April 27, 1999
Volume 5 -- Number 055

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):
 
03 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 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

		

STATE OF TENNESSEE
VS.
BOBBY CRUTCHER

Court:TSC

Attorneys: 

For the Appellant:                   For the Appellee:

John Knox Walkup                     Bryce C. Ruth, Jr.
Attorney General & Reporter          White House, Tennessee

Michael E. Moore
Solicitor General

Karen M. Yacuzzo
Assistant Attorney General                         

Judge:BARKER

First Paragraph:

This is an appeal by the State of Tennessee from the judgment of the
intermediate appellate court affirming the suppression of evidence in
the trial court below.  The sole issue is whether the warrantless
police search of the appellee's motorcycle violated his rights
guaranteed by the Fourth Amendment of the United States Constitution
and Article I, section 7 of the Tennessee Constitution.

http://www.tba.org/tba_files/TSC/Crtchrbc_opn.WP6



BRYANT DEWAYNE MILLEN VS. STATE OF TENNESSEE Court:TSC Attorneys: For Appellant: For Appellee: Leslie I. Ballin John Knox Walkup Mark A. Mesler Attorney General & Reporter BALLIN, BALLIN & FISHMAN, P.C. Memphis, Tennessee Michael E. Moore Solicitor General Daryl J. Brand Senior Counsel Criminal Justice Division Nashville, Tennessee At Trial: John W. Pierotti District Attorney General Thomas D. Henderson Assistant District Attorney General Memphis, Tennessee Judge:ANDERSON First Paragraph: We granted this appeal to determine whether one who intends to kill a specific person but instead kills an innocent bystander may be convicted of premeditated and deliberate first degree murder under the common law doctrine of "transferred intent." http://www.tba.org/tba_files/TSC/Millenb2_opn.WP6
BRYANT DEWAYNE MILLEN VS. STATE OF TENNESSEE ORDER Court:TSC Judge: PER CURIAM First Paragraph: The appellant, Bryant Dewayne Millen, through counsel, has filed a petition for rehearing in this appeal pursuant to Tenn. R. App. P. 39(a). A motion to proceed as amicus curiae and a brief in support of the appellant's petition for rehearing has been filed by the Tennessee Association of Criminal Defense Lawyers. http://www.tba.org/tba_files/TSC/Millen_ord.WP6
RANDALL CLYDE FOSTER VS. CAROLINA FREIGHT CARRIERS CORPORATION Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Christopher L. Vescovo Carla E. Ryan 2900 One Commerce Square 296 Washington Avenue Memphis, TN 38103 Memphis, TN 38103 Judge:TATUM 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. Plaintiff/Appellee, Randall Clyde Foster, sustained two successive on-the-job back injuries. He was treated for both injuries by Dr. Thomas D. Weems, a neurosurgeon. http://www.tba.org/tba_files/TSC_WCP/fosterrc_opn.WP6
GERALDINE HARRIS VS. SABH-MOR FLO INDUSTRIES, AMERICAN WATER HEATER GROUP, d/b/a AMERICAN WATER HEATERS EAST, INC. and ZURICH AMERICAN INSURANCE Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellees: Greg Holt J. Eddie Lauderback Seaton, Holt & Herrin Herndon, Coleman, Brading 926 W. Oakland Ave. & McKee Suite 220 104 E. Main Street Johnson City, Tenn. 37601 P.O. Box 1160 Johnson City, Tenn. 37605-1160 Judge:THAYER 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. The employee, Geraldine Harris, has appealed from the action of the trial court in dismissing her claim against her employer, Sabh-Mor Flo Industries. http://www.tba.org/tba_files/TSC_WCP/harrisge_wc.WP6
GEORGIA CROSS and NEWMAN CROSS VS. CITY OF MEMPHIS Court:TCA Attorneys: JONATHAN E. SCHARFF BRETT A. HUGHES HARRIS, SHELTON, DUNLAP & COBB, L.L.PC. Memphis, Tennessee Attorneys for Appellant CANNON F. ALLEN MONTE B. SERNEL ARMSTRONG ALLEN PREWITT GENTRY JOHNSTON & HOLMES, PLLC Memphis, Tennessee Attorneys for Appellees Judge:HIGHERS First Paragraph: Defendant City of Memphis ("City" or "Appellant") appeals the judgment of the trial court awarding Plaintiff Georgia Cross ("Mrs. Cross" or "Appellee") the sum of $130,000 for loss of enjoyment of life, permanent physical disability and pain and suffering arising from a slip and fall at a Memphis public library, and awarding Newman Cross ("Mr. Cross" or "Appellee") $118,300 for his past and future loss of consortium and services of his wife, Mrs. Cross ($39,500 past loss, $78,000 future loss) . http://www.tba.org/tba_files/TCA/crossg_opn.WP6
WARNER B. DUNLAP AND WARNER B. DUNLAP, M.D., P.C. VS. RICHARD AYERS, GAULDIN & AYERS, S. C. & M. PROPERTIES, INC. AND TOM COPELAND Court:TCA Attorneys: Mimi Phillips, PHILLIPS, HOWARD & GRUBB, Memphis, Tennessee Attorney for Plaintiffs/Appellants. Jerry O. Potter, CHAPMAN SELLERS MORROW, Memphis, Tennessee Attorney for Defendants/Appellees Richard Ayers and Gauldin & Ayers. Jerry Kizer, Jr., Patrick W. Rogers, RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C., Jackson, Tennessee Attorneys for Defendant/Appellee S. C. & M. Properties, Inc. Sam J. Watridge, Humboldt, Tennessee Attorney for Defendant/Appellee Tom Copeland. Judge:FARMER First Paragraph: In this action for accountant malpractice, Plaintiffs Warner B. Dunlap and Warner B. Dunlap, M.D., P.C., appeal the trial court's order entering summary judgment in favor of Defendants/Appellees Richard Ayers, Gauldin & Ayers, S. C. & M. Properties, Inc., and Tom Copeland. We reverse the trial court's judgment based upon our conclusion that the trial court erred in ruling that the Plaintiffs' action against the Defendants was barred by the one-year statute of limitations applicable to accountant malpractice actions. http://www.tba.org/tba_files/TCA/dunlapwb_opn.WP6
STATE OF TENNESSEE ex rel FINKELSTEIN, KERN, STEINBERG and CUNNINHAM VS. JOHN A. DONALD Court:TCA Attorneys: Ron E. Cunningham of Knoxville For Plaintiff-Appellant Donnie E. Wilson, Shelby County Attorney Robert B. Rolwing, Assistant County Attorney For Defendant-Appellee Judge:CRAWFORD First Paragraph: This appeal involves a mandamus action. Plaintiff, State of Tennessee ex rel Finkelstein, Kern, Steinberg and Cunningham, (hereinafter referred to as plaintiff or Finkelstein) appeals the order of the trial court dismissing its complaint against defendant, John A. Donald (hereinafter referred to as defendant or Donald), for failure to state a claim upon which relief can be granted. http://www.tba.org/tba_files/TCA/finkelst_opn.WP6
STATE OF TENNESSEE VS. BERNARD T. ANDERSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LEE WILSON JOHN KNOX WALKUP 200 Jefferson Ave, Ste. 800 Attorney General & Reporter Memphis, TN 38103 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General EDGAR PETERSON, IV Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge:WOODALL First Paragraph: The Defendant, Bernard T. Anderson, appeals as of right from his conviction for first degree murder in the Shelby County Criminal Court. Following the sentencing phase of the trial, the jury sentenced the Defendant to life imprisonment without the possibility of parole. http://www.tba.org/tba_files/TCCA/andrsnbt_opn.WP6
STATE OF TENNESSEE VS. MARVIN BEDFORD Court:TCCA Attorneys: For the Appellant: For the Appellee: AC Wharton, Jr. Michael E. Moore Shelby County Public Defender Solicitor General Tony N. Brayton Patricia C. Kussmann Asst. Public Defender Assistant Attorney General 201 Poplar, Suite 2-01 Criminal Justice Division Memphis, TN 38103 425 Fifth Avenue North 2d Floor, Cordell Hull Building (ON APPEAL) Nashville, TN 37243-0493 Barry W. Kuhn William L. Gibbons Attorney at Law District Attorney General 5100 Stage Road Memphis, TN 38134 James J. Challen, III Asst. District Attorney General (AT TRIAL) Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge:HAYES First Paragraph: The appellant, Marvin Bedford, appeals as of right his conviction by a Shelby County jury for aggravated robbery, a class B felony. The appellant was sentenced to eight years confinement in the Department of Correction. In this appeal, he raises as error: I. The trial court's ruling that the appellant's prior convictions could be used by the State for impeachment purposes should the appellant testify; and II. The sufficiency of the convicting evidence. Finding no error of law requiring reversal, we affirm the judgment entered by the trial court. http://www.tba.org/tba_files/TCCA/bedfordm_opn.WP6
AARON BRYANT VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROGER K. SMITH JOHN KNOX WALKUP 104 Woodmont Boulevard Attorney General and Reporter Nashville, TN 37205 MARVIN E. CLEMENTS, JR. WILLIAM M. KALUDIS Assistant Attorney General 211 Third Avenue North 425 Fifth Avenue North Nashville, TN 37201 Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General STEVE DOZIER Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201 Judge:WELLES First Paragraph: The Defendant, Aaron Bryant, appeals the denial of his petitions for post-conviction and habeas corpus relief. Defendant pleaded guilty on February 2, 1995 to aggravated sexual battery, and the trial court sentenced him to ten years as a Range I offender. On September 20, 1996, he filed a petition for post-conviction relief challenging the validity of the indictment returned by the Davidson County Grand Jury for failing to state the applicable mens rea. On October 30, 1996, Defendant filed an amended petition for writ of habeas corpus. http://www.tba.org/tba_files/TCCA/bryantaa_opn.WP6
ROCKY LEE COKER VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT S. PETERS JOHN KNOX WALKUP 100 First Ave., Southwest Attorney General & Reporter Winchester, TN 37398 -and- DARYL J. BRAND JOSEPH E. FORD Asst. Attorney General 17 South College St. John Sevier Bldg. Winchester, TN 37398 425 Fifth Ave., North Nashville, TN 37243-0493 J. MICHAEL TAYLOR District Attorney General 265 Third Ave., Suite 300 Dayton, TN 37321 Judge:PEAY First Paragraph: The petitioner, who was convicted of first-degree murder and sentenced to death, petitioned for post-conviction relief. The post-conviction court granted relief in part, dismissed the balance of the petition, and remanded for resentencing. Following the resentencing hearing, the petitioner appealed. We dismiss the defendant's appeal because it was not timely perfected. http://www.tba.org/tba_files/TCCA/cokerrl_opn.WP6
STATE OF TENNESSEE VS. ROBERT DEWAYNE CRISWELL Court:TCCA Attorneys: FOR THE APPELLANT: JOHN KNOX WALKUP Attorney General and Reporter DARYL J. BRAND Associate Solicitor General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 LAWRENCE RAY WHITLEY District Attorney General CARA E. LOEFFLER Assistant District Attorney General 113 West Main Street Gallatin, TN 37066-2803 FOR THE APPELLEE: C. EDWARD FOWLKES 172 Second Avenue North Suite 204 Nashville, TN 37201-1908 Judge:RILEY First Paragraph: The state appeals the dismissal of defendant's indictment on the basis of the statute of limitations. In December 1997, the Sumner County Grand Jury returned an indictment against defendant charging him with misdemeanor stalking of his ex-wife between July 1996 and July 1997. Defendant's motion to dismiss the indictment based upon the expiration of the statute of limitations was granted by the trial court. This Court concludes the trial court erred, and REVERSES and REMANDS for further proceedings. http://www.tba.org/tba_files/TCCA/criswell_opn.WP6
STATE OF TENNESSEE VS. SHAUN MATTHEW DINWIDDIE Court:TCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN KNOX WALKUP CLIFFORD K. McGOWN, JR. Attorney General & Reporter 113 North Court Square P.O. Box 26 DOUGLAS D. HIMES Waverly, TN 37185 Asst. Attorney General (On Appeal) John Sevier Bldg. 425 Fifth Ave., North GEORGE GOOGE Nashville, TN 37243-0493 District Public Defender JERRY WOODALL JOSEPH L. PATTERSON District Attorney General Asst. District Public Defender 227 West Baltimore St. SHAUN A. BROWN Jackson, TN 38301 Asst. District Attorney General (At Trial & Of Counsel on Appeal) P.O. Box 2825 225 Martin Luther King, Jr., Dr. Jackson, TN 38302 Judge:PEAY First Paragraph: The defendant was charged by indictment with possession with intent to sell marijuana, possession with intent to deliver marijuana, and possession of drug paraphernalia. The State denied the defendant pretrial diversion, a decision which the trial court reversed after a hearing. The State now appeals, arguing that the trial court erred in granting pretrial diversion to the defendant. Following a review of the record, we reverse the trial court's entry of pretrial diversion and remand the case for further proceedings. http://www.tba.org/tba_files/TCCA/dinwiddi_opn.WP6
STATE OF TENNESSEE VS. LESLIE HEREFORD Court:TCCA Attorneys: FOR THE APPELLANT: LIONEL R. BARRETT, JR. Washington Square, Suite 418 222 Second Avenue North Nashville, TN 37201 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter ELIZABETH B. MARNEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General WILLIAM R. REED Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201-1649 Judge:RILEY First Paragraph: Defendant, Leslie Hereford, pled guilty to four counts of rape, Class B felonies. The trial court sentenced defendant to eight years as a Range I standard offender on each count. The court ordered three of the counts to run consecutively for an effective sentence of twenty-four years. Defendant appeals the imposition of three consecutive sentences and asks this Court to modify the trial court's decision to reflect an effective sentence within the range of twelve to sixteen years. We decline to do so and AFFIRM the sentence as imposed by the trial court. http://www.tba.org/tba_files/TCCA/hereford_opn.WP6
STATE OF TENNESSEE VS. VERNON LOVE (aka Vernale Love) Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RAMSDALE O'DeNEAL JOHN KNOX WALKUP 118 E. Baltimore St. Attorney General & Reporter Jackson, TN 38301 ELIZABETH T. RYAN Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493 ROBERT RADFORD District Attorney General ELEANOR CAHILL Asst. District Attorney General 111 Church St. Huntingdon, TN 38344 Judge:PEAY First Paragraph: The defendant was convicted by a jury of two counts of selling a controlled substance. The trial court sentenced the defendant as a multiple offender to a term of eight years on each count to run concurrently and to be served in the Tennessee Department of Correction. The defendant's subsequent motion for a new trial was denied by the trial court. http://www.tba.org/tba_files/TCCA/lovever_opn.WP6

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