State of Tennessee v. David D. Harris
M2002-00382-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

The Defendant, David D. Harris, pled guilty to seven counts of aggravated robbery, a Class B felony, in the Davidson County Criminal Court on June 16, 1999. The trial court sentenced the Defendant to three eight-year sentences, to be served consecutively. The trial court suspended the sentences and ordered the Defendant to serve three consecutive eight-year terms on supervised probation. The State appealed, and this Court reversed the portion of the sentence that ordered the Defendant to serve twenty-four years of probation on the three consecutive eight-year sentences, holding that a probationary sentence for aggravated robbery is contrary to Tennessee Code Annotated section 40-35-303(a). Accordingly, we reversed the trial court's judgment and remanded the case for re-sentencing. Upon re-sentencing, the trial court sentenced the Defendant to three eight-year prison terms and ordered that the sentences run consecutive to each other and consecutive to a sentence that the Defendant is currently serving in Williamson County. The Defendant appealed the trial court's re-sentencing order and raises the following issues: (1) whether the trial court erroneously denied his request for a new sentencing hearing and; (2) whether the trial court erroneously denied the Defendant's request, pursuant to Tennessee Rule of Criminal Procedure 35, for a reduced sentence. After a through examination of the record, we conclude that the trial court did not err when it denied the Defendant's request for a new sentencing hearing; however, because we conclude that the trial court erroneously believed that it was without the authority to impose concurrent sentences, we reverse and remand for it to determine whether the three sentences should run consecutively or concurrently.

State of Tennessee v. Johnnie W. Reeves
M2002-02371-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Steve R. Dozier

A Davidson County jury convicted the defendant, Johnnie W. Reeves, of two counts of aggravated child abuse of a child six years of age or less. The trial court imposed two concurrent twenty-year sentences. On appeal, the defendant contends: (1) the evidence was insufficient to support the convictions; and (2) the trial court erred in admitting certain photographs of the victim's injuries. We affirm the judgments of the trial court.

State of Tennessee v. Vernon Lamar Bryant
E2002-01234-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Douglas A. Meyer

Following a jury trial, the defendant was found guilty of attempted reckless homicide, aggravated burglary, and aggravated assault. The trial court merged the attempted reckless homicide conviction into the aggravated assault conviction, and the defendant was sentenced as a Range II, multiple offender, to ten years for aggravated assault and six years for aggravated burglary, with the sentences to run concurrently. The defendant contends that the trial court improperly merged the attempted reckless homicide conviction into his aggravated assault conviction. Also, the trial court erred in instructing the jury on flight. We conclude, following plain error review, that attempted reckless homicide is not a recognized crime in Tennessee. We reverse and dismiss the defendant's conviction for attempted reckless homicide. Further, we conclude that the jury instruction regarding flight was not error, and the trial court correctly sentenced the defendant as a Range II, multiple offender. We affirm the defendant's convictions and sentences for aggravated burglary and aggravated assault.

John Wilcox v. State of Tennessee - Order
E2002-01600-CCA-R3-PC
Authoring Judge: Judge John Everett Williams

The petitioner appeals the denial of his petition for post-conviction relief. The petitioner contends that he received ineffective assistance of counsel and that the State engaged in a vindictive prosecution and failed to perform testing on evidence which would have supported his claim of self-defense. We conclude that the evidence does not preponderate against the findings of the post-conviction court. We affirm the post-conviction court's denial of post-conviction relief.

James Tate v. Glenda Tate
M2002-01749-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol A. Catalano
This appeal concerns the propriety of the trial court's property division between divorcing parties. As part of its division of the marital property, the trial court ordered that Husband transfer a home, which was his separate property, to Wife. The trial court also awarded Wife $4,500.00 as her interest in a Mercedes automobile which the parties purchased for $15,000.00. We affirm in part, reverse in part, and remand.

Donovan Davis v. Ray Maples
M2002-02564-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz
An inmate brought this action to seek judicial review of the Board of Paroles decision to deny him parole. Because a prisoner has no liberty interest in early release, we affirm the dismissal of the due process claims brought herein. We affirm dismissal of that portion of the petition that alleges that the denial of parole was arbitrary and capricious, but specifically hold that Mr. Davis may pursue administrative appeal of that denial. We reverse dismissal of the claim that the Board's decision to defer Mr. Davis's next meeting with the Board for eleven years is not arbitrary and capricious, and remand that claim for further proceedings.

State of Tennessee v. Robert L. Leach, Jr.
M2001-01421-CCA-R3-DD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Robert L. Leach, Jr., was found guilty by a jury of two counts of premeditated murder, two counts of felony murder, one count of aggravated rape, and one count of especially aggravated robbery. The felony murder convictions were merged into the premeditated murder convictions. The jury sentenced the defendant to death based upon the finding that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. As to victim Sarah McBride, the jury found three aggravating circumstances: the defendant had previously been convicted of one or more violent felonies; the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; and the murder was knowingly committed by the defendant while committing or attempting to commit robbery or aggravated rape. As to victim Jean Poteet, the jury found the same three aggravating circumstances and the additional aggravating circumstance that the victim was seventy years of age or older or was particularly vulnerable due to a significant handicap or significant disability, physical or mental. The trial court sentenced the defendant to consecutive sentences of twenty-five years for the especially aggravated robbery and aggravated rape convictions. In this appeal, the defendant raises numerous issues relating to the sufficiency of the evidence, evidentiary rulings, jury instructions, the constitutionality of the death penalty, and the application of certain capital case procedures. We conclude that no harmful error exists, and we affirm the convictions and sentences. The case should be remanded, though, for correction of clerical errors by which the judgments for Counts 5 and 6 have respectively been switched to Counts 6 and 5.

Janice Darnell v. Royal and Sunalliance,
M2002-00617-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Robert E. Corlew, Chancellor
In this case of first impression, the employee contends the trial court erred in setting aside a court approved settlement as being contrary to law and grounded on mistake of fact. As discussed below, the panel has concluded there was no mistake as to an existing fact and that Tenn. Code Ann. _ 5-6-241(a)(2) does not authorize an employer or its insurer to obtain reconsideration of a lump sum award of permanent partial disability benefits.

Cora Jean Earls v. Calsonic Yorozu Corporation, Inc.
M2002-01309-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Charles D. Haston, Chancellor
In this appeal, the employer insists (1) the evidence preponderates against the trial court's findings as to notice, permanency, causation and extent of permanency, (2) the trial court erred in the application of Tenn. Code Ann. __ 5-6-27(3) and 5-6-241; (3) the trial court erred by delegating its adjudicatory function to the Clerk and Master, and (4) the trial court erred in assessing discretionary costs against the defendant. As discussed below, the panel has concluded the award of permanent partial disability benefits should be reduced to one based on two and one-half times the employee's medical impairment rating, or 3 percent to the body as a whole.

00521-COA-R3-JV
00521-COA-R3-JV
Trial Court Judge: Barry R. Brown

State of Tennessee v. Ronald B. Finch
M2002-01050-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackburn

The Appellant, Ronald B. Finch, was convicted by a Davidson County jury of aggravated robbery and attempted aggravated rape. As a result of these convictions, Finch was sentenced to concurrent thirty-year sentences in the Department of Correction. On appeal, Finch raises two issues for our review: (1) whether the evidence was sufficient to support his convictions and (2) whether the sentences imposed were excessive. After review of the record, we find no error. Accordingly, the judgment is affirmed.

Ernest W. Sipe v. F. Raymond Porter
E2002-02938-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
Ernest W. Sipe ("Plaintiff") sued F. Raymond Porter, M.D. ("Dr. Porter") regarding Dr. Porter's medical care of Gladys Louise Sipe. Plaintiff filed his expert's affidavit. Plaintiff's expert then was deposed. During this deposition, defense counsel questioned Plaintiff's expert about portions of Ms. Sipe's medical record that Plaintiff's expert had not reviewed previously. Dr. Porter then filed a motion for partial summary judgment. After his deposition, Plaintiff's expert reviewed all of the previously unreviewed records, and Plaintiff then filed a supplemental affidavit of his expert. The Trial Court applied the rule of cancellation and found that Plaintiff's expert's opinions were contradictory and that his testimony as an expert witness should be cancelled and disregarded as competent proof in this case. The Trial Court then granted Dr. Porter's motion for partial summary judgment. Plaintiff appeals. We reverse and remand.

Sheryle Hydas vs Herman Hydas
E2002-02943-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
In this divorce action the Trial Court valued marital and non-marital property and divided marital property. Husband appealed the Trial Court's decision on these issues. We affirm.

Judy Carolyn Lawson vs. Cynthia Gale Rines
E2002-02152-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
This is a wrongful death action. The Trial Court excluded proof of the deceased's Social Security benefits at trial. Judy Carolyn Lawson ("Plaintiff") made an offer of proof showing only the amount of monthly Social Security benefits received. The jury returned a verdict in Plaintiff's favor, and the Trial Court granted Plaintiff's motion for prejudgment interest. Service Radio Cab Co., Inc. ("Defendant") appeals the award of prejudgment interest. Plaintiff appeals regarding the exclusion of proof of Social Security benefits. We affirm, in part, and reverse, in part.

Sevier County vs. John Waters, Trustee
E2002-02309-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Ben W. Hooper, II
This is a land condemnation case. On November 18, 1988, Sevier County ("the County") filed a petition for condemnation seeking to condemn property in the county for a new jail. The petition was tried to a jury some 13 plus years later, on June 19 and 20, 2002. The jury awarded compensation of $335,500. This verdict was $158,500 more than the amount deposited in court by the County. The trial court entered judgment on the jury's verdict; the trial court supplemented the award by an award of pre-judgment interest of $267,468.75 and decreed that the total judgment of $425,968.75 would accrue interest at the rate of 10% per annum. The County appeals, arguing (1) that the trial court erred in excluding evidence pertaining to a controversy over the ownership of the property; (2) that pre-judgment interest is discretionary with the court and that the court below should have considered the disputes among the property owners as a factor impacting the delay in getting this matter to trial; (3) that the trial court erred in the way it calculated pre-judgment interest; and (4) that the trial court erred in decreeing that the judgment of $425,968.75 would accrue post-judgment interest at the rate of 10% per annum. We affirm.

State of Tennessee v. Marcus Thompson
E2001-02521-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Phyllis H. Miller

The appellant, Marcus Thompson, was convicted in the Sullivan County Criminal Court of one count of conspiracy to sell or deliver cocaine, one count of possession of cocaine with the intent to sell or deliver, and one count of selling and delivering cocaine. The trial court imposed a total effective sentence of forty years incarceration in the Tennessee Department of Correction and fines totaling $150,000. On appeal, the appellant raises several issues for our review, including speedy trial, sufficiency of the evidence, double jeopardy, evidentiary rulings, and sentencing. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court but reduce the amount of the appellant's fines to a total amount of $50,000.

State of Tennessee v. Jeffery McCraney
W2003-00011-CCA-R9-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee Moore

This is an appeal by permission, pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Defendant, Jeffery McCraney, was indicted by the Dyer County Grand Jury for various narcotics charges arising out of the search of his motor vehicle. The trial court suppressed the evidence obtained as a result of that search, ruling that the search of the Defendant’s vehicle was unconstitutional. The State filed a motion for interlocutory appeal, which was granted by the trial court. We granted the State permission to appeal, and the State asserts that the trial court erred when it granted the Defendant’ s Motion to Suppress. We hold that the trial court did not err by granting the motion because the search of the Defendant’s vehicle violated constitutional protections against unreasonable searches and seizures.

State of Tennessee v. Calvin Jerome Oliver
M2002-02438-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge W. Charles Lee

The defendant, Calvin Jerome Oliver, pled guilty in the Marshall County Circuit Court to aggravated robbery, a Class B felony; aggravated burglary, a Class C felony; two counts of attempted aggravated robbery, a Class C felony; and three counts of aggravated assault, a Class C felony. The trial court merged his attempted aggravated robbery convictions into his aggravated robbery conviction and sentenced him as a Range II, multiple offender to eighteen years in the Department of Correction (DOC). The trial court sentenced him to seven years for the aggravated burglary conviction and eight years for each aggravated assault conviction, all to be served concurrently to each other but consecutively to the eighteen-year sentence for an effective sentence of twenty-six years in the DOC. The defendant appeals, claiming the trial court erred by refusing to apply and give proper weight to mitigating factors. We affirm the judgments of the trial court, but we remand the case for correction of a clerical error regarding the aggravated burglary judgment.

R. Scott Martin v. John Curtis King
E2002-03055-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
This is a breach of contract case. R. Scott Martin ("Plaintiff") sued John Curtis King ("Defendant"), alleging that Defendant had breached his agreement to give Plaintiff a 3% interest in Defendant's landfill venture. The trial court found that the parties' agreement did not pertain to or cover the particular landfill business out of which Plaintiff sought a 3% interest. The trial court did conclude that Plaintiff was entitled to a judgment against Defendant for $4,500 for monetary contributions made by Plaintiff in connection with the parties' agreement. Plaintiff appeals, contending that the trial court erred in finding that a novation had occurred, in admitting parol evidence, and in calculating damages. We affirm.

Roy Malone vs. Scott Probasco
E2002-03135-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this appeal from the Circuit Court for Hamilton County the Plaintiff/Appellant, Roy Michael Malone, Sr., argues that the Trial Court erred in granting the Defendant/Appellee, Scott L. Probasco, Jr., a summary judgment. We affirm and remand.

Lynn Raiteri Ex Rel. Mary Cox v. NHC Healthcare
E2003-00068-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Harold Wimberly
Lynn Raiteri, as the daughter and next friend of the late Mary Helen Cox ("Mrs. Cox"), sued NHC Healthcare/Knoxville, Inc. ("the defendant"), as well as others, for the wrongful death of Mrs. Cox, whose death allegedly resulted from improper care at the defendant's nursing home. We granted the plaintiff's Tenn. R. App. P. 9 application for an interlocutory appeal in order to review the trial court's order granting the defendant's motion to compel mediation and arbitration pursuant to the dispute resolution procedures contained in the defendant's nursing home admission agreement. We reverse.

Conchita Johnson vs. Greg Johnson
E2003-00130-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Ben W. Hooper, II
The Trial Court entered Judgment for back child support, ordered increase in continuing child support, and awarded custodial parent attorney's fees. Father, who sought change of custody, appealed. We affirm.

Clarence Matz, et ux vs. Wuest Diagnostics
E2003-00167-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
Defendants granted summary judgment in medical malpractice action on grounds the statute of limitation had run. On appeal, we vacate and remand.

Donald Xiques vs. Charme Knight
E2003-00435-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
Plaintiff sued defendant claiming defendant divulged confidential information to FBI and that agency refused to hire him, due to defendant's action, which violated his constitutional right to privacy. The Trial Court ruled that plaintiff was estopped to maintain action because he had been unsuccessful in a prior action in the federal court against the same defendant. On Appeal, we affirm.

In Re: Estate of Ilene S. Ramey
E2003-00544-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Richard E. Ladd
At issue in this appeal is whether this will contest action, brought by Tommy Snapp and Eddie Snapp as intestate heirs at law, is barred by the applicable two-year statute of limitations found at T.C.A. 32-4-108. Plaintiffs have challenged the validity of the will of Ilene S. Ramey on grounds that it was executed outside the presence of two witnesses as required by T.C.A. 32-1-104. In their complaint they allege that the witnesses to the will were wrongfully coerced by their employment supervisor, Defendant Sherri H. Jones, to sign affidavits falsely stating that they were in the presence of Ms. Ramey when she executed her will. The Trial Court held the action to be time-barred because it was filed more than three years after admission of the will to probate, ruling that "under the authority of Phillips v. Phillips, 526 S.W.2d 439 (Tenn.1975), the Complaint alleges no facts that could amount to a concealment of the claim." The Court dismissed the complaint under Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can be granted. We affirm.