APPELLATE COURT OPINIONS

A Lauderdale County Grand Jury indicted the defendant for robbery, and following a trial, a Lauderdale County jury convicted the defendant of the offense charged. In this direct appeal, the defendant presents the following issues for our review: (1) whether sufficient evidence was presented at trial to support his conviction; (2) whether evidence introduced at trial was illegally obtained in contravention of the defendant's Fourth Amendment rights; (3) whether the defendant was deprived of an "independent analysis of the evidence"; and (4) whether the trial court improperly instructed the jury. Finding no error in the record, we affirm the defendant's conviction.

We granted review to determine whether a “seizure” within the meaning of the Fourth Amendment to the United States Constitution and article I, § 7 of the Tennessee Constitution occurs when a police officer activates the blue lights on his patrol car and orders a person to stop, but the person flees and does not submit to authority. The trial court suppressed evidence obtained from the defendant after determining that the officer lacked reasonable suspicion, supported by specific and articulable facts, that the defendant had committed a crime before seizing the defendant by activating his blue lights and ordering him to stop. The Court of Criminal Appeals concluded that there was no seizure because the defendant fled and did not yield to the officer’s show of authority and reversed the judgment.

After a thorough review of the record and the relevant authority, we hold that under the circumstances of this case, the defendant was seized when the officer activated the blue lights on his patrol car, ordered the defendant to stop, and pursued him for several blocks. Because the officer lacked reasonable suspicion or probable cause to effect such a seizure, the evidence seized from the defendant was properly suppressed by the trial court. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.

I fully agree with the majority’s conclusion that a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of custody, even when that order resulted from the natural parent’s voluntary relinquishment of custody to the non-parent. I also agree with the majority’s conclusion that, in such circumstances, a natural parent seeking to modify custody must show that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. I disagree, however, with the majority’s conclusion that Blair has failed to show a material change of circumstances in this case. The factors in the record supporting this conclusion are succinctly summarized in Justice Birch’s dissenting opinion as follows: When Blair originally agreed to surrender custody of Joy to Badenhope, his relationship with his daughter was uncertain and had only begun. Indeed, he apparently did not even see Joy until after her mother’s death. But in the many years that have passed since that time, Blair has expended great effort to create a strong, loving bond with his daughter. That bond has flourished to such a degree that Joy now has expressed an interest in living with Blair. Additionally, Blair has moved to Tennessee to be nearer to Joy, [footnote omitted] and he has purchased a new home in a neighborhood where Joy has many friends. Blair’s relationship with his daughter, his daughter’s interest in living with him, and even his place of residence have changed entirely.

This is an automobile collision personal injury case. Plaintiff-motorist was stopped in a thru-traffic lane over the crest of a hill behind a vehicle attempting to make a left turn off of the highway. The defendant-motorist came over the crest of the hill and struck the plaintiff-motorist in the rear, causing injuries to the plaintiff. Judgment was entered on a jury verdict for the defendant that the defendant was not at fault in the accident. Plaintiff appeals. We affirm.

With today’s holding, the majority declares, essentially, that a parent who voluntarily surrenders custody of a child forfeits any right to custody and  from that day forward is shorn of parental status and relegated to a status no better than that of a non-parent, should the parent petition to modify the custody decree. I cannot agree. In my view, this decision condescendingly brushes aside the fundamental and constitutionally-grounded principle  that a parent has a right to raise a child without undue governmental  interference. Likewise, the holding disregards the presumption, widely recognized in law, that a child’s best interests are served most effectively,  where possible, by placement with a fit parent. The majority’s holding places far too little weight on the parent’s fitness to care for the child or the parent’s efforts, no matter how extensive or admirable, to foster and nurture a loving bond with the child. Moreover, my views aside, the majority misapplies its own analysis to reach a result I find to be unsupportable and unjust. For these reasons, I respectfully dissent.

This case addresses the applicable standard to modify a child-custody  order awarding custody to a non-parent. In 1993, the child’s natural father agreed to give custody to the child’s maternal grandmother, and a consent order was entered accordingly. The father later petitioned to modify that order, asserting that a material change in circumstances had occurred and claiming that he had a superior parental right to the custody of his daughter. The trial court denied the petition, finding that no material change in circumstances had occurred warranting modification, and a majority of  the Court of Appeals affirmed. We granted the father’s application for permission to appeal and hold that a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of  custody, even when that order resulted from the parent’s voluntary consent  to give custody to the non-parent. Instead, a natural parent seeking to  modify a custody order that grants custody to a non-parent must show that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. We also affirm the judgment of the Court of Appeals finding that the father has not shown a material change in circumstances that makes a change of custody in his daughter’s best  interests.

The defendant, Ben Mills, was convicted of one count of first degree premeditated murder, one count of felony murder, one count of aggravated robbery and two counts of attempted first degree murder. The trial court merged the murder convictions and imposed a sentence of life imprisonment. For the remaining convictions, the trial court imposed sentences as follows: eight years as a standard, Range I offender for aggravated robbery to be served concurrently with the life sentence, and 15 years as a standard, Range I offender for each attempted first degree murder conviction to be served concurrently to each other but consecutively to the sentences for first degree murder and aggravated robbery. The effective sentence, therefore, is life plus 15 years. In this appeal as of right, the defendant contends (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by failing to instruct the jury regarding all of the lesser included offenses of felony murder; and (3) that the trial court erred by failing to instruct the jury on intoxication. The judgments of the trial court are affirmed. The judgment for first degree murder is modified to reflect that the conviction for felony murder is merged into the conviction for premeditated first degree murder.

Ralph Dewayne Moore was indicted and tried on one count of disorderly conduct and two counts of aggravated assault. The jury was instructed that misdemeanor assault and felony reckless endangerment were lesser-included offenses of aggravated assault. Moore was subsequently convicted of disorderly conduct, one count of misdemeanor assault, and one count of felony reckless endangerment. The conviction was affirmed by the Court of Criminal Appeals. On appeal to this Court, Moore contends that: (1) felony reckless endangerment is not a lesser-included offense of aggravated assault; and (2) the evidence presented at trial is insufficient to support the conviction for felony reckless endangerment. We conclude that the offense of felony reckless endangerment is not included within the offense of aggravated assault committed by intentionally or knowingly causing another to reasonably fear imminent bodily injury by use or display of a deadly weapon; thus, we hold that the jury was improperly instructed. As a result of our holding, we find it unnecessary to address Moore's second contention. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to the trial court.

The petitioner, Yasmond Fenderson, filed a petition for post-conviction relief to challenge his Knox County convictions of second-degree murder and conspiracy to commit second-degree murder. The post-conviction court conducted an evidentiary hearing but denied post-conviction relief. The petitioner appeals and claims the ineffective assistance of trial counsel. Finding that the record supports the post-conviction court's denial of relief, we affirm.

In this post-conviction proceeding, the petitioner alleges that his pre-trial counsel failed to accompany him while he gave statements to the police and that trial counsel failed to offer the testimony of an expert pathologist. These failures, the petitioner asserts, deprived him of the constitutionally-grounded right to the effective assistance of counsel. Our review is guided by the United States Supreme Court's holding in Strickland v. Washington, which requires petitioners alleging ineffective assistance of counsel to prove that counsel's performance "fell below an objective standard of reasonableness" and that the petitioner was prejudiced by the deficient representation. 466 U.S. 668, 687-88, 694 (1984). We readily conclude that pre-trial counsel's representation fell below reasonable standards. Because we hold, however, that the petitioner has failed to prove he was prejudiced by the deficient pre-trial representation, the petitioner is not entitled to the relief sought. As far as trial counsel's failure to offer the testimony of an expert pathologist is concerned, we hold that the petitioner failed to sufficiently articulate this claim in his post-conviction petition. Thus, the trial court properly refused to hear evidence concerning that claim. It results that the denial of post-conviction relief is affirmed.

Convicted by a jury of third-offense driving while under the influence (DUI), the defendant, Jacquie Upchurch Giardina, challenges on appeal the sufficiency of the convicting evidence and her sentence of eleven months and 29 days to be served in confinement. Discerning no error, we affirm the conviction and the sentence.

I concur with the majority’s opinion affirming the convictions as to both defendants. With regard to the imposition of the death sentences in this case, however, I cannot agree. My concerns, as expressed below, pertain to: (1) the comparative proportionality review protocol imposed by the majority; and (2) the trial court’s refusal, during the sentencing phase, to address a jury question related to the amount of time the defendants would serve under a life sentence.

The defendant was convicted of DUI and driving in violation of a Habitual Traffic Offender Order. Based upon our review of the record, we conclude that there is sufficient evidence corroborating the defendant's statement that he was driving. Furthermore, the trial court is presumed to have fulfilled its role as thirteenth juror when, as in the instant case, the trial court overrules a defendant's motion for new trial without comment. The judgment of the trial court is affirmed

The petitioner originally pled guilty to aggravated rape and, by agreement, was sentenced to fifteen years imprisonment. Petitioner timely sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends he received ineffective assistance of counsel. We disagree and affirm the judgment of the post-conviction court.