Opinions

Steven Leach vs. State
M1999-00774-CCA-R3-PC
Authoring Judge: Judge Jerry Smith
Trial Court Judge: James O. Bond
On November 19, 1995, a Smith County Grand Jury indicted Steven Edward Leach, the defendant and appellant, for first-degree murder, felony murder, two counts of rape of a child, and attempted rape of a child. Pursuant to a plea agreement, the defendant pled guilty to first-degree murder and rape of a child and the trial court sentenced him to serve life without parole for the murder consecutively to twenty-five years for the rape. The defendant filed a post-conviction petition, and, following a hearing, the trial court denied the petition. On appeal, the defendant claims (1) that he was denied his right to counsel of his choice; (2) that he was denied the effective assistance of counsel; (3) that he was denied his due process right to be present at a hearing; and (4) that the cumulative effect of the trial court's errors violated his due process rights. Because the evidence does not preponderate against the findings of the trial court, we affirm its judgment.

State vs. Anthony E. Collier
M1999-01408-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Seth W. Norman
On March 31, 1998, Metropolitan Nashville Police Officers executed a search warrant on the residence and person of Anthony E. Collier, the defendant and appellee. Police searched the defendant, his vehicle and his residence and seized drugs, drug paraphernalia and weapons. The defendant moved to suppress the evidence, and, following a suppression hearing, the trial court granted the defendant's motion. On appeal, the State claims that the trial court erred. We hold that the search of the defendant was not supported by probable cause and any evidence seized from the defendant's person was thus properly suppressed. However, we also find that the failure of the trial court to make findings of fact with respect to the question of whether the contraband was in plain view and thus subject to seizure requires us to remand this case for entry of such findings pursuant to Tenn. R. Crim. P. 12(e). Finally, the search of the defendant's residence was supported by the warrant; thus any evidence seized from the defendant's vehicle or residence should not have been suppressed. Accordingly, we reverse in part and affirm in part the judgment of the trial court, and we remand the case to the trial court for further proceedings in accordance with this opinion.

State vs. Michael E. Wallace
M1999-02187-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Steve R. Dozier
On August 25, 1998, a Davidson County Grand Jury indicted Michael E. Wallace, the defendant and appellant, of one count each of the following: possession of cocaine with intent to sell more than .5 grams of cocaine, simple possession of marijuana, possession of a weapon, possession of drug paraphernalia and evading arrest. Following a jury trial, the defendant was convicted for possession with intent to sell less than .5 grams of cocaine, a lesser included offense of count one. The defendant was also convicted of all other counts as charged. After a sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender, to serve ten years for possession of cocaine with intent to sell consecutively to two years for possession of a weapon. For the remaining counts, the court ordered the defendant to serve two eleven month and twenty-nine day sentences concurrently to each other and the other counts. On appeal, the defendant claims (1) that the evidence was insufficient to support his conviction; (2) that the trial court erroneously allowed a police officer to offer expert opinion testimony; (3) that the trial court erroneously denied the defendant's motion for a mistrial after a witness testified to prior bad acts of the defendant; (4) that the court erroneously refused to instruct the jury to consider lesser-included offenses; and (5) that the court erroneously ordered consecutive sentences. After a thorough review of the record, we affirm the judgment of the trial court.

State vs. Shannon Hagewood
M2000-00972-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Allen W. Wallace
On November 16, 1999, Shannon Hagewood, the defendant and appellant, pled guilty to three counts of aggravated burglary in a Dickson County Criminal Court. Following a sentencing hearing, the trial court sentenced the defendant as a multiple, Range II offender to six years for the first count, six years for the second count, and eight years for the third count. The court also ordered the defendant to serve the eight-year sentence consecutively to the two six-year sentences, which were to be served concurrently to each other. On appeal, the defendant claims (1) that he did not receive notice, as required by statute, that he would be sentenced as a multiple offender, (2) that the trial court's imposition of an eight-year sentence was erroneous; and (3) that the trial court's imposition of consecutive sentences was erroneous. After a thorough review of the record, we find that, although the trial court did not place its findings in the record, this court's de novo review supports the sentence imposed. Accordingly, we affirm the judgment of the trial court.

State vs. Christopher Karvey
M1999-02590-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Seth W. Norman
The defendant entered a plea of guilty to DUI, and attempted to reserve a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i). The defendant contends that the stop of his vehicle by police was illegal and that all evidence obtained as a result thereof must be suppressed. Because the defendant failed to properly reserve the certified question, the appeal is dismissed.

State vs. Jason Norton
M2000-00074-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: John H. Gasaway, III
In April of 1999, the Robertson County grand jury indicted the defendant for hindering a secured creditor and for failure to appear in court on charges related to a third offense. Thereafter, the trial court appointed the defendant counsel, and this attorney filed a motion to dismiss the charges of hindering a secured creditor. Through this motion the defendant essentially averred that the facts would not support a conviction for the offense. Following an evidentiary hearing, the trial court ruled in the defendant's favor, and the State subsequently brought this appeal asserting that the trial court improperly invaded the province of the jury by ruling on the sufficiency of the evidence. After analyzing relevant caselaw and the record, we find that the State's position has merit and, therefore, reverse the trial court's ruling.

Alvin Herring vs. Interstate Hotels
W1999-01055-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: John R. Mccarroll, Jr.
This is a dispute between Plaintiff Alvin O. Herring, Jr. and Defendant Interstate Hotels, Inc. d/b/a Memphis Marriott ("Memphis Marriott") regarding the theft of Mr. Herring's property from the Memphis Marriott's premises. The Memphis Marriott argues on appeal that the trial court erred in denying its motion for an extension of time to file an answer to Mr. Herring's complaint, in granting Mr. Herring's motion for a default judgment, and in denying its motion to set aside the default judgment. For the reasons set forth below, we affirm the ruling of the trial court.

J.C.Bradford vs. Southern Realty
W1999-01617-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D. J. Alissandratos
This cause came to be considered by the Court upon a claim for misrepresentation arising from a real estate transaction. This is the second occasion that the Court has had to address this case. Initially, this cause was set for trial, and following opening statements, the Chancellor ruled from the bench in the defendants' favor. On appeal, this Court remanded the cause to the trial court for further proceedings consistent with the opinion. On remand, the defendants filed a motion for summary judgment, renewed a previously filed motion to dismiss and filed a counterclaim for attorneys fees. The trial court granted the defendants the requested relief. This appeal followed. Upon consideration of the record, the Court finds that the trial court's orders granting summary judgment, dismissing the complaint and awarding attorneys' fees should be vacated and that the cause should be remanded to the trial court for further proceedings consistent with this opinion.

Daniel Ray Stanfill vs. Karen Elaine Wright Stanfill
E1999-01878-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Bill Swann
In this post-divorce proceeding, the trial court modified the judgment of divorce by changing the custody of Christopher Stanfill (DOB: February 12, 1993) from Karen Elaine Wright Stanfill ("Mother") to Daniel Ray Stanfill ("Father"). The trial court also established Mother's visitation rights with her son. We affirm.

Kenneth L. Storey vs. Randall Nichols, et al
E1998-00851-COA-R3-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: David H. Cate
An accused awaiting trial on a charge of aggravated rape filed an action in the Chancery Court of Knox County against the district attorney general and two of his assistants. The complaint sought an injunction preventing the defendants from proceeding with his prosecution, a money judgment to compensate him for his mental and physical suffering, and the loss of over two years of valuable time. The complaint also sought to disbar the defendants. The Chancery Court granted summary judgment to the defendants. We affirm.

Margaret Elizabeth Butler v. Txas Boot,
M1999-00674-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: John D. Wooten, Jr., Judge
The appellant contends the trial judge erred (1) in determining the employee's condition arose out of the employment and (2) in applying Tenn. Code Ann. _ 5-6-242, and (3) that the award is excessive.

James David Ramsey, Jr. v. Crockett-Phillips Construction, et al
M1999-01008-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: J. O. Bond, Judge
The employer and its insurer have appealed, contending the trial court's award of permanent disability benefits based on the functional equivalent of one hundred percent to both legs is excessive.

William P. Henderson, et al vs. Henry Clay Hart, Jr.
E1999-01446-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Harold Wimberly
This appeal arises from an executory contract for the sale of real property. Henry Clay Hart, Jr., the Appellant, appeals the judgment from the Knox County Circuit Court in favor of William P. Henderson and Lillian R. Henderson, the Appellees. Mr. Hart raises the issues of whether the Trial Court had proper subject matter jurisdiction to hear the case and whether the Court erred in finding that the executory sales contract was no longer in effect. We affirm the judgment of the Trial Court and remand for such further proceedings as may be necessary consistent with this opinion. We adjudge costs of appeal against Henry Clay Hart, Jr. and his surety.

State vs. Ronald Jerome Butler
M1999-01034-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Seth W. Norman
Ronald Jerome Butler was convicted by a jury in the Davidson County Criminal Court of one count of aggravated kidnapping and one count of aggravated robbery, both class B felonies. For the offense of aggravated kidnapping, the trial court sentenced the appellant as a Range I offender to ten years incarceration in the Tennessee Department of Correction, requiring him to serve one hundred percent of his sentence in confinement. For the offense of aggravated robbery, the trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction, requiring him to serve thirty percent of his sentence in confinement. The trial court further ordered that the sentences be served consecutively. On appeal, the appellant raises the following issues for review: (1) whether his conviction of aggravated kidnapping violates principles of due process; and (2) whether the trial court erred in sentencing him. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

Massengill v. Liberty Mutual Ins. Co.
E1999-01180-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: James B. Scott, Jr., Circuit Judge
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 to the Supreme Court of findings of fact and conclusions of law. The appellant-employer appealed the trial court's ruling awarding appellee-employee 75 percent permanent disability benefits to his right arm. On appeal, appellant argues the award should have been fixed to the body as a whole since the injury was mainly to the employee's right shoulder. Judgment is modified to fix the award at 12 percent disability to the body as a whole as an injury to an extremity or shoulder is not a scheduled member.

James Meyers v. Continental Casualty Company
E1999-01593-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Howell N. Peoples, Chancellor
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 to the Supreme Court of findings of fact and conclusions of law. The appellant-employer appealed the trial court's ruling finding the appellee-employee was entitled to an award of permanent disability benefits at 6 percent to the left hand. On appeal, appellant argues the award should have been confined to a scheduled member, the left thumb. The employee insists the appeal is frivolous. Judgment of the trial court is affirmed as the injury to the left thumb causes an unusual and extraordinary condition affecting the hand. The appeal is not found to be frivolous.

Samuel D. Nunley v. Carrier Corporation
M1999-01640-WC-R3-CV
Authoring Judge: Kurtz, Sp.J.
Trial Court Judge: Jeffrey F. Stewart, Chancellor
The sole issue in this workers' compensation appeal is whether the chancellor erred in finding that the plaintiff's injury arose out of his employment with Carrier Corporation. This panel affirms the decision of the trial judge.

Fred Petitt v. Associated General Contractors Self-
E1999-00367-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: W. Frank Brown III, Chancellor
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 appellant-insurance fund appealed the trial court's award of 35% disability to the body as a whole under T.C.A. _ 5-6-241(a)(2) after a reconsideration hearing. On appeal, appellant argues the award was improper because it was not established that the loss of employment was causally related to his injury and that the increased award was excessive. Judgment of the trial court is affirmed as recent ruling in Niziol v. Lockheed Martin Energy Systems, Inc. by the Supreme Court controls the reconsideration issue and award was reasonable and not excessive.

In Re: Estate of Bernie Riggs
W1999-01905-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Lee Moore
This appeal arises from a dispute over the disposition of the assets of Bernie F. Riggs ("Husband"). Plaintiff Julia Mae Riggs ("Wife") filed suit, alleging that Defendant Campbell ("Daughter") had used undue influence and had improperly disposed of Husband's assets through a power of attorney. The trial court found in favor of Daughter, holding that all transactions were valid and in accordance with Husband's wishes. Wife appeals.

State vs. Kevin Washington
W2000-02736-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
The Appellant, Kevin Washington, appeals from the dismissal of his petition for post-conviction relief by the Madison County Circuit Court. On appeal, the Appellant contends that trial counsel never informed him that his "packaged" plea agreement included a plea of guilty to Class C theft of property and, therefore, his plea was involuntarily entered. We find this contention without merit. The judgment of the post-conviction court is affirmed pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Judd's Inc. vs. Dors L. Muir, et al
E1999-01836-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Telford E. Forgerty, Jr.
In this appeal Doris and Allan Muir insist that the Chancellor was in error in not allowing their homestead exemption as to certain funds realized from the sale of real estate to satisfy a judgment previously entered against them. Their attorney, W. Richard Baker, Jr., insists that the Chancellor was in error in not enforcing a lien for his attorney fees that he claimed was properly perfected as to the same funds. We affirm.

LeCroy-Schemel vs. John Cupp, Sheriff
E2000-00024-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Douglas A. Meyer
An attorney was found in contempt by the Chattanooga City Court Judge during proceedings relating to the attorney's client's conviction for violation of a municipal ordinance. The Judge ordered a ten-day jail sentence for the attorney, who was taken into custody and locked in a holding cell. The attorney was able to secure a writ of habeas corpus from the Hamilton County Criminal Court. After the attorney was released, the City Court Judge filed an Order to Appear and Show Cause why the attorney should not be jailed for contempt. The Criminal Court held a hearing at which it heard testimony of the attorney and another witness, and found that the City Court had exceeded its statutory authority by confining the attorney for contempt, that the City Court had not followed procedural requirements for punishing contempt, declared a section of the Chattanooga City Charter null and void, and dismissed the City Court's Order to Appear and Show Cause. The City of Chattanooga appealed the orders of the Criminal Court. We affirm the actions of the Criminal Court relating to the writ of habeas corpus, affirm the finding that the City Court was without authority to punish criminal contempt by confinement or fine in excess of ten dollars, and modify the judgment to reflect the holding of this Court in Poole v. City of Chattanooga.

State vs. Letivias Prince
M1998-00005-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Donald P. Harris
The defendant, Letivias Prince, was convicted of first degree murder and was sentenced to life imprisonment. On appeal, the defendant argues that the jury pool did not adequately represent the racial makeup of the community; that pre-trial publicity deprived him of a fair trial; that the trial court erred by permitting eight peremptory challenges in jury selection; that the trial court erred by allowing the state to either call a rebuttal witness or receive a missing witness instruction; that the trial court erred by instructing the jury regarding the order of consideration of offenses; and that the evidence was insufficient to sustain his conviction. The judgment of the trial court is affirmed.

State vs. Frederick Gonzalez
M1999-00165-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Henry Denmark Bell
The Defendant appeals as of right from his conviction of simple possession of cocaine. He argues that the trial court erred in failing to suppress the evidence used to convict him because the evidence was the fruit of an unlawful seizure. We agree; accordingly, we reverse the Defendant's conviction and dismiss the case against him.

State vs. Anthony David Tapp
M1999-00414-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: James K. Clayton, Jr.
The defendant, Anthony David Tapp, was convicted of vehicular homicide as a result of intoxication. The trial court imposed a Range I sentence of 10 years. In this appeal of right, the defendant contends that the trial court erred by allowing into evidence pretrial statements which had been made by him but which had not been provided by the state in advance of the trial. The judgment is affirmed. Instructions by the defendant to witnesses of an accident not to speak to police did not qualify as discoverable material within the terms of Rule 16 of the Tennessee Rules of Criminal Procedure. In consequence, the defendant is not entitled to a new trial.