September 18, 2000
Volume 6 -- Number 148

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):
 
04 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
10 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

ROBERT McALISTER BARNETT, III v. PAULA LYNN BARNETT

Court:TSC

Attorneys:

D. Mitchell Bryant, Cleveland, Tennessee, and Russell Theodore King,
Chattanooga, Tennessee, for appellant, Robert McAlister Barnett, III.

Glenna M. Ramer and Sandra Jean Bott, Chattanooga, Tennessee, for
appellee, Paula Lynn Barnett.
                          
Judge: HOLDER

First Paragraph:

We granted this appeal to determine:  1) whether private school
tuition constitutes an extraordinary educational expense under the
Tennessee Child Support Guidelines; and 2) whether the noncustodial
parent should be required to pay those expenses in addition to child
support based upon the percentage of net income of the noncustodial
parent.  We hold that pursuant to the Tennessee Child Support
Guidelines private school tuition is an "extraordinary educational
expense."  We affirm the decision of the Court of Appeals requiring
the total amount of private school tuition to be paid by the obligor-
father.  We hold, however, that in appropriate cases a court may
apportion the amount of tuition between the parties.

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


LLOYD FREEMAN v. MARCO TRANSPORTATION CO., et al. Court:TSC Attorneys: Sidney W. Gilreath and W. R. Baker, of Knoxville Tennessee, for the appellant, Lloyd Freeman. James T. Shea IV, of Knoxville, Tennessee, for the appellees, Marco Transportation Company and Liberty Mutual Insurance Company. Judge: HOLDER First Paragraph: We granted this appeal to determine whether an action filed pursuant to Tenn. Code Ann S 50-6-241(a)(2) requesting reconsideration of a workers' compensation award must be filed in the court in which the original workers' compensation claim was decided. We hold that a request for reconsideration must be filed in the court that originally exercised jurisdiction over the workers' compensation claim. http://www.tba.org/tba_files/TSC/freemanl.wpd
PLANNED PARENTHOOD OF MIDDLE TENNESSEE, et al. v. DON SUNDQUIST, GOVERNOR OF THE STATE OF TENNESSEE, et al. WITH DISSENTING/CONCURRING OPINION Court:TSC Attorneys: Barry Friedman, Vanderbilt University School of Law, Nashville, Tennessee; Irwin Venick, Nashville, Tennessee; Elizabeth B. McCallum, Washington, D.C.; Barbara E. Otten, Dara Klassel, and Roger K. Evans, PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., New York, New York; Louise Melling and Catherine Weiss, AMERICAN CIVIL LIBERTIES FOUNDATION REPRODUCTIVE FREEDOM PROJECT, New York, New York, attorneys for the appellant, Planned Parenthood of Middle Tennessee, et al. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Andy D. Bennett, Chief Deputy Attorney General; and Michael W. Catalano, Associate Solicitor General, attorneys for the appellees, Don Sundquist, Governor of the State of Tennessee, et al. Miranda Schiller and Ilyssa M. Birnbach, New York, New York, and Dianna Baker Shaw, Nashville, Tennessee, attorneys for Amicus Curiae, American College of Obstetricians and Gynecologists. Kevin H. Theriot, Panama City Beach, Florida; Larry L. Crain, Brentwood, Tennessee; and Gary S. McCaleb, Scottsdale, Arizona, attorneys for Amicus Curiae, Tennessee Right to Life. Elizabeth Cavendish and Scott Grogan, Washington, D.C., and Ann Martin, Nashville, Tennessee, attorneys for Amici Curiae, The National Abortion and Reproductive Rights Action League, The NARAL Foundation, The League of Women Voters of Tennessee, The Tennessee Task Force Against Domestic Violence, and the National Council of Jewish Women. Paul Benjamin Linton, Northbrook, Illinois, and Clinton W. Watkins, Brentwood, Tennessee, attorneys for Amici Curiae, Members of the Tennessee General Assembly. Keith Jordan, Nashville, Tennessee, and J. Thomas Smith, Franklin, Tennessee, attorneys for Amicus Curiae, Dr. Kent Jones, et al., on Behalf of the Tennessee Physicians Resource Council. Judge: ANDERSON First Paragraph: This is an appeal from the Circuit Court for Davidson County, which applied an undue burden standard and struck down as unconstitutional the provisions of Tennessee's criminal abortion statutes requiring that physicians inform their patients that "abortion in a considerable number of cases constitutes a major surgical procedure," Tenn. Code Ann. S 39-15-202(b)(4) (1997), and mandating a two-day waiting period requirement, S 39-15-202(d)(1). http://www.tba.org/tba_files/TSC/plannedp_opn.wpd DISSENTING/CONCURRING OPINION http://www.tba.org/tba_files/TSC/plannedp_dis.wpd
STATE OF TENNESSEE v. BRANDON WILSON Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, Michael L. Flynn, District Attorney General, Philip Morton, Assistant District Attorney General, for the appellant, State of Tennessee. Mack Garner, Public Defender, George H. Waters, Assistant Public Defender, for the appellee, Brandon Wilson. Judge: BIRCH First Paragraph: This is an appeal from the Circuit Court for Blount County, where Brandon Wilson, the defendant, pleaded guilty to seven counts of delivery of cocaine and to three counts (merged by the trial court into one count) of possession of cocaine with the intent to sell or deliver. Wilson appealed to the Court of Criminal Appeals contending, inter alia, that his indictments were legally insufficient and that the trial court erred in accepting the guilty plea because it was not voluntarily entered. The Court of Criminal Appeals agreed and reversed Wilson's convictions on all counts. We hold that the seven indictments for delivery of cocaine are sufficient; Wilson's convictions on these indictments are, therefore, reinstated. Additionally, because the issue concerning the voluntariness of Wilson's plea was not properly before the intermediate appellate court, we reinstate the conviction for possession of cocaine. This reinstatement is without prejudice to Wilson's right to file a petition for post-conviction relief within the appropriate time. http://www.tba.org/tba_files/TSC/wilsonb.wpd
GRATZ CARDEN, JR. v. THE TENNESSEE COAL COMPANY Court:TSC - Workers Comp Panel Attorneys: Robert W. Knolton, Oak Ridge, Tennessee, for the appellant, The Tennessee Coal Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Gratz Carden, Jr. Judge: LAFFERTY 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 a hearing and reporting of findings of fact and conclusions of law. The appellant/defendant challenges the trial court's award of permanent and total disability benefits to the appellee/plaintiff. Also, the appellant contends that the evidence does not support the trial court's award of benefits to the body as a whole. After an in-depth review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC_WCP/cardeng.wpd
STATE OF TENNESSEE v. MARCUS ASKEW Court:TCCA Attorneys: Christine W. Stephens and Howard Wagerman, for appellant, Marcus Askew. Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, William L. Gibbons, District Attorney General, David C. Henry, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: The defendant was indicted on three counts of attempted first degree murder. He entered pleas of guilty to three counts of attempted second degree murder. As part of the negotiated settlement he was sentenced as an especially mitigated offender to serve concurrent sentences of 7.2 years on each count. The manner of service was left for determination by the trial court. In this direct appeal, defendant asserts that the trial court should have granted alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/askewm.wpd
STATE OF TENNESSEE v. DONAVEN BROWN Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee (on appeal); Gary F. Antrican, District Public Defender; and David S. Stockton, Assistant Public Defender (at trial and on appeal), for the appellant, Donaven Brown. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Henry P. Williams, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant and the victim were both maximum security inmates at the Corrections Corporation of America facility in Clifton, Tennessee. After the victim, his hands and feet restrained, had been released from his cell to use a telephone, the defendant asked to be released from his cell take a shower. After his hands, but not his feet had been restrained, he pushed a correctional officer aside and ran from his cell, confronting the victim near the telephones. "Bad blood" had existed between the victim and the defendant, both of whom had armed themselves that day with shanks, or homemade prison knives. http://www.tba.org/tba_files/TCCA/brownd.wpd
STATE OF TENNESSEE v. JERRY D. CARNEY Court:TCCA Attorneys: Samuel E. Wallace, Jr., Nashville, Tennessee, for the appellant, Jerry D. Carney. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, Pamela Anderson, Assistant District Attorney General, and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Jerry D. Carney, appeals his conviction by a jury in the Davidson County Criminal Court of first degree murder. Pursuant to his conviction for first degree murder, the trial court sentenced the appellant to life in prison in the Tennessee Department of Correction, with the possibility of parole. The appellant raises the following issues for our review: (1) whether there was sufficient evidence of premeditation to support his conviction of first degree murder; (2) whether the State violated Brady by failing to disclose audio taped statements made by the police of witnesses the day after the shooting; and (3) whether the trial court erred in precluding the appellant's cross- examination of the police officers who were testifying at trial about their training regarding self- defense and the application of deadly force. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/carneyjerry.wpd
STATE OF TENNESSEE v. ROBERT C. COPAS Court:TCCA Attorneys: Mark T. Smith, Gallatin, Tennessee for the appellee, Robert C. Copas. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney Generals for the appellant, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Robert C. Copas, was indicted by a Sumner County Grand Jury for one count of aggravated rape. After discovering that the recording of the defendant's preliminary hearing was inaudible, the defendant moved to dismiss the indictment and remand for a new preliminary hearing pursuant to rule 5.1 of the Rules of Criminal Procedure. Following a hearing, the trial court did not dismiss the indictment, but remanded for a new preliminary hearing. The state then moved to dismiss the indictment, arguing that case law requires dismissal of the indictment under these circumstances. The court agreed and dismissed the indictment but the state then brought this appeal. Because the trial court's dismissal of the indictment and remand for a new preliminary hearing was an appropriate remedy for a violation of the Tenn. R. Crim. P. 5.1 (a) the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/copasrobert.wpd
STATE OF TENNESSEE v. RUSSELL E. MILLS Court:TCCA Attorneys: John S. Colley, III, Columbia, Tennessee, for the appellant, Russell E. Mills. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, Ron Davis, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Russell E. Mills, pled guilty in the Williamson County Circuit Court to vehicular homicide as the proximate result of his intoxication, a class B felony. The parties agreed that the trial court would determine the appropriate sentence. Accordingly, the trial court conducted a sentencing hearing and sentenced the appellant as a Range I offender to eleven years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's sentencing determination. Following a review of the record and the parties' briefs, we modify the judgment of the trial court. http://www.tba.org/tba_files/TCCA/millsre.wpd
STATE OF TENNESSEE v. BARRY WATERS ROGERS Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the appellant, Barry Waters Rogers. Paul G. Summers, Attorney General & Reporter, David H. Findley, Assistant Attorney General, Mike Bottoms, District Attorney General, and Robert C. Sanders and Richard H. Dunavant, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Barry Waters Rogers, was indicted for arson, conspiracy to commit arson, and vandalism. The jury acquitted the defendant on the charge of conspiracy to commit arson but, on the arson charge, returned a guilty verdict on the lesser included offense of facilitation of arson. Although the jury also returned a guilty verdict for facilitation of vandalism, the trial court later set that aside. The trial court imposed a Range I sentence of three and one-half years in the Department of Correction, with probation to be granted after the first year of service. In this appeal of right, the defendant challenges the sufficiency of the evidence and complains that he was improperly sentenced. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/rogers.wpd
STATE OF TENNESSEE v. LARRY E. SCALES WITH DISSENTING OPINION Court:TCCA Attorneys: Matt Q. Bastian, Columbia, Tennessee, for the appellant, Larry E. Scales. Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General, and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Larry E. Scales, appeals his conviction of theft over $500 and his six-year sentence as a career offender. Because the trial court erroneously instructed the jury on the possible range of punishment, the judgment is reversed and the defendant is granted a new trial. http://www.tba.org/tba_files/TCCA/scalesle_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/scalesle_dis.wpd
STATE OF TENNESSEE v. RETHA JEAN SMITH Court:TCCA Attorneys: Steven L. West, McKenzie, Tennessee, for the appellant. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals her jury conviction and sentence for possession of a Schedule II controlled substance with the intent to manufacture, sell or deliver. She received a sentence of three years with one year to be served in confinement and the remainder to be served on community corrections. The defendant raises the following issues for review: (1) whether the evidence is insufficient to sustain her conviction; (2) whether the prosecuting attorney made improper remarks during his closing argument; and (3) whether her sentence is excessive. Upon a review of the record, we affirm the judgment of the trial court but remand for the assessment of the fine. http://www.tba.org/tba_files/TCCA/smithrj.wpd
JAMES WESLEY STARNES v. STATE OF TENNESSEE Court:TCCA Attorneys: Jim L. Fields, Paris, Tennessee, for the appellant, James Wesley Starnes. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals from a denial of post-conviction relief, claiming his trial counsel rendered ineffective assistance. We conclude the record is insufficient for proper appellate review. Thus, we remand to the trial court for an additional hearing. http://www.tba.org/tba_files/TCCA/starnesjw.wpd
STATE OF TENNESSEE v. JUSTIN VICTORY Court:TCCA Attorneys: James Holt Walker, Nashville, Tennessee, for the appellant, Justin Victory. Paul G. Summers, Attorney General and Reporter and Elizabeth T. Ryan, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The defendant, Justin Victory, entered a plea of guilty to the offense of aggravated burglary before the Davidson County Criminal Court. Pursuant to the plea agreement, the defendant was to receive a sentence of four (4) years, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court denied the defendant's request for an alternative sentence and ordered the defendant to serve the sentence in the Davidson County CCA. Also, the trial court advised the defendant that upon completion of the Life Lines Substance Abuse Program, the trial court would suspend the balance of the sentence and determine proper restitution. In this appeal of right, the defendant complains that the trial court erred in denying him supervised probation. After a review of the record, the briefs of parties and applicable law, we modify the manner of the service of the defendant's sentence to 214 days incarceration with the remainder served on supervised probation. http://www.tba.org/tba_files/TCCA/victoryj.wpd

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