2004: Tennessee Supreme Court in Review
What were the key decisions coming out of the Tennessee Supreme Court
during 2004? And what do you need to learn from them for your
practice? A new TennBarU online course has the answers. Tennessee
Attorneys Memo Editor and TennBarU faculty member Virginia Mayo takes
you through the court year, analyzing cases dealing with torts,
workers' compensation, contracts, taxation, property, family law,
criminal law, criminal procedure, and post-conviction relief.

Today's Opinions: July 27, 2005
Volume 11 — Number 142
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.
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
00 New Opinion(s) from the Tennessee Court of Appeals
09 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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


STATE OF TENNESSEE v. MARK S. ARMSTRONG

Court:TCCA

Attorneys:                          

John C. Mitchell (at trial), and Allen D. Hale (on appeal),
Murfreesboro, Tennessee, for the appellant, Mark S. Armstrong.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; WilliamC. Whitesell, Jr., District
Attorney General; and Laurel A.Nutt, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

ARutherford County jury convicted the Defendant, Mark S. Armstrong, of
aggravated rape, and the trial court sentenced the Defendant to twenty
years, as a Range I offender. On appeal, the Defendant contends that:
(1) the trial court erred when it failed to grant the Defendant's
motion for a mistrial when inadmissible evidence was admitted through
an inadequate redaction of a videotaped statement; (2) the trial court
erred in failing to provide an adequate limiting instruction to the
jury regarding a videotape sound malfunction; (3) the trial court
erred when it failed to require the State to make an election of the
offense for which it sought a conviction; (4) the trial court erred in
failing to grant the Defendant's motion for judgment of acquittal; and
(5) the evidence is insufficient to sustain the Defendant's
conviction. Finding no error, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/2005/armstrongm72705.pdf

JOHNNY L. BUTLER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Johnny L. Butler, Memphis, Tennessee, pro se.

Paul G.Summers, Attorney General &Reporter; David H.Findley, Assistant
Attorney General; and James Wax, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Johnny L. Butler, appeals the dismissal of his
petition for writ of error coram nobis. In this appeal, he asserts
that his conviction is void because the indictment was defective and
that his guiltyplea was not knowinglyand intelligently made. The
judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/butlerj72705.pdf

STATE OF TENNESSEE v. FRANKIE SUE DEES

Court:TCCA

Attorneys:                          

Richard W. DeBerry, Assistant District Public Defender, for the
appellant, Frankie Sue Dees.

Paul G. Summers, Attorney General &Reporter; Rachel E. Willis,
Assistant Attorney General; and John Overton, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Frankie Sue Dees, pled guilty to one count of theft
over $1,000. The trial court imposed a Range I sentence of two years
in the Department of Correction. In this appeal, the defendant asserts
that the trial court should have placed her on community corrections
or full probation. The judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/deesf72705.pdf

STATE OF TENNESSEE v. JOHN RAMSEY DUNCAN

Court:TCCA

Attorneys:                          

David R. Heroux, Nashville, Tennessee, (on appeal) and Mike Anderson,
Nashville, Tennessee, (at trial) for the appellant, John Ramsey
Duncan.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Brian Holmgren, Assistant District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, John Ramsey Duncan, was convicted
of four counts of rape of a child, a Class A felony, and four counts
of aggravated sexual battery, a Class B felony. After a sentencing
hearing, the trial court sentenced Defendant to twenty-two years for
each rape of a child conviction, and ten years for each aggravated
sexual battery conviction. The trial court ordered Defendant's
sentence for his rape of a child conviction in count two to run
consecutively to his sentence for his rape of a child conviction in
count one, and all other sentences to run concurrently to count one,
for an effective sentence of forty-four years. On appeal, Defendant
argues that the evidence is insufficient to support his convictions,
and that the trial court erred in ruling certain out-of-court
statements made by the victim to witnesses Lisa Dupree and Julie
Carter as admissible. In addition, after the filing of the briefs,
Defendant requested this Court to consider the impact of the ruling in
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) on the
length of his sentences and the trial court's imposition of
consecutive sentencing. In an opinion filed on February 1, 2005, this
Court affirmed the convictions and the imposition of consecutive
sentencing, but pursuant to Blakely, reduced each sentence to the
presumptive sentence. On June 20, 2005, the Supreme Court of Tennessee
granted the application for permission to appeal filed by the State of
Tennessee, and remanded the case to this Court for reconsideration in
light of State v. Edwin Gomez and Jonathan S. Londono, No.
M2002-01209- SC-R11-CD, ____ S.W.3d ____ (Tenn. April 15, 2005). Upon
consideration in light of Gomez, we affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/2005/duncanj72705.pdf

STATE OF TENNESSEE v. WILLIE JOE FRAZIER

Court:TCCA

Attorneys:                          

Merrilyn Feirman, Nashville, Tennessee; and Andrew Jackson Dearing,
III, Shelbyville, Tennessee, for the Appellant, Willie Joe Frazier.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

In 1980, the Appellant, Willie Joe Frazier, was indicted for multiple
counts of armed robbery and related assaults stemming from his
participation, along with two other accomplices, in the robbery of a
number of employees and customers of a pharmacy in Lewisburg. However,
Frazier escaped from jail before his scheduled trial and was not
apprehended until 2002. In 2003, Frazier was convicted by a Marshall
County jury of two counts of malicious shooting, one count of assault
with intent to commit voluntary manslaughter, one count of assault
with intent to commit first degree murder, one count of aggravated
assault, six counts of armed robbery, and two counts of assault with
intent to commit robbery. The jury sentenced Frazier to indeterminate
sentences for all the convictions except the six armed robberies, for
which the jury fixed sentences of life imprisonment. The trial court
grouped the thirteen convictions into three categories for purposes of
consecutive sentencing, resulting in six concurrent life sentences
consecutive to concurrent sentences of eight to twenty years and
consecutive to a ten to twenty-five year sentence. This resulted in an
effective sentence of life plus eighteen to forty-five years in the
Department of Correction. On appeal, Frazier argues: (1) he was
sentenced to crimes for which no guilty verdicts were returned by the
jury; (2) the evidence is insufficient to support his convictions for
assault with intent to commit robbery of Ollie Bagley and assault with
intent to commit robbery of Goldie Crabtree; (3) the jury's sentencing
verdicts reflect two sentences which were not authorized for the
crimes for which he was convicted; (4) his convictions for malicious
shooting must be set aside because (a) he was never indicted for these
crimes, (b) they are not lesser offenses of any indicted offenses, and
(c) his dual convictions for malicious shooting and assault with
intent to commit voluntary manslaughter of Judy Watson constitute
double jeopardy; and (5) the trial court erred by imposing consecutive
sentences.

http://www.tba.org/tba_files/TCCA/2005/frazierw72705.pdf

KEVIN JOSEPH KARR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kevin Joseph Karr, Clifton, Tennessee, pro se.

Paul G.Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; and T. Michel Bottoms, District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Appellant, Kevin Joseph Karr, has appealed from the trial court's
order summarily dismissing, without an evidentiary hearing, his
petition for writ of habeas corpus. The State has filed a motion for
the trial court's judgment to be affirmed pursuant to Rule 20 of the
Rules of the Tennessee Court of Criminal Appeals. We grant the motion
and affirm the judgment of the trial court. After the State's motion
was filed, Appellant filed a motion for an attorney to be appointed to
represent him. In light of our ruling on the State's motion, the
defendant's motion is denied by separate order

http://www.tba.org/tba_files/TCCA/2005/karrk72705.pdf

MICHAEL KEITH KENNEDY v. KEVIN MYERS, WARDEN

Court:TCCA

Attorneys:                          

Michael Keith Kennedy, Clifton, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; and T. Michael Bottoms, District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Michael Keith Kennedy, entered pleas of nolo
contendere in Chester County and in Henderson Countyto aggravated
burglary, possession of marijuana, and numerous counts of burglary of
an automobile, theft, and vandalism. The petitioner received a total
effective sentence of fifteen years incarceration in the Tennessee
Department of Correction. Subsequently, the petitioner filed a
petition for a writ of habeas corpus. The habeas corpus court
summarily denied the petition, and the petitioner appeals the denial.
Upon our review of the record and the parties' briefs, we affirm the
judgment of the habeas corpus court.

http://www.tba.org/tba_files/TCCA/2005/kennedym72705.pdf

GARY LEE MILLER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Bruce Poag, Nashville, Tennessee, for the Appellant, Gary Lee Miller.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Sarah Davis, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Gary Lee Miller, stands convicted of aggravated
kidnapping, for which he was classified as a habitual offender and,
therefore, ordered to serve 100 percent of his 16-year sentence. See
State v. Gary Lee Miller, No. M1998-00788-CCA-R3-CD, slip op. at 2
(Tenn. Crim. App., Nashville, Mar. 6, 2000). He filed a petition for
post-conviction relief alleging ineffective assistance of counsel.
After conducting an evidentiary hearing, the post-conviction court
denied the petition. Aggrieved by the lower court's ruling, the
petitioner now brings the instant appeal. After a thorough review of
the issues and applicable law, we affirm the judgment of the lower
court.

http://www.tba.org/tba_files/TCCA/2005/millerg72705.pdf

STATE OF TENNESSEE v. BILLY RAY RILEY

Court:TCCA

Attorneys:                          

Angela J. Hopson (at trial and on appeal), Jackson, Tennessee, and
Marcus M. Reaves (at trial), Denmark, Tennessee, for the appellant,
Billy Ray Riley.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and James Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

A Madison County Circuit Court jury convicted the appellant, Billy Ray
Riley, of theft of property valued one thousand dollars or more but
less than ten thousand dollars, and the trial court sentenced him as a
Range III offender to twelve years in the Department of Correction. In
this appeal, the appellant claims that the evidence is insufficient to
support the conviction. Upon review of the record and the parties'
briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/rileyb72705.pdf

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