| State of Tennessee v. Harold Leonard White
E2000-01888-CCA-R3-CD
The Defendant was arrested in September 1996 for aggravated assault, being a felon in possession of a firearm, and fleeing. His case was not set for trial until July 2000. The Defendant moved for dismissal of the charges on the ground that he had been denied his constitutional right to a speedy trial. The trial court granted the Defendant's motion, and the State now appeals as of right. Concluding that the trial court did not abuse its discretion in finding that the Defendant was prejudiced by the delay, we affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Richard R. Baumgartner |
Knox County | Court of Criminal Appeals | 01/29/02 | |
| James Ferguson v. Kelly Lee Ferguson
M2001-01836-COA-R3-CV
Appellant, an inmate of the Tennessee Department of Correction currently confined at South Central Correctional Center in Clifton, Wayne County, Tennessee, appeals the dismissal by the trial court of his divorce complaint. His wife is a resident of Bristol, Virginia, and the parties separated in Cheatham County, Tennessee in 1987. The trial court dismissed the case for lack of venue. We affirm with a suggestion that the case be transferred to a court having divorce jurisdiction in Cheatham County, Tennessee, or such a court in the county where Appellant resided at the time he was first incarcerated in the Department of Corrections.
Authoring Judge: Judge William B. Cain
Originating Judge:Stella L. Hargrove |
Wayne County | Court of Appeals | 01/29/02 | |
| State vs. Johnnie Bell, Jr.
E1999-00819-SC-S09-CD
Authoring Judge: Justice E. Riley Anderson
Originating Judge:Phyllis H. Miller |
Sullivan County | Supreme Court | 01/28/02 | |
| State of Tennessee v. Miko T. Burl
W2000-02074-CCA-R3-CD
The Appellant, Miko T. Burl, was convicted by a Shelby County jury of aggravated assault, aggravated burglary, and especially aggravated robbery. Burl received an effective twenty-five year sentence. On appeal, Burl raises the following issues: (1) whether the evidence was sufficient to support the verdicts; (2) whether the trial court erred in not suppressing the photographic identification; (3) whether the trial court erred in rejecting his special jury instruction relating to the suggestiveness of the photo identification procedure; and (4) whether his sentence was proper. After a review of the record, we find Burl's issues are without merit. We find, however, as plain error, that Burl's convictions for both aggravated assault and especially aggravated robbery violate double jeopardy principles. The conviction for aggravated assault is, therefore, vacated. The judgment of the trial court in all other respects is affirmed.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge W. Otis Higgs, Jr. |
Shelby County | Court of Criminal Appeals | 01/28/02 | |
| State of Tennessee v. James Hall Schlegel
W2000-02597-CCA-R3-CD
The defendant, James Hall Schlegel, was convicted by a Henry County jury of kidnapping. The trial court imposed a four-year sentence, with one year to be served in confinement and the remainder to be served in the Community Corrections program. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court erred by failing to charge the lesser-included offense of false imprisonment; and (3) whether the defendant's sentence was proper. We affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Julian P. Guinn |
Henry County | Court of Criminal Appeals | 01/28/02 | |
| Cheryl Autry v. James Autry
M2001-01807-COA-R3-CV
This appeal involves the issuance of an order of protection. The parties were married on May 18, 1999. One minor daughter was born to the marriage. On June 10, 2001, there was a struggle between the parties over the child. The appellee sought an order of protection. A hearing was held on June 28, 2001, on Mrs. Autry's petition. Both parties were present at the hearing. After hearing the testimony, the trial court granted Mrs. Autry an order of protection, set child support, and ordered the minor child removed from TennCare insurance coverage.
Authoring Judge: Judge William B. Cain
Originating Judge:Muriel Robinson |
Davidson County | Court of Appeals | 01/28/02 | |
| State vs. Johnnie Bell, Jr.
E1999-00819-SC-S09-CD
Authoring Judge: Justice E. Riley Anderson
Originating Judge:Phyllis H. Miller |
Sullivan County | Supreme Court | 01/28/02 | |
| State of Tennessee v. Avis Neal
W2001-00374-CCA-R3-CD
The Defendant, Avis Neal was convicted by a Shelby County jury of one count of rape of a child. After a sentencing hearing, he was sentenced as a Range I standard offender to twenty years in the Department of Correction. In this appeal, the Defendant contends that (1) the trial court erred in admitting testimony concerning statements made by the victim to her mother, (2) the trial court's reasonable doubt instruction was deficient, (3) the State failed to make a proper election, (4) the evidence is insufficient to support a verdict of guilty beyond a reasonable doubt, and (5) the trial court erred in denying the Defendant's motion for new trial due to the Defendant's out of court contact with a juror. We affirm the judgment of the trial court.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge W. Fred Axley |
Shelby County | Court of Criminal Appeals | 01/28/02 | |
| State of Tennessee v. Jerry Breeding
M2001-00043-CCA-R3-CD
The defendant appeals his conviction of aggravated robbery for the armed robbery of the Union Bank and Trust in Rickman, Tennessee. We conclude that the defendant did not prove his claim of ineffective assistance of counsel and the record supports the trial court's finding that the defendant personally waived his right to testify. Furthermore, the record reveals that the defendant introduced evidence about an uncharged crime in order to impeach testimony by a witness for the state and, therefore, cannot challenge the introduction of such evidence on appeal. The trial court properly fulfilled its duty to act as a thirteenth juror. In addition, there is sufficient evidence to support the defendant's conviction for aggravated robbery. The judgment of the trial court is affirmed.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Leon C. Burns, Jr. |
Overton County | Court of Criminal Appeals | 01/25/02 | |
| State of Tennessee v. Jessie James Austin
W2001-00120-CCA-R3-CD
The defendant, Jessie James Austin, appeals as of right his convictions by a Weakley County Circuit Court jury for two counts of aggravated assault, a Class C felony. The trial court sentenced him as a Range III, persistent offender to twelve years in the Department of Correction for each count to be served concurrently. The defendant contends that the evidence is insufficient to prove either count of aggravated assault and that the trial court should have instructed the jury on the lesser included offense of reckless aggravated assault. We affirm the trial court's judgments of conviction.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge William B. Acree |
Weakley County | Court of Criminal Appeals | 01/25/02 | |
| Billy Joe Clubbs v. Cresent Manufacturing Co.,
M2001-WC-R3-CV
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. In this appeal, the injured employee insists the trial court erred in dismissing his claim for benefits for failure to give timely written notice of his injury. As discussed below, the panel has concluded the judgment should be reversed and the cause remanded for further consideration. Tenn. Code Ann. _ 5-6-225(e) (21) Appeal as of Right; Judgment of the Circuit Court Reversed. Cause Remanded. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Mary A. Parker, Nashville, Tennessee, for the appellant, Bobby Joe Clubbs D. Andrew Saulters, Nashville, Tennessee, for the appellees, Cresent Manufacturing Company and CNA Insurance Company MEMORANDUM OPINION The employee or claimant, Clubbs, is a supervisor for the employer, Cresent, and familiar with the procedure for reporting injuries. In January or February of 1999, he felt "an intense jolt" when a wrench he was using slipped. The claimant did not report the occurrence to the employer. He testified that it is customary, though not encouraged, at Cresent not to make written report of a minor injury when the employee believes the injury will resolve itself quickly. His pain quickly subsided and he finished his shift and continued working without pain. At the time, the claimant did not realize he had suffered an injury. Seven to ten days later, he began experiencing severe headaches. However, he had suffered headaches in the past and was not alarmed by it. He began visiting Dr. Sid King, whom he had seen from time to time for other headaches. When conservative care did not relieve the headaches and tests revealed a spur, Dr. King referred the claimant to a neurologist, Dr. Mary Ellen Clinton, whom the claimant first saw on March 17, 1999. On the same day, Dr. Clinton advised him that she thought the condition was the result of the wrench slipping episode at work. The claimant retained an attorney, who, on April 2, 1999, reported the injury to the employer by letter. Dr. Ray Hester, to whom the claimant was referred by Dr. Clinton, diagnosed a herniated cervical disc, which he repaired surgically. Dr. Hester opined at trial that the injury was work related and assigned a permanent impairment rating. The claimant was totally disabled to work for a period of time and has incurred medical expenses. Following a trial on the merits, the trial court found the claimant, without a reasonable excuse, had failed to give timely notice of his injury. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. The notice may be given by the employee or his representative. Tenn. Code Ann. _ 5-6-21. The reasons for the 3 day statutory notice requirement are (1) to give the employer an opportunity to make an investigation while the facts are accessible, and (2) to enable the employer to provide timely and proper treatment for the injured employee. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Leather Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. Marshall Construction Co. v. Russell, 163 -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:C. L. Rogers, Judge |
Sumner County | Workers Compensation Panel | 01/25/02 | |
| Randall Bilbrey v. Gary Worley
M2003-01376-COA-R3-CV
This is a landlord/tenant case involving abandonment and surrender by the tenant of the leased premises and whether or not the surrender was accepted by the landlord so as to prevent the landlord from collecting rents for the unexpired term of the lease. The chancellor first held for the landlord on the issue but thereafter came to believe himself bound by an unreported decision of this court and reversed his position to hold for Appellee. We find the first judgment of the chancellor to have been correct and reinstate his original judgment.
Authoring Judge: Judge William B. Cain
Originating Judge:Vernon Neal |
Overton County | Court of Appeals | 01/25/02 | |
| State of Tennessee v. Khanh Le
W1998-00637-CCA-R3-CD
On November 10, 1997, the appellant, Khanh V. Le, was convicted by a jury in the Shelby County Criminal Court of one count of first degree premeditated murder. The trial court sentenced the appellant to a term of life imprisonment in the Tennessee Department of Correction. The appellant filed an appeal, and this court affirmed the judgment of the trial court on March 9, 2000. Accordingly, the appellant filed an application for permission to appeal to our supreme court pursuant to Tenn. R. App. P. 11. The supreme court granted the appellant’s application for the sole purpose of remanding the case to this court for reconsideration in light of the recent case of State v. Ely, 48 S.W.3d 710 (Tenn.), cert. denied, __ U.S. __, 122 S. Ct. 408 (2001). Upon reconsideration, we reverse the judgment of the trial court and remand this case for a new trial.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge W. Fred Axley |
Shelby County | Court of Criminal Appeals | 01/25/02 | |
| Vances Smith vs. Warden Fred Figueroa
W2001-01572-COA-R3-CV
This is an appeal from the trial court's order dismissing a petition for writ of certiorari. We affirm.
Authoring Judge: Judge David R. Farmer
Originating Judge:Jon Kerry Blackwood |
Hardeman County | Court of Appeals | 01/25/02 | |
| State of Tennessee v. LaKeisha Jones
W2000-02962-CCA-R3-CD
A Haywood County Circuit Court jury convicted the defendant, Lakeisha Jones, of second degree murder, and the trial court sentenced her as a violent offender to fifteen years in the Tennessee Department of Correction. The defendant appeals, contending that the evidence is insufficient to support her conviction and that the trial court failed to instruct the jury as to mutual combat. We affirm the judgment of conviction.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Mark Agee |
Haywood County | Court of Criminal Appeals | 01/25/02 | |
| State of Tennessee v. Derrann William Estill
M2001-01859-CCA-R3-CD
The Defendant was convicted of theft of property valued between $1,000 and $10,000, a Class D felony, and criminal trespass. The trial court sentenced him as a Range II, multiple offender to six years incarceration for the theft conviction and to thirty days incarceration for the criminal trespass conviction, with the sentences to be served concurrently. The Defendant argues that insufficient evidence was presented at trial to convict him of theft or criminal trespass. We affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Lee Russell |
Bedford County | Court of Criminal Appeals | 01/25/02 | |
| State of Tennessee v. Khanh Le - Concurring
W1998-00637-CCA-R3-CD
Consistent with my conclusion when this case was originally before our court, I concur that it was reversible error for the trial court to not charge the jury with the lesser-included offense of second degree murder. Along with Judge Welles, I disagree with the statement in the lead opinion by Judge Ogle that “a failure to instruct a jury on lesser-included offenses will only be found harmless beyond a reasonable doubt under the circumstances presented” in State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). There may be other circumstances, not presently before our court, where the erroneous failure to charge a lesser-included offense would be harmless error.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge W. Fred Axley |
Shelby County | Court of Criminal Appeals | 01/25/02 | |
| 99-03-19-01
99-03-19-01
Originating Judge:J. Weber Mccraw |
Fayette County | Court of Appeals | 01/24/02 | |
| Ishmael Mace vs. Phyllis Mace
W2001-00574-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Karen R. Williams |
Shelby County | Court of Appeals | 01/23/02 | |
| William Perry vs. Ricki Perry
W2001-01350-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Martha B. Brasfield |
Tipton County | Court of Appeals | 01/23/02 | |
| Ishmael Mace vs. Phyllis Mace
W2001-00574-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Karen R. Williams |
Shelby County | Court of Appeals | 01/23/02 | |
| State of Tennessee v. Horace Demon Pulliam
M2001-00417-CCA-R3-CD
The defendant was indicted by a Davidson County Grand Jury on one count of premeditated first degree murder and two counts of attempted first degree murder. Following a jury trial, the defendant was convicted of the indicted premeditated first degree murder count and two counts of the lesser-included offense of attempted second degree murder. The defendant was sentenced to life imprisonment for premeditated first degree murder and two 11-year terms for the two counts of attempted second degree murder, with all sentences to run consecutively, for a total effective sentence of life plus 22 years. In this appeal, the defendant contends (1) the evidence was insufficient to sustain the convictions; (2) the trial court erroneously refused to charge reckless endangerment as a lesser-included offense of attempted first degree murder; and (3) the trial court erroneously sentenced the defendant to consecutive sentences. After a thorough review of the record, we conclude the trial court erroneously failed to charge reckless endangerment as a lesser-included offense of attempted first degree murder and remand for a new trial on these two counts. We affirm the conviction and life sentence for premeditated first degree murder.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Cheryl A. Blackburn |
Davidson County | Court of Criminal Appeals | 01/23/02 | |
| William Perry vs. Ricki Perry
W2001-01350-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Martha B. Brasfield |
Tipton County | Court of Appeals | 01/23/02 | |
| State of Tennessee v. Kenneth Lee Kendrick
E2001-00817-CCA-R3-CD
The defendant, Kenneth Lee Kendrick, appeals the Sullivan County Criminal Court's revocation of his probation. We affirm the trial court.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge R. Jerry Beck |
Sullivan County | Court of Criminal Appeals | 01/23/02 | |
| State of Tennessee v. Nathan Scott Potter - Concurring
E2001-01760-CCA-R3-CD
I concur in the results reached in the majority opinion. However, I disagree with its implicit conclusion that legislative action regarding pretrial procedure in cases before the courts does not infringe upon the separation of powers doctrine.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Phyllis H. Miller |
Sullivan County | Court of Criminal Appeals | 01/23/02 |
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