Mohammad Rafieetary v. Maryam Khoshroo Rafieetary
W2003-00121-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: John R. Mccarroll, Jr.

State of Tennessee v. Eslie L. Morgan
W2003-00172-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge W. Otis Higgs, Jr.

A Shelby County jury convicted the defendant, Eslie L. Morgan, of attempted voluntary manslaughter. The trial court sentenced him to eight years in confinement as a Range II multiple offender. On appeal, the defendant contends: (1) the evidence is insufficient to support his conviction; and (2) the trial court erred in permitting the prosecutor to ask the victim an improper question during redirect examination. Upon review of the record and the applicable law, we affirm the judgment of the trial court.

State of Tennessee v. John Johnson
W2002-01333-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

The jury convicted the defendant of especially aggravated robbery and theft over $10,000. The trial court imposed consecutive twenty-five-year and ten-year sentences, respectively. On appeal, the defendant argues: (1) there was insufficient evidence to support his conviction for especially aggravated robbery; (2) the trial court erred in not allowing him to move from the defense table to view evidence on a monitor; and (3) the trial court erred in sentencing him. We affirm the judgments of the trial court.

W2003-00461-COA-R3-CV
W2003-00461-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Karen R. Williams

CH-01-1611-3
CH-01-1611-3
Trial Court Judge: D. J. Alissandratos

Larry Neeley v. Southern Tank Leasing Company,
M2002-01526-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Carol A. Soloman, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer appeals the trial court's award of 75% vocational disability for a head injury resulting in vertigo, tinnitus, and hearing loss and 25% vocational disability for bilateral carpal tunnel syndrome caused by employee's work activities. The employer asserts, among other issues, that the evidence preponderates against a finding that: 1) the head injury symptoms were compensable, and 2) the employee's wrist and hand symptoms were work related. The employer also contends that it was deprived of a fair trial as a result of the trial court's apparent bias against it or its counsel. The judgment of the trial court is affirmed as modified. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JAMES L. WEATHERFORD, SR.J., in which FRANK F. DROWOTA, III, C.J., and JOE C. LOSER, JR., SP.J., joined. Dale A. Tipps, Nashville, Tennessee, for the appellants, Southern Tank Leasing Co. and HCC Administrators, Inc. Joseph K. Dughman, Nashville, Tennessee, for the appellee, Larry Neeley. MEMORANDUM OPINION Mr Larry Neeley was 49 years old at the time of trial and had an 11th grade education. He earned his G.E.D. while in the Army. He is a Vietnam veteran and a retired Army National Guardsman. He had worked for Southern Tank Leasing (or its predecessors) for over 21 years as a welder and mechanic at the time of his head injury. Southern Tank repairs, leases and inspects over-the-road type tankers. His job duties included climbing ladders to work on tankers and using hand held vibrating tools and air-operated jacks. THE HEAD INJURY On March 28, 2, while working at Southern Tank, Mr. Neeley moved a 12 foot ladder that had a 4 pound hammer resting at the top of it. The hammer fell and struck Mr. Neeley on the head. He began to bleed profusely from the head wound, became dizzy and weak, and struggled to maintain consciousness. A co-worker took him to CentraCare from which he was sent to the emergency room for treatment for head trauma and a deep head laceration. Mr. Neeley told the emergency room physician that he had extreme dizziness. He sustained a 5 inch scar on the top of his head resulting from the injury. On April 1, 2, Mr. Neeley sought follow-up treatment for dizziness from Dr. Justice at CentraCare who prescribed Antivert for nausea and dizziness and placed him on work restrictions of no lifting more than 1 pounds and no climbing ladders. Mr. Neeley was off work for a couple of days. He returned to CentraCare for a follow-up visit on April 3, 2, complaining of dizziness that "comes and goes." He was released to return to work with restrictions of no climbing and no lifting over 3 pounds. The medical records from these visits also list tinnitus in the diagnosis section. On April 3, 2, Mr. Neeley returned to work at Southern Tank. Mr. Ricky DuRard, general manager at Southern Tank, stated that Mr. Neeley was a good employee who performed his job well. Mr. DuRard admitted that even though Mr. Neeley could not do his job within his medical restrictions, he went back to full duty even though CentraCare had not given him a full release. Mr. DuRard stated that from April 3, 2 until August 2, 2, Mr. Neeley did not miss work because of the head injury or seek further medical treatment. According to Mr. Neeley, he continued to suffer periodic dizziness and headaches. Sometime in April or May of 2, he began to develop persistent ringing in his ears.1 He continued to do his job duties at Southern Tank, including climbing ladders, but his symptoms gradually worsened. He had to take frequent breaks to sit down and try and regain his equilibrium: Well, I knew I had to work, ... the dizziness _ was with me all day long, the headaches , the dizziness. I would just try to work, and when I got dizzy, I would try to sit down at different places. I'd sit down on a crate ... or stool .... Then when it passes, you know, get up and try something else or do something else. 1 He had had no previous history of dizziness prior to his work related head injury. He did not have a previous history of tinnitus other than the time he suffered from a temporary bout with the flu in 1997. -2-

Jose Santiago v. The Hartford,
M2002-03036-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Larry B. Stanley, Chancellor
In this appeal, the employer, Powermatic, and its insurer insist the trial court erred (1) in finding that the employee's injury did not progress during his tenure at his last place of employment and (2) in determining the extent of the employee's vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.

Traci L. Nolan v. Covenant Health
E2003-00288-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Frank V. Williams, III, Chancellor
The trial court found the plaintiff did not prove that she contracted Hepatitis C while in the course and scope of her employment. We affirm the judgment of the trial court.

W2002-02676-COA-R3-CV
W2002-02676-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Walter L. Evans

Jeanne L. Schuett v. Egon Horst Schuett, Jr.
W2003-00337-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts

State of Tennessee v. Thomas Anthony Talley
W2002-02620-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Clayburn L. Peeples

The defendant was convicted of driving under the influence, fourth offense, and violation of the implied consent law. He contends on appeal that (1) there was no reasonable suspicion for the stop and (2) the evidence was insufficient because the officer used a non-standardized test. Crossing the yellow line on several occasions and almost hitting a trooper provided sufficient probable cause for the stop, and the evidence was sufficient to support the conviction. We affirm the judgments of the trial court.

Maria Louise Bernhard Kollasch Krahn v. Todd Michael
W2002-02931-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George H. Brown

CH-00-0939-2
CH-00-0939-2
Trial Court Judge: Floyd Peete, Jr.

CH-02-1470-3
CH-02-1470-3
Trial Court Judge: D. J. Alissandratos

State of Tennessee v. Tim Holt
E2002-02471-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James E. Beckner

The defendant, Tim Holt, appeals as of right from his conviction by a jury in the Hancock County Criminal Court for first degree, premeditated murder. The defendant received a sentence of life imprisonment with the possibility of parole. He contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erroneously allowed the defendant's wife to testify, violating his privilege regarding marital communications, (3) the trial court erroneously allowed prejudicial exhibits to be entered into evidence, and (4) the trial court erroneously instructed the jury on second degree murder. We affirm the trial court.

Tavares Hill v. State of Tennessee
M2002-02997-CCA-R3-CO
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella L. Hargrove

The appellant, Tavares Hill, appeals the denial of his petition for writ of habeas corpus, which the trial court dismissed as an untimely petition for post-conviction relief. He argues that due process tolled the statute of limitations for post-conviction relief. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Christie Dianne Webb
M2002-02461-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. O. Bond

The defendant pled guilty to reckless aggravated assault of her three-month-old son and was sentenced to four years in the Tennessee Department of Correction. The trial court incorrectly applied some of the enhancement factors. However, the factors that were correctly applied substantially outweighed any incorrectly applied factors. There were no mitigating factors. The record does not indicate that the sentence was excessive. In light of the defendant's extensive criminal history, the trial court did not err in denying alternative sentencing.

Dennis Gilliland v. State of Tennessee
M2002-01865-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Robert E. Burch

The petitioner, Dennis Gilliland, appeals the Dickson County Circuit Court's denial of his petition for post-conviction relief from his 1996 felony murder conviction. He contends that the trial court erred in failing to instruct the jury on the issue of alibi. He also raises ineffective assistance of counsel because his attorney did not request an alibi instruction, requested the dismissal of the premeditated murder count instead of the felony murder count after the jury returned guilty verdicts on both counts, and did not raise relevant arguments about the jury seeing the petitioner in handcuffs. Last, the petitioner claims that he was denied the right to a fair trial by an impartial jury because the jury was allowed to hear evidence that he had been involved in two other, recent shooting deaths. We affirm the denial of the post-conviction petition.

State of Tennessee v. Terrance G. Motley
W2002-02079-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph B. Dailey

The Appellant, Terrance G. Motley, was convicted by a Shelby County jury of criminal attempt to commit first degree murder and being a felon in possession of a firearm. He was sentenced to an effective sentence of forty-four years in the Department of Correction. At trial, Motley waived his right to be represented by counsel and proceeded pro se. On appeal, Motley raises three issues for our review: (1) whether the trial court denied him his constitutional right to the assistance of counsel by failing to ascertain if his waiver was knowingly and intelligently given; (2) whether the trial court erred in failing to instruct the jury on the lesser included offense of criminal attempt to commit voluntary manslaughter; and (3) whether the evidence was sufficient to support the jury’s verdict. After a review of the record, we conclude that issues (1) and (3) are without merit. With regard to issue (2), we conclude that failure to give an instruction on the lesser included offense of attempted voluntary manslaughter was error, but harmless. Accordingly, the judgments of conviction are
affirmed.

State of Tennessee v. Terrance G. Motley - Concurring
W2002-02079-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Joseph B. Dailey

I concur in the result reached and most of the reasoning in the majority opinion. However, I do not believe that we should rely on T.C.A. § 40-18-110 to bar relief in this case relative to a jury instruction for the lesser included offense of attempted voluntary manslaughter. The state has not raised the statute to bar the defendant’s jury instruction claim, and, obviously, the defendant has not had an opportunity to address the validity of the statute. In this respect, I believe that legitimate questions exist about the constitutionality of, at least, part of T.C.A. § 40-18-110 but that this case is not the one to answer those questions. The fact that no harm could flow to the defendant under the circumstances in this case is sufficient, by itself, to warrant affirming the judgments of conviction. Therefore, I concur in the majority opinion.

Devon Crawford v. State of Tennessee
W2003-00016-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge John P. Colton, Jr.

On August 19, 1999, the petitioner, Devon M. Crawford, filed a pro se petition for post-conviction relief from his convictions of aggravated robbery, especially aggravated robbery and first degree murder. Counsel was appointed and an evidentiary hearing was held. In this appeal, petitioner argues that the trial court erred in dismissing his petition for post-conviction relief. After a review of the record, we reverse and remand this case to the trial court for a decision on the merits of the post-conviction petition as it relates to indictments 97-02686 and 97-03493.

State of Tennessee v. Calvin Lyons, Sr.
W2003-00917-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Calvin Lyons, Sr., appeals as of right from the judgment of the trial court, which revoked the Defendant’s probation and reinstated his original sentence. Finding no error, we affirm the judgment of the trial court.

Antonio Bonds v. State of Tennessee
W2003-00260-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Arthur T. Bennett

The petitioner, Antonio Bonds, appeals the dismissal of his petition for post-conviction relief based upon its filing beyond the statute of limitations. He argues his petition was timely filed. We hold that for purposes of the post-conviction relief statute of limitations, the final action of the Tennessee Supreme Court is the date of its denial of an application for permission to appeal, not the date it denied the petition to rehear. Because the instant petition was filed more than one year from the date of denial of the application for permission to appeal, we affirm the judgment of the post-conviction court.

Antonio Bonds v. State of Tennessee - Dissenting
W2003-00260-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Arthur T. Bennett

I fully agree with my colleagues that the Tennessee Rules of Appellate Procedure do not recognize a petition to rehear the denial by our supreme court of an application for permission to appeal. In several instances, our supreme court had observed that there is no authority for such a petition. See, e.g., John Wayne Slate, Jr. v. State, No. 03C01-9201-CR-00014 (Tenn., at Knoxville, Feb. 6, 1995) (stating that “a petition to rehear the denial of a Rule 11 application for permission to appeal is unknown to the Tennessee Rules of Appellate Procedure”). In this case, however, as in some others, our supreme court “denied” the petition, thereby acting on the request. Tennessee Code Annotated section 40-30-202(a) requires a post-conviction petition within one year of “the final action of the highest state appellate court to which an appeal is taken.” In Lease v. Tipton, 722 S.W.2d 379 (Tenn. 1986), our high court issued an opinion resulting from a petition to rehear its denial of an application for permission to appeal. Further, the Advisory Commission Comments to Tennessee Rule of Appellate Procedure 39 provide that the court “generally disfavors petitions to rehear following denials of applications for permission to appeal.” (Emphasis added.) The Comments do not indicate that such petitions are prohibited.

Billy B. Brown v. State of Tennessee
W2002-00986-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Bernie Weinman

The petitioner appeals the denial of post-conviction relief. He argues the post-conviction court erred in determining he received the effective assistance of counsel at his trial. We affirm the judgment of the post-conviction court.