January 18, 2001 Volume 7 -- Number 012 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 00 New Opinion(s) from the Tennessee Court of Appeals 05 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_0116ame.wpd STATE OF TENNESSEE v. WAYNE JOSEPH BURGESS, JR. Court:TCCA Attorneys: James Michael Marshall and Bobby Sands, Columbia, Tennessee, for the appellant, Wayne Joseph Burgess, Jr. Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, Richard Dunavant and Robert C. Sanders, Assistant District Attorneys General, and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Wayne Joseph Burgess, Jr., was convicted by a jury in the Giles County Circuit Court of one count of first degree felony murder, with the underlying felony being aggravated child abuse. The trial court sentenced the appellant to life in the Tennessee Department of Correction. The appellant raises the following issues for our review: (1) whether the trial court erred in overruling the appellant's motion to strike the jury panel because the appellant's race was substantially under- represented on the venire from which the petit jury was selected under a practice providing "the opportunity for discrimination;" (2) whether the trial court erred in overruling the appellant's motion to suppress a confession that was obtained by the use of intimidation, threat, and coercion by the Pulaski Police Department; (3) whether the trial court erred in overruling the appellant's objection to allowing the prior inconsistent statement of Rickey Sikes to be entered into the record as substantive evidence; (4) whether the evidence was sufficient to support the appellant's conviction of first degree murder in the perpetration of aggravated child abuse as the State failed to prove the requisite mental status of "knowing" to commit that offense. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/burgesswj.wpd STATE OF TENNESSEE v. GREG HARTMAN Court:TCCA Attorneys: J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, Greg Hartman. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; James Michael Taylor, District Attorney General; and Will Dunn, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted by a Rhea County jury of attempt to commit kidnapping. The Defendant now appeals arguing that there was insufficient evidence presented at trial to convict him of attempt to commit kidnapping. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hartmang.wpd STATE OF TENNESSEE v. DONALD CRAIG MILLER Court:TCCA Attorneys: C. Alex Meacham, LaVergne, Tennessee, for the appellant, Donald Craig Miller. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Naylor, Assistant District Attorney General; and Jim Milam, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, Donald Craig Miller, pled guilty to burglary, Class D felony, pursuant to a negotiated plea agreement wherein he was to receive a sentence of four (4) years, with the manner of the service of the sentence to be determined by the trial court following the sentencing hearing. At the sentencing hearing, the trial court accepted the four-year sentence, but ordered three and one- half years incarceration, followed by service of four years in Community Corrections in a "split- confinement" sentence. Subsequently, the Defendant filed a "Motion for Clarification of Judgment Order" which was denied by the trial court following a hearing. The Defendant filed a notice of appeal. We hold that this matter should be treated as a petition for common law writ of certiorari rather than a Rule 3, T.R.A.P. appeal, and reverse the judgment of the trial court and remand for further proceedings. http://www.tba.org/tba_files/TCCA/millerdc.wpd DAVID PALMER v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, David Palmer. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Philip H. Wehby, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner filed a post-conviction petition for relief from his conviction for aggravated child abuse, arguing that: (1) he received ineffective assistance of counsel at trial; (2) his due process rights were violated because he was not present during voir dire; and, (3) he was denied his constitutional right to testify in his own behalf. After the post-conviction court denied his petition, the petitioner appealed to this court. We affirm the post-conviction court's denial of the petition. http://www.tba.org/tba_files/TCCA/palmerd.wpd STATE OF TENNESSEE v. TIMOTHY TYRONE SANDERS Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee, and Donna Orr Hargrove, Public Defender; Andrew Jackson Dearing, III, Asst. Public Defender, Shelbyville, TN. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, William Michael McCown, District Attorney General, and Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Timothy Tyrone Sanders, was convicted by a Bedford County jury of possession of more than .5 grams of cocaine with intent to sell. The Appellant was sentenced to seventeen years six months as a range II offender. On appeal, he raises the following issues: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred by not instructing the jury on the lesser-included offense of simple possession; and (3) whether the trial court improperly sentenced the Appellant. After review, we conclude that the trial court erred in not instructing the jury on simple possession. Accordingly, we reverse and remand for a new trial. http://www.tba.org/tba_files/TCCA/sanderstt.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! 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