September 13, 1999
Volume 5 -- Number 124

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):
 
02 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
03 New Opinion(s) from the Tennessee Court of Appeals
12 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


CAROLYN SUE IVEY
VS.
TRANS GLOBAL GAS & OIL,     
d/b/a BREAD BOX FOOD STORE,
STORE NO. 42

Court:TSC

Attorneys:                          
For the Appellant:                  For the Appellee:

David H. Dunaway                    Imogene A. King
Dunaway & Associates                Frantz, McConnell & Seymour, LLP
LaFollette, Tennessee               Knoxville, Tennessee

Judge:BARKER

First Paragraph:

In this workers' compensation action, the employee, Carolyn Sue Ivey
(plaintiff), filed a claim for relief based upon a chronic mental
disorder that arose after she was robbed at gunpoint while working at a
convenience store.  The trial court found that the plaintiff is
permanently and totally disabled, as defined in Tenn. Code Ann. S 50-6-
207(4)(B) (Supp. 1998), and awarded benefits to be paid until the
plaintiff reaches the age of sixty-five.

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



JAMES E. STEPHENS VS. HENLEY'S SUPPLY AND INDUSTRY, INC. and TRAVELERS INSURANCE COMPANY Court:TSC Attorneys: For Appellants: For Appellee: ROBERT J. UHORCHUK BARBARA G. FARIS Chattanooga, TN Decherd, TN Judge:BIRCH First Paragraph: The Chancery Court of Franklin County found the plaintiff, James E. Stephens, to be permanently and partially disabled and entitled to future medical care at the employer's expense. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn. Code Ann. S 50-6-225(e)(5)(Supp. 1998), found that Stephens failed to prove that he had suffered any permanent vocational disability due to his injury. The Panel dismissed his appeal, effectively foreclosing Stephens' entitlement to future medical expenses. http://www.tba.org/tba_files/TSC/STEPHENS_OPN.WP6
RETA J. BEST VS. DISTRIBUTION & AUTO SERVICES, INC. Court:TCA Attorneys: William Kennerly Burger, Murfreesboro, Tennessee Attorney for Plaintiff/Appellant. Larry G. Trail, Diana C. Benson, TRAIL & TRAIL, Murfreesboro, Tennessee Attorneys for Defendant/Appellee. Judge:FARMER First Paragraph: In this employment discrimination action, Plaintiff Reta J. Best appeals the trial court's judgment granting the motion for summary judgment filed by Defendant/Appellee Distribution & Auto Services, Inc. (DAS). We affirm the trial court's judgment based upon our conclusion that, even when viewed in the light most favorable to Best, the evidence fails to support Best's claim that DAS discriminated against her on the basis of her pregnancy. http://www.tba.org/tba_files/TCA/Bestrj_opn.WP6
JWT, L.P. VS. PRINTERS PRESS, INCORPORATED and BRITAINS, INC. Court:TCA Attorneys: DAVID S. ZINN, Suite 102 2000 Glen Echo Road Nashville, Tennessee 37215-2857 Attorney for Appellee MICHAEL K. RADFORD FLYNN & RADFORD, P.C. 214 Centerview Drive Suite 233, Shiloh Building Brentwood, Tennessee 37027 Attorney for Appellant Judge:FRANKS First Paragraph: In this declaratory action over the validity of an easement, the Trial Judge ruled in plaintiff's favor, and counter-plaintiff has appealed. Frank and Louise Becker owned property in Davidson County, which Louise had inherited from her brother, Frank Niederhauser. In 1969, Louise and Frank executed a power of attorney appointing their son Thomas Becker as their attorney-in-fact. Frank died in January of 1970, and Louise became the sole owner of the property. http://www.tba.org/tba_files/TCA/Jwtlp_opn.WP6
EDWARD CARL KNITTEL VS. STATE OF TENNESSEE DEPARTMENT OF SAFETY Court:TCA Attorneys: Paul G. Summers, Attorney Genreal & Reporter Michael E. Moore, Solicitor General William C. Bright, Assistant Attorney General For Appellee Judge:CRAWFORD First Paragraph: This appeal involves the review of a Tennessee Department of Safety administrative hearing. Edward Carl Knittel (Knittel), petitioner/appellant, appeals the order of trial court affirming the decision of the Tennessee Department of Safety suspending petitioner's driving privileges for failure to pay traffic fines. http://www.tba.org/tba_files/TCA/Knittele_opn.WP6
STATE OF TENNESSEE VS. COREY LAMAR CAMPBELL Court:TCCA Attorneys: For the Appellant: For the Appellee: Dale M. Quillen Paul G. Summers 95 White Bridge Road, Suite 208 Attorney General of Tennessee Nashville, TN 37205 and Marvin E. Clements, Jr. Asst Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Victor S. Johnson, III District Attorney General and James Milam Asst District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge:TIPTON First Paragraph: The defendant, Corey Lamar Campbell, appeals as of right from his conviction by a jury in the Davidson County Criminal Court for second degree murder, a Class A felony. He was sentenced to twenty years confinement in the Department of Correction. On appeal, the defendant contends that (1) the evidence is insufficient to support the conviction, and (2) the trial court erred by not charging the jury with the lesser offense of voluntary manslaughter. Because the trial court failed to instruct the jury on voluntary manslaughter, we must reverse the conviction and remand the case to the trial court for a new trial. http://www.tba.org/tba_files/TCCA/CAMPBELL_wpd.WP6
RANDALL ALLEN CANTRELL VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Randall Allen Cantrell, Paul G. Summers Pro Se Attorney General and Reporter Reg. #14900-075 F.C.I. Manchester P. O. Box 4000 Elizabeth B. Marney Manchester, KY 40962 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Judge:HAYES First Paragraph: The appellant, Randall Allen Cantrell, appeals the order of the Sumner County Criminal Court dismissing his pro se petition for post-conviction relief. In this appeal, the appellant raises multiple issues which collectively challenge the trial court's summary dismissal of the petition as being time-barred. http://www.tba.org/tba_files/TCCA/CANTRA_wpd.WP6
STATE OF TENNESSEE VS. SHAWN ROBERT COTTON Court:TCCA Attorneys: For the Appellant: For the Appellee: Robert P. Ballinger Paul G. Summers 601 Woodland Street Attorney General of Tennessee Nashville, TN 37206 and (AT TRIAL AND ON APPEAL) Daryl J. Brand Asst Attorney General of Tennessee 450 James Robertson Parkway John G. Oliva Nashville, TN 37243-0493 601 Woodland Street Nashville, TN 37206 Victor S. Johnson, III (ON APPEAL) District Attorney General and Bernie McEvoy Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge:TIPTON First Paragraph: The defendant, Shawn Robert Cotton, appeals as of right his conviction by a jury in the Davidson County Criminal Court for vehicular homicide by intoxication, a Class B felony. The trial court sentenced the defendant to serve twelve years in the Department of Correction as a Range I, standard offender. The defendant contends that: (1) the evidence is insufficient to support the conviction, (2) the trial court erred during voir dire by impliedly threatening to hold the jurors in contempt for perjury if they failed to return a verdict, (3) the state improperly struck African-American female jurors from the panel based upon their race and gender, (4) the state improperly commented upon the defendant's silence and improperly appealed to the jury's sympathy during argument, and (5) the cumulative effect of the errors violates the defendant's right to a fair trial. We affirm the trial court's judgment of conviction. http://www.tba.org/tba_files/TCCA/cottonsr_opn.WP6
STATE OF TENNESSEE VS. JIMMY FERGUSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PAUL G. SUMMERS JERRED A. CREASY Attorney General & Reporter 176 Second Avenue North, Ste 500 Nashville, TN 37201 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General EDWARD S. RYAN Assistant District Attorney General 222 Second Avenue North, Suite 500 Nashville, TN 37201-1649 Judge:GLENN First Paragraph: On July 6, 1994, the defendant, Jimmy Ferguson, was involved in a one-car accident. Warrants were issued that day, charging the defendant with driving under the influence and driving on a revoked license. He was indicted for these charges on March 30, 1998. There is no indication in the record that the state attempted to serve these warrants until March 30, 1998, when the defendant was arrested on other charges. The defendant was arraigned and pleaded not guilty on May 14, 1998. The trial court held a hearing on July 30, 1998, upon the defendant's motion to dismiss the two-count indictment on the grounds his right to a speedy trial and to due process of the law had been violated and the delay between issuing the warrants and serving the warrants constituted unjustifiable delay by the state. At the conclusion of the hearing, the trial court dismissed the indictment, and the state appealed. Based upon our review of the record and of applicable law, we reverse the decision of the trial court and reinstate the indictment. http://www.tba.org/tba_files/TCCA/FERGUSNJ_wpd.WP6
STATE OF TENNESSEE VS. ERIC BERNARD HOWARD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: THOMAS H. POTTER PAUL G. SUMMERS 100 Thompson Lane Attorney General & Reporter Nashville, TN 37211 LUCIAN D. GEISE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General JOHN ZIMMERMANN Assistant District Attorney Washington Sq., Ste. 500 Nashville, TN 37201 Judge:SMITH First Paragraph: On October 26, 1995, the Davidson County Grand Jury indicted Appellant Eric B. Howard for two counts of aggravated robbery. After a jury trial on November 17-18, 1997, Appellant was convicted of two counts of aggravated robbery. After a sentencing hearing on December 17, 1997, the trial court sentenced Appellant as a Range II multiple offender to consecutive terms of seventeen years for each conviction. Appellant challenges his convictions, raising the following issues: 1) whether the trial court erred when it ruled that certain evidence was irrelevant and inadmissible; 2) whether the evidence was sufficient to support one of the aggravated robbery convictions; and 3) whether incompetency by reason of addiction to a narcotic drug is a defense to aggravated robbery. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Howarder_opn.WP6
JAMES PHILLIP HUNTER VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: THOMAS F. BLOOM PAUL G. SUMMERS 500 Church Street Attorney General & Reporter 5th Floor Nashville, TN 37219 CLINTON J. MORGAN Counsel for the State 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General KYMBERLY HAAS Assistant District Attorney Washington Square, Ste. 500 Nashville, TN 37201-1649 Judge:SMITH First Paragraph: The petitioner, James Phillip Hunter, appeals the order of the Davidson County Criminal Court denying his petition for post-conviction relief. The petitioner is presently serving a life sentence as a result of his conviction for premeditated first degree murder in 1993. In 1997, the petitioner filed a post-conviction petition alleging, inter alia, ineffective assistance of trial counsel. The trial court found no merit to any of the petitioner's claims and accordingly denied the petition. On appeal, the petitioner claims that he received ineffective assistance of counsel at trial and on appeal. After a thorough review of the record before this Court, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/Huntephi_opn.WP6
JERMAINE LEJUANE HUNTER VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Jefre S. Goldtrap Paul G. Summers Attorney Attorney General and Reporter 207 Third Avenue, North Post Office Box 190599 Elizabeth T. Ryan Nashville, TN 37219-0599 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Victor S. (Torry) Johnson III District Attorney General Katy N. Miller and Nick Bailey Asst. District Attorneys General Washington Square, Suite 500 222 Second Avenue South Nashville, TN 37201 Judge: HAYES First Paragraph: The appellant, Jermaine LeJuane Hunter, appeals the Davidson County Criminal Court's dismissal of his petition for post-conviction relief. On January 11, 1995, the appellant was found guilty by a jury of first degree murder and received a life sentence in the Tennessee Department of Correction. His conviction and sentence were affirmed by this court on direct appeal. See State v. Jermaine Hunter, No. 01C01-9506-CR-00176 (Tenn. Crim. App. at Nashville, Aug. 22, 1996), perm. to appeal denied, (Tenn. Feb. 3, 1997). The appellant collaterally attacks his conviction for first degree murder upon grounds of ineffective assistance of counsel. Specifically, he contends that trial counsel was deficient for (1) failing to adequately prepare for trial and meet with the appellant; (2) failing to fully communicate with the appellant his vulnerability regarding sentencing; and (3) failing to investigate and utilize all possible alibi witnesses. After review of the record, we affirm the lower court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/HUNTERJL_wpd.WP6
STATE OF TENNESSEE VS. JAMES E. JACKSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARTIN G. SZEIGIS PAUL G. SUMMERS Attorney at Law Attorney General & Reporter 213 Third Ave. North Nashville, TN 37201 KIM R. HELPER Asst. Attorney General 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General JON SEABORG BERNIE McEVOY Asst. District Attorneys General Washington Square, Ste. 500 222 Second Ave. North Nashville, TN 37201 Judge:WITT First Paragraph: The defendant, James E. Jackson, was convicted in the Davidson County Criminal Court of the first degree murder of Michael Kennedy. He is presently serving a life sentence in the Department of Correction for his crime. In this direct appeal, Jackson claims that the evidence is legally insufficient to sustain his conviction. Upon review of the record, the briefs and oral arguments of the parties, and the law, we affirm. http://www.tba.org/tba_files/TCCA/Jacksonj_opn.WP6
STATE OF TENNESSEE VS. KENNETH LEE KENDRICK Court:TCCA Attorneys: For Appellant: For Appellee: Terry L. Jordan Paul G. Summers Assistant Public Defender Attorney General and Reporter P.O. Box 839 Blountville, TN 37617 Clinton J. Morgan Counsel for the State 425 Fifth Avenue North Nashville, TN 37243-0493 Joseph Eugene Perrin Asst District Attorney General P.O. Box 526 Blountville, TN 37617 Judge:WADE First Paragraph: The defendant, Kenneth Lee Kendrick, was convicted in a bench trial of knowingly taking marijuana into a penal institution. Tenn. Code Ann. S 39-16-201. The trial court imposed a Range I sentence of four years. http://www.tba.org/tba_files/TCCA/Kndrckkl_opn.WP6
STATE OF TENNESSEE VS. BRYAN A. MILAM Court:TCCA Attorneys: For the Appellant: For the Appellee: Lionel R. Barrett, Jr. Paul G. Summers Washington Square Two, Ste 418 Attorney General of Tennessee 222 Second Avenue North and Nashville, TN 37206 Daryl J. Brand (AT TRIAL AND ON APPEAL) Associate Solicitor General Criminal Justice Center David L. Raybin 425 Fifth Avenue North 424 Church Street, Suite 2210 Nashville, TN 37243 Nashville, Tennessee 37219 (ON APPEAL) T. Michael Bottoms District Attorney General Post Office Box 459 Lawrenceburg, TN 38464-0459 Judge:TIPTON First Paragraph: The defendant, Bryan A. Milam, appeals as of right from his convictions by a jury in the Wayne County Circuit Court for two counts of first degree murder. He was sentenced to life imprisonment for each count, to be served concurrently in the Department of Correction. The defendant contends that (1) the evidence is insufficient to support his convictions, and (2) that the trial court erred in its instruction to the jury on release eligibility dates. We reverse the convictions and remand the case for a new trial because of the improper instruction to the jury on the defendant's release eligibility date. At trial, Jaye McWilliams testified that between 7:00 p.m. and 7:18 p.m. on May 15, 1996, he heard a shot come from the residence of the defendant and the victim. He testified that after hearing the shot, a girl came running to his house and said, "Call 911. My brother has shot his wife." Mr. McWilliams testified that the Waynesboro Police Chief arrived after the child came over to his house. He said he saw the defendant carry his wife out of the house and ask for an ambulance. http://www.tba.org/tba_files/TCCA/MILAMB_wpd.WP6
STATE OF TENNESSEE VS. BETTY W. NORMAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CLIFTON N. MILLER PAUL G. SUMMERS Henry, McCord, Bean & Miller Attorney General and Reporter 300 North Jackson Street Tullahoma, TN 37388 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 MIKE MCCOWEN District Attorney General CHARLES CRAWFORD Assistant District Attorney P. O. Box 878 Fayetteville, TN 37334 Judge:SMITH First Paragraph: The appellant, Betty W. Norman, was convicted by a Moore County jury of two (2) counts of reckless endangerment, a Class E felony, and one (1) count of harassment, a Class A misdemeanor. The trial court sentenced the appellant as a Range I offender to consecutive terms of one (1) year and three (3) months and one (1) year and two (2) months for the reckless endangerment convictions. The appellant received a concurrent sentence of six (6) months for her conviction for harassment. The trial court ordered that the appellant serve her sentences in confinement. http://www.tba.org/tba_files/TCCA/NORMANBE_wpd.WP6
BRETT ALLEN PATTERSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN J. HOLLINS, JR. PAUL G. SUMMERS Hollins, Wagster & Yarbrough Attorney General & Reporter 424 Church Street 2210 SunTrust Center KIM R. HELPER Nashville, TN 37219 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 JOHN CARNEY District Attorney General ARTHUR BIEBER Assistant District Attorney 204 Franklin St., Suite 200 Clarksville, TN 37040 Judge:SMITH First Paragraph: On February 23, 1988, Petitioner Brett Allen Patterson was convicted of two counts of first degree murder, one count of first degree burglary, and one count of aggravated rape. On March 18, 1988, Petitioner received consecutive sentences of life, life, and forty years for the two first degree murder convictions and the aggravated rape conviction. Petitioner also received a concurrent ten year sentence for his first degree burglary conviction. Petitioner's convictions and sentences were upheld by this Court on December 8, 1989. Petitioner filed a petition for post-conviction relief on October 29, 1992; a first amended petition for post-conviction relief on November 5, 1993; a second amended petition for post-conviction relief on December 4, 1995; and a third amended petition for post-conviction relief on September 13, 1996. After a two day hearing on December 9, 1996, and April 4, 1997, the post-conviction court dismissed the petition. http://www.tba.org/tba_files/TCCA/PATTERBR_wpd.WP6

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