State of Tennessee v. Darrell Toomes
W2004-01739-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Joseph H. Walker, III

A Lauderdale County Circuit Court jury convicted the defendant, Darrell Toomes, of robbery, a Class C felony. The trial court sentenced him as a Range I, standard offender to five years in the Department of Correction. On appeal, the defendant contends (1) that the evidence is insufficient to convict him as the perpetrator, (2) that the trial court erred by denying his motion to suppress evidence relating to a photograph array and a subsequent in-court identification of him, and (3) that his sentence is excessive. We affirm the judgment of the trial court.

Beverly Miller, et al. v. United Automax
W2003-01394-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Robert A. Lanier

This case arises out of the sale of a used car which Plaintiffs, the buyers of the car, maintain was damaged prior to sale despite Defendant’s denial of damage. A jury found for Plaintiffs, the buyers, on their claims for both common law intentional misrepresentation and for violation of the Tennessee Consumer Protection Act, Tennessee Code Annotated section 47-18-101 et seq. (1995). Plaintiffs elected to receive the punitive damages awarded by the jury under the common law claim in lieu of treble damages under the Tennessee Consumer Protection Act. When Plaintiffs then requested attorney’s fees under the Act, the trial court held that they could not receive both punitive damages and attorney’s fees. The trial court also held that the election of remedies made by Plaintiffs had become final before the entry of judgment and before Plaintiffs were informed of the amount they might have received in attorney’s fees under the Act and that Plaintiffs could not amend their election of remedies. The Court of Appeals upheld the decision of the trial court. We reverse, holding that Plaintiffs can receive both punitive damages under the common law misrepresentation claim and attorney’s fees under the Tennessee Consumer Protection Act. We remand to the trial court for award of appropriate attorney’s fees and costs.

Robert D. Walsh v. State of Tennessee
W2003-02040-SC-R11-PC
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Arthur T. Bennett

This case comes before us on appeal from a denial of post-conviction relief. The petitioner sought relief from his conviction for aggravated sexual battery, raising several claims including that he was denied his right to a fair and impartial jury trial because of an improper communication by a court officer to the jury during deliberations. During the hearing on the post-conviction petition, the court heard testimony from a juror regarding the content of the communication and also the subjective effect of the officer’s statement upon the juror. At the close of the hearing, the trial court found that the improper communication had not influenced the verdict and therefore denied the petition for post-conviction relief. Upon review, the Court of Criminal Appeals affirmed. In this Court, the petitioner challenges admission of the juror’s testimony relating to the effect of the court officer’s statement on the juror. After thorough consideration, we reverse the Court of Criminal Appeals.

We hold that Tennessee Rule of Evidence 606(b) prohibits introduction of juror testimony concerning the effect on the juror of an improper communication by a court officer during jury deliberations.

Estate of Charles Thomas McCraw, Deceased v. Joan Likins
W2004-01172-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Dewey C. Whitenton

This case involves codicils to a will. The decedent died testate. His will included one typed codicil and two handwritten codicils. The typed codicil, pursuant to a marital dissolution agreement, granted the decedent’s former spouse a life estate in his real property with the remainder to their children, and devised all of the personal property to the children as well. The decedent later handwrote two codicils addressing the disposition of certain personal property and debts. After his death, the devisee under the handwritten codicils intervened in the probate proceedings to enforce the codicils. The trial court ruled that the handwritten codicil addressing the personal property violated the marital dissolution agreement and was therefore invalid. It held that the codicil addressing the debt did not violate the marital dissolution agreement and that the estate should pay for the debt, as set forth in the codicil.  Other matters remained outstanding, and the trial court, under Tennessee Rules of Civil Procedure 54.02, made the order final. Because the outstanding matters could render this Court’s ruling moot, we find that the order was improvidently made final and dismiss the appeal.

Thomas Wray v. State of Tennessee
E2004-02901-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Buddy D. Perry

The appellant, Thomas Wray, appeals from the denial of his petition for the writ of habeas corpus wherein he alleges that his guilty pleas and sentences in the Hamilton County Criminal Court to two (2) offenses committed while he was a juvenile are void. For the reasons stated below we find that the habeas court properly denied habeas corpus relief and we therefore affirm the decision of the lower court.

State of Tennessee v. Ronald Benjamin Irwin
E2004-01560-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Phyllis H. Miller

The appellant, Ronald Benjamin Irwin, was convicted by a jury of aggravated robbery. As a result, the appellant was sentenced as a Range I, standard offender to a nine-year sentence. On appeal, the appellant challenges the sufficiency of the evidence and his sentence as excessive. Because we determine that the evidence was sufficient to support the conviction and that the trial court did not err in sentencing the appellant to serve nine (9) years in incarceration, we affirm the judgment of the trial court.

Anthony D. Forster v. State of Tennessee
M2004-00452-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Seth W. Norman

The petitioner, Anthony D. Forster, appeals the summary dismissal of his petition for post-conviction relief. The judgment of the post-conviction court is affirmed.

State of Tennessee v. Michael Ricardo Martin
M2004-00455-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve R. Dozier

On March 25, 2002, the defendant, Michael Ricardo Martin, was indicted by the Davidson County Grand Jury on two (2) counts of rape for an incident that occurred on November 27, 2001. A jury trial was held and the defendant was convicted of one (1) count of rape and one (1) count of sexual battery. The trial court sentenced the defendant to concurrent sentences of ten (10) years for the rape conviction and two (2) years for the sexual battery conviction. On appeal the defendant argues that the trial court erred by not granting his motion for judgment of acquittal, by granting the State's motion in limine regarding evidence concerning a prior hymenal injury sustained by the victim and by sentencing the defendant to a ten (10) year effective sentence. We affirm the judgments of the trial court.

State of Tennessee v. Kevin Bufford
M2004-00536-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

The appellant, Kevin Bufford, pled guilty to one (1) count of aggravated robbery and one (1) count of carjacking while reserving a certified question of law for appeal. In that certified question of law, the appellant challenges the trial court's denial of a motion to suppress the evidence obtained as the result of what the appellant argues was an illegal arrest. Because we determine that the certified question is not dispositive, we dismiss the appeal and remand the matter to the trial court for any further proceedings which may be necessary.

Robert Gamble v. State of Tennessee
W2004-00977-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Fred Axley

Following a jury trial, Petitioner, Robert Gamble, was convicted of two counts of aggravated robbery, one count of fraudulent use of a credit card, and one count of theft of property over five hundred dollars. Petitioner’s conviction and sentence were affirmed by this Court on direct appeal,
and Petitioner’s Rule 11 application was denied by the Supreme Court. Petitioner filed a petition for post-conviction relief, which was subsequently amended. Following a hearing, the post-conviction court dismissed Petitioner’s amended petition for post-conviction relief. In this appeal, Petitioner argues that the court erred when it dismissed his petition for post-conviction relief because he received ineffective assistance of counsel at his trial. After a thorough review of the record, we find that the lower court properly dismissed the petition. As such, the judgment of the post-conviction court is affirmed.

David Johnson v. State of Tennessee
W2004-02017-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge William B. Acree, Jr.

Petitioner, David Johnson, appeals the dismissal of his pro se petition for post-conviction relief. On appeal, Petitioner argues that his trial counsel rendered ineffective assistance of counsel when he failed to interview or call a witness who could have provided an alibi for Petitioner on the night of
the offenses. After a review of the record in this matter, we affirm the post-conviction court’s dismissal of the petition.

State of Tennessee v. Carlos Weeks
W2004-02235-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Carolyn Wade Blackett

The defendant, Carlos Weeks, was indicted in Shelby County for four counts of aggravated robbery. Two of the four counts were alternative charges. The defendant was convicted of all four counts and the trial court merged the alternative counts into two convictions. The trial court imposed a concurrent, Range I sentence of ten years for each of the two offenses. In this appeal as of right, the defendant asserts that there is a material variance between the indictment and the evidence presented at trial and that the evidence is insufficient to support either conviction. The judgments of the trial court are affirmed.

State of Tennessee v. Kenneth Buford, alias
E2004-01780-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Richard R. Baumgartner

The defendant appeals his conviction for reckless endangerment, contending specifically that the evidence was insufficient to prove that he placed anyone in imminent danger of death or serious bodily injury. Upon review, we conclude that because the defendant fired the gun in the air, away from any person or potentially occupied building, the evidence is insufficient to sustain his conviction. Therefore, we reverse the conviction and dismiss the charges.

State of Tennessee v. Michael L. Calandros
E2004-02382-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John Everett Williams

The defendant appeals the trial court's denial of pretrial jail credits. We conclude that Tennessee Rule of Appellate Procedure 3 does not provide an appeal as of right from the trial court's action. Moreover, because the sentence is neither illegal nor void, the appeal cannot be treated as a writ of certiorari. Therefore, because this matter is not properly before us, we dismiss the appeal.

State of Tennessee v. Allen Jean Stephens
M2004-00531-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge William B. Acree, Jr.

Following a jury trial, Defendant, Allen Jean Stephens, was convicted of one count of possession of more than .5 grams of cocaine with intent to sell, a Class B felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced Defendant as a Range III, persistent offender, to twenty-three years for the felony drug conviction, and eleven months, twenty nine days for his misdemeanor conviction. The trial court ordered Defendant’s sentences to run concurrently, for an effective sentence of twenty-three years. Defendant does not appeal the length of his sentences or the sufficiency of the convicting evidence. Defendant argues however, that the trial court erred in denying Defendant’s motion to suppress the crack cocaine found at his house during the execution of a search warrant; and that the trial court erred in ruling admissible certain evidence about a prior sale of crack cocaine, an offense for which Defendant was not charged.  Following a review of the record, we affirm the judgments of the trial court.

State of Tennessee v. Anthony Crowe
W2003-00800-SC-R11-CD
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge Jon Kerry Blackwood

The defendant, Anthony Crowe, entered a plea of nolo contendere to facilitation of first degree murder and received an eighteen-year sentence. After imposition of the sentence, but before the judgment became final, the defendant filed a motion to withdraw his plea alleging that the plea was not supported by a factual basis and that the plea had not been voluntarily, knowingly, and understandingly entered. The trial court denied the defendant’s motion, and the Court of Criminal Appeals affirmed. We granted permission to appeal to consider whether the trial court erred in denying the defendant’s motion to withdraw. Although we conclude that Tennessee Rule of Criminal Procedure 11(f) does not mandate that a plea of nolo contendere be supported by a factual basis, we also conclude that the trial court erred in denying the defendant’s motion to withdraw because the defendant established that his plea had not been voluntarily, knowingly, and understandingly entered. Thus, permitting withdrawal of the plea is necessary to correct manifest injustice. Tenn. R. Crim. P. 32(f). Accordingly, we reverse the judgment of the trial court and the judgment of the Court of Criminal Appeals, grant the defendant’s motion to withdraw his plea, vacate the conviction of facilitation of first degree murder, and remand this case to the trial court for further proceedings consistent with this opinion.

State of Tennessee v. Travis Young
W2004-01752-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Otis Higgs, Jr.

Following a jury trial, Defendant was convicted in case no. 03-05457 of two counts of aggravated assault, a Class C felony, two counts of reckless aggravated assault, a Class D felony, and one count of evading arrest, a Class D felony . Defendant was convicted in case No. 03-05459 of two counts of aggravated robbery, a Class B felony, and one count of aggravated assault, a Class C felony, against victim Christopher Bridges. The trial court sentenced Defendant as a Range II, multiple offender, to six years for each of his Class C and Class D felony convictions. The trial court merged Defendant’s aggravated robbery convictions in counts one and two in case No. 03-05459, and
sentenced Defendant as a Range I, standard offender, to ten years for the aggravated robbery conviction. The trial court ordered Defendant’s sentences in case No. 03-05457 to be served concurrently. The trial court ordered Defendant’s sentences in case No. 03-05459 to be served concurrently with each other and consecutively to Defendant’s sentence in case No. 03-05457, for an effective sentence of sixteen years. On appeal, Defendant challenges the sufficiency of the convicting evidence and the imposition of consecutive sentencing. Defendant does not challenge the length of his sentences. Following our review of the record, we affirm Defendant’s convictions.  We remand for a new sentencing hearing because the trial court failed to make specific findings justifying the imposition of consecutive sentencing, failed to identify and support the enhancement factors used to enhance Defendant’s sentences for his Class D and Class B felony convictions; and failed to identify which specific convictions it was relying upon to classify Defendant as a multiple offender for sentencing him for his Class D and Class C felony convictions.

State of Tennessee v. Alice Smotherman
M2004-01724-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jim T. Hamilton

The Defendant, Alice Smotherman, pled guilty to possession of a Schedule IV controlled substance for resale, a Class D felony, after the trial court denied her motion to suppress evidence seized pursuant to a search warrant. As part of the plea agreement, she reserved the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified question reserved for review was "whether or not the affidavit in the search warrant is sufficient to establish truthfulness, reliability and veracity of information that [an] unnamed third party conveyed to affiant which established probable cause for the issuance of the search warrant; and whether or not the search warrant complied with Rule 41(c) of the Tennessee Rules of Criminal Procedure." Because the record on appeal is incomplete, we must conclusively presume the ruling of the trial court was correct. Accordingly, we affirm the decision of the trial court.

Brian Keith Vowell v. Clinton Home Center
E2004-01477-WC-R3-CV
Authoring Judge: Senior Judge Donald P. Harris
Trial Court Judge: Circuit Judge James B. Scott, Jr.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated §50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in awarding to the employee a 30% permanent partial disability to the whole body as a result of his employment with Clinton Home Center. We conclude that the evidence presented supports the findings of the trial judge with regard to the extent of the disability sustained but find that the employee refused a reasonable offer of return to work and is subject to the maximum benefit set forth in Tenn. Code Ann. §50-6-241(a)(1). In accordance with Tenn. Code Ann. §50-6-225(e)(2), we affirm the judgment of the trial court but modify the award to the employee to provide for a 17.5% permanent, partial disability to the whole body.

State of Tennessee v. Daniel Blake
W2004-01253-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft

The defendant, Daniel Blake, stands convicted of aggravated vehicular homicide, attempt to leave the scene of an accident, and driving on a revoked or suspended license, and he is serving an effective sentence of 25 years. He has appealed his aggravated vehicular homicide conviction and claims that the state failed to prove beyond a reasonable doubt that his blood-alcohol content was above .20 percent and that he had previously been convicted of DUI. After thoroughly reviewing the record and applicable authorities, we find sufficient evidence to support the conviction and affirm
the judgment.

State of Tennessee v. Daniel Blake
W2004-01253-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft

The defendant, Daniel Blake, stands convicted of aggravated vehicular homicide, attempt to leave the scene of an accident, and driving on a revoked or suspended license, and he is serving an effective sentence of 25 years. He has appealed his aggravated vehicular homicide conviction and claims that the state failed to prove beyond a reasonable doubt that his blood-alcohol content was above .20 percent and that he had previously been convicted of DUI. After thoroughly reviewing the record and applicable authorities, we find sufficient evidence to support the conviction and affirm the judgment.

State of Tennessee v. Qawi Nur, (a/k/a Darrius James)
W2004-01259-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Chris B. Craft

Defendant, Qawi Nur, a/k/a/ Darrius James, was indicted on one count of first degree felony murder and one count of first degree premeditated murder. The State filed a notice of intent to seek the death penalty. Following a jury trial, Defendant was convicted of first degree felony murder in count one and second degree murder in count two. The trial court merged Defendant’s second degree murder conviction into his first degree felony murder conviction. The jury sentenced Defendant to life imprisonment without the possibility of parole for his first degree murder conviction. The sole issue raised on appeal challenges the sufficiency of the convicting evidence. After a thorough review of the record, we affirm the judgment of the trial court.

Daylon Roberts v. State of Tennessee
E2004-02965-CCA-R3-HC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Robert E. Cupp

The petitioner, Daylon Roberts, appeals from the trial court's order denying his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has failed to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

Knoxville Community Development Corporation v. Emanuel Bailey
E2004-01659-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Wheeler A. Rosenbalm

This case involves a dispute over compensation for property taken by eminent domain. The Knoxville Community Development Corporation insisted that the property was worth only $19,500 and deposited that amount into the court. The landowner claimed it was worth much more. Following a trial, the jury found the fair market value of the property to be $25,700. The landowner appeals, contending that the trial court erred in instructing the jury that they could consider the tax assessment figures in their valuation of the property. We agree, and we reverse the trial court.

Mary Elizabeth Jackson v. Samuel William Bownas, et al.
E2004-01893-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge William Dale Young

Blount County -In this boundary dispute between two lot owners in adjacent subdivisions, the trial court relied on an old fence line to establish the boundary and award plaintiff damages for trespass. Given that the deeds and surveys were inconclusive, it is appropriate to look to the most reliable monumentation to establish the line. We affirm.