September 19, 2000 Volume 6 -- Number 149 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 05 New Opinion(s) from the Tennessee Court of Criminal Appeals 07 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 JAMES C. BARBRA V. CLARENDON NATIONAL INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: James P. Catalano, Knoxville, Tennessee, for the appellant, Clarendon National Insurance Company. J. Anthony Farmer, Knoxville, Tennessee, for the appellee, James C. Barbara Judge: PEOPLES 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, Clarendon National Insurance Company, is the workers' compensation insurance carrier for United Marine Corporation (hereafter "the employer"). The issue is whether an award of 62-1/2 percent partial disability to the body as a whole is excessive in light of the medical and vocational testimony. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/barbrajamesc.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_0918.wpd STATE OF TENNESSEE v. LARRY BURKS Court:TCCA Attorneys: M. Keith Davis, Dunlap, Tennessee, for the appellant, Larry Burks. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James Michael Taylor, District Attorney General; Steven H. Strain, Assistant District Attorney General; and Sherry Durham Gouger, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The mobile home, which was the residence of the defendant and his wife, was searched, pursuant to a search warrant, and certain illegal substances were found. The defendant filed a motion to suppress, contesting the adequacy of the description of the place to be searched. Following a hearing on the motion and the trial court's upholding the validity of the search warrant, the defendant entered a plea of guilty to a drug offense, reserving as certified questions of law the adequacy of the portion of the search warrant describing the place to be searched and whether the search warrant sufficiently established the reliability of the confidential informant. Based upon our review, we affirm the finding of the trial court that the description of the premises was adequate. Our consideration of the second certified question of law is waived because this issue was not pursued on appeal. http://www.tba.org/tba_files/TCCA/burksl.wpd STATE OF TENNESSEE v. ELIZABETH DAVIS WITH DISSENTING OPINION Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter, William C. Bright, Assistant Attorney General, Ken Baldwin, Assistant District Attorney General, for the appellant, State of Tennessee. Clifford K. McGown, Jr., Waverly, Tennessee, David F. Bautista, District Public Defender, and Deborah Black Huskins, Assistant District Public Defender, for the appellee, Elizabeth Davis. Judge: OGLE First Paragraph: The appellee, Elizabeth Davis, was indicted by a Unicoi County Grand Jury on November 20, 1995, for four counts of theft of property. On March 2, 1999, the State submitted a motion to the trial court to amend the indictment to correct the dates of the offenses set forth in all counts of the indictment and to reduce the value of the money alleged stolen in Count Four of the indictment. Following a hearing, the trial court denied the State's motion, whereupon the State requested the entry of an order of nolle prosequi as to all counts of the indictment. Instead, at the appellee's request, the trial court dismissed the indictment with prejudice pursuant to Tenn. R. Crim. P. 48(b). The State now brings this appeal as of right challenging both the trial court's dismissal of the indictment with prejudice and the trial court's denial of its motion to amend the indictment. Following a review of the record and the parties' briefs, we reverse the order of dismissal and remand this case for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/davisel_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/davisel_dis.wpd STATE OF TENNESSEE v. BOBBY G. GODSEY Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender, Blountville, Tennessee, and James T. Bowman, Johnson City, Tennessee, for the appellant, Bobby G. Godsey. John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Alice B. Lustre, Assistant Attorney General, H. Greeley Wells, District Attorney General, and Barry Staubus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Bobby G. Godsey, was convicted of first degree murder during the perpetration of aggravated child abuse. The jury imposed a death sentence based upon a single aggravating circumstance: "(1) The murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older[.]" Tenn. Code Ann. S 39-13-204(i)(1). The defendant was also convicted of aggravated child abuse. The trial court imposed a consecutive sentence of twenty-five (25) years. http://www.tba.org/tba_files/TCCA/godseybg.wpd STATE OF TENNESSEE v. JAMES CHRISTOPHER LEWIS Court:TCCA Attorneys: T. Martin Browder, Jr., Johnson City, Tennessee, for the appellant, James Christopher Lewis. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Mary Katherine Harvey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant entered an Alford plea to one count of attempted rape and two counts of sexual battery. He received a sentence of eight years as a Range II offender for the attempted rape and two years, as a Range I offender, for each of the sexual battery charges. All sentences were to be served concurrently. The defendant's request for a suspended sentence was denied after a lengthy hearing, and he raises that denial as the sole issue on appeal. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lewisjc.wpd STATE OF TENNESSEE v. SAMUEL WAYNE LOVEDAY Court:TCCA Attorneys: D. David Sexton, II (on appeal) and Thomas Slaughter (at trial), Knoxville, Tennessee, for the appellant, Samuel Wayne Loveday. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, who was convicted of attempted aggravated rape, aggravated sexual battery, and aggravated assault, appealed these convictions, presenting as issues whether the out-of-court showup identification of the defendant was impermissibly suggestive and whether the subsequent in-court identification was tainted as a result. Based upon our review, we conclude that these issues are without merit and, thus, affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lovedaysw.wpd Employees' Entitlement to Vacation Pay Accrued Upon Termination of Employment Date: August 17, 2000 Opinion Number: 00-132 http://www.tba.org/tba_files/AG/OP132.pdf Permissibility of Intrastate Long-Distance Directory Assistance Charges by Long Distance Telephone Service Resellers Date: August 18, 2000 Opinion Number: 00-133 http://www.tba.org/tba_files/AG/OP133.pdf Application of the Building Height Restriction in the Scenic Highway System Act Date: August 22, 2000 Opinion Number: 00-134 http://www.tba.org/tba_files/AG/OP134.pdf Challenge to Growth Plan Ratified by Local Governments Date: August 22, 2000 Opinion Number: 00-135 http://www.tba.org/tba_files/AG/OP135.pdf Liability of the State for Errors in the Issuance of Permits Date: August 24, 2000 Opinion Number: 00-136 http://www.tba.org/tba_files/AG/OP136.pdf Conflict of Interest: Assistant District Attorney General Date: August 24, 2000 Opinion Number: 00-137 http://www.tba.org/tba_files/AG/OP137.pdf School Board Member - - Other County Office Date: August 28, 2000 Opinion Number: 00-138 http://www.tba.org/tba_files/AG/OP138.pdf PLEASE FORWARD THIS E-MAIL! 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