March 17, 2000 Volume 6 -- Number 042 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 00 New Opinion(s) from the Tennessee Court of Appeals 09 New Opinion(s) from the Tennessee Court of Criminal Appeals 12 New Opinion(s) from the Tennessee Attorney General (PDF format) 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. 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 JUDICIAL ETHICS COMMITTEE ADVISORY OPINION NO. 00-01 Court:TSC - Rules First Paragraph: The following formal request for an ethics opinion has been made: Question: May a candidate who seeks appointment to a judicial office, following a vacancy of that office, form a committee to solicit or accept funds for his or her candidacy for election to that same office? http://www.tba.org/tba_files/TSC_Rules/00-01_opn.wpd STATE OF TENNESSEE VS. DOUGLAS BRYAN BORUFF WITH TWO CONCURRING OPINIONS Court:TCCA Attorneys: FOR THE APPELLANT: HUBERT D. PATTY 131 E. Broadway P. O. Box 5449 Maryville, TN 37802-5449 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter MICHAEL J. FAHEY II Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 MICHAEL L. FLYNN District Attorney General KIRK E. ANDREWS EDWARD P. BAILEY, JR. Asst. District Attorneys General 363 Court Street Maryville, TN 37804-5906 Judge: RILEY First Paragraph: Defendant, Douglas Bryan Boruff, appeals from his conviction of child rape by a Blount County jury. He was sentenced to a term of 23 years. In this appeal as of right, he raises the following issues for our review: Whether the evidence was sufficient to support the conviction; Whether the trial court erroneously admitted hearsay evidence; Whether the trial court erroneously failed to charge lesser-included offenses; and Whether the trial court erred by not granting a new trial based upon newly discovered evidence. Upon our review of the record, we find no reversible error and AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/boruffd_opn.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCCA/boruffdC_con.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCCA/BoruffdC2_con.wpd MARK W. BRYAN VS. STATE OF TENNESSEE JUDGMENT Court:TCCA Judge: LAFFERTY First Paragraph: Came the appellee, by counsel, and the State, by the Attorney General, and this case was heard on the record on appeal from the Criminal Court of Shelby County. Upon consideration thereof, this Court is of the opinion that the judgment of the trial court should be affirmed and reversed. It is, therefore, ordered and adjudged by this Court that the judgment of the trial court is AFFIRMED and REVERSED, and the case is remanded to the Criminal Court of Shelby County for execution of the judgment of that court and for collection of costs accrued below. http://www.tba.org/tba_files/TCCA/BRYANM~1.wpd STATE OF TENNESSEE VS. GREGORY DAVIS Court:TCCA Attorneys: For Appellant: For Appellee: William C. Gosnell Paul G. Summers 217 Exchange Avenue Attorney General and Reporter Memphis, TN 38105 450 James Robertson Parkway Nashville, TN 37243-0493 J. Ross Dyer Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Amy P. Weirich Assistant District Attorney General Shelby County District Atty General's Office 201 Poplar Ave - 3rd Floor Memphis, TN 38103 Judge: OGLE First Paragraph: On November 4, 1998, the appellant, Gregory Davis, was convicted by a jury in the Shelby County Criminal Court of aggravated burglary, theft over $1,000, and evading arrest. On January 14, 1999, the trial court sentenced the appellant as a persistent Range III offender to thirteen years incarceration for aggravated burglary, ten years incarceration for theft of property over $1,000, and five years incarceration for evading arrest. The trial court also ordered that the aggravated burglary sentence be served consecutively to the theft sentence, and that the evading arrest sentence be served concurrently with the theft sentence for an effective sentence of twenty-three years incarceration in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/davisgregory.wpd STATE OF TENNESSEE VS. LORENZO EDWARD ERVIN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Ardena J. Garth Paul G. Summers District Public Defender Attorney General & Reporter Donna Robinson Miller Todd R. Kelley Assistant District Public Defender Assistant Attorney General 701 Cherry Street, Suite 300 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493 (On Appeal) William H. Cox, III Dwight Aarons District Attorney General Associate Professor UT College of Law Thomas Evans 1505 West Cumberland Avenue Asst District Attorney General Knoxville, TN 37996 600 Market Street, Suite 310 (Amicus Curiae) Chattanooga, TN 37402 Charles G. Wright, Jr. 253 East 11th Street Chattanooga, TN 37402-4225 (At Trial) Judge: GLENN First Paragraph: The defendant, Lorenzo Edward Ervin, was indicted by a Hamilton County Grand Jury for disrupting a meeting or procession in violation of Tennessee Code Annotated S 39-17-306. A jury returned a verdict of guilty on April 4, 1994. The trial court denied the defendant's motion for a new trial, and the defendant filed a timely notice of appeal. On November 28, 1995, this court dismissed the appeal and held the defendant's attorney in contempt for failure to comply with his responsibilities on appeal. In 1997, the defendant filed a petition for post-conviction relief in the Criminal Court of Hamilton County. On December 3, 1997, the trial court granted the defendant a delayed appeal and ordered the remainder of the petition to be held in abeyance. The trial court denied the defendant's second motion for a new trial on January 30, 1998. http://www.tba.org/tba_files/TCCA/ervinle_opn.wpd STATE OF TENNESSEE VS. KELLY HAYNES Court:TCCA Attorneys: For the Appellant: For the Appellee: Clifford K. McGown, Jr. Paul G. Summers Attorney for Appellant Attorney General and Reporter 113 North Court Square P. O. Box 26 J. Ross Dyer Waverly, TN 37185 Assistant Attorney General Criminal Justice Division (ON APPEAL) 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 George Morton Googe District Public Defender 227 West Baltimore Street Jackson, TN 38301 James G. (Jerry) Woodall District Attorney General (AT TRIAL) James W. Thompson Asst. District Attorney General State Office Building, Suite 201-A Post Office Box 2825 Jackson, TN 38302 Judge: HAYES First Paragraph: The appellant, Kelly Haynes, was indicted by a Madison County grand jury for aggravated assault. On February 12, 1999, he entered a guilty plea to the charged offense. At a subsequent sentencing hearing, the trial court ordered that the appellant serve a sentence of five years confinement in the Department of Correction. On appeal, the appellant argues that his sentence is excessive and based upon the misapplication of certain enhancement factors. http://www.tba.org/tba_files/TCCA/HAYNES~1.wpd STATE OF TENNESSEE VS. PAMELA HOPPER Court:TCCA Attorneys: For Appellant A. C. Wharton, Jr. Public Defender Latonya Burrow (At Hearing) Walker Gwinn (On Appeal) Assistant Public Defenders 201 Poplar Avenue, Ste. 201 Memphis, TN 38103-1947 For Appellee Paul G. Summers Attorney General and Reporter Clinton J. Morgan Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 William L. Gibbons District Attorney General Daniel R. Woody Assistant District Attorney General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947 Judge: OGLE First Paragraph: Defendant, Pamela Hopper, appeals the Shelby County Criminal Court's order denying her probation following her guilty plea to theft over $10,000. After our review of the record, we conclude the trial court did not err in denying probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/HOPPERP.wpd STATE OF TENNESSEE VS. PETER ALLEN ROSS Court:TCCA Attorneys: For the Appellant: For the Appellee: Guy T. Wilkinson Paul G. Summers District Public Defender Attorney General of Tennessee and and Richard W. DeBerry Clinton J. Morgan Assistant Public Defender Counsel for the State 117 North Forrest Avenue 425 Fifth Avenue North Camden, TN 38320 Nashville, TN 37243 G. Robert Radford District Attorney General Post Office Box 686 Huntingdon, TN 38344-0686 and John W. Overton, Jr. Assistant District Attorney General Post Office Box 484 Savannah, TN 38372-0484 Judge: TIPTON First Paragraph: The defendant, Peter Allen Ross, appeals as of right his convictions by a jury in the Hardin County Circuit Court for possession of more than one-half gram of cocaine with intent to sell, a Class B felony, and possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced the defendant as a Range I, standard offender to twelve years in the Department of Correction for the felony and a concurrent eleven months and twenty-nine days for the misdemeanor. http://www.tba.org/tba_files/TCCA/Rosspa.wpd STATE OF TENNESSEE VS. VINCENT C. SIMS WITH CONCURRING OPINION Court:TCCA Attorneys: FOR APPELLANT: FOR APPELLEE: ON APPEAL: PAUL G. SUMMERS Attorney General & Reporter W. MARK WARD Assistant Public Defender MICHAEL E. MOORE Solicitor General TONY N. BRAYTON Assistant Public Defender AMY L. TARKINGTON Senior Counsel AT TRIAL: 425 Fifth Avenue, North Nashville, TN 37243 BETTY THOMAS Assistant Public Defender WILLIAM L. GIBBONS District Attorney General LARRY H. NANCE Assistant Public Defender JAMES M. LAMMEY Criminal Just. Ctr, Ste 201 Assistant District Attorney General 201 Poplar Avenue Memphis, TN 38103 LEE V. COFFEE Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge: WOODALL First Paragraph: In this capital case, the defendant, Vincent C. Sims, was convicted by a jury of especially aggravated burglary and first-degree murder. The jury sentenced the defendant to death by electrocution. At the sentencing hearing, the jury found four aggravating circumstances: (1) the defendant was previously convicted of one or more felonies whose statutory elements involve the use of violence, (2) the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death, (3) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (4) the murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any burglary or theft. See Tenn. Code Ann. S 39-13-204(i)(2), (5), (6), and (7) (Supp. 1995). The jury found that there were no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances and sentenced the defendant to death by electrocution. At a separate hearing, the trial court sentenced the defendant to 20 years for his especially aggravated burglary conviction and ordered the sentence to run consecutively to the defendant's sentence of death. http://www.tba.org/tba_files/TCCA/simsvc_opn.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCCA/simsvcC_con.wpd ALVIN G. TAYLOR VS. STATE OF TENNESSEE ORDER Court:TCCA Judge: HAYES First Paragraph: This matter is before the Court upon the state's motion to affirm the trial court judgment by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. On June 24, 1999, the petitioner filed three separate petitions for post-conviction relief. The petitioner pled guilty to two counts of robbery in 1979, two counts of grand larceny and one count of receiving stolen property in 1982, and three counts of robbery in 1985. No appeals were apparently taken. The petitioner alleges that he received ineffective assistance of counsel during each of his guilty pleas and that the pleas, therefore, were not voluntarily entered. Finding that the statute of limitations has expired, the trial court dismissed the petitions. http://www.tba.org/tba_files/TCCA/TAYLORAG.wpd Annexation after Growth Plan Adopted Date: March 6, 2000 Opinion Number: Opinion No. 00-036 http://www.tba.org/tba_files/AG/OP36.pdf Reorganization of Department of Transportation Date: March 7, 2000 Opinion Number: Opinion No. 00-037 http://www.tba.org/tba_files/AG/OP37.pdf Requirement of Handgun Safety Class for Individuals Whose Handgun Carrying Permit Has Expired Date: March 7, 2000 Opinion Number: Opinion No 00-038 http://www.tba.org/tba_files/AG/OP38.pdf State Park Entrance Fees and Parking Fees - Authority To Establish By Rulemaking Date: March 13, 2000 Opinion Number: Opinion No. 00-039 http://www.tba.org/tba_files/AG/OP39.pdf "Balance Billing" by Non-Contractual TennCare Providers Date: March 13, 2000 Opinion Number: Opinion No. 00-040 http://www.tba.org/tba_files/AG/OP40.pdf Transfer of Duties of Knox County Circuit Court Clerk Date: March 13, 2000 Opinion Number: Opinion No. 00-041 http://www.tba.org/tba_files/AG/OP41.pdf Representation of the State in Criminal and Juvenile Proceedings in General Sessions Courts Date: March 13, 2000 Opinion Number: Opinion No. 00-042 http://www.tba.org/tba_files/AG/OP42.pdf General Sessions Judge Serving as Trenton City Judge Date: March 13, 2000 Opinion Number: Opinion No. 00-043 http://www.tba.org/tba_files/AG/OP43.pdf Issuance of citations and arrest warrants by general sessions court clerks Date: March 13, 2000 Opinion Number: Opinion No. 00-044 http://www.tba.org/tba_files/AG/OP44.pdf Management and Sale of Bradley County Memorial Hospital Date: March 13, 2000 Opinion Number: Opinion No. 00-045 http://www.tba.org/tba_files/AG/OP45.pdf Constitutionality of HB2296 Date: March 13, 2000 Opinion Number: Opinion No. 00-046 http://www.tba.org/tba_files/AG/OP46.pdf Tennessee Constitution, Article II, Section 19 Date: March 13, 2000 Opinion Number: Opinion No. 00-047 http://www.tba.org/tba_files/AG/OP47.pdf PLEASE FORWARD THIS E-MAIL! 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