Following a jury trial, the defendant, Linnell Richmond, was found guilty by a Knox County jury of aggravated robbery, attempted aggravated robbery and two counts of attempted first degree premeditated murder. The trial court sentenced the defendant to an effective sentence of twenty-two years for his convictions, to be served consecutively to a federal sentence arising out of the same criminal episode. The Court of Criminal Appeals reversed the judgment of the trial court upon finding that the trial court erred in failing to instruct the jury on: (1) the "natural and probable consequence rule" in relation to the charges of attempted first degree murder; and (2) robbery as a lesser-included offense of aggravated robbery, and attempted robbery as a lesser-included offense of attempted aggravated robbery. The State appealed to this Court, and we granted the application. We hold that: (1) it was harmless error by the trial court to fail to instruct the jury on the natural and probable consequences rule in relation to the charge of attempted first degree murder; and (2) it was likewise harmless error by the trial court in failing to instruct the jury regarding robbery as a lesser included offense of aggravated robbery, and attempted robbery as a lesser-included offense of attempted aggravated robbery. Therefore, the judgment of the Court of Criminal Appeals is reversed, and the defendant's convictions are reinstated. This case is remanded to the trial court for enforcement of the judgment.
Knox
Supreme Court
State of Tennessee v. Allen Prentice Blye E2001-01375-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Jerry Beck
The defendant, Allen Prentice Blye, was charged under two separate indictments with a total of fourteen offenses. The indictments were consolidated for trial and the defendant was convicted of all five counts contained in indictment number S41,733 and four counts contained in indictment number S41,774. The defendant was found not guilty on the remaining five charges contained in indictment number S41,774. The trial court imposed the following sentences:
Indictment S41,733
Count 1 Theft over $10,000.00 (S. Loflin) 15 years at 45%
Count 2 Felony evading arrest 6 years at 60% (consecutive)
Count 3 Reckless endangerment 6 years at 60% (consecutive)
Count 4 Driving on a revoked license 6 months (concurrent)
Count 5 Leaving the scene of an accident 30 days (concurrent)
Indictment S41,774
Count 2 Theft over $500.00 (Gafford) 6 years at 60% (consecutive)
Count 4 Theft under $500.00 (S. Loflin) 11 months, 29 days (concurrent)
Count 6 Theft over $500.00 (Carroll) 6 years at 60% (consecutive)
Count 9 Theft over $1,000.00 (Mann) 12 years at 60% (consecutive)
The effective sentence under indictment S41,733 is 27 years and the effective sentence under indictment S41,774 is 24 years. The trial court ordered the sentences under each indictment to be served consecutively, for a total effective sentence of 51 years. In this appeal, the defendant presents the following issues: (1) whether the trial court erred by refusing to sever certain of the offenses; (2) whether the evidence was sufficient to support the conviction for theft over $1,000; and (3) whether the sentence was excessive. Because the defendant was entitled to separate trials on some of the counts contained in indictment S41,774, and the error cannot be classified as harmless, the four convictions under that indictment must be reversed and remanded. The convictions and accompanying sentences under indictment S41,733 are affirmed.
This is a direct appeal in a Board of Professional Responsibility case. A hearing committee found that the petitioner violated four disciplinary rules arising out of client representation, imposed a one-year suspension from the practice of law, and ordered the petitioner to complete courses in ethics and civil procedure at an accredited law school before applying for reinstatement. The chancery court upheld the hearing committee's findings and conclusions with respect to the violations, but reduced the suspension to 60 days and vacated the requirement for law school education. After our review of the record and applicable authority, we conclude that the chancery court properly affirmed the hearing committee's findings with regard to the petitioner's violations of the disciplinary rules, but we modify the length of the suspension to four months and the condition for reinstatement by requiring the petitioner to complete six hours of continuing legal education in ethics and twelve hours of continuing legal education in courses related to civil trial practice or civil litigation, in addition to the three hours of ethics and twelve hours of general credit required annually of attorneys in this State. The judgment is, therefore, affirmed as modified.
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 employee insists the commission erred in dismissing his claim for failure to state a claim for which relief can be granted. As discussed below, the panel has concluded the judgment should be vacated and the cause remanded for further proceedings.
The defendant, Lakisha S. Thomas, was convicted by a Davidson County Criminal Court jury of aggravated assault, a Class C felony, and reckless aggravated assault, a Class D felony. The trial court sentenced her as a Range I, standard offender to concurrent sentences of five years for the aggravated assault conviction and three years for the reckless aggravated assault conviction. The defendant appeals, claiming that the evidence is insufficient to support her convictions and that the trial court committed various sentencing errors. We affirm the judgments of the trial court.
The defendant, Woodson Carter Criner, was convicted in the Lauderdale County Circuit Court of driving under the influence (DUI) and received a sentence of eleven months, twenty-nine days to be suspended after serving one hundred twenty days in jail and a fine of one thousand one hundred dollars. The state appeals, claiming that the defendant's DUI sentence is illegal because the defendant was convicted of felony DUI. Although we hold that the trial court could sentence the defendant to less than one year for a Class E felony, we remand the case to the trial court to clarify whether the defendant was convicted of felony or misdemeanor DUI, review the defendant's sentence, and reenter the judgment.
Lauderdale
Court of Criminal Appeals
In the Matter of: T.K.C., T.J.C., C.B.W., T.S.W., T.S.C. W2001-03017-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Harold W. Horne
This is a termination of parental rights case. The mother, Tonza Williams, appeals the order of the juvenile court terminating parental rights to her five children. For the reasons hereinafter stated, we affirm the juvenile court order.
The petitioner, Reiko Nolen, appeals as of right the Dyer County Circuit Court's denial of his petition for acquittal and removal of his guilty plea. He pled guilty to possession of over .5 grams of cocaine with intent to sell, a Class B felony, and was sentenced to six months in the county jail and eight years on probation. The petitioner contends that (1) the state breached the plea agreement by not allowing him to serve a subsequent twenty-year sentence before his probationary sentence in this case and (2) his sentence is illegal because the trial court lacked jurisdiction to sentence him to a term of probation to be followed by a term of incarceration. We hold that the petitioner's sentence is legal and that he has no basis for an appeal. Therefore, we are constrained to dismiss the appeal because of the lack of jurisdiction.
Dyer
Court of Criminal Appeals
In the matter of S.M.S. W2001-02999-COA-R3-JV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Harold W. Horne
This appeal arises from a child custody proceeding. The juvenile court granted custody to the mother. This appeal ensued. For the following reasons, we remand for further findings of fact.
Shelby
Court of Appeals
Jerry Hunter vs. MTD Products W2002-00005-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Clayburn L. Peeples
Plaintiff sued Defendant alleging a conspiracy. The Defendant filed a motion for summary judgment which the trial court granted. Plaintiff appeals and we affirm.
Haywood
Court of Appeals
State of Tennessee v. Rickie Reed W2001-02076-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.
The appellant, Rickie Reed, was convicted by a jury in the Shelby County Criminal Court of one count of second degree murder, one count of attempted second degree murder, and one count of reckless aggravated assault. The trial court merged the reckless aggravated assault conviction into the attempted second degree murder conviction. Following a sentencing hearing, the trial court imposed a sentence of twenty-three years incarceration in the Tennessee Department of Correction for the second degree murder conviction and a sentence of twelve years incarceration for the attempted second degree murder conviction, with the sentences to be served consecutively. In this appeal of right, the appellant alleges that the evidence was not sufficient to support his convictions of second degree murder and attempted second degree murder. We affirm the judgments of the trial court.
Shelby
Court of Criminal Appeals
James Clark vs. Jim Rose W2002-01245-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Martha B. Brasfield
This case involves a prisoner's allegations that correctional personnel failed to follow internal policies and procedures concerning administrative segregation of prisoners, thus denying him his due process rights. As we are unable to determine from the record if Appellant's continued presence in administrative segregation is actually non-punitive in nature, we reverse the trial court's dismissal of Appellant's petition.
Lauderdale
Court of Appeals
W2002-01754-COA-R3-CV W2002-01754-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George R. Ellis
Crockett
Court of Appeals
State ex rel. Quinn Johnson vs. Mike Holm W2002-00965-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Jon Kerry Blackwood
This is an appeal of a denial of a petition for a common law writ of certiorari. The petition was filed by a prisoner seeking review of two decisions against him by the prison disciplinary board. Because the petition was filed more than sixty days after the first decision, we have no jurisdiction to address the issues presented regarding that decision. The petition was timely filed in regards to the second decision against Appellant, but we find no merit in Appellant's contentions and affirm the ruling of the trial court.
Petitioner was denied habeas corpus relief by the trial court. He now appeals, claiming the trial court erred in failing to hold an evidentiary hearing and in failing to appoint counsel to assist him with his habeas corpus claim. We affirm the denial of habeas corpus relief.
The Defendant pled guilty to aggravated burglary and assault. The Defendant received a sentence of six years for the aggravated burglary conviction and a sentence of eleven months and twenty-nine days for the assault conviction. The trial court ordered that the six-year sentence for aggravated burglary be served concurrently with the sentence for assault, but consecutively to a sentence for evading arrest from another case. The Defendant's effective sentence in this case is six years in the Tennessee Department of Correction. On appeal, the Defendant challenges the length of his sentence for aggravated burglary and the manner of service of his sentences. Although the trial court misapplied certain enhancement factors, we conclude that the sentences imposed are appropriate and affirm the judgments of the trial court.
Hamilton
Court of Criminal Appeals
Nancy Martin vs. Charles Martin E2001-01569-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Telford E. Forgerty, Jr.
Charles Howard Martin appeals a judgment of the Trial Court which awarded Nancy Barnard Martin a divorce and certain other relief. We affirm.
Sevier
Court of Appeals
Hickman vs. Lynn Brown E2002-02020-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas J. Seeley, Jr.
Plaintiff charged a Trial Judge with violating Plaintiff's civil rights by assessing him with court costs in another case. The Trial Judge dismissed the action. We Affirm.
Johnson
Court of Appeals
Kevin Mcnamara v. Marshall Monroe E2002-00407-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
Knox
Court of Appeals
Hansen vs. Steven W. Bultman, et al E2001-02664-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
In this jury case, the trial court remitted to $200,000 the jury's award of $350,000 to Albert Joseph Hansen ("Father"). The trial court's action was based upon its determination that Father had only sued for $200,000. Father appeals, contending that the trial court erred in remitting the jury's award. We affirm.
Knox
Court of Appeals
Eddie Williams vs. Dept of Corrections E2002-00306-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
In this appeal from the Chancery Court for Morgan County the Petitioner/Appellant, Eddie Williams, Jr., contends that the Trial Court erred in dismissing his petition for writ of certiorari for failure to appear and prosecute. We vacate the judgment of the Trial Court and remand.
Morgan
Court of Appeals
Tammy Bowman v. Fleetwood Homes of Tennessee Inc., M2001-02188-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: J.O. Bond, 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 facts and conclusions of law. The employer appeals the judgment of the trial court awarding the employee 5% permanent partial disability for a right shoulder injury, even though the parties had stipulated prior to trial that this injury was not at issue. The employer further appeals the trial court's ruling combining a 2% vocational disability rating to the arm, which is a scheduled member, with the 5% anatomical impairment rating for the shoulder, which is to the body as a whole, then multiplying both by the 2.5 maximum pursuant to Tennessee Code Annotated _ 5-6-241(a)(1). We hold that the trial court erred in awarding permanent partial disability for the right shoulder because both parties had stipulated that it was not at issue and because no expert testimony supported a finding of permanency. Accordingly, we reverse the judgment of the trial court awarding workers' compensation benefits based upon an injury to the employee's shoulder. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Reversed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP.J., joined. John R. Lewis, Nashville, Tennessee, for the appellants, Fleetwood Homes of Tennessee Inc., and Kemper Insurance Companies. B. Keith Williams, Lebanon, Tennessee, for the appellee, Tammy Bowman. MEMORANDUM OPINION At the time of trial, Ms. Tammy Bowman, the employee-appellee, was a 34 year old divorced mother of two children. She has an 11th grade education and her primary work experience has been in manual labor. She has worked for Fleetwood Homes of Tennessee Inc. ("Fleetwood"), the employer-appellant, since 1992. Ms. Bowman first noticed a problem with her right shoulder and arm in March of 2, while working for Fleetwood. The majority of Ms. Bowman's work day was spent continuously gripping a caulking gun with her right hand, mopping walls, and cleaning overhead mirrors with her right arm in an overhead position. On May 11, 2, Ms. Bowman was referred to Dr. Jeffrey E. Hazlewood, whose examination revealed some tenderness in her anterior shoulder region. However, he found that Ms. Bowman had normal range of motion in her shoulder with no pain, no shoulder impingement, and no swelling or redness. Dr. Hazlewood concluded that the neurological exam "showed no abnormalities with normal strength, sensation, and reflexes." Dr. Hazlewood's ultimate diagnosis was right wrist and shoulder tendonitis for which he recommended physical therapy. After further complaints of pain in her shoulder, Dr. Hazlewood performed an EMG nerve test on June 14, 2, that returned normal results. Dr. Hazlewood testified in deposition that Ms. Bowman did not have any permanent impairment pursuant to the AMA Guides. Therefore, he did not assign any anatomical ratings for the shoulder or wrist. Dr. Hazlewood testified that Ms. Bowman had legitimate pain in her shoulder, but that she was able to perform at work and home with no restrictions. On November 14, 2, Ms. Bowman saw Dr. Francisca Lytle for an independent medical evaluation at the request of Ms. Bowman's counsel. Dr. Lytle assigned a 1% impairment rating to the right extremity based on decreased grip strength attributed to wrist tendonitis. Dr. Lytle attributed this injury to Ms. Bowman's repetitive use of a caulking gun while working at Fleetwood. Dr. Lytle testified that she would have recommended permanent restrictions in regards to any activity that required a gripping motion. In regard to the shoulder, Dr. Lytle performed several tests that revealed mild shoulder tendonitis that she believed Ms. Bowman incurred while working. Dr. Lytle found soreness in the shoulder, but she also found a normal range of motion and no evidence of instability. She also testified that she would recommend not working in an overhead position because that would aggravate the shoulder tendonitis. Based on her evaluation, Dr. Lytle did not believe that the injury to Ms. Bowman's shoulder was permanent. She also testified that the overhead restrictions "may actually not" be permanent. She also believed that a change in Ms. Bowman's sleeping posture would alleviate the shoulder pain. -2-
Macon
Workers Compensation Panel
Express Personnel Services, Inc. v. Donna M. Belcher M2001-02033-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol L. Mccoy, 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)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends that the trial court improperly considered the claimant's criminal record, her responsibility for five children, her lack of reliable transportation, and her financial need in determining the claimant's vocational disability rating. As discussed below, the panel has concluded that the judgment of the trial court 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 FRANK F. DROWOTA, III, C. J., and TOM E. GRAY, SP. J., joined. Fred C. Statum, Nashville, Tennessee, for the appellant, Express Personnel Services, Inc. Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Donna M. Belcher MEMORANDUM OPINION The employee or claimant, Belcher, is thirty-seven years old and a high school graduate. Her work experience has primarily been in production, but she has also been a cook and waitress. She has a felony drug-trafficking conviction and two assault convictions. The claimant began working for the appellant, Express Personnel Services, Inc., in March of 2 at Dominos Pizza National Distribution Center. In June of the same year, she suffered a hyper extension injury to both wrists when she attempted to catch a falling stack of twenty to thirty trays. The parties stipulated that the injury occurred in the course of the claimant's employment and that notice of the injury was properly given to the employer. Once she began undergoing treatment for her injury, she did not return to her job at Dominos. The claimant underwent physical therapy and a right carpal tunnel release. After the surgical release was performed, the claimant developed clenched-fist syndrome in which she could not open her right hand. With physical therapy, the condition of the right hand improved, but the claimant testified that she still experiences pain and numbness in both hands. In April 21, her treating physician released her at maximum medical improvement, assessing her anatomic impairment at five percent to both upper extremities. The claimant's physician restricted her from repetitive use or heavy gripping of the right hand, and from more than occasional bilateral heavy gripping. Additionally, he recommended that she avoid repetitive work or other activity that causes pain in her hands. At trial, the claimant and two corroborating witnesses testified the claimant suffered from pain in her hands and was unable to perform manual tasks she had been able to perform before her injury. The trial court awarded permanent partial disability benefits based on 6 percent to both arms. The chancellor specifically found that the claimant would be unable to obtain employment that involved security or cash-handling because of her prior felony conviction. This is a case of first impression in Tennessee. It raises the question of whether an employer's liability should be reduced because a claimant's criminal history affects the availability of employment to the claimant. Stated in the reverse, the question is whether a claimant's criminal record is a pertinent factor that should be weighed by the court when determining the extent of a claimant's vocational disability. In determining the extent of an injured worker's vocational disability, a trial court is to weigh the anatomic impairment rating, lay and expert testimony, and pertinent factors such as "the employee's skills and training, education, age, local job opportunities and his capacity to work at the kinds of employment available in his disabled condition." Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458-59 (Tenn. 1988) (quoting Robertson v. Loretto Casket Co., 722 S.W.2d 38, 384 (Tenn. 1986). The appellant claims that the permanent partial disability award is excessive because the trial court improperly considered factors such as the claimant's criminal record, her responsibility for five children, her lack of reliable transportation, and her financial need. While the appellant is correct in asserting that a claimant's financial need and domestic responsibilities are not appropriate factors to be considered in determining vocational disability, the trial court did not base its decision thereon. A careful reading of the trial court's order reveals that the court actually based the claimant's sixty percent permanent partial disability upon only the following factors: the claimant's uncontroverted medical impairment rating, her education, her employment history, her testimony regarding the tasks she can no longer perform as a result of her injury, and the impact her criminal -2-
The appellants, Kenneth P. Bondurant and Hugh Peter Bondurant, appeal from the dismissal of their post-conviction petitions following a hearing on the question of whether the petitions were filed within the time prescribed under Tennessee Code Annotated section 40-30-202(a). The trial court found from the evidence presented that the petitions were filed more than one year from the final action of the highest appellate court to which an appeal was taken and that the petitions were time barred. As a result the petitions were dismissed.
In this appeal the appellants present two issues for our consideration. First, the appellants challenge whether the trial court erred in finding that the first post-conviction petitions filed by the appellants from prison were mailed beyond the applicable statute of limitations. Second, the appellants ask us to interpret Tennessee Code Annotated section 40-30-202(a) so as to begin the running of the statute of limitations from the date the highest appellate court's mandate is filed on direct appeal. We find no error in the findings of the trial court, and we decline to interpret Tennessee Code Annotated section 40-30-202(a) in the manner urged by the appellants. Accordingly, the judgment of the trial court is affirmed.
Giles
Court of Criminal Appeals
Christopher Pope v. Dept of Correction M2001-02937-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A prisoner in the custody of the Department of Correction was found guilty of a disciplinary offense and sentenced to punitive segregation. He subsequently filed a Petition for Writ of Certiorari, claiming that he was not afforded due process during the disciplinary hearing at which he was convicted. The trial court dismissed his Petition for failure to state a claim. We affirm the trial court.
