APPELLATE COURT OPINIONS

The defendant, RichardOdom, was convicted of felonymurder and sentenced to death in 1992. This Court affirmed the conviction on direct appeal but remanded the case for a new sentencing proceeding. State v. Odom, 928 S.W.2d 18, 21, 33 (Tenn. 1996). After the new sentencing proceeding, a jury again imposed the death sentence after finding that the evidence of one aggravating circumstance, i.e., the defendant was previously convicted of one or more felonies, the statutory elements of which involved the use of violence to the person, outweighed evidence of mitigating circumstances beyond a reasonable doubt. See Tenn. Code Ann. § 39-13-204(i)(2) (1991). The Court of Criminal Appeals affirmed the sentence. After the appeal was automatically docketed in this Court, see Tenn. Code Ann. § 39-13-206 (1991), we entered an order specifying five issues for oral argument.1 We now hold as follows: (1) the trial court committed reversible error by applying a 1998 amendment to Tennessee Code Annotated section 39-13-204(c) and allowing the introduction of evidence regarding the facts and circumstances of the defendant’s prior felonies to support the aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(2); (2) the trial court did not err in admitting photographs of the victim in this case but did err in admitting photographs of the victim of a prior felony offense committed by the defendant; (3) the trial court did not err in denying the defendant’s motion for continuance to complete psychiatric or neuropsychological testing; (4) the death sentence was not invalid based on the failure of the indictment to charge the aggravating circumstance; and (5) the issue of whether the death penalty was excessive, arbitrary, or disproportionate in this case under the mandatory provisions of Tennessee Code Annotated section 39-13-206(c)(1)(A)-(D) need not be addressed at this time. We agree with the Court of Criminal Appeals’ conclusions with respect to the remaining issues and have included the relevant portions of that  opinion in the appendix to this opinion. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand for re-sentencing.

A Grainger County jury convicted the defendant of premeditated first degree murder, felony murder, especially aggravated robbery, and theft under $500. The trial court merged the felony murder conviction into the premeditated first degree murder conviction and ordered the defendant to serve an effective life sentence. The defendant raises the following issues on appeal: (1) whether the trial court erred in failing to suppress his statement to law enforcement officials; (2) whether the trial court erred in failing to allow the defense to introduce proof that the victim regularly dealt in illegal drugs and firearms; and (3) whether the evidence was sufficient to sustain his murder convictions. We remand for entry of an order merging the theft conviction into the especially aggravated robbery conviction but otherwise affirm the judgments of the trial court.

The petitioner, Donald Terry Moore, appeals the denial of his petition for post-conviction relief. In this appeal, he asserts that (1) he did not receive the effective assistance of counsel and (2) the post-conviction court erred by denying his motion to re-open the petition after the close of proof. The judgment of the post-conviction court is affirmed.

On May 22, 2001, the defendant, Michael Armstrong, entered a plea of nolo contendere to the offense of operating a motor vehicle after having been declared a habitual motor vehicle offender and banned from driving. He was sentenced to one year in the work house and one year of probation. The defendant reserved a certified question for appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). This question concerns the admissibility into evidence of the defendant’s statement to police that he had driven to the police station to report two cars stolen from his employer. This statement was made in response to a police officer’s question as to how the defendant had gotten to the station. This question was asked after the police officer had found out the defendant was an habitual motor vehicle offender whose Tennessee driver’s license was revoked, but before any Miranda warnings were given to the defendant. The defendant’s response to this question formed the basis of his arrest. The trial court denied the defendant’s motion to suppress concluding that the defendant was not in custody at the time he answered the officer’s question. We find that the record clearly indicates the defendant was not in custody at the time he admitted he had driven to the police station and that therefore no Miranda warnings were required. The judgment of the trial court is therefore AFFIRMED.

The petitioner was convicted of first degree murder and aggravated assault on July 29, 1987. On January 22, 2003, the petitioner filed a pro se petition for writ of error coram nobis. On May 14, 2003, the State filed a motion to dismiss the petition without a hearing, and this motion was granted on May 15, 2003. We conclude that the trial court did not err in finding that the petition is time barred, and the petitioner has not advanced any grounds for which the statute of limitations should be tolled.

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief, in which he alleged ineffective assistance of counsel. We conclude that the petitioner has failed to establish that he received ineffective assistance of counsel. We affirm the denial of post-conviction relief

The petitioner, Howard Eugene Buchanan, was convicted by a jury in the Dickson County Circuit Court of aggravated kidnapping, assault, and evading arrest. He received a total effective sentence of eighteen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that the trial court erred in failing to instruct the jury as to the defense of alibi and that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition, and the petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The Appellant, Clay Jones,1 appeals from the judgment of the Madison County Circuit Court revoking his community corrections sentences. In May of 2001, Jones pled guilty to two counts of sale of a counterfeit controlled substance. Pursuant to a negotiated plea agreement, Jones received concurrent two-year sentences with placement in the Community Corrections Program. On October 22, 2002, a warrant was issued alleging violations of his behavioral contract. However, the warrant only listed one indictment number. Following a revocation hearing, he was found in violation of his community corrections sentences under both indictment numbers. On appeal, Jones raises the following issues for our review: (1) whether, prior to waiver of his right to counsel and subsequent inculpatory admissions at the revocation hearing, due process required the trial court to inform him that he could be resentenced to consecutive terms if his sentences were revoked; (2) whether lack of proper notice of revocation deprived him of due process; and (3) whether resentencing him to consecutive terms was proper. After review, we affirm the trial court’s revocation of Jones’ sentence in the case in which notice was received. However, with regard to revocation of his sentence in which no notice was received, we find that the proceedings failed to afford fundamental due process protections and reverse the trial court’s order of revocation.

The petitioner, Leon Terrell Phillips, pled guilty in the Bedford County Circuit Court to attempted first degree murder and received a sentence of thirty years incarceration in the Tennessee Department of Correction, which sentence was to be served at thirty percent. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. The post-conviction court dismissed the petition, and the petitioner appeals. Finding no error, we affirm the judgment of the post-conviction court.

This case arises out of a motor vehicle accident, which resulted in the death of Deceased, a farepaying passenger of a bus. Plaintiffs, Deceased’s heirs, brought a wrongful death action against the driver of the Cadillac in the bus/car collision and Defendants, the driver of the bus and the Memphis Area Transit Authority. At the close of Plaintiffs’ proof, the trial court granted Defendants’ motion for involuntary dismissal pursuant to Rule 41.02(2) of the Tennessee Rules of Civil Procedure. For the reasons stated below, we affirm the decision of the trial court.
 

I concur in the result reached by the majority, but my reasoning differs somewhat.

The defendant, Jeffery Lee Mason, was indicted for attempted first degree murder, felony escape and theft over $1000. He was convicted by a jury of attempted voluntary manslaughter and theft over $1000. He entered a plea of guilty to felony escape. The trial court imposed sentences of four years for attempted voluntary manslaughter, four years for theft over $1000, and two years for felony escape, to be served consecutively for an effective sentence of ten years. In this appeal of right, he asserts (1) that the evidence is insufficient to support the convictions for attempted voluntary manslaughter and theft over $1000; (2) that the trial court erred by instructing the jury on attempted voluntary manslaughter as a lesser included offense of attempted first degree murder; and (3) that the sentence is excessive. The judgments of the trial court are affirmed.

I am unable to join with the majority in concluding that the evidence is sufficient to support the defendant’s conviction for attempted voluntary manslaughter and that an instruction on this offense was warranted under the facts of this case. I find nothing in the record which establishes that, at the time of the attempted homicide, the defendant was “in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a) (2003). Accordingly, I respectfully dissent on the majority’s application of both the law and facts

The Tipton County Grand Jury indicted the defendant for one count of aggravated assault. After a jury trial, the defendant was found guilty of aggravated assault. He was sentenced to three years as a Range I Standard Offender. The trial court ordered the defendant to serve 180 days in incarceration and the balance of the sentence in community corrections. 1 The defendant argues two issues in his appeal: (1) there was insufficient evidence to convict him of aggravated assault because he was acting in self-defense; and (2) the trial court erred in denying the defendant full probation. We affirm the actions of the trial court.

Plaintiff First National of North America, LLC (FNNA) brought a claim for unjust enrichment against Michael Marks. Marks had refinanced his home mortgage through Morgan International, which was owned by Jerry Levine. The purpose of the refinancing was to pay off an existing mortgage owing to a third party and to obtain net proceeds of approximately $44,000 for Marks’ other needs. Unknown to Marks, the funds for Marks’ loan were provided to Levine by FNNA pursuant to a Commercial Loan and Servicing Agreement between FNNA and Levine. The refinancing transaction closed and Marks received net proceeds of $44,394 at the closing; however, National Bank. For almost a year Marks was unaware that the pre-existing mortgage was not paid making the payments, First American initiated foreclosure proceedings against Marks. Marks paid the arrearage and maintained the mortgage with First American. Marks sued Levine and Morgan International. FNNA intervened as a party plaintiff against Levine and Marks. FNNA obtained a judgment based on contract against Levine but Levine was discharged in bankruptcy without any recovery to FNNA. Thereafter, FNNA obtained a judgment against Marks for $38,000, on the theory of unjust enrichment, plus pre-judgment interest. Marks appealed claiming he had a contractual relationship with FNNA that precluded a recovery under unjust enrichment. We affirm.

The defendant, Carey Stanford Richmond, appeals from the Sullivan County Criminal Court's imposition of incarcerative sentencing for numerous conviction offenses and for an additional probation violation. She claims that she was entitled to alternative sentences, and because we disagree, we affirm.

WILLIAM C. KOCH, JR., P.J., M.S., dissenting. Both First National of North America, LLC and Michael Marks were victimized by Jerry Levine’s shady mortgage brokering. When the dust settled, Mr. Levine did not effectively assign Mr. Marks’s note and deed of trust to First National, thereby leaving First National with no security. At the same time, Mr. Levine did not pay off Mr. Marks’s existing mortgage, leaving him even deeper in debt than he was before. The majority has decided that Mr. Marks should bear the brunt of Mr. Levine’s defalcations by requiring him to partially indemnify First National. I disagree.

The defendant, Terry R. McCulloch, pled guilty to DUI, third offense, and driving on a revoked license, reserving as a certified question of law whether the trial court erred in denying his motion to suppress evidence obtained as a result of a driver's license roadblock stop. On appeal, he argues that the roadblock stop was unconstitutional. Following our review, we reverse the judgment of the trial court and dismiss the charges against the defendant.

Plaintiff, a minor student, brought suit for damages arising from an eye injury he sustained during recess at school. The Defendants, which are both governmental entities, moved for summary judgment, arguing that they are immune from suit and that Plaintiff cannot, as a matter of law, establish the elements of his negligence claim. After conducting a hearing, the trial court granted the Defendants summary judgment on both grounds. For the following reasons, we affirm the ruling of the lower court.
 

A Davidson County jury convicted the Petitioner, Frank Chester Bright, Jr., of possession with intent to deliver over twenty-six grams of a substance containing cocaine, a Class B felony, and facilitation of possession of a deadly weapon, a Class A misdemeanor. The trial court sentenced the Petitioner as a career offender to thirty years in prison on the possession count and eleven months and twenty-nine days in prison on the facilitation count, with the sentences to run concurrently. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner then filed a petition seeking post-conviction relief in the trial court, which the court dismissed. On appeal, the Petitioner asserts that the post-conviction court erred when it dismissed his petition finding that there was no merit to his claims that: (1) he was denied effective assistance of counsel at his sentencing hearing; (2) the prosecutor committed prosecutorial misconduct at the sentencing hearing; and (3) the trial court's instructions to the jury violated his due process rights. Finding no error, we affirm the post-conviction court's dismissal of the petition.

Natural father of minor twin children appeals trial court's final order of custody and visitation on multiple grounds, alleging primarily that (1) the trial court erred in awarding visitation to stepfather; (2) the trial court erred in refusing to change children's surname to that of their natural father; and (3) the trial court improperly based its opinion on a sealed psychological report. We affirm in part,  reverse in part, and remand.

In 1998, the defendant, through former counsel, entered into a letter agreement with the Blount County District Attorney General which provided that he would be granted immunity for the murder of Andre Jackson if he provided information and cooperated in the prosecution of the murder of Gary Huskey and passed a polygraph examination administered by the Federal Bureau of Investigation ("FBI") as to the Huskey murder. The defendant subsequently was indicted for first degree murder and conspiracy to commit first degree murder. He then filed a motion to dismiss the indictment, claiming, inter alia, that the polygraph was unfair, that he had not failed the test, and that the State breached its agreement to provide another polygraph. Following hearings, the trial court dismissed the motion, and the defendant filed an interlocutory appeal. After review, we affirm the judgment of the trial court dismissing the motion, but remand for entry of corrected minutes reflecting that the trial court denied the defendant's motion to dismiss.