November 4, 1999 Volume 5 -- Number 151 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 16 New Opinion(s) from the Tennessee Court of Criminal Appeals 01 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 JUDICIAL ETHICS COMMITTEE ADVISORY OPINION NO. 99-7 Court:TSC - Rules Judge: HAYES First Paragraph: The Committee has been asked to render an opinion as to whether a judge can ethically contribute $100 annually to the Trial Judges Conference for the purpose of retaining a lobbyist to assist the judiciary in obtaining personal benefits. Specifically, the request inquires as to whether it is ethically permissible for a judge, either on his or her own behalf or through a retained third party, to lobby the legislature for "personal benefits." http://www.tba.org/tba_files/TSC_Rules/99-7.wpd STATE OF TENNESSEE VS. BAILEY R. AGNEW Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: EDWIN C. LENOW PAUL G. SUMMERS 100 North Main Building, #2325 Attorney General and Reporter Memphis, TN 38103 PATRICIA C. KUSSMANN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM GIBBONS District Attorney General PAULA WULFF Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge: SMITH First Paragraph: The Appellant, Bailey R. Agnew, appeals the Shelby County Criminal Court's order declaring him an Habitual Motor Vehicle Offender under Tenn. Code Ann. S 55-10-601, et. seq. On appeal, the Appellant claims that the trial court erred in denying his motion to dismiss the State's petition to have him declared an habitual offender on the grounds that the petition was barred by the statute of limitations or, in the alternative, the equitable doctrine of laches. We affirm the trial court's judgment pursuant to Rule 20 of the Tennessee Court of Appeals. http://www.tba.org/tba_files/TCCA/agnewbr_ord.wpd STATE OF TENNESSEE VS. TOMMY LEE BALDWIN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Reporter DONNA ROBINSON MILLER MARVIN S. BLAIR, JR. and Assistant Attorney General MICHAEL L. ACUFF 425 Fifth Avenue North Asst District Public Def Nashville, TN 37243 701 Cherry Street, Ste 300 Chattanooga, TN 37402 WILLIAM H. COX III District Attorney General CLAIRE HAYES BRANT Assistant District Attorney 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge: WILLIAMS First Paragraph: The defendant, Tommy Lee Baldwin, appeals from his conviction of aggravated sexual battery, a Class B felony. The Hamilton County Criminal Court sentenced him to fifteen years as a Range II offender. The defendant asserts that the trial court (1) erroneously denied jury instructions regarding lesser included offenses of attempted aggravated sexual battery and assault and (2) improperly applied prior out-of-state convictions to classify him as a Range II offender. We AFFIRM the trial court's judgment. http://www.tba.org/tba_files/TCCA/BALDWNTL.wpd TYLER W. BANES VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TYLER W. BANES PAUL G. SUMMERS Pro Se Attorney General and Reporter Turney Center, Route 1 Only, TN 37140-9709 R. STEPHEN JOBE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 JERRY WOODALL District Attorney General ALFRED EARLS Assistant District Attorney General P.O. Box 2825 Jackson, TN 38302 Judge: WELLES First Paragraph: Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the Defendant, Tyler W. Banes appeals as of right the trial court's order dismissing his pro se petition for post-conviction relief. We conclude, without reaching the merits of the Defendant's claims, that the Defendant's petition for post-conviction relief is time- barred. We accordingly affirm the dismissal of the Defendant's petition for post- conviction relief by the trial court. http://www.tba.org/tba_files/TCCA/banestw.wpd STATE OF TENNESSEE VS. BUFORD WILL BARRETT Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GARY F. ANTRICAN PAUL G. SUMMERS District Public Defender Attorney General & Reporter RICKEY GRIGGS J. ROSS DYER Assistant Public Defender Assistant Attorney General P.O. Box 700 2nd Floor, Cordell Hull Building Somerville, TN 38068 425 Fifth Avenue North (At Trial) Nashville, TN 37243 C. MICHAEL ROBBINS ELIZABETH RICE 46 North Third St, Ste 719 District Attorney General Memphis, TN 38103 (On Appeal) ED NEAL McDANIEL Assistant District Attorney General 302 Market Street Somerville, TN 38068 Judge: WOODALL First Paragraph: On October 13, 1997, the McNairy County Grand Jury indicted Appellant Buford Barrett for rape of a child and aggravated child abuse. After a jury trial on June 24, 1998, Appellant was convicted of rape of a child. After a sentencing hearing on July 21, 1998, the trial court sentenced Appellant to a term of twenty years in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/barrettb.wpd STATE OF TENNESSEE VS. RICIO L. CONNER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JEFFREY S. ROSENBLUM PAUL G. SUMMERS Attorney at Law Attorney General & Reporter Rosenblum & Reisman, PC 80 Monroe Avenue, Suite 560 PATRICIA C. KUSSMANN Memphis, TN 38103 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General SCOTT GORDON Asst. District Attorney General Criminal Justice Comp, Ste. 301 201 Poplar Avenue Memphis, TN 38103 Judge: WITT First Paragraph: The defendant, Ricio Conner, appeals the Shelby County Criminal Court's order revoking his probation. He asserts that (1) the trial court erroneously applied the wrong standard of proof in the revocation proceeding, (2) the trial court erred in concluding that it had no authority to do anything but reincarcerate the defendant once a violation of probation was established, and (3) as an alternative argument, the trial court lacked jurisdiction to determine whether a violation of probation occurred. We affirm in part and vacate in part the trial court's ruling. http://www.tba.org/tba_files/TCCA/CONNERR.wpd STATE OF TENNESSEE VS. DAVID B. EATON Court:TCCA Attorneys: For Appellant: For Appellee: Brett B. Stein John Knox Walkup 236 Adams Avenue Attorney General & Reporter Memphis, TN 38103 (on appeal) Peter M. Coughlan Assistant Attorney General Thomas E. Hansom 425 Fifth Avenue North 659 Freeman 2nd Floor, Cordell Hull Building Memphis, TN 38122 Nashville, TN 37243-0493 (at trial) Dan Byer Assistant District Attorney General District Attorney General's Office 201 Poplar Avenue, 3rd Floor Memphis, TN 38103 Judge: WADE First Paragraph: The defendant, David B. Eaton, was indicted for driving under the influence, reckless driving, and leaving the scene of an accident. He was convicted only for leaving the scene of an accident. Tenn. Code Ann. S 55-10-101. The trial court imposed a sentence of eleven months and twenty-nine days in the Shelby County Workhouse with ninety days to be served and the remainder suspended upon the defendant being placed upon supervised probation for eleven months and twenty-nine days. The defendant was also fined $1,000. http://www.tba.org/tba_files/TCCA/EATONDB.wpd STATE OF TENNESSEE VS. CHARLES EDWARD EVANS, ALIAS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General and Reporter PAULA R. VOSS ELLEN H. POLLACK DAVID GALL Assistant Attorney General Assistant Public Defenders 425 Fifth Avenue North 1209 Euclid Avenue Nashville, TN 37243 Knoxville, TN 37921 RANDALL E. NICHOLS District Attorney General PAULA GENTRY Assistant District Attorney 400 Main, P.O. Box 1468 Knoxville, TN 37901-1468 Judge: SMITH First Paragraph: The appellant, Charles Edward Evans, appeals the Knox County Criminal Court's order revoking his probation. In 1996, the appellant was convicted of one (1) count of selling less than 0.5 grams of cocaine and sentenced to eight (8) years as a Range II offender. The appellant was placed on probation by the Tennessee Department of Correction in February 1998. Subsequently, the state filed a petition to revoke the appellant's probation, and after an evidentiary hearing, the trial court revoked the appellant's probation. On appeal, the appellant claims that the trial court erred in revoking probation. After a review of the record before this Court, we affirm the judgment of the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/evansce_ord.wpd STATE OF TENNESSEE VS. DAVID W. FRAZEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TERRY J. LEONARD PAUL G. SUMMERS Attorney at Law Attorney General & Reporter 126 W. Main Street P.O. Box 130 PATRICIA C. KUSSMAN Camden, TN 38320 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 G. ROBERT RADFORD District Attorney General BETH BOSWALL Asst. District Attorney General P.O. Box 686 Huntingdon, TN 38344 Judge: WITT First Paragraph: The defendant, David W. Frazee, appeals his Benton County Circuit Court conviction for possession of a Schedule VI controlled substance, a Class A misdemeanor. See Tenn. Code Ann. S 39-17-418(a) (1997). The trial court imposed a $250 fine and an eleven-month, 29-day jail sentence, six months of which is to be served in jail with the remainder to be served on supervised probation. In his appellate brief, the defendant raised two issues: (1) whether the convicting evidence was insufficient because the controlled substance was not properly made an exhibit to the forensic scientist's testimony, and (2) whether the trial court erred in not imposing an alternative sentence. During oral argument, however, the defendant's counsel conceded that there was no basis in the record for establishing his claim on the first issue. Accordingly, we have limited our review to the sentencing issue and have found no error requiring reversal. Thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/FRAZEEDW.wpd TROY LEE GODWIN VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT W. NEWELL PAUL G. SUMMERS Attorney At Law Attorney General & Reporter P.O. Box 99 Humboldt, TN 38343 GEORGIA BLYTHE FELNER Counsel for State 425 Fifth Avenue North Nashville, TN 37243 CLAYBURN PEEPLES District Attorney General BRIAN FULLER Asst. District Attorney General 110 South College Street, Suite 200 Trenton, TN 38382 Judge: WITT First Paragraph: The petitioner, Troy Lee Godwin, appeals the Gibson County Circuit Court's dismissal of his petition for post-conviction relief. The petitioner raises two issues: (1) whether he was denied due process of law and equal protection of the law because the convicting evidence of aggravated rape was insufficient, and (2) whether the trial court erred in not dismissing the charge of aggravated kidnapping, which was based upon a theory of complicity, for insufficiency of the convicting evidence in view of the dismissal of the charge against the principal offender. See State v. Coleman, 865 S.W.2d 455 (Tenn. 1993). We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/GODWINTL.wpd STATE OF TENNESSEE VS. ALVIN A. HARRIS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JEANNIE KAESS PAUL G. SUMMERS 520 Ridgeway Drive Attorney General & Reporter Bolivar, TN 38008 PETER M. COUGHLAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 ELIZABETH T. RICE District Attorney General JERRY W. NORWOOD Assistant District Attorney General 302 E. Market Street Somerville, TN 38068 Judge: WOODALL First Paragraph: On September 2, 1997, the Hardeman County Grand Jury indicted Appellant Alvin A. Harris for aggravated robbery and aggravated assault. After a jury trial on January 9, 1998, Appellant was convicted of aggravated robbery and facilitation of aggravated assault. On January 29, 1998, the trial court sentenced Appellant as a Range I standard offender to concurrent terms of eight years for aggravated robbery and two years for facilitation of aggravated assault. http://www.tba.org/tba_files/TCCA/HARRISAA.wpd STATE OF TENNESSEE VS. PHILLIP DAVID HOWELL Court:TCCA Attorneys: FOR THE APPELLANT: MIKE MOSIER 204 West Baltimore P.O. Box 1623 Jackson, TN 38302-1623 (On Appeal) STEVE BEAL 22 Monroe Avenue Lexington, TN 38351-2135 (At Hearing) FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter R. STEPHEN JOBE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JAMES G. (JERRY) WOODALL District Attorney General LAWRENCE E. (NICK) NICOLA Assistant District Attorney General 225 Martin Luther King Drive P.O. Box 2825 Jackson, TN 38302-2825 Judge: RILEY First Paragraph: Pursuant to a negotiated agreement, defendant pled guilty to aggravated criminal trespass and assault, Class A misdemeanors, and the trial court placed him on judicial diversion pursuant to Tenn. Code Ann. S 40-35-313. Subsequently, the trial court found defendant in violation of his probation, revoked judicial diversion, and imposed sentence. In this direct appeal, defendant challenges the revocation. After a careful review of the record, we REVERSE the decision of the trial court and REMAND for further proceedings. http://www.tba.org/tba_files/TCCA/HOWELLPD.wpd ARDIE JACKSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CRAIG B. FLOOD, II PAUL G. SUMMERS Attorney at Law Attorney General & Reporter 100 N. Main, Ste. 2400 Memphis, TN 38103 CLINTON J. MORGAN Asst. Attorney General 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General CAMILLE McMULLEN Asst. District Attorney General 201 Poplar Ave., Third Fl. Memphis, TN 38103 Judge: WITT First Paragraph: The petitioner, Ardie Jackson, filed a post-conviction petition alleging his guilty plea to the crime of especially aggravated kidnapping was not knowingly and voluntarily entered and that his counsel was ineffective. Following a hearing, the trial court denied relief. In this appeal, the petitioner raises only the voluntariness-of-plea issue. Finding no error of law requiring reversal, we affirm. http://www.tba.org/tba_files/TCCA/Jacksona.wpd STATE OF TENNESSEE VS. JOYCE M. LINDSEY, a/k/a JOYCE WADE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARTI L. KAUFMAN PAUL G. SUMMERS WILLIAM N. MONROE Attorney General & Reporter CHRIS HAMILTON Attorneys at Law J. ROSS DYER 5350 Poplar Ave., Ste. 102 Asst. Attorney General Memphis, TN 38117 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General THOMAS L. HENDERSON JENNIFER S. NICHOLS Asst. District Attorney General 201 Poplar Ave., Third Fl. Memphis, TN 38103 Judge: WITT First Paragraph: The defendant, Joyce M. Lindsey a/k/a Joyce Wade, appeals from the second degree murder, aggravated kidnapping, forgery and theft convictions she received at a jury trial in the Shelby County Criminal Court. The defendant is presently serving an effective 33-year sentence in the Department of Correction for her crimes. http://www.tba.org/tba_files/TCCA/LINDSEY.wpd JERRELL LIVINGSTON VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Jerrell Livingston, Pro Se Paul G. Summers West Tennessee Security Facility Attorney General and Reporter Site #2, P.O. Box 1050 425 Fifth Avenue North Henning, TN 38041 Nashville, TN 37243-0493 Marvin E. Clements, Jr. Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Judge: OGLE First Paragraph: The petitioner, Jerrell Livingston, appeals as of right from the dismissal of his petition for habeas corpus relief by the Lauderdale County Circuit Court on the basis that habeas corpus is not the proper proceeding to address the petitioner's complaint. We affirm the judgment of the trial court pursuant to the Court of Criminal Appeals Rule 20. http://www.tba.org/tba_files/TCCA/livingstonje.wpd STATE OF TENNESSEE VS. CHRISTOPHER LOVE Court:TCCA Attorneys: For Appellant For Appellee Robert M. Brannon, Jr. Paul G. Summers 295 Washington, Suite 3 Attorney General and Reporter Memphis, TN 38103 425 Fifth Avenue North Nashville, TN 37243-0493 Patricia Kussmann Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Paula Wulff Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge: OGLE First Paragraph: The appellant, Christopher Love, appeals the revocation of his probationary sentence by the Shelby County Criminal Court. The appellant contends that the evidence adduced at the probation revocation hearing is insufficient to support the trial court's exercise of discretion. Following a thorough review of the record, we conclude that this is an appropriate case for affirmance pursuant to Ct. of Crim. App. Rule 20. http://www.tba.org/tba_files/TCCA/lovech.wpd STATE OF TENNESSEE VS. JIMMY LEWIS MATLOCK Court:TCCA Attorneys: For Appellant: For Appellee: Clifford K. McGown, Jr. Paul G. Summers 113 North Court Square Attorney General and Reporter P.O. Box 26 450 James Robertson Parkway Waverly, TN 37185 Nashville, TN 37243-0493 (On Appeal Only) Patricia C. Kussman Gary F. Antrican Assistant Attorney General 118 East Market 425 Fifth Avenue North P.O. Box 700 2d Floor, Cordell Hull Bldg. Somerville, TN 38068 Nashville, TN 37243-0493 (At Trial and Of Counsel On Appeal) Judge: OGLE First Paragraph: On October 14, 1998, the appellant, Jimmy Lewis Matlock, pled guilty in the McNairy County Criminal Court to especially aggravated sexual exploitation of a minor, a class B felony. On November 2, 1998, the trial court sentenced the appellant as a Range I standard offender to an effective sentence of twelve years incarceration in the Tennessee Department of Correction. The appellant contends that the trial court erred by imposing a sentence of twelve years. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/matlockjimmy.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! 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