Opinions

State of Tennessee v. Edward Lucas
M2001-01989-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John H. Gasaway, III

The appellant, Edward Lucas, was convicted in the Montgomery County Circuit Court of two counts of selling cocaine and one count of possession of marijuana with the intent to sell. The trial court imposed an effective sentence of six years incarceration in the Tennessee Department of Correction, sixty days of which were to be served in confinement with the remainder to be served on probation. Subsequently, the trial court found the appellant guilty of violating his probation and ordered the appellant to serve his sentence in confinement. The appellant raises the following issues on appeal: (1) whether the allegation set forth in the violation of probation warrant states a violation of the conditions of probation; (2) whether the allegation set forth in the violation of probation warrant complies with due process requirements of the United States and Tennessee Constitutions; and (3) whether the evidence is sufficient to support the probation revocation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Philip R. Haven
M2001-00332-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Timothy L. Easter

A Williamson County grand jury indicted the defendant on alternative counts of driving under the influence of an intoxicant and of driving with a .10% or more alcohol concentration in his blood or breath. At the conclusion of the proof, the trial jury convicted the defendant of the latter offense and assessed a fifteen hundred dollar fine. At sentencing, the trial court approved the fine assessed and further sentenced the defendant to six months to be suspended after the service of thirty days, day for day. Additionally, the court placed the defendant on supervised probation for eleven months and twenty-nine days during which time, among other conditions, the defendant was to complete alcohol safety school. Subsequently, the defendant filed a motion for a new trial or judgment of acquittal, which the trial court denied. Through this appeal the defendant contends that the trial court erred in 1) not excusing four jurors for cause; 2) permitting the prosecutor to make ingratiating statements to the jury during voir dire; 3) overruling counsel's objection to the prosecutor's comment in opening statement that the defendant was "drunk, way too drunk to drive"; 4) finding that the involved forensic scientist for the Tennessee Bureau of Investigation was the custodian of the alcohol report, thereby allowing the admission of the report into evidence; 5) concluding that "adult driving while impaired" was not a lesser included offense of driving under the influence; 6) refusing to dismiss count two of the indictment as a nullity; and 7) sentencing the defendant to more than the seven-consecutive-day minimum sentence applicable here. After reviewing each of these assertions, we find that none merit relief and, therefore, affirm the defendant's conviction and sentence. However, in reviewing the case, we have observed an error in the judgment form and, therefore, remand the matter for entry of a corrected judgment.

State of Tennessee v. Ricky Lynn Earls
M2001-00112-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lee Russell
Defendant appeals the sentences he received from convictions for two counts of forgery and one count of theft. The trial court found defendant to be a career offender and sentenced defendant to serve two sentences of six years each, to be served consecutively for an effective sentence of twelve years. Defendant contends that the sentences are excessive and that the trial court should have ordered the sentences to be served concurrently. We disagree and affirm the trial court's judgment.

State of Tennessee v. Jack Roger Norton
E2001-01903-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Cupp
The State has appealed from the trial court’s order granting the Motion to Suppress filed by Defendant, Jack Roger Norton. Defendant is the owner of a tavern in Washington County, which was the subject of a valid search warrant. It is undisputed that the officers did not “knock and announce” prior to their entry into the building to execute the warrant. This failure was the basis of the trial court’s ruling. After a thorough review of the record, the applicable law, and based upon the specific, narrow issue presented, we reverse the judgment of the trial court.

State of Tennessee v. Jack Roger Norton - Concurring
E2001-01903-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Roger E. Cupp
Although based on the narrow issue presented in this appeal, I agree fully with the decision reached by the Court in this appeal, I am compelled to write separately in order to express my astonishment and dismay over the manner in which the Washington County SWAT team treated the innocent patrons of the tavern searched in this case. While the actions of the SWAT team do not mandate the suppression of evidence seized from the defendant, those actions as they relate to the bar patrons do merit the condemnation of anyone who believes that this country is not, at least for the moment, a police state.

State of Tennessee v. Debra Kay Thomas
W2001-02039-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Julian P. Guinn

The defendant, Debra Kay Thomas, appeals the Henry County Circuit Court's resentencing her upon revocation of her community corrections sentence. She claims that the trial court erred in failing to give her credit for the time she served in confinement and in the community corrections program under her original sentence. The state agrees. We hold that the defendant was improperly sentenced and remand the case for resentencing.

State of Tennessee v. Daryl Keith Holton
M2000-00766-CCA-R3-DD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge William Charles Lee

The appellant, Daryl Keith Holton, was convicted by a jury in the Bedford County Circuit Court of four counts of first degree premeditated murder. The same jury imposed a sentence of death for each count of murder. The appellant now appeals both his convictions and sentences, presenting the following issues for our review: (1) whether the evidence adduced at trial is sufficient to support the jury's verdicts; (2) whether the statute setting forth the defense of insanity in Tennessee is violative of the United States Constitution in the context of a prosecution for first degree premeditated murder; (3) whether under the United States Constitution inadequate acoustics in the courtroom during his trial denied the appellant his right to a fair trial; (4) whether under the United States and Tennessee Constitutions the imposition of a sentence of death violates a criminal defendant's fundamental right to life; (5) whether the evidence adduced during the guilt/innocence and sentencing phases of the appellant's trial supports the jury's imposition of sentences of death; and (6) whether the appellant's sentences of death are comparatively disproportionate. Following a thorough review of the record and the parties' briefs, we affirm the judgments of the trial court.

State of Tennessee v. Wade P. Tucker
M2001-02298-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge J. Curtis Smith
The defendant, Wade P. Tucker, appeals from his Franklin County Circuit Court convictions of especially aggravated robbery and aggravated burglary. These convictions resulted from a bench trial in which the facts were stipulated by the defendant and the state. On appeal, the defendant challenges the sufficiency of the convicting evidence. We conclude that sufficient evidence supports the conviction of especially aggravated robbery; however, we hold that the conviction of aggravated burglary is infirm because the defendant, as an owner of the property, effectively consented to his entry into the house where the crime took place. Accordingly, we reverse and vacate the conviction of aggravated burglary but affirm the conviction of especially aggravated robbery.

State of Tennessee v. Ricky Lee Hall
M2001-01874-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Frank G. Clement, Jr.

The defendant contests the trial court's revocation of his probation, more specifically its failure to dismiss the probation revocation warrant. We conclude the trial court did not err in not dismissing the warrant. We affirm the judgment of the trial court with instructions to enter a formal order revoking probation.

Jerry Seymour v. Tomisa Sierra
M2001-02278-COA-R9-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Buddy D. Perry
The only question involved in this appeal is whether an insured may proceed directly against its uninsured motorist carrier when the tortfeasor is in fact insured but service of process is returned "not to be found." The Circuit Court of Franklin County allowed the suit to proceed and we granted the insurance company's motion for an interlocutory appeal under Rule 9, Tenn. R. App. P. After briefing and oral argument, we affirm the trial court.

State of Tennessee v. George T. Wiebe, in re: Paul's Bonding Company, Inc.
M2001-00350-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

Bonding company for absconded defendant appeals final forfeiture of bond and alleges that its agents were without authority to issue an alleged illegal bond. Concluding that bonding company's employee had authority to act, we affirm the judgment of the trial court.

State of Tennessee v. Jeffrey B. Johnson
M2001-02494-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge R.E. Lee Davies
The defendant appeals the trial court's order rejecting his request for additional pretrial jail credits. We dismiss the appeal.

Adrian Wilkerson v. State of Tennessee
M2001-02295-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.
This is an appeal from the denial of post-conviction relief. A Davidson County jury originally convicted the petitioner and a co-defendant of first degree felony murder, especially aggravated robbery, and theft over $1,000. The petitioner is serving an effective sentence of life imprisonment plus 25 years. In this appeal, the petitioner contends he received ineffective assistance of counsel due to counsel's failure to interview witnesses and failure to raise on direct appeal the trial court's denial of severance from his co-defendant. After a review of the record, we affirm the judgment of the post-conviction court.

State of Tennessee v. Larry Douglas
E2001-01945-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Rebecca J. Stern

After failing to report to his arrest house and failing a drug screen, defendant's sentence in the Community Corrections Program was revoked, and defendant appealed the revocation. The record contains substantial evidence to support the revocation. We affirm the judgment.

State of Tennessee v. Howard C. Covington in re: Memphis Bonding Company
W2001-01575-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Carolyn Wade Blackett

Memphis Bonding Company appeals the Shelby County Criminal Court's order denying its petitions for exoneration of liability for the defendant Howard C. Covington's bail bonds for various offenses. Because the record fails to reflect that this case is properly before us as a rightful appeal, we dismiss the appeal.

Joe Hibbler, III v. State of Tennessee
W2001-00449-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John P. Colton, Jr.

The petitioner, Joe Hibbler, III's petition for post-conviction relief was denied by the Shelby County Criminal Court following an evidentiary hearing. Because the record supports the lower court's determination that the petitioner did not demonstrate the ineffective assistance of counsel by clear and convincing evidence, we affirm.

State of Tennessee v. Mark Walker
M2001-00341-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carol L. Soloman

The defendant was convicted of one count of theft of property, one count of aggravated assault, two counts of criminal simulation, one count of evading arrest, and one count of possession of drug paraphernalia. The criminal simulation convictions were merged by the trial court, and the defendant was sentenced as follows: four years for theft of property, four years for criminal simulation, ten years for aggravated assault, and eleven months and twenty nine days for both evading arrest and possession of drug paraphernalia. On appeal, the defendant challenges the sufficiency of the evidence to support his convictions for theft, criminal simulation, and evading arrest. He also alleges that the trial court failed to exclude from evidence hearsay testimony and statements to law enforcement in violation of his Fifth Amendment rights. Further, the defendant asserts that the trial court erred by failing to instruct the jury on the lesser-included offense of attempted criminal simulation. Finally, the defendant challenges the length and manner of service of his sentences. After a review of the record, we reverse and dismiss the defendant's conviction of criminal simulation. The remaining judgments of the trial court are affirmed.

State of Tennessee v. Clyde Randall Scivally
M2001-02261-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Curtis Smith
The defendant and co-defendant were indicted for possession of over .5 grams of cocaine with intent to sell and possession of drug paraphernalia. A Franklin County jury convicted the defendant of the lesser-included offense of simple possession of cocaine and acquitted him of possession of drug paraphernalia. The co-defendant was convicted of both indicted offenses. In this appeal, the defendant contends the evidence was insufficient to sustain his conviction. We affirm the judgment of the trial court.

In Re: The Estate of Lonzo Kelley
M2001-00847-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Michael R. Jones
Lonzo Kelley operated a grocery store and borrowed a total of $250,000 from Heritage Bank ("Defendant") to operate the store. After Mr. Kelley died and there was no person or entity willing to assume control of the store, Defendant assumed operation of the store with the stated intent of protecting the assets, some of which were perishable. Defendant also believed the store would be more valuable at the time of foreclosure if it continued to remain open up until the time of sale. Defendant purchased new inventory and continued to operate the store until foreclosure took place. After foreclosure, and after deducting all expenses, etc., approximately $3,874.88 remained, which Defendant kept on deposit. Several years later, The Estate of Lonzo H. Kelley ("Plaintiff") filed suit making numerous challenges to Defendant's accounting practices, the manner in which Defendant operated the store, as well as its legal right to assume control of the store. Both parties filed motions for summary judgment. The Trial Court granted judgment to Plaintiff in the amount of $9,132.09, but determined Defendant was within its rights to assume control of the store and had not engaged in any wrongful acts while operating the store. Plaintiff appeals. We affirm.

Alfred Akin v. Kylan Thompson
M2001-00851-COA-R3-CV
Authoring Judge: Judge Robert L. Jones
Trial Court Judge: Thomas W. Brothers
The plaintiff Alfred Akin was rear-ended by a vehicle driven by the defendant Kylan Thompson, who was uninsured. The Allstate Insurance policy on the Akin vehicle provided uninsured motorist coverage with limits of $100,000 per person and $300,000 per occurrence. Though in his personal vehicle, Mr. Akin was in the course and scope of his employment with the Metropolitan Nashville Water Works when injured. Metro government does not have a workers' compensation program, but has a benefit program for on-the-job injuries, under which it paid more than $100,000 for medical bills and disability benefits. The trial court held that Allstate's limits were reduced by amounts paid "under any workers' compensation law, disability law, or similar law . . . ." and also found that the loss of consortium claim of Mrs. Akin was derivative in nature and subject to the same $100,000 "each person" limit and reduction. We affirm the trial court's grant of summary judgment in favor of Allstate.

Robert Marengo & Francine Marengo v. Terry Bowen
M2000-02379-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Vernon Neal
This is an appeal from the judgment of the Chancellor regarding the judicial dissolution of a continuing partnership. The trial court determined the withdrawing partner's debt should not be offset against his capital account in assessing his dissolution date value until the valuation of the business was made by the court, it was proper to add an additional $20,000 as a going concern adjustment to the valuation of the partnership, certain salary adjustments were proper, and a marketability and/or minority discount does not apply to the partnership. This Court concluded the trial court's determination offsetting the withdrawing partner's debt to the partnership as of the trial date was proper, the trial court erred in adding an additional $20,000 as a going concern value to the valuation of the partnership, the trial court's salary adjustment was proper, the trial court's refusal to apply a minority and/or marketability discount was proper, and the trial court's adjustment for a portion of the partnership's legal and professional expenses was proper. The judgment of the trial court is affirmed in part, reversed in part, and remanded for recalculation of the value of the withdrawing partner's interest as consistent with this order. Costs of this appeal shall be split between the appellant and the appellee.

Robert Powell, Jr. v. Blalock Plumbing
M2001-00204-WC-WCM-CV
Trial Court Judge: Jeffrey F. Stewart

Robert Powell, Jr. v. Blalock Plumbing
M2001-00204-WC-WCM-CV
Trial Court Judge: Jeffrey F. Stewart

Robert Powell, Jr. v. Blalock Plumbing
M2001-00204-WC-WCM-CV
Trial Court Judge: Jeffrey F. Stewart

Mary Kelley v. Mahlon Johns
M1998-00912-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Robert L. Jones
This appeal involves an intra-family dispute over the validity of an 88-year-old decedent's will leaving his farm to one of his nine children. After the will was admitted to probate in the Maury County Probate Court, six of the decedent's children filed suit in the Circuit Court for Maury County asserting that their father lacked testamentary capacity when he executed the will and that the will had been procured by undue influence by the child who received the farm. A jury determined that a confidential relationship existed between the decedent and his son when the disputed will was executed and that the will was procured by undue influence. Accordingly, the trial court entered an order invalidating the will and setting aside the pending probate proceeding. On this appeal, the child who received the farm from his father insists that the evidence does not support the jury's findings that he had a confidential relationship with his father and that he exerted undue influence over his father with regard to the substance of the will. We have determined that the record contains material evidence to support the jury's verdict and, therefore, affirm the judgment.