The petitioner appeals the denial of his post-conviction relief petition. He argues: (1) his trial counsel was ineffective in advising him regarding the sentence agreement in which he waived his right to appeal; and (2) he did not knowingly and voluntarily waive his right to appeal. We conclude that although the post-conviction court erroneously stated that the uncorroborated testimony of the post-conviction petitioner "should be summarily struck," the post-conviction court, nevertheless, made proper and adequate findings which support the denial of relief. We affirm the judgment of the post-conviction court.
Bedford
Court of Criminal Appeals
John Ruff vs. Raleigh Assembly W2001-02578-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal arises from a complaint filed by the plaintiff, John Ruff ("Mr. Ruff"), in the Circuit Court at Shelby County against the defendant, Raleigh Assembly of God Church, Inc. ("the church"), for assault, battery, false imprisonment and intentional infliction of emotional distress. At the conclusion of the trial, the trial court entered judgment in favor of the church. The parties raise multiple issues on appeal. For the following reasons, we affirm in part and remand
Shelby
Court of Appeals
Kay Dulin vs. Michael Dulin W2001-02969-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: George H. Brown
This appeal arises from a custody dispute involving parental relocation with a minor child. The lower court dismissed Father's petition to oppose Mother's relocation and granted Mother's motion to dismiss. Father raises multiple issues on appeal. For the following reasons, we affirm.
Shelby
Court of Appeals
State of Tennessee v. Michael Tucker W2000-02220-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft
The Shelby County Grand Jury indicted the Defendant for felony murder in the perpetration of a robbery, first degree premeditated murder, and especially aggravated robbery. Following a trial, at which the Defendant was tried with his co-defendant, a Shelby County jury convicted the Defendant of second degree murder. The Defendant now appeals his conviction as of right, arguing that insufficient evidence was presented to support his conviction, that the trial court supplied the jury with improper supplemental instructions, and that the trial court improperly commented on the evidence at trial. Concluding that sufficient evidence was presented to support the Defendant’s conviction for second degree murder, that the trial court’s supplemental instructions to the jury were proper, and that the trial court did not improperly comment on the evidence, we affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
State of Tennessee v. Michael Tucker - Concurring W2000-02220-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Chris B. Craft
I agree with the results reached in the lead opinion authored by Judge Wedemeyer. I write separately, however, because I believe that the dissent places too much emphasis on the supplemental instruction defining “adequate provocation” rather than the context of the entire charge to the jury. Here, the trial court instructed the jury, in pertinent part, as follows: “that the killing resulted from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” When the jury asked for a definition of “adequate provocation,” the trial court abbreviated a definition of provocation which was contained in Black’s Law Dictionary, 4th Edition, and charged the jury that “adequate provocation is one that excites such anger as might obscure the reason or dominate the volition of an ordinary reasonable man.” In context, I do not view the instructions, even with the supplement, so narrowly as to so limit passion as being produced only by anger. This court has previously held that the term passion does not require definition because it is commonly used and “can be understood by people of ordinary intelligence.” State v. Mann, 959 S.W.2d 503, app. at 522 (Tenn. 1997) (quoting State v. Raines, 882 S.W.2d 376, 383 (Tenn. Crim. App. 1994)). I would not classify the charge “review[ed] in its entirety and read . . . as a whole” as erroneous and join in the affirmance of the conviction. See State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
I respectfully dissent from the majority opinion. I believe the trial court erred by limiting the definition of passion to anger relative to the adequate provocation necessary for voluntary manslaughter.
The Defendant, John Parker Roe, was convicted by a jury of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. John Parker Roe, No. 02C01-9702-CR-00054, 1998 Tenn. Crim. App. LEXIS 39 (Jackson, Jan. 12, 1998), perm. appeal denied (Tenn., Jan. 4, 1999). The Defendant subsequently filed for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. After an evidentiary hearing, the post-conviction court denied relief. This appeal followed. We affirm.
A Shelby County jury found the Defendant guilty of especially aggravated robbery and felony murder in the perpetration of a robbery. The trial court sentenced the Defendant as a Range I violent offender to life imprisonment for the felony murder conviction and to twenty-two years for the especially aggravated robbery conviction. On appeal, the Defendant argues that the trial court erred by failing to give a requested jury instruction on lost or destroyed evidence, that the evidence presented by an accomplice was not sufficiently corroborated to support the convictions, and that the trial court erred in sentencing the Defendant for the especially aggravated robbery conviction by not including in the record specific findings regarding the enhancement and mitigating factors considered in sentencing him. We affirm the Defendant's convictions, but remand to the trial court for a new sentencing hearing for the especially aggravated robbery conviction.
The defendant, Derek T. Payne, was convicted by a Shelby County Criminal Court jury of second degree murder, a Class A felony, and attempted especially aggravated robbery, a Class B felony, and was sentenced by the trial court to an effective sentence of thirty-seven years in the Department of Correction. In this appeal as of right, he challenges the sufficiency of the evidence in support of his convictions, the sentences imposed, and the trial court's evidentiary rulings. We affirm the judgments of the trial court.
Larry Thrasher v. Carrier Corporation, M2001-02680-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: L. Craig Johnson, Judge
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 suffers from plantar fasciitis in both feet. Causation was vigorously contested. The trial judge found that the plaintiff's condition was job-related. A podiatrist opined that the plaintiff retained a 29 percent impairment to both feet. The trial judge "assessed a permanent, partial disability of 1 percent to the two feet of the plaintiff," notwithstanding that the plaintiff had returned to his pre- injury job, "substantially improved," and in his words, "doing good," with no complaints other than first-step pain upon arising. The finding of 1 percent is excessive and is reduced to 4 percent. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J., and JOE C. LOSER, SP. J., joined. B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Carrier Corporation and Insurance Company of the State of Pennsylvania. Donald J. Ray, Tullahoma, Tennessee, for the appellee, Larry Thrasher. MEMORANDUM OPINION The Pleadings The plaintiff alleged that he had worked for the Carrier Corporation for thirty years and that "his work required him to stand on his feet for long periods of time, as a result the plaintiff has developed bilateral plantar fasciitis." No other condition is alleged. The defendant denied that the plaintiff's condition was job-related, but was a non- compensable, pre-existing condition. Plaintiff's Testimony The plaintiff testified that he had worked for the Carrier Corporation for thirty-two years in "coil production and press expander setup and operation and coil utility work." Beginning in 1994, he was assigned to a job which required him to stand on a three-inch piece of channel iron while loading and unloading carts of materials, stepping off and on the channel iron onto the concrete floor repetitively. His feet began hurting "five or six years ago,"1 and he consulted his family physician, Dr. Brandon, about the problem. He next reported his foot-problems to the company nurse, who furnished him a list of physicians. He selected Dr. Arms, an orthopedic surgeon, who prescribed medication and physical therapy. He saw Dr. Brandon again, who referred him to Dr. Fred Marino, Jr., a podiatrist.2 Dr. Marino prescribed orthotics, and "took me off work, put my right foot in a cast, and wanted me to rest and take it easy for a while." After nineteen (19) weeks off, the plaintiff returned to work. His testimony is markedly significant: A: I do good, I still have some pain when I get up of a morning first thing, but I do real good . . . If I have to change shoes, I have to change the inserts out and put them in the other shoes. Q: Are you wearing those inserts even today? A: Yes, sir. Q: What about weekends, do you do things, work in the garden, mow the grass, do things of that nature? A: Yes, sir. . . . . . 1 The case was heard May 21, 21. 2 In the interim, the plaintiff was seen by Dr. Robert Bell, another podiatrist, in 1998 and 1999, who took an extensive history fro m the p laintiff, and tre ated h im for dia gnos ed p lantar fasc iitis. Thes e visits to D r. Be ll, his diagnosis, and his treatm ents, were not disclosed by the plain tiff to anyone, including the physicians who subsequently treated or examined him. Moreo ver, the plaintiff did not disclose the fact during discovery procedures. At the trial, he testified that he d id not re call "going to Dr. Bell, or being examined by Dr. Bell, or having his feet x-rayed by Dr. Bell, or giving him this long h istory." T he pla intiff's last visit to Dr. Bell occurred five (5) months before he reported his foot-problems to his emp loyer. Th is extrao rdina ry testimo ny was n ot, for w hateve r reaso n, exp lored in dep th and the trial jud ge did not allud e to it. -2-
Coffee
Workers Compensation Panel
Cynthia L. Ursery v. Liberty Mutual Insurance Group, M2001-02749-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: Thomas W. Brothers, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer appeals the trial court's award of 8% permanent partial disability to the employee where 1) the medical proof established a 5% anatomical impairment to both elbows; and 2) a vocational expert gave the employee a 9% vocational disability rating based on loss of access to 9.4% of the jobs available to her prior to her injury due to her permanent medical restrictions. We find that the evidence does not preponderate against the trial court's findings, and therefore the award is not excessive. We affirm the judgment of the trial court in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty Mutual Insurance Group and United Parcel Service, Inc. H. Tom Kittrell, Jr., Nashville, Tennessee, for the appellee, Cynthia Ursery. MEMORANDUM OPINION Mrs. Cynthia Ursery, the employee-appellee, was 46 years old at the time of trial. She graduated from high school in 1972 and has had no further educational training. From 1979 until April of 21, Mrs. Ursery worked for United Parcel Service (UPS), the employer-appellant, on a part-time basis. For a number of years she "bagged" small packages by pulling, pushing, or lifting the packages into bags and in turn putting the bags onto a conveyor belt. These packages were supposed to be limited to 1 pounds but at times exceeded 2 pounds in weight. Mrs. Ursery estimated she sorted 2, to 4, packages a night. For at least 1 years of her employment with UPS, she sorted individual small packages. In this job she was required to pick up the package and move her palms into an upright position continuously to read the label on the packages to place them in the correct bin. Other job duties she performed at UPS included loading and fueling trucks, and driving local routes. From 1988 to 1992, Mrs. Ursery also worked at Castner Knotts as a sales clerk where her job duties included unpacking clothes and hanging the items on display racks. In June of 1998, Mrs. Ursery saw Dr. Robert Russell because she had been experiencing pain in her left elbow. Dr. Russell prescribed medicine and gave her an "arm bandit." She returned to Dr. Russell in the fall of 1998 complaining of right elbow pain for which he also prescribed an "arm bandit." In January of 1999, she received two cortisone shots which only seemed to increase the pain in her elbows. Mrs. Ursery sought additional medical care and chose Dr. Jane Siegel from a panel presented to her by UPS. Dr. Siegel took Mrs. Ursery off work for about 5 or 6 weeks. Though her elbows improved with rest, as soon as she returned to work, her pain resurfaced. Dr. Siegel diagnosed chronic medial epicondylitis and performed surgery on Mrs. Ursery's right elbow in May of 1999. Mrs. Ursery returned to work with restrictions. UPS assigned her to a light duty job fueling trucks and driving them short distances across the yard. Mrs. Ursery began to have trouble pulling herself into the trucks and eventually re-injured her right elbow in May of 2. She was put on medical leave until September of 2, when she returned to work sorting light- weight letters. Mrs. Ursery's elbow pain continued. Consequently, Dr. Siegel placed her on permanent restrictions of lifting no more than 5 pounds and of making no highly repetitive motion of her wrist for more than 1 hour at a time. Dr. Siegel found that Mrs. Ursery had reached maximum medical improvement on April 2, 21, and assigned a 5% anatomical impairment rating to both elbows. In April of 21, UPS terminated Mrs. Ursery's employment because it had no work available that she could perform within her medical restrictions. She was earning $2. per hour at the time of her termination. Ms. Rebecca Williams, a Certified Vocational Evaluation Specialist, testified at trial on behalf of Mrs. Ursery. As part of a vocational evaluation performed in August of 21, Ms. Williams interviewed Mrs. Ursery for over 3 hours, administered the Wide Range Achievement Test -2-
Davidson
Workers Compensation Panel
Andrew Downs vs. Crystal Bailey/Joni Downs W2002-01362-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William A. Peeler
This is a child custody case. The two children involved were born to the mother and father during their marriage. In 1998, the mother and father were unable to care properly for the children, so the mother's sister (the children's aunt) obtained temporary custody. The mother and father divorced in 1999. In 2000, the father filed a petition for custody, claiming that he and his common-law wife could provide a stable home for the children. The aunt sought to retain custody. The mother intervened, arguing that, if permanent custody were not granted to the aunt, then custody should be awarded to her. After a hearing, the trial court granted custody to the father. The mother and the aunt appeal, both claiming that they are entitled to custody. We affirm, finding that the father's rights are superior to those of the aunt, and that the trial court did not err awarding custody to the father rather than the mother.
The petitioner, Michael Edmondson, appeals as of right the Shelby County Criminal Court's denial of his petition for post-conviction relief. He challenges his convictions pursuant to guilty pleas contending that he received the ineffective assistance of counsel because his trial attorney failed to investigate and prepare his case for trial. We affirm the trial court's denial of the post-conviction petition.
Shelby
Court of Criminal Appeals
Deborah Smith vs. Riley Smith W2002-00477-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George R. Ellis
This is an appeal of a final decree of divorce and the order of the trial court on the moton to alter or amend, involving issues of division of marital property, alimony in futuro, contempt of court, and injunctive relief for Wife's alleged harassment of Husband. Husband appeals. We affirm in part, reverse in part, and remand.
The petitioner, Gary Eugene Aldridge, was convicted by a jury in the Circuit Court of Hickman County of one count of aggravated kidnapping, two counts of aggravated rape, one count of rape, and two counts of simple assault. The trial court sentenced the petitioner to an effective sentence of sixty years incarceration in the Tennessee Department of Correction, followed by an effective consecutive sentence of seventeen months and twenty-nine days in the local workhouse. After an unsuccessful appeal of his convictions, the petitioner timely filed a petition for post-conviction relief, alleging, among other grounds, ineffective assistance of counsel. The petitioner now brings this appeal challenging the post-conviction court's denial of his petition. After reviewing the record and the parties' briefs, we affirm the judgment of the post-conviction court.
Hickman
Court of Criminal Appeals
John Iovinelli vs. Steadman Estes W2001-02968-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D'Army Bailey
This is an appeal of the grant of summary judgment. The Appellants contend that the trial judge granted the Appellees summary judgment, sua sponte, and that they did not have notice or an opportunity to respond to the issues decided by the judge. We disagree and, for the following reasons, we affirm.
The defendant, Michael Douglas Willis, was charged with DUI, violating the open container law, and violating the implied consent law. A jury convicted the defendant of violating the implied consent law but acquitted him of the other charges. The trial court subsequently overturned the jury's guilty verdict but nevertheless revoked the defendant's license for one year for violating the implied consent law. The defendant now appeals the trial court's revocation of his license. We affirm the judgment of the trial court.
Janice Evans vs. Thomas Evans W2001-03037-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris
This is an appeal of a final decree of divorce involving issues of division of marital property, rehabilitative alimony, child support, and admission of evidence. Wife appeals. We affirm in part, reverse in part, and remand.
Henderson
Court of Appeals
Dept. of Transportation vs. Sammy/Yvonne Hanna W2002-00152-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. Creed Mcginley
This is a condemnation case. The Tennessee Department of Transportation alleges that the trial judge committed error by allowing the landowners to discover the opinions of an appraiser not designated to testify at trial and that these errors require overturning the jury's verdict because of the prejudice they caused. We find that errors were committed in the court below, but that these errors were harmless. Therefore, we affirm the verdict of the jury.
Defendant pled guilty to possession of cocaine with intent to sell, a Class C felony. Defendant's motion to suppress evidence was denied by the trial court. Defendant claimed that evidence found on him was the result of an illegal search and should have been suppressed. The suppression issue was certified for review. We affirm the trial court and hold the evidence was properly admissible.
Chester
Court of Criminal Appeals
Stella Keltner vs. Open Lake Sporting Club W2002-00449-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
This is a dispute over ownership of the Right Hand Arm portion of Open Lake. The trial court awarded summary judgment to Open Lake Sporting Club. Having determined that there are genuine issues of material facts, we reverse and remand for further proceedings.
