July 06, 1999 Volume 5 -- Number 093 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):   04 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 09 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   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink STATE OF TENNESSEE VS. JERRY WAYNE EDISON Court:TSC Attorneys: For Appellant: For Appellee: LU ANN BALLEW JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter Dandridge, TN MICHAEL E. MOORE Solicitor General MICHAEL J. FAHEY, II Assistant Attorney General Nashville, TN AL C. SCHMUTZER, JR. District Attorney General JAMES L. GASS Assistant District Attorney General Sevierville, TN Judge:BIRCH First Paragraph: We granted this Tenn. R. App. P. 11 appeal to determine the appropriate standard of review of a trial court's decision to admit a breath-alcohol test result under State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). The Court of Criminal Appeals held that the trial court had not abused its discretion in admitting the test result of the defendant, Jerry Wayne Edison. We affirm the judgment of the intermediate appellate court and conclude that a trial court's Sensing decision must be presumed correct on appeal unless the preponderance of the evidence is to the contrary. http://www.tba.org/tba_files/TSC/Edisonj_opn.WP6 STATE OF TENNESSEE VS. JAMES R. LEMACKS Court:TSC Attorneys: For the Appellant: For the Appellee: John Knox Walkup J.P. Bradley Attorney General & Reporter Waverly, Tennessee Michael E. Moore Solicitor General Daryl J. Brand Senior Counsel Assistant Attorney General Nashville, Tennessee Judge:BARKER First Paragraph: We granted this appeal by the State of Tennessee to address the issue of jury unanimity in cases where the State relies on alternative theories of guilt to convict an accused under a single count indictment. In this case, the appellee, James Lemacks, was charged with driving under the influence of an intoxicant (DUI). The trial court instructed the jury that it could convict the appellee of DUI based upon evidence that he operated his automobile while intoxicated or that he was criminally responsible for allowing his friend, Clinton Sanchez, to drive the automobile while intoxicated. The jury returned a general verdict convicting the appellee of DUI. http://www.tba.org/tba_files/TSC/Lemckjrl_opn.WP6 DISSENTING OPINION http://www.tba.org/tba_files/TSC/Lemacksj_dis.WP6 STATE OF TENNESSEE VS. DONALD RAY MIDDLEBROOKS Court:TSC Attorneys: For Appellant: For Appellee: Lionel R. Barrett, Jr. John Knox Walkup Nashville, Tennessee Attorney General & Reporter Richard McGee Michael E. Moore Nashville, Tennessee Solicitor General Kathy Morante Deputy Attorney General Nashville, Tennessee At Trial: Victor S. Johnson III District Attorney General Roger D. Moore Assistant District Attorney General John C. Zimmerman Assistant District Attorney General Nashville, Tennessee Judge:ANDERSON First Paragraph: This case is before us for automatic review of the Court of Criminal Appeals' affirmance of a death sentence imposed upon Donald Ray Middlebrooks in a Davidson County resentencing hearing for first degree murder. http://www.tba.org/tba_files/TSC/Middlebr_opn.WP6 STATE OF TENNESSEE VS. RICHARD ALLEN Court:TCCA Attorneys: FOR THE APPELLANT: MARK J. FISHBURN TOMMY OVERTON 213 Third Avenue N Nashville, TN 37201-1603 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter TIMOTHY BEHAN ELIZABETH T. RYAN Assistant Attorneys General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General ROGER D. MOORE PAUL DEWITT Asst. District Attorneys General Washington Square, Suite 500 222 Second Avenue South Nashville, TN 37201-1649 Judge:RILEY First Paragraph: Defendant, Richard Allen, was indicted for the first degree murders of David Lee Day and James Kevin Huckaby. A Davidson County jury convicted the defendant of the lesser offense of second degree murder of David Lee Day and acquitted him of the Huckaby homicide. The trial court sentenced him as a Range I standard offender to twenty-five years incarceration. In this appeal as of right, defendant contends that his conviction must be reversed because of insufficient evidence to corroborate the testimony of an accomplice. The state prosecuted this accomplice for first degree murder, sought the death penalty, and allowed him to plead guilty to second degree murder during the accomplice's trial. The state has now changed its position and argues that he was not an accomplice. This is, however, impermissible. Since this felon-accomplice provided the only testimony linking the defendant to the crime, the long-standing, firmly established law in this state requires us to REVERSE the conviction. http://www.tba.org/tba_files/TCCA/Allenr_opn.WP6 JAY WILL KILBY VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS JOHN KNOX WALKUP District Public Defender Attorney General and Reporter PAULA R. VOSS (on appeal) ELLEN H. POLLACK JOHN HALSTEAD (at trial) Assistant Attorney General Assistant Public Defender 425 Fifth Avenue North 1209 Euclid Avenue Nashville, TN 37243 Knoxville, TN 37921 RANDALL E. NICHOLS District Attorney General ROBERT L. JOLLEY Assistant District Attorney City-County Building Knoxville, TN 37902 Judge:SMITH First Paragraph: On October 31, 1991, Appellant Jay Will Kilby filed a petition for post-conviction relief. On January 15, 1998, the post-conviction court conducted a hearing on the petition. That same day, the post-conviction court dismissed the petition. Appellant challenges the dismissal of his petition for post-conviction relief, raising the following issues: 1) whether the post-conviction court erred when it found that the trial court properly imposed consecutive sentences for Appellant's six underlying felony convictions following the reversal of Appellant's six habitual criminal convictions; and 2) whether the post-conviction court erred when it found that the trial court properly allowed the State to file an amended notice of intent to seek enhanced punishment prior to resentencing. After a review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/Kilbyjay_opn.WP6 STATE OF TENNESSEE VS. DONALD RAY MIDDLEBROOKS Court:TCCA Attorneys: FOR APPELLANT: FOR APPELLEE: Lionel R. Barrett, Jr. John Knox Walkup Washington Square Two, Suite 418 Attorney General & Reporter 222 Second Avenue North Nashville, TN 37201 Michael E. Moore Solicitor General Richard McGee 601 Woodland Street Kathy Morante Nashville, TN 37206 Deputy Attorney General 425 Fifth Avenue North Cordell Hull Bldg, Second Floor Nashville, TN 37243-0493 Victor S. Johnson III District Attorney General Roger D. Moore Asst District Attorney General John C. Zimmerman Asst District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 Judge:WITT First Paragraph: The appellant contends that the state was improperly allowed to introduce irrelevant and inflammatory evidence tending to exploit its belief that the murder of the victim was based upon the appellant's racist beliefs. Specifically, the appellant objects to the testimony of Shannon Stewart, who testified that he had conversations with the appellant on the morning of the crime in which the appellant expressed racial animosity. The appellant contends that the prosecutor's closing argument also improperly called on the jury to impose the death penalty because of the appellant's racist beliefs. We find this issue to be without merit. http://www.tba.org/tba_files/TCCA/Middlebr_apx.WP6 STATE OF TENNESSEE VS. WILLIAM MOORE Court:TCCA Attorneys: For the Appellant: For the Appellee: Lu Ann Ballew Paul G. Summers Asst. Public Defender Attorney General and Reporter P. O. Box 416 Dandridge, TN 37725 Clinton J. Morgan Assistant Attorney General Edward C. Miller Criminal Justice Division Public Defender 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Alfred C. Schmutzer, Jr. District Attorney General James L. Gass and Charles Murphy Asst. District Attorneys General Sevier County Courthouse Suite 301 Sevierville, TN 37862 Judge:HAYES First Paragraph: The appellant, William Moore, appeals the sentencing decision of the Jefferson County Criminal Court following his June 1998 guilty plea to one count of aggravated assault, a class C felony. Specifically, the appellant contends that the trial court erred by ordering him to serve his three year sentence in the Tennessee Department of Correction. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Moorewil_opn.WP6 JAMES RICHARD ROMINE VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP 113 North Court Square Attorney General and Reporter P. O. Box 26 Waverly, TN 37185 MARVIN E. CLEMENTS, JR. (On appeal only) Assistant Attorney General 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243 W. MICHAEL McCOWN District Attorney General WEAKLEY E. BARNARD Assistant District Attorney General 17th Judicial District P. O. Box 878 Fayetteville, TN 37334 Judge:WILLIAMS First Paragraph: The petitioner, James Richard Romine, appeals from the trial court's dismissing his claim for post-conviction relief. In the Lincoln County Circuit Court, Romine pleaded guilty to second degree murder and is presently serving a sentence of twenty years in the Tennessee Department of Correction. He is ineligible for release until he completes eighty-five percent of that sentence. The petitioner filed a petition for post-conviction relief, claiming ineffective assistance of counsel, and the post-conviction court, finding that the pertinent statute of limitations barred the claim, dismissed the petition. We AFFIRM the trial court's dismissal. http://www.tba.org/tba_files/TCCA/Rominejr_opn.WP6 STATE OF TENNESSEE VS. DAVID ALLEN SNOWDEN Court:TCCA Attorneys: For the Appellant: For the Appellee: Johnny D. Houston, Jr. Paul G. Summers Houston & Warren Attorney General and Reporter Suite 402, Flatiron Bldg. 707 Georgia Avenue Marvin S. Blair, Jr. Chattanooga, TN 37402-2048 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 William H. Cox III District Attorney General Bates Bryan Asst. District Attorney General City and County Courts Building 600 Market Street Chattanooga, TN 37402 Judge:HAYES First Paragraph: The appellant, David Allen Snowden, appeals from a judgment of conviction entered by the Hamilton County Criminal Court. The appellant entered a best interest guilty plea on February 2, 1998, to possession of cocaine for resale, a class B felony, see Tenn. Code Ann. 39-17-417(c)(1) (1996 Supp.), reserving the right to appeal as a certified question of law the trial court's denial of his motion to suppress. See Tenn. R. App. P. 3(b); Tenn. R. Crim. P.37(b). Specifically, he argues that the police lacked either reasonable suspicion or probable cause to initiate seizure of his person. http://www.tba.org/tba_files/TCCA/Snowdavi_opn.WP6 STATE OF TENNESSEE VS. DARRICK WATKINS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GUY R. DOTSON, JR. JOHN KNOX WALKUP 102 South Maple Street Attorney General & Reporter Murfreesboro, TN 37130 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM C. WHITESELL, JR. District Attorney General PAUL A. HOLCOMBE, III Assistant District Attorney General 20 North Public Square, Suite 303 Murfreesboro, TN 37130 Judge:WILLIAMS First Paragraph: The defendant, Darrick Watkins, appeals from a Rutherford County jury verdict convicting him of the sale of less than .5 grams of cocaine, a Class C felony. See Tenn. Code Ann. S 39-17-417(a), (c)(2). The trial judge sentenced the defendant to eleven years in the Tennessee Department of Correction, to be served consecutively to sentences on two prior convictions for the sale of controlled substances. On this appeal, the defendant argues (1) that the evidence at trial was insufficient to support the jury's finding of guilt and (2) that the trial court erred in denying his motion for a new trial based on the state's allegedly discriminatory use of a peremptory challenge during jury selection. The state cross-appeals, arguing that the trial court failed to accord sufficient weight to certain enhancement factors and, therefore, that the defendant's sentence does not appropriately reflect the seriousness of his offense. We AFFIRM the judgment of the trial court in all respects. http://www.tba.org/tba_files/TCCA/Watkinsd_opn.WP6 STATE OF TENNESSEE VS. TERRENCE T. WIGGINS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: KARL DEAN PAUL G. SUMMERS District Public Defender Attorney General & Reporter JEFFREY A. DEVASHER LUCIAN D. GEISE LAURA C. DYKES Assistant Attorney General Assistant Public Defenders 425 Fifth Avenue North 1202 Stahlman Building Nashville, TN 37243 Nashville, TN 37201 VICTOR S. (TORRY) JOHNSON III District Attorney General MARIAN FORDYCE MARY CAMPBELL Asst District Attorneys General 222 Second Avenue North, Suite 500 Nashville, TN 37201 Judge:WILLIAMS First Paragraph: The defendant, Terrence T. Wiggins, was convicted of attempt to commit voluntary manslaughter and felony reckless endangerment and sentenced to concurrent terms of seven and three years, respectively. The trial court then ordered split confinement with twenty-one months confinement and the balance on probation. On this appeal, the defendant argues that the trial court misapplied certain enhancement factors and that his sentences are, therefore, excessive. He further asserts that his confinement violates Tennessee Code Annotated S 40-35-306(a). We AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Wigginst_opn.WP6 STATE OF TENNESSEE VS. GREGORY CHARLES YOUNG Court:TCCA Attorneys: FOR THE APPELLANT: DAVID ALLEN DOYLE District Public Defender DANA L. SCOTT Assistant Public Defender 117 East Main Street Gallatin, TN 37066-2801 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter ELIZABETH B. MARNEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 LAWRENCE RAY WHITLEY District Attorney General C. WAYNE HYATT Assistant District Attorney General 113 West Main Street Gallatin, TN 37066-2803 Judge:RILEY First Paragraph: Appellant, GREGORY CHARLES YOUNG, appeals the denial of alternative sentencing by the trial court. On August 27, 1998, appellant pled guilty to robbery, a Class C felony, and received a Range I sentence of four years. Pursuant to the plea agreement, the trial court conducted a sentencing hearing to determine the manner of service at which it denied appellant's request for placement in a community corrections program. We AFFIRM the trial court's decision. http://www.tba.org/tba_files/TCCA/Younggc_opn.WP6 PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion-Flash free each day by e-mail? Anyone -- whether a TBA member or not is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 1999 Tennessee Bar Association