December 28 , 2000 Volume 6 -- Number 209 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 03 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) 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_1227.wpd CHRIS FARLEY v. CHARLES ELLIS, et al. Court:TCA Attorneys: Mitchell G. Tollison, Humboldt, For Appellants, Charles Ellis and Wanda Borders Ellis Jerald M. Campbell, Jr., Trenton, For Appellee, Chris Farley Judge: CRAWFORD First Paragraph: Plaintiff sued defendants to enforce alleged oral agreement to convey real estate or alternatively for damages. The trial court found that the oral agreement violated the statute of frauds, but ordered, under the doctrine of equitable estoppel, the specific performance of the oral agreement. Defendants have appealed. http://www.tba.org/tba_files/TCA/farleychr.wpd ELPIDIO PETE PLACENCIA v. LAUREN ROCHELLE PLACENCIA WITH CONCURRING OPINION Court:TCA Attorneys: Robert A. Talley, Memphis, For Appellant, Lauren Rochelle Placencia Edward M. Bearman, James M. Allen, Memphis, For Appellee, Elpidio Pete Placencia Judge: CRAWFORD First Paragraph: This is a post-divorce action involving custody and relocation of the parties' minor child. Father, primary custodial parent, filed a petition to relocate, and Mother filed a petition for change of custody. The trial court awarded custody of the child to Mother, and Father appealed. This Court reversed the custody award and remanded the case to the trial court. Pending application for permission to appeal to the Supreme Court, Mother filed a petition for stay of execution and a temporary injunction and also requested a change of custody based on changed circumstances. After the Supreme Court denied the application for permission to appeal, the trial court entered its order denying Mother's request for a hearing on her petition and denying other relief sought. Mother has appealed to this Court. http://www.tba.org/tba_files/TCA/placencia_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/placencia_con.wpd CHARLES W. SHOFFNER v. BILLY HARDWICK ENTERPRISES, INC. Court:TCA Attorneys: John R. Candy, Cordova, Tennessee, for the Appellant, Charles W. Shoffner. James F. Eggleston, Memphis, Tennessee, for the Appellee, Billy Hardwick Enterprises, Inc. Judge: LILLARD First Paragraph: This is a slip and fall case. The plaintiff was injured while bowling at the defendant's bowling alley. While he was bowling, his beeper fell from his belt onto the bowling lane. The plaintiff crossed the foul line to retrieve his beeper, and slipped on the oiled surface. He sued the bowling alley for his injuries, asserting that the bowling alley failed to adequately warn him of the danger of crossing the foul line. The trial court granted a directed verdict in favor of the defendant, finding that the bowling alley had no duty to warn the plaintiff, and that the plaintiff was more than 50% at fault for the accident. The plaintiff appeals. We affirm, finding that, under the undisputed facts, the plaintiff was more than 50% at fault for the accident. http://www.tba.org/tba_files/TCA/shoffnerc.wpd JOSEPH LEBRON DERRICK v. STATE OF TENNESSEE Court:TCCA Attorneys: Mike A. Little, Chattanooga, Tennessee, for the appellant, Joseph Lebron Derrick. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General; William H. Cox, III, District Attorney General; and Barry A. Steelman, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted by a Hamilton County jury of second degree murder and was sentenced to twenty-years incarceration. On direct appeal, this Court affirmed his conviction and sentence, and the Tennessee Supreme Court denied permission to appeal. The Defendant subsequently filed a post-conviction petition, alleging that he was denied his right to effective assistance of counsel and his right to a fair trial. The post-conviction court denied post-conviction relief. We conclude that the Defendant was denied neither his right to effective assistance of counsel at trial nor his right to a fair trial. Accordingly, we affirm the judgment of trial court denying post- conviction relief. http://www.tba.org/tba_files/TCCA/derrickjl.wpd STATE OF TENNESSEE v. BOBBY HALEY Court:TCCA Attorneys: Gary F. Antrican, District Public Defender, and Julie K. Pillow, Assistant District Public Defender, for the appellant, Bobby Haley. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey Anne Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant pled guilty to delivery of less than one-half gram of a Schedule II, controlled substance, and the trial court sentenced him as a Range III, persistent offender to twelve years in the Tennessee Department of Correction. On appeal, the defendant contends that his sentence is excessive. We affirm the sentence imposed by the trial court. http://www.tba.org/tba_files/TCCA/haleyb.wpd STATE OF TENNESSEE v. JIMMY EDWIN HARBER, JR. Court:TCCA Attorneys: Tom W. Crider, District Public Defender, and Joyce Diane Stoots, Assistant Public Defender, for the appellant, Jimmy Edwin Harber, Jr. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: While driving under the influence of alcohol, the defendant lost control of his pickup truck and crashed into a road embankment, causing the death of one of his five teenaged passengers. He pled guilty to vehicular homicide by intoxication as to the passenger who died, and to reckless endangerment with a deadly weapon as to all other passengers, agreeing to allow the trial court to set his sentences. Applying enhancement factors (10) and (16), the trial court sentenced the defendant as a Range I, standard offender to ten years for the vehicular homicide conviction, and two years for the reckless endangerment conviction, with the sentences to be served concurrently. The defendant appeals the sentencing, arguing that the trial court erred in its application of enhancement and mitigating factors, and that he should have been granted probation. Based upon our review of the record and of applicable law, we conclude that the enhanced sentences are supported by the record, and that the trial court, therefore, committed no error in its failure to grant probation. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/harberje.wpd STATE OF TENNESSEE v. CORNELIUS MICHAEL HYDE WITH CONCURRING OPINION & DISSENTING OPINION Court:TCCA Attorneys: Eugene B. Dixon, Maryville, Tennessee, for the appellant, Cornelius Michael Hyde. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; Mike Flynn, District Attorney General; Kirk Andrews and Edward P. Bailey, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: he Defendant appeals as of right from his conviction of aggravated child abuse. After being found guilty of aggravated child abuse by a jury, the Defendant was sentenced to twenty-one years. On appeal, he raises the following eight issues: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred by not requiring the State to respond to his Motion for a Bill of Particulars; (3) whether the trial court erred by admitting photographs of the victim's injuries and by allowing the photographs to be projected to the jury throughout the trial; (4) whether the trial court erred by not allowing the Defendant to cross-examine the State's expert concerning examples of serious bodily injury; (5) whether the trial court erred by not including the statutory definition of "injury" in the child abuse instruction, but including it in the aggravated child abuse instruction; (6) whether the trial court erred by not charging the jury with the lesser included offenses of assault and aggravated assault; (7) whether the trial court erred by not properly redacting the victim's medical report so as to eliminate a reference to the Defendant as the "chief suspect" in the case; and (8) whether the trial court erred by not redacting the Defendant's statement to eliminate the detective's use of the word "extremely" and by permitting unintelligible portions of the statement to be heard by the jury. We hold that the trial court erred by failing to instruct the jury on the lesser included offenses of aggravated assault and assault, but that such error was harmless. We find no other error; accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hydecm_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/hydecm_con.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/hydecm_dis.wpd STATE OF TENNESSEE v. DEMARIO QUENTIZ JACKSON Court:TCCA Attorneys: Pamela J. Drewery, Jackson, Tennessee, for the appellant, Demario Quentez Jackson. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Jerry Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant pleaded guilty to two counts of rape of a child. Pursuant to a plea agreement, he was sentenced to two concurrent prison terms of fifteen years, to be served at one hundred percent. The Defendant complains in this post-conviction proceeding that he received ineffective assistance of counsel in conjunction with his plea, resulting in a plea that was not knowingly, intelligently or voluntarily entered. The trial court denied relief. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jacksondq.wpd STATE OF TENNESSEE v. MICHAEL EUGENE KNOX Court:TCCA Attorneys: Richard Gossum, Trenton, Tennessee, for the appellant, Michael Eugene Knox. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; and Hal Dorsey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant pled guilty to vehicular homicide by intoxication, a Class B felony, and was sentenced as a Range I, standard offender to: eight years imprisonment; a $10,000 fine; and state probation, to be served upon his release from prison, with the condition that he perform five hundred hours of community service. In this appeal as of right, the defendant argues that the trial court erred in denying his request for alternative sentencing. After review, we conclude that the record supports the sentence of incarceration, but that the trial court erred in ordering that the defendant be placed on probation and required to perform community service upon the completion of his prison sentence. Accordingly, we affirm the portion of the judgment ordering an eight-year sentence of incarceration and a fine of $10,000, but reverse the portion ordering that the defendant be placed on probation following his release and that he perform community service. In addition, we order that the defendant be prohibited from operating a motor vehicle for a period of five years from the entry of an order prohibiting such. http://www.tba.org/tba_files/TCCA/knoxme.wpd STATE OF TENNESSEE v. AMOS PHILLIPS Court:TCCA Attorneys: Thomas R. Bandy, III, Kingsport, Tennessee, for the appellant, Amos Phillips. Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, Assistant Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Amos Phillips, was convicted of the sale of less than .5 grams of cocaine, see Tenn. Code Ann. S 39-17-417. The trial court imposed a Range II sentence of nine years in the Department of Correction. In this appeal as of right, the defendant contends that the evidence is insufficient and that the trial court erred by allowing the jury, after it had begun deliberations, to review the testimony of state witness Detective David Street. Because the evidence is sufficient to support the conviction and the trial court did not err by granting the jury's request to rehear Detective Street's testimony, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/phillipsamos.wpd RONALD E. WALTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Philip L. Duval, Chattanooga, Tennessee, for the appellant, Ronald E. Walton. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; William H. Cox III, District Attorney General; and Bates W. Bryan, Jr. and Rodney C. Strong, Assistant District Attorneys, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: After a hearing, the petitioner appeals the criminal court's order dismissing his petition for post- conviction relief. Convicted in 1968 of assault and battery with intent to rape, the petitioner was sentenced to incarceration for ten years. The petitioner has fully served his sentence in Tennessee. However, his Tennessee conviction was used to enhance his 1980 conviction of rape in Indiana. The petitioner proceeds to challenge his Tennessee conviction, in hope of a sentence reduction in Indiana. After careful review, we affirm the criminal court's dismissal. http://www.tba.org/tba_files/TCCA/waltonre.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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