TBALink Opinion-Flash

November 9, 1998 -- Volume 4 -- Number 163

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
02-New Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02-New Opinion(s) from the Tennessee Court of Appeals
04-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink



STATE OF TENNESSEE
VS.
KEVIN BURNS

WITH APPENDIX

Court:TSC

Attorneys: 

For Appellant:                  For Appellee: 
Glenn I. Wright             John Knox Walkup
WILSON & WRIGHT         Attorney General & Reporter
Memphis, Tennessee
                        Michael E. Moore
                        Solicitor General

                        Kenneth W. Rucker
                        Assistant Attorney General
                        Nashville, Tennessee


                        At Trial:
                        John W. Pierotti
                        District Attorney General

                        Thomas D. Henderson
                        John Wheeler Campbell
                        Assistant District Attorney Generals
                        Memphis, Tennessee                         

Judge:ANDERSON

First Paragraph:

The defendant, Kevin Burns, was convicted of two counts of felony
murder and two counts of attempted felony murder.  The jury imposed
the death penalty for one of the felony murder convictions after
finding that evidence of an aggravating factor -- that the defendant
knowingly created a great risk of death to two or more persons other
than the victim murdered -- outweighed the evidence of mitigating
factors beyond a reasonable doubt.  The jury imposed a life sentence
for the other felony murder conviction.

URL:http://www.tba.org/tba_files/TSC/burnsk_opn.WP6
APPENDIX:
URL:http://www.tba.org/tba_files/TSC/burnsk_apx.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
KENNETH EUGENE TROUTMAN

Court:TSC

Attorneys:  

FOR APPELLANT:                      FOR APPELLEE:

John Knox Walkup                    Frederick M. Lance
Attorney General and Reporter       Johnson City

Michael E. Moore
Solicitor General

Gordon W. Smith
Associate Solicitor General
Nashville                        

Judge:HOLDER

First Paragraph:

While this case has ultimately been decided on a waiver issue, we
granted this appeal to take the opportunity to address two very
important issues of statutory construction in misdemeanor sentencing. 
The general issues may be framed as whether Tenn. Code Ann. S
40-35-209 and Tenn. Code Ann. S 40- 35-210 apply to misdemeanor
sentencing.  Specifically, the issues have been stated as:  (1) 
whether a trial judge must state on the record, pursuant to Tenn. Code
Ann. S 40-35-210(f), what enhancement or mitigating factors were
employed in setting the sentence length in a DUI case;  (2)  whether a
trial court must make specific findings on the record, pursuant to
Tenn. Code Ann S 40-35-209(c), when fixing the percentage of a
sentence to be served in incarceration under the misdemeanor
sentencing statute; and  (3)  whether the appellate court erred in
remanding this case for re-sentencing.  We hold that SS 40-35-209, -
210(f) are inapplicable to DUI sentencing and that the defendant's
sentences should be affirmed.

URL:http://www.tba.org/tba_files/TSC/troutken_opn.WP6
Opinion-Flash

BRENDA J. CROWDER, M.D.
VS.
BRENT D. LAING, M.D.

and

JOHN D. GREEN, M.D., DAVID  DOBYNS, FIRST MEDICAL GROUP
also known as FMG, INC., and HEALTH CARE CONSULTANTS, INC.,
doing business as HCI, INC.,
                           
BRENT D. LAING, M.D.
VS.
BRENDA J. CROWDER, M.D.

Court:TCA

Attorneys:    

For Appellant                   For Appellee

MARK S. DESSAUER                LOIS B. SHULTS
Hunter, Smith & Davis           Shults & Shults
Kingsport, Tennessee            Erwin, Tennessee                      

Judge:SUSANO

First Paragraph:

We granted the Rule 9, T.R.A.P., application of the appellant, Brent
D. Laing, M.D. ("Laing"), in order to review the propriety of the
trial court's denial of Laing's motion to amend his answer filed in
litigation instituted against him and others by the appellee, Brenda
J. Crowder, M.D. ("Crowder").  In the same order, we consolidated that
interlocutory appeal with the appeal of Laing's separate suit against
Crowder, which latter appeal is before us as of right.  See Rule 3(a),
T.R.A.P.  The claims asserted by Laing in the second suit are
identical to those in the counterclaim which Laing attempted to
pursue, albeit unsuccessfully, in the earlier litigation.  We reverse
the trial court's denial of Laing's motion to amend in the first suit.
 We dismiss, as moot, the appeal of Laing's subsequent suit against
Crowder.

URL:http://www.tba.org/tba_files/TCA/laingbd_opn.WP6
Opinion-Flash

DAN W. WILKINS and FRANCES WILKINS
VS.
DODSON, PARKER, SHIPLEY, BEHM & SEABORG, A partnership, and
HARLAN DODSON, III, PAUL S. PARKER, MARIETTA L. SHIPLEY,
MARGARET BEHM, and JON P. SEABORG, Individually

Court:TCA

Attorneys:      

Dan W. Wilkins, Pro Se

Winston S. Evans,
Dennis J. Meaker,
EVANS, JONES & REYNOLDS, Nashville, Tennessee
Attorneys for Defendants/Appellees.                    

Judge:FARMER

First Paragraph:

This is a legal malpractice case.  The malpractice action arose out of
a lender liability lawsuit that was dismissed by the trial court
because it had not been filed within the limitations period. 
Dismissal of the underlying lawsuit was affirmed on appeal by the
Middle Section of this Court.  Wilkins v. Third National Bank in
Nashville, 884 S.W.2d 758 (Tenn. App. 1994), cert. denied, (Sept. 26,
1994).  While not in the record before us, the facts of the underlying
lawsuit contained in the aforementioned decision of the Middle Section
will be helpful in understanding the facts of this appeal.

URL:http://www.tba.org/tba_files/TCA/wilkinsd_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
GEORGE MILTON BROOKS

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

H. Tod Taylor                   John Knox Walkup
Asst. Public Defender           Attorney General and Reporter
208 N. Mill Avenue  
P. O. Box 742                   Clinton J. Morgan
Dyersburg, TN  38025-0742       Assistant Attorney General
                                Criminal Justice Division
                                425 Fifth Avenue North
                                2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493                
                        
                                C. Phillip Bivens
                                District Attorney General
                                P. O. Drawer E
                                Dyer County Courthouse
                                Dyersburg, TN  38025                         

Judge:HAYES

First Paragraph:

The appellant, George Milton Brooks, appeals from a judgment of
conviction entered by the Circuit Court of Dyer County.  The appellant
pled guilty to one count of rape of a child, a class A felony. 
Pursuant to the plea agreement, the trial court sentenced the
appellant to fifteen years incarceration in the Tennessee Department
of Correction.  As a condition of his plea, the appellant reserved the
right to appeal, as a certified question of law, the trial court's
denial of (1) his motion to suppress his statement to the police and
(2) his motion seeking permission to introduce prior sexual activity
of the victim pursuant to the "rape shield law," Tenn. R. Evid. 412. 
See Tenn.  R. App. P. 3(b);  Tenn.  R. Crim. P. 37(b).

After review of the record, the appeal is dismissed.

URL:http://www.tba.org/tba_files/TCCA/brooksgm_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
JOHN EDWARD CLARK

WITH CONCURRING OPINION

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                      FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR. (appeal only)   JOHN KNOX WALKUP
Attorney at Law                         Attorney General & Reporter
113 N. Court Square
Waverly, TN  37185                      GEORGIA BLYTHE FELNER
                                        Counsel for the State
GEORGE MORTON GOOGE                     425 Fifth Ave. N., 2d Floor
(at trial and of counsel on appeal)     Nashville, TN  37243-0493
District Public Defender            

STEPHEN P. SPRACHER                     JAMES G. (JERRY) WOODALL
(at trial and of counsel on appeal)     District Attorney General
Asst. Dist. Public Defender     
227 W. Baltimore St.                    JAMES W. THOMPSON
Jackson, TN  38301                      Asst. District Atty General
                                        P.O. Box 2825
                                        Jackson, TN  38302                         

Judge:WITT

First Paragraph:

The defendant, John Edward Clark, stands convicted of attempted
aggravated robbery and vandalism following his jury trial in the
Madison County Circuit Court.  He is presently incarcerated in the
Department of Correction serving the effective ten year sentence
imposed for his crimes.  In this direct appeal, Clark challenges (1)
the sufficiency of the indictment charging him with attempted
aggravated robbery in that it does not identify the victim, and (2)
the length of the sentence imposed for attempted aggravated robbery. 
After a review of the record, the briefs, and the applicable law, we
find the attempted aggravated robbery indictment fatally deficient,
although not for the reason advanced by the defendant.  As a result,
the prosecution is a nullity, and we have no jurisdiction to consider
the second issue.

URL:http://www.tba.org/tba_files/TCCA/clarkje_opn.WP6
CONCURRING OPINION:
URL:http://www.tba.org/tba_files/TCCA/clarkje_con.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
MARCUS A. TERRY

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          FOR THE APPELLEE:

Gerald Stanley Green        John Knox Walkup
147 Jefferson Avenue        Attorney General & Reporter
Suite 404                   425 Fifth Avenue North
Memphis, TN  38103          Nashville, TN  37243-0493
(On Appeal)
                            Peter M. Coughlan
Coleman W. Garrett          Assistant Attorney General
200 Jefferson Avenue        425 Fifth Avenue North
Suite 850                   Nashville, TN  37243-0493
Memphis, TN  38103
(At Trial)                  William L. Gibbons
                            District Attorney General
                            201 Poplar Avenue, Suite 301
                            Memphis, TN  38103-1947

                            Daniel R. Woody
                            Assistant District Attorney General
                            201 Poplar Avenue, Suite 301
                            Memphis, TN  38103-1947
    
                            Patience R. Branham
                            Assistant District Attorney General
                            201 Poplar Avenue, Suite 301
                            Memphis, TN  38103-1947                        

Judge:LAFFERTY

First Paragraph:

The appellant, Marcus Terry, referred herein as the defendant, appeals
as of right from the judgment of the Shelby County Criminal Court as a
result of a jury verdict finding him guilty of two counts of vehicular
homicide and assessing fines of $10,000 for each offense. The trial
court imposed sentences of fifteen years, as a career offender, for
each offense to run consecutively with a number of unrelated offenses.
The defendant presents two appellate issues:

1.  Whether or not the appellant's conviction must be reversed when
the evidence introduced at trial fairly raised either the defense of
duress and necessity but the state did not prove the non-applicability
of those defenses by proof beyond a reasonable doubt and only proved
the appellant's mental state of recklessness by circumstantial
evidence.

2.  Whether or not the trial court abused its discretion when the
trial court refused to accept the guilty plea of the appellant during
the trial, based on reasons unrelated to the voluntariness of the
appellant's plea.

After a review of the entire evidence in this record, the briefs of
the parties, and the applicable law, we affirm the trial court's
judgments.

URL:http://www.tba.org/tba_files/TCCA/terryma_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
LUTHER TOOTLE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

Andrew S. Johnston          John Knox Walkup
108 East Court Square       Attorney General & Reporter
Somerville, TN   38068          
                            Clinton J. Morgan
                            Counsel for the State
                            425 Fifth  Avenue North
                            2nd Floor, Cordell Hull Building
                            Nashville, TN   37243-0493

                            Elizabeth T. Rice
                            District Attorney General
                            302 Market Street
                            Somerville, TN   38068
                                
                            Jerry Norwood
                            Assistant District Attorney General
                            Hardeman County Courthouse
                            Bolivar, TN   38008                         

Judge:WEDEMEYER

First Paragraph:

The defendant pled nolo contendre to one count of attempted child rape
and two counts of sexual battery.  At the conclusion of the sentencing
hearing, the trial court sentenced the defendant to the minimum
sentence of eight years on the attempt to commit child rape conviction
and the minimum sentence of one year for each of the sexual battery
convictions and ordered the sentences to run concurrently.  The
defendant was sentenced as a Standard thirty percent (30%) Range I
Offender.  The trial court denied the defendant's request for
probation or alternative sentencing stating that said denial was based
on the sole factor that confinement is necessary to avoid depreciating
the seriousness of the offense.  In this appeal, the defendant argues
that the trial court erred in failing to grant probation and in
ordering the defendant to serve the sentences with the Tennessee
Department of Correction. Following our review of the record, we
affirm the trial court.

URL:http://www.tba.org/tba_files/TCCA/tootle_opn.WP6


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