APPELLATE COURT OPINIONS

The defendant, Anthony Wells, appeals his Shelby County Criminal Court jury conviction of voluntary manslaughter, claiming that the evidence was insufficient to support his conviction, that the sentence imposed by the trial court was excessive, and that the trial court erred by refusing to admit certain hearsay statements. Discerning no error, we affirm.

I concur with the lead opinion’s conclusion that trial counsel’s failure to request an instruction on facilitation did not amount to deficient performance. Because the petitioner has failed to establish deficient performance, I also agree with the lead opinion’s conclusion that the petitioner is not entitled to relief on his claim of ineffective assistance of counsel. Having so concluded, I decline to join Section B of the lead opinion, which addresses the prejudice prong of the petitioner’s ineffective assistance of counsel claim. I reserve decision on the issue of the proper prejudice analysis for an appeal in which it is squarely presented. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (recognizing that a court need not address both prongs of a petitioner’s ineffective assistance of counsel claim when the court concludes that the petitioner has failed to establish either deficient performance or prejudice).

I concur with the majority that a conviction on a greater offense does not preclude a claim of ineffective assistance of counsel for the failure to request jury instructions on lesser included offenses. Although a small number of recent opinions by the Court of Criminal Appeals have held otherwise, most panels have endorsed the traditional view that the trial court has the obligation to provide instructions on the charged offense and all lesser included offenses warranted by the proof at trial, and that defense counsel, absent a reasonably based strategy, has the duty to seek instructions on all lesser included offenses. In contrast to the majority, I believe that trial counsel in this instance provided constitutionally inadequate representation by failing to request an instruction on facilitation as a lesser included offense of the sale of ecstasy within a school zone. I must, therefore, respectfully dissent to the extent that I would grant a new trial.

In this post-conviction appeal, we address two issues: 1) whether trial counsel provided ineffective representation by failing to request a jury instruction on facilitation as a lesser-included offense; and 2) whether a trial counsel‟s failure to request a jury instruction on a lesser-included offense is never prejudicial to a defendant convicted of a greater offense. The defendant was charged with selling illegal drugs to a police informant. The defendant‟s trial counsel argued that he was entrapped by the informant. A jury instruction on facilitation as a lesser-included offense was neither requested by the defendant‟s trial counsel nor given by the trial court. The defendant was convicted of selling illegal drugs. The Court of Criminal Appeals affirmed his convictions. The defendant filed a petition for post-conviction relief, alleging that his trial counsel provided ineffective representation by not requesting a jury instruction on facilitation of the sale of a controlled substance. The post-conviction court denied relief. The Court of Criminal Appeals affirmed, holding that 1) trial counsel was not deficient in failing to request a jury instruction on facilitation; and 2) when convicted of a greater charge, a defendant can never show that the absence of a jury instruction on a lesser-included offense was prejudicial to the defendant. We hold that the evidence in this case failed to warrant a jury instruction on facilitation. Accordingly, trial counsel‟s failure to request a facilitation instruction was not deficient performance. Further, we hold that under certain facts and circumstances, a trial counsel‟s failure to request a jury instruction on a lesser-included offense can be prejudicial to a defendant and entitle him or her to post-conviction relief based on ineffective assistance of counsel. Our decision in State v. Davis, 266 S.W.3d 896, 910 (Tenn. 2008), approving sequential jury instructions, doesnot obviate an attorney's responsibility to request lesser-included offense instructions when warranted by the proof. We affirm the judgment of the Court of Criminal Appeals, as modified.
 

1 We heard oral argument on this case on May 29, 2014, at the American Legion Auxiliary Volunteer GirlsState held at Lipscomb University in Nashville, Tennessee, as a part of the Court‟s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

The parties executed an arbitration agreement to submit disputes arising from their franchise agreement to binding arbitration. The trial court held that, under the arbitration agreement, the individual Defendants were liable, in their personal and corporate capacities, for amounts awarded to Plaintiffs by the arbitrators. Additionally, the trial court denied Defendants‟ motion to dismiss for failure to state a claim, in which Defendants contended that the arbitrators‟ decision was invalid as a matter of law. We affirm and remand.

Father appeals the trial court’s determination that it was in the best interest of the child to terminate father’s parental rights. We find that clear and convincing evidence supports the decision of the trial court.

This appeal involves the termination of a Mother's parental rights on the grounds of abandonment by willful failure to visit and willful failure to support. We affirm the trial court's finding that grounds for termination exist due to abandonment by willful failure to visit, and we also affirm the trial court's finding that termination is in the best interest of the child. We vacate the trial court‟s finding of abandonment by willful failure to support but otherwise affirm the order terminating Mother‟s parental rights as modified.

The petitioner, Roger G. Van Blarcom, was initially charged with first degree murder, a Class A felony, and several other crimes. In exchange for the dismissal of the other charges and a reduction of the first degree murder charge, the petitioner pled guilty to second degree murder, a Class A felony, and agreed to an out-of-range sentence of thirty years to be served at 100%. He now appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel and that his guilty plea was not knowing and voluntary. After reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgment of the post-conviction court.

Defendant, Ashley Wheeler, was indicted by the Shelby County Grand Jury for two counts of forgery valued at $1,000 or more, but less than $10,000, in Counts 1 and 2. In Count 3, Defendant was indicted for attempted theft of property valued at $1,000 or more, but less than $10,000. Following a jury trial, Defendant was convicted as charged. Following a sentencing hearing, the trial court merged Count 1 with Count 2 and sentenced Defendant to two years for her forgery conviction and one year for her attempted theft conviction. The trial court ordered Defendant’s sentences to be served concurrently and suspended on probation. In this appeal as of right, Defendant asserts that: 1) the prosecutor committed prosecutorial misconduct by making improper comments during closing argument; 2) the evidence was insufficient to support her convictions; and 3) the trial court abused its discretion by denying her requests to be granted judicial diversion and to be sentenced as an especially mitigated offender. Having carefully reviewed the record before us, we conclude that the comments of the prosecutor during closing argument constitute prosecutorial misconduct rising to the level of plain error. We therefore reverse the judgments of the trial court and remand this case for a new trial.

This case is before us on remand from the Tennessee Supreme Court. Appellee/Employee filed suit against Appellant/Employer for discrimination. Appellee later filed a separate suit for retaliation and malicious harassment. The two lawsuits were consolidated in the trial court. The case was tried to a jury, which returned a verdict in favor of Appellant on the retaliation claim. The jury awarded Appellant $3,000,000 in compensatory damages. In Ferguson v. Middle Tennessee State University, No. M2012-00890-COA-R3-CV, 2013 WL 1304490 (Tenn. Ct. App. March 28, 2013), we reversed the jury verdict, finding that Appellant had failed to prove the knowledge element of his retaliation claim. In Ferguson v. Middle Tennessee State University, ___S.W.3d ___, No. M2012-00890-SC-R11-CV, 2014 WL 5463941 (Tenn. Oct. 29, 2014), the Supreme Court reversed this Court and remanded the case to us for the sole purpose of reviewing the award of damages. Because there is material evidence on which a reasonable jury could conclude that Appellant was entitled to $3,000,000 in compensatory damages, we affirm and remand.

Appellant, Kevin Dewitt Ford, appeals from the trial court’s summary dismissal of his pro se “Motion for Order Correcting Error in Judgment” filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Having reviewed the record and the briefs of the parties, we conclude that Appellant has failed to state a cognizable claim for relief, and therefore, the trial court did not err in summarily dismissing Appellant’s motion. Accordingly, the judgment of the trial court is affirmed.

This appeal arises out of Mother’s and Father’s opposing motions to modify a parenting plan. Both of the parties and the court agreed that there had been a material change in circumstance warranting a modification of the plan. After a hearing, the court largely adopted Mother’s proposed parenting plan and reduced Father’s residential parenting time. The court also denied Mother’s request for attorneys’ fees. Shortly after the new parenting plan was entered, Mother filed a motion for a one-time modification of the plan to allow the child to attend a school trip that coincided with both parties’ parenting time. After a hearing, the court granted Mother’s motion. Father appealed the new parenting plan and the one-time modification. We find the modification issue moot and, therefore, dismiss that portion of Father’s appeal. We affirm the trial court’s judgment in all other respects. 

This appeal stems from an environmental dispute involving the Appellant, StarLink Logistics Inc. (“StarLink”), the Tennessee Department of Environment and Conservation (“TDEC”), and Appellee ACC, LLC (“ACC”). StarLink appeals the trial court’s affirmance of an order of the Tennessee Solid Waste Disposal Control Board (“Board”), which had adopted a consent order entered into between TDEC and ACC. We affirm in part, and remand the case to the trial court for further remand to the Board for further proceedings consistent with this Opinion. 

Defendant, Donnell Tunstall, was convicted of attempted second degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault. He received an effective sentence of thirty-two years for these crimes. Defendant now appeals his convictions, claiming insufficient evidence and improper admission of unfairly prejudicial evidence regarding his previous arrest for the murder of the victim’s brother. After careful review, we conclude that the evidence was sufficient to support all of the convictions but that the admission of specific pieces evidence was improper and not harmless. Accordingly, the convictions are reversed and remanded for a new trial.

1998, Thomas Lee Carey, Jr. (“the Defendant”) was indicted in connection with the 1996 death of Michael Dickerson. The State entered a nolle prosequi as to the charges in 1999. In 2010, the Defendant was re-indicted for the same incident. After a trial, the jury returned guilty verdicts of first degree felony murder, second degree murder, and especially aggravated kidnapping. The Defendant raises four issues on appeal: (1) whether the evidence is sufficient to support his conviction for felony murder; (2) whether the trial court erred in denying the Defendant’s motion for speedy trial; (3) whether the trial court erred in admitting the testimony of a medical examiner who did not conduct the autopsy of the victim; and (4) whether the trial court erred by allowing the State to recall a witness. After a review of the M2013-02483-CCA-R3-CDrecord and applicable law, we affirm the judgments of the trial court.

I concur in the results reached in the majority opinion. I do not join in that portion of the opinion which holds that admission into evidence of the autopsy report itself was not a violation of the Confrontation Clause.

This is a case alleging negligence by the defendants which resulted in injury to a patient, Dennis Smith. Following hernia surgery, Mr. Smith was fitted for a wound vacuum because an infection had developed at the surgical site. A sponge was placed to absorb the infection. The defendants removed the wound vacuum when the infection dissipated, but they failed to remove the sponge, which later caused the wound to burst. Mr. Smith filed suit, and the defendants asserted that dismissal was appropriate because Mr. Smith had not complied with the filing requirements of the health care liability statute. Mr. Smith 1 responded that his complaint sounded in ordinary negligence, not health care liability. The trial court agreed and denied the motions but also granted permission for the defendants to pursue an interlocutory appeal. We granted the application for permission to appeal and now reverse the decision of the trial court.

The defendant, James Stubblefield, III, appeals the sentencing decision of the trial court following the revocation of his community corrections sentence. The defendant pled guilty to aggravated burglary, forgery, and driving on a revoked license. He was subsequently sentenced to an effective four-year community corrections sentence as a Range I, standard offender. A violation warrant issued alleging that the defendant had violated the terms and conditions of his community corrections agreement. Following a hearing, the trial court found the defendant to be in violation and revoked the community corrections sentence, ordering that the balance of the four-year sentence be served in incarceration. On appeal, the defendant does not contest the revocation of community corrections itself. Instead, he challenges only the trial court’s decision to order service of the entire sentence in confinement. Following review of the record, the decision of the trial court is affirmed.

The defendant, Lemaricus Devall Davidson, appeals the Knox County Criminal Court jury convictions of two counts of first degree murder, two counts of especially aggravated robbery, two counts of especially aggravated kidnapping, three counts of aggravated rape, and one count of facilitation of aggravated rape that he received for his role in the January 2007 deaths of C.N. and C.C. The defendant claims that: the trial court 2 erred by refusing to suppress evidence obtained during the searches of his residence, his statements to the police following his arrest, and evidence obtained during searches of his person; the trial court erred by admitting into evidence postmortem photographs of the victims; the trial court should have excluded testimony and evidence regarding fingerprint examination and ballistics testing; the trial court erred by permitting courtroom spectators to wear buttons emblazoned with photographs of the victims during the guilt phase; the State violated his constitutional rights by intercepting and examining privileged communications to and from his attorneys; structural constitutional error occasioned by the out-of-court behavior of the trial judge entitles him to a new trial; the second successor trial judge erred by concluding that he could fulfill the statutory duty of thirteenth-juror review; the evidence was insufficient to support his convictions; errors related to the presentment require dismissal of the charges; the trial court erred by permitting jurors to submit questions for the witnesses; the trial court erred by allowing spectators to remain in the courtroom while jurors reviewed the defendant’s videotaped statement as part of their deliberations; the trial court should have dismissed the presentment due to constitutional deficiencies in the jury venire; the trial court erred by refusing to allow him to present evidence of the economic costs associated with the implementation of the death penalty; and the trial court erred by excusing those jurors who were not “death qualified.” The defendant also raises a number of challenges to the death penalty in general and its application in this case specifically. Because we conclude that no reversible error attends the convictions or sentences in this case and because it is our view, after a mandatory review, that the sentences of death imposed in this case were not disproportionate, we affirm the judgments of the trial court. We detect, however, clerical errors that require that the case be remanded for entry of corrected judgment forms.

We granted the State of Tennessee permission to appeal from the Court of Appeals’ decision on interlocutory appeal in which the intermediate appellate court affirmed the trial court’s order compelling discovery in this declaratory judgment action. The Plaintiffs are seeking a declaration that the lethal injection protocol in place for the execution of convicted criminal defendants sentenced to death is unconstitutional. In conjunction with pursuing their claim, the Plaintiffs sought to discover the identity of persons involved in facilitating and carrying out executions. Over the State’s objection, the trial court ordered the State to provide these identities to the Plaintiffs, and the Court of Appeals affirmed the trial court’s order. Upon due consideration, we reverse and remand this matter for further proceedings consistent with this Opinion and in compliance with the timelines set forth in the judgment order filed contemporaneously with this Opinion.

I concur in the conclusion reached by my colleagues that the identities of the John Doe defendants are not discoverable under Tennessee Rule of Civil Procedure 26.02(1). In my view,however, the majority opinion contains dicta that unnecessarily addresses several issues with far-reaching implications in death penalty litigation. Therefore, I must respectfully concur in the result only.

This appeal stems from the trial court’s finding that an implied partnership existed between Plaintiff and one of the Defendants with respect to a cattle-raising venture. Despite finding that the parties had already entered into a complete settlement regarding the partnership checking account and remaining partnership cattle, the trial court found that certain partnership assets had not been settled. The trial court’s final decree directed that Plaintiff be paid one- half of the fair market value of these assets, and stated that if no agreement could be reached concerning their value, the items should be sold and the proceeds divided equally. We affirm in part, reverse in part, and remand the case for further proceedings as are necessary and consistent with this Opinion.

In this grandparent visitation case, the trial court awarded grandparents visitation with the child at issue, finding that there was “some deprivation” of visitation by the child’s mother. We vacate the judgment of the trial court and remand for further proceedings to determine whether the child’s mother opposed visitation, as that phrase is defined in Huls v. Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219 (Tenn. Ct. App. Oct. 22, 2008).

An accountant appeals the dismissal of his petition for judicial review of an order of the Tennessee State Board of Accountancy. The trial court dismissed the petition for review for lack of subject matter jurisdiction. Because we find the petition for review was not timely filed, we affirm.

Appellant, Rico Vales, stands convicted of two counts of aggravated assault, Class C felonies, and being a felon in possession of a handgun, a Class E felony. He received concurrent sentences of fifteen years for each aggravated assault conviction and six years for the handgun conviction. Appellant raises two issues for our review: (1) whether the evidence was sufficient to support his conviction of aggravated assault against one of the victims and (2) whether his right to a trial by an impartial jury was violated by pre-trial contact between a juror and one of his witnesses and the prior acquaintance of the juror and that witness. Following our review, we affirm the judgments of the trial court.