October 23, 2000 Volume 6 -- Number 173 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 07 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1023.wpd STATE OF TENNESSEE v. MATTHEW DOUGLAS COX Court:TCCA Attorneys: Mark E. Stephens, District Public Defender, and R. Scott Carpenter, Assistant District Public Defender, for the appellant, Matthew Douglas Cox. Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General, Randall E. Nichols, District Attorney General, and G. Scott Green, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Matthew Douglas Cox, appeals his convictions by a jury in the Knox County Criminal Court of two counts of aggravated rape and one count of incest. The trial court imposed concurrent sentences of twenty years incarceration in the Tennessee Department of Correction for the aggravated rape convictions and three years incarceration for the incest conviction. On appeal, the appellant presents the following issues for our review: (1) whether the evidence adduced at trial supports his convictions of aggravated rape and incest; (2) whether the trial court erroneously admitted into evidence a tape recording of the victim's 911 telephone call; (3) whether the trial court erred in effectively limiting defense counsel's cross-examination of the State's expert witness concerning the results of a DNA analysis of semen samples obtained from the victim; (4) whether the trial court erred in admitting into evidence testimony concerning the circumstances of the appellant's arrest; (5) whether the State committed prosecutorial misconduct during closing argument; and (6) whether the cumulative effect of these errors requires the reversal of the appellant's convictions. Following a review of the record and the parties' briefs, we affirm in part and reverse in part the judgments of the trial court. http://www.tba.org/tba_files/TCCA/coxmd.wpd STATE OF TENNESSEE v. JERRY MICHAEL GREEN Court:TCCA Attorneys: William A. Buckley, Jr., Athens, Tennessee, for the appellant, Jerry Michael Green. Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General, J. Chalmers Thompson, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Jerry Michael Green, proceeded to trial in the Monroe County Criminal Court for possession of more than .5 grams of cocaine with intent to deliver. Due to the State's improper cross-examination of defense witnesses, the trial court granted the appellant a mistrial. The appellant made a motion in limine to preclude the State, on double jeopardy grounds, from retrying the appellant on possession of cocaine with intent to deliver. The trial court denied the appellant's motion, but granted the appellant permission to appeal its decision. This court granted an interlocutory appeal. In this interlocutory appeal, the appellant claims that double jeopardy bars a retrial because the prosecutor goaded the appellant into requesting a mistrial. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/greenjm.wpd STATE OF TENNESSEE v. JOSEPH RAYMOND HARMON Court:TCCA Attorneys: Joe H. Walker, Public Defender, Harriman, Tennessee, on appeal. Walter Johnson and Alfred Hathcock, Assistant Public Defenders, Harriman, Tennessee, at trial for the appellant, Joseph Raymond Harmon. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, Nashville, Tennessee and J. Scott McCluen, District Attorney General, Frank A. Harvey, Assistant District Attorney, Kingston, Tennessee for the appellee, State of Tennessee. Judge: SMITH First Paragraph: In a Loudon County bench trial, the appellant, Joseph Raymond Harmon, was convicted of one (1) count of unlawful possession of a weapon to wit: a club, with the intent to go armed in violation of Tenn. Code Ann. S 39-17-1307. The trial court sentenced him to serve thirty (30) days in the Loudon County Jail. On appeal, the appellant raises the following issues for this Court's review: (1) whether the evidence is sufficient to sustain his conviction; (2) whether he was denied his right to a speedy trial under the federal and state constitutions; and (3) whether the trial court erred in failing to grant his motion to reduce his sentence. After a thorough review of the record before this Court, we conclude that there is insufficient evidence to support the appellant's conviction for unlawful possession of a "club" with the intent to go armed. Therefore, the judgment of the trial court is reversed, and the case is dismissed. http://www.tba.org/tba_files/TCCA/harmonjoseph.wpd HENRY EUGENE HODGES v. STATE OF TENNESSEE Court:TCCA Attorneys: Thomas F. Bloom and Patrick T. McNally, Nashville, Tennessee, for the appellant, Henry Eugene Hodges. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kathy Morante, Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General, and Tom Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant, Henry Eugene Hodges, seeks post-conviction relief from his 1992 first degree murder conviction and sentence of death. The Davidson County Criminal Court denied the appellant's petition and this appeal was taken. This court is presented with the following issues: (1) the effectiveness of trial counsel; (2) the post-conviction court's failure to provide funds for expert services; and (3) the post-conviction court's denial of a continuance and refusal to bifurcate the post- conviction evidentiary hearing. Following review of the record, we conclude (1) the appellant was not denied the effective assistance of counsel; (2) the post-conviction court properly denied the appellant's request for funds for additional expert services; and (3) the post-conviction court properly denied the appellant's request for a continuance of the evidentiary hearing. Accordingly, we affirm the post-conviction court's finding that the appellant is not entitled to post-conviction relief. http://www.tba.org/tba_files/TCCA/hodgeshe.wpd STATE OF TENNESSEE v. BERNARD JEROME JONES Court:TCCA Attorneys: Glenn R. Funk (at trial) and Jennifer Lynn Thompson (on appeal), Nashville, Tennessee, for the appellant, Bernard Jerome Jones. Paul G. Summers, Attorney General and Reporter; David Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Davidson County jury of possession with intent to sell or deliver 0.5 grams or more of cocaine. The trial court sentenced defendant to 16 years incarceration as a Range II multiple offender. In this appeal as a matter of right, defendant makes the following allegations of error: (1) the evidence was insufficient to support a finding of guilt; (2) the trial court erred by ruling that if defendant testified, the state could impeach his credibility by introducing defendant's prior drug convictions; and (3) the trial court erred in sentencing defendant to 16 years incarceration. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jonesbj.wpd STATE OF TENNESSEE v. CLINT T. MELTON WITH CONCURRING OPINION CORRECTION Court:TCCA Attorneys: Susan E. Shipley, Knoxville, Tennessee, for the appellant, Clint T. Melton. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark A. Fulks, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant was convicted of one count of aggravated robbery and one count of attempted aggravated robbery and received respective sentences of thirty years and fourteen years, to run consecutively. On appeal, he argues (1) the sufficiency of the evidence; (2) failure to instruct on the lessor offense of theft; (3) introduction of hearsay testimony; (4) the trial court's refusal to permit introduction of photographs for identification purposes; and (5) misapplication of sentencing enhancement factor (11), the convicting felonies involved the threat of death or bodily injury and defendant had previous felony convictions resulting in death or bodily injury. After review, the judgments of conviction and sentences are affirmed. http://www.tba.org/tba_files/TCCA/meltonct_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/meltonct_con.wpd STATE OF TENNESSEE v. BOBBIE JOE ROLLINS Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender; Andrew Jackson Dearing, III, Assistant District Public Defender, Fayetteville, Tennessee (at trial); and John E. Herbison, Nashville, Tennessee (on appeal), for the appellant, Bobby Joe Rollins. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Marshall County jury of reckless aggravated assault and sentenced by the trial court to ten years imprisonment as a Range III offender. In this appeal as a matter of right, the defendant claims the conflict between the trial court's erroneous written jury instruction requiring proof of venue in "Lincoln County," and the oral instruction requiring proof of venue in "Marshall County," requires reversal. After a through review of the record, we conclude that the issue has been waived. Furthermore, regardless of waiver, any error in the written jury instruction was clearly harmless. Therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/rollinsbobbiej.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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