August 8, 2000
Volume 6 -- Number 124

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
02 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. MICHELLE FERGUSON

Court:TCA

Attorneys: 

Julie A. Rice, Knoxville, Tennessee (on appeal); and Charles M. Corn,
District Public Defender; and Thomas Edward Kimball, Assistant Public
Defender, Cleveland, Tennessee (at trial) for the appellant, Michelle
Ferguson.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Richard Newman, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Defendant Michelle Ferguson was convicted by a jury of two counts of
aggravated child abuse and one count of first degree murder in
perpetration of aggravated child abuse.  The trial court subsequently
imposed concurrent sentences of eighteen years, eighteen years, and
life.  Defendant challenges her convictions, raising the following
issues: (1) whether the evidence was sufficient to support her
convictions; (2) whether the trial court erred when it failed to sever
the trials for the charges in this case; and (3) whether the trial
court erred when it failed to grant a motion for a mistrial.  The
judgment of the trial court is reversed, and the case is remanded for
a new trial.

http://www.tba.org/tba_files/TCA/fergusonm.wpd





In Re:  ESTATE OF PRATHER BUCHANAN HARPER

Court:TCA

Attorneys:

James R. Tomkins, Nashville, Tennessee, for the appellant, Donnie
Reed.

Jordan S. Keller, Nashville, Tennessee, for the appellees, Terry
Wickham, Lloyd Ann Marston, Brenda Norton and Howard Ellis Norton.                          

Judge: CANTRELL

First Paragraph:

A testator's will left his property to specified individuals provided
they survived him.  The question we must decide is whether the
antilapse statute, Tenn. Code Ann. S 32-3-105, saves those contingent
interests for the beneficiaries' children when all the specified
individuals predeceased the testator.  The Probate Court of Davidson
County held that it did not.  We affirm.

http://www.tba.org/tba_files/TCA/harperpb.wpd





STATE OF TENNESSEE v. HENRY LEE BERRY

Court:TCCA

Attorneys: 

Keith E. Haas, Sevierville, Tennessee, attorney for appellant, Henry
Lee Berry.

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Mark A. Fulks, Assistant Attorney General, Randall
E. Nichols, District Attorney General, and Scott Green, Assistant
District Attorney General, for the appellee, State of Tennessee.                         

Judge: HAYES

First Paragraph:

Henry Lee Berry appeals his Knox County conviction for second degree
murder.  Berry contends that (1) the evidence is insufficient to
support his conviction; (2) the trial court erroneously admitted into
evidence two recorded 911 telephone calls and an order of protection
entered against the appellant by the victim;  and (3) the trial court
erred by failing to grant a mistrial when evidence of a pending rape
charge in Nashville was introduced before the jury.  Additionally, the
appellant urges adoption of DNA testing on decomposed bodies to
positively establish the identity of the victim.  Although we conclude
that admission of the 911 telephone calls and the order of protection
was error, the error was harmless.  Moreover, finding no other
reversible error of law, we affirm the judgment of conviction entered
by the trial court.

http://www.tba.org/tba_files/TCCA/BerryHL.wpd





STATE OF TENNESSEE v. LESTER DOUGLAS GILES

Court:TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee; Charles M. Corn, District
Public Defender; and William C. Donaldson, Assistant Public Defender
(on appeal) and Thomas Kimball, Assistant Public Defender (at trial)
for the appellant, Lester Douglas Giles.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Chalmers Thompson, Assistant District Attorney General, for the
appellee, State of Tennessee.                          

Judge: GLENN

First Paragraph:

On June 21, 1999, the defendant pled guilty in the Monroe County
Criminal Court to attempted rape and was sentenced to four years as a
Range I standard offender.  The sentence was suspended, and he was
placed on probation.  On July 6, 1999, a probation violation was
issued, alleging that the defendant had violated his probation by
having contact with the victim's family.  Following a hearing on
August 16, 1999, the trial court ruled that the defendant had violated
the terms of his probation, a ruling which the defendant timely
appealed.  Based upon our review, we reverse the judgment of the trial
court and reinstate the defendant's probation.

http://www.tba.org/tba_files/TCCA/gilesld.wpd





STATE OF TENNESSEE v. JOHN PHILIP NOLAND

Court:TCCA

Attorneys:

Susanna Thomas, Asst. Public Defender, Newport, Tennessee, for the
appellant, John Philip Noland.

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Mark A. Fulks, Assistant Attorney General, Al C.
Schmutzer, Jr., District Attorney General, and James B. Dunn,
Assistant District Attorney General, for the appellee, State of
Tennessee.                          

Judge: HAYES

First Paragraph:

This is an appeal by John Philip Noland of his Cocke County conviction
for the second degree murder of Mark Goins.  The appellant is
currently serving a twenty-three year sentence for this offense.  He
raises as error (1) the trial court's denial of his motion to
suppress; (2) the State's violation of Brady v. Maryland; (3) the
insufficiency of the evidence; (4) the trial court's refusal to
instruct the jury as to the defenses of self-defense and necessity;
(5) the trial court's refusal to instruct the jury as to the lesser
included offense of criminally negligent homicide; and (6) the length
of the sentence imposed by the trial court.  After review of the
record and the applicable law, we affirm the judgment of conviction. 
The sentence is modified to reflect a term of eighteen years.

http://www.tba.org/tba_files/TCCA/NolandJP.wpd





DONNA JEAN SEXTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Peter D. Heil, Nashville, Tennessee (on appeal) and Lionel Barrett,
Jr., Nashville, Tennessee (at trial) for the appellant, Donna Jean
Sexton.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and David E. Crockett, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: TIPTON

First Paragraph:

The petitioner, Donna Jean Sexton, appeals the dismissal of her
petition for post-conviction relief  for failure to state a colorable
claim.  The petitioner contends that her allegations of mental
incapacity rendering her guilty plea involuntary and unknowing and of
the ineffective assistance of counsel for failure to make the court
aware of her mental incapacity are colorable claims.  The state
agrees.  We reverse the dismissal of the petition and remand the case
to the trial court for further proceedings.

http://www.tba.org/tba_files/TCCA/Sextondj.wpd





STATE OF TENNESSEE v. ANTHONY JEROME STOKES

Court:TCCA

Attorneys:

Anthony Jerome Stokes, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; William H. Cox, District Attorney General;
and C. Leland Davis, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: GLENN

First Paragraph:

The defendant entered guilty pleas in 1995 to one count of murder in
the first degree and one count of murder in the second degree, the
sentences to be served consecutively.  In 1997, he testified as a
prosecution witness at the trial of a co-defendant in the homicide
cases.  In 1999, he filed a petition to enforce an alleged agreement
with the State that he would be resentenced to concurrent sentences in
exchange for this testimony.  The trial court denied the petition and
he timely appealed.  Based upon our review, we affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/stokesaj.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!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free!

For the Plain Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

For the HTML Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE HTML
3) Leave the body of the message blank

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

To STOP receiving TBALink Opinion-Flash:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 2000 Tennessee Bar Association