Opinion Flash

October 5, 2004
Volume 10 — Number 192

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


GARY MONTGOMERY v. SONJA K. SCHEDIN

Court:TCA

Attorneys:                          

Wendell K. Hall, Knoxville, Tennessee, for the Appellant Gary
Montgomery.

David R. Dunkirk, Oak Ridge, Tennessee, for the Appellee Sonja K.
Schedin.

Judge: SWINEY

First Paragraph:

Gary Robert Montgomery ("Plaintiff") and Sonja K. Schedin
("Defendant") were engaged to be married.  After the engagement ended,
Plaintiff filed a Writ of Possession in the General Sessions Court
claiming Defendant refused to allow him to retrieve his personal
property.  At issue in the General Sessions Court was who was entitled
to a boat and trailer, an ATV, an engagement ring, a trailer, and a
1998 Chevy pick-up truck.  Plaintiff claimed Defendant bought the ATV
for him as a gift, and that she also gave him $13,500 as a gift to buy
the truck.  After the General Sessions Court entered its judgment
concluding, among other things, that the money was loaned to Plaintiff
and was not a gift, Plaintiff appealed to the Circuit Court.  The
Circuit Court likewise concluded the money was loaned to Plaintiff and
was not a gift.  Plaintiff appeals.  We modify the judgment of the
Circuit Court and affirm the judgment as modified.

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

STATE OF TENNESSEE v. GREGORY FAIRBETTER

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Helena W. Yarbrough,
Assistant Attorney General; and Kristen Shea, Assistant District
Attorney General, for the appellant, State of Tennessee.

Richard McGee, Nashville, Tennessee, for the appellee, Gregory
Fairbetter.

Judge: WADE

First Paragraph:

The defendant, Gregory Fairbetter, was charged with driving under the
influence and violating the implied consent law.  The defendant filed
a motion to dismiss, arguing that because the videotape of his arrest
had been destroyed by the state, he could not receive a fair trial. 
The trial court agreed and dismissed the driving under the influence
charge.  In this appeal, the state asserts that the trial court erred.
 The judgment of the trial court is reversed and the cause is
remanded.

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

STATE OF TENNESSEE v. ZINA BETH FINNELL

Court:TCCA

Attorneys:                          

Dwight Scott, Nashville, Tennessee, for the appellant, Zina Beth
Finnell.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is a direct appeal from a conviction of facilitation to commit
felony murder.  The Defendant, Zina Beth Finnell, was indicted for
felony murder by a Davidson County Grand Jury in connection with the
murder of her step-father during the commission of an aggravated
burglary.   A jury convicted the Defendant of facilitation to commit
felony murder, and the trial court sentenced her to 21 years.  On
appeal, the Defendant argues two issues: (1) the trial court erred in
denying the Defendant's motion to suppress her statement to the
police, and (2) there was insufficient evidence to find the Defendant
guilty of facilitation to commit felony murder.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. RANDAL TODD KEMPER

Court:TCCA

Attorneys:                          

John S. Colley, III, Columbia, Tennessee, for the appellant, Randal
Todd Kemper.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Jim White, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Randal Todd Kemper, was convicted of driving under the
influence.  The trial court imposed a sentence of eleven months,
twenty-nine days, with all but forty days suspended.  In this appeal
of right, the defendant complains that the trial court erroneously
admitted the results of his blood alcohol test because the
accompanying certificate bore a rubber-stamped signature.  The
judgment of the trial court is affirmed.

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

STEVE EDWARD LEACH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Frank Lannom (on appeal) and Zach Griffith (at trial), Lebanon,
Tennessee, for the appellant, Steve Edward Leach.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; and Tom P. Thompson, District Attorney General, for
the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Steve Edward Leach, entered pleas of guilt to first
degree murder and rape of a child.  The trial court imposed
consecutive sentences of life imprisonment without the possibility of
parole and 25 years, respectively.  There was no direct appeal of the
conviction or sentence.  Later, the petitioner was denied his
application for post-conviction relief.  This court affirmed.  Steven
Edward Leach v. State, No. M1999-00774-CCA-R3-PC (Tenn. Crim. App., at
Nashville, Feb. 16, 2001).  Counsel for the petitioner failed to make
a timely application for permission to appeal to the supreme court and
our supreme court denied a request to waive the 60-day period of
limitation as prescribed by Tennessee Rule of Appellate Procedure 11. 
By motion, the petitioner then applied for relief in the
post-conviction court.  The post-conviction court found that the
petitioner was not at fault for failing to timely file a Rule 11
application but denied relief based upon lack of jurisdiction.  In
this appeal, the petitioner has asked this court to vacate and
re-enter its judgment filed February 16, 2001, in Cause No.
M1999-00774-CCA-R3-PC.  Because our supreme court has ruled under
similar circumstances that the petitioner was not entitled to the
effective assistance of counsel and was not denied due process of law,
the judgment is affirmed.

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

STATE OF TENNESSEE v. LARRY F. LITTON

Court:TCCA

Attorneys:                          

David E. Crockett and Lisa D. Rice, Elizabethton, Tennessee, for the
appellant, Larry F. Litton.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; Greeley Wells, District Attorney General;
and Teresa Murray Smith, Assistant District Attorney General,  for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Larry F. Litton, was indicted on charges of rape in
violation of Tennessee Code Annotated section 39-13-503.  A jury found
the appellant guilty of the lesser-included offense of sexual battery
and recommended a $3,000 fine.  The appellant was sentenced to a
one-year sentence as a Range I Standard Offender, but the trial court
ordered the appellant to serve two years on probation in lieu of
incarceration.  The trial court also imposed the $3,000 fine
recommended by the jury.  After the denial of a motion for new trial,
this appeal ensued.  The appellant challenges: (1) the trial court's
decision to allow the testimony of Dr. Scott Levine in which he
recounted a conversation with the victim that occurred several weeks
after the incident; (2) the trial court's instruction to the jury that
a tape-recorded conversation between the victim and the appellant was
an "alleged admission;" and (3) the sufficiency of the evidence.  For
the following reasons, we affirm the decision of the trial court.

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

STATE OF TENNESSEE v. RANDY DAVID MILES

Court:TCCA

Attorneys:                          

Philip A. Condra, District Public Defender, and Francis W. Pryor, Jr.,
Assistant Public Defender, for the appellant, Randy David Miles.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Steven M. Blount, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Randy David Miles, was convicted by a Franklin County
Circuit Court jury of two counts of aggravated rape, a Class A felony,
and aggravated kidnapping, a Class B felony, for his participation
with a codefendant, Gary Allen Phillips, Jr., in grabbing a woman from
the street in Northern Alabama and transporting her by car to the
defendant's grandmother's abandoned farmhouse in Huntland, Tennessee,
where the defendant raped her while his codefendant watched.  The
defendant was sentenced by the trial court as a Range I, standard
offender to concurrent terms of eleven years, nine months for the
aggravated kidnapping conviction and twenty-four years, six months for
each of the aggravated rape convictions, for an effective sentence of
twenty-four years, six months.  His Tennessee sentences were ordered
to be served concurrently to his Alabama sentence for kidnapping.  On
appeal, he challenges the sufficiency of the evidence, the State's
failure to make a proper election of offenses, and the sentences
imposed by the trial court.  Following our review, we conclude that
one of the aggravated rape convictions is invalid because the facts
upon which the State relied to support the separate convictions
constitute only one offense.  Accordingly, we reverse one of the
defendant's convictions for aggravated rape.  We affirm the judgments
as to the other aggravated rape conviction and the aggravated
kidnapping conviction but modify the sentences to twenty-two years and
nine years, respectively.

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

Change in Use or Withdrawal of Donor's Contribution to Chairs of
Excellence Endowment Fund

Date: October 1, 2004

Opinion Number: 04-150

http://www.tba.org/tba_files/AG/2004/op150.pdf

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