State of Tennessee v. Philip R. Workman
W2002-00300-CCA-R3-PD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge John P. Colton, Jr.

Petitioner, who received the death penalty at his original trial in 1982, now appeals the trial court's denial of his petition for writ of error coram nobis. On appeal, he contends the trial court should have granted relief based upon the recantation testimony of an alleged eyewitness and a newly discovered post-mortem x-ray of the victim. He further contends the trial court erred in prohibiting the testimony of an original trial juror who would testify that the recantation testimony and the newly discovered evidence would have affected the juror's verdict in the original trial. We conclude that the trial court's order reflects varying and sometimes inappropriate standards of review for coram nobis proceedings; nevertheless, the actual findings by the trial court are sufficient for this court to conclude that the trial court found no reasonable probability that the new evidence would have affected the jury's verdict. We affirm the judgment of the trial court.

James Jones v. Pierce Garrett a/k/a Perry Garrett
E2000-00196-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Kindall T. Lawson

This case arises from a proceeding to terminate parental rights. In that proceeding, the prospective adoptive parents sought a determination that the father of the child in their custody had abandoned him. The trial court terminated the father's parental rights, and the Court of Appeals affirmed the termination. We granted permission to appeal to determine whether the trial court erred in terminating parental rights on the basis of Tennessee Code Annotated section 36-13-113(g)(8)(A)(vi) (1996 & Supp. 1999) (failure to file a petition to establish paternity within thirty days after notice of alleged paternity by the child's mother) when the father had been adjudicated the legal parent of the child at the time of the hearing. We hold that Tennessee Code Annotated section 36-1-113(g)(8)(A)(vi) applies only to cases in which no legal relationship between the parent and child has been established.

Steve Vinson v. United Parcel Service, et al
W2001-02180-WC-R3-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Special Chancellor Kenny W. Armstrong

The dispositive issue in this workers’ compensation action is whether the Special Chancellor erred in finding the appellant, Steve Vinson, to be 100% permanently partially disabled, as a result of a motor vehicle accident that occurred in the scope of his employment. For the reasons set forth herein, we conclude that no such impairment classification exists in the workers’ compensation statutes and cases of this state. After conducting our own de novo review of the record, we hold that the preponderance of the evidence supports the appellant’s claim that he is 100% permanently and
totally disabled and entitled to full workers’ compensation benefits pursuant to Tennessee Code Annotated section 50-6-207(4)(A)(i). Additionally, pursuant to relevant workers’ compensation statutes, we hold that the trial court erred in allowing appellees a credit for temporary total disability benefits that have heretofore been paid to appellant. Accordingly, the judgment of the chancery court is affirmed, as modified herein, and the case remanded for enforcement of the judgment of this Court.

State of Tennessee v. Richard Alan Hawkins
E2002-01095-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stephen M. Bevil

A Hamilton County jury convicted the defendant, Richard Alan Hawkins, of assault, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and twenty-nine days in the county workhouse to be served at 75%. In this appeal, the defendant raises the following issues: (1) whether the state's witnesses violated the rule of sequestration, and (2) whether the defendant's sentence is excessive. We affirm the judgment of the trial court.

Sharon Keisling v. Daniel Keisling
M2002-01833-SC-R10-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Clara W. Byrd

This case is before the Court on an interlocutory appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal to determine whether the trial court erred in transferring child custody from one parent to the other when no petition requesting a change of custody had been filed at the time of the ruling. After carefully reviewing the record, we conclude that the trial court erred in changing custody when the aggrieved party was not provided with notice that custody would be addressed at the hearing. Therefore, we reverse the trial court's award of custody and remand this case to the trial court for proceedings consistent with this opinion.

State of Tennessee v. Nkobi I. Dunn - Concurring
E2001-02120-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt

I write a separate concurring opinion to point out and review certain important facets of the appellate record in this case. The record reflects that the defendant’s guilty pleas were “open”; they did not contain any specified sentences pursuant to Tennessee Rule of Criminal Procedure 11(e)(1)(C). See Tenn. R. Crim. P. 11(e)(1)(C) (providing for an agreement between defendant and state “that a specific sentence is the appropriate disposition of the case”). Had the plea agreement contained specific, properly articulated sentencing provisions pursuant to Rule 11(e)(1)(C), they may have survived the revocation of judicial diversion probation, depending upon the terms as accepted by the court. See State v. Hollie D. Campbell, No. E2000-00373-CCA-R3-CD (Tenn. Crim. App., Knoxville, July 2, 2001) (Witt, J., concurring), perm. app. denied (Tenn. 2001); see also Tenn. Code Ann. § 40-35-203(b) (1997) (dispensing with requirement of sentencing hearing when sentence is agreed upon and accepted by trial court); accord id. § 40-35-205(d). However, the trial court, having apparently received and accepted open pleas made in conjunction with the diversion provisions of Tennessee Code Annotated section 40-35-313(a), was positioned and obliged, after revocation of the judicial diversion probation, to resume the case at the pre-diversion point of departure. This means that, following the revocation, the court’s next task was to conduct a sentencing hearing. Tenn. Code Ann. §§ 40-35-203(a) (1997), -209(a) (Supp. 2002).

State of Tennessee v. Nkobi I. Dunn
E2001-02120-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert E. Cupp

Pursuant to the judicial diversion statute, the Defendant pled guilty to possession of drug paraphernalia, a Class A misdemeanor, and possession for resale of less than .5 grams of a Schedule II controlled substance, a Class C felony. The plea was entered pursuant to Tennessee Code Annotated § 40-35-313, otherwise referred to as judicial diversion, and the trial court placed the Defendant on probation for three years. Approximately six months later, a probation violation warrant was issued against the Defendant, alleging that he had tested positive for marijuana use. An amended probation violation warrant was subsequently filed, alleging that the Defendant had failed to make payments on court costs and had failed to pay child support, the latter being a special condition of probation. The Defendant pled guilty to violating his probation and the trial court revoked the Defendant’s probation. Without conducting a sentencing hearing, the trial court entered judgments sentencing the Defendant to concurrent sentences of eleven months and twenty-nine days to serve in the county jail for the paraphernalia conviction and three years to serve in the Tennessee Department of Correction for the felony drug conviction. After reviewing the record, we reverse the judgments of the trial court and remand for a sentencing hearing.

Barbara Cox vs. Jim Stafford
E2002-01490-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas J. Seeley, Jr.
Barbara Gail Cox ("Plaintiff") purchased a camper from Jim Stafford ("Defendant") in 1997. The title to the camper never was transferred to Plaintiff's name, and, apparently, still remains in Defendant's name. Plaintiff sued Defendant in General Sessions Court and obtained a judgment against Defendant for $10,800. Defendant appealed to Circuit Court. The case proceeded to trial in June of 2001. After a jury was selected and some testimony given, Defendant moved for a continuance because a witness had not been served with a subpoena. The Trial Court granted the continuance conditioned upon Defendant's paying court costs on or before August 31, 2001. Defendant never paid these costs. In October of 2001, the Trial Court dismissed the lawsuit and reinstated the General Sessions Court verdict. Defendant filed a motion to alter or amend the judgment, or for a new trial, under Tenn. R. Civ. P. 59, which the Trial Court denied. Defendant appeals. We affirm.

Consumers Insurance vs. Virgie Smith
E2002-00724-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: G. Richard Johnson
Consumer Insurance USA ("the insurance company") brought a declaratory judgment action against one of its policyholders, Virgie Smith ("the policyholder"), age 80 at the time of trial, and others, seeking a declaration regarding its liability under an automobile insurance policy ("the policy") issued by it to Ms. Smith. The suit was prompted by a two-vehicle accident involving an automobile being driven by the policyholder's great-grandson, Thomas G. Tuten ("the great-grandson"), in which Tuten and another were killed and two other individuals in his vehicle were injured. The trial court held that the vehicle being driven by the great-grandson, a 1989 Chevrolet Camaro ("the Camaro"), was a "newly acquired auto" under the terms of the policy, was reported to the insurance company within 14 days of its purchase, and was, consequently, a covered vehicle under the policy as of the date of its purchase, i.e., June 29, 1999, some 12 days before the accident on July 10, 1999. Because we hold that the evidence preponderates that the policyholder made material misrepresentations to the insurance company that void the policy, we reverse the judgment of the trial court.

State of Tennessee v. Frank Gaitor
E2001-02531-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Robert E. Cupp

Frank Gaitor appeals from his Washington County Criminal Court convictions of Class B felony possession of 0.5 grams or more of cocaine with intent to sell and misdemeanor simple possession of marijuana. He is presently serving an effective 22-year sentence as a Persistent Offender for these crimes. In this direct appeal, he raises numerous challenges to the firmity of the conviction proceedings. Upon examination, however, none of these claims warrant relief. Thus, we affirm.

State of Tennessee v. Otis Lee Price
E2002-00510-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Ben W. Hooper, II

A Cocke County jury convicted the Defendant of attempted burglary, and the trial court sentenced the Defendant to three years incarceration. The Defendant now appeals, arguing that insufficient evidence was presented at trial to convict him of attempted burglary. Finding no error, we affirm the judgment of the trial court.

Andy R. Gann v. Flagstar Enterprises, Inc.
E2002-00272-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Rex Henry Ogle, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The appellant claims that the trial court erred in granting summary judgment that his claim for worker's compensation benefits was not timely filed as provided in T.C.A. _ 5-6-23. We affirm.

Sylvain Kinnon v. Wal-Mart Store, Inc.,
W2001-02428-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr, Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists the evidence preponderates against the trial court's findings as to causation, permanency and extent of permanent disability. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR, SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, SP. J., joined. Jay L. Johnson, Jackson, Tennessee, for the appellant, Wal-Mart Stores, Inc. Christopher L. Taylor, Memphis, Tennessee, for the appellee, Sylvain Kinnon MEMORANDUM OPINION The employee or claimant, Kinnon, initiated this civil action to recover workers' compensation benefits, including permanent disability benefits, for a work related injury. The employer, Wal-Mart, denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 16 percent to the body as a whole. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Billie Jo Lenear v. Rehab Care Group, Inc.
E2001-02935-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Billy Joe White, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The appellant claims that the trial court erred in finding that she was not an employee and, thus, not entitled to worker's compensation benefits. We affirm.

State of Tennessee v. Eric T. Davis
M2002-00035-CCA-MR3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

Eric T. Davis appeals the Montgomery County Circuit Court's revocation of his probationary sentences and order that he serve the sentences as originally imposed in the Department of Correction. He claims that the lower court erred in finding that he committed a criminal offense based upon the uncorroborated testimony of a law enforcement informant. Because we are unpersuaded of error, we affirm.

State of Tennessee v. Kynaston Scott a.k.a Kynaston L. Olawumi
M2001-00707-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The appellant, Kynaston Scott a.k.a. Kynaston L. Olawumi, was convicted by a jury in the Davidson County Criminal Court of first degree murder and felony murder. The trial court merged the convictions and sentenced the appellant to life imprisonment in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence was not sufficient to support his convictions, the trial court erred by instructing the jury on flight, and the trial court erred in admitting an inflammatory photograph. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Jerome D. Manning
M2001-03128-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jane W. Wheatcraft

Jerome D. Manning appeals a certified question of law regarding a police officer's stop of him which resulted in his arrest for illegal possession of narcotics. Because we agree with the trial court that reasonable suspicion supported by specific and articulable facts existed for the stop and that the scope and duration of the detention were not unreasonable, we affirm the judgment of the trial court.

Glenn D. Gold v. State of Tennessee
M2001-02759-CCA-R3-CO
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

Glenn D. Gold appeals from the Montgomery County Circuit Court's dismissal of his pro se petition in which he seeks post-conviction, habeas corpus, and coram nobis relief. Because his attempts to receive post-conviction and coram nobis relief are untimely and his attempt for habeas corpus relief does not state a claim cognizable in that type of action, we affirm the lower court.

John H. Williams, Jr. v. Kevin Myers, Warden
M2002-00855-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jim T. Hamilton

The petitioner was convicted in 1988 of felony murder and is currently serving a life sentence. After exhausting his direct and post-conviction appeals, the petitioner filed a petition for a writ of habeas corpus, which the trial court subsequently denied. The petitioner now appeals the denial of his petition, arguing that the convicting court lacked subject matter jurisdiction due to a defective indictment and that the statute governing first degree murder at the time of his trial was unconstitutionally vague. He contends that for these reasons, his conviction is illegal. Having reviewed the petitioner's claims, we conclude that the original indictment upon which the petitioner's conviction was based was not defective and thus that the convicting court was not without subject matter jurisdiction. We further conclude that the statute governing the petitioner's conviction is not unconstitutionally vague. We therefore affirm the judgment of the trial court in denying the petition for a writ of habeas corpus.

State of Tennessee v. Theresa Hallsford
M2002-00959-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jim T. Hamilton

The State appeals from the order of the Maury County Circuit Court reversing the district attorney general's decision to deny the Defendant pretrial diversion for the charge of arson. We reverse the judgment of the trial court.

Michael Thomason v. Kevin Myers, Warden
M2002-01346-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jim T. Hamilton

The defendant, Michael Thomason, petitioned for a writ of habeas corpus, which the trial court summarily denied. The defendant now appeals as of right. We affirm the judgment of the trial court.

State of Tennessee v. Deandre M. Broaden
W2001-03100-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

Defendant, Deandre M. Broaden, was indicted by the Shelby County Grand Jury for possession of marijuana and for possession of cocaine with intent to sell. Defendant pled guilty to both offenses, and the trial court sentenced him to four years probated under the Community Corrections Act of 1985. Defendant violated the conditions of his sentence, and the trial court resentenced him to five years confinement, crediting him four months for time served in community corrections until the date of his first violation. On appeal, Defendant argues that he should have received full credit for the amount of time served up until the filing of the petition seeking revocation of his community corrections sentence. We agree. We affirm the judgment of the trial court with respect to the revocation of Defendant's community corrections sentence and the new sentence of five years, but reverse the trial court's order insofar as it provides only four months of credit. We remand this case for entry of an amended judgment consistent with this opinion.

Jerry Burke v. State of Tennessee
W2001-01700-CCA-MR3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John P. Colton, Jr.

The petitioner, Jerry Burke, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that his trial attorney was ineffective for (1) failing to request a mental evaluation; (2) failing to investigate his case; and (3) failing to subpoena witnesses and cross-examine witnesses adequately. We affirm the trial court's denial of the petition.

State of Tennessee v. William Lee Clifton
W2002-00661-CCA-R9-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge C. Creed McGinley

In this interlocutory appeal, the defendant seeks review of the state's denial of pretrial diversion for the offense of sexual battery. We conclude that the prosecutor failed to consider and weigh all relevant factors and, under the circumstances of this case, improperly relied upon the defendant's refusal to take responsibility for his actions. Accordingly, we reverse the order of the trial court and remand this matter to the district attorney general for further consideration of the defendant's request for pretrial diversion in accordance with this opinion.

Kong C. Bounnam v. State of Tennessee
W2001-02603-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Bernie Weinman

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief from his convictions in the Shelby County Criminal Court for three counts of felony murder and four counts of robbery with a deadly weapon. On appeal, he contends that: (1) the trial court committed plain error by failing to instruct the jury on the lesser-included offenses of facilitation, reckless homicide, and criminally negligent homicide; and (2) his trial counsel provided ineffective assistance of counsel at trial and on direct appeal. We affirm the post-conviction court's denial of the petition for post-conviction relief.