December 7, 2000 Volume 6 -- Number 198 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 04 New Opinion(s) from the Tennessee Court of Appeals 08 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 01 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 Amended December 6, 2000 Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1204_ame.wpd JUDICIAL ETHICS COMMITTEE ADVISORY OPINION NO. 00-03 Court:TSC - Rules Judge: HAYES First Paragraph: This Committee has been requested to issue an opinion addressing the propriety of judicial conduct of a part-time juvenile court judge arising from the following factual scenarios: I. An attorney represents a client in a criminal case. Subsequently, the client is accused of the sexual molestation of a child in the custody of the Tennessee Department of Children's Services. The same attorney who represented the client in the criminal case may now be acting as the judge in the Juvenile Court hearing the sexual molestation case. II. An attorney represents parents in a termination of parental rights case in a county adjacent to Sequatchie. Within the week, the attorney, acting as Juvenile Court Judge in Sequatchie County, hears a termination of parental rights case involving basically the same issues. III. A litigant before a part-time judge/lawyer later attempts to retain that judge/lawyer to represent him in other pending matters. http://www.tba.org/tba_files/TSC_Rules/ethics00-03.wpd HARRY BARNETT and wife, ELIZABETH BARNETT, V. GARY L. LANE and wife, DONNA L. LANE Court:TCA Attorneys: James M. Crain, Knoxville, Tennessee, for Plaintiffs-Appellants, Harry Barnett and wife, Elizabeth Barnett. John W. Routh, Knoxville, Tennessee, for Defendants-Appellees, Gary L. Lane, and wife, Donna L. Lane. Judge: FRANKS First Paragraph: Plaintiffs, purchasers of house from defendants, were awarded damages for defects in house not revealed by defendants. Plaintiffs appeal, asking punitive damages and an increase in compensatory damages. We affirm. http://www.tba.org/tba_files/TCA/barnetth.wpd ROBERT LAFFERTY, et al. v. CITY OF WINCHESTER, et al. Court:TCA Attorneys: Robert S. Peters, Winchester, Tennessee, for the appellants, Robert Lafferty and Phyllis Lafferty. Thomas C. Faris, Winchester, Tennessee, for the appellee, City of Winchester. Judge: KOCH First Paragraph: This appeal involves a dispute between the owners of a bed and breakfast and the City of Winchester regarding a proposed expansion of the business's bar and banquet facilities. When the city's Board of Zoning Appeals declined to approve the expansion, the owners of the bed and breakfast filed a petition for a common-law writ of certiorari in the Circuit Court for Franklin County challenging the Board's decision. After reviewing the record of the proceedings before the Board, the trial court determined that the Board acted within its discretion when it declined to approve the proposed expansion of the bed and breakfast. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/laffertyr.wpd IN RE: STEPHANIE ANN LINVILLE, A MINOR Court:TCA Attorneys: W. Thomas Schmitz, Brentwood, Tennessee, for the appellant, Susan Faye Linville. Terry A. Fann, Murfreesboro, Tennessee, for the appellee, Martha Elizabeth Linville. Judge: CANTRELL First Paragraph: This appeal arises from the trial court's grant of an award of child support to the appellee, the child's paternal grandmother and legal custodian, from the child's mother. For reasons stated herein, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/linvillesa.wpd DONALD JOSEPH RUSSO v. DEBRA ANN RUSSO Court:TCA Attorneys: James C. Bradshaw, III, Nancy A. Vincent, Nashville, for Appellant Larry Hayes, Jr., Nashville, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from an action for divorce initiated by Donald Joseph Russo ("Husband") against Debra Ann Russo ("Wife"). The trial court granted Wife an absolute divorce and alimony in futuro; awarded custody of the parties' minor children to Wife; ordered Husband to pay child support in the amount of thirty-two hundred dollars per month with additional child support of two thousand dollars per month to be placed in educational trust for parties' minor children; and awarded the majority of marital assets to Wife. Husband appeals. http://www.tba.org/tba_files/TCA/russodonald.wpd STATE OF TENNESSEE v. CHESTER LEBRON BENNETT Court:TCCA Attorneys: Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Asst. Public Defender, for the Appellant, Chester Lebron Bennett. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Erik W. Daab, Assistant Attorney General, William H. Cox III, District Attorney General, and Claire H. Brant, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Chester Lebron Bennett, pled guilty to five counts of criminal exposure to HIV and was sentenced to five concurrent four-year Department of Correction sentences. This court, on direct appeal, remanded the case to the trial court for consideration of alternative sentencing. See State v. Chester Lebron Bennett, No. 03C01-9810-CR-00346 (Tenn. Crim. App. at Knoxville, July 28, 1999), perm. to appeal granted, (Tenn. Oct. 16, 2000). Subsequent to this court's decision, the supreme court released its decision in the case of State v. Daryl Hooper, No. M1997-00031-SCR-11- CD (Tenn. at Nashville, Sept. 21, 2000) (for publication). In State v. Daryl Hooper, the court announced new sentencing considerations regarding the need for deterrence as grounds for denying an alternative sentence. In light of its decision in State v. Daryl Hooper, the court remanded the case to this court for reconsideration. See State v. Chester Lebron Bennett, No. E1998-00614-SC-R11- CD (Tenn. at Knoxville, Oct. 16, 2000). After revisiting this issue under the standards announced in State v. Daryl Hooper, we affirm the trial court's denial of alternative sentencing. http://www.tba.org/tba_files/TCCA/bennettcl.wpd STATE OF TENNESSEE v. RONALD W. BYRD Court:TCCA Attorneys: Donald E. Spurrell, Johnson City, Tennessee, for the appellant, Ronald W. Byrd. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Greeley Wells, District Attorney General; and Robert H. Montgomery, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Ronald W. Byrd, was convicted of criminal trespass, a Class C misdemeanor. In this appeal as of right, he asserts that the evidence was insufficient to support the conviction. We hold that the evidence was sufficient to support the conviction, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/byrdrw.wpd STATE OF TENNESSEE v. FRANKIE LEE LUNSFORD Court:TCCA Attorneys: Terry L. Jordan, Assistant Public Defender, Blountville, Tennessee, for the appellant, Frankie Lee Lunsford. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Nashville, Tennessee, H. Greeley Wells, Jr., District Attorney General, Mary Katharine Harvey, Assistant District Attorney General, James Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from his sentences imposed in the Sullivan County Criminal Court for three counts of contributing to the unruliness of a minor, a Class A misdemeanor; one count of inhaling paint, a Class A misdemeanor; one count of public intoxication, a Class C misdemeanor; one count of giving paint to another for unlawful purposes, a Class E felony; and one count of possession of drug paraphernalia, a Class A misdemeanor. The trial court imposed a sentence of two years on the felony conviction to be served in the Department of Correction, with the misdemeanor sentences running concurrently to the felony and to each other. In this direct appeal, the defendant challenges the denial of probation or alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lunsfordfl.wpd STATE OF TENNESSEE v. RICKY LEE NETHERTON Court:TCCA Attorneys: David Neal Brady, District Public Defender, and Joe L. Finley, Jr., Assistant District Public Defender, for the appellant, Ricky Lee Netherton. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals his conviction for especially aggravated robbery, contesting the validity of the indictment and the length of his sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/nethertonrl.wpd STATE OF TENNESSEE v. MYRA L. SMITH Court:TCCA Attorneys: Mark E. Stephens, District Public Defender, Julia Auer, at trial, and Paula R. Voss, on appeal, Assistant Public Defenders, Knoxville, Tennessee, for the appellant, Myra L. Smith. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Peter M. Coughlan, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Robert L. Jolley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Myra L. Smith appeals the sentencing decision of the Knox County Criminal Court revoking her non-incarcerative sentence and ordering service of the sentence in the TDOC. In September 1998, Smith pled guilty to the class C felony of facilitating aggravated robbery and was placed under the supervision of the Knox County Community Alternative to Prison Program (CAPP). Four months later, a violation warrant issued. On appeal, Smith argues that the trial court acted arbitrarily in revoking her suspended sentence by failing to consider her extreme drug addiction, her history of mental illness, and her lack of intent to violate the conditions of probation. Finding that the trial court did not abuse its discretion, we affirm. http://www.tba.org/tba_files/TCCA/smithmyral.wpd BOBBY LEE TATE v. STATE OF TENNESSEE Court:TCCA Attorneys: Albert Newman, Knoxville, Tennessee, for the Appellant, Bobby Lee Tate. Paul G. Summers, Attorney General & Reporter, Clinton J. Morgan, Counsel for State, Randall E. Nichols, District Attorney General, Zane Scarlett, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner appeals the trial court's denial of his "Motion to Vacate Judgment." Even though we treat the motion as a petition for habeas corpus relief and countenance the appeal via Tennessee Rule of Appellate Procedure 3(b), the record supports the trial court's determination that the factual allegations of improper or invalid judgments are unfounded. Thus, the trial court's denial of the motion or petition is affirmed. http://www.tba.org/tba_files/TCCA/tatebl.wpd STATE OF TENNESSEE v. ROY RAY WALLACE Court:TCCA Attorneys: Robert M. Burts, Rutledge, Tennessee, attorney for appellant, Roy Ray Wallace. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Alfred C. Schmutzer, Jr., District Attorney General; and Michael A. Gallegos, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals his convictions for burglary and theft of property valued at less than five hundred dollars. He challenges the sufficiency of the evidence in light of the uncorroborated testimony of an accomplice, the admissibility of a recording of his co-defendant's testimony, and the length of his sentence. We affirm the convictions and sentences. http://www.tba.org/tba_files/TCCA/wallacerr.wpd STATE OF TENNESSEE v. JEFFREY DWIGHT WHALEY Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; Marsha Selecman and Rachel Eaton, Assistant District Attorneys General, for the appellant, State of Tennessee. Mark E. Stephens, District Public Defender; Jim D. Owen (at hearing) and Paula R. Voss (on appeal), Assistant District Public Defenders, Knoxville, Tennessee, for the appellee, Jeffrey Dwight Whaley. Judge: RILEY First Paragraph: The trial court dismissed defendant's DUI presentment, finding a denial of the right to a preliminary hearing. Upon the state's appeal, we find no evidence of bad faith by the state. Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/whaleyjd.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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