May 24, 2000 Volume 6 -- Number 078 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):   01 New Opinion(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 0 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 04 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) 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 STATE OF TENNESSEE, et al. v. BROWN & WILLIAMSON TOBACCO COMPANY, et al v. GREGORY BENNETT PERRY AND STEVE LLOYD CHAMPION, ET AL. Court:TSC First Paragraph: A petition for rehearing has been filed on behalf of the Beckom appellants pursuant to Tennessee Rules of Appellate Procedure Rule 39. After consideration of the same, the Court is of the opinion that the petition should be and the same hereby is denied at the cost of the Beckom appellants. http://www.tba.org/tba_files/TSC/BWreh.wpd LANDSTAR POOLE, INC. v. GEORGE HUGH RHOADES, JR. Court:TSC - Workers Comp Panel Attorneys: Kent. E. Krause, Nashville, Tennessee, for the appellant, Landstar Poole, Inc. Alan Wise, Nashville, Tennessee, for the appellee, George Hugh Rhoades, Jr. Judge:LEWIS 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. http://www.tba.org/tba_files/TSC_WCP/landstarpoole.wpd LINDA LILES v. THE YASUDA FIRE & MARINE INSURANCE COMPANY OF AMERICA Court:TSC - Workers Comp Panel Attorneys: A. Gregory Ramos, Nashville, Tennessee, for the appellant, The Yasuda Fire & Marine Insurance Company of America, Inc. Christina Henley Duncan, Manchester, Tennessee, for the appellee, Linda Liles. Judge: LEWIS 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. http://www.tba.org/tba_files/TSC_WCP/lileslinda.wpd JUDICIAL ETHICS COMMITTEE ADVISORY OPINION NO. 00-02 Court:TSC - Rules First Paragraph: The committee has been asked to render an ethics opinion as to whether Knox County General Sessions Judges, as a matter of public policy, should recuse themselves from cases in which a specific Knox County Deputy Sheriff is involved. The factual basis for the request for this ethics opinion is that a Knox County Deputy, during the course of a preliminary hearing, admitted, while under oath and in open court, that he had lied under oath in order to procure the issuance of an arrest warrant. The fabrications were factual in nature and formed the basis for the issuance of the arrest warrant and related to a fabricated, fictional defendant. http://www.tba.org/tba_files/TSC_Rules/00-02.wpd BILLY JOE CHILDRESS v. NATASHA BARNES CURRIE, both individually and as administrator C.T.A. of the ESTATE OF VIRGINIA MARY LEONARD, Court:TCA Attorneys: Charles W. Fowler and Adam F. Glankler, Memphis, Tennessee, for the appellant, Natasha Barnes Currie. J. Thomas Caldwell, Ripley, Tennessee, for the appellee, Billy Joe Childress. Judge: FARMER First Paragraph: In this dispute, Plaintiff Billy Joe Childress contests a will executed by Virginia Mary Leonard ("the Decedent") on May 22, 1997, the sole beneficiary of which is Defendant Natasha Barnes Currie. A jury found that the Decedent had testamentary capacity to execute the May 22, 1997 will and that there was clear and convincing evidence to overcome the presumption that Ms. Currie exercised undue influence over the Decedent. Upon a post-trial motion filed by Mr. Childress, however, the trial court set aside the jury verdict. For the reasons set forth below, we reverse the ruling of the trial court and reinstate the jury verdict in favor of Ms. Currie. http://www.tba.org/tba_files/TCA/childressbj.wpd ROGER L. KAUFMAN v. STATE OF TENNESSEE, et al. Court:TCA Attorneys: Roger L. Kaufman, Pro Se. Tom Anderson, Jackson, Tennessee, for the appellee, Corrections Corporation of America. Judge: FARMER First Paragraph: An inmate presently in custody of the Whiteville Correctional Facility (WCF) sued the warden of that facility, Corrections Corporation of America (CCA), its CEO and the State of Tennessee. He seeks release from that facility contending that the State of Wisconsin Department of Corrections (DOC) released him and surrendered him to a facility outside the borders of the State of Wisconsin for incarceration. The trial court dismissed the cause of action and we affirm. http://www.tba.org/tba_files/TCA/kaufmanrl.wpd STATE OF TENNESSEE v. STEVIE SMITH Court:TCA Attorneys: Mark E. Stephens, District Public Defender, R. Scott Carpenter, Assistant Public Defender, and Paula R. Voss, Assistant Public Defender, Knoxville, Tennessee, for the appellant, Stevie Smith. Paul G. Summers, Attorney General and Reporter, Patricia C. Kussmann, Assistant Attorney General, Randall E. Nichols, District Attorney General, Charme Knight, Assistant District Attorney General, and Steve Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Stevie Smith was convicted by a jury of two counts of aggravated sexual battery and one count of assault. The trial court subsequently imposed an effective sentence of nine years. Defendant challenges his convictions, raising the following issues: (1) whether the evidence is sufficient to support the convictions for aggravated sexual battery; (2) whether the trial court should have suppressed a statement that Defendant gave to police; and (3) whether the trial court properly admitted evidence about the manner in which offenders make confessions during questioning by police. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCA/smiths.wpd GINGER TAYLOR WALTER v. JAMES KEENER WALTER Court:TCA Attorneys: J. Russell Pryor, Greeneville, Tennessee, for the appellant, Ginger Taylor Walter. Linda Thomas Woolsey, Greeneville, Tennessee, for the appellee, James Keener Walter. Judge: GODDARD First Paragraph: This appeal arises from a petition to change custody of the parties' two minor children. The Father filed suit in the Chancery Court for the change of custody, and the Court granted the relief sought. On this appeal, the Mother takes issue with the Chancery Court's decision insisting the proof did not warrant a change of custody. We affirm the Chancery Court's judgment and remand for such further proceedings as may be necessary. http://www.tba.org/tba_files/TCA/waltergin.wpd STATE OF TENNESSEE v. ANTONIO BRIGGS Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, attorney for appellant, Antonio Briggs. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, J. Ross Dyer, Assistant Attorney General, William L.Gibbons, District Attorney General, and William Bond, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant appeals his conviction by a Shelby County jury for the offense of sexual battery. On appeal, the appellant argues (1) the legal sufficiency of the convicting evidence and (2) the trial court's admission of evidence of a prior bad act. After consideration of these issues, we conclude that no error of law exists requiring reversal. Accordingly, we affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/BRIGGS~1.wpd STATE OF TENNESSEE v. DAMION CARRICK Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Damion Carrick. Paul G. Summers, Attorney General & Reporter, Patricia C. Kussman, Assistant Attorney General, William L. Gibbons, District Attorney General, and Rosemary Sue Andrews, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his jury convictions of two counts of Especially Aggravated Robbery and his twenty-five year sentences. The evidence is sufficient to support a conviction, the photographic line up not unduly suggestive, and the length of sentence appropriate. However, the testimony concerning the defendant "being developed as a suspect" was improperly admitted, but the error harmless. Further, plain error requires merging the two convictions of Especially Aggravated Robbery into one conviction and modification of the defendant's sentence but not its length. http://www.tba.org/tba_files/TCCA/CARRICKD.wpd TRACY DAVIDSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Craig V. Morton, II, Memphis, Tennessee, for the appellant, Tracy Davidson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rosemary Andrews, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Tracy Davidson, appeals the denial of his petition for post-conviction relief by the Shelby County Criminal Court. Pursuant to a plea agreement, petitioner entered a guilty plea to especially aggravated kidnapping, especially aggravated robbery, and first degree murder. Petitioner received a twenty-five year sentence for especially aggravated kidnapping, a twenty-five year sentence for especially aggravated robbery, and a sentence of life in prison without the possibility of parole for the first degree murder conviction, with all sentences to run concurrently. Petitioner now claims he received ineffective assistance of counsel and that his guilty pleas were not knowingly and intelligently entered. After a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Davidsontracy.wpd STATE OF TENNESSEE v. WILLIE L. DOUGLAS Court:TCCA Attorneys: Bill Anderson, Memphis, Tennessee, for the appellant, Willie L. Douglas. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, William L. Gibbons, District Attorney General, and Julie Mosley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted of aggravated robbery in Shelby County Criminal Court and he appeals. He challenges only the sufficiency of the evidence. We affirm in accordance with Rule 20 of the Rules of the Tennessee Court of Criminal Appeals, holding that the evidence is sufficient to support the Defendant's conviction. http://www.tba.org/tba_files/TCCA/DOUGLA~1.wpd STATE OF TENNESSEE v. MICHAEL DWAYNE EDWARDS Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, attorney for the appellant Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, Robert Radford, District Attorney General, attorneys for the appellee State of Tennessee Judge: WITT First Paragraph: The defendant directly appeals his jury conviction of burglary and challenges the sufficiency of the evidence by claiming, inter alia, that the "cancellation rule" should be applied to negate the inculpative testimony of a prosecution witness. Because we conclude that this is not a proper case for application of the cancellation rule and that the evidence is sufficient to support the verdict, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/EDWARD~1.wpd ANDRE JACKSON v. FRED RANEY, WARDEN Court:TCCA Attorneys: Andre Jackson, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Clinton J. Morgan, Counsel for the State, for the appellee, Fred Raney, Warden. Judge: GLENN First Paragraph: This appeal arises from the trial court's denial of the petitioner's pro se petition for habeas corpus relief based on his assertions that his guilty plea to second degree murder was void and illegal and that he had ineffective assistance of counsel in advising him to accept the plea agreement. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/JACKSONA.wpd STATE OF TENNESSEE v. MARCEL McCROY Court:TCCA Attorneys: W. Mark Ward, Assistant District Public Defender (on appeal), A. C. Wharton, Jr., District Public Defender (of counsel), Leonard E. Van Eaton (at trial), Memphis, Tennessee, for the appellant, Marcel McCroy. Paul G. Summers, Attorney General and Reporter, Tara B. Hinkle, Assistant Attorney General, Elaine Sanders, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Marcel McCroy, was charged with and convicted of aggravated robbery. The trial court imposed a nine-year sentence. Despite the testimony of several alibi witnesses presented by the defense, the identification evidence presented at trial was sufficient to support the conviction. The judgment is, therefore, affirmed. http://www.tba.org/tba_files/TCCA/McCroy1.wpd STATE OF TENNESSEE v. DAVID CARL ORR Court:TCCA Attorneys: Daniel J. Taylor, Jackson, Tennessee, for the appellant, David Carl Orr. Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General, Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, David Carl Orr, was convicted in the Madison County Circuit Court of voluntary manslaughter. The trial court sentenced the appellant as a standard, Range I offender to four years and six months in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's sentencing determination. In essence, the appellant contests the length of his sentence, arguing that the trial court erroneously applied the enhancement factor set forth in Tenn. Code Ann. S 40-35-114(1) (1997) in determining his sentence. The appellant also contests the trial court's denial of a sentencing alternative to incarceration. Following a thorough review of record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ORRDAV~1.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! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2000 Tennessee Bar Association