| Shirley Daniel vs. James Daniel
W2002-01103-COA-R3-CV
This is an alimony case. At the time of the divorce, the parties had been married for almost thirty-one years. The husband was fifty-one years old, and the wife was forty-five years old. The husband owned his own backhoe/trackhoe company. The wife was a homemaker and raised the parties' three children. She has a sixth-grade education and earned her GED in 1997. Since the parties' separation, the wife had held five jobs but had not been able to maintain her employment. The parties agreed on the division of personal and real property, but disagreed over the value of the husband's business property. The trial court found that the husband made it difficult to ascertain the parties' financial situation. The trial court also found that the wife was economically disadvantaged and could not be rehabilitated. The wife was awarded alimony in futuro and attorney's fees. On appeal, the husband argues that the trial court erred in awarding the wife alimony in futuro and attorney's fees. We affirm, finding that the trial court did not err in concluding that the wife cannot be rehabilitated and in awarding alimony in futuro and attorney's fees.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:William Michael Maloan |
Obion County | Court of Appeals | 11/26/02 | |
| Mary F. Hall. v. Mary Rose Pippin.
M2000-01151-COA-R3-CV
The Defendants, Mary Rose Pippin and Dale Delaney appeal the Trial Court's dismissal of a Rule 60 motion, which attacked a previous determination by the Trial Court relative to their right to maintain a fence across a roadway over which the Plaintiffs, Mary F. Hall and Don K. Hall claim a private right-of-way. We affirm.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Vernon Neal |
Putnam County | Court of Appeals | 11/26/02 | |
| Stan Ley M Oo Re v. Pay Less Ca Shway S, In C., E
W2002-00705-SC-WCM-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee appeals the trial court dismissal of his claims by granting summary judgment in favor of employer, holding the action was barred by the statute of limitations. We reverse and remand. Tenn. Code Ann. _ 5-6-225(e) Appeal as of Right; Judgment of the Trial Court Reversed and Remanded. JOE H. WALKER III , SP. J., in which JANICE M. HOLDER, J, and JOE C. LOSER, SP. J. joined. Steve Taylor, Memphis, TN, for the Appellant, Stanley Moore. Lori D. Parrish, Memphis, TN, for the Appellees, Payless Cashways, Inc., et al. MEMORANDUM OPINION Stanley Moore worked for Payless Cashways. During the course of his employment, on June 23, 1999, lumber accidentally fell on Mr. Moore. He was transported to the emergency room and treated by Dr. Bobo. He was paid temporary total benefits until released to return to work in September, 1999. He was followed by Dr. Bobo and Dr. Chen for reflex sympathetic dystrophy until released February 1, 2. The last payment for medical treatment was made March 29, 2, for treatment received February 1, 2. Dr. Bobo was of the opinion that he had no permanent partial impairment. Mr. Moore had obtained counsel at some point, who notified Mr. Moore in April 2, that medical records indicated Mr. Moore had no permanent partial impairment, and the attorney was closing his file, that Mr. Moore could consult with another attorney. Mr. Moore continued to have problems with his left upper and lower extremities. He obtained new counsel and a complaint was filed April 3, 21. Dr. Rizk evaluated the claimant and opined by letter dated June 11, 21, that Mr. Moore has reflex sympathetic dystrophy which Dr. Rizk considers to be a permanent condition, and caused by his work-related accident. Summary judgment was granted for the employer on the ground that the suit is barred by the statute of limitations found at T.C.A. _ 5-6-23, and 224. I. Rule 56.4 provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and (2) the moving party is entitled to judgment as a matter of law on the undisputed facts. See Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88 (Tenn. 2); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). "Courts must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party's favor." Staples, 15 S.W.3d at 89. "Courts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion." Id. The trial court denied the motion for summary judgment by order entered July 3, 21, stating: "It is the opinion of this Court that Defendants' Motion is not well- founded and should be and is hereby denied." Defendants filed for permission to appeal or for reconsideration. On March 5, 22, the trial court entered an order granting relief from the prior order, granting summary judgment in favor of the defendants and dismissing the complaint. The trial court made no findings of fact, thus the appeal comes with no presumption of correctness. The panel finds that summary judgment was not appropriate in this case. II. A complaint for workers' compensation benefits must be filed within one year after the accident resulting in injury, T.C.A. _ 5-6-23; or within one year after the occurrence of injury, T.C.A. _ 5-6-224. It is well-settled that "the running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that an injury compensable under the workmen's compensation laws has been sustained." Livingston v. Shelby Williams Indus., Inc., 811 S.W.2d 511 (Tenn. 1991). It is the date on which the disability manifests itself to a person of reasonable diligence, not the date of the accident which triggers the running of the statute of limitations. Jones v. Home Indem. Ins. Co., 679 S.W.2d 445, 446 (Tenn. 1984). Ordinarily, the limitation period should not begin to run until a physician presents claimant with a diagnosis of his condition. Poore v. Magnavox Co., 666 S.W.2d 48 (Tenn. 1984).
Authoring Judge: Joe H. Walker III , Sp. J.
Originating Judge:Rita L. Stotts, Judge |
Moore County | Workers Compensation Panel | 11/26/02 | |
| John Houghton v. Aramark Educational Resources
M2002-00289-SC-R23-CQ
Pursuant to Tennessee Supreme Court Rule 23, we accepted certification of a question of law from the United States District Court for the Middle District of Tennessee concerning regulations issued by the Tennessee Department of Human Services. The certified question from the district court asks us to determine whether the rationale of statutorily imposed vicarious liability under Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799 (Tenn. 2000), applies to rules governing licensing and operation of day care centers in Tennessee. For the reasons given herein, we answer that our holding in Gleaves is distinguishable from the present case, and the Tennessee regulations governing day care centers do not, absent fault on the part of the licensee, provide for vicarious liability for the injurious acts of an employee occurring outside the scope of employment.
Authoring Judge: Justice William M. Barker
Originating Judge:Senior Judge Thomas Wiseman |
Supreme Court | 11/22/02 | ||
| State of Tennessee v. Olivia Williams
E2002-00687-CCA-R3-CD
The defendant pled guilty to one count of Class D felony theft over $10,000, received an agreed three-year sentence, and agreed to allow the trial court to determine the manner in which her sentence would be served. The trial court ordered the sentence to be served in incarceration. In this appeal, the defendant argues the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Ben W. Hooper, II |
Cocke County | Court of Criminal Appeals | 11/22/02 | |
| State of Tennessee v. Carla Moten
W2001-01922-CCA-R3-CD
Defendant, Carla Moten, was indicted by the Shelby County Grand Jury for aggravated burglary and intentional aggravated assault. Defendant was convicted by a jury of the lesser-included offense of reckless aggravated assault. The jury also found Defendant guilty of aggravated criminal trespass as a lesser-included offense of aggravated burglary. Defendant was sentenced to two years for her reckless aggravated assault conviction and six months for her aggravated criminal trespass conviction, to be served concurrently. In her appeal as of right, Defendant argues that the evidence at trial was insufficient to support her conviction for reckless aggravated assault. We disagree, and affirm the judgment of the trial court regarding the conviction for reckless aggravated assault. However, we find plain error in the conviction for aggravated criminal trespass as a lesser-included offense of aggravated burglary and therefore reverse and dismiss the conviction for aggravated criminal trespass.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Arthur T. Bennett |
Shelby County | Court of Criminal Appeals | 11/22/02 | |
| State of Tennessee v. Keith Goodman
E2001-00036-SC-R11-CD
The threshold issue presented in this appeal is whether the Court of Criminal Appeals erred in holding that the defendant’s motion to dismiss was not capable of pretrial determination under Tennessee Rule of Criminal Procedure 12(b) because it requires a determination of the general issue of the defendant’s guilt or innocence. In our view, the defendant’s motion presents a legal question – the proper interpretation of a statute – and does not require a determination of the defendant’s guilt or innocence. Having decided the threshold issue, we also are of the opinion
Authoring Judge: Justice Frank F. Drowota, III
Originating Judge:Judge James B. Scott, Jr. |
Anderson County | Supreme Court | 11/22/02 | |
| State of Tennessee v. Ronnie K. Daniel and Jessica J. Echols
M2001-03092-CCA-R3-CD
A Williamson County jury convicted the defendants of DUI, first offense. Defendant Daniel was sentenced to eleven months and twenty-nine days, all suspended except for 90 days incarceration. Defendant Echols' eleven-month and twenty-nine day sentence was suspended after 30 days incarceration. The sole issue on appeal is whether their sentences are excessive. We find the defendants failed to file their notices of appeal within 30 days of the trial court's orders overruling their motions for new trial; therefore, their appeal is dismissed.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Donald P. Harris |
Williamson County | Court of Criminal Appeals | 11/22/02 | |
| State of Tennessee v. Danial R. Willcutt
W2001-02743-CCA-R3-CD
A Hardin County jury convicted the defendant, Danial R. Willcutt,1 of aggravated sexual battery, a Class B felony. The defendant was sentenced as a Range I violent offender to twelve years in the Department of Correction. In this appeal as of right, the defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction for aggravated sexual battery; and (2) whether his maximum Range I sentence is excessive. Upon review of the record, we affirm the judgment of the trial court.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge C. Creed McGinley |
Hardin County | Court of Criminal Appeals | 11/22/02 | |
| State of Tennessee v. Danial R. Willcutt - Concurring
W2001-02743-CCA-R3-CD
I write separately to express my concern over the continuing problem we see in appellate records where the record fails to explain witness demonstrations. Nevertheless, I find the evidence in this case sufficient to support the verdict regardless of this shortcoming. Thus, I do not reach the issue of which party has the burden of proof with regard to witness demonstrations.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge C. Creed McGinley |
Hardin County | Court of Criminal Appeals | 11/22/02 | |
| Lloyd E. Ferrell and Debra L. Ferrell v. State of Tennessee
W2001-01465-CCA-R3-PC
The Appellants, Lloyd E. Ferrell and Debra L. Ferrell, appeal the denial of post-conviction relief by the Hardin County Circuit Court. On appeal, both contend that the post-conviction court erred by not finding ineffective assistance of counsel. In addition, Debra Ferrell asserts: (1) that she should be granted a new trial because the State failed to provide Brady/Bagley material: (2) that the postconviction court erred by not making written findings of fact on each issue raised in the petition, and (3) that the cumulative effect of all errors at trial, in addition to counsel’s ineffectiveness, deprived her of a meaningful defense. After review, we affirm the dismissal of the petitions.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge C. Creed McGinley |
Hardin County | Court of Criminal Appeals | 11/22/02 | |
| Debra Persada vs. Tim Persada
E2002-00397-COA-R3-CV
In divorce action the parties reached an agreed property settlement by mediation. Before Judgment, the husband repudiated the agreement, but the Trial Court heard evidence on the validity of the agreement and enforced the agreement by entering Judgment thereon. We affirm on appeal.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:G. Richard Johnson |
Johnson County | Court of Appeals | 11/22/02 | |
| Charles Montague vs. Michael Kellum
E2002-01733-COA-R3-CV
This legal malpractice claim arises from the filing by attorney Michael D. Kellum ("Defendant") of an unverified post-conviction petition on behalf of Charles Montague ("Plaintiff"). The post-conviction petition was dismissed by the Criminal Court on the merits and because it was not verified. We vacated a previous grant of summary judgment to Defendant to allow Plaintiff time to conduct discovery. While on remand and during discovery, the Court of Criminal Appeals affirmed the dismissal of Plaintiff's post-conviction proceeding for the sole reason that the petition was unverified. Thereafter, the Trial Court again dismissed this lawsuit after concluding, inter alia, Plaintiff had suffered no damages. We vacate and remand.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Jean A. Stanley |
Washington County | Court of Appeals | 11/22/02 | |
| Larry Thrasher v. Carrier Corporation,
M2001-02680-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 suffers from plantar fasciitis in both feet. Causation was vigorously contested. The trial judge found that the plaintiff's condition was job-related. A podiatrist opined that the plaintiff retained a 29 percent impairment to both feet. The trial judge "assessed a permanent, partial disability of 1 percent to the two feet of the plaintiff," notwithstanding that the plaintiff had returned to his pre- injury job, "substantially improved," and in his words, "doing good," with no complaints other than first-step pain upon arising. The finding of 1 percent is excessive and is reduced to 4 percent. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J., and JOE C. LOSER, SP. J., joined. B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Carrier Corporation and Insurance Company of the State of Pennsylvania. Donald J. Ray, Tullahoma, Tennessee, for the appellee, Larry Thrasher. MEMORANDUM OPINION The Pleadings The plaintiff alleged that he had worked for the Carrier Corporation for thirty years and that "his work required him to stand on his feet for long periods of time, as a result the plaintiff has developed bilateral plantar fasciitis." No other condition is alleged. The defendant denied that the plaintiff's condition was job-related, but was a non- compensable, pre-existing condition. Plaintiff's Testimony The plaintiff testified that he had worked for the Carrier Corporation for thirty-two years in "coil production and press expander setup and operation and coil utility work." Beginning in 1994, he was assigned to a job which required him to stand on a three-inch piece of channel iron while loading and unloading carts of materials, stepping off and on the channel iron onto the concrete floor repetitively. His feet began hurting "five or six years ago,"1 and he consulted his family physician, Dr. Brandon, about the problem. He next reported his foot-problems to the company nurse, who furnished him a list of physicians. He selected Dr. Arms, an orthopedic surgeon, who prescribed medication and physical therapy. He saw Dr. Brandon again, who referred him to Dr. Fred Marino, Jr., a podiatrist.2 Dr. Marino prescribed orthotics, and "took me off work, put my right foot in a cast, and wanted me to rest and take it easy for a while." After nineteen (19) weeks off, the plaintiff returned to work. His testimony is markedly significant: A: I do good, I still have some pain when I get up of a morning first thing, but I do real good . . . If I have to change shoes, I have to change the inserts out and put them in the other shoes. Q: Are you wearing those inserts even today? A: Yes, sir. Q: What about weekends, do you do things, work in the garden, mow the grass, do things of that nature? A: Yes, sir. . . . . . 1 The case was heard May 21, 21. 2 In the interim, the plaintiff was seen by Dr. Robert Bell, another podiatrist, in 1998 and 1999, who took an extensive history fro m the p laintiff, and tre ated h im for dia gnos ed p lantar fasc iitis. Thes e visits to D r. Be ll, his diagnosis, and his treatm ents, were not disclosed by the plain tiff to anyone, including the physicians who subsequently treated or examined him. Moreo ver, the plaintiff did not disclose the fact during discovery procedures. At the trial, he testified that he d id not re call "going to Dr. Bell, or being examined by Dr. Bell, or having his feet x-rayed by Dr. Bell, or giving him this long h istory." T he pla intiff's last visit to Dr. Bell occurred five (5) months before he reported his foot-problems to his emp loyer. Th is extrao rdina ry testimo ny was n ot, for w hateve r reaso n, exp lored in dep th and the trial jud ge did not allud e to it. -2-
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:L. Craig Johnson, Judge |
Coffee County | Workers Compensation Panel | 11/20/02 | |
| Alton Dixon v. Nike, Inc.
CH-00-2232-2
Originating Judge:Floyd Peete, Jr. |
Shelby County | Court of Appeals | 11/20/02 | |
| John Ruff vs. Raleigh Assembly
W2001-02578-COA-R3-CV
This appeal arises from a complaint filed by the plaintiff, John Ruff ("Mr. Ruff"), in the Circuit Court at Shelby County against the defendant, Raleigh Assembly of God Church, Inc. ("the church"), for assault, battery, false imprisonment and intentional infliction of emotional distress. At the conclusion of the trial, the trial court entered judgment in favor of the church. The parties raise multiple issues on appeal. For the following reasons, we affirm in part and remand
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Robert A. Lanier |
Shelby County | Court of Appeals | 11/20/02 | |
| State of Tennessee v. Anthony R. Parham
M2002-00007-CCA-R3-CD
A Davidson County jury convicted the defendant, Anthony R. Parham, of sexual battery. In this appeal as of right, the defendant raises the issue of whether the evidence was sufficient to support the conviction for sexual battery. We affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge J. Randall Wyatt, Jr. |
Davidson County | Court of Criminal Appeals | 11/20/02 | |
| Deborah Smith vs. Riley Smith
W2002-00477-COA-R3-CV
This is an appeal of a final decree of divorce and the order of the trial court on the moton to alter or amend, involving issues of division of marital property, alimony in futuro, contempt of court, and injunctive relief for Wife's alleged harassment of Husband. Husband appeals. We affirm in part, reverse in part, and remand.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:George R. Ellis |
Gibson County | Court of Appeals | 11/20/02 | |
| Cynthia L. Ursery v. Liberty Mutual Insurance Group,
M2001-02749-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer appeals the trial court's award of 8% permanent partial disability to the employee where 1) the medical proof established a 5% anatomical impairment to both elbows; and 2) a vocational expert gave the employee a 9% vocational disability rating based on loss of access to 9.4% of the jobs available to her prior to her injury due to her permanent medical restrictions. We find that the evidence does not preponderate against the trial court's findings, and therefore the award is not excessive. We affirm the judgment of the trial court in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty Mutual Insurance Group and United Parcel Service, Inc. H. Tom Kittrell, Jr., Nashville, Tennessee, for the appellee, Cynthia Ursery. MEMORANDUM OPINION Mrs. Cynthia Ursery, the employee-appellee, was 46 years old at the time of trial. She graduated from high school in 1972 and has had no further educational training. From 1979 until April of 21, Mrs. Ursery worked for United Parcel Service (UPS), the employer-appellant, on a part-time basis. For a number of years she "bagged" small packages by pulling, pushing, or lifting the packages into bags and in turn putting the bags onto a conveyor belt. These packages were supposed to be limited to 1 pounds but at times exceeded 2 pounds in weight. Mrs. Ursery estimated she sorted 2, to 4, packages a night. For at least 1 years of her employment with UPS, she sorted individual small packages. In this job she was required to pick up the package and move her palms into an upright position continuously to read the label on the packages to place them in the correct bin. Other job duties she performed at UPS included loading and fueling trucks, and driving local routes. From 1988 to 1992, Mrs. Ursery also worked at Castner Knotts as a sales clerk where her job duties included unpacking clothes and hanging the items on display racks. In June of 1998, Mrs. Ursery saw Dr. Robert Russell because she had been experiencing pain in her left elbow. Dr. Russell prescribed medicine and gave her an "arm bandit." She returned to Dr. Russell in the fall of 1998 complaining of right elbow pain for which he also prescribed an "arm bandit." In January of 1999, she received two cortisone shots which only seemed to increase the pain in her elbows. Mrs. Ursery sought additional medical care and chose Dr. Jane Siegel from a panel presented to her by UPS. Dr. Siegel took Mrs. Ursery off work for about 5 or 6 weeks. Though her elbows improved with rest, as soon as she returned to work, her pain resurfaced. Dr. Siegel diagnosed chronic medial epicondylitis and performed surgery on Mrs. Ursery's right elbow in May of 1999. Mrs. Ursery returned to work with restrictions. UPS assigned her to a light duty job fueling trucks and driving them short distances across the yard. Mrs. Ursery began to have trouble pulling herself into the trucks and eventually re-injured her right elbow in May of 2. She was put on medical leave until September of 2, when she returned to work sorting light- weight letters. Mrs. Ursery's elbow pain continued. Consequently, Dr. Siegel placed her on permanent restrictions of lifting no more than 5 pounds and of making no highly repetitive motion of her wrist for more than 1 hour at a time. Dr. Siegel found that Mrs. Ursery had reached maximum medical improvement on April 2, 21, and assigned a 5% anatomical impairment rating to both elbows. In April of 21, UPS terminated Mrs. Ursery's employment because it had no work available that she could perform within her medical restrictions. She was earning $2. per hour at the time of her termination. Ms. Rebecca Williams, a Certified Vocational Evaluation Specialist, testified at trial on behalf of Mrs. Ursery. As part of a vocational evaluation performed in August of 21, Ms. Williams interviewed Mrs. Ursery for over 3 hours, administered the Wide Range Achievement Test -2-
Authoring Judge: James L. Weatherford, Sr. J.
Originating Judge:Thomas W. Brothers, Judge |
Davidson County | Workers Compensation Panel | 11/20/02 | |
| Jesse Carter v. State of Tennessee
M2001-02496-CCA-R3-PC
The petitioner appeals the denial of his post-conviction relief petition. He argues: (1) his trial counsel was ineffective in advising him regarding the sentence agreement in which he waived his right to appeal; and (2) he did not knowingly and voluntarily waive his right to appeal. We conclude that although the post-conviction court erroneously stated that the uncorroborated testimony of the post-conviction petitioner "should be summarily struck," the post-conviction court, nevertheless, made proper and adequate findings which support the denial of relief. We affirm the judgment of the post-conviction court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge W. Charles Lee |
Bedford County | Court of Criminal Appeals | 11/20/02 | |
| John Parker Roe v. State of Tennessee
W2000-02788-CCA-R3-PC
The Defendant, John Parker Roe, was convicted by a jury of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. John Parker Roe, No. 02C01-9702-CR-00054, 1998 Tenn. Crim. App. LEXIS 39 (Jackson, Jan. 12, 1998), perm. appeal denied (Tenn., Jan. 4, 1999). The Defendant subsequently filed for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. After an evidentiary hearing, the post-conviction court denied relief. This appeal followed. We affirm.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge Joseph B. Dailey |
Shelby County | Court of Criminal Appeals | 11/20/02 | |
| State of Tennessee v. Michael Tucker
W2000-02220-CCA-R3-CD
The Shelby County Grand Jury indicted the Defendant for felony murder in the perpetration of a robbery, first degree premeditated murder, and especially aggravated robbery. Following a trial, at which the Defendant was tried with his co-defendant, a Shelby County jury convicted the Defendant of second degree murder. The Defendant now appeals his conviction as of right, arguing that insufficient evidence was presented to support his conviction, that the trial court supplied the jury with improper supplemental instructions, and that the trial court improperly commented on the evidence at trial. Concluding that sufficient evidence was presented to support the Defendant’s conviction for second degree murder, that the trial court’s supplemental instructions to the jury were proper, and that the trial court did not improperly comment on the evidence, we affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Chris B. Craft |
Shelby County | Court of Criminal Appeals | 11/20/02 | |
| Kay Dulin vs. Michael Dulin
W2001-02969-COA-R3-CV
This appeal arises from a custody dispute involving parental relocation with a minor child. The lower court dismissed Father's petition to oppose Mother's relocation and granted Mother's motion to dismiss. Father raises multiple issues on appeal. For the following reasons, we affirm.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:George H. Brown |
Shelby County | Court of Appeals | 11/20/02 | |
| State of Tennessee v. Derek T. Payne
W2001-00532-CCA-R3-CD
The defendant, Derek T. Payne, was convicted by a Shelby County Criminal Court jury of second degree murder, a Class A felony, and attempted especially aggravated robbery, a Class B felony, and was sentenced by the trial court to an effective sentence of thirty-seven years in the Department of Correction. In this appeal as of right, he challenges the sufficiency of the evidence in support of his convictions, the sentences imposed, and the trial court's evidentiary rulings. We affirm the judgments of the trial court.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge James C. Beasley, Jr. |
Shelby County | Court of Criminal Appeals | 11/20/02 | |
| State of Tennessee v. Michael Tucker - Concurring
W2000-02220-CCA-R3-CD
I agree with the results reached in the lead opinion authored by Judge Wedemeyer. I write separately, however, because I believe that the dissent places too much emphasis on the supplemental instruction defining “adequate provocation” rather than the context of the entire charge to the jury. Here, the trial court instructed the jury, in pertinent part, as follows: “that the killing resulted from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” When the jury asked for a definition of “adequate provocation,” the trial court abbreviated a definition of provocation which was contained in Black’s Law Dictionary, 4th Edition, and charged the jury that “adequate provocation is one that excites such anger as might obscure the reason or dominate the volition of an ordinary reasonable man.” In context, I do not view the instructions, even with the supplement, so narrowly as to so limit passion as being produced only by anger. This court has previously held that the term passion does not require definition because it is commonly used and “can be understood by people of ordinary intelligence.” State v. Mann, 959 S.W.2d 503, app. at 522 (Tenn. 1997) (quoting State v. Raines, 882 S.W.2d 376, 383 (Tenn. Crim. App. 1994)). I would not classify the charge “review[ed] in its entirety and read . . . as a whole” as erroneous and join in the affirmance of the conviction. See State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
Authoring Judge: Presiding Judge Gary R. Wade
Originating Judge:Judge Chris B. Craft |
Shelby County | Court of Criminal Appeals | 11/20/02 |
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