APPELLATE COURT OPINIONS

This matter is before the Court upon the State’s motion to affirm the judgment of the habeas corpus court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.  The Petitioner has appealed the habeas corpus court’s order dismissing the petition for writ of habeas corpus. Upon a review of the record in this case, we are persuaded that the habeas corpus court was correct in dismissing the habeas corpus petition and that this case meets the criteria for affirmance
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.  Accordingly, the State’s motion is granted and the judgment of the habeas corpus court is affirmed.

Both the petitioner and his co-defendant were convicted by a jury of two counts of first degree murder, one count of aggravated rape and one count of first degree burglary. The petitioner was unsuccessful in his direct appeal to this Court. He subsequently filed a petition for post-conviction relief, which the post-conviction court denied. The petitioner was also unsuccessful in his appeal of that judgment. The petitioner filed a motion to amend his post-conviction petition to request DNA testing of evidence. The second post-conviction court denied that motion. The petitioner appeals this decision. We affirm the decision of the second post-conviction court.

This is an appeal from the dismissal of an inmate’s civil action for failure to pay costs in prior lawsuits. The plaintiff inmate, proceeding pro se, filed a complaint in the trial court against the defendant municipality alleging violations of the government tort liability act, proceeding as a pauper. The City filed a motion to dismiss the case based on Tennessee Code Annotated §41-21-812, because the plaintiff had failed to pay costs in previous lawsuits filed by him. Realizing that his lawsuit was subject to dismissal under the statute, the plaintiff then paid the initial filing fee
and cash bond for the instant lawsuit, but did not pay the costs for the prior lawsuits. The plaintiff subsequently filed a response to the City’s motion to dismiss, claiming that, although he initially was prohibited from filing the lawsuit, because he subsequently paid his filing fees for the instant lawsuit, Section 41-21-812 was not applicable. The trial court dismissed the case pursuant to the statute.  The plaintiff now appeals. We affirm.

This is a divorce case in which grounds were stipulated.  Husband appeals the trial court’s award of alimony in futuro to Wife.  He asserts, in the alternative, that if this Court affirms the award of alimony the matter must be remanded for reconsideration of the division of property. We vacate the award of alimony in futuro and remand.

This is a garnishment action. The plaintiff lawyer filed a lawsuit against the defendant to collect on a promissory note. This lawsuit was settled by a consent decree requiring the defendant to make installment payments. The defendant became delinquent in the agreed payments. The plaintiff then issued a garnishment request to the defendant’s employer, based on the consent decree. In response, the defendant filed a motion in the trial court to stay the garnishment and establish installment payments. After a hearing, the trial court entered an order as to the monthly amount to which the plaintiff was entitled in garnished wages. This amount was less than the maximum statutory amount permitted for garnishment. The plaintiff now appeals, arguing that the trial court erred by not awarding the maximum statutory amount. We affirm, finding no abuse of discretion.

This is a parental relocation case. The parties were divorced and, under their MDA, the mother was designated the primary residential parent for the parties’ two children. Within a month after the divorce decree was entered, the mother wrote the father a letter saying that she was moving to Canada with the children. The father filed an objection to the relocation in the trial court. The mother filed a response and a petition to relocate with the children to Canada, stating that she intended to marry a citizen of Canada who was currently serving in the Canadian armed services.  After a hearing, the trial court denied the mother’s petition, finding that the relocation did not have a reasonable purpose and that the relocation was not in the children’s best interest. The mother now appeals. We reverse, holding that the evidence  preponderates against the trial court’s finding of no reasonable purpose under the parental relocation statute.

This is an appeal from an unusual order in a termination of parental rights case.  The child involved in this action was placed into state custody soon after the child’s birth, because both the mother and the child tested positive for cocaine.  The child was placed in the custody of a foster mother who was a single parent.  The state filed a petition to terminate the parental rights of the biological parents of the child. After a trial, the trial court terminated the parents’ parental rights. Additionally, the trial court sua sponte ordered the state to find a suitable dual-parent home in which to place the child and ordered the state to consult with private adoption agencies to accomplish this task.  The state now appeals the portion of the trial court’s order requiring it to place the child in a dual-parent home.  There is no appeal from the termination of parental rights. We reverse the trial court’s order regarding placement of the child, concluding that the trial court was without jurisdiction to adjudicate placement of the child after the parents’ rights were terminated and the state was given complete guardianship over the child.

The defendant, Ashley Martin, was convicted of two counts of aggravated robbery: aggravated robbery by violence and aggravated robbery by fear. The trial court merged the convictions and sentenced the defendant to thirty years as a Range III, career offender. This appeal follows the denial of his motion for a new trial in which he alleged that: (1) the evidence was insufficient to support his conviction, and (2) the trial court erred in ruling his nine prior convictions for aggravated robbery were admissible for purposes of impeachment if he chose to testify. After careful review, the judgments of the trial court are affirmed.

The appellant, Thurman Randolph, was arrested in February of 2005 for rape. After a preliminary hearing in the Madison County Municipal Court the charge was dismissed. Subsequently, the State presented the matter to the Madison CountyGrand Jury, which returned an indictment on two counts of rape. The appellant was later re-indicted by the Madison County Grand Jury on two counts of rape and two counts of statutory rape. Upon learning that part of the audiotape of the preliminary hearing was not available due to a technical glitch in the recording, the appellant filed a motion seeking dismissal of the indictment and a remand of the matter to the Jackson Municipal Court for a new preliminary hearing pursuant to Tennessee Rule of Criminal Procedure 5.1(a). The trial court denied the motion and the appellant sought an interlocutory appeal. In this interlocutory appeal, the appellant asserts that the trial court improperly denied the motion to dismiss the indictment and remand the matter to the Jackson Municipal Court. Because the trial court properly denied the motion to dismiss the indictment, we affirm the judgment of the trial court.

Husband appeals the type and amount of alimony awarded to Wife after the termination of a twenty-seven year marriage. The decision of the trial court is affirmed as modified.

The appellant, Jacques Sherron, was convicted by a jury of criminal responsibility for introducing a controlled substance into a penal institution, conspiracy to introduce a controlled substance into a penal facility, possession of cocaine with the intent to sell or deliver and possession of marijuana with the intent to sell or deliver. The appellant received an effective sentence of ten years on March 18, 2005. The appellant filed a pro se notice of appeal on April 6, 2005. On July 1, 2005, trial counsel for the appellant filed a motion for new trial alleging that the evidence was insufficient, that the verdict was based on circumstantial evidence and that the appellant’s sentence was excessive.  The appellant subsequently filed a motion in this Court requesting dismissal of his appeal without prejudice due to the fact that the trial court had not yet ruled on the motion for new trial. This Court denied the motion. The appellant filed an amended pro se motion for new trial. The trial court held a hearing on the motion for new trial on September 14, 2005, at which time the appellant filed a third amended motion for new trial. The trial court denied relief, and the appellant filed a second notice of appeal on September 14, 2005. On appeal, the following issues are presented for our review: (1) whether the conspiracy charge should have been dismissed for failure to state a crime; (2) whether the evidence was sufficient to support the verdict; and (3) whether the trial court committed plain error in failing to give an accomplice instruction to the jury. For the following reasons, we reverse and dismiss the conspiracy conviction, and affirm the conviction for introducing a controlled substance into a penal facility.

Pursuant to multiple indictments, Defendants Jevon Bryant, Keith Ezell and Torrez Talley were charged with fourteen counts of especially aggravated kidnapping and five counts of aggravated robbery.  Defendant Bryant was also charged with one count of felon in possession of a firearm.  Following a trial, the jury found Defendants Bryant and Ezell guilty on all counts. The jury found Defendant Talley guilty of ten counts of especially aggravated kidnapping and four counts of aggravated robbery. Thereafter, the trial court sentenced Defendant Bryant to an effective sentence of 364 years, Defendant Ezell to an effective sentence of 198 years, and Defendant Talley to an effective sentence of 140 years. On appeal, the following issues are presented for review: (1) whether the trial court properly denied a motion to suppress physical evidence; (2) whether the trial court properly denied a motion for mistrial during jury selection; (3) whether the trial court properly found purposeful discrimination by the defendants in their exercise of peremptory challenges; (4) whether the trial court erred by failing to require the state prosecutor to elect facts supporting Defendant Bryant’s conviction for felonious possession of a handgun; (5) whether the trial court erred in allowing the prosecutor to rehabilitate the credibility of state witnesses; (6) whether the trial court erred in refusing to grant a mistrial or provide curative instruction following an improper statement made by a state witness; (7) whether the trial court erred in allowing the prosecutor to bring in Defendant Ezell’s twin brother to rehabilitate a state witness’ pretrial misidentification; (8) whether the trial court erred in refusing to grant a mistrial in response to the improper remarks made by the prosecutor during closing argument; (9) whether the trial court erred by refusing to permit counsel to review the jury instructions prior to charging the jury; (10) whether the trial court properly instructed the jury on reasonable doubt; (11) whether the trial court properly instructed the jury on the defendant’s right not to testify; (12) whether the trial court erred by refusing to instruct the jury on false imprisonment as a lesser-included offense of especially aggravated kidnapping; and (13) whether the trial court erred in sentencing the defendants. Because we conclude that no reversible error exists, we affirm the judgments of the trial court. However, the record reflects that the defendants’ especially aggravated kidnapping convictions were not properlymerged. Therefore, we remand for merger and entry of corrected judgments as to those convictions.

Pursuant to a plea agreement, the defendant, Candice Alene Peery, pled guilty to aggravated burglary and theft of property over $1,000. In return, she received an effective eight-year sentence as a Range II multiple offender with the manner of service of her sentence to be determined by the trial court. The court ordered the defendant to serve her sentence in confinement and she appealed, arguing that the court erred in denying an alternative sentence. Finding no error, we affirm the judgments of the trial court.

Following a jury trial, the Defendant, Derrick Walton, was convicted of one count of second degree murder. He was sentenced to twenty-three years in the Department of Correction. The Defendant’s sole issue on appeal is whether the trial court erred in enhancing his sentence. We affirm the judgment of the trial court.

The appellant, Christopher Kyle, also known as “Snap,” was convicted by  jury of second degree murder and theft of property. As a result, the trial court sentenced the appellant to twenty-three years as a violent offender for second degree murder and eleven months and twenty-nine days for theft of property. The sentences were ordered to run concurrently. On appeal, the appellant argues that the evidence was insufficient to support his conviction for second degree murder, that the trial court erred in instructing the juryon the theory of criminal responsibility and that his sentence is excessive.  For the following reasons, we affirm the judgment of the trial court.

The petitioner, Johnie Jefferson, appeals as of right from the order of the Shelby County Criminal Court denying his petition for post-conviction relief from his first degree murder conviction, for which he is serving a life sentence. The petitioner claims he received the ineffective assistance of trial counsel because his attorney failed to investigate two witnesses properly and failed to consult with him prior to trial. We conclude no error exists, and we affirm the judgment of the trial court.

The Appellant, Faron Douglas Pierce, appeals the dismissal of his petition for post-conviction relief. Pierce was convicted of aggravated robbery by a Blount County jury and was sentenced to twenty years in the Department of Correction. On appeal, Pierce argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was deficient in: (1) failing to seek suppression of evidence at trial; (2) failing to adequately inform Pierce of his right to testify at trial; and (3) calling a witness which prejudiced the defense. After review, the judgment of the post-conviction court is affirmed.

I agree that principles of double jeopardy would be offended upon the defendant’s retrial for second degree murder because the record does not support the trial court’s finding of manifest necessity and because the defendant, ostensibly at least, did not consent to the order of mistrial. I write this concurring opinion because this latter issue – the defendant’s lack of consent – gave me great pause.

The appellant, Carolette Stephens, was indicted on one count of second degree murder. During the jury trial in May of 2005, the trial court sua sponte declared a mistrial over objection of both the State and the appellant. The case was immediately rescheduled for trial. The appellant sought a dismissal of the indictment, arguing that the retrial placed the appellant in double jeopardy. The trial court denied the motion to dismiss the indictment, but permitted the appellant to seek an interlocutory appeal. This Court granted the interlocutory appeal. On appeal, the appellant presents the following issues: (1) whether the State provoked the trial court into granting a mistrial by eliciting testimony regarding an unconstitutional search warrant that had been suppressed by the trial court; (2) whether the trial court erred in granting a mistrial based on manifest necessity; and (3)
whether the appellant’s rights to protection against double jeopardy will be violated by a retrial for second degree murder. Because the trial court improperly declared a mistrial without a manifest necessity for doing so, the double jeopardy provisions of the federal and state constitutions prohibit a retrial of the appellant on the charge that is the subject of this appeal. The judgment of the trial court denying the appellant’s motion to dismiss is therefore reversed and the indictment dismissed.

The petitioner, Clyde Lee Blackmon, appeals as of right the Shelby County Criminal Court’s  denying his petition for post-conviction relief from his 2004 conviction of second degree murder, a Class A felony, for which he is serving a twenty-five-year sentence as a Range I, violent offender. The petitioner claims he received the ineffective assistance of counsel, which rendered his guilty plea involuntary. We conclude no error exists, and we affirm the judgment of the trial court.

The appellant, Marcell Carter, pled guilty to a violation of the bad check law, Tennessee Code Annotated section 39-14-121. The trial court sentenced the appellant to four years to be served on Community Corrections. Subsequently, a warrant was filed against the appellant alleging a failure to abide by several conditions of his Community Corrections sentence. After a series of hearings, the trial court removed the appellant from Community Corrections and re-sentenced him to four years in the Tennessee Department of Correction. On appeal, the appellant argues that the trial court abused its discretion. Because we determine that the trial court properly revoked the appellant’s Community Corrections sentence and resentenced the appellant, we affirm the judgment of the trial court.

The appellant, Michael Dewayne Mann, was convicted of second offense driving under the influence (DUI) and violation of the implied consent law. As a result, the appellant was sentenced to eleven months and twenty-nine days in the county jail, to be served on unsupervised probation after incarceration of ninety days. After the denial of a motion for new trial, this appeal ensued. The appellant challenges the sufficiency of the evidence on appeal. Because the evidence was sufficient to sustain the appellant’s conviction for second offense driving under the influence and the appellant does not challenge his conviction for violation of the implied consent law, we affirm the judgment of the trial court.

This workers’ compensation action arose out of an employee’s motion to compel medical treatment. The employee had settled a workers’ compensation claim with his employer involving a work-related injury sustained in 1997. This settlement provided that the employer was responsible for future medical treatment. The employer refused to pay for recommended shoulder joint replacement surgery, arguing that the need for the surgery was not causally related to the initial injury. The trial court found that the need for the surgery was related to the initial injury and ordered the employer to provide for that treatment. The employer appealed, arguing that the trial court improperly shifted the burden of proof to the employer and that the evidence did not support the finding that the need for surgery was causally related to the initial injury. We accepted review before the case was heard or considered by the Special Workers’ Compensation Appeals Panel. We hold that the trial court did not shift the burden of proof to the employer and that the evidence does not preponderate against the trial court’s finding of causation. Accordingly, we affirm the judgment of the trial court.

The appellant, Ronald Eugene Mullins, was convicted by a jury of theft of property over one thousand dollars. The trial court ordered the appellant to serve a three-year sentence as a Range I standard offender. After the denial of a motion for new trial, the appellant filed a timely notice of appeal challenging the sufficiency of the evidence. After a review of the record, we affirm.

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 of findings of fact and
conclusions of law. The trial court awarded the Employee 85 percent permanent partial disability
as a result of metal poisoning at his workplace. The Employer contends the action should be
dismissed because notice of injury was not timely given and because the evidence was insufficient to establish causation of injury. We affirm the judgment of the trial court.