Court Opinions

Format: 09/17/2014
Format: 09/17/2014
State of Tennessee v. John T. Freeland, Jr. - Concur
W2011-01828-SC-DDT-DD
Authoring Judge: Justice William C. Koch and Justice Sharon G. Lee
Trial Court Judge: Judge Roy B. Morgan, Jr.

We concur fully with all of the Court’s opinion except for Section II(B)(iv) containing
the proportionality analysis. After conducting our own independent proportionality analysis,
we concur with the majority’s conclusion that Mr. Freeland’s sentence of death is not
disproportionate to the sentences imposed on other similar offenders who have committed
similar crimes.

Madison County Supreme Court 09/17/14
State of Tennessee v. John T. Freeland, Jr.
W2011-01828-SC-DDT-DD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Roy B. Morgan

Following a bench trial, the defendant was convicted of first degree premeditated murder,
first degree felony murder, especially aggravated kidnapping, and tampering with evidence.
The trial court imposed a sentence of death based on three aggravating circumstances: (1) the defendant had previously been convicted of one or more felonies involving the use of
violence; (2) the murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or prosecution of the defendant; and (3) the murder was knowingly
committed while the defendant had a substantial role in committing a robbery. See Tenn.
Code Ann. § 39-13-204(i)(2), (6), (7) (2010 & Supp. 2013). The Court of Criminal Appeals
affirmed the defendant’s conviction and sentence. On automatic appeal to this Court, we
designated the following issues for oral argument: (1) whether the Court of Criminal Appeals
committed error by affirming the trial court’s determination that the defendant’s confessions
were freely and voluntarily made; and (2) whether under our mandatory review required by
Tennessee Code Annotated section 39-13-206(c)(1), the sentence of death is disproportionate or invalid. Having carefully considered the issues raised by the 2 defendant and the mandatory review provisions, we affirm the judgment of the Court of Criminal Appeals. We remand the case to the trial court, however, for the entry of a corrected judgment reflecting the trial court’s merger of the defendant’s convictions for first degree murder into a single conviction.

Madison County Supreme Court 09/17/14
State of Tennessee v. Ricky Allen Hickman
M2013-02390-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee Russell

A Marshall County jury convicted the Defendant, Ricky Allen Hickman, of one count of rape of a child and three counts of aggravated sexual battery.  The trial court sentenced the Defendant to serve thirty-five years for the rape of a child conviction and twelve years for each of the aggravated sexual battery convictions.  The trial court ordered partial consecutive sentencing, for a total effective sentence of forty-seven years in the Tennessee Department of Correction.  On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction for rape of a child; and (2) his sentence is excessive and contrary to law.  After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

Marshall County Court of Criminal Appeals 09/16/14
Christopher M. Collin v. James M. Holloway, Warden
M2014-00176-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Christopher M. Collin, appeals as of right from the Davidson County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that his judgments of conviction were void because they improperly subjected him to community supervision for life. Following our review, we affirm the judgment of the habeas corpus court.

Davidson County Court of Criminal Appeals 09/16/14
William Gregory Hall, Jr. v. Hillary Hudgens Hall
E2013-02227-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William K. Swann

This is an appeal of the trial court’s grant of a one-year extension of an order of protection. The petitioner/father had initially obtained an ex parte order of protection against the respondent/mother in August 2005. Subsequent to the expiration of that ex parte order, the parties were divorced in January 2007, with the trial court incorporating into the final decree of divorce an agreed permanent parenting plan awarding the parents equal co-parenting time with their two minor children. Five years later under the docket number of the previous order of protection, the father initiated the instant action by filing an ex parte petition for a new order of protection against the mother. The trial court granted an ex parte order and subsequently entered a one-year order of protection to which the parties agreed on August 30, 2012. This order of protection, inter alia, allowed the mother three telephone calls per week with the children but no in-person contact. On October 1, 2012, the father filed a petition to modify the permanent parenting plan, utilizing the docket number of the original divorce action. In July 2013, the father filed, again within the divorce action, a motion to consolidate the order of protection and permanent parenting plan proceedings, requesting that the order of protection be extended indefinitely. Following a bench hearing, the trial court granted a one-year extension of the order of protection. The mother appeals. Because we determine that the preponderance of the evidence does not support a finding that the father proved the allegation of domestic abuse at the time the extension was granted, we vacate the trial court’s extension of the order.

Knox County Court of Appeals 09/15/14
Donna Leigh Pearson v. State of Tennessee
M2013-02539-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl Blackburn

The petitioner, Donna Leigh Pearson, appeals the summary dismissal of her amended petition for post-conviction relief.  Because the post-conviction court erred by summarily dismissing the amended petition as conceded by the State, the case is remanded to that court for an evidentiary hearing solely on the issue of counsel’s handling of the delayed direct appeal.

Davidson County Court of Criminal Appeals 09/15/14
DENNIS CEDRIC WOODARD, JR. v. STATE OF TENNESSEE
M2013-01857-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert Crigler

The petitioner, Dennis Cedric Woodard, Jr., appeals the summary dismissal of his petition for post-conviction relief and/or petition for writ of error coram nobis as untimely.  He asserts that the statute of limitations should be tolled in the interest of justice because he did not learn until well after its expiration that his trial counsel simultaneously represented one of the witnesses against him, Henry Young, without his knowledge.  After review, we reverse the summary dismissal and remand for an evidentiary hearing.   
 

Bedford County Court of Criminal Appeals 09/15/14
In Re Ayden J.C.
E2013-02644-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Darryl Edmondson

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Parents’ parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination on the statutory grounds of abandonment for failure to remit support, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination of each parent’s parental rights was in the best interest of the Child. Parents appeal. We reverse the court’s termination of Father’s parental rights for failure to remit child support. We affirm the court’s termination of parental rights in all other respects.

Union County Court of Appeals 09/15/14
Tina L. Milam, et al. v. Titlemax of Tennessee, et al.
W2013-02675-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John R. McCarroll, Jr.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 09/12/14
Catherine Harvey, et al. v. Massage Envy of Tennessee, LLC
W2014-00674-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John R. McCarroll, Jr.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 09/12/14
Khadijeh Naraghian v. Darryle K. Wilson
W2014-00515-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Robert Samual Weiss

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 09/12/14
James Witt v. Tennessee Board of Parole, Et Al.
M203-02843-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Claudia C. Bonnyman

Plaintiff is an inmate in the Tennessee prison system serving a life sentence with the possibility of parole for first degree murder. The Tennessee Board of Parole declined to recommend the inmate for parole, citing as its reason the seriousness of his offense. The inmate filed a common law writ of certiorari in Davidson County Chancery Court challenging the Board’s decision to deny him parole. The chancery court dismissed the petition for failure to state a claim upon which relief can be granted. We affirm.

Davidson County Court of Appeals 09/12/14
State of Tennessee v. Letalvis Darnell Cobbins
E2013-00476-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Walter C. Kurtz

For his involvement in the January 2007 murders of the victims C.N. and C.C.,1 appellant, Letalvis Darnell Cobbins, was found guilty of multiple counts of first degree murder, facilitation of first degree murder, especially aggravated robbery, especially aggravated kidnapping, facilitation of especially aggravated kidnapping, and aggravated rape, for which he received an effective sentence of life in prison without the possibility of parole plus one hundred years. He appeals his convictions and sentences on the following grounds: (1) whether misconduct of the trial judge constituted structural constitutional error; (2) whether the trial court erred in denying appellant’s motion for change of venue; (3) whether the trial court erred in admitting certain photographs; (4) whether the trial court erred in denying appellant’s motion to continue; (5) whether the trial court erred in allowing testimony concerning a firearm that appellant had possessed prior to the offense date; (6) whether the trial court erred in allowing family members to wear buttons with the victims’ likenesses; and (7) whether the trial court erred in imposing an effective sentence of one hundred years to be served consecutively to his sentence of life in prison without the possibility of parole. We have thoroughly reviewed the record in this case and discern no error. Accordingly, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 09/12/14
Greg Parker, Et Al. v. Holiday Hospitality Franchising, Incorporated, Et Al.
E2013-00727-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Russell E. Simmons

We granted permission to appeal in this premises liability action to address two issues: (1) whether the undisputed facts establish either the accepted work doctrine exception or the nondelegable duty to the public exception to the general rule that property owners are not vicariously liable for the negligence of independent contractors; and (2) whether disputes of material fact remain concerning the property owner’s actual or constructive notice of the defective condition created by the independent contractor’s negligence. We hold that the undisputed facts do not establish either exception to the general rule of non-liability and that the undisputed facts establish that the property owner had neither actual nor constructive notice of the defective condition created by the independent contractor’s negligence. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the trial court granting the property owner summary judgment is reinstated.

Roane County Supreme Court 09/12/14
Mark Coffey v. City of Oak Ridge, Tennessee
E2013-02200-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donald Ray Elledge

This is a retaliatory discharge case in which a former police officer filed suit against his department for back pay, front pay, and other compensatory damages. The trial court found that the police officer did not establish the elements of retaliatory discharge under the Tennessee Public Protection Act and dismissed his suit. The police officer appeals. We affirm the decision of the trial court.

Anderson County Court of Appeals 09/12/14
Corey A. Adams v. Tennessee Department of Corrections et al.
M2013-00370-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robbie T. Beal

The Disciplinary Board of the Turney Center Industrial Complex convicted Petitioner of assault based upon his involvement in a gang stabbing of another inmate, the conviction was affirmed by the Commissioner of the Department of Correction. Petitioner then filed this common law writ of certiorari with the Chancery Court of Hickman County to challenge his conviction. The trial court granted the writ and the administrative record was filed with the trial court. Thereafter, on motion of the respondents, the trial court denied relief to Petitioner on the grounds that the record demonstrated that the disciplinary board had not acted illegally,arbitrarily,or exceeded its jurisdiction,and that Petitioner’s due process rights were not violated. Finding no error, we affirmed. Petitioner then filed a Tenn. R. App. P. 11 application to the Supreme Court, which granted the application and remanded to this court with instructions to address the issue of whether the trial court“ improperly dismissed the writ of certiorari without first disposing of [Petitioner’s] pretrial motions.” After requesting supplemental briefs on the issue, we have concluded that the trial court erred in dismissing the writ of certiorari without first disposing of Petitioner’s motions. We reach this decision because we are unable to conclude that the outcome of the petition could not have been affected had the trial court granted some or all of the motions. Accordingly, we reverse the judgment of the trial court and remand this matter for further proceedings.

Hickman County Court of Appeals 09/11/14
Beverly Meadow v. D & G Limited Assortments, Inc.
M2013-01627-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement
Trial Court Judge: Judge C. L. Rogers

The trial court granted a directed verdict pursuant to Tenn. R. Civ. P. 50.01 in favor of the defendant in a premises liability action. The court found the defendant did not have constructive notice of the defective condition stating, “the plaintiff has not met the burden of proof of more likely than not that this unsafe condition existed for a period of time in order to be corrected or warned about[.]” The plaintiff, who sustained a broken femur when the automatic sliding glass door at the front of the grocery store closed on her, presented an expert witness who testified that “the immediate cause of the accident was the failure of the presence sensing capability” of the automatic door. The expert testified that had the defendant conducted daily safety checks of the sensors in the proper manner, the defendant would have known that they were not functioning properly, and the likelihood the sensors first failed on the day of the incident “was extremely small.” Whether the defendant conducted daily safety checks in the appropriate manner was disputed. Taking the strongest legitimate view of the evidence and allowing all reasonable inferences in favor of the plaintiff while discarding all evidence to the contrary as Rule 50.01 requires, we have concluded the evidence is sufficient to create an issue for the jury to decide whether the defendant had constructive notice in time to remedy or warn customers of the defective condition of the door. We, therefore, reverse and remand for further proceedings.

Sumner County Court of Appeals 09/11/14
Herbert N. Jackson v. State of Tennessee
W2013-02423-COA-R3-CV
Authoring Judge: Judge Kenny W. Armstrong
Trial Court Judge: Commissioner Nancy Miller-Herron

This is an appeal from the Tennessee Claims Commission’s dismissal of Appellant’s claim against the Madison County Circuit Court for alleged sentencing errors made in Appellant’s criminal case. The Commission dismissed the claim on the ground of judicial immunity. Appellant appeals. Because the Appellant failed to timely file his notice of appeal, this Court does not have subject matter jurisdiction over this appeal. Accordingly, we dismiss.

Court of Appeals 09/11/14
Thomas Edward Kotewa v. State of Tennessee - Concur
E2014-00430-CCA-R3-ECN
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Donald R. Elledge

JAMES CURWOOD WITT, JR., J., concurring. I write separately in concurring with the majority because some aspects of the case are worth explaining futher. In assessing whether the petitioner has framed a case for a due process tolling of the coram nobis statute of limitations, we see that the petition, even as amended by counsel, does not specify when and by what means the petitioner discovered the claim of affiant John D. Carter that, during the investigation of the homicide, Mr. Carter gave a statement to police that would have supported a claim of self-defense. Thus, the state of the record does not enable this court to discern whether the application of the statute of limitations afforded the petitioner a “‘reasonable opportunity to assert a claim in a meaningful time and manner,’” Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001) (quoting Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)), or if it did not, whether the petitioner’s “‘reasonable opportunity after the expiration of the limitations period to present his claim in a meaningful time and manner’” expired before he filed the petition, Workman, 41 S.W.3d at 103-04 (quoting Williams v. State, 44 S.W.3d 464 (Tenn. 2001)). In other words, we cannot tell, despite the petitioner’s conclusory allegations, whether the delay of approximately five years in filing a timely petition for writ of error coram nobis is essentially reasonable.

Anderson County Court of Criminal Appeals 09/11/14
Thomas Edward Kotewa v. State of Tennessee
E2014-00430-CCA-R3-ECN
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald R. Elledge

In 2006, the Petitioner, Thomas Edward Kotewa, pleaded guilty to second-degree murder. See Thomas E. Kotewa v. State, No. E2007-02193-CCA-R3-PC, 2009 WL 1635177, at *1 (Tenn. Crim. App., at Knoxville, June 11, 2009), perm. app. denied (Tenn. Oct. 19, 2009). For this conviction, the trial court sentenced the Petitioner to serve an agreed-upon sentence of fifteen years. In February 2012, the Petitioner filed a petition for a writ of error coram nobis alleging that he had discovered new evidence. The State filed a response to the petition requesting the trial court dismiss the petition on the basis that, among other things, it was untimely filed. The trial court agreed, and it dismissed the petition, finding that the petition was untimely filed. On appeal, the Petitioner asserts that the trial court erred when it dismissed his petition. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Anderson County Court of Criminal Appeals 09/11/14
In Re Jewell M.
M2012-02625-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kenneth R. Goble

Father of Child filed a petition seeking parenting time with Child when she was four years old. Mother sought retroactive child support from Father dating back to Child’s birth. The trial court entered an order stating that the child support arrearage would be measured from the date Father filed his petition. The permanent parenting plan order that was entered the same day, however, was inconsistent and indicated that the arrearage would be measured from the date of Child’s birth. Father appealed, arguing that the order measuring the child support arrearage from the date of the petition should control. The record contains no transcript or statement of the evidence, and we cannot determine which order contains the correct date. We vacate the portion of the trial court’s judgments relating to Father’s child support arrearage and remand the case back to the trial court for further proceedings. Should the court determine the child support arrearage should date back to the filing of the petition rather than to Child’s birth, the court will have an opportunity to make findings supporting such a deviation from the child support guidelines, as required by the applicable statutes and guidelines.

Montgomery County Court of Appeals 09/10/14
State of Tennessee v. Heather Lee Lane
E2013-01855-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Jerry Beck

Defendant, Heather Lee Lane, pleaded guilty to violation of a habitual traffic offender order, a Class E felony, with an agreed upon sentence of two years as a Range II multiple offender with the trial court to determine manner of service of the sentence. The trial court ordered Defendant to serve her two-year sentence in confinement. On appeal, Defendant contends the trial court erred by denying her alternative sentencing. We conclude the trial court did not abuse its discretion in sentencing Defendant. Accordingly, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 09/10/14
State of Tennessee v. Terrance McCracken
W2013-01396-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge James M. Lammey Jr.

Appellant was convicted of rape, a Class B felony, and sentenced to nine years in confinement. On appeal, appellant argues (1) that the trial court erred by failing to grant his motion to suppress because there was an unreasonable delay in the judicial determination of probable cause; (2) that the trial erred by failing to grant his motion to suppress because his statements to police were involuntary; and (3) that there was insufficient evidence to support his conviction. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/10/14
Terri Ann Kelly v. Willard Reed Kelly
E2012-02219-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

This appeal involves the standard that appellate courts should use to review a trial court’s decision regarding the credibility of a witness who testifies by telephone.  A mother of two children filed for divorce in the Circuit Court for Hamilton County. When the suit was filed, the parties’ daughter was living with her mother, and the parties’ son was living in Middle Tennessee with his father. Both parents sought custody of their son. When the case was tried, the mother’s first witness testified by telephone without objection from the father. The trial court designated the mother as the primary residential parent for both children, and the father appealed. The Court of Appeals declined to defer to the trial court’s decision to accredit the testimony of the witness who testified by telephone, and a majority of the panel then reversed the trial court’s custodyruling. Kellyv.Kelly,No.E2012-02219-COA-R3-CV, 2013 WL 4007832 (Tenn. Ct. App. Aug. 6, 2013). We find that the testimony of a witness who testified by telephone should be reviewed using the same deferential standard as a live witness. Accordingly, we reinstate the trial court’s custody decision.

Hamilton County Supreme Court 09/10/14
Joseph J. Levitt, Jr. v. City of Oak Ridge, Et Al.
E2013-02625-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor William E. Lantrip

Joseph J. Levitt, Jr. (“Plaintiff”) appeals the dismissal of his suit against the City of Oak Ridge, Oak Ridge Board of Building and Housing Appeals, and Denny Boss (“Defendants”) entered by the Chancery Court for Anderson County (“the Trial Court”). We find and hold, as did the Trial Court, that Plaintiff’s suit is barred by res judicata, and we affirm. We further find and hold Plaintiff’s appeal to be frivolous and remand to the Trial Court for an award of damages for frivolous appeal.

Anderson County Court of Appeals 09/10/14