APPELLATE COURT OPINIONS

And No. E1998-00099-SC-R11-CD

This is a consolidated appeal from the defendants’ convictions in the Criminal Courts of  Anderson County and Knox County, respectively.  Defendant Ely was originally charged with one count of premeditated murder and one count of felony murder; defendant Bowers was charged with two counts of felony murder. In Ely’s case, the State nolle prossed the premeditated murder count upon the conclusion of the proof, and the trial court refused to instruct any lesser-included offenses to felony murder. He was convicted as charged of felony murder and sentenced to life imprisonment. In defendant Bowers’s case, the trial court dismissed the charges of felony murder at the conclusion of the proof and, over his objection, instructed the jury on the lesser offenses of second degree murder, reckless homicide, and criminally negligent homicide. Bowers was convicted of second degree murder.

On appeal to the Court of Criminal Appeals, Ely argued that the offenses of second degree murder, reckless homicide, criminally negligent homicide, facilitation of felony murder, and accessory after the fact to felony murder were all lesser-included offenses of felony murder and should have been instructed. A majority of the intermediate court held that accessory after the fact was not a lesserincluded offense of felony murder. However, assuming that the other lesser offenses were included, the Court of Criminal Appeals determined that no error occurred because the evidence did not -2- support an inference of guilt of any of the other lesser offenses. In his direct appeal, Bowers argued that second degree murder was not a lesser-included offense of felony murder and should not have been charged. The intermediate court held that second degree murder was a lesser-included offense of felony murder and that it was properly instructed in his case.

We granted review in this consolidated appeal to determine several issues: (1) whether there are any lesser-included offenses to felony murder; (2) if there are no lesser-included offenses, whether the conviction in Bowers’s case is therefore invalid; (3) if there are lesser-included offenses, whether failure to instruct such offenses was error in Ely’s case; and (4) whether any such error was harmless.  We also take the opportunity in this case to clarify the harmless error standard, which has been the subject of some confusion since our decision in State v. Williams, 977 S.W.2d 101, 104-06 (Tenn. 1998). We conclude that the offenses of second degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder, and therefore, instruction on these offenses in Bowers’s case was not error. In Ely’s case, we find that some evidence exists that reasonable minds could accept as to several lesser-included offenses, and therefore, the failure to instruct such offenses was error. Because we conclude that such error was not harmless beyond a reasonable doubt, we reverse Ely’s conviction and remand his case for a new trial.

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of counsel at trial. The petitioner was convicted by a jury of first degree murder for shooting his wife to death, and sentenced to life imprisonment. In his post-conviction petition, the petitioner asserted a number of grounds for relief, including ineffective assistance of counsel. The post-conviction court denied the petition, finding, with regards to the ineffective assistance of counsel claim, that many of the petitioner's allegations did not constitute a deficiency in counsel's performance, and further, that the petitioner had failed to meet his burden of showing that any of the alleged deficiencies of counsel prejudiced the outcome of his case. After a thorough review of the record, we reverse the judgment of the post-conviction court as to the effect of trial counsel's misplacing of photographs which were not located until after the trial and the post-conviction hearing and remand for an additional hearing. As to the other issues, we affirm the judgment of the trial court.

Appellee, a privately owned, government subsidized apartment complex filed an unlawful detainer action seeking to evict appellant, Ashley Clinard, after a small amount of marijuana was found in her apartment. A guest admitted to having the marijuana despite Ms. Clinard's expressed prohibition against drugs in her apartment. The circuit court entered a judgment for possession of the premises against the defendant, interpreting provisions of the lease, one required by federal law and the other allowed by Tennessee law, to permit eviction of a tenant for drug related actions of a guest, even without the knowledge of the tenant. Based upon the Tennessee Supreme Court's decision in Memphis Housing Authority v. Thompson, 38 S.W.3d 504 (Tenn. 2001), holding that a tenant may not be evicted for drug related criminal activities of a guest, under federally-required lease provisions, unless the tenant knew or should have known of the activity and failed to take reasonable steps to prevent it, and because the evidence shows that Ms. Clinard had no reason to know that her guest had marijuana in her apartment, we conclude the eviction based on that provision must be reversed. Additionally, because we find that temporary mere presence of a small amount of marijuana does not constitute "a violent act" or "a real and present danger to the health, safety or welfare of the life or property of other tenants or persons," we conclude that state law does not authorize the summary eviction. Accordingly, we reverse the trial court.

The defendant, James L. Roberson, was charged with attempted second degree murder for the repeated stabbing of a female acquaintance and was convicted of the offense, following a bench trial. He testified that he was under the influence of drugs at the time of the offense and could not remember what had happened. He appealed the conviction, arguing that, as the result of his mental state, the proof was insufficient to sustain the conviction. We affirm the judgment of the trial court.

The petitioner appeals the dismissal of his petition for post-conviction relief, arguing that it was error for the post-conviction court to dismiss his petition without holding an evidentiary hearing. The petitioner pled guilty to two counts of felony murder, two counts of attempted first degree murder, and one count of especially aggravated burglary. In a pro se petition for post-conviction relief, the petitioner alleged that his trial counsel induced him to plead guilty just prior to the start of trial by showing him a videotape of a television show chronicling the final hours of a death row inmate's life. After appointing counsel, the post-conviction court dismissed the petition without an evidentiary hearing, ruling that the petition failed to present a colorable claim for relief. Based upon our review, we affirm the judgment of the post-conviction court.

The co-defendants, Leonard Edward Baugh, Jr., Damian Lamar Owes, and Marquez Donnell Crenshaw, were indicted by the Davidson County Grand Jury on one count of especially aggravated robbery, five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of aggravated assault. Baugh was additionally indicted on one count of resisting arrest and one count of unlawful possession of a weapon by a convicted felon. The counts of aggravated assault were later dismissed. Following their joint trial, all co-defendants were found guilty of especially aggravated robbery, five counts of especially aggravated kidnapping, and aggravated burglary. Baugh was also convicted of unlawful possession of a weapon by a felon. On appeal, each of the co-defendants challenges the sufficiency of the convicting evidence, arguing that the State failed to offer sufficient proof of identity. After a thorough review of the record, we affirm the judgments of the trial court. The matter is remanded to the trial court for correction of clerical errors in the judgments.

This case presents the issue of whether the administrator of an estate breached his fiduciary duty, under the circumstances herein presented, when he failed to see that an asset of the estate worth in excess of $10,000 was properly insured. We find that Defendant breached his duty when, after he was informed by Plaintiff that she had paid off the bank note on the mobile home after attempting to sell it, he failed to make any inquiries into who would pay the insurance, how the insurance would be paid, when the insurance was due, or whether any insurance was in effect. This breach of duty caused loss to the estate when the mobile home was destroyed by a tornado while uninsured. As a result, we find Defendant liable to the estate in the amount of $11,415, as this is the amount the proof showed would have been paid by insurance.

This consolidated appeal concerns a multiple vehicle automobile collision which occurred during interstate rush hour traffic in Nashville. Lamesia A. Simmons' vehicle came into contact with the rear portion of Paula C. Bencriscutto's vehicle during an attempted lane change. This impact then caused the Bencriscutto vehicle to come into contact with Brooke A. Lucas' vehicle. Lawsuits were instituted in the Circuit Court of Davidson County by both Lucas and Bencriscutto against Simmons to recover damages associated with the collision. These suits were consolidated for trial and this subsequent appeal. At the close of the Plaintiffs' proof the court directed a verdict in favor of the plaintiffs and against Simmons. The issue of damages was then submitted to the jury with a verdict of $9,947.69 being returned in favor of Bencriscutto and in the amount of $5,482.50 for Lucus. Ms. Simmons appeals insisting that the trial court erred in granting the directed verdict. We affirm the action of the trial court in directing the verdict and the damage award.

This appeal stems from a divorced couple's decision to modify the terms of an agreed order regarding the payment of their marital debt. Almost six years after the parties were divorced in the Chancery Court for Maury County, the husband agreed to release the wife from her obligation to pay a portion of the marital debt in return for her agreement to use her credit to help him purchase a new truck. After the wife repossessed the husband's new truck, the husband requested the trial court to enforce the original agreed order. The trial court determined that the original agreed order remained valid and awarded the husband $18,944 representing the payments the wife should have made under the agreed order. The wife asserts on this appeal that the parties' agreement to modify the agreed order was valid and that she had performed her obligations under the agreement. We agree and, accordingly, reverse the judgment for the husband and direct the trial court to enter an order releasing the wife from her obligation under the agreed order.

The defendant was indicted by a Davidson County Grand Jury for especially aggravated robbery and attempted first degree murder. Following a two-day jury trial, the defendant was found guilty of especially aggravated robbery, a Class A felony, and attempted second degree murder, a Class B felony. A sentencing hearing was held on September 29, 1999, at the conclusion of which the trial court sentenced the defendant as a Range I offender to twenty-one years at 100% for the especially aggravated robbery conviction and ten years for the attempted second degree murder conviction. The sentences were ordered served concurrently in the Tennessee Department of Correction. In this appeal as of right, the defendant presents three issues for our review: (1) whether the evidence is sufficient to support his convictions for especially aggravated robbery and attempted second degree murder; (2) whether the trial court erred in failing to charge the jury on certain lesser-included offenses; and (3) whether the sentence is excessive. Having reviewed the entire record on appeal, we affirm the judgment of the trial court.

This is an appeal of a jury verdict based on personal injuries plaintiff received as a result of the wrong acetic acid solution being applied during a colposcopy. Metro Medical Supply, Inc., the supplier of the acid, appeals the trial court's decisions on post trial motions and the amount of the remittitur. Among other grounds, Metro Medical asserts that it is not liable because any acts or omissions on its part were too remote and that there were intervening superceding causes that were the legal and proximate cause of plaintiff's injuries. We agree, and for the reasons below, we find that Metro Medical was not legally liable to plaintiffs and any negligence on its part was superceded by unforeseeable intervening causes. Accordingly, the judgment against Metro Medical Supply, Inc. is reversed.

The defendant challenges his conviction for attempted first degree murder, contending that the evidence was insufficient, the trial court should have granted a change of venue due to pervasive pretrial publicity, the trial court should have accepted the jury's statement that it could not return a unanimous verdict after it revealed its numerical division, and the jury was tainted by extraneous information. We affirm the judgment of conviction.

The only question involved in this appeal is whether it was in the best interests of a minor child to terminate the parental rights of the child's mother. The Juvenile Court of Putnam County found that fact against the mother. We affirm.

This appeal arises from the deed and devise of property to Courtney Warner Hodges, a minor, by her great grandmother, now deceased. The Appellee brought a petition for appointment of a guardian for Courtney in the Probate Court of Shelby County. The petition stated that Courtney needed a guardian to represent her interests and collect and invest her income from the property. The petition also stated that the income interest to Courtney was not encumbered by trust. Following a hearing, the trial court entered an order for management of minor's estate. The trial court found that the evidence was insufficient to impose oral trusts upon the property.

The petitioner appeals the denial of his petition for post-conviction relief. Having been indicted by a Davidson County Grand Jury on three counts of rape of a child and one count of aggravated sexual battery, the petitioner pled guilty to two counts of rape of a child, a Class A felony, and the remaining counts were dismissed. In this appeal, petitioner raises three issues: (1) whether he received effective assistance of counsel; (2) whether the State and the trial court should have requested forensic psychological evaluation of the petitioner and a competency hearing; and (3) whether his plea was constitutionally valid. The judgment of the post-conviction court is affirmed.

Paul Dennis Reid, Jr. was found guilty by a jury of two counts of first-degree murder and one count of especially aggravated robbery. Reid’s convictions stem from the execution style murders of two Captain D’s employees and the especially aggravated robbery of one of the employees. The jury returned a sentence of death for each of the homicides based upon its finding of three aggravating factors, i.e., (i)(2), prior violent felony; (i)(6), murder committed for the purpose of avoiding prosecution; and (i)(7), murder committed during commission of robbery. The Davidson County Criminal Court subsequently imposed a twenty-five-year sentence for the especially aggravated robbery conviction and ordered this sentence to be served consecutively to the two death sentences.  In this appeal as of right, Reid presents numerous issues for our review, including (1) issues arising from suppressed evidence; (2) challenges to the selection of jurors; (3) the sufficiency of the convicting evidence; (4) the admission and exclusion of evidence at both the guilt and penalty phases; (5) the propriety of the prosecution’s closing argument during the guilt phase; (6) the failure to instruct on lesser-included offenses; (7) the trial court’s act of holding court into late hours of the evening without cause; (8) the admissibility in general and the introduction of specific victim impact evidence; (9) prosecutorial misconduct during closing argument; (10) the propriety of the jury instructions; (11) whether application of the (i)(7) aggravator violates State v. Middlebrooks; (12)
the propriety of a twenty-five-year sentence for especially aggravated robbery; (13) the constitutionality of Tennessee’s death penalty statutes; and (14) whether the sentences of death imposed by the jury are proportionate sentences. After a careful review of the record, we affirm Reid’s convictions for two counts of first-degree murder and one count of especially aggravated robbery. Additionally, we affirm the imposition of the sentences of death and the accompanying sentence for especially aggravated robbery.