Opinions

Joseph Whitwell vs. State
M1999-02493-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Cheryl A. Blackburn
Petitioner, Joseph Whitwell, filed a Petition for Post-Conviction Relief in the Davidson County Criminal Court, which the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issue: whether the trial court erred in dismissing his Petition for Post-Conviction Relief, based upon a ruling that Petitioner's allegations of ineffective assistance of counsel were without merit. After a thorough review of the record, we find that the Petitioner did not receive the ineffective assistance of counsel. We therefore affirm the trial court's denial of the Petitioner's Petition for Post-Conviction Relief.

State vs. Charles Swaffer
M2000-00058-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: J. O. Bond
Defendant Charles E. Swaffer was convicted by a Macon County jury of one count of Class C theft of property over $10,000 and one count of Class D vandalism over $1,000. The trial court subsequently imposed concurrent sentences of five years and three years, with Defendant to serve one year of incarceration followed by supervised probation. Defendant challenges his convictions, raising the following issues: (1) whether the trial court erred when it failed to grant a motion for a mistrial; (2) whether the evidence was sufficient to support his convictions; and (3) whether the trial court erred in applying improper enhancing factors and rejecting his mitigating factors. The judgment of the trial court is affirmed.

State vs. John Charles Johnson
M2000-00529-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: J. Randall Wyatt, Jr.
Defendant John Charles Johnson was convicted by a Davidson County jury of second degree murder, facilitation of aggravated kidnapping, and especially aggravated robbery. The trial court sentenced Defendant to twenty-five years for second degree murder, five years for facilitation of aggravated kidnapping, and twenty years for especially aggravated robbery. The trial court further ordered that Defendant's sentences for second degree murder and facilitation of aggravated kidnapping be served consecutive to each other and concurrent with Defendant's sentence for especially aggravated robbery, resulting in an effective sentence of thirty years. Defendant raises the following issues in this appeal: (1) whether the evidence was sufficient to support his three convictions; (2) whether the trial court erred in not granting Defendant's motion for judgment of acquittal on the ground that the testimony of a co-defendant was uncorroborated; (3) whether the trial court erred in not allowing Defendant to play a tape containing exculpatory statements; (4) whether the trial court erred by failing to charge the lesser-included offenses of voluntary manslaughter and facilitation to commit voluntary manslaughter; and (5) whether the length of the sentences imposed by the trial court were proper. Following a review of the record, we affirm the judgment of the trial court concerning Defendant's convictions and the lengths of Defendant's sentences. We reverse the trial court's order of consecutive sentencing and remand for a new hearing solely on the issue of concurrent or consecutive sentencing.

State vs. Amelia Kay Stem
M2000-00600-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Stella L. Hargrove
The appellant, Amelia Kay Stem, entered a plea of nolo contendere in the Lawrence County Circuit Court to one count of second degree murder. The trial court sentenced the appellant to twenty-five years incarceration in the Tennessee Department of Correction. The appellant raises the following issue(s) for our review: whether the trial court erred in sentencing the appellant by incorrectly applying enhancement factors, by failing to apply mitigating factors, and by neglecting to make specific findings of fact on the record. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

James Dubose vs. State
M2000-00478-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Donald P. Harris
The petitioner, James DuBose, was convicted by a jury in the Williamson County Circuit Court of one count of first degree felony murder with the underlying felony being aggravated child abuse. The trial court sentenced the petitioner to life imprisonment in the Tennessee Department of Correction. This court and the Tennessee Supreme Court affirmed the petitioner's conviction. The petitioner subsequently filed a petition for post-conviction relief. After a hearing, the post-conviction court denied the petitioner's request for relief. On appeal, the petitioner raises the following issues for our review: (1) whether the State engaged in prosecutorial misconduct during the course of the petitioner's trial; (2) whether petitioner's trial counsel provided ineffective assistance of counsel; (3) whether the trial court erred in failing to give curative jury instructions; and (4) whether the petitioner was charged pursuant to a faulty indictment. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

State vs. Joseph Faulkner
W1999-00223-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Carolyn Wade Blackett
The appellant presents this appeal following dismissal of his petition for post-conviction relief. Faulkner entered guilty pleas to one count of aggravated rape and three counts of aggravated robbery in the Shelby County Criminal Court. Pursuant to his negotiated plea agreement, the appellant was sentenced to an effective sentence of twenty-five years. The plea agreement further provided that his state sentences were to be served concurrently with outstanding federal sentences and that all sentences would be served in federal custody. After pleading guilty to the state charges, the federal government refused to accept Faulkner into federal custody. Faulkner now asserts that his trial counsel was ineffective for providing erroneous advice and, as a result, his guilty pleas were not knowingly and voluntarily entered. Based upon the unfulfilled bargain of his negotiated plea agreement, he asks that his guilty pleas be set aside and that his case be remanded for trial or other appropriate relief. The State concedes that Faulkner is entitled to post-conviction relief. Finding Faulkner's request for post-conviction relief meritorious, we reverse the judgment of the post-conviction court and remand to the Shelby County Criminal Court for further proceedings.

Larry Ray vs. TN Farmers
W1999-00698-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joseph H. Walker, III
Appellant had a fire insurance policy with Appellee which covered Appellant's dwelling and the contents therein. After a fire completely destroyed Appellant's home and all of the contents therein, Appellee refused to pay Appellant for his losses. Appellee declared the policy to be void ab initio due to material misrepresentations contained in the application for insurance. Jury returned a verdict in favor of Appellant, finding that Appellant did not make the misrepresentations with the intent to deceive the Appellee. The trial court directed a verdict for Appellee, holding that the misrepresentations were material and increased the Appellee's risk of loss. We reverse the directed verdict and remand.

Rebecca Cooper vs. Porter Cooper
W1999-01450-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This appeal arises from a dispute over a term in a Property Settlement Agreement that obligated Mr. Cooper to pay for his son's college education. Ms. Cooper sought reimbursement for various expenses totaling over $16,000.00 associated with her son's first year of college at Mississippi State University. Mr. Cooper argues that he should be liable only for the cost of tuition, fees, and books. For the following reasons, we affirm as modified and remand.

Bobby Conlee vs. Juanita Conlee
W2000-00471-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield
This appeal involves a divorce ending a fourteen year marriage. The trial court granted the husband a divorce and divided the property. On appeal, the wife takes issue with the division of marital property, and the failure of the trial court to award her alimony or attorney's fees. For the following reasons, we affirm the judgment of the trial court in all respects.

Harold Angus vs. Western Hert.
W2000-00902-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joe C. Morris
This appeal arises from a dispute between Contractor and Insurer over insurance coverage during a building demolition project. During the project, Contractor knowingly damaged an adjacent structure. When suit was brought against Contractor by the owners of the adjacent structure, Insurer refused coverage. The trial court found Insurers' policy and endorsement to be ambiguous and thus unenforceable. We disagree, finding that the policy and endorsement are not ambiguous and that they clearly state that Insurer will provide no coverage for intentional damage to other structures. We reverse the trial court's ruling and find that Insurer is not liable under the policy.

Clyde Holt vs. City of Memphis
W2000-00913-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert L. Childers
This is a wrongful death case. The plaintiff called 911 after his mother experienced difficulty breathing and passed out. When the paramedics arrived, the plaintiff's mother had regained consciousness. After examining her, the paramedics told the plaintiff that his mother was not sick enough to be transported to the hospital. The plaintiff asked that his mother be transported to the hospital, but nevertheless signed a form refusing transport to the hospital. A few hours later the plaintiff's mother's condition worsened. When the paramedics returned, they found the mother unconscious, and immediately took her to the hospital. She died seven days later. The plaintiff filed a wrongful death suit, alleging that the paramedics were negligent in not transporting his mother to the hospital on their first run. The trial court found the paramedics negligent and awarded the plaintiff a money judgment. We reverse, holding that the plaintiff was required to establish by expert testimony the standard of care for the paramedics

Kenneth Lee Weston vs. State
E1999-02095-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: E. Eugene Eblen
The Defendant, Kenneth Lee Weston, appeals as of right from the summary dismissal of his petition for writ of habeas corpus. He asserts that his convictions are void because the trial judge did not sign the court minutes reflecting the judgment. We hold that the failure of the trial judge to sign the court minutes does not render a judgment of conviction void. Accordingly, we affirm the judgment of the trial court.

John Haws Burrell vs. State
E1999-02762-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: James B. Scott, Jr.
The Defendant, John Haws Burrell, appeals as of right from the dismissal of his petition for post-conviction relief. The trial court dismissed his petition without an evidentiary hearing as barred by the statute of limitations. The Defendant argues on appeal that the statute of limitations should not have expired until one year after certiorari had been denied by the United States Supreme Court. We affirm the judgment of the trial court dismissing the Defendant's post-conviction petition as time-barred.

State vs. Lester Parker
E2000-00282-CCA-R3-CD
Authoring Judge: Judge William B. Acree
Trial Court Judge: D. Kelly Thomas, Jr.
The defendant appeals from a jury trial conviction for criminal attempt to possess Schedule II controlled substance with intent to deliver. In the appeal, the defendant alleges that the evidence was insufficient to support the jury's verdict, the trial court erred in allowing a positive drug test of the defendant to be admitted into evidence, and the trial court erred in denying the defendant's motion to remand the case to the General Sessions Court for a preliminary hearing. We conclude that the issues presented for appeal are without merit and affirm the trial court.

State vs. Ronald Byrd
E2000-00118-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Phyllis H. Miller
The Defendant, Ronald W. Byrd, was convicted of criminal trespass, a Class C misdemeanor. In this appeal as of right, he asserts that the evidence was insufficient to support the conviction. We hold that the evidence was sufficient to support the conviction, and we affirm the judgment of the trial court.

State vs. John Lee Dockery
E2000-00753-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Richard R. Baumgartner
The Defendant, John Lee Dockery, was convicted after a bench trial of fourth offense driving under the influence (DUI) and driving on a revoked license. In this appeal as of right, the Defendant argues that the trial court erred by admitting into evidence statements the Defendant made to the arresting officer before Miranda warnings were given and that the evidence was insufficient to support the DUI conviction. We conclude that the statements made by the Defendant were properly admitted and that the evidence was sufficient to support the convictions. The judgment of the trial court is affirmed.

State vs. Randy Lee Bowers
E2000-00585-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: R. Jerry Beck
After entering guilty pleas to possession of a Schedule VI controlled substance (marijuana); driving under the influence, third offense; and driving while his license was revoked, after a second or subsequent conviction for driving under the influence, the Criminal Court for Sullivan County conducted a sentencing hearing and then sentenced the defendant. The defendant contends that the trial court erred in ordering consecutive sentences and in failing to place him on probation after the service of the minimum sentence of one hundred-twenty days for DUI third offense. After careful review, we interpret the defendant's sentence to be three hundred-eighteen (318) days of full incarceration followed by four hundred fifty-five (455) days on supervised probation. Further, we affirm the denial of alternative sentencing.

State vs. Matau Goins
E2000-01159-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: James E. Beckner
The petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. Specifically, the petitioner alleges that when his attorney informed him that a particular witness was going to testify against him he was scared into pleading guilty. We agree with the post-conviction court's findings that the plea was voluntarily, understandably, and intelligently made. We affirm the post-conviction court's dismissal of the petition.

Wardell Lewis vs. State
E2000-01735-CCA-R3-CD
Trial Court Judge: E. Shayne Sexton
The petitioner appeals the dismissal of his petition for post-conviction relief. The trial court dismissed the petition because it was not filed within one year of the date on which the judgments became final. We affirm the trial court.

State vs. Jerry L. Johns
E2000-00505-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Ray L. Jenkins
The Defendant, Jerry L. Johns, appeals from the order of the trial court dismissing his "Motion to Vacate Judgment" as barred by the statute of limitations. The trial court apparently treated the Defendant's motion as a petition for post-conviction relief. We hold that the trial court properly treated the Defendant's motion as a petition for post-conviction relief and that the motion was properly dismissed because it was barred by the statute of limitations, because another post-conviction petition had already been filed and resolved on the merits, and because the grounds for relief alleged by the Defendant had been previously determined. Accordingly, we affirm the judgment of the trial court.

State vs. Carlos Demetrius Harris
E2000-00718-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Stephen M. Bevil
The Defendant, Carlos Demetrius Harris, appeals as of right from his reckless homicide conviction. On appeal, he presents the following six issues: (1) whether the trial court erred by granting the State's motion to amend the indictment from voluntary manslaughter to reckless homicide; (2) whether the trial court erred by allowing inadmissible items into evidence; (3) whether the trial court erred by not allowing testimony by the Hamilton County Medical Examiner that an ordinary person would be unaware that one blow to the head would cause death; (4) whether the trial court erred by granting the State's jury instruction request regarding causation and intent; (5) whether the evidence was sufficient to support the conviction; and (6) whether the trial court erred by sentencing the Defendant to a term of six years and by denying the Defendant alternative sentencing. We find no reversible error; accordingly, we affirm the judgment of the trial court.

State vs. Jeffrey Arch Carter
E2000-00738-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Phyllis H. Miller
The defendant, after pleading guilty to two counts of aggravated assault, DUI second offense, and violation of seat belt law, sought alternative sentencing. A sentencing hearing was held and the trial court denied the defendant any form of alternative sentence. The defendant now appeals that denial, asserting that the trial court erred in denying him an alternative sentence. After review, we affirm the trial court's denial of an alternative sentence.

State vs. Christopher Knighton
E2000-00746-CCA-R3-CD
Authoring Judge: Judge William B. Acree
Trial Court Judge: D. Kelly Thomas, Jr.
The defendant was convicted by a jury of aggravated rape, aggravated burglary and theft. In his direct appeal, he presents six issues for review. Three of those issues concern the jury selection process, one issue is an evidentiary issue, and the other issues concern the sufficiency of the indictment and the sufficiency of the evidence. With respect to the jury selection process, we hold: the failure to raise the issue of a "Batson violation" during jury selection constitutes a waiver of that issue; the failure to swear the jury before voir dire is not reversible error unless it is shown that a juror did not truthfully answer the questions as the result of not being sworn; and the trial court did not abuse his discretion in refusing to dismiss two jurors for cause. Additionally, we hold that felony drug crimes are relevant to the issue of credibility under Tenn.R Evid. 609, and that under the facts of this case, the unfair prejudicial effect did not outweigh the probative value of the impeaching convictions. Finally, we hold that the indictment charging the defendant with aggravated rape was legally sufficient, and that the evidence was sufficient to support the verdict of the jury for that offense.

State vs. Ezra Ervin & Andrew McKinney
E1999-00287-CCA-R3-CD
Authoring Judge: Judge William B. Acree
Trial Court Judge: Rebecca J. Stern
The defendants were found guilty of robbing a Krystal restaurant in Chattanooga. In this direct appeal, they allege four errors. They contend the evidence was insufficient to support their convictions; the trial court erred in allowing certain items of clothing found in one of the defendant's vehicle to be admitted into evidence because the clothing could not be positively identified as clothing worn by the people robbing the restaurant; the trial court erred in failing to suppress a statement made by one of the defendants at the time of his arrest because the defendant had not been given Miranda warnings; and the trial court erred in failing to declare a mistrial after the jury reported improper verdicts. We conclude there was no error made by the trial court, and the judgments below are affirmed.

State vs. Robby Cox
E1999-00159-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Phyllis H. Miller
The defendant pled guilty to facilitation of the sale of cocaine under Tennessee Code Annotated section 39-17-417. The defendant was sentenced to a six-year term at the Department of Correction, as a Range I offender, and fined $2000. The defendant requested alternative sentencing but, after a review of the defendant's background by the trial court, the request was denied. The defendant now appeals his sentence contending that the trial court erred by denying him alternative sentencing. After a thorough review of the record, we find that the trial court did not err in denying the defendant alternative sentencing. The defendant's sentence is affirmed.