APPELLATE COURT OPINIONS

The defendant was convicted by a Shelby County jury of premeditated first degree murder and sentenced to life imprisonment without the possibility of parole. In this appeal, the defendant challenges the admission of three alleged hearsay statements and the sufficiency of the evidence. We affirm the judgment of the trial court.

The petitioner appeals his denial of post-conviction relief and asserts that the post-conviction court incorrectly found that he received effective assistance of counsel and, thus, knowingly and voluntarily pled guilty. After review, we affirm the judgment of the post-conviction court.

The defendant was convicted by a Davidson County Criminal Court jury of second degree murder and the possession of a weapon by a convicted felon for shooting a man to death in an automobile shop. The sole issue on appeal is whether the evidence was sufficient to support his conviction of second degree murder. Specifically, the defendant contends that the State failed to offer sufficient proof of the victim's cause of death. In support of his claim, he argues that the autopsy report, which states the cause of death as multiple gunshot wounds, was improperly admitted into evidence, that the medical examiner never directly testified that the victim died of gunshot wounds, and that no other evidence was presented to prove cause of death. After a thorough review, we conclude that the defendant waived any objection to the admission of the autopsy report by his failure to object at trial, and further, that sufficient evidence, other than the autopsy report, was presented to show that the victim died as the result of gunshot wounds. Consequently, the evidence at trial was sufficient to establish the defendant's guilt of second degree murder beyond a reasonable doubt. The judgment of the trial court is affirmed.

This is Defendant, Sharon Leming's, second appeal as of right to this Court. See State v. Leming, 3 S.W.3d 7 (Tenn. Crim. App. 1998). In both Defendant's first and second trial, a Humphreys County jury convicted her of premeditated first degree murder. After the Defendant's initial appeal, this Court reversed and remanded the case for a new trial due to the erroneous admission of testimony regarding statements made by the victim as to his fear of the Defendant. Following a second trial, the Defendant received a sentence of life imprisonment to be served in the Tennessee Department of Correction. In this second appeal as of right, the Defendant presents the following issues for our review:1) whether the trial court erred in ruling that the Defendant was mentally competent to stand trial; 2) whether the evidence was sufficient to convict the Defendant of first degree murder; 3) whether the trial court erroneously admitted statements by the Defendant that she would kill her husband before she would allow him to leave her; 4) whether the trial court erred in excluding testimony that the Defendant had stated that she needed a gun to protect herself from friends of the deceased; and 5) whether the trial court erred in denying Defendant's request for a mistrial, when the trial court declined to instruct the jury that a sentence of life with the possibility of parole would require that the Defendant serve a minimum of fifty-one years. Based upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

This is a divorce case. The parties were married for twenty-five years and had no children. The wife was employed full-time and had a pension, and the husband was unemployed and disabled. The trial court granted a divorce to the wife on the grounds of inappropriate marital conduct by the husband, classified and divided the marital property without determining the value of the wife's pension, and made no provision for spousal support for the husband. The husband appeals. We affirm the grant of the divorce to the wife and affirm the decision not to award alimony to the husband. We reverse in part and remand for the trial court to classify the wife's pension plan as marital property, determine its value, and equitably divide it between the parties.

The issue raised in this appeal is whether the trial court properly denied the Appellant/Petitioner's post-conviction petition? After a review of the record in this cause, the briefs of the parties and applicable law, we affirm the trial court's judgment.

The petitioner appeals the post-conviction court's dismissal of his petition for post-conviction relief. Following his jury conviction of aggravated robbery, the petitioner filed a petition for post-conviction relief, alleging, among other things, that he received ineffective assistance of counsel at trial. At the conclusion of an evidentiary hearing, the post-conviction court dismissed the petition, finding that the petitioner failed to meet his burden of showing ineffective assistance of trial counsel. After a careful review, we affirm the post-conviction court's dismissal of the petition.

Defendant, the attorney for the Dyer Industrial Development Board, was convicted by a Gibson County jury of theft over $60,000 and theft over $1,000. On appeal, he contends the evidence was insufficient to establish guilt. We affirm the judgment of the trial court.

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. After review, we hold that the record supports the post-conviction court's finding that trial counsel was not ineffective in failing to obtain the 911 tape; was not ineffective in preparing a defense; was not ineffective for failing to introduce fingernail samples taken from the petitioner; and was not ineffective for failing to adequately develop the victim's mother as a suspect.

And No. E1998-00099-SC-R11-CD

This is a consolidated appeal from the defendants’ convictions in the Criminal Courts of  Anderson County and Knox County, respectively.  Defendant Ely was originally charged with one count of premeditated murder and one count of felony murder; defendant Bowers was charged with two counts of felony murder. In Ely’s case, the State nolle prossed the premeditated murder count upon the conclusion of the proof, and the trial court refused to instruct any lesser-included offenses to felony murder. He was convicted as charged of felony murder and sentenced to life imprisonment. In defendant Bowers’s case, the trial court dismissed the charges of felony murder at the conclusion of the proof and, over his objection, instructed the jury on the lesser offenses of second degree murder, reckless homicide, and criminally negligent homicide. Bowers was convicted of second degree murder.

On appeal to the Court of Criminal Appeals, Ely argued that the offenses of second degree murder, reckless homicide, criminally negligent homicide, facilitation of felony murder, and accessory after the fact to felony murder were all lesser-included offenses of felony murder and should have been instructed. A majority of the intermediate court held that accessory after the fact was not a lesserincluded offense of felony murder. However, assuming that the other lesser offenses were included, the Court of Criminal Appeals determined that no error occurred because the evidence did not -2- support an inference of guilt of any of the other lesser offenses. In his direct appeal, Bowers argued that second degree murder was not a lesser-included offense of felony murder and should not have been charged. The intermediate court held that second degree murder was a lesser-included offense of felony murder and that it was properly instructed in his case.

We granted review in this consolidated appeal to determine several issues: (1) whether there are any lesser-included offenses to felony murder; (2) if there are no lesser-included offenses, whether the conviction in Bowers’s case is therefore invalid; (3) if there are lesser-included offenses, whether failure to instruct such offenses was error in Ely’s case; and (4) whether any such error was harmless.  We also take the opportunity in this case to clarify the harmless error standard, which has been the subject of some confusion since our decision in State v. Williams, 977 S.W.2d 101, 104-06 (Tenn. 1998). We conclude that the offenses of second degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder, and therefore, instruction on these offenses in Bowers’s case was not error. In Ely’s case, we find that some evidence exists that reasonable minds could accept as to several lesser-included offenses, and therefore, the failure to instruct such offenses was error. Because we conclude that such error was not harmless beyond a reasonable doubt, we reverse Ely’s conviction and remand his case for a new trial.

Appellee, a privately owned, government subsidized apartment complex filed an unlawful detainer action seeking to evict appellant, Ashley Clinard, after a small amount of marijuana was found in her apartment. A guest admitted to having the marijuana despite Ms. Clinard's expressed prohibition against drugs in her apartment. The circuit court entered a judgment for possession of the premises against the defendant, interpreting provisions of the lease, one required by federal law and the other allowed by Tennessee law, to permit eviction of a tenant for drug related actions of a guest, even without the knowledge of the tenant. Based upon the Tennessee Supreme Court's decision in Memphis Housing Authority v. Thompson, 38 S.W.3d 504 (Tenn. 2001), holding that a tenant may not be evicted for drug related criminal activities of a guest, under federally-required lease provisions, unless the tenant knew or should have known of the activity and failed to take reasonable steps to prevent it, and because the evidence shows that Ms. Clinard had no reason to know that her guest had marijuana in her apartment, we conclude the eviction based on that provision must be reversed. Additionally, because we find that temporary mere presence of a small amount of marijuana does not constitute "a violent act" or "a real and present danger to the health, safety or welfare of the life or property of other tenants or persons," we conclude that state law does not authorize the summary eviction. Accordingly, we reverse the trial court.

The trial court granted the husband a divorce, divided his military pension between the parties, and awarded the wife rehabilitative alimony. The wife argued on appeal that she should have been given a greater share of the husband's pension, and that the alimony award was inadequate. We affirm the property division and the amount of the alimony award, but remand this case to the trial court for a determination of whether a change of circumstances would entitle the wife to an extension in the duration of the award.

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of counsel at trial. The petitioner was convicted by a jury of first degree murder for shooting his wife to death, and sentenced to life imprisonment. In his post-conviction petition, the petitioner asserted a number of grounds for relief, including ineffective assistance of counsel. The post-conviction court denied the petition, finding, with regards to the ineffective assistance of counsel claim, that many of the petitioner's allegations did not constitute a deficiency in counsel's performance, and further, that the petitioner had failed to meet his burden of showing that any of the alleged deficiencies of counsel prejudiced the outcome of his case. After a thorough review of the record, we reverse the judgment of the post-conviction court as to the effect of trial counsel's misplacing of photographs which were not located until after the trial and the post-conviction hearing and remand for an additional hearing. As to the other issues, we affirm the judgment of the trial court.

The defendant, James L. Roberson, was charged with attempted second degree murder for the repeated stabbing of a female acquaintance and was convicted of the offense, following a bench trial. He testified that he was under the influence of drugs at the time of the offense and could not remember what had happened. He appealed the conviction, arguing that, as the result of his mental state, the proof was insufficient to sustain the conviction. We affirm the judgment of the trial court.