September 29, 2000 Volume 6 -- Number 157 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 09 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. WILLIAM BLAINE CAMPBELL Court:TCCA Attorneys: Mark D. Slagle, Johnson City, Tennessee, attorney for appellant, William Blaine Campbell. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals the sentence imposed for the offense of furnishing alcohol to a minor. The defendant contends that he should have been granted judicial diversion and full probation. We affirm the trial court. http://www.tba.org/tba_files/TCCA/campbellwb.wpd STATE OF TENNESSEE v. DOUGLAS CANADY Court:TCCA Attorneys: Troy L. Brooks, Clarksville, Tennessee, for the appellant, Douglas Canady. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Ronald L. Davis, District Attorney General; Jeffrey L. Long and Judson W. Phillips, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant, Douglas Canady, appeals his conviction for aggravated robbery, for which he received a sentence of ten years in the Department of Correction. The sole issue in this appeal is whether the evidence is sufficient to support the verdict. Finding the evidence sufficient, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/canadyd.wpd STATE OF TENNESSEE v. RAYMOND JACKSON COLLINS Court:TCCA Attorneys: Joseph F. Harrison, Assistant Public Defender, for the appellant, Raymond Jackson Collins. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Mary Katharine Harvey, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals from his conviction of, and four-year sentence for, violation of a habitual traffic offender order, failure to stop for a red light, and violation of the seat belt law. He asserts that insufficient evidence supported the verdict, that the imposed sentence was excessive, and that the trial court improperly denied alternative sentencing. We affirm the convictions and sentence, holding that sufficient evidence supported the verdict and that the trial court properly sentenced the defendant. http://www.tba.org/tba_files/TCCA/collinsrj.wpd STATE OF TENNESSEE v. RICHARD ALLAN FRYE Court:TCCA Attorneys: Nat H. Thomas, Kingsport, Tennessee (on appeal) and Gilbert E. Torbett, Bristol, Tennessee (at trial) for the appellant, Richard Allan Frye. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This appeal arises from the order of the Sullivan County Criminal Court upholding the district attorney general's refusal to accept the application of the defendant for pretrial diversion. The defendant asserts that the trial court erred in failing to determine that the district attorney general abused his discretion by relying on facts not supported by the evidence and by failing to consider all relevant factors. We conclude that substantial evidence was before the district attorney general to support the validity of each of the four factors relied on in denying pretrial diversion and that the district attorney general considered all relevant factors. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/fryera.wpd STATE OF TENNESSEE v. MICHAEL A. JANOSKY Court:TCCA Attorneys: V. Michael Fox, Nashville, Tennessee, for the appellant, Michael A. Janosky. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General, and Sean K. Allen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Michael Janosky appeals from his conviction of driving under the influence. In this direct appeal, he challenges his conviction based upon (1) erroneous admission of breath alcohol test results which he contends were involuntarily obtained and (2) the results of the breath test were not administered in accordance with the requirements of State v. Sensing. As to issue (1), we hold that, absent a motorist's express refusal, consent to a breath test is deemed voluntary as a matter of law. With reference to issue (2), the improper administration of the breath test, we find this issue waived because it was not included in the appellant's motion for new trial. Tenn. R. App. P. 3(e). Accordingly, we affirm the judgment entered by the trial court. http://www.tba.org/tba_files/TCCA/janoskyma.wpd STATE OF TENNESSEE v. DAMON THEODORE MARSH Court:TCCA Attorneys: Andrew Jackson Dearing, III, Assistant District Public Defender, Fayetteville, Tennessee (on appeal), and William C. Roberts, Jr., Shelbyville, Tennessee (at trial), for the appellant, Damon Theodore Marsh. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; William Michael McCown, District Attorney General; and Robert G. Crigler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant, Damon Theodore Marsh, appeals his conviction for second degree murder, for which he received a sentence of 23 years and 6 months. On appeal, the defendant raises the issue of sufficiency of the evidence to support his conviction. We conclude that the issue raised by the defendant in this appeal is without merit. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/marshdt.wpd STATE OF TENNESSEE v. GEORGE O. MEARS Court:TCCA Attorneys: Larry B. Stanley, Jr., McMinnville, Tennessee, for the appellant, George O. Mears. Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, and David L. Puckett, Assistant Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, George O. Mears, appeals his conviction in the Cannon County Circuit Court of driving under the influence of an intoxicant, second offense. Pursuant to the appellant's conviction, the trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Cannon County Jail, suspending all but six months of the appellant's sentence and placing him on probation. On appeal, the appellant presents the following issues for our review: (1) whether the trial court erred in permitting the prosecutor to comment to the jury about the appellant's failure to call a witness and in providing a "missing witness" instruction to the jury; (2) whether the evidence adduced at the appellant's trial is sufficient to support the jury's verdict of guilt; and (3) whether the trial court erred in sentencing the appellant. Following a review of the record and the parties' briefs, we reverse the judgment of the trial court and remand this case for a new trial. http://www.tba.org/tba_files/TCCA/mearsgo.wpd STATE OF TENNESSEE v. JOY A. STINSON Court:TCCA Attorneys: Mart S. Cizek, Clinton, Tennessee, for the appellant, Joy A. Stinson. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; James N. Ramsey, District Attorney General; and Elizabeth J. Boatner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of one count of theft of property over $1,000 for her unauthorized charge of items at a retail store to her former employer's account. The trial court sentenced her to four years imprisonment, with three years suspended. On appeal, the defendant presents the issues of whether the trial court erred in allowing the State to introduce the testimony of an alibi rebuttal witness whom the State did not identify as a witness prior to trial, and in allowing the State to present evidence which she alleges tied her to an uncharged crime. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/stinsonja.wpd STATE OF TENNESSEE v. DYRON H. YOKLEY Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, attorney for the appellant, Dyron H. Yokley. Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, Nashville, Tennessee and Mike Bottom, District Attorney General and James G. White, Assistant District Attorney, Lawrenceburg, Tennessee attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Pursuant to a plea agreement, Dyron Yokley, the defendant and appellant, entered "best interest" pleas to four (4) counts of aggravated robbery. The plea agreement provided that the "[d]efendant is to receive an [eight] 8 year package with a sentencing hearing to determine any alternative sentencing, if applicable." Following a sentencing hearing, the trial court sentenced the defendant to eight years for each count, concurrently, as provided in the plea agreement. Relying primarily on the defendant's criminal history and previous sentences of probation, the court ordered the defendant to serve his sentence in the Tennessee Department of Corrections. The defendant now appeals, arguing that all parties were unaware that the defendant was statutorily ineligible for probation and that his plea was thus involuntarily given. Because we find this matter is a post-conviction issue rather than one properly raised at this time, we affirm the judgment of the trial court http://www.tba.org/tba_files/TCCA/yokleydyron.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! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! 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