September 21 , 2000 Volume 6 -- Number 151 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):   02 New Opinion(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 03 New Opinion(s) from the Tennessee Court of Appeals 04 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 STATE OF TENNESSEE v. DARYL HOOPER Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. William H. Farmer, Nashville Tennessee; Mark W. Peters, Nashville, Tennessee, for the appellee, Daryl Hooper. Judge: BARKER First Paragraph: The single issue in this appeal is whether the proof introduced at the sentencing hearing is sufficient to support a denial of probation based solely upon the need for deterrence. The Court of Criminal Appeals initially affirmed the sentence and held that proof of deterrence was not needed because drug use and possession cases are "deterrable per se." Upon the defendant's petition to rehear, however, the intermediate court reversed itself, holding that a "per se" rule of deterrence is inconsistent with the holding of this Court in State v. Ashby, 823 S.W.2d 166 (Tenn. 1991). The State appealed to this Court. For the reasons given herein, we hold that the proof in this case is sufficient to justify denial of probation on the sole ground of deterrence. The judgment of the Court of Criminal Appeals granting an alternative sentence is reversed, and the defendant's original term of incarceration is reinstated. http://www.tba.org/tba_files/TSC/hooperdaryl.wpd JONATHAN STEPHENSON v. HOWARD CARLTON, WARDEN, ET AL. Court:TSC Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Jonathan Stephenson. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Kathy Morante, Deputy Attorney General; and Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to determine whether the appellant's sentence of life without parole for first- degree murder was an illegal sentence and, if so, whether the appellant was entitled to habeas corpus relief. The trial court dismissed the petition for habeas corpus and the Court of Criminal Appeals affirmed. We conclude, and the State concedes, that the sentence of life without parole was not a statutorily authorized punishment at the time the appellant committed the offense of first-degree murder and that the illegal sentence was properly challenged in a habeas corpus petition. We reverse the judgment of the Court of Criminal Appeals and remand the case to the trial court for further proceedings. http://www.tba.org/tba_files/TSC/stephens.wpd ANTONIA REGINA ROSE v. EMERSON MOTOR COMPANY Court:TSC - Workers Comp Panel Attorneys: P. Allen Phillips, Jackson, Tennessee, for the appellant, Emerson Motor Company. T.J. Emison, Jr., Alamo, Tennessee, for the appellee, Antonia Regina Rose. Judge: STAFFORD First Paragraph: This is an appeal by the defendant/employer. The only issue presented is whether the evidence preponderates against the trial court's award of 35% permanent partial disability to each of the plaintiff's arms. We find it does not and affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/roseant.wpd ERNESTYNE M. WEBB v. SHOE CITY, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Marc A. Sorin, Memphis, Tennessee, for the appellants, Shoe City, Inc., et al. Lewis K. Garrison, Sr. and John H. Bledsoe, for the appellee, Ernestyne M. Webb. Judge: TATUM First Paragraph: This case involves a back injury sustained in 1995 by Ernestyne M. Webb, an employee of Shoe City, Incorporated. The employee brought suit against the employer and its insurer, The Traveler's Insurance Company. The trial court found that the employee had sustained a herniated disk at the L-4 level of her spine and suffered a 15 percent anatomical impairment rating as a result. The court awarded benefits based upon 67.5 percent disability to the body as a whole. The court also found that the employee was not returned to work and declined to apply the two and one-half (2.5) times cap in Tennessee Code Annotated S 50-6-241(a). The defendants have presented the following issues on appeal: (1) whether the evidence preponderates against the trial court's finding that the plaintiff was not returned to work as required by Tennessee Code Annotated S 50-6-241(a); and (2) whether the evidence preponderates against the court's finding that the plaintiff suffered a 15 percent anatomical impairment to the body as a whole. We find that we must affirm the trial court's judgment as modified. http://www.tba.org/tba_files/TSC_WCP/webberne.wpd BRENDA D. ESTES, et al. v. SANDRA H. PEELS, et al. Court:TCA Attorneys: Stanley F. Roden and Jody S. Rodenborn, Knoxville, Tennessee, for the appellants, Brenda D. Estes and Richard W. Estes. Gene P. Gaby, Greeneville, Tennessee, for the appellee, Magnavox Corporation and/or North American Philips d/b/a Philips Consumer Electronics Corporation. Judge: SUSANO First Paragraph: This case arises out of a motor vehicle accident that occurred when a vehicle exited a manufacturing plant's parking lot and collided with the plaintiff's vehicle on a public highway. Brenda D. Estes and her husband sued the owner of the plant for negligence. The trial court granted the plant owner summary judgment. We hold that, under the circumstances of this case, the plant owner did not owe a duty of care to the plaintiff and therefore affirm the grant of summary judgment. http://www.tba.org/tba_files/TCA/estesbd.wpd BETTY L. FOX v. FOOD LION, INC., STORE #539 Court:TCA Attorneys: Clarence Risin, Knoxville, Tennessee, for the appellant, Food Lion, Inc., Store #539. Mark E. Floyd, Knoxville, Tennessee, for the appellee, Betty L. Fox. Judge: SUSANO First Paragraph: Betty L. Fox sued Food Lion, Inc., Store #539, seeking damages for personal injuries sustained when she fell in an aisle of the defendant's store. The trial court approved the jury's verdict for the plaintiff and entered judgment in her favor for $112,000. The defendant appeals, raising three issues, which we restate as follows: (1) whether there is material evidence that the defendant had actual or constructive notice of the allegedly dangerous condition that caused the plaintiff's fall; (2) whether the defendant owed a duty of care to the plaintiff; and (3) whether there is material evidence to support the jury's allocation of fault. We affirm. http://www.tba.org/tba_files/TCA/foxbl.wpd JERRY WAYNE KILLION v. SANDRA FAYE SWEAT Court:TCA Attorneys: Cecilia S. Petersen, Knoxville, Tennessee, for the appellant, Jerry Wayne Killion. J. Terry Holland, Knoxville, Tennessee, for the appellee, Sandra Faye Sweat. Judge: SUSANO First Paragraph: In this post-divorce proceeding, the father of Dustin Lynn Killion filed a petition seeking the child's custody. The trial court denied the father's petition. The father appeals the trial court's determination that the proof fails to demonstrate a material change of circumstances warranting a change of custody. We reverse. http://www.tba.org/tba_files/TCA/killionjw.wpd ANTHONY EWING v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, Richard Piliponis, Nashville, Tennessee, for the appellant, Anthony Ewing. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, and Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On February 12, 1998, the petitioner, Anthony Ewing, entered a best interest guilty plea in the Davidson County Criminal Court to one count of attempt to sell over .5 grams of cocaine, a class C felony. The trial court imposed a sentence of six years incarceration in the Davidson County Workhouse. The trial court further ordered this sentence to be served concurrently with sentences the petitioner was already serving. The petitioner filed a post-conviction petition for relief, alleging that he received ineffective assistance of counsel and that his best interest guilty plea was not made knowingly or voluntarily. The post-conviction court denied the petition, finding that the petitioner had received effective assistance of counsel and that the best interest guilty plea had been made knowingly and voluntarily. The petitioner now appeals the denial of his petition for post-conviction relief. Pursuant to 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/ewinganthony.wpd STATE OF TENNESSEE v. JERRY WAYNE HARBIN Court:TCCA Attorneys: Robert S. Peters, Winchester, Tennessee, for the appellant, Jerry Wayne Harbin. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, and Bill Copeland, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On July 1, 1999, the appellant, Jerry Wayne Harbin, was convicted by a jury in the Franklin County Circuit Court of driving under the influence of an intoxicant, second offense, and driving on a revoked license. The trial court imposed a sentence of eleven (11) months and twenty-nine (29) days incarceration in the Franklin County Jail, suspended all but sixty-five (65) days of the sentence and ordered the appellant to pay a fine of $750. For the offense of driving on a revoked license, the trial court imposed a concurrent sentence of six (6) months, suspended all but ten (10) days of the sentence and ordered the appellant to pay a fine of $150. On appeal, the appellant alleges that the evidence was not sufficient to support his conviction of driving under the influence. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/harbinjerry.wpd STATE OF TENNESSEE v. ANTHONY ROBERTS Court:TCCA Attorneys: Dennis L. Tomlin, Hendersonville, Tennessee (at trial), and Nan Shelby Calloway, Nashville, Tennessee (on appeal), for the appellant, Anthony Roberts. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Victor S. (Tory) Johnson III, District Attorney General; Sean K. Allen and Edward S. Ryan, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant appeals his conviction by a Davidson County jury of DUI second offense. He raises the following issues for our review: (1) whether the trial court erred in denying his motion to suppress based upon the lack of probable cause to arrest; (2) whether the evidence was sufficient to support the conviction; (3) whether the prosecutor committed misconduct during final argument, and (4) whether records pertaining to his prior DUI conviction were properly admitted. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/robertsa.wpd STATE OF TENNESSEE v. MELISSA STEARNS Court:TCCA Attorneys: Ernest W. Williams, Dana C. McLendons, III, Franklin, Tennessee, attorney for the appellant, Melissa Stearns. Paul G. Summers, Attorney General and Reporter, and David H. Findley attorney, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Melissa Ann Stearns, pled guilty in the Williamson County Circuit Court to one (1) count of reckless endangerment, a Class E felony, and one (1) count of evading arrest, a Class E felony. The trial court sentenced the appellant as a Range I offender to concurrent terms of two (2) years for each offense, suspended after service of thirty (30) days in the Williamson County Jail. On appeal, the appellant contends that the trial court erred in ordering her to serve thirty (30) days in jail. After thoroughly reviewing the record before this Court, we hold that, due to the seriousness of the offenses committed by the appellant, the trial court did not err in denying full probation. Therefore, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/stearnsmelissa.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! 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