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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