August 11, 2000 Volume 6 -- Number 126 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 03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 01 New Opinion(s) from the Tennessee Court of Appeals 09 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 JOE M. MASSENGILL, SR. v. LIBERTY MUTUAL INSURANCE CO. Court:TSC - Workers Comp Panel Attorneys: James T. Shea, IV, Knoxville, Tennessee, for the appellant, Liberty Mutual Insurance Co. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Joe M. Massengill, Sr. Judge: THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant-employer appealed the trial court's ruling awarding appellee-employee 75 percent permanent disability benefits to his right arm. On appeal, appellant argues the award should have been fixed to the body as a whole since the injury was mainly to the employee's right shoulder. Judgment is modified to fix the award at 12 percent disability to the body as a whole as an injury to an extremity or shoulder is not a scheduled member. http://www.tba.org/tba_files/TSC_WCP/massengill.wpd JAMES MEYERS v. CONTINENTAL CASUALTY COMPANY Court:TSC - Workers Comp Panel Attorneys: Jeffrey L. Cleary, Chattanooga, Tennessee, for the appellant, Continental Casualty Company. Paul Campbell III, Chattanooga, Tennessee, for the appellee, James Myers. Judge: THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant-employer appealed the trial court's ruling finding the appellee-employee was entitled to an award of permanent disability benefits at 60 percent to the left hand. On appeal, appellant argues the award should have been confined to a scheduled member, the left thumb. The employee insists the appeal is frivolous. Judgment of the trial court is affirmed as the injury to the left thumb causes an unusual and extraordinary condition affecting the hand. The appeal is not found to be frivolous. http://www.tba.org/tba_files/TSC_WCP/meyers.wpd FRED PETITT v. ASSOCIATED GENERAL CONTRACTORS SELF- INSURED WORKERS' COMPENSATION TRUST Court:TSC - Workers Comp Panel Attorneys: Jeff B. Kopet, Chattanooga, Tennessee, for the appellant, Associated General Contractors Self- Insured Workers' Compensation Trust. Herbert Thornbury, Chattanooga, Tennessee, for the appellee, Fred Petitt. Judge: THAYER 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. The appellant-insurance fund appealed the trial court's award of 35% disability to the body as a whole under T.C.A. S 50-6-241(a)(2) after a reconsideration hearing. On appeal, appellant argues the award was improper because it was not established that the loss of employment was causally related to his injury and that the increased award was excessive. Judgment of the trial court is affirmed as recent ruling in Niziol v. Lockheed Martin Energy Systems, Inc. by the Supreme Court controls the reconsideration issue and award was reasonable and not excessive. http://www.tba.org/tba_files/TSC_WCP/petitt.wpd CYNTHIA LECROY-SCHEMEL v. JOHN CUPP, SHERIFF OF HAMILTON COUNTY, et al. Court:TCA Attorneys: Kenneth O. Fritz, Chattanooga, Tennessee, for the appellant, City of Chattanooga. Jerry H. Summers, Chattanooga, Tennessee, for the appellee, Cynthia LeCroy-Schemel. Judge: SWINEY First Paragraph: An attorney was found in contempt by the Chattanooga City Court Judge during proceedings relating to the attorney's client's conviction for violation of a municipal ordinance. The Judge ordered a ten- day jail sentence for the attorney, who was taken into custody and locked in a holding cell. The attorney was able to secure a writ of habeas corpus from the Hamilton County Criminal Court. After the attorney was released, the City Court Judge filed an Order to Appear and Show Cause why the attorney should not be jailed for contempt. The Criminal Court held a hearing at which it heard testimony of the attorney and another witness, and found that the City Court had exceeded its statutory authority by confining the attorney for contempt, that the City Court had not followed procedural requirements for punishing contempt, declared a section of the Chattanooga City Charter null and void, and dismissed the City Court's Order to Appear and Show Cause. http://www.tba.org/tba_files/TCA/LecroySchemelC.wpd STATE OF TENNESSEE v. RONALD JEROME BUTLER Court:TCCA Attorneys: Jennifer Lynn Thompson, Nashville, Tennessee, and Calvin Turner, Nashville, Tennessee, for the appellant, Ronald Jerome Butler. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, Nicholas Bailey, Assistant District Attorney General, and Jon Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: Ronald Jerome Butler was convicted by a jury in the Davidson County Criminal Court of one count of aggravated kidnapping and one count of aggravated robbery, both class B felonies. For the offense of aggravated kidnapping, the trial court sentenced the appellant as a Range I offender to ten years incarceration in the Tennessee Department of Correction, requiring him to serve one hundred percent of his sentence in confinement. For the offense of aggravated robbery, the trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction, requiring him to serve thirty percent of his sentence in confinement. The trial court further ordered that the sentences be served consecutively. On appeal, the appellant raises the following issues for review: (1) whether his conviction of aggravated kidnapping violates principles of due process; and (2) whether the trial court erred in sentencing him. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/ButlerRonaldJ.wpd STATE OF TENNESSEE v. DAVID B. GARDNER Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, David B. Gardner. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; John Carney, District Attorney General; Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was indicted for seven counts of forgery. He was subsequently tried by a Robertson County jury and found guilty of all counts, and the trial court sentenced him as a career offender to an effective sentence of twenty-four years. In this appeal as of right, the Defendant argues that the trial court erred by concluding that the evidence establishing venue was sufficient to support his convictions and by sentencing him improperly. We hold that the State carried its burden of proving venue by a preponderance of the evidence and that the trial court properly sentenced the Defendant. Accordingly, we affirm the conviction. http://www.tba.org/tba_files/TCCA/gardnerdb.wpd STATE OF TENNESSEE v. FREDERICK GONZALEZ Court:TCCA Attorneys: John Conners, Franklin, Tennessee, for the appellant, Frederick Gonzalez. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, Ron Davis, District Attorney General, Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant appeals as of right from his conviction of simple possession of cocaine. He argues that the trial court erred in failing to suppress the evidence used to convict him because the evidence was the fruit of an unlawful seizure. We agree; accordingly, we reverse the Defendant's conviction and dismiss the case against him. http://www.tba.org/tba_files/TCCA/gonzalezf.wpd STATE OF TENNESSEE v. CECIL L. GROOMES, et al. Court:TCCA Attorneys: Judy A. Oxford, Franklin, Tennessee, for the appellant, Cecil L. Groomes. Marilynn A. Tucker, Primm Springs, Tennessee, for the appellant, Terrance E. Akins. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek Keith Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendants were convicted in Williamson County of especially aggravated robbery from an incident occurring at the Cool Springs Mall. Defendant Akins was sentenced to twenty years and fined $1,000, while defendant Groomes was sentenced to twenty-two years and fined $4,000. Both timely appealed, raising as issues whether Akins should have been transferred from juvenile court and tried as an adult, whether the prosecutor improperly excused a potential juror and made prejudicial statements in closing argument, whether the court properly instructed the jury, whether the evidence was sufficient, whether the victim's family and friends had improper contact with the jurors, and whether the defendants received appropriate sentences. Based upon our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/groomescl.wpd JERRY HARDCASTLE v. STATE OF TENNESSEE Court:TCCA Attorneys: David A. Simpson, Gallatin, Tennessee, for the appellant, Jerry Hardcastle. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, and Cara Loeffler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On April 28, 1998, the petitioner, Jerry Hardcastle, was convicted in the Sumner County General Sessions Court of assault. On January 21, 1999, he filed a petition for post-conviction relief in the Sumner County Criminal Court. Subsequently, the criminal court appointed counsel in the petitioner's case, and counsel filed an amended petition on February 26, 1999. The petitioner asserted the following grounds for relief in the court below: (1) the petitioner did not knowingly and intelligently waive his constitutional right to representation by counsel; (2) the trial court denied the petitioner due process by refusing to grant the petitioner a continuance of his trial for the purpose of procuring witnesses on his behalf; and (3) the trial court denied the petitioner his constitutional right to testify at his trial. Following an evidentiary hearing, the criminal court denied the petitioner post-conviction relief, and the petitioner now challenges the court's judgment. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/hardcastleje.wpd STATE OF TENNESSEE v. LETIVIAS PRINCE Court:TCCA Attorneys: Mark C. Scruggs, Nashville, Tennessee, for the appellant, Letivias Prince. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, Joseph Baugh and John Barringer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Letivias Prince, was convicted of first degree murder and was sentenced to life imprisonment. On appeal, the defendant argues that the jury pool did not adequately represent the racial makeup of the community; that pre-trial publicity deprived him of a fair trial; that the trial court erred by permitting eight peremptory challenges in jury selection; that the trial court erred by allowing the state to either call a rebuttal witness or receive a missing witness instruction; that the trial court erred by instructing the jury regarding the order of consideration of offenses; and that the evidence was insufficient to sustain his conviction. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/Prince.wpd STATE OF TENNESSEE v. JAMES ELLISON ROUSE Court:TCCA Attorneys: John Herbison, Nashville, Tennessee (on appeal); Claudia S. Jack, District Public Defender, and Robert H. Stovall, Jr., Assistant Public Defender (at motion for new trial); Daniel Runde and Shara A. Flacy (at trial), for the appellant, James Ellison Rouse. Paul G. Summers, Attorney General & Reporter, Elizabeth T. Ryan, Assistant Attorney General, and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of two counts of first degree murder and two counts of attempted first degree murder as the result of a shooting spree at Richland High School. The defendant, then seventeen, was tried and convicted as an adult, and sentenced to two consecutive life without the possibility of parole terms plus fifty years. The additional fifty-year term is modified to forty-two years. We affirm the two consecutive life without the possibility of parole terms holding that if a jury unanimously finds the existence of at least one aggravating circumstance beyond a reasonable doubt, then in its considered discretion, the jury may sentence the defendant to either life imprisonment or life without the possibility of parole absent a showing of "gross abuse of discretion." http://www.tba.org/tba_files/TCCA/RouseJE.wpd STATE OF TENNESSEE v. ANTHONY DAVID TAPP Court:TCCA Attorneys: Gerald L. Melton (on appeal), District Public Defender, Russell N. Perkins (on appeal and at trial), Assistant Public Defender, Murfreesboro, Tennessee, for the appellant, Anthony David Tapp. Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General, and John W. Price and Thomas F. Jackson, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Anthony David Tapp, was convicted of vehicular homicide as a result of intoxication. The trial court imposed a Range I sentence of 10 years. In this appeal of right, the defendant contends that the trial court erred by allowing into evidence pretrial statements which had been made by him but which had not been provided by the state in advance of the trial. The judgment is affirmed. Instructions by the defendant to witnesses of an accident not to speak to police did not qualify as discoverable material within the terms of Rule 16 of the Tennessee Rules of Criminal Procedure. In consequence, the defendant is not entitled to a new trial. http://www.tba.org/tba_files/TCCA/Tapp.wpd TOMMY RAY WARREN v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Jay Cheatwood, Lawrenceburg, Tennessee, Daniel J. Runde, Pulaski, Tennessee, and John Colley, Columbia, Tennessee, for the appellant, Tommy Ray Warren. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, Mike Bottoms, District Attorney General, and James G. White, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On April 12, 1993, the petitioner, Tommy Ray Warren, pled guilty in the Wayne County Circuit Court to two counts of first degree murder. The trial court imposed a life sentence for each count of murder and further ordered consecutive service of the life sentences. The petitioner subsequently filed a petition for post-conviction relief, alleging that his guilty pleas were not knowing and voluntary because he was not aware that his possible mental retardation could render him ineligible for the death penalty. The petitioner also alleged that trial counsel's failure to pursue a mental retardation hearing constituted ineffective assistance of counsel. The post- conviction court dismissed the petition, finding that the petitioner's pleas were knowing and voluntary and that the petitioner had received effective assistance of counsel. The petitioner now appeals the court's denial of relief. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/WarrenTR.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