APPELLATE COURT OPINIONS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court our findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in failing to order the Employee to submit to a medical examination requested by the Employer, in admitting improper evidence concerning a Form C-32, Standard Form Medical Report for Industrial Injuries (C-32) submitted by the Employer, in failing to consider that C-32, and in awarding to the Employee 75% permanent partial disability to the body as a whole as a result of an injury sustained during the course of his employment with Norrod Builders, Inc. We conclude that the trial court committed no error and the evidence presented does not preponderate against the findings of the trial judge. In accordance with Tennessee Code Annotated §50-6-225(e)(2), the judgment of the trial court is affirmed.

The defendant, Allan Joseph Robles, was convicted by a Henry County jury of aggravated sexual battery, a Class B felony, and was sentenced as a 100% violent offender to twelve years in the Department of Correction and fined $10,000. On appeal, he argues: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in not granting his motion for acquittal; and (3) the trial court erred in not charging a lesser-included offense. Following our review, we affirm the judgment of the trial court.

The issues presented in this appeal are whether the trial court erred in dismissing the Plaintiff’s complaint based on the doctrine of prior suit pending, and its determination that the Chancery Court lacked jurisdiction to hear a claim for unliquidated damages for personal injuries. We hold that the doctrine of prior suit pending is not applicable in this case, because Plaintiff’s claims in this case involve neither the same parties nor subject matter identical to that in the prior lawsuit filed in Probate Court, and because the Probate Court would not have had jurisdiction over Plaintiff’s claims filed in Chancery Court, had they been raised there. We further hold that, pursuant to the Supreme Court’s decision in Flowers v. Dyer County, 830 S.W.2d 51 (Tenn. 1992) and its progeny, the Chancery Court erred in dismissing Plaintiff’s claim for unliquidated damages for personal injuries, and we instruct the Chancery Court to transfer this claim to Circuit Court.

The petitioner, Courtney Catrell Goss, appeals t 1 he Fayette County Circuit Court’s denial of his petition for post-conviction relief from his guilty plea to rape and the resulting twelve-year sentence.  He contends that he did not plead guilty voluntarily and that he received the ineffective assistance of counsel. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

A Warren County Circuit Court jury convicted the defendant, Michael Kenneth Sisco, of driving under the influence (DUI), second offense, a Class A misdemeanor, and the trial court sentenced him to eleven months and twenty-nine days with sixty days to serve in confinement and the balance on probation. On appeal, the defendant contends that the evidence is insufficient, that the trial court erred in allowing the testimony of a rebuttal witness, and that the trial court erred in sentencing. We affirm the judgment of the trial court.

The Appellant, Donnie W. Foulks, appeals the judgment of the Greene County Criminal Court denying post-conviction relief. On appeal, Foulks argues that he was denied his Sixth Amendment right to the effective assistance of counsel and that his sentencing violated the constitutional mandate of Blakely v. Washington. After review of the record, we affirm the denial of post-conviction relief.

Trustmark National Bank (“Trustmark”) obtained a judgment of replevin in Mississippi for a truck in the possession of Alvis Miller (“Appellant”). Prior to the Mississippi hearing, Trustmark properly served Appellant with notice, and Appellant filed a hand-written statement informing the court that he had a possessory lien on the truck for repairs made by Appellant. Despite this, the Mississippi court held that Trustmark’s lien had priority over Appellant’s possessory lien. When Trustmark sought to enroll the Mississippi judgment in Tennessee, Appellant argued that Tennessee courts should not extend full faith and credit to the Mississippi judgment because under Tennessee law, common law possessory liens have priority over prior recorded interests. The trial court enrolled the judgment and Appellant appealed. We affirm.

A Shelby County Criminal Court jury convicted the appellant, Solomon Galloway, of two counts of aggravated robbery. The trial court merged the convictions and sentenced the appellant as a Range I, standard offender to eight years in the Department of Correction. In this appeal, the appellant claims that the trial court improperly enhanced his sentence in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), which resulted in his being improperly classified as a standard offender instead of an especially mitigated offender. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Employee of Shelby County Sheriff’s Department sought review of Civil Service Commission’s order upholding employee’s termination. The Chancery Court, Shelby County remanded the issue to the Civil Service Merit Review Board, and held that the Board’s failure to require any live testimony of Shelby County employees who made accusations against the former employee was a violation of employee’s due process rights to cross-examine his accusers, and that the obligation to call the accusers is that of the employer and not that of the employee. The matter came before this Court on a Rule 9 application for Interlocutory Appeal to consider only (1) whether the Civil Service Merit Review Board’s failure to require any live testimony of Shelby County employees who made accusations against former employee was a violation of former employee’s due process rights to cross-examine his accusers, and (2) whether the obligation to call the accusers is that of the employer, Shelby County, or that of the employee. We hold that the Civil Service Merit Review Board’s failure to require any live testimony of Shelby County employees who made accusations against former employee was not a denial of the employee’s due process rights due to the fact that the employee waived the opportunity to confront or cross-examine his accusers. Further, we find that there exist no obligation on the part of Shelby County to call the employee’s accusers, only that Shelby County must meet its burden of going forward and establishing a prima facie case against the employee. The chancery court order is vacated, and the order of the Civil Service Merit Board is
affirmed.

The petitioner, Edward Coleman, was convicted of first degree premeditated murder, and he received a sentence of life imprisonment. Thereafter, he filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. The post-conviction court denied the petition, and the petitioner appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

On May 31, 2002, following a jury trial, Defendant, Tony Allan Phipps, was convicted of voluntary manslaughter. Defendant was sentenced to serve eleven (11) years in the Department of Correction and ordered to pay a fine in the amount of five thousand ($5000.00) dollars. Defendant filed a motion for new trial which the trial court granted on October 14, 2002. On August 11, 2004, following another jury trial, Defendant was convicted of reckless homicide, ordered to pay a five thousand ($5000.00) dollar fine and sentenced to ten (10) years in the Department of Correction. Defendant appeals his conviction for reckless homicide. In his appeal, Defendant argues (1) the evidence in the record is insufficient to sustain a conviction for reckless homicide; (2) the evidence in the record does not support the jury verdict; (3) the jury verdict is contrary to law and evidence; and (4) the State did not prove beyond a reasonable doubt that Defendant did not act in self-defense as required by Tennessee Code Annotated section 39-11-611(b) (2003). The judgment of the trial court is affirmed.

The Defendant, Tony Samuel, was convicted by a Lauderdale County jury of burglary and Class E felony theft. He received an effective seven-year sentence for these convictions. In this appeal as of right, the Defendant argues that: (1) the evidence is insufficient to support his convictions and (2) his sentences are excessive. After a review of the record, the judgments of conviction and resulting sentences are affirmed.

Following a jury trial, Defendant, Abbigail Morton, was convicted of one count of attempted premeditated first degree murder and one count of conspiracy to commit premeditated first degree murder. The trial court sentenced Defendant as a Range I, standard offender, to concurrent sentences of twenty years for each conviction. In her appeal, Defendant argues that (1) the testimony of the co-defendant, Robert Hunter, was insufficiently corroborated to support Defendant’s convictions; (2) the evidence was insufficient to support her convictions; (3) the trial court erred in not instructing the jury on the lesser included offense of solicitation of first degree murder; and (4) the trial court erred in not sentencing Defendant as an especially mitigated offender. After a thorough review of
the record, we affirm the judgments of the trial court.

In this appeal, we are asked to determine whether the chancery court properly granted summary  judgment to the appellees on the appellant’s claims of malicious harassment and malicious prosecution. When it granted summary judgment to the appellees, the chancery court found that the appellant did not have a cognizable claim for malicious harassment because his claim was not based on race, color, religion, national origin, or ancestry and that the appellant’s claims for malicious prosecution failed because the appellees had not initiated the prosecution and probable cause existed to prosecute the appellant. On appeal, the appellant asserts that the statute granting a civil cause of action for malicious harassment is not limited to cases based on race, color, religion, national origin, or ancestry and that no probable cause existed to prosecute the appellant. Further, the appellant argues that if he has stated a cognizable claim for malicious harassment, the appellees are not entitled to any absolute or qualified immunity for their actions. Additionally, although the appellees won on this issue at trial, the appellees have appealed whether section 39-17-309 of the Tennessee Code standing alone gives rise to a private cause of action. We affirm.

A Hamilton County Criminal Court jury convicted the defendant, Clarence David Schreane, of first degree felony murder and especially aggravated robbery, a Class A felony, and the trial court sentenced him to life imprisonment for the murder and sixty years for the robbery, ordering the defendant to serve his sixty-year sentence as a career offender consecutively for an effective sentence of life plus sixty years. The defendant appeals, claiming the trial court erred in failing to suppress his confession. We affirm the judgments of the trial court.

Husband sued for personal injury damages and Wife claimed damages for loss of consortium. The jury awarded Wife damages in an amount greater than damages awarded to Husband for the underlying personal injury claim. Appellant asserts the award to Wife is inconsistent and unsupportable as a matter of law. We affirm.

The petitioner, Marcus Nixon, was convicted in Lauderdale County of rape of a child and sentenced to serve twenty-one years in the Department of Correction. His conviction was affirmed on direct appeal. The petitioner filed a petition seeking a DNA analysis. The trial court initially granted an order requiring the petitioner to submit a blood sample to be compared to DNA collected at the scene. After a response from the State, the trial court entered a second order requiring the petitioner to provide a biological specimen for inclusion in the DNA database compiled by the State, but denying the petitioner’s request for DNA analysis because no “exculpatory results” would come from the analysis. The petitioner then sought a writ of mandamus requiring the State to comply with the trial court’s second order, and also filed a motion seeking permission to file an interlocutory appeal to appeal the trial court’s denial of his petition requesting DNA analysis. The petitioner filed a timely notice of appeal. For the following reasons, we affirm the judgment of the trial court.

The petitioner, Welister L. White, pled guilty to one count of felony murder in 1979 in exchange for a sentence of life imprisonment with the possibility of parole. In August of 2005, the petitioner sought habeas corpus relief on the basis that his sentence was illegal given the holding in Blakely v. Washington, 542 U.S. 296 (2004). The trial court dismissed the petition, and this appeal followed. Upon a review of the record in this case, we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the judgment of the trial court is affirmed.

The appellant, Carey Haynes, Jr., was indicted by the Dyer County Grand Jury for one count of selling less than .5 grams of cocaine and one count of selling more than .5 grams of cocaine. After a jury trial, the appellant was convicted on both counts. The trial court sentenced the appellant to six years for the conviction for the sale of less than .5 grams of cocaine and twelve years for the conviction for the sale of more than .5 grams of cocaine. The trial court ordered the sentences to run concurrently to each other, but consecutively to several sentences for which the appellant was on probation at the time he committed the present offenses. After the denial of a motion for new trial, the appellant sought an appeal, arguing that he received ineffective assistance of counsel at trial. For the following reasons, we affirm the judgment of the trial court.

The petitioner, Clifford Leon Farra, appeals from the denial of his petition for post-conviction relief. In this appeal, he asserts that the post-conviction court erred by proceeding with an evidentiary hearing even though the state had failed to file an answer to his original pro se petition. The judgment of the post-conviction court is affirmed.

The petitioner pled guilty in the Shelby County Criminal Court to one count of rape of a child on May 1, 2002. On October 7, 2002, the petitioner filed a petition for post-conviction relief asserting that he was afforded ineffective assistance of counsel at his guilty plea. Following a hearing, the post-conviction court denied the petition on May 19, 2005. The petitioner appeals to this Court.  After a review of the record, we affirm the decision of the post-conviction court.

The Benton County Grand Jury indicted the defendants, Jerry and Roseanne K. Ward, for crimes against revenue officers and tampering with governmental records. The defendants and the District Attorney General agreed to pretrial diversion. When the trial court refused to approve the agreement for pretrial diversion, the defendants filed an application for an appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We have reviewed the record and conclude that the trial court erred in withholding its approval of the pretrial diversion agreement. Therefore, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

The appellant, James Riels, appeals his sentences of death imposed by a Shelby County Criminal Court jury. On September 18, 2003, a Shelby County Grand Jury charged the appellant with one count of first degree felony murder for the death of Mary Jane Cruchon, one count of first degree premeditated murder for the death of Mary Jane Cruchon, one count of first degree felony murder for the death of Franchion Pollack, one count of first degree premeditated murder for the death of Franchion Pollack, one count of especially aggravated robbery of Franchion Pollack, one count of attempted especially aggravated robbery of Mary Jane Cruchon, and one count of aggravated burglary of the habitation of Mary Jane Cruchon. On August 9, 2004, the appellant entered guilty pleas to all seven counts. The trial court merged the felony murder convictions with the premeditated murder convictions, resulting in two convictions for first degree murder. A jury was impaneled for the sentencing phase, and on August 13, 2004, the jury imposed the death penalty for the murder of each victim. In the death of Mary Jane Cruchon, the jury unanimously found the presence of three statutory aggravating circumstances. In the death of Franchion Pollack, the jury unanimously found the presence of four statutory aggravating circumstances. The jury further determined that the aggravating circumstances outweighed any mitigating circumstances. The trial court approved the sentencing verdict. In a separate sentencing hearing, the trial court imposed an effective thirty-five-year sentence for the remaining noncapital convictions. The appellant appeals, presenting for our review the following issues: (1) whether the trial court erred by overruling his motion to suppress, (2) whether the trial court erred by permitting the State to cross-examine him regarding the circumstances of the offenses, (3) whether the trial court erred by permitting the introduction of a post-mortem photograph of one of the victims, (4) whether the trial court’s instruction that the appellant’s prior offenses were offenses whose statutory elements involved the use of violence violated the United States Constitution, (5) whether the trial court’s instruction on victim impact evidence constituted a coercive jury instruction, and (6) whether Tennessee’s death penalty scheme is unconstitutional. Finding no errors requiring reversal, we affirm the appellant’s sentences of death.

I must respectfully dissent from the majority’s conclusion “that the plaintiffs acted in good faith and diligence, and are entitled to a refund of their earnest money.” I agree fully with everything in the majority’s opinion except this final conclusion.

Plaintiffs sued to recover earnest money tendered with a contract to purchase realty. Defendant counter-sued for breach of contract and damages. The Trial Court Ordered the return of the earnest money to plaintiffs. We affirm.