January 5, 1999
Volume 5 -- Number 002

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

This Issue (IN THIS ORDER):
01 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
08 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




First Paragraph:

The appellants, Gary D. Niblack and Laboratory Investments, Inc.,
d/b/a Gene Proof Technologies, have filed a Petition to Rehear issues
raised in this Court's opinion issued on November 16, 1998.  We have
reviewed all of the arguments raised in the petition, and we find them
to be without merit.

Accordingly, after due consideration, it is ORDERED that the Petition
to Rehear is denied.


DAVID MICHAEL HODGE VS. CIGNA INSURANCE COMPANIES Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Gregory D. Jordan Larry C. Sanders Jeffery G. Foster Sanders Law Office Rainey, Kizer, Butler, Reviere 42 South Main Street & Bell, P.L.C. Lexington, TN 38351 105 South Highland Avenue P.O. Box 1147 Jackson, TN 38302-1147 Judge:BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. S 50-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The trial court found the plaintiff to be totally and permanently vocationally impaired and entered judgment accordingly. The defendant contends the evidence preponderates against the trial judge's finding of total disability. We find the evidence does not preponderate against the finding of the trial judge and we affirm the judgment. http://www.tba.org/tba_files/TSC_WCP/hodgedav_opn.WP6
ESTATE OF SHIRLEY J. DANNENHOLD, by her Executrix, MARGARET HENSLEY VS. KNOXVILLE PATHOLOGY GROUP, P.C., CARTER MILLER, JR., M.D. and BRUCE BELLOMY, M.D. Court:TCA Attorneys: DONNA KEENE HOLT OF KNOXVILLE FOR APPELLANT EDWARD G. WHITE, II, and AMY V. HOLLARS OF KNOXVILLE FOR APPELLEES Judge:GODDARD First Paragraph: In this cause Shirley J. Dannenhold sues Knoxville Pathology Group, Carter Miller, Jr., M.D., and Bruce Bellomy, M. D., for medical malpractice incident to the misreading of a 1993 pap smear by Louise Geldmeier, who inaccurately issued a negative report rather than a positive one. http://www.tba.org/tba_files/TCA/Dannenhs_opn.WP6
STATE OF TENNESSEE VS. ROGER DALE BENNETT WITH CONCURRING OPINION Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: HERSHELL D. KOGER JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 131 N. 1st St. P. O. Box 1148 KAREN M. YACUZZO Pulaski, TN 38478 Assistant Attorney General Criminal Justice Division 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General P. O. Box 459, Lawrenceburg, TN 38464-0459 ROBERT C. SANDERS LAWRENCE R. NICKELL, JR. Assistant District Attorneys General P. O. Box 1619 Columbia, TN 38402-1619 Judge:WITT First Paragraph: On August 27, 1996, a Lawrence County jury convicted the defendant, Roger Dale Bennett, of second degree murder, a Class A felony. The trial court sentenced him to serve twenty-five years as a Range I, standard offender in the Department of Correction. The defendant appeals contending that the evidence was insufficient to sustain a conviction for second degree murder, that the trial court erred by failing to charge the jury with the lesser-included offense of reckless homicide, and that his sentence is excessive. We disagree with the defendant's claims and affirm the defendant's conviction and sentence. http://www.tba.org/tba_files/TCCA/bennetro_opn.WP6 CONCURRING OPINION: http://www.tba.org/tba_files/TCCA/bennetrd_con.WP6
STATE OF TENNESSEE VS. VICKIE R. HERRON, WANDA L. GRIFFIN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TONY N. BRAYTON JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 201 Poplar, Suite 2-01 Memphis, TN 38103 KENNETH W. RUCKER (Attorney for Vickie R. Herron) Assistant Attorney General 425 Fifth Avenue North MICHAEL E. SCHOLL Nashville, TN 37243-0493 200 Jefferson Avenue, Suite 202 Memphis, TN 38103 WILLIAM L. GIBBONS (Attorney for Wanda L. Griffin) District Attorney General JAMES A. WAX Assistant District Attorney 201 Poplar Avenue, Third Floor Memphis, TN 38103 Judge:SMITH First Paragraph: On June 20, 1996, a Shelby County jury convicted Appellants Vickie R. Herron and Wanda L. Griffin of aggravated robbery and aggravated assault. After a sentencing hearing on July 12, 1996, the trial court sentenced both Appellants as a Range I standard offenders to consecutive sentences of twelve years for aggravated robbery and six years for aggravated assault. http://www.tba.org/tba_files/TCCA/herronvi_opn.WP6
ISAIAH HIGGS VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Linda K. Parson, Attorney John Knox Walkup 511 Jackson Street Attorney General and Reporter Corinth, MS 38834 Marvin E. Clements, Jr. Assistant Attorney General Cordell Hull Building, 2d Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Glen Baity Assistant District Attorney General Criminal Justice Center, Third Floor 201 Poplar Avenue Memphis, TN 38103 Judge:WADE First Paragraph: The petitioner, Isaiah Higgs, appeals the trial court's denial of post-conviction relief. In this appeal of right, the petitioner claims that his guilty pleas were neither knowingly nor voluntarily entered. Because the evidence does not preponderate against the findings to the contrary by the trial court, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/higgsis_opn.WP6
STATE OF TENNESSEE VS. JAMES THOMAS JEFFERSON WITH DISSENTING OPINION Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Karl F. Dean John Knox Walkup Metro Public Defender Attorney General & Reporter Jeffrey A. DeVasher Timothy Behan Assistant Public Defender Assistant Attorney General 1202 Stahlman Building 425 Fifth Avenue North Nashville, TN 37201 Nashville, TN 37243-0493 Victor S. (Torry) Johnson III District Attorney General Roger Moore Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201 Judge:SUMMERS First Paragraph: The defendant was convicted by a jury of first degree premeditated murder; the same jury simultaneously sentenced him to forty years incarceration. On direct appeal this Court affirmed the defendant's conviction but remanded the matter for resentencing. See State v. Jefferson, 938 S.W.2d 1, 23 (Tenn. Crim. App. 1996). On remand the defendant was sentenced by a jury to life imprisonment. In this direct appeal the defendant contends that the trial court erred when it 1) denied his motion to impanel a jury to determine his guilt or innocence; 2) admitted into evidence the minute entry from the prior trial which showed the jury's verdict of guilty but from which had been redacted its imposition of the forty year sentence; and 3) instructed the jury that the only sentence it could impose was life imprisonment. Finding no merit in these complaints, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jefferso_opn.WP6 DISSENTING OPINION: http://www.tba.org/tba_files/TCCA/jeffersd_dis.WP6
BRUCE EDWARD LITTLE VS. STATE OF TENNESSEE WITH DISSENTING OPINION Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JONATHAN COLE JOHN KNOX WALKUP Baker, Donelson, Attorney General & Reporter Bearman & Caldwell 1700 Nashville City Center KAREN M. YACUZZO 511 Union Street Assistant Attorney General P.O. Box 190613 2nd Floor, Cordell Hull Building Nashville, TN 37219 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General JOHN C. ZIMMERMAN Assistant District Attorney General Washington Square 222 Second Avenue North, Suite 500 Nashville, TN 37201-1649 Judge:WOODALL First Paragraph: The Petitioner, Bruce Edward Little, appeals as of right from the trial court's dismissal of his petition for post-conviction relief following an evidentiary hearing. In his issues on appeal, the Petitioner argues that the indictment was constitutionally defective because it failed to allege a proper mens rea, he was denied the effective assistance of counsel at trial, evidence used against him at trial was seized pursuant to an invalid search warrant, and the post-conviction trial court should have recused himself from presiding over the post-conviction hearing. After review of the record, the briefs filed on behalf of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/littlebe_opn.WP6 DISSENTING OPINION: http://www.tba.org/tba_files/TCCA/littlebe_dis.WP6
STATE OF TENNESSEE VS. TERRY W. SMITH Court:TCCA Attorneys: For the Appellant: For the Appellee: G. Kline Preston, IV John Knox Walkup Washington Sq. Two, Ste 416 Attorney General of Tennessee 222 Second Avenue North and Nashville, TN 37201 Lisa A. Naylor Asst Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 Dan M. Alsobrooks District Attorney General Court Square, P.O. Box 580 Charlotte, TN 37036-0580 and James W. Kirby Assistant District Attorney General 105 Sycamore Street Ashland City, TN 37015 Judge:TIPTON First Paragraph: The defendant, Terry W. Smith, appeals as of right following his convictions in the Cheatham County Circuit Court for aggravated kidnapping and attempted aggravated rape, both Class B felonies. He was sentenced as a standard, Range I offender to ten years confinement in the custody of the Department of Correction for each conviction, to be served concurrently. http://www.tba.org/tba_files/TCCA/smithtw_opn.WP6
STATE OF TENNESSEE VS. DIMARKO BOJERE WILLIAMS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM C. BRIGHT JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 22nd Judicial District 128 North 2nd Street JANIS L. TURNER P. O. Box 1208 Counsel for the State Pulaski, TN 38478 450 James Robertson Parkway Nashville, TN 37243-0493 MIKE BOTTOMS District Attorney General ROBERT C. SANDERS Assistant District Attorney 10 Public Square, Box 1619 Columbia, TN 38401 Judge:SMITH First Paragraph: On April 16, 1996, a Maury County jury found Appellant, DiMarko Williams, guilty of second degree murder in the death of Shawn Woodard. As a standard Range I offender convicted of a Class A felony, the trial court sentenced Appellant to twenty-five years incarceration in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/willdima_opn.WP6
STATE OF TENNESSEE VS. TONY C. YOUNG Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A C WHARTON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter W. MARK WARD MARVIN E. CLEMENTS, JR. Asst. District Public Defender Asst. Attorney General Suite 2-01, 201 Poplar Ave. Cordell Hull Bldg., 2nd Fl. Memphis, TN 38103 425 Fifth Ave., North (On Appeal) Nashville, TN 37243 DONNA J. ARMSTARD WILLIAM L. GIBBONS -and- District Attorney General TERESA D. JONES Asst. District Public Defenders PATIENCE R. BRANHAM, 201 Poplar Ave., 2nd Fl. ROSEMARY ANDREWS, Memphis, TN 38103 -and- (At Trial) P.T. HOOVER Asst. District Attorneys General 201 Poplar Ave., 3rd Fl. Memphis, TN 38103 Judge:PEAY First Paragraph: On February 28, 1997, the defendant was found guilty by a jury of four counts of aggravated assault, one count of aggravated rape, one count of aggravated sexual battery, and one count of especially aggravated kidnapping. On May 16, 1997, the defendant was sentenced to an effective sentence of forty-three years imprisonment. The defendant then filed a motion for a new trial, which was overruled by the trial court. The defendant now appeals and argues that the evidence was insufficient to support his convictions. http://www.tba.org/tba_files/TCCA/youngtc_opn.WP6

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