Tom Henderson vs. City of Chattanooga
E2002-02165-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Frank Brown, III
Five police officers employed by the Chattanooga Police Department were involved in a physical altercation with Torris Harris ("Harris") which ended with Harris' death. Harris allegedly had ties to the local Crips gang. Pursuant to the Public Records Act, a local news station requested photographs of these five officers as well as a sixth officer who had prepared the official police report. After the request was denied by the City of Chattanooga, the news station filed a petition seeking to compel production of the photographs. After a trial, the Trial Court concluded the photographs were "public records" and the undercover officer exemption found in the Public Records Act did not apply to these officers. The Trial Court also held that disclosing the photographs would not place the officers or their families at substantial risk of harm and, therefore, would not violate the officers' constitutional right to privacy. After ordering production of the photographs, the Trial Court refused to award attorney fees incurred by the successful petitioners. We affirm.

Joseph Lance Risner v. State of Tennessee
E2002-01112-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge James E. Beckner

The Appellant, Joseph Lance Risner, appeals from the dismissal of his petition for post-conviction relief. Pursuant to a "package deal" plea, Risner, along with five of his co-defendants, pled guilty to three counts of first degree murder, one count of attempted murder, two counts of especially aggravated kidnapping, two counts of kidnapping, and one count of class D felony theft. On appeal, Risner presents the following issues for our review: (1) whether his plea was knowingly and voluntarily entered; (2) whether he was denied the effective assistance of counsel; and (3) whether the indictment, which did not include the aggravating circumstances qualifying him for the death penalty violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and is, thus, unconstitutional. Finding no reversible error, we affirm the judgment of the Greene County Criminal Court.

E2002-02474-COA-R3-CV
E2002-02474-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jacqueline E. Schulten

John Hannah vs. Lindsay Russell
E2002-02475-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman

John Hannah vs. Lindsay Russell
E2002-02475-COA-R3-CV
Authoring Judge: Judge David Michael Swiney

Steve Fritts v. Anderson County Election Commission, Et
E2003-00015-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William E. Lantrip

First Presbyterian Church vs. Board of Equalization
E2003-00128-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Howell N. Peoples
Ms. Madeline D. Apple bequeathed her house to First Presbyterian Church of Chattanooga ("the Church") to be used for the temporary housing and convenience of the Church's missionaries. The Church filed a formal application with the Board of Equalization requesting the house be exempted from property taxation because it was used purely and exclusively for carrying out the Church's missionary work. The request for exemption was denied, a decision later upheld by an Administrative Law Judge and then by the Assessment Appeals Commission. The Church appealed the final decision of the Assessment Appeals Commission to the Hamilton County Chancery Court ("Trial Court"). After a hearing, the Trial Court concluded the house was not used purely and exclusively for religious purposes and denied an exemption. The Church appeals, and we affirm.

Billy Wayne Cosby v. State of Tennessee
M2001-01538-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

The petitioner, Billy Wayne Cosby, pled nolo contendere in the Giles County Circuit Court to aggravated assault and received a sentence of eight years incarceration. Subsequently, the petitioner filed for post-conviction relief, which petition was denied. On appeal, the petitioner contests the summary dismissal of his post-conviction petition. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for the appointment of new counsel and further proceedings in accordance with this opinion.

State, ex rel. Stacy Anderson v. Stephen Taylor
M2001-02193-COA-R3-CV
Trial Court Judge: Betty Adams Green
This case involves retroactive child support payments. The child was born in 1990. A petition to establish paternity was filed in 1998. The father's paternity was established and the juvenile court referee entered a parentage order and set child support. The mother amended her petition to seek child support retroactive to the date of birth. The juvenile court referee awarded retroactive child support, but awarded only a portion of it to the mother, with the remainder to be placed in an educational trust fund for the benefit of the child. The juvenile court affirmed the decision of the juvenile court referee. The mother appeals. We affirm in part and reverse in part, finding no basis for the order that a portion of the retroactive support be paid into a trust fund.

Leonard Edward Baugh, Jr. v. State of Tennessee
M2002-02425-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

A Davidson County jury found the Petitioner, Leonard E. Baugh, Jr., guilty of one count of especially aggravated robbery, five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of unlawful possession of a weapon by a felon. The trial court imposed an effective sentence of thirty years. The convictions and sentences were affirmed on direct appeal. See State v. Leonard Edward Baugh, Jr., M2000-00477-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 415, (Tenn. Crim. App., Nashville, June 1, 2001). The Petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court dismissed the petition. We affirm the judgment of the post-conviction court.

State of Tennessee v. Lawrence E. Truman
M2002-03086-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Donald P. Harris

The defendant, Lawrence E. Truman, appeals as of right his conviction by the Williamson County Circuit Court for driving under the influence of an intoxicant (DUI), a Class A misdemeanor. The trial court sentenced the defendant to eleven months, twenty-nine days, with seven days of the sentence to be served in the county jail and the balance on probation. The defendant, who remained free on bond following his conviction, failed to appear for a subsequent review hearing, and the trial court issued a capias for his arrest. In this appeal, the defendant contends that the evidence is insufficient to support his DUI conviction. We dismiss the appeal because the defendant remains on escape status.

Floyd W. Smith, II v. State of Tennessee
M2002-01933-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Don Ash

A Wilson County jury convicted the Petitioner of second degree murder. The trial court sentenced the Petitioner to twenty years in the Department of Correction. On direct appeal, the Petitioner's sole issue was that the twenty year sentence imposed by the trial court was excessive. This Court affirmed the trial court's twenty-year sentence. The Petitioner then filed a petition for post-conviction relief, alleging that he was denied effective assistance of counsel at trial and on appeal. The post-conviction court found that Petitioner failed to present clear and convincing evidence to support his claims and dismissed the petition. The Petitioner now appeals, arguing that the post-conviction court erred in denying post-conviction relief based on ineffective assistance of counsel and flaws in the voir dire. Finding no error, we affirm the judgment of the post-conviction court.

State of Tennessee v. Angela E. Isabell
M2002-00584-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert E. Lee Davies

The appellant, Angela E. Isabell, was convicted by a jury in the Lewis County Circuit Court of three counts of the sale or delivery of controlled substances. The trial court imposed a total effective sentence of four years incarceration in the Tennessee Department of Correction. On appeal, the appellant contests her convictions for the "sale or delivery" of controlled substances and further complains about statements made during trial by the State and the State's witnesses. The State concedes that there is reversible error. Finding the appellant's argument to have merit, we reverse all three of the appellant's convictions and remand to the trial court for further proceedings.

Earl Junior Pike v. State of Tennessee
M2002-01363-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Earl Junior Pike, appeals from the post-conviction court's denial of his petition for post-conviction relief, which alleged that his appointed trial counsel was ineffective for not allowing him to testify at trial. Following a hearing, the post-conviction court dismissed the petition, and we affirm.

Jason Craig DeMarcus v. State of Tennessee
M2002-01335-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Walter C. Kurtz

The petitioner appeals the denial of his petition for post-conviction relief from his convictions for attempted first degree murder and three counts of aggravated assault, one of which was merged with the attempted murder conviction. He argues that the trial court did not have jurisdiction to try the juvenile petitioner as an adult and that he received ineffective assistance of trial counsel. Based upon our review, we affirm the post-conviction court's denial of the petition.

State of Tennessee v. Kerry L. Dowell
M2002-00630-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The defendant, Kerry L. Dowell, was convicted by a jury of kidnapping, car jacking, robbery, felony evasion of arrest, and misdemeanor evading arrest, and was sentenced to an effective twenty-four years in the Tennessee Department of Correction. On appeal, the defendant claims that the evidence was insufficient to support his conviction for kidnapping, car jacking, and Class D felony evading arrest; the trial court erred in failing to suppress a statement he made to the police; the trial court erred in failing to give a limiting instruction to the jury regarding the defendant's prior convictions; the trial court failed to properly instruct the jury on lesser-included offenses; and the trial court erred in sentencing the defendant consecutively on one of the counts. The Class D felony evading arrest conviction is reversed. We affirm all other judgments of the trial court.

State of Tennessee v. Michael Joseph Cook
W2002-01924-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge William B. Acree

The defendant, Michael Joseph Cook, was convicted of manufacturing a Schedule II controlled substance and conspiracy to manufacture a Schedule II controlled substance, Class C and D felonies. The trial court merged the conspiracy conviction into the Class C felony and imposed a four-year community based alternative sentence. As a part of the sentence, the defendant was ordered to serve one year in jail. In this appeal of right, the defendant contends that the evidence was insufficient and that his sentence is excessive. The judgment of the trial court is affirmed.

State of Tennessee v. Irvin Lee Franklin and Jerry Lorenze Sandridge
W2002-00945-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph H. Walker, III

The Defendants, Irvin Lee Franklin and Jerry Lorenze Sandridge, were each convicted by a jury of two counts of aggravated robbery. In this direct appeal, both Defendants challenge the sufficiency of the evidence. Defendant Franklin further contends that double jeopardy principles require the reversal and dismissal of one of the convictions. We find the evidence sufficient to support the jury's determination that each of these Defendants committed an aggravated robbery. However, because the facts and circumstances of this offense support only one conviction for aggravated robbery as to each Defendant, we modify the other aggravated robbery convictions to aggravated assault and remand for resentencing on that offense. In all other respects, we affirm the judgments of the trial court.

State of Tennessee v. Grover Donnell Cowart
E2002-02232-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Mary Beth Leibowitz

This is an appeal from the trial court’s denial of post-conviction relief. The Defendant, Grover Donnell Cowart, was originally convicted by a jury of attempted first degree premeditated murder and especially aggravated robbery; the jury acquitted the Defendant of additional charges of aggravated rape. On direct appeal, this Court reversed and remanded for retrial the Defendant’s conviction of attempted first degree murder. See State v. Grover Donnell Cowart, No. 03C01-9512-CR-00402, 1999 WL 5174, at *1 (Tenn. Crim. App., Knoxville, Jan. 8, 1999). The Defendant subsequently filed for post-conviction relief with respect to the judgment of especially aggravated robbery, alleging that the State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After an evidentiary hearing, the trial court denied relief. We affirm the judgment of the trial court.

James Donald Lattimore v. Cna Insurance Company,
M2002-01718-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Clara Byrd, 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 Second Injury Fund insists the trial court erred in awarding disability benefits in excess of the limitation provided by law where the injured worker was more than sixty years old at the time of the injury. As discussed below, the panel has concluded the Second Injury Fund is not entitled to credit for overpayment made by the employer. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Criminal Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JAMES L. WEATHERFORD, SR. J., joined. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellant, Second Injury Fund William Joseph Butler and E. Guy Holliman, Farrar, Holliman & Butler, Lafayette, Tennessee, for the appellee, James Donald Lattimore Daniel H. Rader, III and Lane Moore, Moore, Rader, Clift & Fitzpatrick, Cookeville, Tennessee, for the appellees, CNA Insurance Company and TRW Steering Systems, Inc. MEMORANDUM OPINION The employee or claimant, Mr. Lattimore, initiated this civil action to recover workers' compensation benefits for alleged injuries to his back, left leg and right leg resulting from an accident arising out of and in the course of his employment with the employer, TRW Steering Systems, in December 1999. He demanded, among other things, permanent partial disability benefits. The claim was settled on October 6, 22. The settlement order recites that the accident occurred on December 15, 1999 and provided for an award based on 19 weeks of benefits at the employee's agreed compensation rate. On March 8, 21, the claimant applied for reconsideration of the above award pursuant to Tenn. Code Ann. _ 5-6-241(a)(2), averring that he was no longer working for the employer. Because the claimant was seeking permanent total disability benefits and had disability pre-existing the December 1999 accident, the Second Injury Fund was added as an additional defendant. Both defendants denied liability. After a trial on the merits, the trial court found the employee to be permanently and totally disabled as a result of the combined effects of his pre-existing disabilities and those resulting from his work related accident of December 1999. The trial court found his disability from the work related accident to be 27 percent to the body as a whole and apportioned the award 27 percent to the employer and 73 percent to the Second Injury Fund. Because the employee was more than sixty years old at the time of his work related accident, the percentages were applied to 26 weeks, as required by Tenn. Code Ann. _ 5-6-27(4)(A)(I).1 The employer was given credit for benefits already paid as a result of the earlier settlement, but the Fund was not given credit for payments made by the employer in excess of its ultimate liability. As a result of the award, the employee will actually receive, when combined with the benefits already paid by the employer, 298.8 weeks of benefits or benefits for 38.8 weeks more than the maximum allowed by the above statute for workers more than sixty years old at the time of their compensable injuries. The Second Injury Fund contends its liability should be reduced, therefore, by 38.8 weeks. Put another way, the Fund seeks credit against its liability for benefits paid by the employer in excess of the employer's ultimate liability. The fund does not take issue with the factual findings of the trial court, including the apportionment of liability between it and the employer. 1. (4)(A)(i) PERM ANE NT TO TAL DISAB ILITY . For permanent total disability as defined in subdivision (4)(B), sixty-six and two-thirds percent (66 2/3 %) of the wages received at the time of the injury, subject to the maximum weekly benefit and minimum weekly benefit; provided, that if the employee's average weekly wages are equal to or greate r than the minim um weekly b enefit, the e mplo yee sha ll receive not less tha n the m inimum week ly bene fit; provided further, that if the employee's average weekly wages are less than the minimum weekly benefit, the employee shall receive the full amount of the employee's average weekly wages, but in no event shall the compensation paid be less than the minimum weekly benefit. This compensation shall be paid during the period of the pe rman ent total d isability until the e mplo yee is, by a ge, eligib le for full be nefits in the O ld Ag e Insur ance Be nefit Program under the Social Security Act; provided, that with respect to disabilities resulting from injuries which occur after 6 years of age, regardless of the age of the employee, permanent total disability benefits are payable for a perio d of two hund red six ty (26 ) week s. Such com pensation p ayme nts shall b e red uced by the a mou nt of any o ld age insurance benefit payments attributable to employer contributions which the employee may receive under the Social Security Act, U.S.C., title 42, chapter 7, subchapter II, as amended. -2-

Ralph Laverne Gholston v. Brown Chain Link Fence
M2002-02038-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Jeffrey F. Stewart, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the evidence preponderates against the trial court's finding of permanent and total disability and (2) the trial court erred by ordering the non-commuted benefits to be paid over a shortened period of time. As discussed below, the panel finds no reversible error in the record, but modifies the judgment with respect to the second issue, there being no objection to it. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JAMES L. WEATHERFORD, SR. J., joined. Randolph A. Veazey, Glasgow & Veazey, Nashville, Tennessee, for the appellants, Brown Chain Link Fence Construction Co., Inc. and Westfield Companies Edwin Z. Kelly, Jr., Kelly & Kelly, Jasper, Tennessee, for the appellee, Ralph Laverne Gholston Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund MEMORANDUM OPINION The employee or claimant, Mr. Gholston, initiated this civil action to recover workers' compensation benefits for an injury by accident arising out of his employment. His amended complaint named the employer, Brown Chain Link Fence Construction Co., Inc., the employer's insurer, Westfield, and the Second Injury Fund as defendants. After a trial, the trial court found the employee to be permanently and totally disabled and apportioned the award between the employer and the Second Injury Fund. The employer and its insurer have appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Richard Hughey v.Metro Gov' t Nashville and Davidson County
M2002-02240-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Richard Hughey, a former Metropolitan Nashville police officer, appeals the action of the Chancery Court of Davidson County in affirming the adverse decision of the Metropolitan Civil Service Commission, which had rejected his application for police department employment. We affirm the action of the Chancellor.

Mark Gore v. Department of Correction
M2002-02640-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
Mark B. Gore, an inmate in the Department of Corrections, appeals the action of the Chancery Court of Davidson County in granting a T.R.C.P. rule 12.02(6) motion to dismiss his Petition for a Writ of Certiorari. We affirm the action of the trial court.

Elizabeth Oliver v. Marc Oliver
M2002-02880-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal involves a father's effort to obtain primary physical custody of his now twelve-year-old daughter. Approximately three months after the parties' divorce, the father filed a petition in the Circuit Court for Davidson County seeking to hold the mother in criminal contempt for interfering with his visitation and for alienating their daughter. He later amended his petition to seek primary physical custody. Following a bench trial, the trial court held the mother in contempt but declined to change custody from the mother to the father. The father has appealed. We have determined that the trial court did not err by denying the father's petition to change custody.

Sierra Summerall v. Department of Correction
M2002-02033-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal arises from a prisoner disciplinary proceeding at the West Tennessee State Penitentiary. After a disciplinary board punished him for possession of marijuana, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Department of Correction had deprived him of due process by substantially departing from its Uniform Disciplinary Policies. The trial court dismissed the petition because it was not timely filed. The prisoner has appealed. We affirm the trial court.