May 10, 2000 Volume 6 -- Number 070 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 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 JUDY F. BARNETT VS. NN BALL & ROLLER, INC. and WASAU INSURANCE COMPANIES Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellees: J. Christopher Booth Herbert B. Williams 4002 Fort Henry Drive Stokes, Rutherford, P. O. Box 6184 Williams, Sharp & Davies Kingsport, Tenn. 37663 P. O. Box 2644 Knoxville, Tenn. 37901 Judge: THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appeal has been perfected by the employee, Judy F. Barnett, from the action of the trial court in awarding her 65% permanent partial disability to the body as a whole. On appeal the employee insists the award of disability is not sufficient and that her disability should be fixed at 100%. http://www.tba.org/tba_files/TSC_WCP/barnett1.wpd MACK BROWN v. DWIGHT W. OGLE, ET AL. Court:TCA Attorneys: Carl W. Eshbaugh of Knoxville for the Appellant Wayne A. Ritchie of Knoxville for the Appellees Judge: GODDARD First Paragraph: This is a suit wherein the Plaintiff seeks damages by reason of the Defendants conspiring to deprive him of his rightful share in assets of a corporation, Toni Motel, Inc. The suit was filed on September 16, 1983, as a share holder's derivative suit and was ultimately dismissed by the Trial Court under the doctrine of laches on the part of the Plaintiff. The order of dismissal was entered on January 14, 1999, nunc pro tunc as of December 14, 1998. The Plaintiff appeals contending laches does not apply, particularly since the suit was timely filed. We find the Trial Court's action was appropriate and affirm the judgment entered. http://www.tba.org/tba_files/TCA/brownmac.wpd CRESTIN BURKE, et al. v. JAMES MONTY BURKE, et al. Court:TCA Attorneys: Michael Hatmaker of Jacksboro for the Appellants Johnny V. Dunaway of LaFollette for Appellees Judge: GODDARD First Paragraph: This is a suit wherein the Plaintiffs sought an easement by reason of real property being landlocked. The defendants contended that the property was not landlocked. The Chancellor found that the property was landlocked and granted an easement to the property. The plaintiffs appealed. We find that the Trial Court's action was appropriate and affirm the judgment entered. http://www.tba.org/tba_files/TCA/burkecre.wpd ALPHONSO BRADFORD v. STATE OF TENNESSEE Court:TCCA Attorneys: Thomas H. Potter, Nashville, Tennessee, for the appellant, Alphonso Bradford. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, and Katrin Novak Miller, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner has appealed the denial of his petition for post-conviction relief. He was indicted by the Davidson County Grand Jury for first degree murder and entered a guilty plea to second degree murder, receiving a sentence of sixty years as a Range III offender. In his post-conviction petition, the petitioner alleged that his counsel was ineffective and his plea was coerced. After a hearing on the post-conviction petition, the trial court denied relief on November 20, 1996. The petitioner filed a notice of appeal on January 14, 1999, pursuant to an order of this court allowing a delayed appeal to be filed. We affirm the trial court's denial of the petitioner's post-conviction petition. http://www.tba.org/tba_files/TCCA/bradforda.wpd STATE OF TENNESSEE, v. ANTONIO BREWSTER. Court:TCCA Attorneys: R.N. (Bo) Taylor, Goodlettsville, Tennessee for the appellant Antonio Brewster. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General; Victor S. Johnson, District Attorney General and Thomas B. Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Defendant was convicted in the Criminal Court, Davidson County, Wyatt, Randall J., of felony murder in the perpetration of a robbery, attempted aggravated robbery, aggravated robbery, and two counts of attempted first-degree murder. The defendant appealed. The Court of Criminal Appeals, Smith J., held that: (1) the trial court did not err in denying the defendant's motion to suppress his statement; (2) there was sufficient evidence that the defendant murdered a bystander in the perpetration of a robbery to support conviction for felony murder; and (3) the defendant was not denied the effective assistance of counsel at trial. Affirmed. http://www.tba.org/tba_files/TCCA/BREWSTERANT.wpd RANDY HAYES v. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory D. Smith (on appeal), Clarksville, Tennessee, and Charles Allen, Assistant Public Defender (at trial and on appeal), Oneida, Tennessee, for the appellant, Randy Hayes. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, William Paul Phillips, District Attorney General, and John W. Galloway, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This appeal arises from a guilty plea by the petitioner on two counts of kidnapping. Pursuant to the plea agreement with the State, the petitioner was sentenced to two concurrent twelve-year sentences on September 19, 1996. On February 28, 1997, the petitioner filed a post-conviction petition alleging ineffective assistance of counsel and prosecutorial misconduct. Following a hearing on May 15, 1998, the trial court denied and dismissed the petition on May 22, 1998. After a careful review of the record, we affirm the trial court's dismissal of the petitioner's petition. http://www.tba.org/tba_files/TCCA/hayesr.wpd STATE OF TENNESSEE v. JAMES A. JACKSON Court:TCCA Attorneys: Jerry C. Colley, Columbia, Tennessee, for the appellant, James A. Jackson. Paul G. Summers, Attorney General and Reporter, Mark E. Davidson, Assistant Attorney General, Derek Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: James A. Jackson appeals his conviction by a jury in the Williamson County Circuit Court of one count of possession of three hundred (300) grams or more of cocaine with intent to sell or deliver, a class A felony, one count of possession of one-half (_) ounce or more of marijuana with intent to sell or deliver, a class E felony, and one count of possession of drug paraphernalia, a class A misdemeanor. Pursuant to the appellant's convictions, the trial court imposed an effective sentence of twenty years incarceration in the Tennessee Department of Correction. On appeal, the appellant presents the following issues for review: (1) whether the trial court erred in overruling the appellant's pre-trial motion to suppress; (2) whether the trial court erred in denying the appellant's motion for a judgment of acquittal at the close of the State's case and, again, at the conclusion of the trial; and (3) whether the evidence adduced at trial supports the jury's verdicts. Following a review of the record and the parties' briefs, we reverse the judgments of the trial court. http://www.tba.org/tba_files/TCCA/jacksonja.wpd JOHN EDGAR JUSTICE, JR., v. STATE OF TENNESSEE. ORDER Court:TCCA Judge: Per Curium First Paragraph: The petitioner, John Edgar Justice, Jr., appeals the order of the Davidson County Criminal Court dismissing his petition for writ of habeas corpus. The petitioner is presently serving an effective ten (10) to twenty-six (26) year sentence for convictions he received in the late 1970's. In his pro se petition for writ of habeas corpus, he claims that the judgments of conviction are void and illegal and that his sentences have expired. The trial court summarily dismissed the petition without appointment of counsel. After a thorough review of the record before this Court, we affirm the trial court's judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/justicej_ord.wpd STATE OF TENNESSEE v. MONICA L. MADDEN, a/k/a SHANA VALESHIA GOODWIN, a/k/a MONICA WRIGHT Court:TCCA Attorneys: Cynthia M. Fort (on appeal) and Glenn R. Funk (at trial), Nashville, Tennessee, for the appellant, Monica L. Madden. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General, and Pamela S. Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: Pursuant to a plea bargain agreement, the defendant pled guilty in Davidson County Criminal Court to two counts of assault and one count of accessory after the fact. She received an effective sentence of two years. The defendant appeals the trial court's order that her sentence be served in the workhouse rather than in some alternative form, asserting that the trial court erred in considering her arrests while on bond as indications of her unsuitability for alternative sentencing; in making its determination based solely on her arrests while on bond; and in failing to consider her participation in a counseling program. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/maddenml.wpd STATE OF TENNESSEE v. THOMAS D. SMITH Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Thomas D. Smith. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Thomas D. Smith, appeals his conviction by a jury in the Robertson County Circuit Court of possession of 0.5 grams or more of cocaine with intent to sell. The appellant was convicted on the same day of simple possession of marijuana. In accordance with Tenn. Code Ann. S 39-17- 432 (1997), the "Drug-Free School Zone Act," and in accordance with the appellant's career offender status, the trial court imposed an effective sentence of sixty years incarceration in the Tennessee Department of Correction. The appellant now challenges the constitutionality of the Drug-Free School Zone Act. 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/smithtd.wpd STATE OF TENNESSEE V. WILLIAM JOSEPH TAYLOR Court:TCCA Attorneys: Marvin E. Clements, Jr., Assistant Attorney General, Tom P. Thompson, Jr., District Attorney General, Robert N. Hibbitt, Assistant District Attorney General, for the appellant, State of Tennessee. F. Michie Gibson, Jr., Nashville, Tennessee, for the appellee, William J. Taylor. Judge: ACREE First Paragraph: The defendant was initially tried and convicted in Rutherford County for the crime of rape of a child. On appeal, this Court found that the defendant's trial counsel was ineffective and remanded the case for a new trial. After remand, the defendant was indicted in Wilson County. The Wilson County Criminal Court found that the double jeopardy clauses of the United States Constitution and the Tennessee Constitution prohibited the State from prosecuting the defendant and dismissed the indictment. The State appealed the dismissal. We reverse the decision of the trial court and remand for a trial. http://www.tba.org/tba_files/TCCA/taylor.wpd PLEASE FORWARD THIS E-MAIL! 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