June 26, 2000 Volume 6 -- Number 099 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 03 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 JOHN PAUL SEALS v. STATE OF TENNESSEE AND VIKKI LYNN FRITTS SPELLMAN v. STATE OF TENNESSEE CORRECTED OPINION Court:TSC Attorneys: Paul G. Summers, Attorney General & Reporter, and Michael E. Moore, Solicitor General, and Ellen H. Pollack, Assistant Attorney General, Peter M. Coughlan, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. Marti L. Kaufman, Memphis, Tennessee, for the appellees, John Paul Seals and Vikki Lynn Fritts Spellman. Judge: ANDERSON First Paragraph: We granted review in this consolidated appeal to determine whether mental incompetency tolls the one-year statute of limitations for filing a post-conviction petition under either a savings provision or constitutional due process. The trial court dismissed the petitions for being time-barred. The Court of Criminal Appeals held that constitutional due process requires that the statute of limitations be tolled while a petitioner is mentally incompetent. We conclude that the statute of limitations is not tolled by a savings provision but may be tolled by due process concerns where a petitioner is denied a reasonable opportunity to raise a claim in a meaningful time and manner. We affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/Seals.wpd STATE OF TENNESSEE v. DENNIS WADE SUTTLES WITH DISSENTING PINION WITH APPENDIX Court:TSC Attorneys: Leslie M. Jeffress and Brandt Davis, Knoxville, Tennessee, for the appellant, Dennis Wade Suttles. Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Marvin S. Blair, Jr., Assistant Attorney General, Randall E. Nichols, District Attorney General, S. Jo Helm and William Crabtree, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: The appellant, Dennis Wade Suttles, was convicted of first degree premeditated murder and sentenced to death for the killing. The Court of Criminal Appeals affirmed both his conviction and sentence. The case was docketed in this Court, and after a careful review of the record and the relevant legal authorities, we conclude that the evidence is sufficient to support the jury's finding of premeditation, the evidence is sufficient to support the jury's finding that the murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death, and the sentence of death in this case is not excessive or disproportionate considering the circumstances of the crime and the defendant. Accordingly, the judgment of the Court of Criminal Appeals upholding the defendant's conviction and sentence is affirmed. http://www.tba.org/tba_files/TSC/suttlesdw_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/suttlesd_dis.wpd APPENDIX http://www.tba.org/tba_files/TSC/suttlesccaappx.wpd BOBBIE JO COKER v. MODERN MOLD INTERNATIONAL, INC. d/b/a NATIONAL PEN CORPORATION Court:TSC - Workers Comp Panel Attorneys: Fred B. Hunt, Bobo, Hunt & Bobo, Shelbyville, for the appellant, Modern Mold International, Inc. d/b/a National Pen Corporation, et al. C. Kelly Wilson, Shelbyville, for the appellee, Bobbie Jo Coker. Judge: LOSER First Paragraph: In this appeal, the employer, National Pen Corporation, contends (1) the employee did not experience a work related injury and (2) the employee failed to give notice as required by Tenn. Code Annotated S 50-6-201. http://www.tba.org/tba_files/TSC_WCP/cokerbobbiejo.wpd PHILLIP W. LEE v. SHONEY'S, INC. Court:TSC - Workers Comp Panel Attorneys: Mark A. Baugh, Nashville, Tennessee, for the appellant, Shoney's, Inc. James M. Hunter, Jr., for the appellee, Phillip W. Lee. Judge: LOSER First Paragraph: By this appeal, the employer contends (1) the injury did not occur in the scope and course of employment, (2) the award of permanent disability benefits is excessive and (3) the chancellor erred by commuting the award to a lump sum. http://www.tba.org/tba_files/TSC_WCP/leephillip.wpd TRANSPORTATION UNLIMITED, INC., v. MICHAEL GRUBER, et al. Court:TSC - Workers Comp Panel Attorneys: Reid D. Leitner, Nashville, Tennessee, for the appellant, Transportation Unlimited, Inc. J. Mark Rogers, Murfreesboro, Tennessee, for the appellee, Michael Gruber. Judge: LOSER First Paragraph: The employer, Transportation Unlimited initiated this civil action, seeking a declaration that it's employee's claim for workers' compensation benefits be disallowed because the claimed injury was merely an episode of pain from a previous injury and because, it averred in its amended complaint, the employee misrepresented his medical condition when he applied for employment. The employee or claimant, Michael Gruber, denied any such misrepresentation and filed a counterclaim for medical and disability benefits. The employer's motion for summary judgment was disallowed and, after a trial on the merits, the trial court awarded benefits and discretionary costs to the claimant. http://www.tba.org/tba_files/TSC_WCP/transport.wpd STATE OF TENNESSEE v. REGINALD GARNER BROWN Court:TCCA Attorneys: Paula Ogle Blair, Nashville, Tennessee attorney for the appellant, Reginald Garner Brown. Paul G. Summers, Attorney General and Reporter and Marvin E. Clements, Jr., Assistant Attorney General and Victor Johnson, District Attorney General, Roger Moore, Sharon Brox, Assistant District Attorneys, for the appellee, State of Tennessee Judge: SMITH First Paragraph: A Davidson County jury convicted the appellant, Reginald Garner Brown, of one (1) count of first degree felony murder, one (1) count of especially aggravated kidnapping, one (1) count of aggravated robbery and one (1) count of aggravated burglary. The trial court sentenced the appellant as a Range I offender to consecutive terms of life for murder, twenty-five (25) years for especially aggravated kidnapping, twelve (12) years for aggravated robbery and six (6) years for aggravated burglary. http://www.tba.org/tba_files/TCCA/brownregi.wpd STATE OF TENNESSEE v. HELEN DIXON DEVERS Court:TCCA Attorneys: R.H. Stovall, Jr., Columbia, Tennessee, for the appellant, Helen Dixon Devers. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, J. Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: Helen Dixon Devers appeals her conviction by a jury in the Wayne County Circuit Court of one count of driving under the influence, first offense, a class A misdemeanor, and one count of resisting arrest, a class B misdemeanor. Pursuant to the appellant's conviction of driving under the influence, first offense, the trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Wayne County Jail, suspending all but ninety days. Pursuant to the appellant's conviction of resisting arrest, the trial court imposed a concurrent sentence of six months incarceration in the Wayne County Jail, again suspending all but ninety days. http://www.tba.org/tba_files/TCCA/Devershelen.wpd STATE OF TENNESSEE v. DELBERT LEE HARRIS Court:TCCA Attorneys: Jack L. Garton, Dickson, Tennessee, for the appellant, Delbert Lee Harris. 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: GLENN First Paragraph: The defendant was convicted of rape, rape of a child, aggravated assault, and attempted sexual battery. An effective sentence of thirty-two years at thirty percent was imposed. On direct appeal, this court affirmed the convictions but remanded the case to the trial court for resentencing, finding the trial court erred in imposing an erroneous release eligibility status. Upon resentencing, the trial court imposed an effective sentence of thirty-two years at one hundred percent. The defendant now complains that this sentence is excessive. After review, we affirm. http://www.tba.org/tba_files/TCCA/harrisdl.wpd STATE OF TENNESSEE v. WILLIAM RICKY WAYNE HERRELL Court:TCCA Attorneys: Sheri S. Phillips, Clarksville, Tennessee, attorney for appellant, William Ricky Wayne Herrell. Paul G. Summers, Attorney General & Reporter; David H. Findley, 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: TIPTON First Paragraph: The defendant, William Ricky Wayne Herrell, appeals his sentences resulting from his convictions following guilty pleas to two counts of burglary, two counts of theft of property valued over one thousand dollars, one count of obtaining a schedule IV drug by fraud, and one count of theft of property valued under five hundred dollars. The defendant contends that his sentences are excessive because the trial court erred in weighing the enhancement and mitigating factors and in imposing consecutive sentences. We affirm the sentences imposed by the trial court. http://www.tba.org/tba_files/TCCA/Herrellwrw.wpd STATE OF TENNESSEE v. CHARLES E. KILPATRICK, JR. Court:TCCA Attorneys: John B. Nisbet III, Cookeville, Tennessee, for the appellant, Charles E. Kilpatrick, Jr. Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney General, and Owen G. Burnett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant was convicted of possession of a controlled substance in a penal institution. On appeal, he claims that the evidence was insufficient because the county jail is not a "penal institution" and that the trial court erred by admitting evidence of the controlled substance found in the defendant's cell, by allowing certain officers not listed on the indictment to testify, and by imposing the maximum sentence within the applicable range. We hold that a county jail is a "penal institution" within the meaning of Tenn. Code Ann. S 39-16-201(a)(2), that a proper chain of custody was established for the controlled substance, that admission of the officers' testimony for chain of custody purposes was not error, and that the sentence was justified. http://www.tba.org/tba_files/TCCA/Kilpatrick.wpd STATE OF TENNESSEE v. DARREN MATTHEW LEE Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee attorney for the appellant, Darren Matthew Lee. Paul G. Summers, Attorney General and Reporter and Clinton J. Morgan, Assistant Attorney General attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: A Marshall County jury convicted the appellant, Darren Matthew Lee, of one (1) count of aggravated assault, a Class C felony. The trial court sentenced the appellant as a Range II, Multiple Offender, to ten (10) years incarceration. On appeal, the appellant claims that the evidence is insufficient to sustain his conviction for aggravated assault. Specifically, he argues that there is insufficient evidence that the victim sustained "serious bodily injury" as is required for the offense. The appellant also claims the evidence of his identity as the assailant is insufficient. After thoroughly reviewing the record before this Court, we conclude that the evidence is sufficient to support the jury's finding of both serious bodily injury to the victim and that the appellant was the assailant. As a result, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/leedarren.wpd STATE OF TENNESSEE v. RICCO DONNELL SUMMERS Court:TCCA Attorneys: Robert O. Bragdon, Murfreesboro, Tennessee, attorney for the appellant, Ricco Donnell Summers Paul G. Summers, Attorney General and Reporter and David H. Findley, Assistant Attorney General, attorney for the appellee, State of Tennessee. Judge: SMITH First Paragraph: A Rutherford County jury convicted the appellant, Ricco Donnell Summers, of one (1) count of possession with the intent to sell over 26 grams of cocaine and one (1) count of possession of drug paraphernalia. In addition, the Rutherford County Circuit Court, sitting without the jury, found the appellant guilty of one (1) count of possession of a weapon by a convicted felon. The trial court sentenced the appellant as a Range I offender to concurrent terms of ten (10) years for possession with the intent to sell, eleven (11) months and twenty-nine (29) days for possession of drug paraphernalia and two (2) years for unlawful possession of a weapon. http://www.tba.org/tba_files/TCCA/summersricco.wpd STATE OF TENNESSEE v. TERRY M. WATSON Court:TCCA Attorneys: C. Edward Fowlkes, Nashville, Tennessee attorney for the appellant, Terry M. Watson Paul G. Summers, Attorney General & Reporter and Todd R. Kelley, Assistant Attorney General, Nashville, Tennessee, attorneys for the appellee, State of Tennessee Judge: SMITH First Paragraph: A Davidson County jury convicted the appellant, Terry M. Watson, of driving under the influence of an intoxicant, fifth offense. The trial court sentenced the appellant to eleven (11) months and twenty-nine (29) days, suspended after service of 300 days in the county jail. On appeal, the appellant contends that: (1) the trial court erred in admitting evidence at trial regarding his post-arrest behavior; (2) the trial court erred in admitting evidence at trial that he failed to perform field sobriety tests; (3) the evidence is insufficient to sustain his conviction for driving under the influence, fifth offense; and (4) the trial court erred in failing to instruct the jury on circumstantial evidence during the second phase of the bifurcated trial. http://www.tba.org/tba_files/TCCA/watsonter.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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