State of Tennessee v. Andrew Thomas, et al. - Concurring and Dissenting
I concur in the conclusion of the majority that Thomas’s conviction should be affirmed. As to the sentence of death, however, I respectfully dissent. As I have previously expressed in a long line of dissents, I believe that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and is proportionate imposition of the death penalty. See Tenn. Code Ann. § 39-13-206(c)(1)(D) (1995 Supp.). I have consistently expressed my displeasure with the current protocol since the time of its adoption in State v. Bland, 958 S.W.2d 651 (Tenn. 1997). See State v. Robinson, 146 S.W.3d 469, 529 (Tenn. 2004) (Birch, J., concurring and dissenting); State v. Leach, 148 S.W.3d, 42, 68 (Tenn. 2004) (Birch, J., concurringand dissenting); State v. Davis, 141 S.W.3d 600, 632 (Tenn. 2004) (Birch, J., concurring and dissenting); State v. Berry, 141 S.W.3d 549, 589 (Tenn. 2004) (Birch, J., concurring and dissenting); State v. Holton, 126 S.W.3d 845, 872 (Tenn. 2004) (Birch, J., concurring and dissenting); State v. Davidson, 121 S.W.3d 600, 629-36 (Tenn. 2003) (Birch, J., dissenting); State v. Carter, 114 S.W.3d 895, 910-11 (Tenn. 2003) (Birch, J., dissenting); State v. Reid, 91 S.W.3d 247, 288-89 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. Austin, 87 S.W.3d 447, 467-68 (Tenn. 2002) (Birch, J., dissenting); State v. Stevens, 78 S.W.3d 817, 852 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. McKinney, 74 S.W.3d 291, 320-22 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. Bane, 57 S.W.3d 411, 431-32 (Tenn. 2001) (Birch, J., concurring and dissenting); State v. Stout, 46 S.W.3d 689, 720 (Tenn. 2001) (Birch, J., concurring and dissenting); Terry v. State, 46 S.W.3d 147, 167 (Tenn. 2001) (Birch, J., dissenting); State v. Sims, 45 S.W.3d 1, 23-24 (Tenn. 2001) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 233-34 (Tenn. 2000) (Birch, J., dissenting). As previously discussed, I believe that the problem with the current proportionality analysis is threefold: (1) the proportionality test is overbroad, (2) the pool of cases used for comparison is inadequate, and (3) review is too subjective. These flaws seriously undermine the reliability of the current proportionality protocol. See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). In my view, the current comparative proportionality protocol is woefully inadequate to protect defendants from the arbitrary or disproportionate imposition of the death penalty. Accordingly, I respectfully dissent from that portion of the majority opinion affirming the imposition of the penalty of death. |
Shelby | Supreme Court | |
State of Tennessee v. Antonio D. Aziz
The defendant, Anthony D. Aziz, appeals from the Sullivan County Criminal Court's denial of alternative sentencing. We affirm the judgment. |
Sullivan | Court of Criminal Appeals | |
Calvin J. Oliver v. State of Tennessee
The petitioner appeals the denial of his petition for post-conviction relief, arguing that his guilty pleas were unknowing and involuntary and that his trial counsel were ineffective for failing to adequately explain the consequences of the pleas and for failing to raise the issue of his mental competency at the sentencing hearing. Following our review, we affirm the post-conviction court's denial of the petition. |
Marshall | Court of Criminal Appeals | |
State of Tennessee v. Cornelius Boales
The Appellant, Cornelius Boales, was convicted by a Henderson County jury of one count of felony possession of cocaine with the intent to sell, a class B felony, and one count of felony possession of marijuana with the intent to sell, a class E felony. For these crimes, Boales received an effective twelve-year sentence as a Range I offender. In addition, the trial court imposed a $100,000 fine as assessed by the jury for the cocaine conviction. On appeal, Boales argues (1) that the evidence is insufficient to support either of his convictions and (2) that the trial court erred in imposing the maximum sentence and the maximum fine for his class B felony conviction. After review, we conclude that the evidence supports the convictions and the length of the sentence imposed. However, we modify Boales’ fine of $100,000 to reflect assessment of a fine in the amount of $50,000. |
Henderson | Court of Criminal Appeals | |
State of Tennessee, ex rel., Brandi Shantika Taylor v. Cedrick Cortez Wilson
Appellant challenges trial court’s dismissal of his petition, under Tennessee Rule of Civil Procedure 60.02(4), seeking to rescind his voluntary legitimation of child, modify custody, set aside paternity order and modify child support arrearage, based on results of DNA test that conclusively proves that he is not the father of the child. We reverse. |
Shelby | Court of Appeals | |
Christopher Lee Tuttle v. State of Tennessee
The petitioner, Christopher Lee Tuttle, appeals as of right the judgment of the Davidson County Criminal Court dismissing his petition for post-conviction relief from his convictions for drug-related offenses and effective forty-year sentence. The petitioner contends (1) that the state breached his plea agreement which undermined the voluntariness of his guilty plea and (2) that the state engaged in prosecutorial misconduct by acting vindictively and violating Rule 8(a), Tenn. R. Crim. P., requiring mandatory joinder. We affirm the trial court's denial of post-conviction relief. |
Davidson | Court of Criminal Appeals | |
State of Tennessee v. Jamie L. Bailey
The defendant attempts to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37 while a motion is pending in the trial court. The trial court has held the defendant’s remaining motion in abeyance because the defendant has pursued this appeal. We find this appeal premature and remand the case to the trial court to complete the proceedings and issue a final judgment, from which the defendant may then appeal. |
Dyer | Court of Criminal Appeals | |
Sandra Kaye Kemp Parish, et al., v. Jerry Donald Kemp, et al.
This appeal arises out of a complaint filed by Appellants seeking to invalidate certain inter vivos |
Carroll | Court of Appeals | |
State of Tennessee v. Barry Wayne Dunham
The defendant, Barry Wayne Dunham, was convicted by a Macon County Criminal Court jury of the first degree premeditated murder of his father and sentenced to life imprisonment. On appeal, he argues that the trial court erred by: (1) restricting defense counsel’s voir dire of the jury venire; (2) interfering with defense counsel’s examination of a witness and denying the defendant’s motion for a mistrial based on the court’s allegedly prejudicial commentary on the witness’s testimony; and (3) disallowing a defense expert witness on the subject of domestic violence. Finding no reversible error, we affirm the judgment of the trial court. |
Macon | Court of Criminal Appeals | |
State of Tennessee v. Barry Wayne Dunham - Dissenting
I concur in most of the reasoning and results reached in the majority opinion. I respectfully disagree, though, with the conclusion that Dr. Goetting was not qualified to testify as an expert in this parent-child homicide case. The trial court excluded her testimony because it was the first time she had testified in such a case, she was a sociologist, and she relied on facts that were not in evidence. It concluded that her testimony would not be a substantial help to the jury. |
Macon | Court of Criminal Appeals | |
Javvor Thomas v. State of Tennessee
The petitioner appeals the dismissal of his petition for post-conviction relief from his conviction for second degree murder, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. Following our review, we affirm the dismissal of the petition. |
Knox | Court of Criminal Appeals | |
State of Tennessee v. George Lebron Johnson
The Hamilton County Criminal Court Grand Jury indicted the defendant, George Lebron Johnson, on two counts of attempt to commit first degree murder. He entered into an agreement with the state to plead guilty to two counts of aggravated assault in exchange for concurrent six-year, Range I sentences. The agreement provided that the trial court would determine the manner of service of the effective six-year sentence. On January 9, 2004, the trial court ordered him to serve the effective sentence in confinement. On February 6, 2004, the defendant moved the court to allow him to withdraw his guilty pleas and for a new trial on the issue of the manner of service of his sentences. The trial court denied both motions, and the defendant has appealed. We affirm the judgments of the trial court. |
Hamilton | Court of Criminal Appeals | |
Jesse David Teasley v. State of Tennessee
The petitioner, Jesse David Teasley, appeals the trial court's denial of his motion to withdraw his guilty plea, request for writ of error coram nobis, and petition for post-conviction relief. The state has filed a motion requesting that this Court affirm the trial court's action pursuant to Rule 20, Rules of the Court of Criminal Appeals. The trial court properly denied relief as the pleadings were untimely filed and without merit. Accordingly, the judgment of the trial court is affirmed. |
Knox | Court of Criminal Appeals | |
Preston U. Pendergrass v. Kevin Myers, Warden
The petitioner, Preston U. Pendergrass, appeals the summary dismissal of his petition for writ of habeas corpus, arguing that the indictment, which charged him with two counts of attempted first degree murder, failed to state the facts constituting an offense, thereby depriving the convicting court of jurisdiction and rendering his judgments void. The petitioner further argues that the court erred by not appointing appellate counsel as requested. Following our review, we affirm the judgment of the trial court dismissing the petition for writ of habeas corpus. |
Wayne | Court of Criminal Appeals | |
In Re F.R.R., III
This appeal involves the termination of a biological father’s rights to his non-marital child. When the child was almost five years old, his mother and her husband filed a petition in the Williamson County Juvenile Court seeking to terminate the biological father’s parental rights and to adopt the child. Following a bench trial, the juvenile court determined that the biological father had abandoned the child by willfully failing to visit him and that terminating the biological father’s parental rights would be in the child’s best interests. Accordingly, the court terminated the biological father’s parental rights and approved the adoption. The biological father has appealed. We have determined that the record contains clear and convincing evidence that the biological father abandoned the child and that terminating the father’s parental rights would be in the child’s best interests. |
Williamson | Court of Appeals | |
State of Tennessee v. Jerry Glen Yates
The Appellant, Jerry Yates, appeals the denial by the trial court of a motion to suppress all evidence in a prosecution for driving under the influence, alleging an illegal warrantless misdemeanor arrest because he left the scene of the accident. We affirm the trial court’s denial of the motion. |
Obion | Court of Criminal Appeals | |
Bernadette Benson v. Nathan Berryman, et al.
This appeal arises out of an action by Appellant for a claim of negligence. After the close of |
Shelby | Court of Appeals | |
State of Tennessee v. Annette Reynolds
The defendant, Annette Reynolds, was convicted of facilitation of possession of cocaine for resale, a Class C felony, and possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced the defendant as a career offender to concurrent sentences of fifteen years and eleven months, twenty-nine days, respectively. In this appeal of right, the defendant challenges the sufficiency of the evidence and contends that there was prosecutorial misconduct during closing argument. She also claims that the trial court made several errors: by denying discovery regarding the identity of the confidential informant whose information led to the search warrant for her residence; by denying her motion to suppress the evidence seized during the search; by admitting the presentence report at sentencing; and by sentencing her as a career offender. The judgments of the trial court are affirmed. |
Giles | Court of Criminal Appeals | |
Union County Education Association v. Union County Board of Education and Dr. James Pratt, Superintendent of the Union Cty Schools
We dismiss this appeal from a granting of summary judgment because the appeal was not from a final judgment and the issues are moot. |
Union | Court of Appeals | |
Stevie W. Caldwell v. Virginia Lewis, Warden
The petitioner, Stevie W. Caldwell, was convicted in 1995 in the White County Criminal Court of first degree felony murder, aggravated arson, and conspiracy to commit arson against personal property, for which he was sentenced, respectively, to life, nineteen years, and six months, to be served concurrently. In a pro se petition for writ of habeas corpus, he claimed that the indictment was defective, thereby depriving the trial court of subject matter jurisdiction. The trial court dismissed the petition, and this timely appeal followed. After review, we affirm the dismissal. |
Bledsoe | Court of Criminal Appeals | |
Richard D. Vatt, et al. v. A.L. James d/b/a A.L. James Construction Company
This case involves the alleged breach of a real estate sales contract. The plaintiffs argue that the defendant home builder is in breach of contract because he refused to sell them the house contracted for unless, in addition to the price stated in the contract, they paid him for costs attributed to changes in construction. None of these changes were implemented pursuant to written change orders as required under the contract. The builder countersued arguing that the changes for which he sought payment were agreed to orally after the contract was executed, that the written change order requirement of the contract was waived, and that the plaintiffs breached the contract by refusing to pay him the original contract price, plus the amount attributed to the changes. The trial court entered judgment in favor of the defendant. We affirm in part, reverse in part and remand. |
Hamilton | Court of Appeals | |
Christa A. Avenell v. James Allen Gibson
Christa A. Avenell,1 sometimes referred to herein as “the plaintiff,” brought this action against James Allen Gibson (“the creditor”), seeking to recover funds taken out of the Avenells’ two joint accounts by their bank in response to a levy of execution. The trial court held that the 1988 amendment to Tenn. Code Ann. § 45-2-703 (2000) changed the law with respect to bank accounts held by individuals as tenants by the entirety; that Mrs. Avenell failed to prove she was entitled to the levied upon funds; and that the creditor was entitled to retain the funds paid into court by the Avenells’ bank. The plaintiff and her husband appeal. We reverse. |
Blount | Court of Appeals | |
Christa A. Avenell vs. James Allen Gibson - Dissenting
I agree with the majority opinion’s analysis until it undertakes consideration of the 1988 amendment to Tenn. Code Ann. § 45-2-703(a). As quoted in the majority opinion, the amendment states: Any balance so created, including, without limitation, any balance held by spouses, shall be subject to assignment by, or the claim of any creditor of, either depositor, as if such depositor were the sole owner of the funds; provided that is such creditor realizes its claim by any means other than enforcement of an assignment, pledge, or the grant of a security interest made by any one (1) of such depositors, any other depositor not indebted to the creditor may, by commencing a separate action against the creditor, establish such rights as that depositor may have in the funds. |
Blount | Court of Appeals | |
Faron Douglas Pierce v. State of Tennessee
The petitioner, Faron Douglas Pierce, appeals the Knox County Criminal Court's dismissal of his petition for post-conviction relief and request for a delayed appeal. On appeal, the petitioner argues that he was denied effective assistance of counsel. Specifically, the petitioner argues that his counsel was ineffective in failing to allow him to testify at his sentencing hearing, and in failing to file a Rule 11 application for permission to appeal to the Tennessee Supreme Court. After review of the record, we grant the petitioner a delayed appeal, and we stay further proceedings on his remaining post-conviction claim. |
Knox | Court of Criminal Appeals | |
In Re: Estate of Billy F. Hawk, Jr.
This case involves a petition filed by the co-executors of the Estate of Billy F. Hawk, Jr. to approve a sale of real estate partially owned by the Estate. The issue presented is whether the trial court should have approved the private sale. The trial court held that the proposed sale was not in the best interest of all the beneficiaries of the Estate. The proposed buyer appeals. We hold that the trial court’s decision was not contrary to the preponderance of evidence, nor was it arbitrary or capricious, and therefore, affirm the trial court’s judgment. |
Hamilton | Court of Appeals |