State of Tennessee v. Gregory Fairbetter
M2004-00594-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Monte D. Watkins

The defendant, Gregory Fairbetter, was charged with driving under the influence and violating the implied consent law. The defendant filed a motion to dismiss, arguing that because the videotape of his arrest had been destroyed by the state, he could not receive a fair trial. The trial court agreed and dismissed the driving under the influence charge. In this appeal, the state asserts that the trial court erred. The judgment of the trial court is reversed and the cause is remanded.

David L. Buck and Christopher L. Buck v. James W. Avent and Wife, Bernadine Avent, and Timmy Avent
W2003-00934-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Martha B. Brasfield

This is an action to establish an easement. The plaintiffs’ property adjoins the northern boundary of the defendants’ property. The plaintiffs’ property is landlocked. To access the property, the plaintiffs historically used an old logging road on the northeastern corner of the defendants’ property. In 1998, the defendants made improvements that effectively blocked the plaintiffs’ passage over the old logging road. The plaintiffs filed this lawsuit to establish an easement over the old logging road and to enjoin the defendants from further impeding their use of the easement. After a bench trial, the trial court determined that the plaintiffs had established prescriptive easement and an implied easement over the defendants’ property. The trial court directed the plaintiffs’ expert, a surveyor, to establish the exact property lines between the parties’ properties, and ordered the defendants to restore the plaintiffs’ property to its original state according to those boundaries. From that order, the defendants now appeal. We affirm the trial court’s conclusion that the plaintiffs established a prescriptive easement and an implied easement, and reverse in part and remand for the trial court to allow the parties an opportunity to submit further evidence on the exact boundary line between their properties.

James Arthur Ratledge v. Clifford Hampton
E2003-02323-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Lawrence H. Puckett, Judge
The plaintiff suffered a tear of the rotator cuff in his right shoulder. The dispositive issue is when did the tear occur? The medical proof revealed that the tear occurred one or two years before the date of injury alleged in the complaint. The trial judge held that the plaintiff failed to prove his case by a preponderance of the proof. The plaintiff appeals, and presents for review the issue of whether he failed to prove that he sustained a compensable injury. Our review is de novo on the record. We presume the judgment is correct unless the evidence preponderates against it. Rule 13(d) Tenn. R. App. P.

Wanda Lynch, et al. v. Cf Industries, Inc.
E2003-02166-WC-R3-CV
Authoring Judge: William H. Inman, Sr. 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. This is a death case. The decedent was diagnosed with mesothelioma, an ultimately fatal disease, but an autopsy revealed that he died of congestive heart failure. Death benefits were not awarded. The surviving widow appeals, claiming that the preponderance of the proof established that her husband died of mesothelioma which was job-related. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which E. RILEY ANDERSON, J., and ROGER E. THAYER, SP. J., joined. A. Christian Lanier and Jimmy F. Rogers, Chattanooga, Tennessee, attorneys for appellant, Wanda Lynch, individually and as surviving spouse of Louis E. Lynch. Robert J. Uhorchuk, Chattanooga, Tennessee, attorney for appellee, CF Industries, Inc., formerly known as Central Farmers, Inc., and Farmers Chemical Cooperative of Tennessee. MEMORANDUM OPINION This action began as one seeking workers' compensation benefits for mesothelioma. Six months after the complaint was filed, Mr. Lynch died and the complaint was amended appropriately. The defense centered, inter alia, on the issue of the cause of death since an autopsy revealed that Mr. Lynch died of congestive heart failure. Much expert testimony was presented, either in open court or by deposition, including the testimony of Dr. Stanton C. Kessler, a board- certified pathologist. The trial judge filed a detailed opinion setting forth his findings of fact and conclusions of law. One of his findings _ that Mr. Lynch died of congestive heart failure _ is assailed as contrary to the preponderance of the evidence. The dispositive issue on appeal is whether the trial judge erred in concluding that Mr. Lynch's death was not attributable to his employment. The Plaintiff also presents issues involving (1) the refusal of the trial court to impose sanctions for the alleged violation of Rule 26, Tenn. R. Civ. P., (2) the alleged restriction of the cross- examination of one of the Defendant's expert witnesses, and (3) the denial of discretionary costs. The Medical Proof Dr. Yune-Gill Jeong, who is board-certified in internal medicine and pulmonology, testified that he initially saw Mr. Lynch on July 25, 2. His suspicion that Mr. Lynch was suffering from mesothelioma, a malignancy of the lung lining, was confirmed by a biopsy. He `observed' that the disease either caused or contributed to Mr. Lynch's death, and that any heart problem was aggravated by the disease. He twice saw Mr. Lynch and on neither occasion did he find evidence of a heart problem, but believed that Mr. Lynch's complaints of back and chest pain related to the lung disease and not to his heart. He had x-rayed Mr. Lynch on July 25, 2 and saw no evidence of an enlarged heart, although there were arteriosclerotic changes in the aorta. His last examination of Mr. Lynch was about eighteen months before his death. Although he testified that Mr. Lynch died of mesothelioma, he conceded that an autopsy is the accepted medical procedure to determine the cause of death, and that he did not review tissue samples, autopsy photographs or microscopic slides that were available to him. He also conceded that Mr. Lynch could have died from some other cause. Dr. Dwight A. Hamilton, who is board-certified in cardiovascular-thoracic surgery, reviewed an EKG and the medical history of Mr. Lynch which revealed no evidence of heart disease other than arrhythmia. He concluded that Mr. Lynch died of mesothelioma, but conceded on cross-examination that the EKG revealed two electrical conduction problems. Dr. Stanton Kessler performed an autopsy on January 26, 22. He is board- certified and the medical examiner for Hamilton County, and serves on the faculty of Harvard Medical School. Dr. Kessler saw and examined the mesothelioma tumors. He testified that these tumors were not significant or sizable enough to cause death, and were not restricting the lungs to the point where they were incapable of sustaining life, and had not metastasized or spread to any other organ such as the heart, liver, spleen or any other areas. He testified that he found no signs of wasting or cachexia that would be indicative of an individual who died from cancer or mesothelioma, but found substantial evidence that the cause of death was the result of arteriosclerotic cardiovascular disease, or congestive heart failure. According to the pathologist, the internal findings that confirmed death by congestive heart failure included hypertrophied or enlarged heart, enlarged spleen and liver that were consistent with heart failure, and terminal arteriosclerotic disease that included severe stenotic changes in all vessels in the heart. Along with these finding, Dr. Kessler confirmed that his review of treatment medical records of Mr. Lynch within the appropriate year and one-half before death documented abnormal -2-

State of Tennessee v. Randal Todd Kemper
M2004-00219-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Stella L. Hargrove

The defendant, Randal Todd Kemper, was convicted of driving under the influence. The trial court imposed a sentence of eleven months, twenty-nine days, with all but forty days suspended. In this appeal of right, the defendant complains that the trial court erroneously admitted the results of his blood alcohol test because the accompanying certificate bore a rubber-stamped signature. The judgment of the trial court is affirmed.

State of Tennessee v. Zina Beth Finnell
M2003-01997-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Seth W. Norman

This is a direct appeal from a conviction of facilitation to commit felony murder. The defendant, Zina Beth Finnell, was indicted for felony murder by a Davidson County Grand Jury in connection with the murder of her step-father during the commission of an aggravated burglary. A jury convicted the defendant of facilitation to commit felony murder, and the trial court sentenced her to 21 years. On appeal, the defendant argues two issues: (1) the trial court erred in denying the defendant's motion to suppress her statement to the police, and (2) there was insufficient evidence to find the defendant guilty of facilitation to commit felony murder. We affirm the judgment of the trial court.

State of Tennessee v. Randy David Miles
M2003-01492-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Curtis Smith

The defendant, Randy David Miles, was convicted by a Franklin County Circuit Court jury of two counts of aggravated rape, a Class A felony, and aggravated kidnapping, a Class B felony, for his participation with a codefendant, Gary Allen Phillips, Jr., in grabbing a woman from the street in Northern Alabama and transporting her by car to the defendant's grandmother's abandoned farmhouse in Huntland, Tennessee, where the defendant raped her while his codefendant watched. The defendant was sentenced by the trial court as a Range I, standard offender to concurrent terms of eleven years, nine months for the aggravated kidnapping conviction and twenty-four years, six months for each of the aggravated rape convictions, for an effective sentence of twenty-four years, six months. His Tennessee sentences were ordered to be served concurrently to his Alabama sentence for kidnapping. On appeal, he challenges the sufficiency of the evidence, the State's failure to make a proper election of offenses, and the sentences imposed by the trial court. Following our review, we conclude that one of the aggravated rape convictions is invalid because the facts upon which the State relied to support the separate convictions constitute only one offense. Accordingly, we reverse one of the defendant's convictions for aggravated rape. We affirm the judgments as to the other aggravated rape conviction and the aggravated kidnapping conviction but modify the sentences to twenty-two years and nine years, respectively.

Prime Company and Jerry Salemi v. Wilkinson & Snowden, Inc. and Eugene Woods
W2003-00696-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This case involves a claim for procurement of breach of contract. The plaintiff real estate firm sued the defendant real estate firm for procurement of breach of a real estate listing contract. A bench trial was conducted. At the close of the plaintiffs’ proof, the defendants moved to dismiss the plaintiffs’ claims. The trial court noted that, in order to prove procurement of breach of contract, the plaintiffs were required to prove that the defendants acted with “malice.” In order to prove “malice,” the trial court held that the plaintiffs were required to prove that the defendants were “motivated by ill will, hatred or spite.” The trial court found that the plaintiffs had not submitted evidence that the defendants were motivated by ill will, hatred or spite, and therefore held that the plaintiffs could not prove that element of their claim. The plaintiffs’ claim for procurement of breach was dismissed. The plaintiffs now appeal. We reverse, finding that in order to prove malice in this context, the plaintiffs were not required to prove ill will, hatred or spite.

Robert Hunley v. Moore's Lumber & Building Supplies, Inc.
E2003-02193-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: Daryl R. Fansler, Chancellor
The trial court awarded the employee twelve and one-half (12 1/2) percent permanent disability as a result of a back injury and ruled the award was capped by the two and one-half times the five (5) percent medical impairment because the employee rejected a reasonable offer to return to work. The judgment is affirmed.

State of Tennessee v. Larry Allen Blaylock
W2003-02436-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed McGinley

The defendant appeals his conviction for Class A misdemeanor assault and the refusal of the trial court to impose an alternative sentence of judicial diversion or full probation. After review, we reverse the conviction for the trial court’s failure to instruct on self-defense. In the event of further appellate review, we have considered all issues raised on appeal. The cause is remanded for a new trial.

Raymond Jones v. State of Tennessee
E2003-00580-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Cupp

Petitioner, Raymond Roger Jones, appeals the Washington County Criminal Court's dismissal of his pro se combined motion to reopen his post-conviction petition, petition for writ of error coram nobis, and petition for DNA analysis. Petitioner was convicted by a jury in the Knox County Criminal Court of two counts of first degree murder. He received consecutive life sentences. This Court affirmed Defendant's convictions and sentences on direct appeal. See State v. Jones, 735 S.W.2d 803 (Tenn. Crim. App. 1987). Petitioner filed a petition for post-conviction relief in the Washington County Criminal Court. The trial court dismissed the petition, and this Court affirmed. See Raymond Roger Jones v. State, No. 03C01-9102-CR-00068, 1991 Tenn. Crim. App. LEXIS 584, (Tenn. Crim. App. at Knoxville, July 26, 1991), perm. to app. denied (Tenn. 1992). On June 22, 2001, Petitioner filed a pro se motion to reopen his post-conviction petition, alleging that the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), established a new rule of constitutional law requiring retroactive application to his case. Petitioner subsequently filed a supplemental request for DNA analysis. The trial court dismissed the motion and denied Petitioner's request for DNA Analysis. Petitioner appeals. After reviewing the record, we affirm the judgments of the trial court.

State of Tennessee v. Worley K. Henry
E2003-02630-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Phyllis H. Miller

On May 1, 2003, the defendant, Worley K. Henry, was convicted by a Sullivan County jury of theft of property valued at less than $500, possession of a Schedule IV controlled substance, and tampering with evidence. The trial court sentenced him to eleven months and twenty-nine days each for the theft and possession convictions and six years for the tampering with evidence conviction. The theft and evidence tampering sentences were to run concurrently to each other, but consecutively to the possession sentence. The defendant appealed his convictions for theft of property valued at less than $500 and tampering with evidence. He has alleged that the evidence is insufficient to support verdicts of guilty for these offenses. We affirm the judgments of the trial court.

In Re: Estate of Barsha Ella Royston
E2004-00963-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Richard E. Ladd

Appellant has appealed before final judgment was entered. We dismiss the appeal.

Ron Searcy, D/B/A Restoration Contractors v. John Herold
M2003-02037-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge C. L. Rogers

This appeal involves a dispute between a homeowner and a contractor over the validity of an arbitration award. After the arbitrator awarded the contractor $52,725, the contractor filed a complaint in the Circuit Court for Sumner County to confirm the award and to recover the costs of the arbitration. The homeowner challenged the award on the ground that he had not been afforded a hearing. The contractor filed a motion for summary judgment, a motion to dismiss the homeowner's counterclaim, and a motion for attorney's fees under the arbitration agreement. The trial court, granting the contractor's motions, confirmed the $52,725 arbitration decision and awarded the contractor $500 in arbitration expenses and $2,205 in attorney's fees. The homeowner has appealed. We have determined that the arbitration award must be vacated because of the arbitrator's failure to provide the parties a hearing before rendering his decision.

State of Tennessee v. Gregory Robinson
W2001-01299-SC-R11-DD
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge James C. Beasley, Jr.

We granted the State’s application for permission to appeal to determine whether the Court of Criminal Appeals erred by reversing the defendant’s conviction for premeditated first degree murder and his sentence of death. Upon review, we hold that the Court of Criminal Appeals erred in reversing the defendant’s conviction and sentence. In particular, we conclude that the trial court did not err by failing to instruct the jury on facilitation and solicitation or by permitting the medical examiner to display the victim’s cleaned and reconstructed skull as a demonstrative aid during his testimony; that the prosecution did not present inconsistent theories and evidence in the separate trials of the defendant and co-defendant Prentiss Phillips; and that the sentence of death is not disproportionate considering the circumstances of the crime and the defendant. Having reinstated the defendant’s conviction and sentence, we have also reviewed and considered all other errors alleged by the defendant and conclude that none warrants relief. With respect to issues not herein specifically addressed, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as an appendix. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part, affirmed in part, and the judgment of the trial court is reinstated.

State of Tennesee v. Gregory Robinson - Concurring and Dissenting
W2001-01299-SC-R11-DD
Authoring Judge: Justice Adolpho H. Birch, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

Anthony D. Cuttle v. State of Tennessee
W2003-00684-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. C. McLin

The petitioner appeals the denial of his petition for post-conviction relief, arguing that the postconviction court erred in finding he received effective assistance of counsel and in denying his request to represent himself at the post-conviction proceeding. Following our review, we affirm the denial of the petition.

Anthony D. Cuttle v. State of Tennessee - Concurring
W2003-00684-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. C. McLin

I concur in the majority opinion. I have chosen to write separately to express concern over two issues that appear from the record and that are not addressed by either party. Admittedly, the record is unclear but the majority opinion concludes that the petitioner originally filed a pro se petition for post-conviction relief, that counsel was appointed, and that the petition was summarily dismissed in August of 1998. In February of 2001, the petitioner again filed a pro se motion to reopen his post-conviction petition, which was granted by the post-conviction court. I found nothing in the record that would support the reopening of the petitioner's original post-conviction relief petition. Next, it appears that the petitioner was appointed counsel and on the second day of the hearing, the petitioner filed a pro se amended petition for post-conviction relief and was allowed an additional day in which to present evidence. This procedure appears to be in conflict with the holdings of our supreme court in State v. William Lee Burkhart, 541 S.W.2d 365. The petitioner in the instant case did not have a constitutional right to participate in propria persona and, simultaneously, be represented by participating counsel.

Vincent Hatch v. State of Tennessee
W2003-02821-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Vincent Hatch, appeals the trial court's denial of his petition for post-conviction relief alleging that he was denied the effective assistance of counsel. The judgment of the post-conviction court is affirmed.

State of Tennessee v. Ambreco Shaw
W2003-02822-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Ambreco Shaw, was convicted by a Shelby County Criminal Court jury of second degree murder, a Class A felony, for shooting a man to death at a Memphis public housing development. The trial court sentenced him as a standard, violent offender to twenty-four years in the Department of Correction, applying four enhancement factors to increase his sentence from the presumptive twenty-year midpoint in the range. In a timely filed appeal to this court, the defendant raised as his sole issue whether the evidence was sufficient to sustain his conviction. However, following the United States Supreme Court’s opinion in Blakely v. Washington, 542 U.S. ___ , 124 S. Ct. 2531 (2004), which was released during the pendency of this appeal, the defendant sought and received permission from this court to raise as an additional issue the impact of the Blakely decision on the sentencing imposed in his case. Based on our review of the record, the parties’ briefs, and applicable law, we conclude that the evidence was sufficient to sustain the defendant’s conviction and that two of the four enhancement factors were appropriately applied under Blakely. We further conclude that the applicable factors justify the enhanced sentence in the case. Accordingly, we affirm the judgment of the trial court.

Synthia M. Hopkins v. Victor L. Hopkins
M2002-02233-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Chancellor Carol A. Catalano

The issue in this case is whether child support may be awarded when neither party has been designated the primary residential parent. The Court of Appeals modified the trial court’s judgment to award equal parenting time between the parties. Neither party contests this modification. We hold that the Court of Appeals erred, however, in awarding child support to one party when neither party was designated the primary residential parent. We remand to the trial court for the designation of a primary residential parent, for the consideration of the amount of child support to be paid, and for entry of a parenting plan.

Synthia M. Hopkins v. Victor L. Hopkins - Dissenting
M2002-02233-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Chancellor Carol A. Catalano

In RE: Zaylen R.
M2003-00367-COA-R3-JV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Robert P. Hamilton

This appeal involves a dispute over the custody of a non-marital child. The child's father requested the Wilson County Juvenile Court to designate him as the child's primary residential parent because of the mother's history of substance abuse. Following a bench trial, the juvenile court designated the mother as the child's primary residential parent and established a visitation schedule for the father. The court also ordered the father to pay child support and to maintain insurance for the child. The father asserts on this appeal (1) that the juvenile court's findings of fact were insufficient, (2) that the evidence does not support designating the mother as the child's primary residential parent, and (3) that the court based its decision on the outmoded tender years doctrine. We affirm the juvenile court's order.

Wayne Davidson v. Ricky Bell, Warden
M2003-01128-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Barbara N. Haynes

The petitioner, Wayne Davidson, was convicted in the Meigs County Criminal Court of second degree burglary. Upon being found by a jury to be an habitual criminal, the petitioner was sentenced to life imprisonment. Subsequently, the petitioner filed in the Davidson County Circuit Court a pro se petition for writ of habeas corpus, alleging that the statutes under which he received a life sentence were unconstitutional. The trial court summarily dismissed the petition, and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Donavan Edward Daniel v. State of Tennessee
W2003-02511-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge William B. Acree, Jr.

Petitioner, Donavan Edward Daniel, filed a pro se petition for post-conviction relief alleging, as amended, that his trial counsel provided ineffective assistance of counsel by failing (1) to raise the legality of Petitioner’s detention as an issue in his motion to suppress; (2) to demonstrate a particularized need for expert services and timely present the affidavit of the proposed expert to the trial court; and (3) to request a mistrial or curative instruction when two prospective jurors stated during voir dire that they were familiar with Petitioner’s juvenile record and family background.  Following an evidentiary hearing, the post-conviction court denied Petitioner’s request for post-conviction relief. After a thorough review of the record, we affirm the judgment of the post-conviction court.