July 10, 2000 Volume 6 -- Number 108 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 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 00 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. KENNATH ARTEZ HENDERSON WITH DISSENTING OPINION Court:TSC Attorneys: C. Michael Robbins, Memphis, Tennessee; Mike Mosier, Jackson, Tennessee, for the appellant, Kennath Artez Henderson. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Tonya Miner, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The sole issue in this automatic review of the appellant's death sentence is whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the appellant and the nature of his crime. The Court of Criminal Appeals held that the sentence of death was a proportionate penalty given the nature of the defendant's crime and the individual circumstances surrounding the defendant. After an extensive review of the record and the applicable case authorities, we also hold that the sentence of death in this case is not excessive and is a proportional penalty. The judgment of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/hendersonk_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/hendersonk_dis.wpd STATE OF TENNESSEE v. FARRIS GENNER MORRIS, JR. WITH APPENDIX Court:TSC Attorneys: George Morton Googe, District Public Defender, Jackson, Tennessee, (On Appeal and At Trial), and Daniel J. Taylor, Assistant Public Defender, and Jesse H. Ford, III, Jackson, Tennessee, (At Trial), for the appellant, Farris Genner Morris, Jr. Paul G. Summers, Attorney General & Reporter and Michael E. Moore, Solicitor General and Elizabeth T. Ryan, Assistant Attorney General, Nashville, Tennessee (On Appeal), and James G. (Jerry) Woodall, District Attorney General, and Al Earls, Assistant District Attorney General, Jackson, Tennessee (At Trial), for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: A jury convicted the defendant of two counts of premeditated first degree murder and one count of aggravated rape. The jury imposed the death penalty for one of the first degree murders after finding that evidence of two aggravating circumstances - 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 that the murder was committed in the course of a first degree murder, rape, burglary or kidnapping - outweighed mitigating evidence beyond a reasonable doubt. The jury imposed life without parole for the other first degree murder after finding that evidence of two aggravating circumstances - that the defendant knowingly created a risk of death to two or more persons other the victim murdered during the act of murder and that the murder was committed in the course of a first degree murder, rape, burglary or kidnapping - did not outweigh mitigating evidence beyond a reasonable doubt. http://www.tba.org/tba_files/TSC/Morrisfar_opn.wpd APPENDIX http://www.tba.org/tba_files/TSC/Morrisfar_appx.wpd DONNA GRANTHAM v. STATE OF TENNESSEE Court:TSC - Workers Comp Panel Attorneys: James H. Tucker, Jr. and Stacey D. Billingsley , Nashville, Tennessee, for Appellant, The State of Tennessee. Gary R. Gober, Nashville, Tennessee, for Appellee, Donna Grantham. Judge: KURTZ 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. http://www.tba.org/tba_files/TSC_WCP/granthamd_jdg.wpd STATE OF TENNESSEE v. DOUGLAS BOWERS Court:TCCA Attorneys: N. Andy Myrick, Jr., Fayetteville, Tennessee attorney for the appellant, Douglas Bowers. Paul G. Summers, Attorney General & Reporter and Clinton J. Morgan, Assistant Attorney General, Nashville, Tennessee attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: A Lincoln County jury convicted the appellant, Douglas Bowers, of one (1) count of the delivery of 0.2 grams of cocaine, a Class C felony. The trial court sentenced the appellant as a Range II offender to nine (9) years and six (6) months incarceration. On appeal, the appellant contends that: (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred in denying the appellant's request to instruct the jury on the "procuring agent defense"; and (3) the sentence imposed by the trial court was excessive. After thoroughly reviewing the record before this Court, we conclude that the state presented sufficient evidence to sustain the appellant's conviction for delivery of a Schedule II controlled substance. http://www.tba.org/tba_files/TCCA/bowersdoug.wpd STATE OF TENNESSEE v. JOHN H. CHILDRESS Court:TCCA Attorneys: Hollis Moore, Assistant Public Defender, Nashville, Tennessee, for the appellant, John H. Childress. Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, Victor S. Johnson, District Attorney General, Ed Ryan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was found guilty by a Davidson County jury of driving with a blood alcohol concentration of .10 percent or more (D.U.I. per se) and driving on a revoked license. In this appeal as of right, he argues that the trial court erred by admitting the results of his breathalyzer test because the admission of this evidence in a D.U.I per se case violates a defendant's confrontation rights. We hold that the trial court did not err by admitting the Defendant's breath test results. Accordingly, we affirm the Defendant's conviction. http://www.tba.org/tba_files/TCCA/childressjh.wpd STATE OF TENNESSEE v. JEFFERY T. COX Court:TCCA Attorneys: Aubrey L. Harper (on appeal), McMinnville, Tennessee, and Philip Condra (at trial), District Public Defender, Jasper, Tennessee, for the appellant, Jeffery T. Cox. Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney General, and Stephen Strain, Assistant District Attorney General, Jasper, Tennessee, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The judgment of the trial court, amending the defendant's original sentence from one of split confinement to one of continuous confinement in the Department of Correction, is affirmed. http://www.tba.org/tba_files/TCCA/CoxJeff.wpd STATE OF TENNESSEE v. ROBERT GOBER Court:TCCA Attorneys: Michael R. Jones, Public Defender, Fred W. Love, Assistant Public Defender, for the appellant, Robert Gober. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, John Carney, District Attorney General, Joel Perry, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted of two counts of aggravated assault. For these crimes, he was sentenced to concurrent terms of eight years to be served in the Department of Correction as a Range II, multiple offender. On appeal, he challenges the sufficiency of the convicting evidence and argues that he was improperly sentenced. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/goberr.wpd FRANK HOLIDAY v. STATE OF TENNESSEE Court:TCCA Attorneys: Frank Holiday, Wartburg, Tennessee, Pro Se. Michael E. Moore, Solicitor General and Marvin E. Clements, Jr., Assistant Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The appellant/petitioner, Frank Holiday, appeals as of right from a dismissal of his petition for post-conviction relief by the Davidson County Criminal Court on the basis that the petition was barred by the statute of limitations. The petitioner, pro se, presents one appellate issue: Did the trial court err in failing to appoint counsel and conduct an evidentiary hearing in this matter, in view of the egregious failure of counsel to protect the petitioner's right to an appeal, and if not, is the petitioner entitled to a delayed appeal? http://www.tba.org/tba_files/TCCA/HolidayF.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! 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