October 5, 2000 Volume 6 -- Number 161 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):   05 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 07 New Opinion(s) from the Tennessee Court of Appeals 06 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. GUY BINETTE WITH DISSENTING OPINION Court:TSC Attorneys: Jerry S. Sloan, Chattanooga, Tennessee, for the appellant, Guy Binette. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Ellen H. Pollack, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Jerry H. Summers, Chattanooga, Tennessee, for the amicus curiae, Summers & Wyatt, P.C. Judge: BARKER First Paragraph: This is an appeal from the Criminal Court for Hamilton County, which overruled the defendant's motion to suppress all evidence obtained by the State after the defendant was stopped by a police officer on suspicion of driving while under the influence of an intoxicant. The defendant entered a conditional plea of guilty and reserved for appeal as a dispositive question of law the issue of the lawfulness of the stop. The Court of Criminal Appeals affirmed the trial court's judgment. The defendant thereafter sought, and this Court granted, permission to appeal on the following issue: whether reasonable suspicion, based on specific and articulable facts, existed to authorize a stop of the defendant's vehicle. http://www.tba.org/tba_files/TSC/binetteg_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/binetteg_dis.wpd STATE OF TENNESSEE v. TYRONE CHALMERS WITH CONCURRING OPINION AND APPENDIX Court:TSC Attorneys: Judge: HOLDER First Paragraph: The defendant was convicted of felony murder and especially aggravated robbery. The jury sentenced him to death after finding that the evidence of an aggravating circumstance - that the defendant was previously convicted of one or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person - outweighed evidence of mitigating circumstances beyond a reasonable doubt. The trial judge imposed a sentence of twenty years for the especially aggravated robbery conviction, to run concurrently with the death sentence but consecutively to sentences previously imposed in another case. On direct appeal, the Court of Criminal Appeals affirmed the convictions and sentences. http://www.tba.org/tba_files/TSC/chalmert_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TSC/chalmert_con.wpd APPENDIX http://www.tba.org/tba_files/TSC/chalmert_app.wpd REBECCA COLE-TURNER and JUDY SMITH v. CHRISTIAN PSYCHOLOGICAL CENTER Court:TSC Attorneys: Frank Deslauriers, Covington, for Appellants Stephen H. Biller, Memphis, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a dispute over money Plaintiffs paid into a reserve fund while they were employed by Defendant Christian Psychological Center. Plaintiffs believed that the money they contributed to the fund would later be refunded. However, when Plaintiffs resigned from the Center and requested that the money be returned, the Center refused to return the money. The Chancery Court held that Plaintiffs might be entitled to a refund of a portion of monies that they had paid into the reserve fund if the funds were not used by Defendant for ordinary and necessary operating expenses. The Chancery Court then referred the case to a Special Master for a determination of how the funds were spent by the Center. The Special Master held that the Plaintiffs were not entitled to a refund, as the Defendant Center used the reserve funds for ordinary and necessary operating expenses. For the reasons stated hereafter, we affirm. http://www.tba.org/tba_files/TSC/coleturnerrebecca.wpd STATE OF TENNESSEE v. DAVID M. KEEN WITH DISSENTING OPINION Court:TSC Attorneys: W. Mark Ward, Assistant Shelby County Public Defender, Memphis, Tennessee, for the appellant, David M. Keen. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael J. Fahey, II, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The appellant was sentenced to death for the murder of eight-year-old Ashley Nicole Reed in 1990. On automatic appeal, this Court reversed the sentence based upon improper jury instructions, and we remanded the case for resentencing. See State v. Keen, 926 S.W.2d 727 (Tenn. 1994). At the second sentencing hearing, the appellant was again sentenced to death, and the Court of Criminal Appeals affirmed. http://www.tba.org/tba_files/TSC/keendm_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/keendm_dis.wpd JAMES A. LEMAY v. STATE OF TENNESSEE, DEPARTMENT OF CORRECTION Court:TSC Attorneys: Robert J. Mendes, Nashville, Tennessee, for the appellant, James A. LeMay. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Gordon W. Smith, Associate Solicitor General, for the appellee, State of Tennessee, Department of Correction. Judge: ANDERSON First Paragraph: We granted this appeal to determine whether the Governor has the authority to revoke a conditional commutation during the term of the commuted sentence only, or whether the commutation may be revoked during the term of the original sentence. We conclude that the Governor has the authority to revoke a conditional commutation during the term of the original sentence. We therefore hold that the Governor's revocation of the prisoner's commutation after the expiration of the commutated sentence but before the expiration of the original sentence was valid, and affirm the judgment of the Court of Appeals. http://www.tba.org/tba_files/TSC/lemayja.wpd DONALD McCORMICK, ETC. v. AABAKUS INCORPORATED, ET AL Court:TSC - Workers Comp Panel Attorneys: J. Mitchell Grissim, William G. Calhoun and Ronald McNutt, Nashville, Tennessee, for the appellant, Donald McCormick. J. Michael Morgan, Ortale, Kelley, Herbert & Crawford, Nashville, Tennessee, for the appellees, Aabakus Incorporated and National Fire Insurance Company of Hartford. Judge: LOSER First Paragraph: The plaintiff contends that the trial court erred in granting a directed verdict for the defendant/employer at the conclusion of the plaintiff's case. The panel has concluded that a directed verdict was inappropriate. http://www.tba.org/tba_files/TSC_WCP/mccormickdon.wpd In Re ADOPTION OF M.J.S. WITH CONCURRING AND DISSENTING OPINION Court:TCA Attorneys: Richard A. Gordon, Memphis, Tennessee, for the appellants, Cindy G. Snyder and Wolfgang W. Snyder. Diana L. Schmied, Germantown, Tennessee, and Hayden Lait, Memphis, Tennessee, for the appellee, Debra Sue Langston. Paul G. Summers, Attorney General and Reporter, and Dianne Stamey Dycus, Deputy Attorney General, for the State of Tennessee. Judge: FARMER First Paragraph: Cindy G. Snyder and Wolfgang W. Snyder appeal the trial court's final decree of adoption that permitted Appellee Debra Sue Langston to adopt the Snyders' fourteen-month-old grandson, M.J.S. The Snyders' daughter, Christine L. Snyder, previously had delivered physical custody of the child to Langston and had executed a surrender of her parental rights in favor of Langston. Both the Snyders and Langston filed petitions seeking to adopt the child, and the petitions were consolidated in one action. The trial court permitted the Snyders to participate in the adoption proceedings for the purpose of litigating the best interests of the child; however, the trial court refused to allow the Snyders to pursue their own petition for adoption of the child based on the court's ruling that Tennessee's adoption statutes did not give the Snyders standing to adopt the child. Based upon our interpretation of Tennessee's adoption statutes, we conclude that the trial court committed no reversible error in conducting these adoption proceedings, and we affirm the court's final decree of adoption. http://www.tba.org/tba_files/TCA/adoptionofmjs_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/adoptionofmjs_con.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/adoptionofmjs_dis.wpd BILLY COFFELT, pro se v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Billy Coffelt, Pro Se Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Terri L. Bernal, Assistant Attorney General, for the Appellee Judge: HIGHERS First Paragraph: This case arises from the decision of the Riverbend Maximum Security Institution Disciplinary Board which found the Appellant guilty of three separate disciplinary offenses: assault on staff - no injury, destroying state property, and escape. The Appellant filed a Petition for Common Law Writ of Certiorari with the Chancery Court of Davidson County challenging the Disciplinary Board's decision. The trial court dismissed the Appellant's Petition following a Motion to Dismiss or, in the alternative, for Summary Judgment filed by the Appellee. http://www.tba.org/tba_files/TCA/coffeltbilly.wpd ELIZABETH ANN (TIEDE) CROLEY v. THOMAS KENT TIEDE Court:TCA Attorneys: Denty Cheatham, Nashville, Tennessee, for the appellant, Thomas Kent Tiede. Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellee, Elizabeth Ann (Tiede) Croley. Judge: CAIN First Paragraph: This post-divorce case presents the single controlling question of how to calculate an ex-wife's interest in an ex-husband's pension under the deferred distribution method where the retirement plan formula for distribution gives added weight to post-divorce, pre-retirement months or years. Without elaboration, the trial court adopted the "time rule" formula, treating post-divorce pension benefit enhancements earned by a husband's continued post-divorce employment under the retirement system as applicable to the non-employee spouse share at retirement. For reasons stated herein, we affirm the action of the trial court. http://www.tba.org/tba_files/TCA/croleyeliz.wpd STATE OF TENNESSEE v. JOSEPH D. GRAY Court:TCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Joseph D. Gray. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; and Sean Allen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: The sole remaining question in this appeal is whether in October of 1998 the General Sessions Court of Davidson County had jurisdiction over a contempt warrant issued for violating the Davidson County Circuit Court's order of protection. We affirm the General Sessions Court's exercise of jurisdiction. http://www.tba.org/tba_files/TCA/grayjd.wpd ROBERT A. MALLARD, DECEASED, et al. v. THOMAS E. TOMPKINS, M.D., et al. Court:TCA Attorneys: David W. Piper, Woodbury, Tennessee, for the appellants Robert A. Mallard, Deceased, and Myrtle Mallard Oldham. Thomas A. Wiseman, III and Margaret J. Moore, Nashville, Tennessee, for the appellees, Thomas E. Tompkins, M.D.; Nashville Orthopaedic Associates, P.A., d/b/a Tennessee Orthopaedic Associates, P.A.; and a/k/a Tennessee Orthopaedic Alliance, P.A. Judge: CANTRELL First Paragraph: The trial court entered judgment on a jury verdict for the defendant. The plaintiff argues on appeal that the trial court committed reversible error by failing to exclude from the jury a woman who revealed that she knew some members of the defense attorney's family. We affirm the trial court. http://www.tba.org/tba_files/TCA/mallardra.wpd MITCHELL LYNN ROBERTS v. BEVERLY JEAN ROBERTS Court:TCA Attorneys: Markley Runyon Gill, Erin, Tennessee, for the appellant, Mitchell Lynn Roberts. J.L. Thompson, III, Nashville, Tennessee, for the appellee, Beverly Jean Roberts. Judge: CANTRELL First Paragraph: This is an appeal from the trial court's modification of an order of visitation increasing the appellee's amount of summer visitation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/robertsml.wpd FREDRICK B. ZONGE v. THOMAS T. WOODALL Court:TCA Attorneys: Fredrick B. Zonge, Pro Se, Appellant. Winston S. Evans, Samuel D. Payne, Nashville, Tennessee, for the Appellee, Thomas T. Woodall. Judge: COTTRELL First Paragraph: Appellant, a pro se prisoner, brought this legal malpractice action against the appointed appellate counsel in his criminal case. Appellant argued that his conviction would have been reversed but for Appellee's failure to assert in his criminal appeal that the trial court committed reversible error by forcing Appellant to attend trial in prison garb. That argument was made in a supplemental brief filed by Appellant's new appellate counsel and was rejected by the Court of Criminal Appeals. The trial court in this malpractice action granted Appellee's motion for summary judgment. We affirm because Appellant has failed to establish a breach of the standard of care or that he was damaged by counsel's decision not to make an argument which was, in fact, made by new counsel and was unsuccessful. http://www.tba.org/tba_files/TCA/zongef.wpd STATE OF TENNESSEE v. ALPHEIOUS NEELY Court:TCCA Attorneys: A. C. Wharton, Jr., District Public Defender, Garland Erguden, Assistant Public Defender, and Leslie Mozingo, Assistant Public Defender, Memphis, Tennessee, for the appellant, Alpheious Neely. Paul G. Summers, Attorney General & Reporter and Kim R. Helper, Assistant Attorney General, Nashville, Tennessee, and William L. Gibbons, District Attorney General and Daniel S. Byer, Assistant District Attorney General, Memphis, Tennessee, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: Defendant appeals as of right his conviction of one count of burglary of a building, a Class D felony. On appeal he contends that the evidence was insufficient to support his conviction, and that the trial judge erred in ruling that his eleven (11) prior burglary and theft convictions were admissible for the purposes of impeachment. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/neeleyo.wpd STATE OF TENNESSEE v. NICHOLAS O'CONNOR AND NIKOL LEKIN Court:TCCA Attorneys: Marvin E. Ballin and Mark A. Mesler, Memphis, Tennessee, for the appellant, Nicholas O'Connor. Michael E. Scholl, Memphis, Tennessee, for the appellant, Nikol Lekin. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Smith Nichols, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: This is a case involving two defendants: O'Connor, the mother's friend, was convicted of Aggravated Child Abuse through injury and Aggravated Child Abuse through neglect. Lekin, the mother, was convicted of Aggravated Child Abuse through neglect. We affirm the conviction of Aggravated Child Abuse through injury, as we hold that a four-year-old who received a skull fracture, epidural bleeding, swelling and bruising around the eyes and face, and the pain associated with said injuries has sustained "serious bodily injury." Further, we find sufficient evidence to support both convictions for Aggravated Child Abuse through neglect. Finally, we reject the arguments that the state was required to elect a specific "serious bodily injury" and that Aggravated Child Abuse through neglect is not an offense in Tennessee. http://www.tba.org/tba_files/TCCA/oconno1.wpd State of Tennessee v. Bruce C. Reliford Court:TCCA Attorneys: Randall B. Tolley, Memphis, Tennessee, for the appellant, Bruce Reliford. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, William L. Gibbons, District Attorney General, and Edgar A. Peterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: This direct appeal follows dismissal of the appellant's motion at the trial level for a "Correction/Reduction" of his sentences. The appellant is currently serving an effective sentence of life without parole after pleading guilty in 1995 to the offenses of first degree murder, two counts of aggravated robbery and one count of aggravated assault http://www.tba.org/tba_files/TCCA/relifordbc.wpd STATE OF TENNESSEE v. PHILLIP SHEAD, JR. Court:TCCA Judge: HAYES First Paragraph: The appellant, Phillip Shead Jr., appeals from the order of the Madison County Circuit Court revoking his probation and reinstating his original eight year sentence in the Department of Correction. We affirm the judgment of the trial court pursuant to Rule 20, Tenn. Ct. Crim. App. R. http://www.tba.org/tba_files/TCCA/sheadphilip.wpd STATE OF TENNESSEE v. EUGENE A. TURNER Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee (on appeal), and Gary F. Antrican, District Public Defender, Somerville, Tennessee (at trial), for the appellant, Eugene A. Turner. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; James W. Freeland, Jr. and Jerry W. Norwood, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant appeals his jury convictions on two counts of premeditated first degree murder for which he received concurrent life sentences. The following issues are presented for our review: (1) whether the evidence was sufficient to support the convictions; (2) whether the trial court erred in disallowing impeachment evidence against a state witness; (3) whether the trial court erroneously admitted evidence of defendant being a beneficiary of life insurance policies on one of the victims; (4) whether the trial court erroneously admitted inflammatory evidence relating to the crime scene; (5) whether the trial court erred in allowing evidence of alleged threats made by the defendant; (6) whether the trial court erred in allowing evidence of a prior argument between the defendant and one of the victims; and (7) whether the trial court erred in disallowing evidence of defendant's failure to flee and avoid arrest. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/turnerea.wpd STATE OF TENNESSEE v. RONALD WEEKS, SR. WITH DISSENTING OPINION Court:TCCA Attorneys: James V. Ball and Barry W. Kuhn, Memphis, Tennessee, for the appellant, Ronald Weeks, Sr. Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, and Karen Cook, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Ronald Weeks, Sr., was convicted of aggravated sexual battery and sentenced to eight years in the Shelby County workhouse. In this appeal of right, the defendant asserts that the trial court erred by allowing the state to introduce two post-arrest statements allegedly taken in violation of his constitutional right against self-incrimination. The defendant also contends that the trial court erred by denying his motions for judgment of acquittal; by applying Tenn. Code Ann. S 40-35-114(15) (abuse of a position of public or private trust) to enhance his sentence; and by failing to sentence him as an especially mitigated offender. We hold that the trial court correctly applied Tenn. Code Ann. S 40-35-114(15) to enhance the defendant's sentence and properly found that the defendant was not eligible for sentencing as an especially mitigated offender. Because we conclude, however, that the defendant's post-arrest statements should have been suppressed as violative of the defendant's right against self-incrimination, we reverse the judgment of the trial court and remand this cause for a new trial. http://www.tba.org/tba_files/TCCA/weeksron_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/weeksron_dis.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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