Michael A. Pounds v. State of Tennessee
M2004-00731-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jim T. Hamilton

The Defendant, Michael A. Pounds, appeals from the trial court's dismissal of his petition seeking habeas corpus relief. The State has filed a motion requesting that this court affirm the trial court's dismissal of the petition pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed.

Wayne Court of Criminal Appeals

State of Tennessee v. John C. Walker, III
M2005-01432-CCA-RM-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lillie Ann Sells

This case is before us after remand by the Tennessee Supreme Court. The Appellant, John C. Walker, III, was convicted of second degree murder and sentenced to twenty-five years. On direct appeal, this court originally affirmed the conviction and sentence. See State v. John C. Walker, III, No. M2003-01732-CCA-R3-CD (Tenn. Crim. App. at Nashville, filed Aug. 11, 2004). Subsequently, this court granted the Appellant's motion to rehear, pursuant to Tennessee Rule of Appellate Procedure 39, as to the application of enhancement facts, in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Upon rehearing, the Appellant's sentence was reduced to twenty years due to Blakely violations in the application of enhancement factors. See State v. John C. Walker, III, No. M2003-01732-RC-CD (Tenn. Crim. App. at Nashville, filed Feb. 8, 2005), perm. to appeal granted (Tenn. June 20, 2005). Subsequently, our supreme court released the case of State v. Edwin Gomez and Jonathan S. Londono, No. M2002-01209-SC-R77-CD, ____ S.W.3d ____ (Tenn. Apr. 15, 2005). Therein, the court concluded that Tennessee's sentencing structure is not impacted by Blakely. This case has now been remanded to this court for reconsideration in light of Gomez. See State v. John C. Walker, III, No. M2003-01732-SC-R11-CD (Tenn. at Nashville, June 20, 2005). After our review in light of State v. Gomez, we affirm the conviction and sentence as imposed by the trial court.

Putnam Court of Criminal Appeals

State of Tennessee, Department of Children's Services, v. AAB, In the Matter of : NAB, (7/27/99)
E2005-00354-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Thomas J. Wright

The Trial Court terminated the mother's parental rights on statutory grounds. On appeal, we affirm.

Greene Court of Appeals

I & L Investments, LLC et al. v. Cagle's Construction, LLC et al.
E2005-00654-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

I & L Investments, LLC ("I & L"), and Wet Willy's Fireworks Supermarkets of Tennessee, Inc. ("Wet Willy's"), sued Cagle's Construction, LLC, and Ed Cagle (collectively the "Cagles"), seeking to enforce restrictive covenants with respect to real property owned by Cagle's Construction, LLC. The trial court granted the defendants summary judgment, holding that the defendants' tender of $100,000 to I & L as liquidated damages pursuant to the provisions of a document entitled "Settlement and Mutual Release" barred the plaintiffs' attempt to enforce the restrictive covenants. The plaintiffs appeal the trial court's judgment, contending that the court erred in failing to enforce the restrictive covenants against the Cagles in of their plan to construct a building on the property for the purpose of selling fireworks. We affirm.

Bradley Court of Appeals

Trammell Cemetery Trust, by and through its duly appointed Trustees, Ralph S. Davis, Herman Trammell and Wendell Trammell vs. Ronnie Yancey and wife, Rita Yancey, and Joe Trammell, Jr., and wife, Linda Trammell, et al.
E2004-01732-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Conrad Troutman, Jr.

In this action, the Trial Court granted appellees summary judgment which adjudicated fewer than all of the claims or rights and liability of all of the parties. We dismiss the appeal from that Judgment and remand with instructions.

Scott Court of Appeals

State of Tennessee v. Burn Harris Dockery, Jr.
E2004-02094-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Ben W. Hooper, II

A jury convicted the Defendant, Burn Harris Dockery, Jr., of reckless aggravated assault, a class D felony. The trial court sentenced the Defendant to three years, as a Range I standard offender, and it ordered that the Defendant serve sixty days in the county jail and the additional two years and ten months on probation. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction; and (2) the trial court improperly sentenced him. Finding no error in the judgment of the trial court, we affirm the Defendant's conviction and sentence.

Cocke Court of Criminal Appeals

Curtis Meredith v. Cruthchfield Surveys, et al.
E2004-02460-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John D. McAfee

Curtis Meredith sued Crutchfield Surveys and Jerry Crutchfield for damages allegedly sustained by the plaintiff as a result of incorrect surveys prepared by the defendants. The trial court dismissed the plaintiff's suit. He appeals, asserting that the trial court erred in dismissing his complaint. We hold that the plaintiff's suit was not filed within the time specified in the applicable statute of repose and that the plaintiff's generally-worded charge of fraud fails to satisfy the requirements of Tenn. R. Civ. P. 9.02. Accordingly, the judgment of the trial court is affirmed.

Campbell Court of Appeals

Keuntray Henson v. State of Tennessee
W2004-02164-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Fred Axley

The petitioner challenges the denial of his post-conviction petition, in which he alleged ineffective assistance of counsel. Upon review, we conclude that the evidence on appeal does not preponderate against the post-conviction court’s findings that: (1) counsel adequately informed the petitioner regarding the filing of a motion to suppress; and (2) no hearingwas necessary on the motion because the petitioner opted to plead guilty. Therefore, we affirm the denial of post-conviction relief.

Shelby Court of Criminal Appeals

David Johnson v. State of Tennessee
W2004-02170-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John P. Colton, Jr.

The petitioner appeals the denial of post-conviction relief. Specifically, he contends that trial counsel was ineffective in (1) failing to discover the true identity of the State’s primary witness at an earlier date; and (2) failing to adequately meet with him in preparation for trial. Upon review, we conclude that the petitioner has failed to meet his burden with respect to both claims; therefore, we affirm the post-conviction court’s denial of relief.

Shelby Court of Criminal Appeals

Gary Lee Miller v. State of Tennessee
M2004-00987-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

The petitioner, Gary Lee Miller, stands convicted of aggravated kidnapping, for which he was classified as a habitual offender and, therefore, ordered to serve 100 percent of his 16-year sentence. See State v. Gary Lee Miller, No. M1998-00788-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nashville, Mar. 6, 2000). He filed a petition for post-conviction relief alleging ineffective assistance of counsel. After conducting an evidentiary hearing, the post-conviction court denied the petition. Aggrieved by the lower court's ruling, the petitioner now brings the instant appeal. After a thorough review of the issues and applicable law, we affirm the judgment of the lower court.

Davidson Court of Criminal Appeals

Kevin Joseph Karr v. State of Tennessee
M2005-00733-CCA-R3-HC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert L. Jones

Appellant, Kevin Joseph Karr, has appealed from the trial court's order summarily dismissing, without an evidentiary hearing, his petition for writ of habeas corpus. The State has filed a motion for the trial court's judgment to be affirmed pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. We grant the motion and affirm the judgment of the trial court. After the State's motion was filed, Appellant filed a motion for an attorney to be appointed to represent him. In light of our ruling on the State's motion, the defendant's motion is denied by separate order.

Wayne Court of Criminal Appeals

State of Tennessee v. Billy Ray Riley
W2004-02016-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roger A. Page

A Madison County Circuit Court jury convicted the appellant, Billy Ray Riley, of theft of property valued one thousand dollars or more but less than ten thousand dollars, and the trial court sentenced him as a Range III offender to twelve years in the Department of Correction. In this appeal, the appellant claims that the evidence is insufficient to support the conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Madison Court of Criminal Appeals

State of Tennessee v. Frankie Sue Dees
W2004-02109-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge C. Creed Mcginley

The defendant, Frankie Sue Dees, pled guilty to one count of theft over $1,000. The trial court imposed a Range I sentence of two years in the Department of Correction. In this appeal, the defendant asserts that the trial court should have placed her on community corrections or full probation. The judgment of the trial court is affirmed.

Hardin Court of Criminal Appeals

Johnny L. Butler v. State of Tennessee
W2004-02237-CCA-R3-CO
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Chris B. Craft

The petitioner, Johnny L. Butler, appeals the dismissal of his petition for writ of error coram nobis.  In this appeal, he asserts that his conviction is void because the indictment was defective and that his guilty plea was not knowingly and intelligently made. The judgment of the trial court is affirmed.

Shelby Court of Criminal Appeals

State of Tennessee ex rel. William L. Gibbons, District Attorney General v. Club Universe
W2004-02761-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This is a public nuisance case. The Shelby County district attorney general filed a petition in general sessions court, asking the court to declare a local nightclub a public nuisance and to enjoin the nightclub from further operation. This division of the general sessions court was designated as an environmental court pursuant to Tennessee statute. After a hearing, the environmental court found that the nightclub was a public nuisance and permanently enjoined operation of the nightclub. The nightclub appealed this ruling to both the circuit court, requesting de novo review, and to this Court.  The circuit court held that it did not have jurisdiction to hear the appeal because the appeal would lie with this Court. Because the environmental court had concurrent jurisdiction with the circuit court, we affirm the trial court’s holding that the appeal from environmental court lies in this Court.  Further, we affirm the environmental court’s finding that the nightclub is a public nuisance and the grant of a permanent injunction.

Shelby Court of Appeals

Michael Keith Kennedy v. Kevin Myers, Warden
M2004-01722-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

The petitioner, Michael Keith Kennedy, entered pleas of nolo contendere in Chester County and in Henderson County to aggravated burglary, possession of marijuana, and numerous counts of burglary of an automobile, theft, and vandalism. The petitioner received a total effective sentence of fifteen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for a writ of habeas corpus. The habeas corpus court summarily denied the petition, and the petitioner appeals the denial. Upon our review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

Wayne Court of Criminal Appeals

State of Tennessee v. Thomas White Jr.
E2004-00945-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Douglas A. Meyer

After pleading guilty to various charges, the appellant, Thomas White, Jr., was placed on intensive probation for seven (7) years in 2002. In February of 2003, the appellant was arrested twice for violation of the Motor Vehicle Offencer Act, Tennessee Code Annotated sec. 55-10-616. A probation violation warrant was issued against the appellant. After a bench trial, the appellant was found guilty of both counts of violating Tennessee Code Annotated sec. 55-10-616. As a result, the trial court revoked the appellant's probation and ordered the appellant to serve an effective fourteen (14) year sentence. Because we are unable to discern the trial court's intentions from either the transcript of the hearing or the judgments, we reverse and remand this case for entry of corrected and clarified judgments.

Hamilton Court of Criminal Appeals

Samuel Pendergrass v. State of Tennessee
E2004-02304-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Rebecca J. Stern

The Appellant, Samuel Pendergrass, appeals the Hamilton County Criminal Court's denial of his petition for post-conviction relief. On appeal, Pendergrass argues that his guilty pleas to four misdemeanor counts of passing worthless checks and one count of felony theft of property over $1,000 were not knowing and voluntary due to the ineffective assistance of counsel. After review, the judgment of the post-conviction court is affirmed.

Hamilton Court of Criminal Appeals

State of Tennessee v. Willie Joe Frazier
M2003-03014-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Charles Lee

In 1980, the Appellant, Willie Joe Frazier, was indicted for multiple counts of armed robbery and related assaults stemming from his participation, along with two other accomplices, in the robbery of a number of employees and customers of a pharmacy in Lewisburg. However, Frazier escaped from jail before his scheduled trial and was not apprehended until 2002. In 2003, Frazier was convicted by a Marshall County jury of two counts of malicious shooting, one count of assault with intent to commit voluntary manslaughter, one count of assault with intent to commit first degree murder, one count of aggravated assault, six counts of armed robbery, and two counts of assault with intent to commit robbery. The jury sentenced Frazier to indeterminate sentences for all the convictions except the six armed robberies, for which the jury fixed sentences of life imprisonment. The trial court grouped the thirteen convictions into three categories for purposes of consecutive sentencing, resulting in six concurrent life sentences consecutive to concurrent sentences of eight to twenty years and consecutive to a ten to twenty-five year sentence. This resulted in an effective sentence of life plus eighteen to forty-five years in the Department of Correction. On appeal, Frazier argues: (1) he was sentenced to crimes for which no guilty verdicts were returned by the jury; (2) the evidence is insufficient to support his convictions for assault with intent to commit robbery of Ollie Bagley and assault with intent to commit robbery of Goldie Crabtree; (3) the jury's sentencing verdicts reflect two sentences which were not authorized for the crimes for which he was convicted; (4) his convictions for malicious shooting must be set aside because (a) he was never indicted for these crimes, (b) they are not lesser offenses of any indicted offenses, and (c) his dual convictions for malicious shooting and assault with intent to commit voluntary manslaughter of Judy Watson constitute double jeopardy; and (5) the trial court erred by imposing consecutive sentences. After review, we find no error with regard to issues (1) and (5). With regard to issue (2), we conclude that the evidence is insufficient to support his two convictions of assault with intent to commit robbery; therefore, the convictions are modified to reflect convictions for aggravated assault, with the respective sentences fixed at not less than two years nor more than ten years. Issue (3) is rendered moot in view of our holding in issue (2). With regard to issue (4), we conclude that double jeopardy principles preclude dual convictions for assault with intent to commit voluntary manslaughter and malicious shooting. Accordingly, we merge the Appellant's conviction for assault with intent to commit voluntary manslaughter into his conviction for malicious shooting and remand for entry of a single judgment of conviction for malicious shooting.

Marshall Court of Criminal Appeals

Mark Smith v. Smith Imports, Inc., et al.
W2004-02022-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This appeal arises from an order granting summary judgment. The trial court granted summary judgment for one of the defendants and the plaintiff appealed to this Court. After reviewing the record, we dismiss this appeal for lack of subject matter jurisdiction.

Shelby Court of Appeals

Ricky Gene Campbell v. Wanda Suzanne Campbell
W2004-01608-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Dewey C. Whitenton

This is a child custody dispute involving the appointment of a guardian ad litem. The parties agreed to the appointment of a guardian ad litem. After an investigation, the guardian ad litem recommended that primary custody be awarded to the father. The mother filed a motion to remove the guardian ad litem. The trial court did not do so. After a bench trial, the father was designated the primary residential parent. The mother asserts that the guardian ad litem appointed by the trial court appeared biased towards the father because the guardian ad litem knew the father’s sister. The mother now appeals. We affirm, finding no abuse of discretion in the trial court’s decision not to remove the guardian ad litem.

Fayette Court of Appeals

State of Tennessee v. Mark S. Armstrong
M2004-02432-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James K. Clayton, Jr.

A Rutherford County jury convicted the Defendant, Mark S. Armstrong, of aggravated rape, and the trial court sentenced the Defendant to twenty years, as a Range I offender. On appeal, the Defendant contends that: (1) the trial court erred when it failed to grant the Defendant’s motion for a mistrial when inadmissible evidence was admitted through an inadequate redaction of a videotaped statement; (2) the trial court erred in failing to provide an adequate limiting instruction to the jury regarding a videotape sound malfunction; (3) the trial court erred when it failed to require the State to make an election of the offense for which it sought a conviction; (4) the trial court erred in failing to grant the Defendant’s motion for judgment of acquittal; and (5) the evidence is insufficient to sustain the Defendant’s conviction. Finding no error, we affirm the judgment of the trial court.

Rutherford Court of Criminal Appeals

Melvin E. Waters v. Kenneth Locke, Warden
M2004-02814-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Monte D. Watkins

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court’s order summarily dismissing the petition for the writ of habeas corpus.  In that petition the petitioner sought a writ of habeas corpus to release him from his sentence for facilitating aggravated robbery. We are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

Davidson Court of Criminal Appeals

Rem Noble and Brandt Noble, Individually, and d/b/a/ Noble, Inc. v. Tom Pease, Individually, and Corporate Copy, Inc.
W2004-00439-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This case is about the sale of a business. The owner of a copy machine business sold the assets of the
business to a competitor. The buyer purchased the company through a promissory note that required monthly payments. After the sale, the seller and the seller’s son became employees of the buyer.  However, while employed by the buyer, the seller continued to deal in copy machines on the side.  The seller voluntarily left employment, and his son was fired. After the buyer learned of the seller’s side dealings in copiers, the buyer stopped making payments on the promissory note. The seller sued the buyer for failing to make the agreed upon payments. The buyer counter-sued for breach of contract. After a trial, the trial court rescinded the purchase agreement. We reverse, finding that rescission was not an appropriate remedy in this case, and remand for a determination of the appropriate damages.

Shelby Court of Appeals

Jorge Acosta Rubio v. Tony Parker, Warden
W2004-02850-CCA-R3-HC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Jorge Acosta Rubio, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we grant the State’s motion and affirm the judgment of the lower court.

Lake Court of Criminal Appeals