July 14, 2000
Volume 6 -- Number 111

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):
 
03 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
 

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Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. JENNIE BAIN DUCKER

Court:TSC

Attorneys:  

David L. Raybin, Nashville, Tennessee, and Michael D. Galligan,
McMinnville, Tennessee, for the appellant, Jennie Bain Ducker.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and Kim R. Helper, Assistant Attorney General, for
the appellee, State of Tennessee.                        

Judge: HOLDER

First Paragraph:

We granted review to determine (1) whether aggravated child abuse is a
lesser-included offense of the charged offense of first degree murder
for the reckless killing of a child; (2) whether the knowing mens rea
of aggravated child abuse refers to the conduct of the defendant or to
the result of that conduct; (3) whether the evidence supports the
defendant's convictions; and (4) whether the defendant was properly
convicted of Class A felonies when the trial court failed to charge
the jury on the age element contained in the aggravated child abuse
statute.

http://www.tba.org/tba_files/TSC/duckerjb.wpd


STATE OF TENNESSEE. v. WARREN TYRONE FOWLER Court:TSC Attorneys: Edward C. Miller, Public Defender, Dandridge, Tennessee, for the appellant, Warren Tyrone Fowler. Paul G. Summers, Attorney General & Reporter and Michael E. Moore, Solicitor General and Gordon W. Smith, Associate Solicitor General and Ellen H. Pollack, Assistant Attorney General Nashville, Tennessee (On Appeal), and Al C. Schmutzer, Jr., District Attorney General, Sevierville, Tennessee, and James L. Gass, Assistant District Attorney General, Dandridge, Tennessee (At Trial), for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: This is an appeal from the Circuit Court for Jefferson County which convicted the defendant of felony vandalism, two counts of aggravated assault, and felony evading arrest. The defendant appealed and argued that the trial court erred in failing to instruct the jury on facilitation of a felony as a lesser-included offense of criminal responsibility. The Court of Criminal Appeals held that because a defendant is criminally responsible for any offenses committed by codefendants in the pursuance of a criminal offense or as a natural and probable consequence thereof, facilitation is not a lesser-included offense as a matter of law. We hold that facilitation of a felony is a lesser-included offense but that an instruction was not warranted under the facts of this case. Accordingly, we affirm the judgments of the Court of Criminal Appeals and the trial court. http://www.tba.org/tba_files/TSC/fowlerwt.wpd
SUZANNE SHERER, et al. v. RAY ALLEN LINGINFELTER, et al. Court:TSC Attorneys: Arthur G. Seymour, Jr. and James E. Wagner, Knoxville, Tennessee, for the appellant, United Services Automobile Association. Jess D. Campbell, Knoxville, Tennessee, for the appellees, Suzanne Sherer and husband, Charles Sherer as parents and natural guardians of Teal Sherer. Judge: HOLDER First Paragraph: We granted this appeal to determine whether an insurer's right of subrogation under Tenn. Code Ann. S 56-7-1204 extends to damages for enhanced injuries received by the insured as the result of another tortfeasor's actions. We conclude that the subrogation right of the insurer is limited to the injuries for which the insurer has made payment. We affirm the Court of Appeals. http://www.tba.org/tba_files/TSC/sherersu.wpd
PENNY PITT PHILLIPS, et al. v. ROBINSON & BELEW, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Jeffrey L. Lay, Dyersburg, Tennessee, for the appellants, Robinson & Belew and Pennsylvania Millers Mutual Ins. Co. John M. Miles, Union City, Tennesseee for appellee, Penny Pitt Phillips Judge: WEATHERFORD 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. S50-6-225 (e)(3) for hearing and reporting of findings of fact and conclusions of law. The defendant-employer and its insurance company appeal the judgment of the Weakley Chancery Court insisting that the trial judge erred in commuting the death benefits payable to Donald Leon Pitt, a minor, to a lump sum. As discussed below, the panel has concluded that the part of the trial court's judgment that ordered the award be commuted should be reversed. http://www.tba.org/tba_files/TSC_WCP/phillipp.wpd
STATE OF TENNESSEE v. BILLY BIVENS Court:TCCA Attorneys: Donald B. Reid, Athens, Tennessee, for the appellant, Billy Bivens. Paul G. Summers, Attorney General and Reporter, Michael J. Fahey and Clinton J. Morgan, Assistant Attorneys General, Richard Newman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Billy Bivens, was convicted of official misconduct and assault. On appeal, he argues that the evidence was insufficient to sustain his convictions; that the trial court erred by failing to require the state to elect the offenses for which it sought conviction; that the jury delivered inconsistent verdicts; and that the trial court imposed an excessive sentence. Because the jury was erroneously instructed on assault as a lesser included offense of sexual battery, we reverse the assault conviction. The conviction and sentence for official misconduct are affirmed. http://www.tba.org/tba_files/TCCA/Bivens.wpd
STATE OF TENNESSEE v. FREDERICK CAVITT Court:TCCA Attorneys: Frederick Cavitt, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: While incarcerated in the Tennessee Department of Correction, the defendant was indicted for aggravated assault, pled guilty to the lesser included offense of simple assault, and received a sentence of eleven months and twenty-nine days. The defendant moved for pretrial jail credits, in the amount of three hundred and twenty-one days, calculated from the day the arrest warrant was served to the day the judgment was entered. We conclude that the defendant is not entitled to the claimed jail credits and therefore affirm the trial court's order dismissing the defendant's Motion to Modify Judgment to Reflect Jail Credits. We modify the sentence to indicate service in either the Carter County Jail or workhouse. http://www.tba.org/tba_files/TCCA/CavittF.wpd
STATE OF TENNESSEE v. IRA RAY CROUCH Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender, and Richard A. Tate, Assistant Public Defender, Blountville, Tennessee, for the appellant, Ira Ray Crouch. Paul G. Summers, Attorney General & Reporter, Mark A. Fulks, Assistant Attorney General, H. Greeley Wells, Jr., District Attorney General, and Barry P. Staubus, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Having pled guilty to two counts of statutory rape, the defendant now challenges his sentence. He argues that the trial court improperly denied his motion for judicial diversion. We affirm his sentence of five years on probation. http://www.tba.org/tba_files/TCCA/CrouchIR.wpd
STATE OF TENNESSEE v. ROBERT EUGENE FINCHUM, JR. Court:TCCA Attorneys: Paul G. Whetstone, Morristown, Tennessee, for the appellant, Robert Eugene Finchum, Jr. Paul G. Summers, Attorney General and Reporter, Patricia C. Kussman, Assistant Attorney General, C. Berkeley Bell, Jr., District Attorney General, and John Douglas Godbee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Robert Eugene Finchum, Jr., pled guilty to one count of simple possession of LSD, one count of simple possession of marijuana, one count of possession of untaxed whiskey, and one count of possession of drug paraphernalia. Pursuant to a negotiated plea agreement, Defendant received a total effective sentence of eleven months and twenty-nine days with 30% minimum service prior to eligibility for work release, furlough, trusty status, and rehabilitative programs. Following a hearing, the trial court denied Defendant's request for probation. Defendant contends that the trial court erred when it failed to impose an alternative sentence. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/finchumre.wpd
STATE OF TENNESSEE v. RICHARD KORSAKOV Court:TCCA Attorneys: Lloyd A. Levitt, Chattanooga, Tennessee, attorney for appellant, Richard Korsakov. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; William H. Cox, III, District Attorney General, and C. Parke Masterson, Jr., Assistant District Attorney General, for appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Richard Korsakov, appeals his conviction for driving under the influence of an intoxicant, third offense. He contends that (1) the breath test results were inadmissible because the officer administering the test failed to observe him for twenty minutes; (2) the photocopies of certification and maintenance records were inadmissible for lack of compliance with the rules of evidence; (3) he should have been allowed to cross-examine the officer on the Horizontal Gaze Nystagmus (HGN) test for the purpose of impeachment; (4) a sealed, miniature bottle of cognac was irrelevant and, therefore, inadmissible; (5) the trial court improperly commented upon the evidence by instructing the jury to disregard the address on an exhibit's tag; and (6) the cumulative effect of the errors at trial prejudiced him. Because we hold that the results of the breath test are inadmissible, we reverse the judgment of conviction and remand the case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/Korsakovr.wpd

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