APPELLATE COURT OPINIONS

This appeal involves a defendant who bound up two victims, doused them with kerosene, and then set them on fire because one of the victims had refused to loan him ten dollars to buy beer. One of the victims lost his life in the ensuing fire. A McMinn County grand jury indicted the defendant for first degree murder, attempted first degree murder, and aggravated arson. A jury found the defendant guilty on all counts. During the sentencing phase of the trial, the jury, finding the existence of the aggravating circumstances in Tenn. Code Ann. _ 39-13-204(i)(5) and (14) (Supp. 1999), sentenced the defendant to death for the murder of the victim who died in the fire. Thereafter, the trial court sentenced the defendant to consecutive sentences of twenty-five years for attempted first degree murder and twenty years for aggravated arson. The Court of Criminal Appeals affirmed the defendant's convictions but reduced his twenty-five year sentence for attempted first degree murder to twenty years because the trial court had considered improper enhancing factors. The Court of Criminal Appeals also determined that the trial court had erred by excluding mitigating evidence offered by the defendant during the sentencing phase of the trial but that this error was harmless. After conducting its own comparative proportionality review, the Court of Criminal Appeals concluded that the defendant's sentence of death was proportionate to punishments imposed in similar cases. State v. Hester, No. E2006-01904-CCA-R3-DD, 2009 WL 275760 (Tenn. Crim. App. Feb. 5, 2009). We hold as follows: (1) the manner in which the district attorney general gave notice of the State's intention to pursue the death penalty was not improper; (2) the defendant was not denied his right of self-representation; (3) the trial court did not err by denying the defendant's request for a continuance filed eight days before the trial; (4) the defendant failed to establish a prima facie case that the process used to select the jury venire deprived him of his right to select a jury from a fair cross-section of the community; (5) the defendant failed to make the necessary pretrial objections to raise an argument that the jury selection procedures violated Tenn. Code Ann. _ 22-2-304(e) (1994) and has failed to demonstrate any prejudice that he suffered from any violations thereof; (6) the trial court did not err by denying the defendant's request to retain an expert statistician; (7) even assuming two of McMinn County's jury commissioners were not statutorily qualified for their positions, Mr. Hester suffered no resulting prejudice; (8) the trial court did not commit reversible error with regard to its decisions relating to the admission or exclusion of evidence; (9) the trial court did not improperly comment on the evidence; (10) the trial court's instruction on reasonable doubt was not erroneous; (11) the trial court did not err when it replaced a juror during the sentencing phase of the trial; (12) the record contains sufficient evidence of premeditation; (13) the defendant's due process rights were not infringed by the denial of compulsory process, the trial judge's failure to recuse himself sua sponte, or the manner in which the trial court considered his motion for new trial; (14) the defendant is not entitled to a reversal of his conviction and sentence because of the cumulative effect of errors during the entire proceeding; and (15) the defendant's multiple challenges to Tennessee's death penalty statutes and the procedures and the protocol for carrying out the death penalty are without merit. Finally, in accordance with our obligation under Tenn. Code Ann. _ 39-13-206 (2006), we have thoroughly reviewed the record and have determined: (1) that the defendant's sentence of death was not imposed in an arbitrary fashion; (2) that the evidence fully supports the jury's finding of the existence of the aggravating circumstances in Tenn. Code Ann. _ 39-13- 204(i)(5) and (14); (3) that the evidence supports the jury's finding that these aggravating circumstances outweigh the mitigating circumstances presented by the defendant; and (4) that the defendant's death sentence, taking into consideration the nature of the offense and the defendant himself, is neither excessive nor disproportionate to the penalty imposed in similar cases. We have also independently determined that the defendant should receive two twentyyear sentences for his convictions for attempted first degree murder and aggravated arson and that these sentences should be served consecutively with each other and with the defendant's death sentence. In all other respects, the judgment of the Court of Criminal Appeals, as modified by this opinion, is affirmed.

The petitioner, David Hearing, appeals the denial of his petition for post-conviction relief wherein he challenged his 2005 guilty-pleaded convictions of felony murder. In this appeal, he contends that he was denied the effective assistance of counsel and that his guilty pleas were not knowingly, voluntarily, and intelligently entered. Because the petitioner failed to establish his claims by clear and convincing evidence, we affirm the judgment of the postconviction court.

The defendant, Leon Goins, was convicted by a Dyer County jury of possession of Schedule II cocaine with intent to sell or deliver, a Class B felony, and was sentenced to a term of twenty-five years in the Department of Correction. On appeal, the defendant has raised the single issue of sufficiency of the evidence. Following review of the record, we affirm the judgment of conviction.

This case involves a petition for access to certain documents pursuant to the Tennessee Public Records Act, Tenn. Code Ann. _ 10-7-101 et seq. The appellees asserted in the trial court, and on appeal, that the documents are confidential and privileged pursuant to the tax information and tax administration information exceptions found in Tenn. Code Ann. _ 67-1- 1702; pursuant to the "ECD exception" provided in Tenn. Code Ann. _ 4-3-730(c); and also pursuant to the Deliberative Process Privilege. The trial court denied the appellant's petition finding that the ECD exception applied and therefore, held that the documents at issue should remain confidential for five years. The trial court, however, found that the tax information and tax administration information exceptions did not apply and declined to apply a Deliberative Process Privilege. Appellant appealed the trial court's denial of his petition. On appeal, the appellees assert that the trial court erred in not finding the tax information and tax administration information exceptions applicable and in not applying the Deliberative Process Privilege. After reviewing the record, including the withheld documents, we find that the trial court erred in not finding that the tax information and tax administration information exceptions, as provided in Tenn. Code Ann. _ 67-1-1702, applied. Consequently, we affirm the trial court's denial of the appellant's petition but for different reasoning.

I concur with nearly all of the majority opinion, but disagree with one aspect of it.  However, I would reach the same result with different reasoning, and so file this separate concurrence.

Following a jury trial, Defendant, Jeremy A. Jarvis, was found guilty of the second degree murder of Willard Ross, a Class A felony; the attempted second degree murder of Jovan Dixon, a Class B felony; one count of reckless endangerment, a Class E felony; and one count of possession of a weapon with the intent to go armed, a Class A misdemeanor. The trial court sentenced Defendant as a Range I, standard offender, to twenty-five years for his murder conviction, twelve years for his attempted murder conviction, two years for his felony reckless endangerment conviction, and eleven months, twenty-nine days for his misdemeanor conviction. The trial court ordered Defendant to serve his sentence for attempted second degree murder consecutively to his sentence for second degree murder, and the remaining sentences concurrently with each other and with his sentence for second degree murder, for an effective sentence of thirty-seven years. On appeal, Defendant argues that the evidence is insufficient to support his convictions of second degree murder and attempted second degree murder. After a thorough review, we affirm the judgments of the trial court.

The Defendant, Charles Edward Brown, appeals the Hamilton County Criminal Court's order revoking his probation for domestic aggravated assault, a Class C felony, and ordering the remainder of his eight-year sentence into execution. We affirm the judgment of the trial court.

A Davidson County jury convicted the Defendant, Larry J. Patterson, of driving under the influence ("DUI"), first offense, and he was convicted after a bench trial of violation of the implied consent law. The trial court sentenced him to eleven months and twenty-nine days, thirty of which were to be served in jail, and it ordered that the defendant's driver's license be revoked for a period of one year. The defendant appeals, contending: (1) that the vehicle stop that led to his arrest was unlawful; and (2) that the trial court erred when it denied his motion for judgment of acquittal. After a thorough review of the record and applicable authorities, we affirm the judgments of the trial court.

Plaintiff appeals the summary dismissal of her medical malpractice complaint against Winifred Lassiter, M.D. Plaintiff alleges that Dr. Lassiter breached her duty of care by negligently performing a physical Fitness for Duty Examination. The trial court summarily dismissed the complaint finding that plaintiff failed to establish the elements of her claim or show a genuine issue of material fact. We affirm.

The Defendant, Chanda Dawn Langston, pled guilty to six counts of forgery between $1,000 and $10,000, a Class D felony, and to one count of theft of property over $60,000, a Class B felony. On August 20, 2009, the defendant was sentenced as a Range I offender to four years' confinement for each of the six forgery convictions and twelve years' confinement for the theft conviction, all to be served concurrently. On appeal, the defendant contends that her sentences are excessive and that the trial court erred in denying her request for alternative sentencing. Although we conclude that the trial court erred in applying one enhancement factor, we hold that the sentence imposed by the trial court is appropriate. The judgments of the trial court are affirmed.

This is a divorce appeal involving parenting issues. The parties are the parents of three minor children. Prior to trial, the parties went through mediation and arrived at an agreement on many of their issues. The trial court then conducted a trial, taking testimony from the parties on a range of issues, including some that were the subject of the mediated agreement. The divorce decree and the parenting plan entered by the trial court adopted some of the parenting provisions in the mediated agreement, but not others. The father filed a motion to alter or amend this final decree, and a subsequent motion to enforce the parenting plan. The trial court modified the parenting plan in part and issued a final order. The father now appeals. We affirm, holding that the trial court did not abuse its discretion with respect to the number of parenting days allocated to the parties or the decision-making authority on the children's medical decisions.

The Defendant, Ricky N. Berry, was convicted after a jury trial in the Hamblen County Criminal Court of driving under the influence (DUI), third offense, a Class A misdemeanor. The trial court sentenced the Defendant to eleven months, twenty-nine days and ordered that the Defendant serve fifty-five percent of his sentence, 200 days, in confinement. On appeal, the Defendant contends that the evidence was insufficient to support his conviction and that his sentence was excessive. We affirm the judgment of the trial court.

A Bradley County Criminal Court jury convicted the defendant, James M. Roderick, of rape, a Class B felony, and the trial court imposed a sentence of 10 years' incarceration to be served at 100 percent as a violent offender. On appeal, the defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

The petitioner, Montea Wilson, appeals from the Criminal Court of Shelby County's denial in part of his petition for post-conviction relief and simultaneous order of a delayed appeal. After a hearing, the post-conviction court determined that appellate counsel was ineffective in failing to "protect[] the petitioner's right to litigate the trial court's failure to properly instruct the jury on [second degree murder as a lesser included offense of felony murder] by raising that point in the motion for new trial" and granted a delayed appeal. The postconviction court further determined that trial counsel were effective in their representation of petitioner and, at the time of the petitioner's trial, had no obligation to request second degree murder as a lesser included offense to felony murder. In this appeal, the Petitioner argues that the post-conviction court erred by not setting aside his conviction for felony murder and granting a new trial because (1) trial counsel was ineffective for failing to request an instruction on second degree murder and for failing to allege in the motion for new trial that the trial court erred by not instructing the jury on second degree murder as a lesser included offense; and (2) appellate counsel was ineffective for failing to argue on direct appeal that the trial court's failure to instruct the jury on second degree murder as a lesser included offense constituted plain error. For the reasons set forth within this opinion, we reverse the post-conviction court's determination that trial counsel provided effective assistance of counsel, vacate the petitioner's conviction, and remand for a new trial. In regard to the petitioner's delayed appeal, our decision pertaining to trial counsel's performance renders it moot.

A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. _ 44-20-101 et seq. The trial court granted the motion. We reverse.

The defendant, Curtis Wix, appeals the trial court's revocation of his probation and reinstatement of his original sentence, arguing that a sentence of split confinement followed by a return to supervised probation or community corrections would have been more appropriate under the circumstances of his case. Following our review, we affirm the order of the trial court revoking the defendant's probation and reinstating his original sentence.

This is a divorce action in which Husband appeals the valuation and division of marital property, and the trial court's awards of alimony, discretionary costs, and attorneys' fees to Wife. The trial court awarded 54 percent of the marital property to Wife and 46 percent to Husband, and awarded Wife alimony in futuro of $6,400 per month until July 2013, at which time the alimony payments will be reduced to $4,400 per month until either party's death or Wife's remarriage. The trial court also awarded Wife discretionary costs and attorneys' fees. We have modified the trial court's valuation of certain items of marital property, which caused a modest decrease in the value of marital property awarded to Husband; however, we affirm the trial court's division of the marital property because our modification of the value of certain property is relatively modest. We affirm the trial court's award of alimony to Wife and the award of attorneys' fees; however, we reverse the award of discretionary costs and remand for a new determination of the costs that may be awarded under Tenn. R. Civ. P. 54.04(2). We deny both parties' requests for the costs of their attorneys' fees incurred on this appeal.

Defendant-Appellant, Carlos Jones, was convicted by a Shelby County Criminal Court jury of voluntary manslaughter and especially aggravated robbery. The trial court sentenced Jones to consecutive sentences of seven years at thirty-five percent for the voluntary manslaughter conviction and thirty-three years at one hundred percent for the especially aggravated robbery conviction, for an effective sentence of forty years in the Tennessee Department of Correction. On appeal, Jones argues that the trial court erred in allowing a witness to testify about out-of-court statements made by a non-testifying co-defendant in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). Upon review, we affirm the judgments of the trial court.

This capital case involves the 1988 rape, murder, robbery, and kidnapping of a thrift store employee in Cleveland, Tennessee. A Bradley County jury convicted the defendant of premeditated murder, felony murder, two counts of robbery with a deadly weapon, two counts of aggravated rape, and two counts of aggravated kidnapping. The trial court merged the premeditated murder and felony murder convictions into a single conviction for which the jury imposed a sentence of death after hearing proof of aggravating and mitigating circumstances. The trial court merged the remaining convictions into a single conviction for each offense and imposed concurrent sentences of forty-five years for robbery with a deadly weapon, fifty years for aggravated kidnapping, and fifty years for aggravated rape, all concurrent with the sentence of death. The Court of Criminal Appeals affirmed the defendant's convictions and sentences. On automatic appeal pursuant to Tennessee Code Annotated section 39-13-206(a)(1), we have considered all issues raised by the defendant, including the following issues, which we designated for oral argument: (1) whether the trial court erred in having insufficient regard for the heightened standard of due process in capital cases by failing to grant a mistrial, by allowing prosecutorial argument on future dangerousness while not instructing the jury on the effect of their failure to agree or ensuring that the jury knew the defendant would never leave prison alive, and by not sua sponte instructing the jury on the defense of voluntary intoxication; (2) whether the defendant is entitled to relief for pre-indictment delay in filing the notice of intent to seek the death penalty and/or for the trial court's refusal to dismiss the indictment with prejudice because the State violated the anti-shuttling provisions of the Interstate Agreement on Detainers; (3) whether the search of the defendant at the federal penitentiary in Leavenworth, Kansas was defective such that its fruits should have been suppressed; and (4) whether the sentence of death is disproportionate under the review mandated by Tennessee Code Annotated section 39-13-206(c)(1) (2006). We conclude that none of the issues presented entitle the defendant to relief and, therefore, we affirm the judgment of the Court of Criminal Appeals.

Appellant, Frank Edward Nixon, Jr., was indicted by the Davidson County Grand Jury for attempted first degree murder. Pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997); he pled guilty to attempted voluntary manslaughter, a Class D felony, in exchange for a negotiated, out-of-range sentence of eight years as a Range I, standard offender,. The trial court held a sentencing hearing to determine the manner of service of the sentence. After the hearing, the trial court denied alternative sentencing, finding that confinement was necessary: (1) to avoid depreciating the seriousness of the offense; (2) to protect society from Appellant's conduct; and (3) because measures less restrictive than confinement had been unsuccessfully applied to Appellant. Appellant filed a timely notice of appeal. On appeal, Appellant contends that the trial court improperly denied alternative sentencing. After a thorough review, we determine that the trial court properly denied alternative sentencing. Accordingly, the judgment of the trial court is affirmed. However, the matter is remanded to the trial court for entry of a corrected judgment to reflect that Appellant pled guilty to attempted voluntary manslaughter, a Class D felony.

I concur in the results reached in the majority opinion. However, I would affirm the trial court because of the defendant’s failure to include the trial transcript in the record and the attendant presumption that the trial court’s determinations were correct. See State v. Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court’s ruling presumed correct in the absence of an adequate record on appeal). The 1989 Sentencing Act, as amended, requires a sentencing court to consider evidence received at the trial. T.C.A. § 40- 35-210(b)(1). Absent the trial transcript, it is impossible for us to do a de novo review of the matters relevant to sentencing.ts of the trial court.

The petitioner, Terrance Forrest, appeals the denial of his petition for post-conviction relief wherein he challenged his 2008 guilty-pleaded convictions of three counts of aggravated robbery, three counts of aggravated kidnapping, and aggravated burglary. In this appeal, he contends that he was denied the effective assistance of counsel and that his guilty pleas were not knowingly, voluntarily, and intelligently entered. Because the petitioner has failed to establish his claims by clear and convincing evidence, we affirm.

The Defendant-Appellant, Paul Richardson, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, aggravated burglary, a Class C felony, aggravated assault, a Class C felony, and unlawful possession of a handgun by a convicted felon, a Class E felony. He was sentenced as a persistent offender to twenty-five years for the aggravated robbery conviction, ten years for the aggravated burglary conviction, and fourteen years for the aggravated assault conviction. He was also sentenced as a career offender to six years for the unlawful possession of a handgun by a convicted felon conviction. The court ordered the sentences for the aggravated robbery and aggravated assault convictions to be served consecutively and the remaining sentences to be served concurrently, for an effective sentence of thirty-nine years. In addition, all of the sentences in this case were ordered to be served consecutively to a prior federal sentence for unlawful possession of a handgun by a felon. On appeal, Richardson argues that (1) the trial court erred in charging the jury on aggravated assault by intentionally or knowingly causing another to reasonably fear imminent bodily injury when the indictment charged him with aggravated assault by knowingly causing bodily injury to another, and (2) the evidence was insufficient to support his convictions. Upon review, we affirm the judgments for aggravated robbery, aggravated burglary, and unlawful possession of a handgun by a convicted felon, but we reverse and vacate the judgment for aggravated assault and remand this matter for the purpose of allowing the trial court to restructure the manner of service of the remaining sentences to include consecutive sentences, if the court deems it to be appropriate.

The defendant, Joshua Lee Arp, was convicted by a Sevier County Circuit Court jury of attempted aggravated robbery, a Class C felony; attempted robbery, a Class D felony; and public intoxication, a Class C misdemeanor. He was sentenced as a Range III offender to fifteen years on the attempted aggravated robbery conviction and twelve years on the attempted robbery conviction, to be served concurrently. On appeal, he challenges the sentences imposed by the trial court. After review, we affirm the judgments of the trial court.