November 27, 2000 Volume 6 -- Number 191 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 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Court of Appeals 08 New Opinion(s) from the Tennessee Court of Criminal Appeals 02 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 REBECCA J. AMELL, BY NEXT OF KIN, MARVIN H. AMELL VS. LIBERTY MUTUAL INSURANCE CO., Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Mary Elizabeth Maddox George R. Garrison PO Box 39 Webb & Garrison Knoxville, Tennessee 37901 1415 Middle Creek Road Sevierville, Tennessee 37862 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 Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Liberty Mutual Insurance Co. (hereafter "Liberty Mutual") appeals an award of workers' compensation death benefits to the surviving spouse of an employee killed in the course and scope of her employment. http://www.tba.org/tba_files/TSC_WCP/amellrebeccaj.wpd STEPHEN BENKER v.WILLIAMS TELECOMMUNICATIONS SERVICE, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Robert W. Knolton, of Oak Ridge, Tennessee, for the Appellants, William Telecommunications Service, Inc. and Insurance Company of the State of Pennsylvania. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, of Nashville, Tennessee, for the Appellee, State Second Injury Fund. J. Anthony Farmer, of Knoxville, Tennessee, for the Appellee, Stephen Benker. Judge: THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer has appealed from the trial court's ruling the employee is totally disabled raising issues concerning compensability of the claim and the apportionment of the award. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/benkers.wpd HMC TECHNOLOGIES CORP. a/k/a HMC TECHNOLOGIES, INC. v. SIEBE, INC. - ROBERTSHAW TENNESSEE DIVISION Court:TCA Attorneys: Arthur G. Seymour, Jr., and James E. Wagner, Knoxville, Tennessee, for the appellant, Siebe, Inc. - Robertshaw Tennessee Division. Jay Arthur Garrison, Knoxville, Tennessee, for the appellee, HMC Technologies Corporation, a/k/a HMC Technologies, Inc. Judge: SUSANO First Paragraph: In this declaratory judgment action, the plaintiff, HMC Technologies Corp. a/k/a HMC Technologies, Inc. ("HMC"), sued to enforce an indemnification provision contained in a proposal submitted to, and accepted by, the defendant, Siebe, Inc. - Robertshaw Tennessee Division ("Robertshaw"). Both parties moved for summary judgment. The trial court entered judgment in favor of HMC. We reverse. http://www.tba.org/tba_files/TCA/hmc.wpd DAVID ROBERTS v. ESSEX MICROTEL ASSOCIATES, II, L.P. d/b/a/ MICROTEL-KINGSPORT, et al. WITH DISSENTING OPINION Court:TCA Attorneys: Larry V. Roberts, Kingsport, Tennessee, for the Appellant David Roberts. H. Wayne Graves, Johnson City, Tennessee, for the Appellee Essex Microtel Associates, II. Judge: SWINEY First Paragraph: Plaintiff registered as a guest at Defendant's hotel. For various reasons, the desk clerk asked to see Plaintiff's driver license. Plaintiff produced his driver license for inspection by the desk clerk. For those same reasons, the desk clerk later telephoned the police. She provided the 911 police dispatcher with certain information from Plaintiff's driver license. With this information, the police discovered that an individual with the same date of birth and a similar name was wanted in Florida on a narcotics trafficking charge. The police came to the hotel, questioned Plaintiff, and then took Plaintiff into custody. After detaining Plaintiff at the police station for two hours, the police determined that Plaintiff was not the suspect wanted in Florida and returned Plaintiff to the hotel. Plaintiff sued the hotel owner and the desk clerk for malicious prosecution, wrongful arrest, false imprisonment and invasion of privacy, but later proceeded only on the invasion of privacy and false imprisonment counts. The Trial Court granted Defendants' Motion for Summary Judgment. We affirm. http://www.tba.org/tba_files/TCA/robertsd_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/robertsd_dis.wpd STATE OF TENNESSEE v. JOHNNIE BELL, JR. WITH DISSENTING OPINION Court:TCCA Attorneys: George Todd East, Kingsport, Tennessee, attorney for the appellant, Johnnie Bell, Jr. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Johnnie Bell, Jr., challenges the trial court's order upholding the prosecutor's denial of pretrial diversion for the charges of vehicular homicide and aggravated assault. He contends that the prosecutor abused his discretion in failing to consider all the relevant factors and to list the factual disputes in the evidence. He argues that the trial court may not rehabilitate the prosecutor's letter and that this court must order pretrial diversion. We hold that the prosecutor failed to consider all the relevant factors but that the failure does not require the grant of pretrial diversion absent proof of entitlement. We affirm the trial court's order denying pretrial diversion. http://www.tba.org/tba_files/TCCA/bellj_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/bellj_dis.wpd STATE OF TENNESSEE v. JEFFREY ENGLISH Court:TCCA Attorneys: Gene Honea, Assistant Public Defender, Franklin, Tennessee, attorney for the appellant, Rhonda Jennings. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, and Ron Davis, District Attorney General, Jeff Burks, Assistant District Attorney, attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On December 14, 1998, a Williamson County Grand Jury returned presentments charging Jeffrey English, the defendant and appellant, with three counts of aggravated robbery and one count of aggravated assault. The defendant pled guilty to three counts of aggravated assault. At a subsequent sentencing hearing, the defendant also pled true to violating the probation he was on at the time of the instant offenses. Following the hearing, the trial court sentenced the defendant to sixteen years for each count of aggravated robbery. His probation was revoked and he was sentenced to serve eight years for the prior aggravated robbery. The court ordered the defendant to serve all four sentences consecutively. On appeal, the defendant argues that his sentence is excessive. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/englishjeffre.wpd STATE OF TENNESSEE v. CHRISTINA L. HOWARD Court:TCCA Attorneys: Eugene J. Honea, Franklin, Tennessee (at trial), and Jesse N. H. Bacon, Madison, Tennessee (on appeal), for the appellant, Christina L. Howard. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Derek Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Christina L. Howard was found guilty by a Williamson County jury of possession with intent to sell or deliver cocaine in an amount greater than 300 grams, possession with intent to sell or deliver marijuana, and possession of drug paraphernalia. After a sentencing hearing, the trial court sentenced Defendant as a Range I standard offender to concurrent terms of twenty years for cocaine possession, one year for marijuana possession, and one day for possession of drug paraphernalia. Defendant raises the following issues in this appeal: (1) whether the trial court erred when it did not instruct the jury on the lesser-included offense of facilitation of a felony; (2) whether the trial court erred when it sentenced Defendant as a standard offender; and (3) whether the trial court erred when it denied Defendant alternative sentencing. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/howardcl.wpd STATE OF TENNESSEE v. MANOLITO JEMISON Court:TCCA Attorneys: Karl Dean, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); Laura C. Dykes, Assistant Public Defender (at trial); and Gigi Braun, Assistant Public Defender (at trial), for the appellant, Manolito Jemison. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bernard F. McEvoy, Assistant District Attorney General; and Derrick L. Scretchen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was found guilty by a Davidson County jury of the lesser offense of voluntary manslaughter on one count of first degree premeditated murder and the lesser offense of reckless homicide on one count of felony murder. The counts were merged into one conviction for voluntary manslaughter, and the defendant was sentenced as a Range I, standard offender to six years in confinement. In this appeal as of right, the defendant challenges the sufficiency of the evidence to support a conviction for voluntary manslaughter and the length of his sentence, arguing that the trial court erroneously applied one enhancement factor and failed to apply two mitigating factors. Based upon our review, we agree that an enhancement factor was improperly applied. However, since two other enhancement factors were properly applied, and the evidence was sufficient to support the conviction, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jemisonm.wpd STATE OF TENNESSEE v. JERRY L. JOHNS Court:TCCA Attorneys: Jerry L. Johns, Wartburg, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jerry L. Johns, appeals from the order of the trial court dismissing his "Motion to Vacate Judgment" as barred by the statute of limitations. The trial court apparently treated the Defendant's motion as a petition for post-conviction relief. We hold that the trial court properly treated the Defendant's motion as a petition for post-conviction relief and that the motion was properly dismissed because it was barred by the statute of limitations, because another post- conviction petition had already been filed and resolved on the merits, and because the grounds for relief alleged by the Defendant had been previously determined. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsjl.wpd STATE OF TENNESSEE v. LORI A. LITTLE Court:TCCA Attorneys: W. Casey Reed, Nashville, Tennessee, for the appellant, Lori A. Little. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, District Attorney General; and Grady Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Lori A. Little, was convicted of two counts of forgery, both Class E felonies. In this appeal as of right, she argues (1) that the trial court improperly denied her the court's subpoena power prior to trial; (2) that the evidence was insufficient to support her convictions; (3) that the trial court improperly instructed the jury regarding NationsBank's obligations under the Uniform Commercial Code to reimburse customers for forgeries paid out of customers' accounts; (4) that the trial court improperly limited cross-examination of a prosecution witness regarding his bias; (5) that the jury was improperly tainted or biased by contact between a witness and a juror who were acquaintances; and (6) that the trial court intimidated the Defendant in a jury-out hearing during her direct examination at trial. We find no reversible error; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/littlela.wpd ALVIN VONNER v. STATE OF TENNESSEE Court:TCCA Attorneys: Alvin Vonner, Appellant, Pro Se, Paul G. Summers, Attorney General & Reporter, Ronald L. Davis, Marvin E. Clements, Jr., Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Alvin Vonner, appeals the Hickman County Circuit Court's summary dismissal of his petition for habeas corpus relief and alleges that his 60 year second degree murder sentence has expired. Because the record fails to establish that the sentence has expired, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/vonnera.wpd KENNETH LEE WESTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Joe H. Walker, Harriman, Tennessee, for the appellant, Kenneth Weston. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; and J. Scott McCluen, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Kenneth Lee Weston, appeals as of right from the summary dismissal of his petition for writ of habeas corpus. He asserts that his convictions are void because the trial judge did not sign the court minutes reflecting the judgment. We hold that the failure of the trial judge to sign the court minutes does not render a judgment of conviction void. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/westonkl.wpd TVA/Columbia Dam Project Lands Date: November 16, 2000 Opinion Number: 00-173 http://www.tba.org/tba_files/AG/OP173.pdf Term limits for county commission chair Date: November 20, 2000 Opinion Number: 00-174 http://www.tba.org/tba_files/AG/OP174.pdf 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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