April 10, 2000 Volume 6 -- Number 054 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):   03 New Opinion(s) from the Tennessee Supreme Court 02 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 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 STATE OF TENNESSEE VS. SHERMAN WINCHESTER BLACKSTOCK Court:TSC Attorneys: Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public Defender, Chattanooga, Tennessee (On Appeal); and Karla G. Gothard, Executive District Public Defender, Chattanooga, Tennessee (At Trial), for the appellant, Sherman Winchester Blackstock Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, and Todd R. Kelley, Assistant Attorney General, Nashville, Tennessee (On Appeal); and Gary D. Gerbitz, District Attorney General, and Bates W. Bryan, Jr. and Rebecca J. Stern, Assistant District Attorneys General, Chattanooga, Tennessee (At Trial), for the appellee, State of Tennessee Judge: ANDERSON First Paragraph: The defendant, who has an IQ of 55 and functions on the level of an eight to nine-year old child, was convicted by a jury for the aggravated sexual battery of a seven-year-old female. The Court of Criminal Appeals affirmed the trial court's findings that the defendant was competent to stand trial, that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights, that the trial court was without jurisdiction to order involuntary commitment and treatment as a mentally retarded offender, and that the defendant should not have been sentenced as an especially mitigated offender. The Tennessee Supreme Court granted the defendant's application for permission to appeal. Although the Court concluded that the evidence does not preponderate against the trial court's finding of competence, the Court found that the evidence does preponderate against the trial court's finding of a voluntary, knowing and intelligent waiver of Miranda rights, and further, that the trial court erred in failing to consider the petition for involuntary care and treatment and in refusing to sentence the defendant as an especially mitigated offender. Accordingly, the Tennessee Supreme Court reversed and remanded for a new trial. http://www.tba.org/tba_files/TSC/BlackstockSW.wpd STATE OF TENNESSEE VS. TONY FITZ Court:TSC Attorneys: Frank Deslauriers, Covington, Tennessee, for the appellant, Tony Fitz Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Peter Coughlan, Assistant Attorney General, Nashville, Tennessee (On Appeal); and Elizabeth T. Rice, District Attorney General and Walt Freeland, Assistant District Attorney General, Somerville, Tennesseee (At Trial), for the appellee, State of Tennessee Judge: ANDERSON First Paragraph: A jury convicted the defendant of robbery, which is statutorily defined as the "intentional or knowing theft of property from the person of another by violence or putting the person in fear." On appeal to the Court of Criminal Appeals, the defendant argued that his indictment alleged only robbery by violence, that the victim testified that he was placed in fear but was not hurt, and consequently, that the evidence was insufficient to support the robbery conviction because the defendant employed "force," which is statutorily defined, but not "violence," which is not statutorily defined. The Court of Criminal Appeals affirmed the robbery conviction, finding that the evidence was sufficient to support the jury's verdict and defining the term "violence" as synonymous with the term "force." The Tennessee Supreme Court granted the defendant's application for permission to appeal and concluded that "violence" involves physical force unlawfully exercised so as to injure, damage or abuse, and further, that the evidence in this case is sufficient to satisfy the element of "violence." Accordingly, the Tennessee Supreme Court affirmed the Court of Criminal Appeals on the separate grounds stated. http://www.tba.org/tba_files/TSC/FitzT.wpd STATE OF TENNESSEE v. ROY E. KEOUGH WITH APPENDIX Court:TSC Attorneys: Joseph S. Ozment and James V. Ball, Memphis, Tennessee, for the appellant, Roy E. Keough Michael E. Moore, Solicitor General, and Tonya Miner, Assistant Attorney General, Nashville, Tennessee (On Appeal), and John W. Pierotti, District Attorney General, and Robert Carter and Rosemary Andrews, Assistant District Attorneys General, Memphis, Tennessee (At Trial), for the appellee, State of Tennessee Judge: ANDERSON First Paragraph: A jury convicted the defendant of premeditated first degree murder and attempted first degree murder. The jury imposed a death sentence after finding that evidence of an aggravating circumstance, that the defendant was previously convicted of one or more felonies whose statutory elements involve the use of violence to the person, outweighed evidence of mitigating circumstances beyond a reasonable doubt. In a separate proceeding, the trial judge found the defendant to be a Range II, multiple offender and imposed a sentence of forty years for the attempted first degree murder conviction, to run consecutively to the death sentence for the premeditated first degree murder conviction. http://www.tba.org/tba_files/TSC/KeoughR.wpd APPENDIX: http://www.tba.org/tba_files/TSC/Keough_app.wpd JOHN J. KOBUS VS. COLONIAL MOVING COMPANY Court:TSC - Workers Comp Panel Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC_WCP/kobus.wpd SHIRLEY DALE REEVES VS. WAL-MART, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC_WCP/reeves.wpd STATE OF TENNESSEE, v. MELL THOMAS BRUTON Court:TCCA Attorneys: Terry J. Canady, Madison, Tennessee, for the appellant, Mell Thomas Bruton Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, for the appellee, State of Tennessee Judge: SMITH First Paragraph: In June 1998, the appellant, Mell Thomas Bruton, pled guilty to one (1) count of aggravated assault and received a sentence of six (6) years as a Range II offender. The trial court ordered that the appellant be placed on community corrections after serving six (6) months of his sentence. In July, a warrant was filed against the appellant alleging that he had violated two conditions of his community corrections sentence. http://www.tba.org/tba_files/TCCA/BRUTONMEL.wpd STATE OF TENNESSEE VS. LARRY WAYNE BURNEY Court:TCCA Attorneys: Michael R. Jones, District Public Defender, and Charles S. Bloodworth, Assistant Public Defender, Clarksville, Tennessee, for the appellant, Larry Wayne Burney. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, John Wesley Carney, Jr., District Attorney General, and Lance A. Baker, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant pled guilty to possession of drug paraphernalia, assault, resisting arrest, and criminal impersonation. Defendant was also convicted in a bench trial of possession of more than .5 grams of cocaine with intent to sell. After a sentencing hearing, the trial court imposed a sentence of eleven years for the cocaine possession conviction as well as sentences of various lengths for the other convictions. Defendant challenges his conviction for possession of cocaine as well as the lengths of his sentences. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/burneylw.wpd STATE OF TENNESSEE VS. DENNIS O. DICKERSON Court:TCCA Judge: Per Curiam First Paragraph: A Rutherford County jury convicted the appellant, Dennis O. Dickerson, of driving under the influence, sixth offense. The trial court sentenced the appellant to eleven (11) months and twenty-nine (29) days, suspended after service of 210 days in the county jail. On appeal, the appellant challenges the sufficiency of the convicting evidence. We affirm pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/dickersonord.wpd STATE OF TENNESSEE, v. ARCENTA VAN HARRISON Court:TCCA Attorneys: Jeffrey A. DeVasher, Assistant Public Defender, and Ralph Newman, Assistant Public Defender, Nashville, Tennessee, for appellant Arcenta Van Harrison. Paul G. Summers, Attorney General and Reporter, and David H. Findley, Assistant Attorney General, Nashville, Tennessee, for appellee, State of Tennessee Judge: SMITH First Paragraph: The appellant, Arcenta Van Harrison, pled guilty in the Davidson County Criminal Court to three (3) counts of theft of property over $500 and two (2) counts of theft of property over $1,000. The trial court sentenced the appellant to concurrent terms of four (4) years for the theft over $500 counts as a Range II offender and eight (8) years for the theft over $1,000 counts as a Range III offender. http://www.tba.org/tba_files/TCCA/HarrisonAV.wpd STATE OF TENNESSEE, v. GARY LAMAR MCBRIDE Court:TCCA Attorneys: Jack A. Butler, Nashville, Tennessee, for the appellant, Gary Lamar McBride. Paul G. Summers, Attorney General and Reporter, and Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The defendant/appellant, Gary Lamar McBride, appeals as of right from a conviction for murder second degree by a Davidson County jury. The Davidson County Criminal Court imposed a sentence of sixteen (16) years in the Department of Correction. The defendant presents three appellate issues: 1. Whether the trial court erred in allowing the defendant's statement to be read to the jury and not suppressing the same. 2. Whether the trial court erred in not finding that the proof adduced at trial by the State is in conflict with the physical facts rule applicable to criminal cases. 3. Whether the evidence adduced at trial was sufficient to convict the defendant of murder second degree. http://www.tba.org/tba_files/TCCA/mcbridegl.wpd STATE OF TENNESSEE, v. STEVEN D. PITTMAN Court:TCCA Attorneys: William A. Lane, Murfreesboro, Tennessee, for the appellant, Steven D. Pittman. Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, for the Appellee, State of Tennessee Judge: SMITH First Paragraph: A Davidson County jury convicted the appellant, Steven D. Pittman, of one (1) count of possession with the intent to sell over 0.5 grams of cocaine, one (1) count of felonious possession of a weapon and one (1) count of simple possession of marijuana. The trial court sentenced the appellant as a Range I offender to concurrent terms of eleven (11) years for possession with the intent to sell cocaine, two (2) years for felonious possession of a weapon and eleven (11) months and twenty-nine (29) days for marijuana possession. http://www.tba.org/tba_files/TCCA/PITTMANS.wpd STACY STEWART, v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for appellant, Stacy E. Stewart Paul G. Summers, Attorney General and Reporter and Marvin E. Clements, Jr., Assistant Attorney General, Nashville, Tennessee, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Stacy E. Stewart, pled guilty in the Davidson County Criminal Court to one (1) count of the sale of less than 0.5 grams of cocaine. The trial court sentenced him to three (3) years, suspended upon service of 180 days in the local workhouse. Approximately three (3) months after his release, a warrant was issued alleging that the appellant had violated the terms of his probation in that he failed to report to a probation officer, and that he had committed misdemeanors while on probation. After an evidentiary hearing, the trial court revoked the appellant's probation. http://www.tba.org/tba_files/TCCA/stewarts.wpd JOE L. UTLEY v. STATE OF TENNESSEE Court:TCCA Attorneys: William A. Lane, Murfreesboro, Tennessee, for the appellant, Joe L. Utley. Michael Moore, Solicitor General, Clinton J. Morgan, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, and Tom Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner filed a petition for post-conviction relief that was subsequently denied by the post- conviction court. The judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/utleyjl.wpd PLEASE FORWARD THIS E-MAIL! 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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