August 24, 2000 Volume 6 -- Number 134 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 00 New Opinion(s) from the Tennessee Court of Appeals 08 New Opinion(s) from the Tennessee Court of Criminal Appeals 05 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. REGGIE RAMONT JONES Court:TCCA Attorneys: David W. Camp, Jackson, Tennessee, for the appellant, Reggie Ramont Jones. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; and Theodore H. Neumann, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was found guilty of aggravated robbery, theft over $10,000 and felonious escape. The trial court merged the theft conviction into the aggravated robbery conviction. Defendant received a ten-year sentence for aggravated robbery and a consecutive one-year sentence for felonious escape. The defendant raises the following issues for review: (1) whether the defendant's prosecution in Haywood County for aggravated robbery, following an acquittal for the same offense in federal court, violated double jeopardy; (2) whether the trial court erred in failing to grant a new trial when it was discovered that a juror had a prior felony conviction; and (3) whether the defendant was improperly convicted of both aggravated robbery and the lesser-included offense of theft. Upon a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/JONESRR.wpd JERREL LIVINGSTON v. JAMES M. DUKES, Warden Court:TCCA Attorneys: Jerrel Livingston, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; and Mark E. Davidson, Assistant Attorney General; for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This appeal results from the trial court's denial of the petitioner's petition for writ of habeas corpus based on the fact that the challenged judgment was not invalid on its face, nor had the petitioner's sentence expired. The court also considered this request as a petition for post-conviction relief but dismissed the petition for lack of jurisdiction. Based upon our review of the record, we affirm the trial court's dismissal of the petitioner's request for habeas corpus or post-conviction relief. http://www.tba.org/tba_files/TCCA/LIVING~1.wpd STATE OF TENNESSEE v. MICHAEL F. MARASCHIELLO Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee, and Debra Wall, Clarksville, Tennessee, for the appellant, Michael F. Maraschiello. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Michael F. Maraschiello, was convicted by a jury in the Montgomery County Circuit Court of first degree murder, arson, possession of an explosive weapon, possession of a shotgun with an altered serial number, and theft. For the offense of first degree murder, a jury imposed a sentence of life imprisonment in the Tennessee Department of Correction. Additionally, the trial court imposed a sentence of two years incarceration in the Department for the offense of arson, two years incarceration in the Department for the offense of possession of an explosive weapon, six months incarceration in the Montgomery County Workhouse for the offense of possession of a shotgun with an altered serial number, and six months incarceration in the workhouse for the offense of theft. The trial court ordered that the appellant serve his sentences consecutively. http://www.tba.org/tba_files/TCCA/maraschiellomf.wpd JIMMY ROGERS vs. STATE OF TENNESSEE Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, for the appellant, Jimmy Rogers. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William Gibbons, District Attorney General; Perry Hayes, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jimmy Rogers, appeals as of right from the trial court's denial of post-conviction relief after an evidentiary hearing. On appeal, he argues that the trial court erred by finding that he received effective assistance of counsel at the trial level and by finding that his guilty pleas were voluntarily and knowingly made. We find no error. Accordingly, we affirm the judgment of the trial court denying the Defendant's petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/ROGERSJ.wpd STATE OF TENNESSEE v. JAMES RAYMOND SNIDER Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); George Morton Googe, District Public Defender; and Stephen Spracher, Assistant Public Defender (at trial and on appeal) for the appellant, James Raymond Snider. Paul G. Summers, Attorney General and Reporter; Tara B. Hinkle, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was found guilty of rape of a child and aggravated sexual battery. He appealed, arguing that the evidence was insufficient to support a guilty verdict and that the trial court erred in allowing the victim's mother to testify to hearsay statements made by the victim, in prohibiting the defendant from questioning the victim's mother about sexual abuse in her childhood, and in sentencing the defendant in an excessive manner on the rape conviction. We conclude that these issues are without merit and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/SNIDERJR.wpd STATE OF TENNESSEE v. LEE RUSSELL TOWNES Court:TCCA Attorneys: Lee Russell Townes, Pro Se, on Appeal. Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, Nashville, Tennessee, G. Robert Radford, District Attorney General, Eleanor Cahill, Assistant District Attorney General, Huntingdon, Tennessee. Judge: WITT First Paragraph: The trial court dismissed the petitioner's post-conviction relief petition, based upon its findings that trial counsel rendered effective assistance and that the other grounds for relief had been waived or previously determined. On appeal, the record supports the trial court's judgment, and we affirm. http://www.tba.org/tba_files/TCCA/TOWNESLR.wpd STATE OF TENNESSEE v. KEVIN WILKINS Court:TCCA Attorneys: Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Kevin Wilkins. Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney General, William L. Gibbons, District Attorney General, Paula Wulff and Patience Branham, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Kevin Wilkins, was indicted by the Shelby County Grand Jury for the offenses of first-degree murder and especially aggravated kidnapping. He was subsequently convicted of both offenses after a jury trial, and he was sentenced to life without the possibility of parole for the first-degree murder conviction and to twenty-five years incarceration for the especially aggravated kidnapping conviction. In this appeal as of right, the Defendant asserts that the evidence was insufficient to support his first-degree murder conviction, that the trial court erred in instructing the jury regarding the law of accomplice testimony, and that the trial court erred in allowing the State to exhibit the skull of the victim to the jury. Because we conclude that the evidence was insufficient to support the Defendant's first-degree murder conviction, we reverse that conviction. The Defendant's conviction for especially aggravated kidnapping is affirmed. http://www.tba.org/tba_files/TCCA/WILKINSK.wpd STATE OF TENNESSEE v. DERRICK WILLIAMS Court:TCCA Attorneys: Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Kevin Wilkins. Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney General, William L. Gibbons, District Attorney General, Paula Wulff and Patience Branham, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This appeal arises from the defendant's challenge to his sentence of twelve years plus a $10,000 fine for vehicular homicide, four years for reckless aggravated assault, one year for leaving the scene of an accident, and eleven months and twenty-nine days plus a $350 fine for driving under the influence. The sentences are to be served concurrently. The defendant disputes the trial court's application of three of four enhancement factors and refusal to apply a mitigating factor in reaching the sentence. Based upon our review, we affirm the convictions for vehicular homicide, reckless aggravated assault, and leaving the scene of an accident, and reverse and dismiss the conviction for driving under the influence, this offense being merged into the conviction for vehicular homicide. Additionally, we conclude that the trial court incorrectly applied certain enhancement factors. According, we reduce the sentence for vehicular homicide to ten years and the sentence for reckless aggravated assault to three years. All sentences are to be served concurrently, as ordered by the trial court. http://www.tba.org/tba_files/TCCA/WILLID~1.wpd Grandparent Visitation Date: August 9, 2000 Opinion Number: 00-127 http://www.tba.org/tba_files/AG/OP127.pdf Confidentiality of Juvenile Court Records Pursuant to Tenn. Code Ann. S 37-1-153(a)(5) Date: August 10, 2000 Opinion Number: 00-128 http://www.tba.org/tba_files/AG/OP128.pdf Ouster of Officials for Engaging in Legalized Gambling Outside of Tennessee and Compulsion of Testimony Regarding Ouster Date: August 14, 2000 Opinion Number: 00-129 http://www.tba.org/tba_files/AG/OP129.pdf Effect of Amended State Lands Acquisition Fund and the 2000 Appropriations Bill on the Operation of State Parks this Fiscal Year Date: August 15, 2000 Opinion Number: 00-130 http://www.tba.org/tba_files/AG/OP130.pdf Diagnostic Testing Under the Chiropractic Practice Act Date: August 15, 2000 Opinion Number: 00-131 http://www.tba.org/tba_files/AG/OP131.pdf 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! 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