November 6, 2000 Volume 6 -- Number 182 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Court of Appeals 15 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 WANDA HALBERT v. THE SHELBY COUNTY ELECTION COMMISSION, et al. Court:TSC Attorneys: Mimi Phillips, Memphis, Tennessee, for the appellant, Wanda Halbert. Robert L. J. Spence, Jr., Memphis, Tennessee, for the appellees, Shelby County Election Commission and individually named commissioners; Allan J. Wade, Memphis, Tennessee, for the appellee, Michael A. Hooks, Jr.; Ernest G. Kelly, Jr., Memphis, Tennessee, for the appellee, Board of Education of the Memphis City Schools. Judge: BIRCH First Paragraph: This matter is before us on direct appeal from the Chancery Court of Shelby County pursuant to Tenn. Code Ann. S 2-17-116. At issue is Michael A. Hooks, Jr.'s eligibility to be elected to and serve on the Board of Education of the Memphis City Schools (School Board). His eligibility hinges on the meaning of the term "resident voter" as used in the School Board's charter. Wanda Halbert, the appellant, contends that Hooks was not a "resident voter" and is thus ineligible to serve on the School Board. The trial court found that Hooks was, indeed, a "resident voter" and eligible to serve as a member of the School Board. The judgment of the trial court is, therefore, affirmed, and this cause is dismissed. http://www.tba.org/tba_files/TSC/halbertw.wpd JAMES C. TUCKER v. FOAMEX, L.P. Court:TSC Attorneys: P. Allen Phillips, Jackson, Tennessee, for the appellant, Foamex, L.P. Jeffrey A. Garrety and Tandra R. Grisham, Jackson, Tennessee, for the appellee, James C. Tucker. Judge: BIRCH First Paragraph: In this workers' compensation case, James C. Tucker, a 59-year-old employee, sustained a compensable injury to his left shoulder. The trial court found that he had sustained a 92 percent permanent partial disability and granted him 368 weeks of benefits (92 percent of 400 weeks provided by statute for permanent partial disability to the body as a whole). The employer, Foamex, L.P., requested review, contending that Tucker was entitled to benefits only up to the age of 65 based on Tenn. Code Ann. S 50-6-207(4)(A)(i) and this Court's decisions interpreting that statute. The case was argued before the Special Workers' Compensation Appeals Panel, but has been transferred, prior to issuance of a memorandum opinion, to the Supreme Court. The issue is whether an award of permanent partial disability benefits is subject to the age-65 limitation of Tenn. Code Ann. S 50-6-207(4)(A)(i). After due consideration, we hold that the age-65 limitation does not apply to employees under the age of 60 who sustain a permanent partial disability to the body as a whole. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC/tuckerj.wpd STANLEY BRIDGES v. LIBERTY INSURANCE COMPANY OF HARTFORD Court:TSC - Workers Comp Panel Attorneys: Linda J. Hamilton Mowles, Knoxville, Tennessee for the appellant, Security Insurance Company of Hartford David H. Dunaway and Frank Q. Vettori, Knoxville, Tennessee, for the appellee, Stanley Bridges Judge: BYERS 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. The chancellor ruled that the plaintiff suffered from pneumoconiosis and that the two physicians who testified the plaintiff had the condition were more credible than the physician who testified he did not. However, the judge found the plaintiff failed to carry the burden of showing he was totally and permanently disabled from the pneumoconiosis; therefore, an award could not be made under the guidelines as expressed in the Federal Coal Mine Health and Safety Act of 1969 and adopted by the Tennessee General Assembly in Tennessee Code Annotated S 50-6-302 et. seq. http://www.tba.org/tba_files/TSC_WCP/bridges.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1106.wpd GREGORY DOMINCOVITCH v. WILSON COUNTY BOARD OF ZONING APPEALS Court:TCA Attorneys: Michael R. Jennings, Lebanon, Tennessee, for the appellants, Wilson County Board of Zoning Appeals. William E. Farmer, Lebanon, Tennessee, for the appellee, Gregory Domincovitch. Judge: CAIN First Paragraph: Petitioner/Appellant, Gregory Domincovitch ("Petitioner") made a request to the Wilson County Board of Zoning Appeals for a "use permissible on appeal" to establish a 250 foot communication tower on his A-1 zoned property. Defendant/Appellee, Wilson County Board of Zoning Appeals ("the Board") denied this request. Mr. Domincovitch petitioned for Writ of Certiorari to the chancery court and subsequently filed a Motion for Summary Judgment in that court. The chancellor granted Petitioner's Motion for Summary Judgment finding that the Board did not have jurisdiction to deny the permit for construction of the communications tower. The Board appealed the chancery court's decision. We affirm the chancery court's ruling finding that Petitioner had presented evidence fulfilling all requirements set out in Wilson County's zoning ordinance regarding cell tower location, and thus, the Board had no jurisdiction to deny the permit to Petitioner. http://www.tba.org/tba_files/TCA/domincovitch.wpd TERRY C. INSCOE, et al. v. KATHLEEN KEMPER, et al. Court:TCA Attorneys: Arthur McClellan, Gallatin, TN, for Appellants John D. Kitch, Nashville, TN, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from a suit filed by Inscoe seeking the return of earnest money held in escrow for the purchase of Kemper's residence. When Inscoe decided not to purchase the residence, Kemper refused to return the earnest money. The trial court found in favor of Inscoe and ordered the return of the earnest money. In making its finding, the court stated that Inscoe's promise to buy was illusory and there was no meeting of the minds, thus the contract was void and unenforceable. Kemper appeals. http://www.tba.org/tba_files/TCA/inscoeterry.wpd STATE OF TENNESSEE v. CHARLES RAY ALLEN Court:TCCA Attorneys: Larry B. Hoover, Nashville, Tennessee, for the appellant, Charles Ray Allen. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted by a jury of first degree premeditated murder and criminal attempt to commit voluntary manslaughter. He was sentenced to life imprisonment for the murder, and to a consecutive four year term for the attempted manslaughter. In this appeal as of right, the Defendant challenges the sufficiency of the evidence; the trial court's exclusion of proof about the victim's prior violent conduct; the trial court's instruction to the jury about the penalties for first degree murder; and his sentencing. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/allencr.wpd STATE OF TENNESSEE v. JASON THOMAS BEELER Court:TCCA Attorneys: Charles S. Kelly, Sr., Dyersburg, Tennessee, and L. Lee Harrell, Trenton, Tennessee, for the appellant, Jason Thomas Beeler. Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from jury trial convictions for reckless homicide, felony murder, aggravated burglary, and two counts of especially aggravated kidnapping. In this appeal, the defendant alleges insufficient evidence, errors in admitting certain evidence, prosecutorial misconduct, improper instructions, and error in denying his writ of error coram nobis. Concluding that it was reversible error to not instruct on the lesser-included offenses of felony murder, we remand for a new trial on the felony murder count. We affirm the remaining convictions. http://www.tba.org/tba_files/TCCA/beelerjt.wpd JEFFREY BIVENS v. STATE OF TENNESSEE Court:TCCA Attorneys: Scott G. Kirk, Jackson, Tennessee, for the appellant, Jeffrey Bivens. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Lucian D. Geise, Assistant Attorney General, James G. (Jerry) Woodall, District Attorney General, and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Jeffrey Bivens appeals from the Madison County Circuit Court's denial of his petition for post- conviction relief. Although the petition was filed outside the one year limitations period, the post- conviction court excused the "late-filed" petition "in the interest of justice." Following a hearing upon the merits of the petition, the court denied post-conviction relief. Because the petition was time-barred, the post-conviction court was without jurisdiction to conduct a hearing on the merits. For this reason, dismissal of the petition is affirmed. http://www.tba.org/tba_files/TCCA/bivensjeff.wpd STATE OF TENNESSEE v. STANLEY BLACKWOOD Court:TCCA Attorneys: Patrick Martin, Jackson, Tennessee, at trial, and Lloyd R. Tatum, Henderson, Tennessee, on appeal, for appellant, Stanley Blackwood. Paul G. Summer, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, Nashville, Tennessee and Jerry Woodall, District Attorney General, Al Earls, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Madison County Grand Jury indicted the defendant, Stanley Blackwood, for one count of first- degree murder, three counts of attempted first-degree murder, five counts of aggravated assault, two counts of reckless endangerment and one count of aggravated burglary. Following a trial, a jury convicted the defendant on all counts, and the trial court imposed an effective sentence of life plus twenty-two (22) years incarceration. On appeal, the defendant contends (1) that the evidence was insufficient to sustain all of the convictions; (2) that the trial court erroneously instructed the jury; (3) that the trial court erroneously refused to admit results of a polygraph examination; (4) that the trial court should have merged two counts of aggravated assault with two counts of attempted first- degree murder; and (5) that the defendant's sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/blackwoodstan2.wpd STATE OF TENNESSEE v. ANTHONY BORG Court:TCCA Attorneys: David Neal Brady, District Public Defender; and H. Marshall Judd, Assistant District Public Defender, Cookeville, Tennessee, for the appellant, Anthony Borg. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William Edward Gibson, District Attorney General; and David A. Patterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant, Anthony Borg, pled guilty to one count of burglary and was sentenced by the trial court to a term of four years in the Department of Correction. On appeal, the defendant raises two issues: (1) whether the trial court erred by imposing the maximum sentence; and (2) whether the trial court erred in denying the defendant alternative sentencing. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/borga.wpd STATE OF TENNESSEE v. JOHN BROWN Court:TCCA Attorneys: A.C. Wharton, Jr., Public Defender, Juanita Peyton, Assistant Public Defender (at trial), Garland Ergueden, Assistant Public Defender (on appeal), for the Appellant, John Brown. Paul G. Summers, Attorney General, Mark E. Davidson, Assistant Attorney General, William L. Gibbons, District Attorney General, Jennifer Nichols, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: John Brown appeals from his Shelby County convictions of aggravated robbery and especially aggravated kidnapping. He alleges insufficiency of identification evidence and plain error in admission of evidence of arrests for other crimes. Because there is no error of record requiring reversal, we affirm. http://www.tba.org/tba_files/TCCA/brownj.wpd STATE OF TENNESSEE v. ERIC HALL Court:TCCA Attorneys: Jeffery S. Glatstein, Memphis, Tennessee, attorney for the appellant, Eric Hall. Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: A Shelby County jury convicted the appellant, Eric B. Hall, of one (1) count of robbery and one (1) count of theft of property over the value of $1,000. The trial court sentenced the appellant as a Range II, Multiple Offender, to consecutive sentences of ten (10) years for robbery and eight (8) years for theft of property. On appeal, the appellant contends that: (1) the evidence is insufficient to sustain his convictions; (2) the trial court improperly charged the jury with regard to the statutory elements of robbery; and (3) the trial court imposed excessive sentences by ordering consecutive sentencing. After a thorough review of the record before this Court, we hold that the evidence is sufficient to sustain the jury's guilty verdict for theft of property over $1,000 and that conviction is affirmed. Regarding the appellant's conviction for robbery, however, the state presented insufficient evidence that the requisite element of fear or violence was the mechanism by which the theft of jewelry was accomplished. Therefore, the appellant's conviction for robbery is reversed, and the conviction for that offense is dismissed. The case is remanded for a new trial on the offense of theft of property. http://www.tba.org/tba_files/TCCA/halleric.wpd STATE OF TENNESSEE v. CHRISTOPHER LINDSAY WITH JUDGMENT Court:TCCA Attorneys: Nancy Meyer, Clinton, Tennessee attorney for the appellant, Christopher Lindsay. Paul G. Summers, Attorney General & Reporter, Marvin S. Blair, Jr., Nashville, Tennessee and James N. Ramsey, District Attorney General, Jan Hicks, Assistant District Attorney, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On September 25, 1998, Christopher Lindsay, the defendant and appellant, pled guilty to driving under the influence, second offense. Following a sentencing hearing, the trial court sentenced the defendant to eleven months and twenty-nine days, all of which was to be served on probation except forty-five days. On appeal, the defendant argues (1) that the trial court should have ordered the defendant to serve his mandatory minimum incarceration in a work release program, and (2) that the trial court should have ordered the defendant to serve his mandatory minimum incarceration on a periodic basis. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lindsaychris_opn.wpd JUDGMENT http://www.tba.org/tba_files/TCCA/lindsaychris_jud.wpd STATE OF TENNESSEE v. DWANNA L. MASON Court:TCCA Attorneys: Jeffrey A. DeVasher, Assistant Public Defender (on appeal) and Hollis I. Moore, Jr., Assistant Public Defender (at trial) for the appellant, Dwanna L. Mason Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and James Sledge, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant pled guilty in Davidson County Criminal Court to vehicular homicide by reckless conduct, a Class C felony, and four lesser charges against her were dismissed. Her guilty plea was submitted without any agreement of the parties as to length or manner of service of sentence. After a sentencing hearing at which the defendant testified, the trial court sentenced her to five years and six months in continuous confinement. The defendant appeals as of right this sentence. We conclude that the imposition of a sentence of five years and six months was appropriate. We affirm the sentence as to length but modify it to show a period of confinement equal to time already served with the remaining time to be served on probation. http://www.tba.org/tba_files/TCCA/masondl.wpd STATE OF TENNESSEE v. JENNIFER E. OAKLEY Court:TCCA Attorneys: Leslie I. Ballin and Mark A. Mesler, Memphis, Tennessee, for the appellant, Jennifer E. Oakley. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, J. Ross Dyer, Assistant Attorney General, William L. Gibbons, District Attorney General, and Rosemary Andrews, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Jennifer E. Oakley entered guilty pleas to three counts of misdemeanor possession of a controlled substance and one count of possession of drug paraphernalia. The manner of service, including the request for judicial diversion, was submitted to the trial court. The trial court denied a grant of judicial diversion based upon the circumstances of the offenses and the inherent dangerous effect of drugs to our communities. After review, we conclude that the record supports the trial court's denial of diversion. The judgment, accordingly, is affirmed. http://www.tba.org/tba_files/TCCA/oakleyje.wpd STATE OF TENNESSEE v. FREDERICK PARKS Court:TCCA Attorneys: Clifford K. McGown, Waverly; George Morton Googe, District Public Defender; Stephen P. Spracher, Assistant District Public Defenders, for the appellant, Frederick Parks. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant, Frederick Parks, was found guilty by a Madison County jury of one count of burglary and one count of theft over $500, for which he received consecutive sentences of four years and two years, respectively. The jury also fined the defendant $750, and the trial court ordered the defendant to pay $1500 in restitution. On appeal, the defendant raises two issues: 1) whether the evidence presented at trial was sufficient to support his convictions; and 2) whether the trial court erred by imposing consecutive sentences on the defendant. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/parksf.wpd JIMMY LEE PIERCE v. STATE OF TENNESSEE Court:TCCA Attorneys: William S. Rhea, Somerville, Tennessee, for the appellant, Jimmy Lee Pierce. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, Elizabeth Rice, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Jimmy Lee Pierce, was convicted of aggravated kidnapping and was sentenced to a term of 11 years. Because the petitioner received the effective assistance of counsel at trial and because there is no merit to his claim that the evidence was insufficient to convict, he is not entitled to post-conviction relief. http://www.tba.org/tba_files/TCCA/piercejl.wpd STATE OF TENNESSEE v. DARONOPOLIS R. SWEATT Court:TCCA Attorneys: Edward E. DeWerff, Clarksville, Tennessee, for the appellant, Daronopolis R. Sweatt. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of first degree felony murder and aggravated robbery. He was given a life sentence for the murder conviction, and eleven years for the robbery conviction, with the robbery sentence to be served consecutively to the life sentence. The defendant appeals his convictions and sentencing, arguing that: 1) the State failed to prove venue by a preponderance of the evidence; 2) the trial court erred in allowing the prosecutor to ask the defendant why he had not earlier provided the alibi that he offered at trial to law enforcement officials; 3) the trial court erred in applying enhancement factor (6) to enhance the sentence for his aggravated robbery conviction; and 4) that the trial court erred in ordering that he serve his aggravated robbery sentence consecutively to his life sentence. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/sweattdr.wpd STATE OF TENNESSEE v. EARL ARNOZ TAYLOR Court:TCCA Attorneys: Julie K. Pillow, Somerville, Tennessee, for the appellant, Earl Arnoz Taylor. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Lucian D. Geise, Assistant Attorney General, Elizabeth T. Rice, District Attorney General, and Tracy Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant, Earl Arnoz Taylor, was convicted of second degree murder in the Lauderdale County Circuit Court. On appeal, he argues that the evidence produced at trial was insufficient to support the verdict. After review, we find the evidence sufficient and affirm the judgment. http://www.tba.org/tba_files/TCCA/taylorea.wpd STATE OF TENNESSEE v. NORICO S. WOODS ORDER Court:TCCA Judge: HAYES First Paragraph: The appellant, Norico S. Woods, appeals from the order of the Madison County Circuit Court revoking her Community Corrections sentences and reinstating her original nine-year sentence in the Department of Correction. We affirm the judgment of the trial court pursuant to Rule 20, Tenn. Crim. App. R. http://www.tba.org/tba_files/TCCA/woodsns.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. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2000 Tennessee Bar Association