Corey Johnson, pro se., v. Tony Parker, Warden
W2003-02375-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Corey Johnson, 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. 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.

Darrell Watkins, pro se, State of Tennessee
W2003-00995-CCA-R3-HC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

The Petitioner, Darrell Watkins, 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 fails to assert a ground entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Christy Renee Osborn v. Justin Chandler Marr
M2001-02890-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Russell Heldman

We granted this appeal to determine whether Tennessee Code Annotated section 36-1-113(g)(6), which provides for the termination of parental rights when a parent is imprisoned for at least ten years due to a criminal act and the child is under the age of eight when the sentence is imposed, also requires a showing of substantial harm to the child before a parent's rights may be terminated. Because we hold that a parent does not have standing to file a petition pursuant to Tennessee Code Annotated section 36-1-113(g)(6), we lack subject matter jurisdiction to hear the merits of the appeal. Accordingly, we dismiss this case and vacate the judgments of the lower courts.

State of Tennessee v. David I. Tucker
M2002-02602-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Don Ash

The Appellant, David I. Tucker, appeals the dismissal of his petition requesting DNA analysis pursuant to the Post-Conviction DNA Analysis Act. After review, we find no error and affirm the judgment of the Cannon County Circuit Court.

David T. Sears, et al., v. Charles Gregory, et al.
M2002-02771-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Barbara N. Haynes

Plaintiff homeowners sued Defendant pest control operators for negligent misrepresentation and breach of warranty relative to the issuance by the Defendants of a wood destroying insect infestation inspection report pursuant to Tennessee Code Annotated section 62-21-201 to 206. The trial court granted summary judgment to Defendants. Because civil liability is limited by section 62-21-202 and Plaintiffs allege no damages caused by the presence of wood-destroying insects, we affirm the judgment of the trial court.
 

David T.Sears, et al., v. Charles Gregory, et al. - Dissenting
M2002-02771-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

The narrow question presented by this appeal is whether Tennessee recognizes the tort of negligent misrepresentation by nondisclosure. While the Sears family’s complaint faces a daunting battle on other fronts, I would not extinguish it at this stage of the proceeding by holding as a matter of law that a professional person cannot supply the false information required by Restatement (Second) of Torts § 552 (1977) by silence.

 

State of Tennessee v. Christopher Robert Smith
M2002-03128-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Steve R. Dozier

The Appellant, Christopher Robert Smith, was convicted by a Davidson County jury of possession with intent to deliver over 300 grams of cocaine, a class A felony. Following this conviction, he was sentenced to twenty-one years imprisonment. Smith appeals, arguing that (1) the trial court erred by denying his motion to suppress and (2) the trial court improperly admitted evidence of prior criminal conduct. After a review of the record, the judgment of the trial court is affirmed.

State of Tennessee v. Rodney Laron Covington
M2002-02714-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Steve R. Dozier

The Appellant, Rodney Laron Covington, was convicted by a Davidson County jury of one count of rape of a child and two counts of aggravated sexual battery. Covington received a twenty-year sentence for rape of a child and ten-year sentences for each aggravated sexual battery conviction. The sentences were ordered to be served concurrently. On appeal, he presents three issues for our review: (1) whether testimony by a nurse practitioner violated the holding of State v. Ballard, 855 S.W.2d 557 (Tenn. 1993); (2) whether the State's recitation of the facts supporting the charge of rape of a child was "specific enough to ensure that the jury would reach a unanimous decision" and "sufficiently corresponded to the State's proof;" and (3) whether the proof established that the offense of rape of a child occurred after July 1, 1992, as required for 100% service of the sentence imposed under Tennessee Code Annotated section 39-13-523(b). After review of the record, we find no reversible error. Accordingly, the judgments of the trial court are affirmed.

Anthony Darrell Hines v. State of Tennessee
M2002-01352-CCA-R3-PD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Burch

The petitioner, Anthony Darrell Hines, convicted of first degree felony murder and sentenced to death for a 1985 homicide, appeals from the denial of his petition for post-conviction relief, alleging that counsel were ineffective at his 1986 trial and 1989 resentencing hearing, that women were excluded from both juries, and that imposition of the death penalty violates his rights under the federal and state constitutions. The post-conviction court denied the petition after an evidentiary hearing. Following our review, we affirm the denial.

Shamain Johnson v. State of Tennessee
M2003-00470-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Shamain Johnson, appeals from the trial court's denial of his petition for writ of habeas corpus. Finding that denial of the petition was appropriate, we affirm the judgment of the trial court.

State of Tennessee v Robert Benjamin Bowen
M2003-00513-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Seth W. Norman

Upon his plea of guilty, the Defendant was convicted of DUI. In this appeal, he attempts to present two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). Because we conclude that this appeal does not properly present certified questions of law, we dismiss the appeal.

State of Tennessee v. Emery Wells
M2003-00795-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge L. Craig Johnson

The Appellant, Emery Wells, pled guilty to two counts of aggravated assault and was sentenced to an effective eight-year sentence, with the sentence being suspended after service of ninety days in jail. A probation violation warrant was subsequently issued alleging violation of the following conditions: (1) failure to report to his probation officer; (2) failure to obey the laws of this state; and (3) failure to report a new arrest. Following a hearing, the trial court revoked Wells' suspended sentence and ordered his eight-year sentence to be served with community corrections, after service of an additional ninety-day period of jail confinement. Wells concedes that the violations occurred, but he argues that the revocation did not "aid the interest of both the public and the [Appellant]," as it will likely result in the loss of his employment.

State of Tennessee v. Dywand Carlos Pettway
M2003-00238-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge W. Charles Lee

A Bedford County Circuit Court jury convicted the defendant, Dywand Carlos Pettway, of aggravated robbery, a Class B felony, and possession of a Schedule II controlled substance, a Class A misdemeanor. The trial court sentenced him as a Range II offender to twenty years in the Department of Correction for the aggravated robbery conviction and eleven months, twenty-nine days for the possession of a Schedule II controlled substance conviction, to be served consecutively. In this appeal, the defendant claims (1) that the evidence is insufficient to support his aggravated robbery conviction and (2) that his sentences are excessive. We affirm the judgments of the trial court.

Metropolitan Government of Nashville and Davidson County, Tennessee v. Basil Marceaux
M2003-00876-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

Because the record confirms that the appellant did not perfect an appeal from an adverse decision of the general sessions court within ten days of that decision, we affirm the trial court's dismissal of the late attempted appeal.

State of Tennessee v. John Crawley, Sr.
M2003-01289-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert L. Holloway

The Defendant, John Crawley, Sr., pled guilty to driving under the influence, first offense. As part of his plea agreement, he expressly reserved with the consent of the trial court and the State the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified question of law stems from the trial court's denial of the Defendant's motion to suppress all evidence obtained as a result of a police officer stopping the Defendant's automobile. Because we find that the police officer did not have reasonable suspicion to stop the Defendant, we reverse the trial court's denial of the motion to suppress. This case is remanded for entry of an order of dismissal.

State of Tennessee v. Walter Ray Smith, Jr.
M2003-01291-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge James K. Clayton, Jr.

The Defendant, Walter R. Smith, Jr., was convicted by a jury of five counts of child rape. Following a sentencing hearing, the trial court imposed an effective sentence of forty years. In this direct appeal, the Defendant challenges the sufficiency of the evidence and his sentences. We affirm the Defendant's five convictions for child rape. The trial judge erred by failing to state on the record the facts that support the imposition of consecutive sentences. However, the record clearly shows that consecutive sentencing was proper. Therefore, we affirm the Defendant's sentences.

State of Tennessee v. Martin Stuart Hammock
M2002-01326-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Carol L. Soloman

Defendant, Martin Stuart Hammock, was originally convicted of first degree murder following a jury trial. On appeal, this Court found that there was insufficient evidence of premeditation to support a conviction for first degree murder. Accordingly, we modified the judgment to reflect a conviction of second degree murder and remanded the case to the trial court for re-sentencing. State v. Martin Stuart Hammock, No. M2000-00334-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 824, (Tenn. Crim. App. at Nashville, Oct. 12, 2001), no perm. to app. filed. Following a new sentencing hearing, the trial court sentenced Defendant to serve twenty-five years. Defendant appeals. After a review of the record, the briefs, and the applicable law, we affirm the judgment of the trial court.

State of Tennessee v. Jason White
E2002-02736-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge D. Kelly Thomas, Jr.

Following a bench trial appellant, Jason White, was found guilty of D.U.I. Second Offense in violation of T.C.A. 55-11-401. He was sentenced to eleven months and twenty-nine days with incarceration for forty-five days followed by probation for the balance of the sentence. The appellant appeals, contending that the evidence was not sufficient for a D.U.I. Second Offense conviction. After a review of the record we affirm the judgment of the trial court.

Jimmy H. Spurlock v. Boiler & Heat Exchange Systems, Inc.
E2002-02842-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: W. Frank Brown III, 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. The Plaintiff alleges he suffers from a occupational disease within the definition thereof contained in Tenn. Code Ann. _ 5-6-31. The trial judge found the plaintiff failed to show that his lung disease was caused by or arose from his occupation as a welder with the Defendant and dismissed the case. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J., and ROGER E. THAYER, SP. J., joined. Ronald J. Berke, Chattanooga, Tennessee, attorney for the Appellant, Jimmy H. Spurlock. C. Douglas Dooley, Charles W. Poss and Michael D. Newton, Chattanooga, Tennessee, attorneys for Appellee, Boiler & Heat Exchange Systems, Inc. MEMORANDUM OPINION Facts There is no dispute concerning the fact the Plaintiff is totallydisabled as a result of interstitial pulmonary fibrosis. Further, the evidence shows the Plaintiff worked for the Defendant for ten years before his illness caused him to be unable to work. The Plaintiff worked as a welder for the defendant. He and other employees testified they and the Plaintiff were exposed to a significant amount of metal particles and dust caused by the welding work they did. There is no evidence to dispute this. Charles N. Adams, Jr., a mechanical engineer conducted a study of the work done in the Defendant's plant and found some thirty substances to which the Plaintiff would have been exposed. These included metal particles and other substances. These findings were not disputed. There is little dispute in the medical evidence in this case except the significant and controlling issue of whether the Plaintiff's illness is a result of a hazard of his occupation with the Defendant. Medical Evidence There was extensive medical proof introduced in the record by oral testimony of expert witnesses and various reports from other experts. Additionally, several studies concerning interstitial pulmonary fibrosis was introduced. Amongst this evidence, the most significant evidence was presented by Dr. Suresh Enjeti, a pulmonary specialist, Dr. James D. Snell, Jr., a pulmonary disease specialist, and Dr. William F. McGann Jr., a specialist in internal medicine. Further there were reports from four highly qualified pathologists found in the record. Dr. Enjeti, who testified in person, testified that the Plaintiff's lung disease was caused by the exposure to the metal dust, et al, encountered by the Plaintiff in his work with the Defendant. Dr. Enjuti based his opinion upon medical studies which he had done and which he had studied which indicated the illness suffered by the plaintiff is caused by exposure to metal particles. Dr. Enjeti testified he had the report from the engineer which tested the material said to be found in the work place. He found no metal or dust particles in the Plaintiff's lungs. When asked if he had any objective findings to support his conclusion the Plaintiff's disease was caused by his work for the Defendant, Dr. Enjeti responded: "Beyond the occupational history, no." Dr. James D. Snell, examined the Plaintiff and confirmed the diagnosis of interstitial pulmonary fibrosis. Dr. Snell discussed each of the substances listed by the engineer as being present in the work place. He testified none of these would cause the problem which the Plaintiff has. He found none of these - nor asbestos - present in the Plaintiff's lung biopsy. Dr. Snell was of the opinion the Plaintiff interstitial fibrosis was of unknown origin and did not relate its' beginning to the Plaintiff's work for the Defendant. Dr. McGann gave a video deposition and testified the Plaintiff's condition of uncertain etiology and that it was not caused or aggravated by the work for the Defendant. The four pathologists found no evidence that any of the particles contained in the engineer's report were present in the Plaintiff's lung tissue. -2-

Alonzo Leonardo Gayden v. State of Tennessee
M2003-00165-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James K. Clayton, Jr.

The petitioner, Alonzo Leonardo Gayden, appeals from the Rutherford County Circuit Court's denying him post-conviction relief from his 2001 conviction for theft of property valued at $1,000 or more, a Class D felony. He contends that he received the ineffective assistance of counsel. We affirm the trial court.

State of Tennessee v. Alonzo Maurice Rogan - Concurring
M2002-01603-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jane W. Wheatcraft

I write separately to explain why I am concurring in results only in this case. The record reflects that Defendant’s counsel adamantly asserted that aggravated assault was a lesser-included offense of attempted first degree murder. Just as adamantly, the State argued that aggravated assault was not a lesser-included offense of attempted first degree murder under our supreme court’s decision in State v. Burns, 6 S.W.3d 453 (Tenn. 1999). The record also reflects that while the trial court had reservations about the appropriateness of charging aggravated assault as a lesser-included offense, it was ultimately persuaded to do so by arguments of Defendant’s counsel. Counsel’s conduct may or may not be grounds for relief to Defendant in a post-conviction proceeding, but that must be decided at a later hearing on a later date.

State of Tennessee v. Alonzo Maurice Rogan
M2002-01603-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant filed a delayed appeal, alleging error: (1) in denying the defendant the opportunity to file an amended motion for new trial; (2) in the failure to amend the indictment for attempted first degree murder to aggravated assault; (3) in the failure of the indictment for evading arrest to contain statutory language; and, (4) in admitting the defendant’s confession in violation of an in limine order during the second phase of a bifurcated trial. We conclude that no reversible errors were attendant and affirm the convictions.

Mary E. Madison, as Surviving Spouse of James R. Madison, Deceased, et al., v. State of Tennessee
E2003-01537-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Vance W. Cheek, Jr., Commissioner

These consolidated claims against the State of Tennessee ("State") arise out of an automobile accident which resulted in the death of James R. Madison and personal injury to Mary E. Madison, Kenneth R. Madison, and Wilma J. Madison (collectively referred to as "Claimants"). The State filed a motion for summary judgment which the Claims Commission ("Commission") granted based primarily on Claimants' failure to file a timely response. The Commission later set aside its order granting the State's summary judgment motion and ordered Claimants to file a response to that motion no later than March 19, 2003. Claimants filed their response to the motion for summary judgment on March 18, 2003. On May 14, 2003, apparently acting under the misapprehension that Claimants still had not responded to the motion for summary judgment, the Commission dismissed the claims based on Claimants' violation of its previous order directing them to respond. We vacate the dismissal of these claims and remand for further proceedings.

State of Tennessee v. Octavian Reeves
W2002-01313-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roger A. Page

The defendant appeals his conviction for second degree murder and the sentence of twenty-five years. After review, we conclude that the restrictions placed on the defendant's cross examination of the witness were within the discretion of the trial court. Further, we affirm the conviction and sentence imposed.

State of Tennessee v. Stacy L. Mack and Martress Shaw
W2002-01828-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jon Kerry Blackwood

The defendants appeal their convictions of possession of more than 0.5 grams of cocaine with intent to deliver. The defendants allege error in the trial court’s failure to suppress evidence seized pursuant to a search warrant and denial of their motions for judgment of acquittal. Upon review, we reverse the failure to suppress the search warrant and reverse and dismiss the convictions of both defendants. The conviction of Stacy Mack is reversed due to insufficiency of the evidence, and Martress Shaw’s conviction is reversed due to insufficiency of evidence after suppression of the search warrant.