April 17, 2000 Volume 6 -- Number 057 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):   02 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 03 New Opinion(s) from the Tennessee Court of Appeals 05 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 v. DON EDWARD CARTER Court:TSC Attorneys: C. Michael Robbins, Memphis, Tennessee, Gary F. Antrican, District Public Defender, Somerville, Tennessee, and Jeanie Kaess, Assistant Public Defender, Somerville, Tennessee, for the appellant, Don Edward Carter. Michael E. Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: This appeal arises from the incarceration of an individual for over 72 hours without his having been brought before a magistrate and without probable cause having been judicially determined. Don Edward Carter, the defendant, was arrested without a warrant and held for more than 72 hours. At no time during this period was he taken before a magistrate. He confessed while in custody. Following his indictment upon two counts of first degree murder (premeditated), Carter moved to suppress the confession on constitutional grounds and on the ground that Tenn. R. Crim. P. 5(a) had been violated. The trial court refused to suppress the confession, and it was admitted into evidence. The jury convicted Carter of both counts, and he was sentenced to concurrent terms of life imprisonment. On appeal, the Court of Criminal Appeals affirmed the trial court's ruling admitting the confession into evidence, the convictions, and the sentences. The issue before this Court is the admissibility of Carter's confession. Although we conclude that Carter's rights under the Fourth Amendment to the United States Constitution and Tenn. R. Crim. P. 5(a) were violated, we have determined that his confession was properly admitted into evidence. Accordingly, the judgment of the trial court and the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/carterd.wpd STATE OF TENNESSEE v. BARRY WINFRED RITCHIE Court:TSC Attorneys: Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; and Elizabeth B. Marney, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. Larry G. Roddy, Sale Creek, Tennessee, for appellee, Barry Winfred Ritchie. Judge: BARKER First Paragraph: We granted this appeal to determine whether a petitioner seeking a writ of habeas corpus is entitled to an evidentiary hearing to establish that the convicting court lacked territorial jurisdiction, when the record of the proceedings does not show that the court lacked such jurisdiction. We hold that because the scope of the writ of habeas corpus in Tennessee does not permit inquiry into facts outside of the original trial record, the appellee is not entitled to a hearing to introduce extrinsic evidence collaterally attacking the jurisdiction of the convicting court. Further, because we cannot find any clear and indisputable proof in the record that the Hamilton County Criminal Court lacked territorial jurisdiction to convict and sentence the appellee, we reverse the judgment of the Court of Criminal Appeals and dismiss the appellee's petition for the writ of habeas corpus. http://www.tba.org/tba_files/TSC/RitchieBW.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_0417.wpd LARRY CHERRY, et al. v. JOHN E. WILLIAMS, JR., et al. Court:TCA Attorneys: John T. Milburn Rogers, Greeneville, Tennessee, for the appellants, Larry Cherry and Money Management Services, Inc. Winston S. Evans, Nashville, Tennessee, for the appellee, John E. Williams, Jr. Thomas C. Corts, Nashville, Tennessee, for the appellee, L. Anthony Deas. Judge: KOCH First Paragraph: This appeal involves a dispute between a client and his two lawyers regarding their recommendations against accepting a plaintiff's settlement offer in a chancery court proceeding. After the chancellor and this court awarded his adversary damages far in excess of the settlement offers, the client filed a legal malpractice action against his lawyers in the Circuit Court for Davidson County. The two lawyers moved to dismiss the complaint based on the one-year statute of limitations, and the trial court, treating the motion as one for summary judgment, dismissed the complaint. The client asserts on this appeal that the limitations period did not begin to run until this court affirmed the judgment in the underlying case and that the running of the statute of limitations should have been tolled because the lawyers fraudulently concealed his cause of action against them while they continued to represent him. We have determined that the complaint is time barred and, therefore, affirm the summary judgment. http://www.tba.org/tba_files/TCA/Cherryl.wpd GLENDA JENNINGS, et vir KEITH JENNINGS VS. KENNETH CASE, M.D.; and CASE MEDICAL CLINIC, P.C.; P.C.; W. DAVID STEWART, M.D.; and ASSOCIATED SURGEONS Court:TCA Attorneys: ROBERT J. SHOCKEY 2400 Crestmoor Road, Suite 307 Nashville, Tennessee 37215 JAMES E. MOFFITT 1013 Vista Circle Franklin, Tennessee 37067 ATTORNEYS FOR PLAINTIFFS/APPELLANTS ROSE P. CANTRELL PHILLIP L. NORTH GEORGE A. DEAN North, Pursell & Ramos Parker, Lawrence, Cantrell & Dean Nations Bank Plaza 200 Fourth Avenue North Suite 1850 5th Floor, Noel Place Nashville, Tennessee 37219-1783 Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANTS/APPELLEES Judge: CAIN First Paragraph: This is a medical malpractice action in which the trial court granted summary judgment to both defendant physicians. The plaintiff has appealed arguing that there existed genuine issues of material fact. We agree with the plaintiff and reverse the decision of the trial court. http://www.tba.org/tba_files/TCA/Jengsgle.wpd MARY JANE LUSK, v. JESSE W. ENGLETT, VIRGINIA P. ENGLETT, AND JOSEPH D. ENGLETT. Court:TCA Attorneys: David D. Peluso, Hohenwald, Tennessee for the Defendants-Appellants. Douglas Thompson Bates, III, Centerville, Tennessee for Plaintiff-Appellee. Judge: FRANKS First Paragraph: In this boundary dispute, the Chancellor declared the boundary between the parties based upon the parties' deeds, and rejected defendants' contention that an old fence row established the boundary. Defendant has appealed. http://www.tba.org/tba_files/TCA/luskm.wpd STATE OF TENNESSEE, v. FREDERICK JAMES BRUSH Court:TCCA Attorneys: Ernest W. Williams, Franklin, Tennessee, for the appellant, Frederick James Brush. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, Dan Mitchum Alsobrooks, District Attorney General, and Robert Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Following denial of a motion to suppress, the appellant Frederick James Brush, entered a nolo contendere plea in the Stewart County Circuit Court to one count of aggravated sexual battery and received a sentence of eight years incarceration. Pursuant to Tenn. R. App. P. 3(b) and Tenn. R. Crim. P. 37(b)(2)(i), the appellant explicitly reserved the right to challenge the admissibility of evidence seized pursuant to a search of his residence. Specifically, he contends that the affidavit supporting issuance of the search warrant is insufficient to establish probable cause because it fails to establish the reliability of the three year old victim informant. As we find the issue not dispositive, we are without jurisdiction to entertain the appeal. Accordingly, the appeal is dismissed and the case remanded to the trial court. http://www.tba.org/tba_files/TCCA/BrushFJ.wpd STATE OF TENNESSEE v. DARRELL DODSON Court:TCCA Attorneys: John Drake, Murfreesboro, Tennessee, for the appellant, Darrell Dodson. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, Bill Gibson, District Attorney General, and William M. Locke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Following a jury trial, the Defendant was convicted of aggravated rape. He now appeals as of right from his conviction, raising the following six issues for our review: (1) Whether the evidence is sufficient to support his convictions; (2) Whether the trial court erred in failing to require the State to elect between the numerous alleged incidents of rape presented in the proof, thus depriving the Defendant of a unanimous jury verdict; (3) Whether the trial court erred in failing to grant an acquittal based upon insufficient showing of venue; (4) Whether the trial court erred in excluding the testimony of the counselor who would have corroborated the impotence of the Defendant based upon a statement of the Defendant made three months prior to the alleged rape; (5) Whether the conviction should be reversed based upon improper and prejudicial statements by the prosecutor; and (6) Whether the prejudicial effect of the testimony of Cheryl Carter outweighed the relevance of such testimony and whether such testimony was inadmissible under Tenn. R. Crim. P. 404(b). The State concedes that the trial court erred in failing to require the State to elect between the multiple incidents of rape presented in the proof, thereby depriving the Defendant of a unanimous jury verdict. Because we agree that the trial judge so erred, we reverse the Defendant's conviction and remand for a new trial. The remainder of the Defendant's issues are without merit. http://www.tba.org/tba_files/TCCA/dodsond.wpd STATE OF TENNESSEE v. VICTORIA S. GALINDO Court:TCCA Attorneys: John H. Henderson, Public Defender, and C. Diane Crosier, Assistant Public Defender, Franklin, Tennessee, for the appellant, Victoria S. Galindo. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, Ronald L. Davis, District Attorney General, and Sharon E. Tyler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: In this appeal the defendant, Victoria S. Galindo, challenges the length and manner of service of the sentences imposed by the trial court. Defendant pled guilty to three counts of forgery, Class E felonies. Defendant was sentenced to three consecutive two-year terms for an effective sentence of six years, with service to begin at the conclusion of a ten-month federal sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/GalindoV2.wpd STATE OF TENNESSEE v. ROBERT ALLEN LEGGETT Court:TCCA Attorneys: James Bryan Lewis and Joshua G. Strickland, Nashville, Tennessee, for the appellant, Robert Allen Leggett. Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, and John C. Zimmermann, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: In this appeal the defendant, Robert Allen Leggett, challenges the sentence imposed by the trial court. Defendant pled guilty to one count of conspiracy to sell over seventy pounds of marijuana and one count of money laundering, both Class B felonies. Defendant was sentenced to two eleven year sentences to run concurrently, and fined $10,000.00 for each count. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Leggett.wpd STATE OF TENNESSEE v. ALTON DARNELL YOUNG Court:TCCA Attorneys: Paul G. Summers, Attorney General; Todd R. Kelley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Terry James Haycox, Assistant District Attorney, for appellant, State of Tennessee. Richard McGee, Nashville, Tennessee, for appellee, Alton Darnell Young. Judge: TIPTON First Paragraph: In this case charging the defendant with felonious possession of a handgun, the state appeals from the trial court's suppression of the weapon as evidence. The state argues that the arresting officer had reasonable suspicion to stop the defendant. The defendant argues that the officer lacked probable cause. Although the trial court did not make specific findings of fact, the record indicates that the trial court determined that regardless of whether the officer had probable cause or reasonable suspicion to stop the defendant, the officer could not lawfully then seize the gun. At the suppression hearing, the officer demonstrated how the gun was lying under a rag in the defendant's vehicle. No explanation of this demonstration appears in the record. Because the trial court viewed the demonstration firsthand, we accredit the trial court's determination and affirm its suppression of the weapon as evidence. http://www.tba.org/tba_files/TCCA/Youngad.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! 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