October 13, 2000 Volume 6 -- Number 167 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 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 10 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. EDDIE L. COLEY, JR. WITH DISSENTING OPINION Court:TSC Attorneys: John P. Cauley and Larry D. Drolsum, Franklin, Tennessee, for the appellant, Eddie L. Coley, Jr. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Kathy Morante, Deputy Attorney General, Ronald L. Davis, District Attorney General, Derek Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: This appeal arises from the trial court's exclusion of expert testimony concerning eyewitness identification sought to be offered by the defendant in his trial for aggravated robbery. At trial, Eddie L. Coley, Jr., the defendant, sought to introduce expert testimony concerning eyewitness identification; at the State's objection, the trial court refused to admit the testimony. Coley appealed to the Court of Criminal Appeals. The intermediate court affirmed his conviction and sentence. Appealing to this Court, Coley contends that the trial court abused its discretion in refusing to admit the expert testimony. We accepted review in this case to determine the admissibility of expert testimony concerning eyewitness identification. We hold that the testimony proffered here is inadmissible under Tenn. R. Evid. 702 and that the trial court, therefore, properly excluded the testimony of Coley's expert witness. http://www.tba.org/tba_files/TSC/coleye_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/coleye_dis.wpd JOANN WHITE MOONEY, Individually and as Guardian and Next Friend of Alexander Findlay Martin Mooney, a Minor v. JOE SNEED, ET AL. Court:TSC Attorneys: David A. King and E. Todd Presnell, Nashville, Tennessee, and Buckner Wellford and Michael E. Keeney, Memphis, Tennessee, for the appellants, Joe Sneed and Glen Atkinson. Gary K. Smith and Bryant C. Witt, Memphis, Tennessee, for the appellee, Joann White Mooney. John C. Duffy and Nathan D. Rowell, Knoxville, Tennessee, for Amicus Curiae, Tennessee Municipal League Risk Management Pool. Judge: ANDERSON First Paragraph: We granted this appeal to determine whether an emergency medical technician is a "health care practitioner" within the meaning of Tenn. Code Ann. S 29-20-310(b) (Supp. 1999) and is therefore not entitled to immunity from liability under the Tennessee Governmental Tort Liability Act. We conclude that the appellant emergency medical technicians are "health care practitioners" and are not entitled to immunity. We therefore affirm the judgment of the Court of Appeals. http://www.tba.org/tba_files/TSC/mooneyjw.wpd STATE OF TENNESSEE v. SCARLET ROSE BENDER Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee; William B. Lockert, III, Ashland City, Tennessee; and Chris Young, Assistant Public Defender, for the appellant, Scarlet Rose Bender. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant pleaded nolo contendere to possessing with the intent to sell or deliver over one hundred pounds of marijuana, which is a Class B felony. Sentencing was left to the discretion of the trial court. Following a sentencing hearing, the trial judge sentenced the Defendant to eight years in the Department of Correction. On appeal, the Defendant argues that she should have been sentenced as an especially mitigated offender and that she should have been allowed to serve her sentence on probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bendersr.wpd STATE OF TENNESSEE v. JEFFREY ANTWON BURNS Court:TCCA Attorneys: J. Timothy Street, Franklin, Tennessee, for the appellant, Jeffrey Antwon Burns. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Robert Harris Hassell II, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, convicted of one count of sale of a counterfeit controlled substance, appeals his conviction and sentence asserting that: (1) the evidence was insufficient to support the verdict and (2) the trial court erred in sentencing him to one and one-half years of incarceration. We affirm the conviction and hold that while the defendant did not utter a single word during this drug transaction, sufficient circumstantial evidence existed to allow the jury to conclude that the defendant intended to sell a counterfeit controlled substance. Further, we affirm the sentence as imposed. http://www.tba.org/tba_files/TCCA/burnsja.wpd JACK P. CARR v. DAVID MILLS, WARDEN Court:TCCA Attorneys: Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Harriman, Tennessee, for the appellant, Jack P. Carr. Michael E. Moore, Solicitor General; R. Stephen Jobe, Assistant Attorney General; J. Scott McCluen, District Attorney General, and Frank Harvey, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner sought writ of habeas corpus, alleging that he was entitled to relief because the judgments of conviction were not signed by the trial judge. We hold unsigned judgments do not render judgments void, such as entitles a defendant to habeas corpus relief. We affirm the trial court's dismissal. http://www.tba.org/tba_files/TCCA/carrjp.wpd STATE OF TENNESSEE v. JAMES MCKINLEY CUNNINGHAM Court:TCCA Attorneys: Paul Cross, Monteagle, Tennessee, for the appellant, James McKinley Cunningham. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Grundy County jury of premeditated first degree murder and sentenced to life. In this appeal, he challenges: (1) the sufficiency of the evidence; (2) the admission of a photograph of the victim's body; (3) the exclusion of testimony relating to statements made by the victim; and (4) the evidentiary rulings relating to the victim's propensity toward violence. Upon our review of the record, we find no reversible error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/cunninghamjm.wpd STATE OF TENNESSEE v. WILLIAM DONALD ELLIS Court:TCCA Attorneys: Brent O. Horst, Nashville, Tennessee, for the appellant, William Donald Ellis. Paul G. Summers, Attorney General and Reporter, Russell S. Baldwin, Assistant Attorney General, Lawrence Ray Whitley, District Attorney General, and Sallie W. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, William Donald Ellis, was convicted by a Sumner County jury of one count of rape of a child, two counts of aggravated sexual battery, and two counts of assault. The trial court imposed a sentence of twenty-five (25) years incarceration in the Tennessee Department of Correction for the offense of rape of a child, ten (10) years incarceration in the Department for each count of aggravated sexual battery, and six (6) months incarceration in the Sumner County Jail for each count of assault. The trial court ordered that the appellant serve his sentences for rape of a child and aggravated sexual battery consecutively to each other and concurrently with his sentences for assault, resulting in an effective sentence of forty-five (45) years incarceration. On appeal, the appellant presents the following issues for our review: (1) whether the trial court erred in denying his motion to suppress evidence obtained by police as a result of the warrantless search of his home; (2) whether the trial court should have required the State to elect between Counts One and Six of the indictment; (3) whether the evidence adduced at trial supports the jury's findings of venue; and (4) whether the evidence adduced at trial supports the jury's verdict of guilt of rape of a child. Following a review of the record and the parties' briefs, we affirm in part and reverse and remand in part the judgments of the trial court. http://www.tba.org/tba_files/TCCA/elliswd.wpd STATE OF TENNESSEE v. THOMAS EDWARD FORD Court:TCCA Attorneys: Bernard K. Smith, McMinnville, Tennessee, for the appellant, Thomas Edward Ford. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Todd R. Kelley, Assistant Attorney General, Dale Potter, District Attorney General, and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant, Thomas Edward Ford, was convicted of Class C felony aggravated assault and Class D vandalism. The Circuit Court of Warren County sentenced the appellant to five years for aggravated assault and two years for vandalism. The sentences were ordered to run consecutively. Upon appeal, the appellant raises the following issues for review: (1) propriety of the five-year sentence; (2) imposition of consecutive sentences; (3) sufficiency of the evidence for aggravated assault; and (4) misleading jury instruction. After review, we find no error. Accordingly, the judgment of the Circuit Court of Warren County is affirmed. http://www.tba.org/tba_files/TCCA/fordte.wpd STATE OF TENNESSEE v. ANDREW CHARLES HELTON Court:TCCA Attorneys: Jeffrey A. DeVasher (on appeal), Assistant Public Defender, and Ross Alderman (at trial), Metropolitan Public Defender, Nashville, Tennessee, for the appellant, Andrew Charles Helton. Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, Criminal Justice Division, Victor S. Johnson, III, District Attorney General, Pamela Anderson, Assistant District Attorney General, and T.J. Haycox, Assistant District Attorney General for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Andrew Charles Helton, was indicted, along with co-defendants Shirley Crowell and Shayne Cochran, for two counts of premeditated murder and two counts of felony murder for the shooting deaths of Robert Cole and Michael Chatman. After the trial court granted a motion for a judgment of acquittal on the felony murder charges, the Defendant was convicted by a jury of first degree murder for the death of Robert Cole and of second degree murder for the death of Michael Chatman. The Defendant was sentenced to mandatory life imprisonment for the first degree murder conviction and to twenty-three years imprisonment for the second degree murder conviction. The Defendant now appeals and argues that the evidence presented at trial was insufficient to sustain his convictions. The Defendant also contends that the trial court erred in admitting certain crime scene and autopsy photographs into evidence. After a thorough review of the record and applicable law, we find no merit to the Defendant's contentions and thus affirm his convictions. http://www.tba.org/tba_files/TCCA/heltonac.wpd WILLIAM H. JETT v. STATE OF TENNESSEE Court:TCCA Attorneys: Leslie A. Bruce, Nashville, Tennessee, for the appellant, William H. Jett, Jr. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant filed for post-conviction relief from his jury conviction for stalking, alleging ineffective assistance of counsel. After a hearing, the trial court denied relief. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/jettwh.wpd STATE OF TENNESSEE v. DONALD REE JONES Court:TCCA Attorneys: Donald Ree Jones, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; Tom P. Thompson, Jr., District Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Donald Ree Jones, challenges the trial court's dismissal of his motion to correct an illegal sentence. He argues that his sentence is illegal because his agreed sentence pursuant to a guilty plea following the remand of his case was higher than his initial sentence, which was overturned on appeal. We hold that a defendant may not bring an appeal as of right from the dismissal of a motion to correct an illegal sentence and that an illegal sentence is properly challenged in a petition for habeas corpus relief. Treating this appeal as a petition for a writ of certiorari, we hold that the defendant's sentence is legal and decline to grant the petition. http://www.tba.org/tba_files/TCCA/jonesdr.wpd STATE OF TENNESSEE v. CHARLES B. SULLIVAN Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Charles B. Sullivan. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Todd R. Kelley, Assistant Attorney General, Victor S. (Torry) Johnson III, District Attorney General, and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Charles B. Sullivan entered guilty pleas in the Davidson County Criminal Court to three counts of aggravated rape, one count of especially aggravated burglary, three counts of aggravated burglary, and one count of rape, for which the trial court imposed an effective sentence of fifty-nine years. In this appeal as of right, the appellant contends that the individual sentences are excessive and that partial consecutive sentences are not warranted. After review, we affirm. http://www.tba.org/tba_files/TCCA/sullivancb.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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