October 19, 1999
Volume 5 -- Number 145

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):
 
00 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
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
 

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.
CRAIG STEPHEN BOURNE

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee:

Joseph S. Harrison              Paul G. Summers 
Office of the Public Defender   Attorney General and Reporter
P.O. Box 839
Blountville, TN  37617          Todd R. Kelley  
                                Assistant Attorney General
Gale K. Flanary                 425 Fifth Avenue North 
Assistant Public Defender       Second Floor, Cordell Hull Building
266 Blountville Bypass          Nashville, TN  37243-0493
Blountville, TN  37617
and                             Teresa Murray-Smith 
Gerald L. Gulley, Jr.           and 
Contract Appellate Defender     Greg Newman 
P.O. Box 1708                   Assistant District Attorneys General
Knoxville, TN  37901-1708       P.O. Box 526
(on appeal)                     Blountville, TN  37617                         

Judge: WADE

First Paragraph:

The defendant, Craig Stephen Bourne, was convicted of attempted second
degree murder, aggravated burglary, and especially aggravated
kidnaping.  The trial court imposed an eight-year sentence for
attempted second degree murder, a six-year sentence for aggravated
burglary, and a twenty-five year sentence for especially aggravated
kidnaping.  Because the sentences for attempted second degree murder
and especially aggravated kidnaping were ordered to be served
consecutively, the effective sentence is thirty-three years.  The
trial court imposed fines totaling $48,250.00 for the three offenses.

http://www.tba.org/tba_files/TCCA/bournecs.wpd



STATE OF TENNESSEE VS. CARY CARL CAUGHRON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: EDWARD CANTRELL MILLER PAUL G. SUMMERS District Public Defender Attorney General & Reporter SUSANNA LAWS-THOMAS GEORGIA BLYTHE FELNER Asst. District Public Defender Counsel for the State 102 Mims Ave. 425 Fifth Ave. North Newport, TN 37821-3614 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 ALFRED G. SCHMUTZER District Attorney General 125 Court Ave., Rm. 301-E Sevierville, TN 37862 Judge: WITT First Paragraph: The defendant, Cary Carl Caughron, is before this court for the third time for his convictions of four counts of felony murder, one count of aggravated arson, and one count of attempted first degree murder. He received his convictions at a jury trial in the Cocke County Circuit Court, and the jury set the punishment for each of the murder convictions at life imprisonment. Thereafter, the trial court imposed 25-year sentences for aggravated arson and attempted first degree murder. The court ordered the life sentences each served consecutively to each other, but concurrently to the aggravated arson and attempted first degree murder convictions. The defendant appealed, and we affirmed the convictions but modified the imposition of consecutive sentencing to concurrent service of all six sentences. See State v. Cary Caughron, No. 03C01-9310-CR-00181 (Tenn. Crim. App., Knoxville, Sept. 20, 1994) (Caughron I). Thereafter, the supreme court granted application to appeal for the purpose of remanding the case to this court for reconsideration in light of State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995) (consecutive sentencing). On remand, we found the record devoid of the necessary findings for reconsideration of consecutive sentencing under Wilkerson. See State v. Cary Caughron, No. 03C01-9310-CR-00181 (Tenn. Crim. App., Knoxville, Jan. 26, 1996) (Caughron II). Therefore, we remanded the matter to the trial court, which conducted a hearing, made findings, and imposed the life sentences consecutively to each other and concurrently to the other two sentences. It is from this determination that the defendant now appeals. Upon review of the record, the briefs of the parties, and the applicable law, we affirm. http://www.tba.org/tba_files/TCCA/CAUGHRON.wpd
STATE OF TENNESSEE VS. KENYETTA FIELDS CONCURRING IN PART; DISSENTING IN PART Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GREG W. EICHELMAN (on appeal) PAUL G. SUMMERS District Public Defender Attorney General & Reporter 1609 College Park Drive, Box 11 Morristown, TN 37813-1618 CLINTON J. MORGAN Assistant Attorney General FREDICK M. LANCE (at trial) 425 Fifth Avenue North 804 Market Street Nashville, TN 37243-0493 Johnson City, TN 37604 C. BERKELEY BELL, JR. District Attorney General VICTOR VAUGHN Assistant District Attorney General 109 South Main Street Greeneville, TN 37743 Judge: WILLIAMS First Paragraph: The defendant, Kenyetta Fields, appeals his conviction and sentence for facilitation of the sale of cocaine in an amount greater than .5 grams. The defendant argues that (1) the evidence at trial was insufficient to support the jury's verdict, (2) the sentence imposed by the trial court is excessive, and (3) the trial court erred in failing to grant an alternative sentence. We AFFIRM the defendant's conviction and MODIFY the sentence imposed by the trial court. http://www.tba.org/tba_files/TCCA/FIELDSKE.wpd CONCURRING IN PART; DISSENTING IN PART: http://www.tba.org/tba_files/TCCA/FIELDSK.wpd
STATE OF TENNESSEE VS. TOMMY S. FRANKLIN Court:TCCA Attorneys: For the Appellant: For the Appellee: Debbie Huskins Paul G. Summers Assistant Public Defender Attorney General of Tennessee Post Office Box 996 and Johnson City, TN 37605 Todd R. Kelley (AT TRIAL) Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Julie A. Rice Post Office Box 426 Joe C. Crumley Knoxville, TN 37901-0426 District Attorney General (ON APPEAL) and Michael Laguardia Assistant District Attorney Post Office Box 38 Jonesborough, TN 37659 Judge: TIPTON First Paragraph: The defendant, Tommy S. Franklin, appeals as of right from his conviction by a jury in the Washington County Criminal Court for driving under the influence (DUI)- aiding and abetting, a Class A misdemeanor. He was sentenced to eleven months and twenty-nine days, of which five days were to be spent in the county jail with the remainder on probation. He was fined fifteen thousand dollars. On appeal, the defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/FRANKTS.wpd
STATE OF TENNESSEE VS. JEFFREY B. LINDEMEYER WITH CONCURRING OPINION Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT A. COLE PAUL G. SUMMERS Attorney At Law Attorney General & Reporter 3715 Powers Street Knoxville, TN 37918 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Building Nashville, TN 37243-0493 RANDALL EUGENE NICHOLS District Attorney General C. LEON FRANKS Assistant District Attorney P. O. Box 1468 Knoxville, TN 37901-1468 Judge: WILLIAMS First Paragraph: The defendant, Jeffrey B. Lindemeyer, pleaded guilty to selling within a school zone a Schedule IV controlled substance and between 0.5 of an ounce and ten pounds of a Schedule VI controlled substance. The defendant was sentenced as a Range I offender. The Schedule IV violation constituted a Class C felony, and the Schedule VI violation constituted a Class D felony. Although the defendant met the minimum eligibility requirements for Community Corrections, the trial court determined that the Drug-Free School Zone Act (School Zone Act) required incarceration for at least the minimum sentence and therefore imposed a three-year sentence for the Class C offense and a two-year sentence for the Class D offense, to be served concurrently for an effective sentence of three years in the Department of Correction. The defendant appeals, asserting that the School Zone Act does not preclude Community Corrections, in lieu of incarceration, for the mandatory minimum sentence. We AFFIRM the trial court's sentence. http://www.tba.org/tba_files/TCCA/LindemO_opn.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCCA/LindemC_con.wpd
STATE OF TENNESSEE VS. STEVEN OTIS NICELY Court:TCCA Attorneys: For the Appellant: For the Appellee: Tommy K. Hindman Paul G. Summers and Attorney General and Reporter Laura E. Metcalf Attorneys NationsBank Bldg., Ste 700 Todd R. Kelley 550 Main Avenue Assistant Attorney General Knoxville, TN 37901 Criminal Justice Division 425 Fifth Avenue North (ON APPEAL) 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Mark Stephens Knox County Public Defender Randall E. Nichols District Attorney General John Halstead Asst. Public Defender Charm Knight 1209 Euclid Avenue Asst. District Attorney General Knoxville, TN 37921 City-County Building Knoxville, TN 37902 (AT TRIAL) Judge: HAYES First Paragraph: The appellant, Steven Otis Nicely, was convicted by a jury in the Knox County Criminal Court of one count rape of a child and one count aggravated sexual battery. http://www.tba.org/tba_files/TCCA/NICELYSO.wpd
STATE OF TENNESSEE VS. GEORGE JOSEPH RAUDENBUSH, III Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: George Joseph Raudenbush, III, pro se PAUL G. SUMMERS P. O. Box 261 Attorney General & Reporter Ducktown, TN 37326 MICHAEL J. FAHEY, II Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 JERRY N. ESTES District Attorney General DANIEL RAY SWAFFORD Assistant District Attorney General 130 Washington Avenue, N.E. P. O. Box 647 Athens, TN 37371-0647 Judge: GLENN First Paragraph: Using Doppler radar, Copperhill Police Officer Karl Helcher clocked the defendant, George Joseph Raudenbush, III, traveling 47 miles per hour in a 25 miles per hour zone. The defendant appeared in Copperhill Municipal Court on June 23, 1998 and was found guilty of speeding. Upon appeal to the Polk County Criminal Court, a bench trial was held. The court found the defendant guilty of speeding. The defendant timely appealed. Based upon our review of this matter, we affirm the decision of the Polk County Criminal Court. http://www.tba.org/tba_files/TCCA/RAUDENBU.wpd
BOBBY R. WILCOXSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: James E. Brenner John Knox Walkup Clark Hill P.L.C. Attorney General and Reporter 500 Woodward Avenue 425 Fifth Avenue North Suite 3500 Nashville, TN 37243-0493 Detroit, Michigan 48226-3435 William C. Carriger Kenneth W. Rucker Strang, Fletcher, Carriger, Assistant Attorney General Walker, Hodge & Smith Criminal Justice Division 400 Krystal Building 425 Fifth Avenue North One Union Square Nashville, TN 37243-0493 Chattanooga, Tennessee 37402 Judge: OGLE First Paragraph: On November 1, 1986, the petitioner, Bobby R. Wilcoxson, was convicted in the Hamilton County Criminal Court of first degree murder and, on February 13, 1987, was sentenced to death by electrocution. On direct appeal, the Tennessee Supreme Court affirmed the petitioner's conviction and death sentence. State v. Wilcoxson, 772 S.W.2d 33 (Tenn. 1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1798 (1990). The petitioner's counsel then filed a petition for post-conviction relief on June 14, 1990, which petition was amended on February 7, 1992, and on March 31, 1997. Following an evidentiary hearing, the post-conviction court denied the petitioner relief from his conviction, but reversed the petitioner's death sentence, finding that the petitioner had received ineffective assistance of counsel during the penalty phase of his trial. The State now concedes that the petitioner is entitled to a new sentencing hearing. However, the petitioner appeals the post-conviction court's denial of relief from his conviction. http://www.tba.org/tba_files/TCCA/WILCOXSN.wpd

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