APPELLATE COURT OPINIONS

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. The Claims Commission awarded 94% permanent partial disability to the employee and commuted the award to a lump sum. The employee’s position is that she is permanently and totally disabled. We agree with the position of the employee. Accordingly, we award the employee permanent total disability benefits and reverse the communation of the award to a lump sum.

The petitioner, Fred E. Smith, appeals from the circuit court’s summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the record and applicable law, we affirm the dismissal of the petition.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. The trial court found that the employee was permanently and totally disabled as a result of the work-related back injury and awarded permanent and total disability benefits, allocating the responsibility for paying those benefits 85% to Bi-Lo and 15% to the Secondary Injury Fund. The employer, Bi-Lo has appealed the trial court’s award contending that the trial court erred in finding the employee permanently and totally disabled. The employer also appeals the allocation of responsibility for the vocational disability between itself and the Second Injury Fund. After a careful review of the record, we conclude that the trial court should be affirmed as modified.

This lawsuit was filed by the husband and children of Gail Lavan Floyd, who died in March 2000. T. Ray Brent Marsh (“Marsh”) and the company managed by him, Tri-State Crematory, Inc. (“Tri- State”), are the only remaining defendants. The instant case is one of many civil actions filed against Marsh and Tri-State following the discovery of over 300 bodies on the company’s premises. The bodies were to have been cremated, but were not. Criminal charges were brought against Marsh in Georgia and Tennessee. He pleaded guilty to many of the charges. Following Marsh’s sentencing, he was noticed, for the second time, to give a deposition in the instant action. At an earlier deposition, he had invoked his Fifth Amendment privilege against self incrimination. As to the present notice, the trial court concluded that Marsh could no longer invoke his Fifth Amendment privilege because, in the court’s judgment, he is no longer facing criminal prosecution. The court ordered Marsh to give a second deposition and further ordered that he could not refuse to answer any question posed to him at the deposition if his refusal was predicated upon the Fifth Amendment. We granted Marsh’s Tenn. R. App. P. 9 application for an interlocutory appeal. We affirm in part and vacate in part.

In June 2006, the defendant, Johnny James Lloyd, was charged by criminal information with one count of aggravated assault, a Class C felony. The defendant waived issuance of an indictment, pled guilty, and was sentenced to five years in prison as a Range I, standard offender. The defendant filed a timely motion to set aside his guilty plea. Following a hearing, the trial court denied the motion. The defendant appeals, claiming his guilty plea was not entered into voluntarily and knowingly. After reviewing the record, we affirm the judgment of the trial court.

The Defendant, Joe Carpenter Tyree, was convicted of aggravated robbery following a jury trial in Marshall County. The Defendant was sentenced as a Range I, standard offender to twelve years in the Department of Correction. On appeal, the Defendant asserts that the evidence is insufficient to support his conviction beyond a reasonable doubt, that the sentence imposed was excessive, and that the trial court erred by not instructing the jury on the lesser-included offense of attempted aggravated robbery. Finding no error, we affirm the judgment of the trial court.

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 of findings of fact and conclusions of law. In this case, the trial court found the employee's heart attack to be compensable and awarded benefits for 20% permanent partial disability. The employer contends that the heart attack did not arise out of or occur in the course of his employment. The employee contends the amount of the award is inadequate. We reverse the trial court's finding that the heart attack was compensable and dismiss the employee's complaint.

The Defendant, Thomas Coburn, was convicted by a Sullivan County jury of aggravated kidnapping, a Class B felony, and attempted rape, a Class C felony. The trial court sentenced the Defendant to nineteen years for the aggravated kidnapping and nine years for the attempted rape to be served consecutively in the Department of Correction. On appeal, the Defendant asserts the following: (1) his conviction for aggravated kidnapping violated federal and state due process protections and should be vacated under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); (2) the evidence establishing identification is insufficient to support his convictions for attempted rape and aggravated kidnapping beyond a reasonable doubt; and (3) the trial court erred in ordering the Defendant to serve consecutive sentences based upon the classification as a dangerous offender. We reverse the Defendant’s conviction for aggravated kidnapping. We affirm the conviction for attempted rape.

This case illustrates the growing disparity in the application of diversion, both pre-trial and judicial, in the State of Tennessee. The appellant in this case, who presents an unblemished combined history of thirty-five years of meritorious service to his country in the military and to the citizens of this state as a police officer, is denied diversion, in effect, for operating a boat without proper light.  Meanwhile, on the date this opinion is being written, the Shelby County Criminal Court grants diversion of a conviction for manslaughter stemming from the shooting death of the defendant’s  husband.

I respectfully dissent from the majority opinion, being of the opinion the judgment of the trial court should be affirmed.

This is a defamation case. The defendant owned a minor league baseball team which played for the City of Jackson, Tennessee. In 2002, the plaintiff, the mayor of Jackson, was negotiating with the defendant team owners to purchase the baseball team on behalf of the city. Soon the plaintiff mayor and the defendant owner became embroiled in a lawsuit related to the sale of the team. Two years later, the plaintiff mayor filed the instant lawsuit, alleging that the defendant team owner had defamed him by telling the media that the mayor was attempting to “steal” the team. After some discovery, the defendant team owner filed a motion to dismiss for failure to state a claim. At the hearing on the motion, the trial court noted that matters outside the complaint had been submitted to the court, and it therefore treated the motion as one for summary judgment. The trial court granted the motion, concluding that the statement allegedly made by the defendant team owner was not defamatory, and that the plaintiff mayor had not presented sufficient proof of damages. The plaintiff mayor now appeals. We affirm, concluding that the statement allegedly made is mere hyperbole and not defamatory as a matter of law.

The appellant, Russell L. Tipton, was charged with reckless operation of a motor vessel and failure to observe the motor vessel light law. The appellant applied for pretrial diversion and has twice been denied. In the instant appeal, the appellant challenges the prosecutor’s second denial of his application for pretrial diversion. Upon our review of the record and the parties’ briefs, we reverse the judgment of the trial court upholding the prosecutor’s denial of diversion and remand to the trial court for further proceedings consistent with this opinion.

The prescribed due process analysis in cases of multiple prosecutions involving kidnapping is vexing to prosecutors and courts, if not to defenders, because of the infinite possibilities for factual permutations. The present case presents an apt opportunity to illustrate the analytical challenges and shortcomings.

I respectfully dissent from the majority’s conclusion that the aggravated kidnapping conviction should be reversed under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). I concur, though, in the majority opinion’s analysis and conclusions regarding the sufficiency of the evidence and consecutive sentencing.

The defendant, Michael Ray Carlton, was convicted of theft over $60,000 (Class B felony) and sentenced to eight years as a Range I, standard offender. The defendant now appeals his conviction and sentencing and presents the following issues: (1) the evidence was insufficient to support the conviction; (2) the trial court erred in its jury instruction regarding accomplice corroboration; (3) the trial court committed plain error in allowing certain testimony and in allowing improper comments in closing argument; and (4) the trial court erred in sentencing by its order of incarceration. After review, we affirm the conviction but modify the manner of service of sentence to serve six months in the local jail or workhouse, with eligibility for work release if available, followed by supervised probation for the remainder of his sentence. We remand to the trial court for the determination and setting of restitution payments.

The defendant, David Threat, was convicted by a Shelby County jury of first degree felony murder and aggravated robbery, for which he received concurrent sentences of life and twelve years, respectively. He raises three issues on appeal: (1) whether the trial court erred in denying his motion to suppress his statements to police; (2) whether the trial court erred in admitting a store surveillance videotape into evidence; and (3) whether the evidence was sufficient to sustain his felony murder conviction. Following our review, we affirm the judgments of the trial court.

In this divorce case, the husband filed for divorce approximately five months after entering into marriage with the wife, an immigrant who had come to the United States from Latvia on a religious work visa. The husband resided in Madison County, Tennessee, and the wife and her son spent a majority of the duration of the marriage living in Cincinnati, Ohio, where the wife worked for a church and her son attended school. The chancellor awarded the wife temporary support and held a bench trial. The chancellor granted the parties a divorce based upon stipulated grounds and awarded the wife 25% of the value of the parties’ marital property, as well as attorney’s fees. We affirm.

Appellant challenges trial court’s order dismissing Appellant’s Petition for Writ of Certiorari. The record reveals that the court reached its decision in a lawful manner. We affirm.

The appellant, Vanda Watkins, pled guilty in the Shelby County Criminal Court to reckless aggravated assault, a Class D felony, and pursuant to the plea agreement, received a two-year sentence. After a sentencing hearing, the trial court ordered that the appellant serve his entire sentence in confinement. On appeal, the appellant claims that the trial court erred by denying his request for probation. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The defendant, Robert Charles Skinner, appeals from the judgment of the Dyer County Circuit Court, revoking his probation and imposing service of the remainder of his misdemeanor sentence in confinement. In this appeal, the defendant argues that the court erred in revoking his probation.  Following our review of the record, parties’ briefs, and the applicable law, we determine no error exists in the court’s revocation of probation, and thus affirm the court’s judgment.

The petitioner, Glenn Bernard Mann, appeals the trial court’s denial of his petition for writ of error coram nobis. Following our review of the record, parties’ briefs and applicable law, we affirm the judgment of the trial court.

This appeal involves a wrongful death action arising from the fatal shooting of a tenant at a public housing property. The decedent was in the manager’s office of the apartment complex when another tenant, who was involved in an altercation with a security guard on the premises, obtained a rifle from his apartment and began shooting at the security guard. The decedent was struck and killed by a bullet fired by the other tenant during the incident. The plaintiffs, the surviving children and sister of the decedent, sued the defendant owner and operator of the public housing property, asserting claims for wrongful death through negligence and breach of contract per the lease agreement. The trial court granted the defendant’s motion for summary judgment. We affirm.

The Appellant, Michael Davis, was convicted by a Shelby County jury of especially aggravated robbery and sentenced to twenty-five years in the Department of Correction. On appeal, Davis raises two issues for our review: (1) whether the trial court erred in instructing the jury with regard to criminal responsibility for the conduct of another; and (2) whether the evidence is sufficient to support the conviction. Following review of the record, we find no error and affirm the judgment of conviction.

The petitioner, Connie Lee Arnold, appeals the Carter County Criminal Court’s denial of his petition for post-conviction relief from his convictions for child rape and especially aggravated sexual exploitation of a minor and resulting effective thirty-seven-year sentence. On appeal, he contends that (1) he received the ineffective assistance of trial counsel because his attorney failed to file a motion for change of venue based on pretrial publicity and (2) the post-conviction court judge erred by refusing to recuse himself from this case. Upon review of the record and the parties’ briefs, we conclude that the petitioner did not receive the ineffective assistance of counsel and that the postconviction court did not err by denying the petitioner’s motion to recuse. Nevertheless, we hold that the judge who presided over this post-conviction proceeding is disqualified from any subsequent proceedings in this case.

Defendant, Mitchell Ridley, appeals the trial court’s revocation of his community corrections sentence and the imposing of a sentence of confinement. Following our review of the record, we affirm the judgment of the trial court.