November 10, 2000 Volume 6 -- Number 185 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 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 05 New Opinion(s) from the Tennessee Court of Appeals 09 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 POLLY L. ANDREWS v. MAURICE J. SALTER Court:TCA Attorneys: Larry L. Roberts and Gena B. Lewis, Nashville, Tennessee, for the appellant, Polly L. Andrews. David B. Scott and Dianna Baker Shew for the appellee Maurice J. Salter. Judge: COTTRELL First Paragraph: The defendant's automobile ran into the rear of the plaintiff's car. After the collision, the plaintiff learned that she had sustained a ruptured disk and commenced the underlying action, seeking compensation for both personal injury and property damage. At trial, the court admitted evidence that the plaintiff had been involved two prior accidents within the past ten months. The trial court granted a directed verdict to the plaintiff on the issue of liability for the accident, but left open the question of whether the defendant's actions caused the plaintiff's injuries. The jury awarded the plaintiff $2,500 in damages, notwithstanding the fact that her undisputed medical expenses were substantially higher. The plaintiff appealed, arguing that the admission of the prejudicial and irrelevant evidence of prior accidents was error and that the jury improperly speculated on the cause of her injuries. The evidence of the prior accidents was limited, included no proof of personal injuries, and included no connection between the mere occurrence of these accidents and the plaintiff's injuries. Because the evidence of the prior collisions invited speculation, we reverse. http://www.tba.org/tba_files/TCA/andrewsp.wpd IN RE: ESTATE OF RALPH I. CAMMACK, DECEASED Court:TCA Attorneys: Robert L. Huskey, Manchester, Tennessee, for the appellants, Polly Ann Cammack Travis and Fred Cammack. Frank Van Cleave, Tullahoma, Tennessee, for the appellee, Molly M. Cammack, Personal Representative of the Estate of Ralph I. Cammack. Judge: COTTRELL First Paragraph: This is a dispute between the deceased testator's second wife and the two children of his first marriage. The testator and his wife executed mutual and reciprocal wills which passed the bulk of their estate to the survivor. The spouses agreed, and their wills reflected, that when the survivor died, the estate was to go equally to the testator's children. In conjunction with the wills, the spouses executed an agreement that they would not change their wills even after the death of the other. After the testator's death, the wife began dissipating the estate, selling the family home, and giving her own child the testator's expensive grandfather clock. In an effort to preserve the estate, the testator's children commenced the underlying action, seeking to establish a resulting trust. After the trial court granted the wife's motion for summary judgment, the testator's children lodged this appeal. Because testator's will gave the wife his estate in fee simple, she inherited the real property as tenant by entirety, and there is no clear and convincing evidence that the testator intended her merely to hold the property in trust for his children, we must affirm. http://www.tba.org/tba_files/TCA/cammackr.wpd CARL D. CLARK, et al. v. ROGER D. LEMLEY, et ux. Court:TCA Attorneys: R. Whitney Stevens, Jr., Fayetteville, Tennessee, for the appellants, Carl D. Clark and Richard Whittle. Barbara G. Medley, Lewisburg, Tennessee, for the appellees, Roger D. Lemley and Brenda Dianne Lemley. Judge: COTTRELL First Paragraph: This case arises from a dispute between neighbors over the use of an old road which connected Appellant's landlocked farm to a public roadway. The road crossed Appellees' property. After Appellees erected a locked gate across the old road, Appellant sought injunctive relief to permit access to the old road. After a trial, the court found that the old road was never a public road and that no prescriptive easement existed. The court declined to provide the requested relief. Because the evidence does not preponderate against the trial court's findings, we affirm. http://www.tba.org/tba_files/TCA/clarkc.wpd CAROLYN DONNA JARVIS v. THOMAS HOLLAND JARVIS Court:TCA Attorneys: Randle W. Hill, Jr., Nashville, Tennessee, for the appellant, Thomas Holland Jarvis. John B. Melton, III, Murfreesboro, Tennessee, for the appellee, Carolyn Donna Jarvis. Judge: KOCH First Paragraph: This appeal involves the dissolution of a five-year marriage in the Circuit Court for Rutherford County. Following a bench trial, the trial court granted the wife a divorce on the ground of inappropriate marital conduct, divided the marital estate, and ordered the husband to pay long-term spousal support. The trial court also directed the husband to maintain the wife's health insurance for three years and to reimburse her for medical expenses incurred prior to the divorce. On this appeal, the husband takes issue with the decision to award the wife the divorce, the classification and division of the marital property, and the long-term spousal support award. We have determined that the spousal support award should be modified and that the remaining portions of the trial court's decree should be affirmed. http://www.tba.org/tba_files/TCA/jarviscd.wpd DELBERT STONE v. PATRICIA STONE Court:TCA Attorneys: J. Brent Travelsted, Nashville, Tennessee, for the appellant, Delbert Stone. Charles L. Hardin, Cookeville, Tennessee, for the appellee, Patricia Stone. Judge: KOCH First Paragraph: This appeal involves a former spouse's efforts to extricate himself from the spousal support obligations contained in a marital dissolution agreement. Approximately one year after the entry of the divorce decree approving the agreement, the former husband requested the Chancery Court for Putnam County to set the agreement aside because he did not have independent legal advice and his judgment was impaired by antidepressant medication when he signed the agreement. The trial court modified portions of the decree but did not relieve the former husband of his spousal support obligation. Thereafter, the former husband filed a second motion seeking to terminate or reduce his spousal support obligations because of his former wife's improved financial circumstances. The trial court again declined to relieve the former husband of his obligation to pay spousal support. On this appeal, the former husband renews his argument that he should no longer be required pay spousal support because of his former wife's improved financial circumstance and his own weakened financial condition. We affirm the trial court's decision that the former husband has failed to prove the existence of a substantial, material change in circumstances that would warrant modifying his spousal support obligation. http://www.tba.org/tba_files/TCA/stoned.wpd STATE OF TENNESSEE v. CARL DAVID BURNETTE Court:TCCA Attorneys: Robert S. Peters, Winchester, Tennessee, for the appellant, Carl David Burnette. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Steven H. Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Carl David Burnette was found guilty by a Grundy County jury of vehicular homicide as the proximate result of intoxication, Tenn. Code Ann. S 39-13-213(a)(2), a Class B felony, and of driving under the influence of an intoxicant, Tenn. Code Ann. S 55-10-401(a). Afterward, the same jury was requested to separately consider whether Defendant was guilty of aggravated vehicular homicide, Tenn. Code Ann. S 39-13-218(a)(3), a Class A felony. The jury decided that Defendant was guilty of the aggravated offense in lieu of vehicular homicide; the conviction for driving under the influence was subsequently merged into the count of aggravated vehicular homicide and Defendant received a sentence of twenty-two years. Defendant raises the following issues in this appeal: (1) whether the trial court erred when it overruled Defendant's motion to suppress the results of blood alcohol tests because the State failed to identify Defendant as the one from whom the blood samples were drawn, and (2) whether the trial court properly bifurcated the jury proceedings as required by Tenn. Code Ann. S 39-13-218(c) when charging aggravated vehicular homicide. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/burnettecd.wpd STATE OF TENNESSEE v. CHARLES RICKY DEASON Court:TCCA Attorneys: Charles S. Bloodworth, Clarksville, Tennessee, for appellant, Charles Ricky Deason. Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, and James Crenshaw, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Charles Ricky Deason, pled guilty in the Montgomery County Circuit Court to one count of driving under the influence (hereinafter "DUI"), seventh offense; one count of leaving the scene of an accident; one count of driving on a revoked license, fourth offense; one count of DUI, second offense; and two counts of misdemeanor assault. The trial court sentenced the appellant to eleven months and twenty-nine days incarceration in the Montgomery County Jail for DUI, seventh offense. The trial court also sentenced the appellant to thirty days incarceration for leaving the scene of an accident, to be served concurrently with the sentence for DUI, seventh offense. Additionally, the trial court sentenced the appellant to an eleven month and twenty-nine day suspended sentence for driving on a revoked license, fourth offense, and ordered this sentence to be served consecutively to the DUI, seventh offense, and leaving the scene of an accident. http://www.tba.org/tba_files/TCCA/deasoncr.wpd STATE OF TENNESSEE v. BOBBY GARNER Court:TCCA Attorneys: Charles S. Bloodworth, Assistant Public Defender, Clarksville, Tennessee, for the appellant, Bobby Garner. Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General and John Carney, District Attorney General, James B. Crenshaw, Assistant District Attorney, attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Following a Montgomery County Grand Jury indictment, Bobby Garner, the defendant and appellant, pled guilty to one count of aggravated burglary and one count of theft of property over one-thousand dollars. After a sentencing hearing, the trial court sentenced the defendant to serve five years for aggravated burglary and three years for theft. The trial court ordered the defendant to serve the sentences consecutively. On appeal, the defendant argues (1) that the sentences imposed were excessive, (2) that he should have been sentenced alternatively, and (3) that consecutive sentences were inappropriate. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/garnerbobby.wpd STATE OF TENNESSEE v. MICHAEL N. GREY Court:TCCA Attorneys: Michael J. Love, Clarksville, Tennessee, for the appellant, Michael N. Grey. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, Suzanne Lockert, Assistant Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Michael N. Grey, was convicted by a jury in the Dickson County Circuit Court of two counts of aggravated robbery, a class B felony, and two counts of theft under $500, a class A misdemeanor. The trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction for the aggravated robbery convictions. The trial court also sentenced the appellant to eleven months and twenty-nine days incarceration in the Dickson County Jail for the theft convictions.The trial court further ordered that the appellant's sentences be served concurrently. The appellant raises the following issue for review: whether the appellant was denied due process because the State failed to provide him with proper pre-trial exculpatory evidence. Upon 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/greym.wpd STATE OF TENNESSEE v. CHARLES S. JONES Court:TCCA Attorneys: Russell A. Church, Clarksville, Tennessee, for the appellant, Charles S. Jones. Paul G. Summers, Attorney General & Reporter, Clinton J. Morgan,. Assistant Attorney General, Nashville, Tennessee, and John Carney, District Attorney General, Lance Baker, Assistant District Attorney, Clarksville, Tennessee for the Appellee, State of Tennessee. Judge: SMITH First Paragraph: On October 30, 1997, the defendant offered guilty pleas to six counts of aggravated burglary, five counts of theft over one thousand dollars, one count of theft under one thousand dollars, and one count of possession of an illegal weapon. After a December sentencing hearing, the trial court ordered the defendant placed on probation and granted him post-trial diversion for a period of six years during which he was to comply with a variety of requirements. Subsequently, separate affidavits were filed in July and September of 1998 alleging that the defendant had violated the terms of his probation. Following a March 1999 hearing concerning these allegations, the trial court entered judgment on the defendant's aforementioned twelve guilty pleas and sentenced him as a Range I Standard Offender to serve an effective sentence of four years for the burglary and theft charges consecutively to eighteen months for the possession of an illegal weapon offense. On appeal, the defendant claims that the trial court erred by (1) failing to consider him for alternative sentencing; (2) improperly enhancing his possession of an illegal weapon sentence and one of his aggravated burglary sentences; and (3) ordering the possession of an illegal weapon charge to run consecutively. After having reviewed the record and applicable authorities, we find these issues to be without merit and, therefore, affirm the trial court's sentence. http://www.tba.org/tba_files/TCCA/jonescharles.wpd JAMES EARL KIRK, ET AL. v. STATE OF TENNESSEE Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; David F. Findley, Assistant Attorney General; T. Michael Bottoms, District Attorney General; Robert C. Sanders, Assistant District Attorneys General, for the appellant, State of Tennessee. John S. Colley, III, Columbia, Tennessee, for the appellees, James Earl Kirk, Christopher Caldwell and Homer Smith. Judge: WILLIAMS First Paragraph: In this interlocutory appeal the State raises the question of whether the Maury County Circuit Court, relying on Tenn. R. Crim. P. 5(a), erred by ordering that all proceedings in a case heard in general sessions court must be heard in the court closest to the location of the offense. It is the opinion of this Court that the plain language of Tenn. R. Crim. P. 5(a) controls the outcome of this case. The controversy in this case turns on the word "nearest" as used in the statute. A cursory reading of the statute could understandably lead one to believe that the term "nearest" was intended to convey geographic proximity. However, such a narrow reading of the word does not yield the desired result the Rule was intended to have, and cannot be read within the strict confines of the plain language set forth therein. The term "nearest" is broader in scope than mere geographical distance. It is the opinion of this Court that as used in Tenn. R. Crim. P. 5(a), "nearest" was intended to be analyzed temporally. http://www.tba.org/tba_files/TCCA/kirkjamese.wpd STATE OF TENNESSEE v. JAMES E. MATHIS Court:TCCA Attorneys: M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, James E. Mathis. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant James E. Mathis was convicted by a Williamson County jury of possession of contraband in a penal institution and sentenced to eight (8) years incarceration in the Department of Correction. In this appeal as of right Defendant raises one issue for appellate review: whether the trial court erred when it refused to suppress incriminating statements made by Defendant to the corrections officers. Defendant contends that his conviction must be reversed and a new trial ordered. After a review of the entire record and applicable law we find no reversible error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mathisje.wpd STATE OF TENNESSEE v. JOEL RICHARD SCHMEIDERER Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee; Donna Orr Hargrove, Public Defender; and Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Joel Richard Schmiederer. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Mike McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Joel Richard Schmiederer, was found guilty by a jury of the following eight offenses: first degree felony murder, first degree premeditated murder, two counts of attempted first degree premeditated murder, burglary of an automobile, theft under $500, and possession of a firearm with an altered serial number. The two murder convictions were merged into a single first degree murder conviction, and the Defendant was given a life sentence for that offense. He was also sentenced as a Range I, standard offender to twenty-five years for each of the two attempted first degree murder convictions, two years for burglary of an automobile, and eleven months twenty-nine days each for theft under $500 and for possession of a handgun with an altered serial number. http://www.tba.org/tba_files/TCCA/schmeidererjr.wpd THOMAS W. YELTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Thomas W. Yelton. Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, and Robert G. Crigler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Thomas W. Yelton, appeals the denial by the Bedford County Circuit Court of his petition for post-conviction relief from his 1992 convictions of fabricating evidence, theft of property worth more than one thousand dollars ($1,000), coercion of a witness, and harassment. Specifically, he alleges that he is entitled to relief from his convictions because he received ineffective assistance of counsel during trial proceedings. The petitioner predicates his claim of ineffective assistance of counsel upon the following grounds: (1) trial counsel failed to submit to the trial court a motion requesting the severance of his offenses; (2) trial counsel maintained inadequate contact with the petitioner during trial proceedings; (3) trial counsel failed to adequately investigate his case; and (4) trial counsel failed to adequately advise the petitioner concerning the waiver of his right to appeal his convictions. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/yeltontw.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! 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