney General; and Kathy Morante and Katrin Novak
Miller, Assistant District Attorneys General, for the appellee, State
of Tennessee.

Judge: HOLDER

First Paragraph:

In this capital case, the defendant, Robert L. Leach, Jr., was
convicted of two counts of first degree premeditated murder, two
counts of first degree felony murder, one count of especially
aggravated robbery, and one count of aggravated rape.  The trial court
merged the felony murder convictions with the premeditated murder
convictions.  The jury imposed sentences of death for the two murder
convictions.  The trial court imposed two consecutive sentences of
twenty-five years for the especially aggravated robbery and aggravated
rape convictions, which were ordered to run consecutively to the two
death sentences.  The Court of Criminal Appeals affirmed Leach's
convictions and sentences.  On automatic appeal under Tennessee Code
Annotated section 39-13- 206(a)(1), we designated the following issues
for oral argument:   1) whether the evidence is insufficient to
support convictions for premeditated murder and felony murder; 2)
whether the trial court erred in prohibiting Leach from presenting a
witness to discredit the testimony of Joseph Walker; 3) whether the
trial court committed reversible error in instructing the jury to
consider evidence of Leach's attack on Dorianne Brown to "complete the
story"; 4) whether the death penalty is precluded in this case under
Apprendi v. New Jersey, 530 U.S. 466 (2000), because aggravating
circumstances were not set out in the indictment; and 5) whether the
sentences of death are disproportionate or invalid under the mandatory
review of Tennessee Code Annotated section 39-13- 206(c)(1).  Having
carefully reviewed these issues and the remainder of the issues raised
by Leach, we conclude that they do not warrant relief.  Accordingly,
we affirm the judgment of the Court of Criminal Appeals.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/leachrobertl_dis.wpd

APPENDIX
http://www.tba.org/tba_files/TSC/leachrobertl_apx.wpd

CINDY R. LOURCEY, ET AL. v. ESTATE OF CHARLES SCARLETT, Deceased
WITH CONCURRING OPINION

Court:TSC

Attorneys:                          

Michele M. Brubaker, Parks T. Chastain and Stacey A. Terral,
Nashville, Tennessee, for the Appellant, Estate of Charles Scarlett,
Deceased.

David L. Cooper, Nashville, Tennessee, for the Appellees, Cindy R.
Lourcey and Vernon B. Lourcey.

Judge: ANDERSON

First Paragraph:

We granted review to determine (1) whether the complaint states a
claim for intentional infliction of emotional distress when it alleges
that the defendant's conduct was outrageous because he shot his wife
and then himself in plaintiff Cindy Lourcey's presence; and (2)
whether the complaint states a claim for negligent infliction of
emotional distress when it does not allege that Cindy Lourcey was
related to the defendant or his wife.  The trial court dismissed the
complaint for failure to state a claim upon which relief may be
granted pursuant to Tennessee Rule of Civil Procedure 12.02(6).  The
Court of Appeals reversed the trial court's judgment after concluding
that the complaint states claims for intentional and negligent
infliction of emotional distress.  After reviewing the record and
applicable authority, we hold that the plaintiffs state a claim for
intentional infliction of emotional distress because Cindy Lourcey
witnessed an "outrageous" act, i.e., the defendant's shooting of his
wife and himself, and that the plaintiffs state a claim for negligent
infliction of emotional distress even though Cindy Lourcey is not
related to the defendant or his wife.  Accordingly, we affirm the
Court of Appeals' judgment.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TSC/lourceycr_con.wpd

DERRICK BRYANT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mitzi Sweet, Morristown, Tennessee, for the appellant, James E.
Beckner.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Victor Vaughn, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Derrick Bryant, was convicted by a jury of first degree
premeditated murder.  His conviction was affirmed on direct appeal. 
See State v. Derrick Bryant, No. E2000-01835-CCA- MR3-CD, 2001 WL
1187916 (Tenn. Crim. App., Knoxville, Oct. 9, 2001).  In this
post-conviction proceeding, the Defendant alleges that he received
ineffective assistance of counsel.  After a hearing, the trial court
denied relief.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ALVIN DOBBINS, JR.

Court:TCCA

Attorneys:                          

Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Alvin
Dobbins, Jr.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Amy Eisenbeck, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant appeals from an order of the trial court which found him
to be in violation of the terms of his community corrections sentence.
 The trial court ordered that the remainder of the Defendant's
sentence be served in confinement.  On appeal, the Defendant argues
that the trial court abused its discretion in ordering that the
Defendant serve his sentence in confinement rather than allowing him
to continue in the community corrections program.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. JOSEPH CARL GANUS

Court:TCCA

Attorneys:                          

Richard W. DeBerry, Assistant District Public Defender, Camden,
Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer Bledsoe, Assistant Attorney General;
Robert "Gus" Radford, District Attorney General; and John W. Overton,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Joseph Carl Ganus, appeals the sentencing decision of
the Hardin County Circuit Court.  Ganus pled guilty to Violation of
the Motor Vehicle Habitual Offender (MVHO) statute and DUI, third
offense.  Following a sentencing hearing, Ganus was sentenced to four
years confinement in the Department of Correction for violation of the
MVHO statute and to eleven months and twenty-nine days for DUI, third
offense.  These sentences were ordered to be served concurrently.  On
appeal, Ganus argues that the trial court erred:  (1) by not granting
him a non-incarcerative sentence and (2) by improperly weighing
enhancing factors in establishing the length of his sentence.  After
review of the record, we find no error and affirm the judgment of the
trial court.

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

TONY IVENS  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles G. Currier, Knoxville, Tennessee, for the appellant, Tony
Ivens.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Jon Chalmers Thompson, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Tony Ivens, appeals the trial court's denial of his motion
for new trial.  Following a jury trial, Defendant was convicted of
sexual battery.  Defendant was fined $3,000 and sentenced to serve two
years with all but 90 days to be suspended and served on probation. 
Defendant filed a motion for new trial or mistrial, alleging that one
of the jurors failed to disclose during voir dire that she was related
to a staff member of the Monroe County Sheriff's Department.  The
trial court denied the motion, and Defendant appeals.  After a careful
review of the record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. SHERRY LYNN JOHNSON

Court:TCCA

Attorneys:                          

Lee Borthick, Springfield, Tennessee, for the appellant, Sherry Lynn
Johnson.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; John Carney, District Attorney General;
and Dent Morriss, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

Following a bench trial, the Defendant, Sherry Lynn Johnson, was
convicted of assault, a Class A misdemeanor.  The trial court placed
the Defendant on judicial diversion.  In this appeal, the Defendant
asserts that the trial court misinterpreted the assault statute and
that the evidence is insufficient to support her conviction.  Because
the Defendant was placed on judicial diversion, no judgment of
conviction has been entered, and the Defendant has no appeal as of
right under Tennessee Rule of Appellate Procedure 3.  Accordingly, the
appeal is dismissed.

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

STATE OF TENNESSEE v. ROGER K. JONES 

Court:TCCA

Attorneys:                          

Joe H. Walker, District Public Defender, and Walter B. Johnson, II,
Assistant Public Defender, for the appellant, Roger K. Jones.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; Frank A. Harvey, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Roger K. Jones, appeals the order dismissing his
petition for writ of habeas corpus. The state has filed a motion
requesting that this court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. The
petition fails to establish either a void judgment or an expired
sentence.  Accordingly, the state's motion is granted and the judgment
of the trial court is affirmed.

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

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