State of Tennessee v. Paul Dennis Reid M1999-00803-SC-DDT-DD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge Cheryl A. Blackburn
In this capital case, the defendant, Paul Dennis Reid, Jr., was convicted of two counts of first degree murder and one count of especially aggravated robbery for killing two Captain D’s employees and robbing one of the employees. As to each conviction of first degree murder, the jury found in the sentencing hearing that the State had proven three aggravating circumstances beyond a reasonable doubt – (1) that the defendant was previously convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (3) that the murder was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit robbery. Tenn. Code Ann. § 39-13-204(i)(2), (6), and (7) (1997). Finding that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death on each murder conviction. The trial court subsequently imposed a twenty-five-year sentence for the especially aggravated robbery conviction and ordered this sentence to be served consecutively to the two death sentences. On direct appeal to the Court of Criminal Appeals, the defendant mounted numerous challenges to both his convictions and sentences. After fully considering the defendant’s claims, the Court of Criminal Appeals affirmed the trial court’s judgment. Thereafter, the case was docketed in this Court. See Tenn. Code Ann. § 39-13-206(a)(1) (1997). After carefully and fully reviewing the record and the relevant authority, the defendant’s convictions and sentences are affirmed.
I concur with the majority’s opinion affirming the conviction of the defendant. With regard to the imposition of the death sentences in this case, however, I cannot agree. My concerns, as expressed below, pertain to my continued dismay with the comparative proportionality review protocol imposed by the majority.
Davidson
Supreme Court
Mary F. Hall. v. Mary Rose Pippin. M2000-01151-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Vernon Neal
The Defendants, Mary Rose Pippin and Dale Delaney appeal the Trial Court's dismissal of a Rule 60 motion, which attacked a previous determination by the Trial Court relative to their right to maintain a fence across a roadway over which the Plaintiffs, Mary F. Hall and Don K. Hall claim a private right-of-way. We affirm.
Putnam
Court of Appeals
W2001-03088-COA-R3-CV W2001-03088-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: James F. Russell
Shelby
Court of Appeals
Shirley Daniel vs. James Daniel W2002-01103-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William Michael Maloan
This is an alimony case. At the time of the divorce, the parties had been married for almost thirty-one years. The husband was fifty-one years old, and the wife was forty-five years old. The husband owned his own backhoe/trackhoe company. The wife was a homemaker and raised the parties' three children. She has a sixth-grade education and earned her GED in 1997. Since the parties' separation, the wife had held five jobs but had not been able to maintain her employment. The parties agreed on the division of personal and real property, but disagreed over the value of the husband's business property. The trial court found that the husband made it difficult to ascertain the parties' financial situation. The trial court also found that the wife was economically disadvantaged and could not be rehabilitated. The wife was awarded alimony in futuro and attorney's fees. On appeal, the husband argues that the trial court erred in awarding the wife alimony in futuro and attorney's fees. We affirm, finding that the trial court did not err in concluding that the wife cannot be rehabilitated and in awarding alimony in futuro and attorney's fees.
Obion
Court of Appeals
Linda Sue Hathaway vs. Glenn Hathaway E2002-00659-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Bill Swann
The Trial Court ordered father to pay daughter's tuition to a college of her choice, based upon a provision in the Marriage Dissolution Agreement. On appeal, we modify.
Knox
Court of Appeals
Donna Seals vs. Larry Seals E2002-00100-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Howell N. Peoples
Donna Lynn Seals ("Wife") and Larry Clyde Seals ("Husband") were divorced in 2001, after seventeen years of marriage. The parties have one minor child ("Child"). Wife was primarily a stay-at-home mother during the marriage. Husband is employed as a general superintendent by Williams Union Boiler. The Trial Court found Husband's earnings for 2001 to be $117,000 in regular wages plus $16,380 in per diem. The Trial Court awarded Wife the parties' home in Hamilton County as alimony in solido and further ordered Husband to pay rehabilitative alimony in the amount of $1,365 per month for forty-two consecutive months. The Trial Court also ordered Husband to pay $2,063 per month in child support, which is an upward deviation due to Husband's absence of overnight parenting time since December 2000. Husband filed a post-trial Tenn. R. Civ. P. 52.01 motion for findings of fact. The Trial Court addressed this motion and entered its Final Decree of Divorce in November 2001. Husband appeals. We affirm.
A Williamson County jury convicted the defendants of DUI, first offense. Defendant Daniel was sentenced to eleven months and twenty-nine days, all suspended except for 90 days incarceration. Defendant Echols' eleven-month and twenty-nine day sentence was suspended after 30 days incarceration. The sole issue on appeal is whether their sentences are excessive. We find the defendants failed to file their notices of appeal within 30 days of the trial court's orders overruling their motions for new trial; therefore, their appeal is dismissed.
Pursuant to Tennessee Supreme Court Rule 23, we accepted certification of a question of law from the United States District Court for the Middle District of Tennessee concerning regulations issued by the Tennessee Department of Human Services. The certified question from the district court asks us to determine whether the rationale of statutorily imposed vicarious liability under Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799 (Tenn. 2000), applies to rules governing licensing and operation of day care centers in Tennessee. For the reasons given herein, we answer that our holding in Gleaves is distinguishable from the present case, and the Tennessee regulations governing day care centers do not, absent fault on the part of the licensee, provide for vicarious liability for the injurious acts of an employee occurring outside the scope of employment.
The Appellants, Lloyd E. Ferrell and Debra L. Ferrell, appeal the denial of post-conviction relief by the Hardin County Circuit Court. On appeal, both contend that the post-conviction court erred by not finding ineffective assistance of counsel. In addition, Debra Ferrell asserts: (1) that she should be granted a new trial because the State failed to provide Brady/Bagley material: (2) that the postconviction court erred by not making written findings of fact on each issue raised in the petition, and (3) that the cumulative effect of all errors at trial, in addition to counsel’s ineffectiveness, deprived her of a meaningful defense. After review, we affirm the dismissal of the petitions.
Hardin
Court of Criminal Appeals
State of Tennessee v. Carla Moten W2001-01922-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Arthur T. Bennett
Defendant, Carla Moten, was indicted by the Shelby County Grand Jury for aggravated burglary and intentional aggravated assault. Defendant was convicted by a jury of the lesser-included offense of reckless aggravated assault. The jury also found Defendant guilty of aggravated criminal trespass as a lesser-included offense of aggravated burglary. Defendant was sentenced to two years for her reckless aggravated assault conviction and six months for her aggravated criminal trespass conviction, to be served concurrently. In her appeal as of right, Defendant argues that the evidence at trial was insufficient to support her conviction for reckless aggravated assault. We disagree, and affirm the judgment of the trial court regarding the conviction for reckless aggravated assault. However, we find plain error in the conviction for aggravated criminal trespass as a lesser-included offense of aggravated burglary and therefore reverse and dismiss the conviction for aggravated criminal trespass.
Shelby
Court of Criminal Appeals
State of Tennessee v. Danial R. Willcutt W2001-02743-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge C. Creed McGinley
A Hardin County jury convicted the defendant, Danial R. Willcutt,1 of aggravated sexual battery, a Class B felony. The defendant was sentenced as a Range I violent offender to twelve years in the Department of Correction. In this appeal as of right, the defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction for aggravated sexual battery; and (2) whether his maximum Range I sentence is excessive. Upon review of the record, we affirm the judgment of the trial court.
Hardin
Court of Criminal Appeals
State of Tennessee v. Danial R. Willcutt - Concurring W2001-02743-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge C. Creed McGinley
I write separately to express my concern over the continuing problem we see in appellate records where the record fails to explain witness demonstrations. Nevertheless, I find the evidence in this case sufficient to support the verdict regardless of this shortcoming. Thus, I do not reach the issue of which party has the burden of proof with regard to witness demonstrations.
Hardin
Court of Criminal Appeals
State of Tennessee v. Keith Goodman E2001-00036-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge James B. Scott, Jr.
The threshold issue presented in this appeal is whether the Court of Criminal Appeals erred in holding that the defendant’s motion to dismiss was not capable of pretrial determination under Tennessee Rule of Criminal Procedure 12(b) because it requires a determination of the general issue of the defendant’s guilt or innocence. In our view, the defendant’s motion presents a legal question – the proper interpretation of a statute – and does not require a determination of the defendant’s guilt or innocence. Having decided the threshold issue, we also are of the opinion that the trial court correctly interpreted the statute when it held that a parent is not subject to prosecution for especially aggravated kidnapping under Tennessee Code Annotated section 39-13-305(a)(2) when the indictment fails to allege that the minor child was removed or confined by force, threat, or fraud. Therefore, the judgment of the Court of Criminal Appeals is reversed. The judgment of the trial court granting the defendant’s pretrial motion to dismiss count one of the indictment is reinstated.
Anderson
Supreme Court
Charles Montague vs. Michael Kellum E2002-01733-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jean A. Stanley
This legal malpractice claim arises from the filing by attorney Michael D. Kellum ("Defendant") of an unverified post-conviction petition on behalf of Charles Montague ("Plaintiff"). The post-conviction petition was dismissed by the Criminal Court on the merits and because it was not verified. We vacated a previous grant of summary judgment to Defendant to allow Plaintiff time to conduct discovery. While on remand and during discovery, the Court of Criminal Appeals affirmed the dismissal of Plaintiff's post-conviction proceeding for the sole reason that the petition was unverified. Thereafter, the Trial Court again dismissed this lawsuit after concluding, inter alia, Plaintiff had suffered no damages. We vacate and remand.
Washington
Court of Appeals
Debra Persada vs. Tim Persada E2002-00397-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: G. Richard Johnson
In divorce action the parties reached an agreed property settlement by mediation. Before Judgment, the husband repudiated the agreement, but the Trial Court heard evidence on the validity of the agreement and enforced the agreement by entering Judgment thereon. We affirm on appeal.
The defendant pled guilty to one count of Class D felony theft over $10,000, received an agreed three-year sentence, and agreed to allow the trial court to determine the manner in which her sentence would be served. The trial court ordered the sentence to be served in incarceration. In this appeal, the defendant argues the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.
Cocke
Court of Criminal Appeals
Cynthia L. Ursery v. Liberty Mutual Insurance Group, M2001-02749-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: Thomas W. Brothers, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer appeals the trial court's award of 8% permanent partial disability to the employee where 1) the medical proof established a 5% anatomical impairment to both elbows; and 2) a vocational expert gave the employee a 9% vocational disability rating based on loss of access to 9.4% of the jobs available to her prior to her injury due to her permanent medical restrictions. We find that the evidence does not preponderate against the trial court's findings, and therefore the award is not excessive. We affirm the judgment of the trial court in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty Mutual Insurance Group and United Parcel Service, Inc. H. Tom Kittrell, Jr., Nashville, Tennessee, for the appellee, Cynthia Ursery. MEMORANDUM OPINION Mrs. Cynthia Ursery, the employee-appellee, was 46 years old at the time of trial. She graduated from high school in 1972 and has had no further educational training. From 1979 until April of 21, Mrs. Ursery worked for United Parcel Service (UPS), the employer-appellant, on a part-time basis. For a number of years she "bagged" small packages by pulling, pushing, or lifting the packages into bags and in turn putting the bags onto a conveyor belt. These packages were supposed to be limited to 1 pounds but at times exceeded 2 pounds in weight. Mrs. Ursery estimated she sorted 2, to 4, packages a night. For at least 1 years of her employment with UPS, she sorted individual small packages. In this job she was required to pick up the package and move her palms into an upright position continuously to read the label on the packages to place them in the correct bin. Other job duties she performed at UPS included loading and fueling trucks, and driving local routes. From 1988 to 1992, Mrs. Ursery also worked at Castner Knotts as a sales clerk where her job duties included unpacking clothes and hanging the items on display racks. In June of 1998, Mrs. Ursery saw Dr. Robert Russell because she had been experiencing pain in her left elbow. Dr. Russell prescribed medicine and gave her an "arm bandit." She returned to Dr. Russell in the fall of 1998 complaining of right elbow pain for which he also prescribed an "arm bandit." In January of 1999, she received two cortisone shots which only seemed to increase the pain in her elbows. Mrs. Ursery sought additional medical care and chose Dr. Jane Siegel from a panel presented to her by UPS. Dr. Siegel took Mrs. Ursery off work for about 5 or 6 weeks. Though her elbows improved with rest, as soon as she returned to work, her pain resurfaced. Dr. Siegel diagnosed chronic medial epicondylitis and performed surgery on Mrs. Ursery's right elbow in May of 1999. Mrs. Ursery returned to work with restrictions. UPS assigned her to a light duty job fueling trucks and driving them short distances across the yard. Mrs. Ursery began to have trouble pulling herself into the trucks and eventually re-injured her right elbow in May of 2. She was put on medical leave until September of 2, when she returned to work sorting light- weight letters. Mrs. Ursery's elbow pain continued. Consequently, Dr. Siegel placed her on permanent restrictions of lifting no more than 5 pounds and of making no highly repetitive motion of her wrist for more than 1 hour at a time. Dr. Siegel found that Mrs. Ursery had reached maximum medical improvement on April 2, 21, and assigned a 5% anatomical impairment rating to both elbows. In April of 21, UPS terminated Mrs. Ursery's employment because it had no work available that she could perform within her medical restrictions. She was earning $2. per hour at the time of her termination. Ms. Rebecca Williams, a Certified Vocational Evaluation Specialist, testified at trial on behalf of Mrs. Ursery. As part of a vocational evaluation performed in August of 21, Ms. Williams interviewed Mrs. Ursery for over 3 hours, administered the Wide Range Achievement Test -2-
Davidson
Workers Compensation Panel
Larry Thrasher v. Carrier Corporation, M2001-02680-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: L. Craig Johnson, 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. The plaintiff suffers from plantar fasciitis in both feet. Causation was vigorously contested. The trial judge found that the plaintiff's condition was job-related. A podiatrist opined that the plaintiff retained a 29 percent impairment to both feet. The trial judge "assessed a permanent, partial disability of 1 percent to the two feet of the plaintiff," notwithstanding that the plaintiff had returned to his pre- injury job, "substantially improved," and in his words, "doing good," with no complaints other than first-step pain upon arising. The finding of 1 percent is excessive and is reduced to 4 percent. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J., and JOE C. LOSER, SP. J., joined. B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Carrier Corporation and Insurance Company of the State of Pennsylvania. Donald J. Ray, Tullahoma, Tennessee, for the appellee, Larry Thrasher. MEMORANDUM OPINION The Pleadings The plaintiff alleged that he had worked for the Carrier Corporation for thirty years and that "his work required him to stand on his feet for long periods of time, as a result the plaintiff has developed bilateral plantar fasciitis." No other condition is alleged. The defendant denied that the plaintiff's condition was job-related, but was a non- compensable, pre-existing condition. Plaintiff's Testimony The plaintiff testified that he had worked for the Carrier Corporation for thirty-two years in "coil production and press expander setup and operation and coil utility work." Beginning in 1994, he was assigned to a job which required him to stand on a three-inch piece of channel iron while loading and unloading carts of materials, stepping off and on the channel iron onto the concrete floor repetitively. His feet began hurting "five or six years ago,"1 and he consulted his family physician, Dr. Brandon, about the problem. He next reported his foot-problems to the company nurse, who furnished him a list of physicians. He selected Dr. Arms, an orthopedic surgeon, who prescribed medication and physical therapy. He saw Dr. Brandon again, who referred him to Dr. Fred Marino, Jr., a podiatrist.2 Dr. Marino prescribed orthotics, and "took me off work, put my right foot in a cast, and wanted me to rest and take it easy for a while." After nineteen (19) weeks off, the plaintiff returned to work. His testimony is markedly significant: A: I do good, I still have some pain when I get up of a morning first thing, but I do real good . . . If I have to change shoes, I have to change the inserts out and put them in the other shoes. Q: Are you wearing those inserts even today? A: Yes, sir. Q: What about weekends, do you do things, work in the garden, mow the grass, do things of that nature? A: Yes, sir. . . . . . 1 The case was heard May 21, 21. 2 In the interim, the plaintiff was seen by Dr. Robert Bell, another podiatrist, in 1998 and 1999, who took an extensive history fro m the p laintiff, and tre ated h im for dia gnos ed p lantar fasc iitis. Thes e visits to D r. Be ll, his diagnosis, and his treatm ents, were not disclosed by the plain tiff to anyone, including the physicians who subsequently treated or examined him. Moreo ver, the plaintiff did not disclose the fact during discovery procedures. At the trial, he testified that he d id not re call "going to Dr. Bell, or being examined by Dr. Bell, or having his feet x-rayed by Dr. Bell, or giving him this long h istory." T he pla intiff's last visit to Dr. Bell occurred five (5) months before he reported his foot-problems to his emp loyer. Th is extrao rdina ry testimo ny was n ot, for w hateve r reaso n, exp lored in dep th and the trial jud ge did not allud e to it. -2-
The petitioner appeals the denial of his post-conviction relief petition. He argues: (1) his trial counsel was ineffective in advising him regarding the sentence agreement in which he waived his right to appeal; and (2) he did not knowingly and voluntarily waive his right to appeal. We conclude that although the post-conviction court erroneously stated that the uncorroborated testimony of the post-conviction petitioner "should be summarily struck," the post-conviction court, nevertheless, made proper and adequate findings which support the denial of relief. We affirm the judgment of the post-conviction court.
A Davidson County jury convicted the defendant, Anthony R. Parham, of sexual battery. In this appeal as of right, the defendant raises the issue of whether the evidence was sufficient to support the conviction for sexual battery. We affirm the judgment of the trial court.
Davidson
Court of Criminal Appeals
State of Tennessee v. Michael Tucker W2000-02220-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft
The Shelby County Grand Jury indicted the Defendant for felony murder in the perpetration of a robbery, first degree premeditated murder, and especially aggravated robbery. Following a trial, at which the Defendant was tried with his co-defendant, a Shelby County jury convicted the Defendant of second degree murder. The Defendant now appeals his conviction as of right, arguing that insufficient evidence was presented to support his conviction, that the trial court supplied the jury with improper supplemental instructions, and that the trial court improperly commented on the evidence at trial. Concluding that sufficient evidence was presented to support the Defendant’s conviction for second degree murder, that the trial court’s supplemental instructions to the jury were proper, and that the trial court did not improperly comment on the evidence, we affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
State of Tennessee v. Michael Tucker - Concurring W2000-02220-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Chris B. Craft
I agree with the results reached in the lead opinion authored by Judge Wedemeyer. I write separately, however, because I believe that the dissent places too much emphasis on the supplemental instruction defining “adequate provocation” rather than the context of the entire charge to the jury. Here, the trial court instructed the jury, in pertinent part, as follows: “that the killing resulted from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” When the jury asked for a definition of “adequate provocation,” the trial court abbreviated a definition of provocation which was contained in Black’s Law Dictionary, 4th Edition, and charged the jury that “adequate provocation is one that excites such anger as might obscure the reason or dominate the volition of an ordinary reasonable man.” In context, I do not view the instructions, even with the supplement, so narrowly as to so limit passion as being produced only by anger. This court has previously held that the term passion does not require definition because it is commonly used and “can be understood by people of ordinary intelligence.” State v. Mann, 959 S.W.2d 503, app. at 522 (Tenn. 1997) (quoting State v. Raines, 882 S.W.2d 376, 383 (Tenn. Crim. App. 1994)). I would not classify the charge “review[ed] in its entirety and read . . . as a whole” as erroneous and join in the affirmance of the conviction. See State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
I respectfully dissent from the majority opinion. I believe the trial court erred by limiting the definition of passion to anger relative to the adequate provocation necessary for voluntary manslaughter.
The Defendant, John Parker Roe, was convicted by a jury of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. John Parker Roe, No. 02C01-9702-CR-00054, 1998 Tenn. Crim. App. LEXIS 39 (Jackson, Jan. 12, 1998), perm. appeal denied (Tenn., Jan. 4, 1999). The Defendant subsequently filed for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. After an evidentiary hearing, the post-conviction court denied relief. This appeal followed. We affirm.
