James L. Kirchner vs. Jacqueline Kirchner
M2000-02102-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol A. Catalano

The trial court granted the husband a divorce, divided his military pension between the parties, and awarded the wife rehabilitative alimony. The wife argued on appeal that she should have been given a greater share of the husband's pension, and that the alimony award was inadequate. We affirm the property division and the amount of the alimony award, but remand this case to the trial court for a determination of whether a change of circumstances would entitle the wife to an extension in the duration of the award.

State of Tennessee v. Curtis Jason Ely And State of Tennessee v. Laconia Lamar Bowers
E1998-00099-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge James B. Scott

And No. E1998-00099-SC-R11-CD

This is a consolidated appeal from the defendants’ convictions in the Criminal Courts of  Anderson County and Knox County, respectively.  Defendant Ely was originally charged with one count of premeditated murder and one count of felony murder; defendant Bowers was charged with two counts of felony murder. In Ely’s case, the State nolle prossed the premeditated murder count upon the conclusion of the proof, and the trial court refused to instruct any lesser-included offenses to felony murder. He was convicted as charged of felony murder and sentenced to life imprisonment. In defendant Bowers’s case, the trial court dismissed the charges of felony murder at the conclusion of the proof and, over his objection, instructed the jury on the lesser offenses of second degree murder, reckless homicide, and criminally negligent homicide. Bowers was convicted of second degree murder.

On appeal to the Court of Criminal Appeals, Ely argued that the offenses of second degree murder, reckless homicide, criminally negligent homicide, facilitation of felony murder, and accessory after the fact to felony murder were all lesser-included offenses of felony murder and should have been instructed. A majority of the intermediate court held that accessory after the fact was not a lesserincluded offense of felony murder. However, assuming that the other lesser offenses were included, the Court of Criminal Appeals determined that no error occurred because the evidence did not -2- support an inference of guilt of any of the other lesser offenses. In his direct appeal, Bowers argued that second degree murder was not a lesser-included offense of felony murder and should not have been charged. The intermediate court held that second degree murder was a lesser-included offense of felony murder and that it was properly instructed in his case.

We granted review in this consolidated appeal to determine several issues: (1) whether there are any lesser-included offenses to felony murder; (2) if there are no lesser-included offenses, whether the conviction in Bowers’s case is therefore invalid; (3) if there are lesser-included offenses, whether failure to instruct such offenses was error in Ely’s case; and (4) whether any such error was harmless.  We also take the opportunity in this case to clarify the harmless error standard, which has been the subject of some confusion since our decision in State v. Williams, 977 S.W.2d 101, 104-06 (Tenn. 1998). We conclude that the offenses of second degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder, and therefore, instruction on these offenses in Bowers’s case was not error. In Ely’s case, we find that some evidence exists that reasonable minds could accept as to several lesser-included offenses, and therefore, the failure to instruct such offenses was error. Because we conclude that such error was not harmless beyond a reasonable doubt, we reverse Ely’s conviction and remand his case for a new trial.

William Harper v. Nestaway
W2000-02824-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. Creed Mcginley, Judge
In this appeal, the employee insists the evidence preponderates against the trial court's finding that the proof failed to establish permanency by a preponderance of the evidence. As discussed below, the panel has concluded the judgment should be affirmed.

Linda Harris v. Heritage Manor of Memphis
W2000-00081-WC-R3-CV
Authoring Judge: J. Steven Stafford, Special Judge
Trial Court Judge: Walter L. Evans, Chancellor
The trial court determined that the plaintiff had suffered a 2% vocational impairment to the left arm and a 1% vocational impairment to the right arm as the result of bilateral carpal tunnel syndrome. The defendant asserts that the plaintiff failed to prove her injury arose out of and within the course and scope of her employment; that she failed to give proper notice of her injury to the defendant; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, We affirm the judgment of the trial court.

Forrest L. Holder v. Terminex International Company,
W1999-01040-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp. J.
Trial Court Judge: George Brown, Judge
The appellant presents the following issues for review: (1) Whether the trial court correctly found that Mr. Holder did not give notice of a job injury or adequately disclose his condition; (2) Whether Mr. Holder permanently aggravated an underlying or pre-existing condition; (3) Whether Mr. Holder sustained any permanent partial disability as a result of his employment. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.

Paul Rodgers v. Marvin Windows of Tennessee,
W1999-01852-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp. J.
Trial Court Judge: Martha Brasfield, Chancellor
The appellant presents the following issues for review: (1) Whether the evidence preponderates against the trial court's finding that the plaintiff sustained a work related injury that resulted in a permanent disability to the plaintiff, and; (2) Whether the evidence preponderates against the trial court's finding that the Plaintiff had a 15% permanent partial disability. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.

Pamela Thomas v. Murray, Inc.
W2000-01280-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Julian P. Guinn, Judge
In this appeal, the employer insists the award of permanent partial disability benefits based on 3 percent to the right arm and 15 percent to the left arm is excessive and should be reduced to one based on 1 percent to the right arm and 5 percent to the left. As discussed below, the panel has concluded the award of permanent partial benefits should be modified to one based on its functional equivalent, 22.5 percent to both arms, and affirmed.

Brenda Thompson v. Ameristeel Corporation
W1999-01466-WC-R3-CV
Authoring Judge: J. Steven Stafford, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
The trial court determined that the plaintiff suffered a 24% vocational impairment to the whole body. On appeal, the defendant submits that the plaintiff failed to prove by a preponderance of the evidence that she sustained a vocational impairment as the result of her work with the defendant. The defendant also submits that the award of 24% to the whole body is excessive. For the reasons set forth below, We affirm the judgment of the trial court.

Terrance B. Burnett v. State of Tennessee
W2000-01954-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner appeals the dismissal of his petition for post-conviction relief, arguing that it was error for the post-conviction court to dismiss his petition without holding an evidentiary hearing. The petitioner pled guilty to two counts of felony murder, two counts of attempted first degree murder, and one count of especially aggravated burglary. In a pro se petition for post-conviction relief, the petitioner alleged that his trial counsel induced him to plead guilty just prior to the start of trial by showing him a videotape of a television show chronicling the final hours of a death row inmate's life. After appointing counsel, the post-conviction court dismissed the petition without an evidentiary hearing, ruling that the petition failed to present a colorable claim for relief. Based upon our review, we affirm the judgment of the post-conviction court.

State of Tennessee v. James L. Roberson, aka James Robinson, aka "Blookie"
W2000-02591-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, James L. Roberson, was charged with attempted second degree murder for the repeated stabbing of a female acquaintance and was convicted of the offense, following a bench trial. He testified that he was under the influence of drugs at the time of the offense and could not remember what had happened. He appealed the conviction, arguing that, as the result of his mental state, the proof was insufficient to sustain the conviction. We affirm the judgment of the trial court.

In the Matter of: A.M.B., D.O.B. 6-13-95, A Child Under Eighteen (18) Years of Age
M2000-01130-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge John P. Hudson

The only question involved in this appeal is whether it was in the best interests of a minor child to terminate the parental rights of the child's mother. The Juvenile Court of Putnam County found that fact against the mother. We affirm.

State of Tennessee v. Orlando Crenshaw
M2000-01459-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Stella L. Hargrove

The defendant challenges his conviction for attempted first degree murder, contending that the evidence was insufficient, the trial court should have granted a change of venue due to pervasive pretrial publicity, the trial court should have accepted the jury's statement that it could not return a unanimous verdict after it revealed its numerical division, and the jury was tainted by extraneous information. We affirm the judgment of conviction.

Dorothy Cathcart v. James Mark Tillar, et al.
M2000-01439-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Robert L. Holloway

This case presents the issue of whether the administrator of an estate breached his fiduciary duty, under the circumstances herein presented, when he failed to see that an asset of the estate worth in excess of $10,000 was properly insured. We find that Defendant breached his duty when, after he was informed by Plaintiff that she had paid off the bank note on the mobile home after attempting to sell it, he failed to make any inquiries into who would pay the insurance, how the insurance would be paid, when the insurance was due, or whether any insurance was in effect. This breach of duty caused loss to the estate when the mobile home was destroyed by a tornado while uninsured. As a result, we find Defendant liable to the estate in the amount of $11,415, as this is the amount the proof showed would have been paid by insurance.

Michael E. Waldron v. State of Tennessee
M2000-00772-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner appeals the denial of his petition for post-conviction relief. Having been indicted by a Davidson County Grand Jury on three counts of rape of a child and one count of aggravated sexual battery, the petitioner pled guilty to two counts of rape of a child, a Class A felony, and the remaining counts were dismissed. In this appeal, petitioner raises three issues: (1) whether he received effective assistance of counsel; (2) whether the State and the trial court should have requested forensic psychological evaluation of the petitioner and a competency hearing; and (3) whether his plea was constitutionally valid. The judgment of the post-conviction court is affirmed.

Ruth Marie Holland (Beddingfield) v. Maybron Hayes Holland, Jr.
M1999-02791-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal stems from a divorced couple's decision to modify the terms of an agreed order regarding the payment of their marital debt. Almost six years after the parties were divorced in the Chancery Court for Maury County, the husband agreed to release the wife from her obligation to pay a portion of the marital debt in return for her agreement to use her credit to help him purchase a new truck. After the wife repossessed the husband's new truck, the husband requested the trial court to enforce the original agreed order. The trial court determined that the original agreed order remained valid and awarded the husband $18,944 representing the payments the wife should have made under the agreed order. The wife asserts on this appeal that the parties' agreement to modify the agreed order was valid and that she had performed her obligations under the agreement. We agree and, accordingly, reverse the judgment for the husband and direct the trial court to enter an order releasing the wife from her obligation under the agreed order.

State of Tennessee v. Ronald Haynes
M2000-00204-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Seth W. Norman

The defendant was indicted by a Davidson County Grand Jury for especially aggravated robbery and attempted first degree murder. Following a two-day jury trial, the defendant was found guilty of especially aggravated robbery, a Class A felony, and attempted second degree murder, a Class B felony. A sentencing hearing was held on September 29, 1999, at the conclusion of which the trial court sentenced the defendant as a Range I offender to twenty-one years at 100% for the especially aggravated robbery conviction and ten years for the attempted second degree murder conviction. The sentences were ordered served concurrently in the Tennessee Department of Correction. In this appeal as of right, the defendant presents three issues for our review: (1) whether the evidence is sufficient to support his convictions for especially aggravated robbery and attempted second degree murder; (2) whether the trial court erred in failing to charge the jury on certain lesser-included offenses; and (3) whether the sentence is excessive. Having reviewed the entire record on appeal, we affirm the judgment of the trial court.

Betty L. Johnson, et al., v. Charles S. Settle, M.D., et al.
M1999-01237-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal of a jury verdict based on personal injuries plaintiff received as a result of the wrong acetic acid solution being applied during a colposcopy. Metro Medical Supply, Inc., the supplier of the acid, appeals the trial court's decisions on post trial motions and the amount of the remittitur. Among other grounds, Metro Medical asserts that it is not liable because any acts or omissions on its part were too remote and that there were intervening superceding causes that were the legal and proximate cause of plaintiff's injuries. We agree, and for the reasons below, we find that Metro Medical was not legally liable to plaintiffs and any negligence on its part was superceded by unforeseeable intervening causes. Accordingly, the judgment against Metro Medical Supply, Inc. is reversed.

State of Tennessee v. Leonard Edward Baugh, Jr., Damian Lamar Owes and Marquez Donnell Crenshaw
M2000-00477-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The co-defendants, Leonard Edward Baugh, Jr., Damian Lamar Owes, and Marquez Donnell Crenshaw, were indicted by the Davidson County Grand Jury on one count of especially aggravated robbery, five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of aggravated assault. Baugh was additionally indicted on one count of resisting arrest and one count of unlawful possession of a weapon by a convicted felon. The counts of aggravated assault were later dismissed. Following their joint trial, all co-defendants were found guilty of especially aggravated robbery, five counts of especially aggravated kidnapping, and aggravated burglary. Baugh was also convicted of unlawful possession of a weapon by a felon. On appeal, each of the co-defendants challenges the sufficiency of the convicting evidence, arguing that the State failed to offer sufficient proof of identity. After a thorough review of the record, we affirm the judgments of the trial court. The matter is remanded to the trial court for correction of clerical errors in the judgments.

Paula C. Bencriscutto, v. Lamesia Simmons and Brooke A. Lucas, v. Lamesia Simmons
M2000-01816-COA-R3-CV
Authoring Judge: Judge J. S. Steve Daniel
Trial Court Judge: Judge Walter C. Kurtz

This consolidated appeal concerns a multiple vehicle automobile collision which occurred during interstate rush hour traffic in Nashville. Lamesia A. Simmons' vehicle came into contact with the rear portion of Paula C. Bencriscutto's vehicle during an attempted lane change. This impact then caused the Bencriscutto vehicle to come into contact with Brooke A. Lucas' vehicle. Lawsuits were instituted in the Circuit Court of Davidson County by both Lucas and Bencriscutto against Simmons to recover damages associated with the collision. These suits were consolidated for trial and this subsequent appeal. At the close of the Plaintiffs' proof the court directed a verdict in favor of the plaintiffs and against Simmons. The issue of damages was then submitted to the jury with a verdict of $9,947.69 being returned in favor of Bencriscutto and in the amount of $5,482.50 for Lucus. Ms. Simmons appeals insisting that the trial court erred in granting the directed verdict. We affirm the action of the trial court in directing the verdict and the damage award.

IN RE: Guardianship of Courtney Warner Hodges
W2000-01424-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Donn Southern

This appeal arises from the deed and devise of property to Courtney Warner Hodges, a minor, by her great grandmother, now deceased. The Appellee brought a petition for appointment of a guardian for Courtney in the Probate Court of Shelby County. The petition stated that Courtney needed a guardian to represent her interests and collect and invest her income from the property. The petition also stated that the income interest to Courtney was not encumbered by trust. Following a hearing, the trial court entered an order for management of minor's estate. The trial court found that the evidence was insufficient to impose oral trusts upon the property.

State of Tennessee v. Alkita M. Odom
M2000-02676-CCA-R9-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jane W. Wheatcraft

This is an interlocutory appeal by the State pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Defendant, Alkita M. Odom, was indicted for the offenses of forgery and criminal simulation, each in the amount of $250,000. The indictment reflected that each offense was a Class B felony. Upon the Defendant's motion, the trial court dismissed the indictment to the extent that it reflected Class B felonies because the court found that for the crime to be anything other than Class E felonies, the Defendant would have had to have actually obtained goods or services. The court then granted the State's motion to amend the indictment to reflect Class E felonies for the purposes of appeal. The State argues on appeal that the trial court improperly dismissed the indictment based on the grade of the offense charged. We agree. Accordingly, we reverse the dismissal of the indictment and reinstate it as originally returned by the Grand Jury.

Danny Thomas vs. Dr. Molly O'Toole, et al
M2001-00305-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Hamilton V. Gayden, Jr.
Appellant, Danny Ray Thomas, a prison inmate, brought suit against two medical doctors, Molly P. O'Toole and Donald J. Boatright, on September 1, 2000 alleging various acts of malpractice. On November 9, 2000, Plaintiff sought a default judgment. On November 15, 2000, counsel for Defendants made his appearance and, on November 22, 2000, answered the complaint. Both Defendants filed motions for summary judgment, which motions were granted by the trial court. Plaintiff appealed, and after consideration, we affirm the judgment of the trial court.

State of Tennessee v. Frankie L. Richardson
M2000-02518-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald P. Harris

The Defendant, Frankie L. Richardson, appeals as of right from the revocation of his probation. He argues that the trial judge abused his discretion by revoking probation. We find no abuse of discretion; thus, we affirm the judgment of the trial court.

Mohamed Ali v. Board of Paroles
M2001-02302-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
Appellant, an inmate of the Department of Corrections, appeals the dismissal of his Petition for Certiorari in the Chancery Court of Davidson County. He was convicted in 1993 of one count of rape and one count of attempted bribery of a witness. He received sentences of twelve years and three years, respectively, to be served consecutively. He seeks mandatory parole under Tennessee Code Annotated section 40-28-117(b) and other relief. We affirm the judgment of the trial court.

State of Tennessee v. Paul Dennis Reid, Jr.
M1999-00803-CCA-R3-DD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackburn

Paul Dennis Reid, Jr. was found guilty by a jury of two counts of first-degree murder and one count of especially aggravated robbery. Reid’s convictions stem from the execution style murders of two Captain D’s employees and the especially aggravated robbery of one of the employees. The jury returned a sentence of death for each of the homicides based upon its finding of three aggravating factors, i.e., (i)(2), prior violent felony; (i)(6), murder committed for the purpose of avoiding prosecution; and (i)(7), murder committed during commission of robbery. The Davidson County Criminal 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.  In this appeal as of right, Reid presents numerous issues for our review, including (1) issues arising from suppressed evidence; (2) challenges to the selection of jurors; (3) the sufficiency of the convicting evidence; (4) the admission and exclusion of evidence at both the guilt and penalty phases; (5) the propriety of the prosecution’s closing argument during the guilt phase; (6) the failure to instruct on lesser-included offenses; (7) the trial court’s act of holding court into late hours of the evening without cause; (8) the admissibility in general and the introduction of specific victim impact evidence; (9) prosecutorial misconduct during closing argument; (10) the propriety of the jury instructions; (11) whether application of the (i)(7) aggravator violates State v. Middlebrooks; (12)
the propriety of a twenty-five-year sentence for especially aggravated robbery; (13) the constitutionality of Tennessee’s death penalty statutes; and (14) whether the sentences of death imposed by the jury are proportionate sentences. After a careful review of the record, we affirm Reid’s convictions for two counts of first-degree murder and one count of especially aggravated robbery. Additionally, we affirm the imposition of the sentences of death and the accompanying sentence for especially aggravated robbery.