February 24, 2000 Volume 6 -- Number 028 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. 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 03 New Opinion(s) from the Tennessee Court of Appeals 15 New Opinion(s) from the Tennessee Court of Criminal Appeals 05 New Opinion(s) from the Tennessee Attorney General (PDF format) 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. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink CHARLES H. BARNETT VS. JUSTIN OLIVER, CHRISTOPHER TYLER YOUNG, LEWIS COBB, CHRISTY YOUNG, SPRAGGINS, BARNETT, COBB & BUTLER and T. A. OLIVER, MARTHA YOUNG, and MRS. OZELL D. OLIVER Court:TCA Attorneys: For the Petitioner/Appellee: For the Defendants/Appellants: T. J. Emison, Jr. Charles A. Sevier Alamo, Tennessee Memphis, Tennessee Judge: LILLARD First Paragraph: This is a lost will case. The decedent properly executed a will. The will was not found after the decedent's death. A beneficiary under the will petitioned the probate court to establish a copy of the will as the decedent's last will and testament. The decedent's family objected, arguing that the decedent had revoked the will. The probate court entered an order admitting the copy of the will to probate. The decedent's family appeals. We affirm, holding that the plaintiff beneficiary has established that the decedent neither revoked nor destroyed the will. http://www.tba.org/tba_files/TCA/BARNET~1.wpd MARILYN C. POWELL, Executrix of the Estate of ALBERT B. COX, Deceased; and NORMA C. COOK, both Individually and as next friend and for the benefit of Albert B. Cox, Jr. VS. BRENDA C. MOORE Court:TCA Attorneys: TIMOTHY A. RYAN, III Memphis, Tennessee Attorney for Appellant ALLAN B. THORP THORP AND FONES, PLC Memphis, Tennessee Attorneys for Appellees Judge: HIGHERS First Paragraph: Brenda Moore has appealed the trial court's finding that she used undue influence and breached a fiduciary duty owed to her father, now deceased. For the following reasons, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCA/powellmc.wpd IN THE MATTER OF: RENEE CARMON VALLE, d/o/b 6/6/96, OBED VALLE, d/o/b 5/31/95, Minor Children Court:TCA Attorneys: Debra N. Brittenum and Webb A. Brewer Memphis Area Legal Services For Appellants, Cynthia and Gilberto Valle Garland Erguden of Memphis For Appellee, Court Appointed Special Advocates Judge: CRAWFORD First Paragraph: This is a termination of parental rights case. The parents, Gilberto and Cynthia Valle, appeal the order of the juvenile court terminating their parental rights to Obed Valle and Renee' Valle. For the reasons hereinafter stated, we reverse the juvenile court order. http://www.tba.org/tba_files/TCA/VALLERE.wpd MERVIN ANDERSON VS. STATE OF TENNESSEE ORDER Court:TCCA Judge: RILEY First Paragraph: This case came to be heard on the motion of the State of Tennessee for an affirmance of the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Appellant has appealed from the trial court's dismissal of his pro se "Motions Under the All Writs Act; Writ of Error Coram Nobis, Pursuant to Title 28 U.S.C. Section 1651, to Vacate his Conviction and Sentence." Through his petition, the Appellant challenged the voluntariness of guilty pleas he entered in 1985 to grand larceny, concealing stolen property, larceny and receiving stolen property. In particular, the Appellant contended both that the trial judge who accepted his guilty pleas failed to advise him of his constitutional rights as well as the consequences of his guilty pleas and that his attorney rendered ineffective assistance of counsel. http://www.tba.org/tba_files/TCCA/ANDERSM.wpd STATE OF TENNESSEE VS. BRANDON MARIO BILLS Court:TCCA Attorneys: FOR THE APPELLANT: G. WILLIAM HYMERS III 213 E. Lafayette Street P.O. Box 98 Jackson, TN 38301 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter TARA B. HINKLE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General JAMES W. FREELAND, JR. Assistant District Attorney General 302 Market Street Somerville, TN 38068 Judge: RILEY First Paragraph: A Hardeman County jury convicted defendant of delivery of less than 0.5 grams of cocaine, a Class C felony. The trial court sentenced defendant to serve four years as a Range I standard offender in the Tennessee Department of Correction. In this appeal as of right, defendant challenges the sufficiency of the evidence upon which the jury based its conviction. Upon our review of the record, we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Billsbm.wpd STATE OF TENNESSEE VS. WANDA YVETTE BLEDSOE Court:TCCA Attorneys: For Appellant: For Appellee: C. Michael Robbins Paul G. Summers 46 North Third Street Attorney General and Reporter Suite 719 Memphis, TN 38103 R. Stephen Jobe (on appeal) Assistant Attorney General Criminal Justice Division George Morton Googe 425 Fifth Avenue North District Public Defender Nashville, TN 37243-0493 and Vanessa D. King Donald H. Allen Assistant Public Defender Assistant District Attorney General 227 West Baltimore Street State Office Building, Suite 201-A Jackson, TN 38301 Jackson, Tennessee 38302 (on appeal and at trial) Judge: WADE First Paragraph: The defendant, Wanda Yvette Bledsoe, appeals the trial court's revocation of her probation. The single issue for review is whether the trial court abused its discretion. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/BLEDSO~1.wpd STATE OF TENNESSEE VS. JANIE COUSETT Court:TCCA Attorneys: FOR THE APPELLANT: GEORGE MORTON GOOGE District Public Defender STEPHEN P. SPRACHER Assistant District Public Defender 227 West Baltimore Street Jackson, TN 38301-6137 (At Trial and On Appeal) C. MICHAEL ROBBINS 46 North Third Street, Suite 719 Memphis, TN 38103 (On Appeal Only) 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 SHAUN A. BROWN Assistant District Attorney General 225 Martin Luther King Drive P.O. Box 2825 Jackson, TN 38302-2825 Judge: RILEY First Paragraph: In July 1998, defendant pled guilty to theft of property over $1,000, a Class D felony, and received a four-year community corrections sentence. In November 1998, the trial court issued a revocation warrant due to alleged violations of her community corrections sentence. http://www.tba.org/tba_files/TCCA/Cousettj.wpd STATE OF TENNESSEE VS. WAKEFIELD DAVIS Court:TCCA Attorneys: For the Appellant: For the Appellee: Tony N. Brayton Paul G. Summers Asst. Public Defender Attorney General and Reporter 201 Poplar, Suite 2-01 Memphis, TN 38103 Tara B. Hinkle Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North AC Wharton, Jr. 2d Floor, Cordell Hull Building District Public Defender Nashville, TN 37243-0493 William L. Gibbons District Attorney General John Campbell Asst. District Attorney General 201 Poplar Avenue - 3rd Floor Memphis, TN 38103 Judge: HAYES First Paragraph: The appellant, Wakefield Davis, was charged by criminal information with robbery, a class C felony. On March 12, 1999, he waived his right to indictment and pled guilty to the offense as charged. Following the sentencing hearing, the trial court imposed a three year suspended sentence and placed the appellant on probation for four years. The appellant's request for judicial diversion was denied. The appellant appeals from this judgment contending as error his denial of diversion. http://www.tba.org/tba_files/TCCA/DAVISWAK.wpd STATE OF TENNESSEE VS. CHRISTOPHER GARZA Court:TCCA Attorneys: For Appellant: For Appellee: Steve McEwen, Attorney Paul G. Summers Grayson & Wright Attorney General and Reporter 410 West Main Street Mountain City, TN 37683 Clinton J. Morgan (on appeal) Counsel for the State 425 Fifth Avenue North Mack Garner Nashville, TN 37243-0493 District Public Defender Shawn Graham Edward P. Bailey, Jr. Asst District Public Def Assistant District Attorney General 419 High Street 942 E. Lamar Alexander Parkway Maryville, TN 37804 Maryville, TN 37804 (at hearing) Judge: WADE First Paragraph: The defendant, Christopher Garza, appeals the trial court's revocation of a sentence of probation. The single issue presented for review is whether the trial court abused its discretion in revoking the probation. http://www.tba.org/tba_files/TCCA/garzachris.wpd JOHN MALCOLM JOHNSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: FRANK DESLAURIERS PAUL G. SUMMERS P. O. Box 1156 Attorney General & Reporter Covington, TN 38019 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General DEBORAH ALSUP Assistant District Attorney P. O. Box 790 Somerville, TN 38068-0790 Judge: WILLIAMS First Paragraph: The petitioner, John Malcolm Johnson, appeals from the trial court's order, entered after a hearing, denying his petition for post-conviction relief. The petitioner was convicted of one count of rape of a child by a Tipton County jury. He was sentenced as a Range I Offender to 15 years in the Department of Correction. On direct appeal, his conviction was affirmed. At post-conviction, he now argues that he received ineffective assistance of counsel at trial and therefore seeks a new trial. After careful review, we AFFIRM the denial of the trial court. http://www.tba.org/tba_files/TCCA/Johnsonjm.wpd JAMES W. MASSENGALE VS. STATE OF TENNESSEE ORDER Court:TCCA Judge: SUMMERS First Paragraph: This matter is before the Court upon the state's motion to affirm the judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The case before this Court represents an appeal from the trial court's dismissal of the petitioner's petition for writ of habeas corpus. http://www.tba.org/tba_files/TCCA/MASSENGA_ORD.wpd STATE OF TENNESSEE VS. BILLY WAYNE MOORE Court:TCCA Attorneys: FOR THE APPELLANT: GEORGE M. GOOGE District Public Defender STEPHEN P. SPRACHER Assistant Public Defender 227 W. Baltimore St. Jackson, TN 38301-6137 (At Hearing) JOHN E. HERBISON 2016 Eighth Avenue South Nashville, TN 37204-2202 (On Appeal) 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. WOODALL District Attorney General SHAUN A. BROWN Assistant District Attorney General 225 Martin Luther King Dr. P.O. Box 2825 Jackson, TN 38302-2825 Judge: RILEY First Paragraph: This is an appeal from a revocation of probation. On March 14, 1997, defendant pled guilty to "theft under $1,000," two counts of aggravated assault, possession of a weapon in a penal institution, and robbery. On the same day, defendant was sentenced as a Range II multiple offender to an effective sentence of ten years in community corrections. Subsequently, defendant's community corrections sentences were transferred to supervised probation. http://www.tba.org/tba_files/TCCA/MooreBW.wpd STATE OF TENNESSEE VS. RALPH DEWAYNE MOORE Court:TCCA Attorneys: For Appellant: For Appellee: Joe Walker Paul G. Summers District Public Defender Attorney General and Reporter Bernard R. Sargent Asst Dist Public Defender Patricia C. Kussman P.O. Box 334 Assistant Attorney General Harriman, TN 37748 Criminal Justice Division (on appeal) 425 Fifth Avenue North Second Floor, Cordell Hull Building Walter Johnson and Nashville, TN 37243-0493 Roland Cowden Asst Dist Public Defenders J. Scott McCluen P.O. Box 334 District Attorney General Harriman, TN 37748 P.O. Box 703 (at hearing) Kingston, TN 37763-0703 D. Roger Delp Asst. District Attorney General P.O. Box 703 Kingston, TN 37763-0703 Judge: WADE First Paragraph: The defendant, Ralph Dewayne Moore, was indicted for driving under the influence of an intoxicant and leaving the scene of an accident. By agreement of the state, the defendant entered a plea of guilty to reckless driving; the second charge was dismissed. As a part of the agreement, the defendant stipulated that his reckless driving sentence would "include any restitution due to Shelby Gann." The trial court imposed a sentence of six (6) months, suspended all but seven (7) days, and ordered restitution to Ms. Gann in the amount of $500.00. http://www.tba.org/tba_files/TCCA/moorerd.wpd STATE OF TENNESSEE VS. ROBERT GUY OLIVER Court:TCCA Attorneys: For the Appellant: For the Appellee: Steven McEwen Paul G. Summers 410 West Main Street Attorney General of Tennessee Mountain City, TN 37683 and (ON APPEAL) Patricia C. Kussmann Asst Attorney General of Tennessee 425 Fifth Avenue North David F. Bautista Nashville, TN 37243 District Public Defender Post Office Box 996 Joe C. Crumley, Jr. Johnson City, TN 37605-0996 District Attorney General and Post Office Box 38 Robert Y. Oaks Jonesborough, TN 37659 Assistant Public Defender and Old Courthouse, Main Street Mark K. Hill Elizabethton, TN 37643 Asst District Attorney General (AT TRIAL) 806 Third Street Elizabethton, TN 37643 Judge: TIPTON First Paragraph: The defendant, Robert Guy Oliver, appeals as of right from his conviction pursuant to a guilty plea in the Carter County Criminal Court for driving under the influence of an intoxicant (DUI), fourth offense, a Class E felony. The defendant was sentenced as a Range I, standard offender to one year of confinement in the custody of the Department of Correction, with all but one hundred eighty days suspended to be served at one hundred percent. http://www.tba.org/tba_files/TCCA/Oliverrg.wpd STATE OF TENNESSEE VS. KYNAN REDMOND Court:TCCA Attorneys: FOR THE APPELLANT: GLENN I. WRIGHT 50 North Front St. Suite 640 Memphis, TN 38103 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter TARA B. HINKLE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JOHN W. CAMPBELL Assistant District Attorney General 201 Poplar Ave. Ste. 301 Memphis, TN 38103-1947 Judge: RILEY First Paragraph: Defendant was indicted by a Shelby County Grand Jury on the charge of aggravated child abuse. Pursuant to a negotiated plea agreement, he pled guilty to one count of child abuse, a Class D felony, and received a sentence of three years as a Range I standard offender. The decision regarding the manner of service was left to the trial court. Defendant petitioned for a suspended sentence, and his petition was denied. The only issue in this appeal as of right is whether the trial court erred in denying defendant's application for suspended sentence. We AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/redmondK.wpd STATE OF TENNESSEE VS. MICHAEL STEVENSON Court:TCCA Attorneys: FOR THE APPELLANT: ARCH B. BOYD III 217 Exchange Ave. Memphis, TN 38105-3503 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter MARVIN S. BLAIR, JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General STEPHEN P. JONES Assistant District Attorney General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947 Judge: RILEY First Paragraph: The defendant pled guilty to two counts of promoting prostitution, Class E felonies. He was sentenced as a Range I standard offender to one year on the first charge and given a consecutive six-month sentence on the second charge. http://www.tba.org/tba_files/TCCA/STEVNS~1.wpd STATE OF TENNESSEE VS. JAMES P. STOUT Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT C. BROOKS PAUL G. SUMMERS P.O. Box 771558 Attorney General & Reporter Memphis, TN 38177 (On appeal) MICHAEL E. MOORE Solicitor General WILLIAM D. MASSEY 3074 East St. JOSEPH F. WHALEN Memphis, TN 38128 Asst. Attorney General (On appeal and at trial) 425 Fifth Ave. North Nashville, TN 37243-0493 DANESE K. BANKS 80 N. Monroe, Suite 1 JOHN W. PIEROTTI Memphis, TN 38103 District Attorney General (At trial) JERRY HARRIS LEE COFFEE Asst. District Attorneys General Criminal Justice Center - Third Floor 201 Poplar Ave. Memphis, TN 38103 Judge: PEAY First Paragraph: Defendant was indicted jointly with Derrick Carmichael, Robert Terrell and Quentin Jordan for the first-degree felony murder (robbery), premeditated murder, especially aggravated kidnapping, and especially aggravated robbery of Amber Hunter. Defendant was tried separately. http://www.tba.org/tba_files/TCCA/STOUTJJP.wpd STATE OF TENNESSEE VS. ANTHONY VEASLEY Court:TCCA Attorneys: For the Appellant: For the Appellee: Tony N. Brayton Paul G. Summers Asst. Public Defender Attorney General and Reporter 201 Poplar, Suite 2-01 Memphis, TN 38103 Tara B. Hinkle Assistant Attorney General Criminal Justice Division AC Wharton, Jr. 425 Fifth Avenue North Dist Public Defender 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 William L. Gibbons District Attorney General Ms. Jennifer Nichols Asst. District Attorney General 201 Poplar Avenue - Third Floor Memphis, TN 38103 Judge: HAYES First Paragraph: The appellant, Anthony Veasley, was found guilty by a Shelby County jury of aggravated robbery. The trial court sentenced the appellant, as a range II offender, to nineteen years confinement in the Department of Correction. In his sole issue on appeal, the appellant contends that the State failed to present sufficient evidence to support a conviction for aggravated robbery beyond a reasonable doubt. After review, we affirm. http://www.tba.org/tba_files/TCCA/VEASLEYA.wpd Title IV-D Child Support Enforcement: Welfare Eligibility, Custody and Privilege Issues Date: February 18, 2000 Opinion Number: Opinion No. 00-027 http://www.tba.org/tba_files/AG/OP27.pdf Legality of Contracting With Person Receiving Tennessee Consolidated Retirement System Benefits Date: February 22, 2000 Opinion Number: Opinion No. 00-028 http://www.tba.org/tba_files/AG/OP28.pdf Amending a Nonprofit Corporation's Charter Date: February 22, 2000 Opinion Number: Opinion No. 00-029 http://www.tba.org/tba_files/AG/OP29.pdf Violations of Tenn. Code Ann. S 39-17-911(a)(1) Date: February 22, 2000 Opinion Number: Opinion No. 00-030 http://www.tba.org/tba_files/AG/OP30.pdf Ability of Persons to Carry Firearms on Premises that Sells Beer Which Contain Five Percent Alcohol or Less Date: February 22, 2000 Opinion Number: Opinion No. 00-031 http://www.tba.org/tba_files/AG/OP31.pdf PLEASE FORWARD THIS E-MAIL! 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