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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