Mary Jane Campbell v. The Travelers Insurance Company
E2000-01894-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Dale C. Workman, Circuit 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 of findings of fact and conclusions of law. The employee appeals the trial court dismissal of her claims that a chemical exposure at work caused her disability. We affirm.

State of Tennessee v. Jerry W. Yancey, Jr. - Dissenting
M1999-02131-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Timothy L. Easter

An abuse of discretion in denying pretrial diversion should be found only when the record
shows an absence of any substantial evidence supporting the district attorney general’s decision.
State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997); State v. Hammersley, 650 S.W.2d 352, 356
(Tenn. 1983). When the reasons cited by the district attorney general are sufficient to support the
denial of pretrial diversion, I would hold that there is no abuse of discretion in the district attorney
general’s failure to make specific reference to every non-statutory, judicially-imposed factor. I
continue to adhere to my separate opinion in State v. Curry, 988 S.W.2d 153 (Tenn. 1999), and
therefore must respectfully dissent.

State of Tennessee v. Jerry W. Yancey, Jr.
M1999-02131-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Timothy L. Easter

We granted this appeal to determine the following issues: (1) whether the Court of Criminal Appeals, in reviewing the denial of pretrial diversion, erred by considering evidence presented at trial and failing to limit its review to evidence considered by the district attorney general; and (2) whether the trial court applied the correct standard in reviewing the district attorney general’s denial of pretrial diversion pursuant to a petition for writ of certiorari. After a thorough review of the record and relevant authority, we hold that in reviewing the denial of pretrial diversion, the Court of Criminal Appeals erred in failing to limit its review to the evidence that was considered by the district attorney general and any factual disputes resolved by the trial court. We also hold that in considering the petition for writ of certiorari, the trial court failed to apply the proper standard of review, which requires that it determine whether the district attorney general has considered and weighed all of the relevant factors and whether there is substantial evidence to support the district attorney general’s decision. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and this case is remanded to the trial court to apply the appropriate standard of review.

Terilyn Sloan, v. Tri-County Electric Membership Corp., et al.
M2000-01794-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Clara W. Byrd

Plaintiff married her co-worker, and one of them was forced to resign pursuant to the company's anti-nepotism policy prohibiting concurrent employment of spouses. Plaintiff resigned and brought this action for wrongful discharge alleging her dismissal violated public policy favoring marriage and was due to her exercise of the fundamental right to marry. The trial court dismissed for failure to state a cause of action. Because Plaintiff has failed to show that a policy prohibiting concurrent employment of spouses violates a clear mandate of public policy, we affirm the trial court.

State of Tennessee v. Anthony Richardson
W2000-01438-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Chris B. Craft

Petitioner, Anthony Richardson, was convicted of first-degree murder in the Shelby County Criminal Court. This Court affirmed the conviction on direct appeal. See State v. Richardson, 995 S.W.2d 119 (Tenn. Crim. App. 1998). Petitioner filed a petition for post conviction relief, which the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issues: (1) whether the trial court's comments during a witness' testimony deprived him of his sixth amendment right to a jury trial; (2) whether Petitioner was denied his sixth amendment right to a jury trial when the trial court "forced" counsel to proceed to trial; (3) whether the prosecutor's biblical reference at trial constituted reversible error; and (4) whether there was a conflict of interest when the same judge presided at both his trial and post-conviction hearing. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. James P. Stout
W2000-01743-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John P. Colton, Jr.

On March 12, 1996, the petitioner, James P. Stout, was convicted by a jury in the Shelby County Criminal Court of one count of especially aggravated robbery and was sentenced to forty years incarceration in the Tennessee Department of Correction. The petitioner elected not to pursue a direct appeal of his conviction and instead filed a petition for post-conviction relief, alleging the ineffective assistance of his trial counsel. The post-conviction court denied the petition, and the petitioner now appeals this ruling. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Javon Webster
W2000-01912-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Chris B. Craft

The Defendant, Javon Webster, was convicted of felony murder and attempted especially aggravated robbery. The trial court sentenced the Defendant to life in the Department of Correction for the felony murder conviction. The trial court merged the Defendant's attempted especially aggravated robbery conviction with the felony murder conviction. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erred by admitting photographs of the deceased, (3) the trial court erred by denying the Defendant's request for a special jury instruction on duress, and (4) the trial court erred by denying the Defendant's motion to suppress his statement to police. The State also raises an issue on appeal, arguing that the trial court erred by merging the Defendant's conviction for attempted especially aggravated robbery into his felony murder conviction. We affirm the felony murder conviction and reinstate and remand for sentencing the especially aggravated robbery conviction.

State of Tennessee v. Anthony Dewayne McElrath
W2000-02241-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge C. Creed McGinley
Following a jury trial, Defendant, Anthony Dewayne McElrath, was found guilty of sale of cocaine, a Class B felony. In this appeal, he challenges the sufficiency of the evidence to sustain the conviction, and argues that he was so prejudiced by the trial court's comments to a witness called by the defense, that the conviction should be reversed. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Donald Mays
W2001-00030-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph B. Dailey

The Appellant, Donald Mays, appeals the verdict of a Shelby County jury finding him guilty of one count of aggravated robbery and two counts of especially aggravated kidnapping. Mays was sentenced to 30 years for aggravated robbery and to 60 years on each count of kidnapping. The kidnapping sentences were ordered to be served concurrently, but consecutive to the aggravated robbery sentence, for an effective sentence of 90 years. On appeal, Mays raises the following issues for our review: (1) whether the evidence presented at trial is sufficient to support the verdict; (2) whether there was a material variance between the indictment and the proof; and (3) whether Mays' two convictions for kidnapping constitute double jeopardy. After review, we find Mays' multiple convictions for kidnapping violate double jeopardy principles. Accordingly, one count of kidnapping is dismissed. In all other respects, the remaining judgments of conviction are affirmed.

State of Tennessee v. James Roosevelt Fleming, aka "Woo"
W2001-01835-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The defendant was convicted of three counts of delivery of .5 grams or more of cocaine, a Schedule II controlled substance, and one count of simple possession of cocaine. The trial court imposed an effective sentence of twenty-six years. On appeal, the defendant argues that his sentences were excessive and the trial court erred in imposing consecutive sentencing. After a careful review of the record, we affirm the judgment of the trial court but remand for entry of corrected judgments in Counts 2 and 3.

State of Tennessee v. George Langford
W2001-00371-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Chris B. Craft

The Defendant, George Langford, was convicted of first degree felony murder, aggravated burglary, aggravated assault, and reckless endangerment. He was sentenced to life without the possibility for parole for the murder and to concurrent sentences of four, five, and two years for the other crimes respectively. The Defendant appealed his convictions and this Court affirmed the convictions and the sentences. Our supreme court granted the Defendant's application for appeal and also affirmed his convictions and sentences. The Defendant then filed a petition for post-conviction relief alleging ineffective assistance of counsel. The trial court dismissed the petition. The Defendant now appeals to this Court alleging that the trial court erred in denying him relief. We affirm the judgment of the trial court.

State of Tennessee v. Thomas L. Condra
M2000-02864-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Buddy D. Perry

The defendant, who was charged with vehicular homicide and failure to yield right of way, filed a petition for writ of certiorari to review district attorney's denial of pretrial diversion. The trial court found that district attorney general did not abuse his discretion in denying pretrial diversion. We affirm the judgment of the trial court.

Joyce Ramsey v. City of Dyersburg,
W2001-01059-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr. Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the appellant contends the evidence preponderates against the trial court's finding that the claimant's husband's fatal heart attack arose out of and in the course of employment. As discussed below, the panel has concluded the judgment should be affirmed.

State of Tennessee v. William Ray Collier
M2001-00893-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, William Ray Collier, was convicted by a jury of two counts of possessing heroin with intent to sell or deliver within one thousand feet of a school, one count of possessing heroin with intent to sell or deliver, and three counts of driving on a suspended license. The trial court sentenced the Defendant to an effective term of seventy-one years. In this appeal as of right, the Defendant raises three issues: whether the trial court erred in admitting certain expert testimony; whether the evidence is sufficient to sustain his convictions; and whether his sentence is excessive. Finding no merit in any of the Defendant's contentions, we affirm the judgment of the trial court.

State of Tennessee v. Michael Bikrev
M2001-01620-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald P. Harris

The Defendant, Michael Bikrev, was convicted of theft of property over $1,000.00 by a Williamson County jury. After a sentencing hearing, the Defendant was sentenced as a Range I standard offender to three years in the Department of Correction. The trial court suspended the sentence conditioned upon the Defendant serving one year in the Williamson County jail and completing four years of probation. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction, (2) the State did not prove venue, (3) the trial court erred in admitting evidence of a tacit admission made by the Defendant, and (4) the trial court erred in sentencing the Defendant. We affirm the judgment of the trial court.

State of Tennessee v. Roland G. Ransom
W2001-00530-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge W. Fred Axley

Pursuant to a negotiated plea agreement, the defendant pled guilty to facilitation of the sale of cocaine greater than 0.5 grams for an agreed sentence of four years, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant challenges the denial of alternative sentencing. We affirm.

State of Tennessee v. Edward Arnold Rivera
W2001-00857-CCA-R9-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge C. Creed McGinley

The Defendant, Edward Arnold Rivera, was indicted by a Hardin County grand jury on two counts of official misconduct, each a felony, and one count of misdemeanor theft. The Defendant submitted an application for pre-trial diversion which was denied by the District Attorney General. The Defendant filed a petition for a writ of certiorari in the Hardin County Circuit Court pursuant to Tennessee Rule of Criminal Procedure 38 for review of the denial of pre-trial diversion. The Circuit Court found no abuse of discretion, denied the petition, and granted the Defendant leave to seek an interlocutory appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 9(a). The Defendant contends on appeal that (1) the District Attorney General abused his discretion in denying pre-trial diversion and (2) the record does not support the denial. This Court granted the Defendant's application, and we now affirm the Circuit Court's denial of the petition.

State of Tennessee v. Amos L. Brown
E2000-00285-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Steven Bebb

In May 1999, a McMinn County jury found the Defendant guilty of the felony murder of one victim and of the criminally negligent homicide of a second victim. The trial court sentenced the Defendant as a Range I standard offender to concurrent sentences of life in prison for the felony murder conviction and two years incarceration for the criminally negligent homicide conviction. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether sufficient evidence was presented at trial to support his conviction for felony murder; (2) whether the trial court erred by refusing to order the State to reveal the identity of a confidential informant; (3) whether the trial court erred by allowing the Defendant's co-defendant to testify against him at trial; (4) whether the trial court erred by allowing the jury to view a video tape of the Defendant's arrest; (5) whether the trial court allowed the jury to hear inadmissible hearsay testimony; (6) whether the trial court erred by allowing into evidence the entire written statement of the co-defendant; (7) whether the Defendant was denied a fair trial as a result of the State's failure to disclose exculpatory information; and (8) whether the trial court erred by denying the Defendant's motion requesting individual voir dire of the potential jurors concerning pretrial publicity. Finding no error by the trial court, we affirm the Defendant's convictions.

State of Tennessee v. Hershell W. Estes, Jr.
E2000-01869-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Richard R. Baumgartner

A Knox County jury convicted the defendant of one count of aggravated sexual battery and one count of rape of a child. For the former the trial court sentenced the defendant to ten years, and for the latter he received a sentence of twenty-three years. The trial court then ordered these sentences to run concurrently. Subsequently, the defendant brought an unsuccessful motion for new trial and now pursues the present appeal in this Court raising two issues. More specifically, the defendant avers that the trial court erred 1) by limiting defense counsel's questioning of the victim concerning her prior sexual experiences and 2) by improperly utilizing two enhancement factors in sentencing the defendant. Upon review of these issues, we find that neither merit reversal and, thus, affirm the convictions and sentences. However, we have noted error in the rape of a child judgment requiring a remand for correction thereof.

Bonner Mccluskey v. F&M Incorporated,
2001-00468-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George Brown, Judge
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 appellant insists (1) the trial court erred in dismissing his claim for permanent disability benefits based on a finding that the proof of permanency was insufficient, and (2) the trial court erred in disallowing the appellant's post-trial application for relief. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and L. T. LAFFERTY, SR. J., joined. Steve Taylor, Memphis, Tennessee, for the appellant, Bonner McCluskey R. Scott Vincent and Ronald L. Harper, Memphis, Tennessee, for the appellees, F&M Incorporated d/b/a Domino's Pizza, Inc., and Domino's Pizza, Inc. MEMORANDUM OPINION On or about January 13, 1999, the employee or claimant, Bonner McCluskey, was injured at work when a box of pepperoni fell from a freezer shelf, striking him in the left shoulder and neck. He reported the injury to the employer, Domino's, and was provided medical benefits. He lost a few days of work, then returned. The employee was treated for his injuries by Dr. Dawoud, who prescribed physical therapy and released the employee to full duty without restrictions. The only issue presented for trial was the extent of the employee's permanent vocational disability, if any. His attorney referred the claimant to Dr. Tewfik E. Rizk, whom he saw a number of times. Although diagnostic testing revealed no evidence of injury, Dr. Rizk diagnosed muscular fibrosis and thoracic outlet delay, provided conservative care and estimated the claimant's permanent whole body impairment to be 25 percent. The employer's insurer referred the claimant to Dr. John D. Brophy, who reviewed Dr. Rizk's records, diagnosed a soft tissue injury, consulted with another board certified specialist and examined the claimant. Dr. Brophy concluded that Dr. Rizk's diagnoses were erroneous. Dr. Brophy opined at trial that the claimant did not have any permanent impairment. Both doctors testified by deposition. The claimant testified that he continues to have disabling pain. He is currently working for another employer, earning more than $4,. per year as a service manager. The trial court rejected the opinions of Dr. Rizk in favor of those of Dr. Brophy and dismissed the claim for insufficient evidence of permanency. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The extent of an injured worker's permanent vocational disability is a question of fact. Collins v. Howmet Corp., 97 S.W.2d 941, 943 (Tenn. 1998). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellant first contends the trial court erred in accepting the opinions of Dr. Brophy, instead of those of Dr. Rizk, because Dr. Rizk was a treating physician. Trial courts are not required to accept the opinion of a treating physician over any other conflicting expert medical testimony. When the medical testimony differs, the trial judge must choose which view to believe. In doing so, he is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). Moreover, it is within the discretion of the trial judge to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-7 (Tenn. 1983). From our independent examination of the record, we are unable to find the preponderance of the evidence to be otherwise than as found by the trial court. The first issue is accordingly resolved in favor of the appellee. The appellant next contends that the trial court erred in disallowing his post- trial motion for -2-

David Travis Bennett v. Pamela Jean Bennett
M2000-02448-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J. Curtis Smith

The parties were divorced in 1995. The Final Decree awarded joint custody of their minor child. Pamela Jean Bennett ("Mother") was awarded primary physical custody, while David Travis Bennett ("Father") was awarded visitation. Thereafter, the Trial Court held three hearings upon the parties' petitions regarding several issues. Father appeals two of the three orders that the Trial Court entered, and his issues on appeal involve the following: the Trial Court's refusal, at the second hearing, to allow proof regarding issues previously reserved by the Trial Court at the first hearing; the Trial Court's refusal to allow Father to fire his attorney during the second hearing; the Trial Court's increase of Father's child support obligation; the Trial Court's refusal to modify child custody; the Trial Court's finding Father in contempt for failure to pay child support; and the Trial Court's refusal to find Mother in contempt for her alleged failure to comply with the visitation schedule. We affirm.

Amy Jo Stone, et al., v. Regions Bank
M2001-00856-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge W. Charles Lee

This is a dispute over life insurance proceeds. Plaintiffs' mother was indebted to defendant-bank and entered into a contract with the bank and the plaintiffs to secure past and future indebtedness by assignment of a life insurance policy on her life. The policy was duly assigned pursuant to the contract with the bank. Subsequently, plaintiffs' mother filed a bankruptcy proceeding, and her liability to the bank on her indebtedness was discharged, but the insurance policy was not affected. The bank continued paying the annual premiums on the policy, and several years after the bankruptcy proceeding, the plaintiffs' mother died. The insurance company, by virtue of the assignment of the policy, paid the insurance proceeds to the bank which then satisfied its indebtedness and paid the balance of the proceeds to the plaintiffs pursuant to the contract. Plaintiffs sue to recover the full amount of the insurance proceeds, contending that there was no existing indebtedness as specified in the contract. The trial court entered judgment for bank, and plaintiffs have appealed. We affirm.

State of Tennessee v. Joel M. Puentes
M2001-01115-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Joel M. Puentes, appeals his conviction by a jury in the Davidson County Criminal Court for facilitating second degree murder, a Class B felony, for which he received a nine-year sentence. He contends that (1) the indictment is deficient in its allegations regarding homicide, (2) the proof is insufficient to convict him, and (3) the trial court should have instructed the jury regarding accessory after the fact as a lesser included offense to homicide. We conclude that no error exists and that the evidence is sufficient. We affirm the judgment of the trial court.

State of Tennessee v. Earl Dewayne Cole
W2000-02029-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Roy B. Morgan, Jr.

The appellant, Earl Dewayne Cole, was convicted by a Madison County jury of the offense of aggravated assault with a deadly weapon. He was sentenced as a Range II offender to a term of seven (7) years incarceration in the Tennessee Department of Correction. In this appeal the appellant claims the trial judge failed to adequately respond to a jury question regarding the need for unanimity in their verdict, that the written jury instructions showed the victim's name and weapon only under the main charge, and that the trial judge should have considered a lesser offense at sentencing. We find that all of these alleged errors have been waived by the failure of the appellant to enter a contemporaneous objection to them, by the failure to raise these issues in the motion for a new trial, and by the failure of the appellant on appeal to cite to any relevant authority supporting his arguments. Moreover, we find that none of these alleged errors constitute plain error. We therefore affirm the judgment of the trial court.

Michael W. Smith v. James Dukes, Warden
W2001-01535-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joseph H. Walker, III

Petitioner, Michael W. Smith, filed a "Petition for Writ of Habeas Corpus" in the Circuit Court of Lauderdale County. He alleged that his conviction for escape in the Circuit Court of Hardeman County was invalid because of an illegal and void sentence. Petitioner did not attach to his petition the Hardeman County judgment or any other portion of that record. He also alleged that the sentence had been served, that he was illegally sentenced as a Range II offender because he had no prior felony convictions, and that no enhancement factors could properly be applied to a Range I sentence. The trial court summarily dismissed the petition and assessed trial court costs against Petitioner, who now appeals both the summary dismissal of his petition and the assessment of costs against him. We affirm the dismissal of the petition for writ of habeas corpus, but reverse that portion of the order taxing costs to Petitioner.