Opinion Flash; 07/03/2000

July 3, 2000
Volume 6 -- Number 104

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

00 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

23 New Opinion(s) from the Tennessee Court of Criminal Appeals

02 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

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Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. DAVID THOMAS BARRON Court:TCCA Attorneys: Matthew M. Maddox, Huntington, Tennessee, for the appellant, David Thomas Barron. Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, G. Robert Radford, District Attorney General, Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: David Thomas Barron appeals from the trial court's denial of his petition for post-conviction relief. Upon review, we hold that the trial court properly denied his petition and affirm its judgment. http://www.tba.org/tba_files/TCCA/BARROND.wpd
STATE OF TENNESSEE v. CHARLES B. BRYAN Court:TCCA Attorneys: William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant. Paul G. Summers, Attorney General & Reporter, Nashville, Tennessee, J. Ross Dyer, Assistant Attorney General, Nashville, Tennessee, William L. Gibbons, District Attorney General, Memphis, Tennessee, Rhea Clift, Assistant District Attorney General, Memphis, Tennessee, for the appellant, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals his summary conviction of criminal contempt. Because we conclude that the trial court used an improper basis for convicting the defendant and erroneously denied him a hearing, the conviction is reversed and vacated, and the case is remanded to the trial court for further proceedings. http://www.tba.org/tba_files/TCCA/BRYANCB.wpd
STATE OF TENNESSEE v. JAMES CONRAD Court:TCCA Attorneys: C. Anne Tipton, Memphis, Tennessee, for the appellant, James Conrad. Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney General, Nashville, Tennessee, William L. Gibbons, District Attorney General, Lee Coffee, Assistant District Attorney General, Memphis, Tennessee, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from his conviction of extortion which arose from his activities as a "free lance bounty hunter." Because we find that the evidence was sufficient to support the conviction and that consecutive sentencing was mandatory for the defendant, who committed a felony while on parole for a felony, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/CONRADJ.wpd
STATE OF TENNESSEE v. LARRY CURRIE, et al. Court:TCCA Attorneys: Victoria L. DiBonaventura, Barton F. Robison and Jim L. Fields, Paris, Tennessee, for the appellants, Larry Currie and Christopher Curtis Love. Paul G. Summers, Attorney General and Reporter, and J. Ross Dyer, Assistant Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The defendants, Larry Currie and Christopher Curtis Love, appeal as of right from the jury verdict in the Henry County trial court that found them guilty of aggravated assault of the victim, Reginald Franklin Thompson. Each defendant was sentenced to three (3) years with one (1) year of continuous confinement and the balance on supervised probation. Both defendants filed motions for a new trial, which were denied by the trial court. The defendants collectively raise two issues for our consideration: (1) whether there was sufficient evidence for a rational trier of fact to find the defendants guilty of aggravated assault beyond a reasonable doubt; and (2) whether the jury improperly considered facts that were not in evidence in reaching its verdict. After careful review of the record, we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/CURRIEL.wpd
STATE OF TENNESSEE v. JAMES MALCOM DAVIS Court:TCCA Attorneys: Claudia S. Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant District Public Defender, Columbia, Tennessee, for the appellant, James Malcom Davis. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe , Assistant Attorney General; T. Michael Bottoms, District Attorney General; J. Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his sentence for driving under the influence first offense, a Class A misdemeanor. He entered an open plea of guilty and received a sentence of 11 months and 29 days, with 120 days to be served in confinement and the remainder to be served on supervised probation. The defendant argues the trial court erred in requiring him to be confined for 120 days. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/DavisJM.wpd
STATE OF TENNESSEE v. JAMES GREG ECHOLS Court:TCCA Attorneys: Marcus M. Reaves, Jackson, Tennessee, for the appellant. Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, James G. (Jerry) Woodall, District Attorney General, Donald J. Allen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals the trial court's dismissal of his appeal from the general sessions court and alleges that he should be excused from serving a 1993 DUI incarcerative sentence on the basis that the sentence has expired. The trial court's dismissal of the general sessions appeal is affirmed. http://www.tba.org/tba_files/TCCA/ECHOLSJG.wpd
STATE OF TENNESSEE V. JOHN R. FARNER, JR. Court:TCCA Attorneys: R. Wayne Culbertson and Richard A. Spivey, Kingsport, Tennessee, for the appellant, John R. Farner, Jr. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Teresa Murray-Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, John R Farner, Jr., appeals his convictions by a jury for two counts of criminally negligent homicide, two counts of reckless endangerment with a deadly weapon, drag racing, and leaving the scene of an accident involving death or injury for which he received an effective eight- year sentence. The defendant contends that the presentment did not put him on notice that he would be defending against a theory of criminal responsibility, that he is not criminally responsible for the actions of the deceased victims, that the officer was not qualified to testify as an accident reconstruction expert, that the computer-generated videotape of the accident was inadmissible, that the trial court should not have instructed the jury on flight, and that the trial court erred in sentencing. http://www.tba.org/tba_files/TCCA/Farnerjr.wpd
STATE OF TENNESSEE v. ROBERT GAMBLE Court:TCCA Attorneys: A.C. Wharton, Public Defender, Memphis, Tennessee, Garland Erguden, Assistant Public Defender, Memphis, Tennessee, for the appellant, Robert Gamble. Paul G. Summers, Attorney General and Reporter, Tara B. Hinkle, Assistant Attorney General, William L. Gibbons, District Attorney General, James M. Lammey, Assistant District Attorney General, for the appellee, State of Tennessee Judge: WELLES First Paragraph: The Defendant, Robert Gamble, was indicted for two counts of robbery, one count of the fraudulent use of a debit card, and one count of theft of property over $500. He was subsequently tried by a jury in Shelby County and found guilty of all charges. The trial court sentenced him as a career offender to an effective sentence of sixty-six years. In this appeal as of right, the Defendant argues that the evidence was insufficient to support his convictions and that he was improperly sentenced. We hold that the evidence presented at trial was sufficient to support the Defendant's convictions and that the Defendant was properly sentenced. Accordingly, we affirm the Defendant's convictions and his sentences. http://www.tba.org/tba_files/TCCA/GAMBLER.wpd
STATE OF TENNESSEE v. JEFFREY L. HAMMONS Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jerry D. Hunt, Assistant District Attorney General, for the appellant, State of Tennessee. Hugh Green, Lebanon, Tennessee, for the appellee, Jeffrey L. Hammons. Judge: RILEY First Paragraph: The state appeals the trial court's order granting the defendant's motion to suppress seized contraband. The defendant was indicted for possession of marijuana with intent to sell or deliver, driving on a revoked license, felony possession of a firearm, and possession of a firearm silencer. The defendant challenged the search of his vehicle. The trial court held the search was illegal and granted the defendant's motion to suppress the evidence. Upon a thorough review of the record, we find the initial search to be a lawful search incident to an arrest, and further hold the subsequent search of the defendant's trunk was conducted pursuant to a proper inventory of the vehicle. Therefore, the judgment of the trial court is reversed and the case remanded for further proceedings in accordance with this opinion. http://www.tba.org/tba_files/TCCA/hammonsJL.wpd
DURROCCUS D. HARRIS v. STATE OF TENNESSEE Court:TCCA Attorneys: William B. Bullock and John H. Baker III (on appeal), Murfreesboro, Tennessee, for the appellant, Durroccus D. Harris. Paul G. Summers, Attorney General & Reporter, Clinton J. Morgan, Assistant Attorney General, and Jennings H. Jones, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, who pled guilty to two counts of possession of cocaine over .5 grams, filed for post- conviction relief on the grounds that the plea agreement was breached by the Department of Correction's failure to place him in a boot camp program. The trial court summarily dismissed the petition. On appeal, we affirm the trial court's dismissal of the petition where (1) the petition was filed outside the one-year statute of limitations, and (2) the plea agreement included only a "recommendation" for boot camp that was not binding on the Department of Correction. http://www.tba.org/tba_files/TCCA/HarrisDD.wpd
WILLIAM E. JOHNSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Jeffery S. Glatstein, Memphis, Tennessee, attorney for appellant, William Johnson. Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Counsel for the State; William L. Gibbons, District Attorney General; and Glen C. Baity, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, William E. Johnson, appeals the trial court's denial of post-conviction relief. He contends that he received the ineffective assistance of counsel because his trial attorney failed to investigate the case, did not interview witnesses, did not subpoena psychological experts, and referred to himself as a "criminal defense lawyer" in front of the jury. He also argues that the convicting court erred by denying his request that it appoint him a new attorney. We affirm the trial court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/JOHNSO~1.wpd
STATE OF TENNESSEE v. HOWARD LANIER Court:TCCA Attorneys: C. Michael Robbins (on appeal), Memphis, Tennessee, Jim W. Horner (on appeal and at trial), District Public Defender, and John W. Derington (on appeal and at trial), Assistant District Public Defender, Dyersburg, Tennessee, for the appellant, Howard Lanier. Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant was convicted of sale of cocaine in excess of .5 grams. In this appeal, the defendant asserts that the evidence is insufficient to support his conviction because he acted merely as a procuring agent for the buyer. Because the procuring agent defense was abolished by the Criminal Reform Act of 1989, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lanier.wpd
STATE OF TENNESSEE v. TONY MABRY Court:TCCA Attorneys: AC Wharton, Kathryn Leslie Mozingo, and Tony N. Brayton, Memphis, Tennessee, for the appellant, Tony Mabry. Paul G. Summers, Attorney General and Reporter, Clinton G. Morgan, Counsel for the State, William L. Gibbons, District Attorney General, and Jennifer Smith Nichols, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant's conviction of Especially Aggravated Robbery is supported by sufficient evidence. The defendant's testimony, together with medical evidence, provided sufficient basis for a jury to find "serious bodily injury." The defendant's sentence is modified from thirty-two years to twenty- nine years because of misapplication of enhancing factors. http://www.tba.org/tba_files/TCCA/MABRYT.wpd
STATE OF TENNESSEE v. MARK STEVEN MARLOWE Court:TCCA Attorneys: J. Stephen Hurst, LaFollette, Tennessee, for the appellant, Mark Steven Marlowe. Paul G. Summers, Attorney General & Reporter, Ellen H. Pollock, Assistant Attorney General, Clifton H. Sexton and Shayne Sexton, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Mark Steven Marlowe, entered a plea of nolo contendere to statutory rape. In this appeal of right, he argues that the trial court improperly permitted the state to amend the indictment after his plea and that he was improperly denied probation. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Marlowe.wpd
STATE OF TENNESSEE v. JOHN A MELSON Court:TCCA Attorneys: Richard W. DeBerry, Assistant District Public Defender, Camden, Tennessee for the appellant, John Melson. Paul G. Summers, Attorney General and Reporter, and Clinton J. Morgan, Assistant Attorney General for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: On December 1, 1997, the defendant pled guilty to delivering less than .5 grams of cocaine and received a sentence of three years, with sixty days of the sentence to be served in jail and the balance on supervised probation. Following a probation revocation hearing on September 21, 1999, the trial court entered an order revoking probation and ordering the defendant to serve the three year sentence in prison. We conclude that the record contains substantial evidence to support the conclusion of the trial court that the defendant violated the terms of his probation. Therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/MelsonJohnA.wpd
STATE OF TENNESSEE v. SCOTTY E. MURPHY Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender; and Richard W. DeBerry, Assistant District Public Defender, Savannah, Tennessee, for the appellant, Scotty E. Murphy. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his convictions by a Hardin County jury of violating the Habitual Motor Vehicle Offender Act, felony evading arrest, felony reckless endangerment, and reckless driving. The defendant now contends that the evidence was insufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was the individual who committed these offenses. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/MURPHY~2.wpd
STATE OF TENNESSEE v. GLENN A. SADDLER Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, Comer L. Donnell, District Public Defender, Lebanon, Tennessee, and Ginger Townzen, Appellate Co-Counsel, Lebanon, Tennessee, for the defendant, Glenn A. Saddler. Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General, Tom P. Thompson, Jr., District Attorney General, and Jerry D. Hunt, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant in this direct appeal from a jury conviction of second degree murder argues that: (1) the trial court erred in excluding credibility evidence, an order restoring his citizenship, after he had been impeached with a prior conviction, (2) the evidence is insufficient, and (3) the sentence imposed is excessive. The judgment and sentence from the trial court are affirmed http://www.tba.org/tba_files/TCCA/SaddlerGA.wpd
STATE OF TENNESSEE v. DEJUAN JACQUES SCOTT Court:TCCA Attorneys: John E. Rodgers, Jr., Nashville, Tennessee, attorney for appellant, DeJuan Jacques Scott. Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Counsel for the State; Victor S. Johnson, III, District Attorney General; and Grady Alan Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, DeJuan Jacques Scott, appeals his conviction for especially aggravated robbery, contending (1) that the evidence was insufficient to show that he was the assailant, (2) that the short deliberation by the jury reflects a verdict based upon improper considerations, and (3) that his sentence is excessive. We hold that the evidence of the defendant's identity is sufficient and that the length of deliberations alone has no bearing upon the verdict. Because the defendant has failed to provide a transcript of the sentencing hearing, we presume the sentence imposed by the trial court is correct. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/Scottdj.wpd
STATE OF TENNESSEE v. JAYSON SORIANO Court:TCCA Attorneys: Henry R. Allison, III, Nashville, Tennessee, for the appellant, Jayson Soriano. Paul G. Summers, Attorney General and Reporter, Jennifer L. Bledsoe, Assistant Attorney General, Victor S. Johnson, District Attorney General, Kymberly Hass, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Petitioner, Jayson Soriano, appeals as of right from the trial court's denial of post-conviction relief. On February 26, 1996, the Petitioner pleaded guilty in Davidson County to the second degree murder of his wife, Elena Soriano. He subsequently filed a petition for post-conviction relief alleging that his guilty plea was the result of ineffective assistance of counsel and that it was not knowing and voluntary. After an evidentiary hearing, the trial court denied relief. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/sorianoj.wpd
STATE OF TENNESSEE v. CHRISTOPHER D. THACKER Court:TCCA Attorneys: B. Jeffery Harmon, Assistant Public Defender, Jasper, Tennessee, for the appellant, Christopher D. Thacker. Paul G. Summers, Attorney General & Reporter, Clinton J. Morgan, Assistant Attorney General, and Stephen Strain, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant pled guilty to vehicular assault as the result of intoxication and driving on a revoked license. The trial court imposed a three-year sentence for the vehicular assault, and, on appeal, the defendant contends that the trial court erred by refusing the defendant's request for a community corrections sentence. We conclude that the trial court did not abuse its discretion and affirm the judgment. http://www.tba.org/tba_files/TCCA/Thacker.wpd
STATE OF TENNESSEE v. LAWRENCE E. WHITE Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender; and Richard W. DeBerry, Assistant District Public Defender, Savannah, Tennessee, for the appellant, Lawrence E. White. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his convictions by a Hardin County jury of violating the Habitual Motor Vehicle Offender Act and failing to give immediate notice of an accident. The defendant was classified as a Range II Multiple Offender and sentenced to four years for the habitual motor vehicle offender violation and fined $50.00 for failing to give immediate notice of an accident. The defendant now contends that: 1) the evidence was insufficient for a rational trier of fact to find him guilty of violating the Habitual Motor Vehicle Offender Act; 2) the evidence was insufficient for a rational trier of fact to find him guilty of failing to give immediate notice of an accident; and 3) the trial court erred in determining the length of the defendant's sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/WHITEO~1.wpd
STATE OF TENNESSEE v. TOMMY WOOTEN Court:TCCA Attorneys: A.C. Wharton, Jr., Public Defender; Dianne M. Thackery (at trial) and Garland Erguden (on appeal), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Tommy Wooten. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Janet L. Shipman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his conviction by a Shelby County jury of first degree murder in the perpetration of robbery. The defendant now comes before this court raising the issue of identity. The defendant contends that the evidence was insufficient for a rational trier of fact to find beyond a reasonable doubt that he was criminally responsible for the offense. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/WOOTEN~2.wpd
STATE OF TENNESSEE v. SONNY YARBRO Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender; and Richard W. DeBerry, Assistant District Public Defender, Savannah, Tennessee, for the appellant, Sonny Yarbro. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his conviction by a Hardin County jury of possession of cocaine with intent to sell. The defendant now contends that the evidence was insufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant committed the offense. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/YARBRO~2.wpd
Applicability of the Uniform Trade Secrets Act to the State of Tennessee and its Employees Date: June 27, 2000 Opinion Number: 00-115 http://www.tba.org/tba_files/AG/OP115.pdf
Tennessee Private Investigation and Polygraph Commission Date: June 27, 2000 Opinion Number: 00-116 http://www.tba.org/tba_files/AG/OP116.pdf

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