| Connie Lee Arnold v. State of Tennessee - Dissenting
E2001-02526-CCA-R3-PC
I respectfully dissent. I believe the pro se petition sufficiently complies with the 1995 Post-Conviction Procedure Act and states a colorable claim for relief.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Robert E. Cupp |
Carter County | Court of Criminal Appeals | 11/13/02 | |
| State of Tennessee v. Kenneth R. Laws
E2001-00375-CCA-R3-CD
The Defendant was charged with aggravated child abuse, a Class A felony. Pursuant to a plea agreement, the Defendant entered a "best interest" plea to abuse of a child under six years of age, a Class D felony, and the trial court sentenced the Defendant to a three-year term with the manner of service of the sentence to be determined following a sentencing hearing. Following a hearing, the trial court ordered the Defendant to serve the three-year sentence in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court abused its discretion in denying judicial diversion and erred in denying alternative sentencing. We conclude that the record supports the trial court's denial of judicial diversion and alternative sentencing. Therefore, we affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Robert E. Cupp |
Washington County | Court of Criminal Appeals | 11/13/02 | |
| Kanta Keith, et al vs. Gene Ervin Howerton, et al
E2002-00704-COA-R3-CV
This case is on appeal for the second time. In the first appeal, we held that the defendants violated the Tennessee Consumer Protection Act ("the Act") in certain pawn transactions with the plaintiffs. We remanded the case to the trial court for a determination of whether the plaintiffs were entitled to treble damages and attorney's fees under the Act. Following a bench trial on these issues, the court below determined that the plaintiffs were not entitled to treble damages, but that they were entitled to a slight augmentation of their compensatory awards. In addition, the trial court awarded attorney's fees and costs, in amounts which are substantially less than those claimed by counsel. The plaintiffs appeal, arguing that the trial court erred in refusing to award treble damages and in its award of fees and costs. By way of a separate issue, the defendants argue that the trial court erred in granting a declaratory judgment to the plaintiff, Kanta Keith ("Mr. Keith"), following the death of his wife, the plaintiff, Darlene Keith ("Mrs. Keith"). We affirm in part, vacate in part and remand.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Dale C. Workman |
Knox County | Court of Appeals | 11/13/02 | |
| Jimmy Ray Dougherty, Jr. vs. Kaye Michelle Hodges Olson
E2002-00087-COA-R3-CV
Custody of minor child was ordered changed from mother to father by the trial court. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:C. Van Deacon |
Bradley County | Court of Appeals | 11/12/02 | |
| William Davis vs. Karen Davis
E2002-01404-COA-R3-CV
In divorce action the Trial Court ordered husband to pay alimony and ordered division of marital property. The Judgment is affirmed as modified.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:William M. Dender |
Knox County | Court of Appeals | 11/12/02 | |
| Sandra Elmore vs. Greg Cruz
E2001-03136-COA-R3-CV
In this case the Appellant/Defendant, City of Chattanooga, appeals the judgment of the Circuit Court for Hamilton County awarding the Appellee/Plaintiff, Sandra Yvonne Elmore, compensatory damages for injuries sustained as a result of her arrest and imprisonment by the Chattanooga Police Department. We vacate the judgment of the Trial Court and remand.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Jackie Schulten |
Hamilton County | Court of Appeals | 11/12/02 | |
| Department of Children's Services vs. F.E.B.
E2001-00942-COA-R3-JV
This appeal from the Knox County Juvenile Court questions whether the Juvenile Court erred in terminating the parental rights of the Appellant, F.E B., with respect to his child, R.B., upon petition of the Appellee, State of Tennessee Department of Children's Services. We affirm the judgment of the Juvenile Court and remand for collection of costs.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Carey E. Garrett |
Knox County | Court of Appeals | 11/12/02 | |
| TZE-Pong "Raymond" Ku vs. State
E2002-01076-COA-R3-CV
Tze-Pong "Raymond" Ku ("Plaintiff") is a student at the East Tennessee State University College of Medicine ("College"). After completing his first two years of study, Plaintiff was required to take the USMLE Step 1 examination. He took this examination and failed. Thereafter, the College removed Plaintiff from his third year clerkships and eventually created a list of requirements he had to meet in order to be allowed to resume his classes. After successfully suing the College in federal court based on a procedural due process violation, Plaintiff brought the present lawsuit for damages against the State of Tennessee claiming breach of written contract, to wit: his letter of acceptance to the College and the College's student handbook. The Claims Commission concluded these documents did not constitute a written contract and dismissed the lawsuit for lack of subject matter jurisdiction. Plaintiff appeals, and we affirm.
Authoring Judge: Judge David Michael Swiney
|
Court of Appeals | 11/12/02 | ||
| Howard R. Sullins, Jr. v. Winn's Precision, Inc., et al.
M2001-02625-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This is a carpal tunnel syndrome complaint involving the plaintiff's right arm. He had previously suffered a ruptured biceps tendon involving his right arm, and returned to work after successful surgery. At the time of trial he was still employed and had not been treated for carpal tunnel syndrome for eighteen months. The trial judge found that the plaintiff had a vocational disability of 5 percent to his right arm. We affirm.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:C. K. Smith, Chancellor |
Wilson County | Workers Compensation Panel | 11/12/02 | |
| Jack & Ruth Parnell vs. Delta Airlines
E2002-00589-COA-R3-CV
The Trial Court granted defendants summary judgment by finding defendants' conduct did not constitute outrageous conduct. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:W. Neil Thomas, III |
Hamilton County | Court of Appeals | 11/12/02 | |
| Jimmy Rhodes v. City of Monteagle
M2001-01584-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the suit barred by the statute of limitations and granted summary judgment in favor of the City of Monteagle. We affirm.
Authoring Judge: Gray, Sp.J.
Originating Judge:Hon. Buddy D. Perry, Judge |
Grundy County | Workers Compensation Panel | 11/12/02 | |
| Cathy Mccarson v. Aqua Glass Corporation
M2001-03085-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff attributed a host of complaints to the rigors of her employment as gradually occurring or occupationally based. The medical proof was varied and indecisive leading the trial judge to conclude that she failed to carry the burden of proof. We affirm.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Leonard W. Martin, Judge |
Humphreys County | Workers Compensation Panel | 11/12/02 | |
| Royal & Sunalliance v. John H. Seay
M2001-02877-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the employee sustained an 8 percent vocational disability to his left leg. The employer concedes that Mr. Seay has a malfunctioning leg, but that the award is excessive. We affirm the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J., and , Joe C. Loser, Sp. J., joined. Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal & Sunalliance. William J. Butler, Lafayette, Tennessee, for the appellee, John H. Seay. MEMORANDUM OPINION I. Mr. Seay is fifty-six years old and a veteran employee of Nissan. He sustained an undisputed, job-related injury to his left knee which was exacerbated by continuous activity, and diagnosed as a complex tear of the lateral meniscus which was surgically repaired to the extent possible by Dr. E. Ray Lowery, an orthopedic surgeon. In the course of time Mr. Seay returned to work after being released to do so by Dr. Lowery. He testified that his knee was painful, with burning and swelling, which hindered his job duties. After thirty days following his return to work he requested early retirement because he could no longer perform his duties satisfactorily. At the time of trial, Mr. Seay continued to use a cane and was unable to walk one mile. He testified that it was necessary to rest his knee two hours each day. II. Dr. Lowery opined that Mr. Seay had a 1 percent impairment to his leg, attributable 3 percent to the meniscus tear and 7 percent to arthritis. He declined to express an opinion as to whether Mr. Seay's degenerative arthritis was attributable to his job duties. Mr. Seay was referred to Dr. Robert Landsberg, an orthopedic surgeon, for an independent examination. Dr. Landsberg's examination was apparently thorough and in compliance with the AMA Guides. He testified that Mr. Seay walked with a limp, used a cane, that his left thigh was atrophying, (a common problem with knee injuries), that he had a reduced range of motion, with tenderness and swelling. He diagnosed a post-lateral meniscectomy with post- traumatic arthritis, all attributable to Mr. Seay's work at Nissan, and assessed his lower extremity impairment at 17 percent to 18 percent, with permanent restrictions such as no standing more than twenty minutes at a time, no working for more than twenty minutes, and recommended a sedentary job only. III. The trial judge assessed Mr. Seay's impairment to be 8 percent to his left leg. The employer appeals, insisting that the evidence does not support a finding of 8 percent permanent disability to the left lower extremity most of which must be attributed to pre-existing arthritis. Our review is de novo on the record accompanied by the presumption that the judgment is correct unless contrary to the preponderance of the evidence. Rule 13(d) Tenn. R. App. P. It is well settled that deference must be accorded to the trial judge as to the issue of the credibility of Mr. Seay, his wife, and vocational experts who testified concerning employment opportunities.1 See, Elmore v. Travelers Ins. Co., 824 S.W.2d 541 (Tenn. 1992). It is not disputed, as we have noted, that Mr. Seay sustained a compensable injury which resulted in permanent impairment; the sole issue is, how much? An award need not be supported by the absolute certainty of an expert, because expert opinion is generally uncertain and speculative. Kellerman v. Food Lion, Inc., 929 S.W.2d 333 (Tenn. 1996). The aggravation of a pre-existing condition, like arthritis, is compensable if it "advances the severity of the pre-existing condition." Cunningham v. Goodyear Tire & Rubber Co., 811 S.W.2d 888 (Tenn. 1991). Courts are required by the law in this jurisdiction to consider all pertinent factors, including lay and expert testimony, the employees age, education,2 skills and 1 One of these vocational experts, testifying for Mr. Seay, opined that he was totally and perm anen tly vocationally disabled. 2 Mr. Seay graduated high school, but he is barely literate notwithstanding. -2-
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Robert E. Corlew, III, Chancellor |
Rutherford County | Workers Compensation Panel | 11/12/02 | |
| Tennessee Sports Complex vs. Lenoir City Beer Board
E2001-02481-COA-R3-CV
The Trial Court revoked appellant's permit to sell beer in Lenoir City. On appeal, we affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Frank V. Williams, III |
Loudon County | Court of Appeals | 11/12/02 | |
| Lenda T. Mcclain v. Holiday Retirement Corporation
M2001-02850-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff appeals the judgment dismissing her suit for benefits she attributes to an injury sustained during the course and scope of her employment. Following the presentation of her evidence, the court granted the defendant's Rule 41.2 Motion for Involuntary Dismissal upon a finding that she failed to carry her burden of proving an accidental injury arising out of employment sufficient to establish a prima facie case of entitlement to benefits. The dispositive issue on appeal is whether the involuntary dismissal was appropriately granted. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, SP. J., joined. William L. Underhill and Michael L. Underhill, Madison, Tennessee, for the appellant, Lenda T. McClain. Richard C. Mangelsdorf, Jr., and Mark W. Honeycutt, II, Nashville, Tennessee, for the appellee, Holiday Retirement Corporation. MEMORANDUM OPINION I. The plaintiff was employed as co-manager, with her husband, of a retirement facility. In addition to a salary, she and her husband were provided an apartment in the facility together with meals and utilities. The circumstances of the termination of her employment are not entirely clear, but we deduce that she was fired after requesting a transfer to another facility. She returned to her apartment to pack her belongings preparatory to vacating the premises and injured her back while packing personal books. The trial judge found that the plaintiff did not sustain an on-job injury because it occurred while she was moving her personal belongings, a task not contemplated as part of the job duties of a co-manager for the retirement facility. II. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of factual findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:John H. Gasaway III, Judge |
Montgomery County | Workers Compensation Panel | 11/12/02 | |
| Cathy Judkins v. Findlay Industries/Gardner
M2001-02560-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This complaint was non-specific as to the occurrence of a job-related accident and any compensable injuries. The essential thrust of the appeal by the employer is directed to the issue of whether the purported failure of the employee to reveal pre-existing medical conditions to an independent medical examiner nullifies his testimony. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, SP. J., joined. Bruce Timothy Pirtle and Mary M. Little, McMinnville, Tennessee, for the appellant, Findlay Industries/Gardner Manufacturing Division. Barry H. Medley, McMinnville, Tennessee for the appellee, Cathy Judkins. MEMORANDUM OPINION The plaintiff is a single forty-year-old female with a seventh-grade education. She has no work skills, and is qualified only for menial jobs. She filed a complaint on February 24, 2, for workers' compensation benefits alleging that within the course and scope of her employment she "received new injuries, cumulative, consecutive, exacerbations and/or aggravation of injuries, and/or conditions in December 1999." The defendant sought no factual specificity, but alleged any basis for the claim was a non- compensable, pre-existing condition unrelated to plaintiff's employment. The plaintiff testified that she had been employed by the defendant for four years when she was injured on December 16, 1999. The details of the nature of her work are skimpy; she testified that: [Y]ou go back and get racks, you bring them up there . . . I was squatted down looking through the parts, hunting what I needed when this guy was putting up a die. And he came back with a tow motor, backed up, and hit the racks, which knocked me over. The plaintiff finished her shift, although her back was hurting; she reported the occurrence and was given the names of three physicians, one of whom was Dr. Rogers whom she saw "two or three weeks later." She saw Dr. Rogers three times, then saw Dr. Zwemer twice, and finally, Dr. Robinson Dyer. She testified that she had back problems previously, but "that they all got better." She denied having any back problems "immediately before this injury happened." Dr. Zwemer testified, as nearly as can be ascertained, that the plaintiff made no mention of prior back problems; that x-ray examination of her revealed "degenerative disc disease in her lumbar spine," confirmed by an MRI examination, and that "I didn't give her any rating." Counsel referred her to Dr. Dyer, who reported that, based upon his examination of the plaintiff and a review of available medical records, she had a permanent partial impairment related to her injury of 5 percent to her whole body. The trial judge `accepted' the testimony of Dr. Dyer and found that the plaintiff had a 17 percent vocational disability. The defendant appeals, insisting that the evidence preponderates against this finding, which is presented for review. Our review is de novo on the record with a presumption that the judgment is correct unless the evidence preponderates against it. Rule 13(d) Tenn. R. App. P. The essential thrust of the defendant's argument is that the opinion of Dr. Dyer is of no value because it was premised on the false assumption that the plaintiff had suffered no prior back problems. Dr. Dyer submitted a Form C-C2, which does not indicate that his opinion was based upon the absence of prior back problems, and the plaintiff testified that she did not recall whether she related her prior problems to Dr. Dyer or not. The credibility of the plaintiff was assailed, but we must accord deference to the trial judge, who credited her testimony not only as to how the accident, if any, occurred, but also as to the sustaining of the injury, if any, and the extent of it. Kellerman v. Food Lion Inc., 929 S.W.2d 333 (Tenn. 1996). The trial judge also `accepted' the testimony of Dr. Dyer who testified that the -2-
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Charles D. Haston, Chancellor |
Warren County | Workers Compensation Panel | 11/12/02 | |
| Hellen Wilson vs. CSX Transportation
E2002-00291-COA-R9-CV
This interlocutory appeal raises the question of the admissibility of the testimony of three expert witnesses which the Plaintiff, Hellen M. Wilson, sought to present at trial. The Trial Court excluded the expert testimony of Dr. William J. Nassetta and certified pursuant to T.R.A.P. Rule 9 the following question for this Court: "whether the testimony of the expert witness, William J. Nassetta, M.D., as reflected in [his] attached affidavit,. . .is admissible under the doctrine of the Tennessee Supreme Court decision in McDaniel v. CSX Transportation, Inc." The Trial Court also granted permission to CSX Transportation (CSXT) to appeal its ruling admitting the testimony of two other expert witnesses offered by the Plaintiff. We hold that the testimony of all three expert witnesses is admissible under the principles enunciated in McDaniel.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:W. Neil Thomas, III |
Hamilton County | Court of Appeals | 11/12/02 | |
| George Thomas Argo v. Brentwood Services
M2001-02821-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the trial court erred in failing to dismiss the claim based on the "last injurious injury doctrine," (2) the award of permanent partial disability benefits based on 37.5 percent to the body as a whole is excessive, and (3) the trial court erred in commuting the award to a lump sum. The employee insists he is entitled to receive benefits from one insurer or the other. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Stacey Billingsley Cason, Nashville, Tennessee, for the appellant, Local Government Workers' Compensation Fund Barry H. Medley, McMinnville, Tennessee, for the appellee, George Thomas Argo MEMORANDUM OPINION The employee or claimant, Argo, initiated this civil action to recover workers' compensation benefits for an alleged work related injury occurring on June 2, 1999, while he was working for the employer, Warren County Sanitation Department.1 2 The cause was dismissed as to Warren County's workers' compensation administrator, Brentwood Services Administrators, Inc. Local Government Workers' Compensation Fund, Warren County's insurer in June 1999, was added as a third party defendant. Local Government Workers' Compensation Fund contended the accident occurred after its coverage lapsed on July 1, 1999. On that issue, summary judgment was issued in favor of Warren County, there being undisputed proof that the accident happened in June, before coverage lapsed. The propriety of that order is not directly questioned in this appeal. After a trial of the remaining issues on October 22, 21, the trial court, finding the injury to have occurred on June 2, 1999, as alleged, awarded, among other things, permanent partial disability benefits based on 37.5 percent to the body as a whole. Local Government Workers' Compensation Fund has appealed. For injuries occurring on or after July 1, 1985, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Charles D. Haston, Judge |
Warren County | Workers Compensation Panel | 11/12/02 | |
| Norma Pendolal v. Shirley Butler
M2002-00131-COA-R3-CV
This is an undue influence and fraud case. The father executed a will leaving his personal and real property to one daughter, with the remainder of his estate to be divided among all five of his children. The daughter moved from Chicago to Tennessee to care for the father. The father added the daughter's name to his checking account and bought a mobile home in which he and the daughter lived. The daughter utilized money from the joint checking account for her personal benefit. Later, the father executed a power of attorney in the daughter's favor. The daughter then transferred one of the father's certificates of deposit to herself. When the father died, no funds remained to be divided among the five siblings. The father's other four children filed suit against the daughter, alleging undue influence. The trial court referred the case to a special master, who found there was no confidential relationship prior to execution of the power of attorney. The special master found, however, that a confidential relationship existed after the execution of the power of attorney. The trial court found that the daughter rebutted the presumption of undue influence and invalidity of the transaction that took place after execution of the power of attorney. The trial court then concurred in the special master's findings. The plaintiffs appeal. We affirm as to the transactions prior to execution of the power of attorney. We reverse as to the transaction after execution of the power of attorney, concluding that the presumption of the invalidity of that transaction was not rebutted by clear and convincing evidence of the fairness of the transaction.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Russell Heldman |
Perry County | Court of Appeals | 11/11/02 | |
| In re: Estate of Ralph I. Cammack, Deceased
M1999-02382-COA-R3-CV
This is a dispute between the deceased testator's second wife and the two children of his first marriage. The testator and his wife executed mutual and reciprocal wills which passed the bulk of their estate to the survivor. The spouses agreed, and their wills reflected, that when the survivor died, the estate was to go equally to the testator's children. In conjunction with the wills, the spouses executed an agreement that they would not change their wills even after the death of the other. After the testator's death, the wife began dissipating the estate, selling the family home, and giving her own child the testator's expensive grandfather clock. In an effort to preserve the estate, the testator's children commenced the underlying action, seeking to establish a resulting trust. After the trial court granted the wife's motion for summary judgment, the testator's children lodged this appeal. Because testator's will gave the wife his estate in fee simple, she inherited the real property as tenant by entirety, and there is no clear and convincing evidence that the testator intended her merely to hold the property in trust for his children, we must affirm.
Authoring Judge: Judge Patricia J. Cottrell
Originating Judge:Chancellor John W. Rollins |
Coffee County | Court of Appeals | 11/09/02 | |
| State of Tennessee v. Johnny Owens and Sarah Owens
W2001-01397-CCA-R3-CD
The defendants, Johnny Owens and Sarah Owens, who are husband and wife, were convicted of aggravated child abuse by a Haywood County Circuit Court jury. Johnny Owens was convicted on one count only, and Sarah Owens was convicted on five counts. Because Johnny Owens' motion for a new trial raised only issues of the sufficiency of the evidence, we review only that issue in his appeal. Sarah Owens raises evidentiary issues and claims that the trial court erred in failing to instruct the jury on the "missing witness" rule, in conditioning the defendants' release from custody during trial upon Ms. Owens' withdrawal of her motion to sequester the jury, and in imposing an excessive sentence. We affirm all convictions and sentences; however, we order Sarah Owens' sentences to be served concurrently.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Judge L. Terry Lafferty |
Haywood County | Court of Criminal Appeals | 11/08/02 | |
| State of Tennessee v. Eric Bernard Chism
W2001-01287-CCA-R3-CD
A Madison County jury convicted the defendant, Eric Bernard Chism, of first-degree murder, especially aggravated kidnapping, aggravated rape, and aggravated sexual battery in connection with the abduction and homicide of Beatrice Sue Westbrooks. The defendant received an effective sentence of life plus 25 years. On appeal, the defendant argues: (1) his right to a speedy trial was violated; (2) the trial court erroneously severed his case from that of his co-defendant; (3) the evidence is insufficient to support his convictions; (4) the trial court erroneously admitted unfairly prejudicial and inflammatory photographs; (5) the trial court improperly ruled that his prior narcotics conviction could be used for impeachment should he elect to testify; (6) a new trial should have been granted based on newly discovered evidence, but, at any rate, the hearing on the motion for new trial should have been continued until the results of additional forensic testing were available; and (7) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm the judgments and sentencing of the trial court.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Judge Robert A. Page |
Madison County | Court of Criminal Appeals | 11/08/02 | |
| State of Tennessee v. Antonius Harris
W2001-02617-CCA-R3-CD
A Gibson County jury convicted the defendant of two counts of especially aggravated kidnapping, one count of attempted second degree murder, two counts of aggravated assault, and one count of felony reckless endangerment. The trial court ordered him to serve an effective sentence of thirty-one years. On appeal, the defendant argues: (1) the trial court should have dismissed the superseding indictment; (2) there was insufficient evidence to support all of his convictions except for one aggravated assault conviction; (3) the trial court should have instructed the jury on self-defense; (4) the trial court should have instructed the jury on facilitation on all charged offenses and attempted voluntary manslaughter as a lesser-included offense of attempted first degree murder; and (5) his sentences were excessive. We set aside one sentence for aggravated assault because it was merged into the conviction for attempted second degree murder, but otherwise affirm the judgments of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge L. Terry Lafferty |
Gibson County | Court of Criminal Appeals | 11/07/02 | |
| State of Tennessee v. James Spurling
E2001-00601-CCA-R3-CD
The defendant, James Spurling, was convicted by a jury of the offenses of attempted first degree murder and assault with a deadly weapon. The trial court merged the assault conviction into the attempted murder conviction and sentenced the defendant to twenty-three-years incarceration in the state penitentiary. In this appeal the defendant raises three issues: (1) whether there is sufficient evidence that the defendant premeditated the attempted murder; (2) whether the trial court erred in admitting into evidence certain photographs of the victim; and (3) whether the trial court erred in sentencing the defendant. After a careful review of the evidence and the applicable law, we find no reversible error and affirm the judgment of the trial court.
Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge Carroll L. Ross |
McMinn County | Court of Criminal Appeals | 11/07/02 | |
| State of Tennessee v. Antonius Harris - Concurring
W2001-02617-CCA-R3-CD
I concur with the majority opinion, save one aspect. I disagree with its implication that Rule 8(a), Tenn. R. Crim. P., has no bearing on superseding indictments. Rule 8(a) mandates that offenses arising from the same conduct or criminal episode be joined in the same indictment, if the offenses are known to the prosecutor at the time of indictment. The Committee Comment states: The Commission wishes to make clear that section (a) is meant to stop the practice by some prosecuting attorneys of “saving back” one or more charges arising from the same conduct or from the same criminal episode. Such other charges are barred from future prosecution if known to the appropriate prosecuting official at the time that the other prosecution is commenced, but deliberately not presented to a grand jury.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge L. Terry Lafferty |
Gibson County | Court of Criminal Appeals | 11/07/02 |
