October 9, 2000 Volume 6 -- Number 163 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 01 New Opinion(s) from the Tennessee Court of Appeals 05 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. Having reviewed the record in this case, we hold that the evidence preponderates against the trial court's finding that the police officer acted with reasonable suspicion when he stopped the defendant. Accordingly, the judgment of the Court of Criminal Appeals is reversed, the conviction as entered by the trial court is vacated, and the charge of driving while under the influence of an intoxicant is dismissed. http://www.tba.org/tba_files/TSC/binetteg_opn.wpd DISSENTIN OPINION http://www.tba.org/tba_files/TSC/binetteged_dis.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC http://www.tba.org/tba_files/TSC/CERTLIST_1009.wpd STATE OF TENNESSEE v. TYRONE CHALMERS WITH CONCURRING OPINION AND APPENDIX Court:TSC Attorneys: Linda Kaye Garner, Memphis, Tennessee, for the appellant, Tyrone Chalmers. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Erik William Daab, Assistant Attorney General, for the appellee, State of Tennessee. 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. We conclude that the State's introduction of evidence and subsequent argument concerning the specific facts and circumstances of the defendant's prior violent felony convictions do not mandate reversal under State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994), that the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases, and that race is considered when performing comparative proportionality review to ensure that an aberrant death sentence was not imposed due to the defendant's race. Accordingly, we affirm the Court of Criminal Appeals in all respects. http://www.tba.org/tba_files/TSC/chalmert_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TSC/chalmerta_con.wpd APPENDIX http://www.tba.org/tba_files/TSC/chalmerta_app.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. On automatic appeal from this second sentencing hearing, this Court has requested additional argument and briefing on the following five issues: (1) whether the evidence was legally insufficient to support the jury's finding of the "especially heinous, atrocious, or cruel" aggravating circumstance; (2) whether permitting the jurors to find either "torture" or "serious physical abuse beyond that necessary to produce death" denied the appellant his constitutional right to a unanimous jury finding of the basis for the "especially heinous, atrocious, or cruel" aggravating circumstance; (3) whether the jury instruction on the "especially heinous, atrocious, or cruel" aggravating circumstance failed to narrow the class of persons eligible for the death penalty; (4) whether the trial court's failure to permit the jury to consider the sentencing option of life without parole violated the Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections eight and sixteen of the Tennessee Constitution; and (5) whether the trial court erred in refusing the defendant's special request for an instruction on circumstantial evidence. We hold that none of these issues warrants reversal of the sentence. We further hold that the two aggravating circumstances found by the jury are amply supported by the evidence, and we agree that the aggravating circumstances outweigh any mitigating circumstances beyond a reasonable doubt. Finally, we hold that the sentence of death was not arbitrarily or disproportionately applied in the appellant's case. With respect to all other issue /c*? /fi ly discussed /a-this opinion, we agree with and affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/keendm_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/keendmd_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_opn.wpd EDDIE BRANNON vs. PEN GULF, INC., RELIANCE INSURANCE COMPANY, TRAVELERS INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant, For the Appellee, Travelers Insurance Company: Eddie Brannon: Robert J. Uhorchuk Conrad Finnell Suite 407, James Building PO Box 1476 735 Broad Street Cleveland, Tennessee 37363-1476 Chattanooga, TN 37402 For the Appellee, Reliance Insurance Company: Charles W. Dooley Jason D. Howell Leitner, Williams, Dooley & Napolitan, PLLC Third Floor, 801 Broad Street Chattanooga, TN 37402 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. Travelers Insurance Company (hereafter "Travelers") appeals the granting of summary judgment dismissing Reliance Insurance Company (hereafter "Reliance") as a party defendant before trial. Travelers asserts that the trial court erred in finding that the last injurious exposure rule did not create an issue of whether Reliance, as a subsequent workers' compensation insurance carrier for Pen Gulf, Inc., may be liable for Eddie Brannon's injury. http://www.tba.org/tba_files/TSC_WCP/brannonvpen_doc.wpd KENNETH L. STOREY v. DAVID J. POSS Court:TCA Attorneys: Kenneth L. Storey, Henning, Tennessee, Pro Se. David J. Poss, Knoxville, Tennessee, Pro Se. Judge: SWINNEY First Paragraph: Plaintiff/Appellant is an inmate at West Tennessee High Security Prison in Hennig, Tennessee, pursuant to a conviction for aggravated rape. Defendant, a Tennessee attorney, was appointed by the General Sessions Court to represent Plaintiff at a preliminary hearing on that charge. After that hearing, Plaintiff was bound over to the grand jury for trial. Plaintiff asked the Criminal Court to dismiss Defendant as his counsel and to appoint another attorney. The Criminal Court granted Plaintiff's request and appointed new counsel on April 18, 1996. On August 29, 1997, Plaintiff filed this legal malpractice action against Defendant in Chancery Court asking for damages of $730,000. Defendant filed a Motion for Summary Judgment asserting that there are no genuine issues of material fact and that the one-year statute of limitations for attorney malpractice claims bars Plaintiff's claim. The Chancellor granted Defendant's Motion for Summary Judgment and dismissed Plaintiff's Complaint. We affirm. http://www.tba.org/tba_files/TCA/storeykl_opn.wpd STATE OF TENNESSEE v. HENRY C. BOND Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; and David Gall, Assistant Public Defender, Knoxville, Tennessee, for the appellant, Henry C. Bond. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Randall E. Nichols, District Attorney General, and Zane Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted by a Knox County jury of two counts of forgery not exceeding $500. The Defendant was sentenced as a career offender to concurrent terms of six years on each conviction. On appeal, the Defendant contends that the evidence is not sufficient to support his convictions for forgery. Finding no error, we affirm. http://www.tba.org/tba_files/TCCA/bondhc_opn.wpd MICHAEL TODD DRINNON v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Russell Pryor, Greenville, Tennessee, D. Clifton Barnes, Morristown, Tennessee, for the appellant, Michael Todd Drinnon. Paul G. Summers, Attorney General and Reporter, John Knox Walkup, Attorney General and Reporter, Clinton J. Morgan, Counsel for the State, Elizabeth B. Marney, Assistant Attorney General, John Dugger, Assistant District Attorney General, Victor Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Michael Todd Drinnon, was convicted in the Hamblen County Criminal Court on two counts of evading arrest, a class E felony, and two counts of driving on a revoked license, third offense, a class A misdemeanor. The trial court sentenced the petitioner to eleven months and twenty-nine days incarceration in the county jail for the driving on a revoked license convictions. The trial court also sentenced the petitioner to two years incarceration in the Tennessee Department of Correction for the evading arrest convictions. The trial court further ordered that the petitioner's sentences for driving on a revoked license be served concurrently with the sentences for evading arrest, which were to be served consecutively, for an effective sentence of four years. Initially, the petitioner appealed his conviction on the basis of sufficiency of the evidence. However, the trial exhibits were not included in the record on direct appeal. As a result, this court was precluded from deciding the sufficiency of the evidence. Subsequently, the petitioner filed a petition for post- conviction relief, claiming that, through no fault of the petitioner, the Hamblen County Court Clerk failed to include the exhibits in his first appeal; therefore, he should receive a delayed appeal on the issue of sufficiency of the evidence. The petitioner also argued that his trial counsel was ineffective in his representation of the petitioner. The post-conviction court dismissed the petitioner's petition for post-conviction relief, finding that the petitioner had received effective assistance of counsel. However, the post-conviction court did grant the petitioner a delayed appeal on the issue of sufficiency of the evidence. Therefore, the petitioner presents the following issues for our review: (1) whether the evidence presented at petitioner's original trial was insufficient to support a verdict of guilt, and (2) whether petitioner's trial counsel was effective in his representation of the petitioner. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/drinnonmt_opn.wpd STATE OF TENNESSEE v. GREGORY A. HEDGES AND STATE OF TENNESSEE v. THOMAS D. CARTER CONSOLIDATED APPEAL Court:TCCA Attorneys: Gregory A. Hedges and Thomas D. Carter, Pikeville, Tennessee, appellants, pro se. Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, Michael E. Moore, Solicitor General, James Michael Taylor, District Attorney General, James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: In a consolidated appeal, the petitioners challenge the Bledsoe County Criminal Court's dismissal of their petitions for habeas corpus relief. In the petitions, the petitioners, who were codefendants in the conviction court, claim that the Tennessee Department of Correction has no authority to incarcerate either of them on two of their seven convictions because the two challenged convictions were not set forth in separate, individual judgment forms. Finding no defect in the conviction court's proceedings which merits habeas corpus relief, we affirm the lower court's summary dismissal of the petitions. http://www.tba.org/tba_files/TCCA/hedgesga_opn.wpd STATE OF TENNESSEE v. DAVID ANTHONY LEE Court:TCCA Attorneys: Michael A. Anderson, Chattanooga, Tennessee, for the appellant, David Anthony Lee. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; William H. Cox III, District Attorney General; and Thomas E. Kimball, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, after pleading guilty to violation of the Motor Vehicle Habitual Offenders Act, appeals his six-year sentence. He argues that the trial court erred in finding that he was a "career offender." Further, he argues that his sentence constitutes "cruel and unusual punishment" in violation of Article 1, S16 of the Tennessee Constitution and the Eighth Amendment to the United States Constitution. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/leeda_opn.wpd JOHN PENLEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Richard A. Tate, Assistant Public Defender, Blountville, Tennessee, for the appellant, John Penley. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Greeley Wells, District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant filed for post-conviction relief, alleging that his guilty plea to drug-related charges (1) was not knowingly and voluntarily entered; (2) was the result of ineffective assistance of counsel; and (3) was contaminated by illegal evidence. After a hearing, the trial court denied relief, and the Defendant appeals as of right. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/penleyj_opn.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! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. 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