February 20, 2001 Volume 7 -- Number 032 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):   06 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 00 New Opinion(s) from the Tennessee Court of Appeals 10 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 SUZANNE KAY BURLEW v. BRAD STEVEN BURLEW Court:TSC Attorneys: Stevan L. Black and Vickie Hardy Jones, Memphis, Tennessee, for the appellant, Suzanne Kay Burlew. William W. Dunlap, Jr., Memphis, Tennessee, for the appellee, Brad Steven Burlew. Judge: DROWOTA First Paragraph: The issue in this divorce case concerns the type and amount of alimony that should be awarded to the Wife. The trial court awarded her $220,000 of alimony in solido to be paid out in decreasing amounts over eight years, and declined to award her rehabilitative alimony. The Court of Appeals affirmed the trial court's in solido award but remanded the case to the trial court to award rehabilitative alimony of at least $1,000 per month for a reasonable period of time. Before this Court, the Husband/appellee argues that rehabilitative alimony is unnecessary and that the alimony in solido award is excessive. The Wife/appellant counters that the in solido award was not excessive; indeed, she argues that she should have been awarded alimony in futuro. We hold that the trial court properly awarded alimony in solido rather than alimony in futuro. We also hold that the trial court did not err in denying the Wife's request for rehabilitative alimony. Thus, we affirm in part and reverse in part the decision of the Court of Appeals. http://www.tba.org/tba_files/TSC/burlewsk.wpd JEHIEL FIELDS v. STATE OF TENNESSEE Court:TSC Attorneys: James F. Logan, Jr., Cleveland, Tennessee, for the appellant, Jehiel Fields. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The sole issue in this appeal is whether our decision in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), changed the standard by which appellate courts review denials of post-conviction relief based on allegations of ineffective assistance of counsel. The Court of Criminal Appeals in this case affirmed the denial of the appellant's post-conviction petition, although it expressed concern that this Court inadvertently changed the standard of appellate review in Burns to require a de novo review of a trial court's factual findings regarding claims of ineffective assistance of counsel. While we reaffirm that such claims are mixed questions of law and fact subject to de novo review, we emphasize that Burns did not change the standard of review in this context. Consistent with the Rules of Appellate Procedure, our language in Burns meant only that a trial court's findings of fact be reviewed de novo, with a presumption that those findings are correct unless the preponderance of the evidence is otherwise. A trial court's conclusions of law are also reviewed under a de novo standard, although the trial court's legal conclusions are accorded no deference or presumption of correctness on appeal. Because the Court of Criminal Appeals correctly applied the appropriate standard of review in this case, the judgment of that court is affirmed, and the appellant's petition for post-conviction relief is dismissed. http://www.tba.org/tba_files/TSC/fieldsjehiel.wpd MEMPHIS HOUSING AUTHORITY v. TARA THOMPSON Court:TSC Attorneys: Webb M. Brewer, Debra N. Brittenum, Margaret Barr-Myers, Nancy Percer Kessler, and Brenda Oates-Williams, Memphis, Tennessee, for the appellant, Tara Thompson. Gregory L. Perry, Memphis, Tennessee, for the appellee, Memphis Housing Authority. Drake Holliday, Legal Aid Society of Middle Tennessee, Nashville, Tennessee and David Kozlowski, Legal Services of South Central Tennessee, Incorporated, for the Amicus Curiae, Tennessee Association of Legal Services. Judge: DROWOTA First Paragraph: The appellee, Memphis Housing Authority brought this unlawful detainer action seeking to evict the appellant, tenant Tara Thompson, after drugs were discovered on the father of her child while he was inside her apartment. The trial court granted summary judgment to the appellee, and the Court of Appeals affirmed, finding that the lease agreement imposes strict liability upon the appellant for the drug-related criminal activity of her "guests and other persons under her control." We granted permission to appeal to consider the appropriate standard that applies when a public housing authority seeks to evict a tenant for drug-related criminal activity. This is an issue of first impression in Tennessee. After due consideration, we hold that the lease agreement imposes strict liability for drug-related criminal activity engaged in by the tenant or any household member but permits eviction for the drug related criminal activity of "guests and other persons under [the tenant's] control"only if the tenant knew or should have known of the drug-related criminal activity and failed to take reasonable steps to halt or prevent the illegal activity. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the trial court for reconsideration of the appellee's motion for summary judgment under the legal standard announced herein. http://www.tba.org/tba_files/TSC/memphishousing.wpd STATE OF TENNESSEE v. SCOTT HOUSTON NIX Court:TSC Attorneys: Mark A. Brown, Knoxville, Tennessee, for the appellants, Scott Houston Nix and Ralph Dean Purkey. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: We granted permission to appeal to consider an issue of first impression: what is the standard of mental incompetence that a petitioner must satisfy before due process requires tolling of the post- conviction statute of limitations. We agree with the Court of Criminal Appeals that due process requires tolling of the statute of limitations only if a petitioner is unable either to manage his or her own personal affairs or to understand his or her legal rights and liabilities. We also agree with the intermediate appellate court that, taken as true, the allegations of these petitions are insufficient to make a prima facie showing of incompetency. Accordingly, we affirm the judgments of the Court of Criminal Appeals which upheld the trial court judgments that dismissed these petitions as time-barred by the statute of limitations. http://www.tba.org/tba_files/TSC/nixpurkey.wpd TED F. WALKER v. THE BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE Court:TSC Attorneys: Charles P. Dupree, Chattanooga, Tennessee, for the appellant, Ted F. Walker. Jesse D. Joseph and Stacy Eugenia Gibson, Nashville, Tennessee, for the appellee, The Board of Professional Responsibility of the Supreme Court of Tennessee. Judge: DROWOTA First Paragraph: The Code of Professional Responsibility requires attorneys who advertise with regard to any area of law but who are not certified in that area to include the following disclaimer in their advertisements: "Not certified as a (area of practice) specialist by the Tennessee Commission on Continuing Legal Education and Specialization." DR 2-101(C)(3). The appellant was not certified as a civil trial specialist (which when this case arose covered the area of divorce law) yet he specifically mentioned divorce law in certain ads, and in another ad he did not adhere to the exact wording of the required disclaimer. The Board of Professional Responsibility brought a disciplinary action against the appellant and, finding him in violation of DR 2-101(C)(3), issued a private reprimand. The appellant sought review of the Board's action in Chancery Court, which upheld the sanction. He now seeks further review in this Court, arguing for the reversal of the sanction on the ground that DR 2- 101(C)(3) violates the First Amendment to the United States Constitution. We hold that this disclosure rule is constitutional and that the private reprimand may stand. We therefore affirm the Chancery Court. We also affirm the Chancery Court's holding that the appellant may be held responsible for the costs of this disciplinary action. http://www.tba.org/tba_files/TSC/walkertf.wpd STATE OF TENNESSEE v. DIMARKO BOJERE WILLIAMS Court:TSC Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Dimarko Bojere Williams. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Marvin S. Blair, Jr., Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Robert C. Sanders, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: Dimarko Bojere Williams was convicted of second degree murder and was sentenced to the Department of Correction for twenty-five years. Williams appealed, contending, inter alia, that the evidence was insufficient to support the conviction for second degree murder because he and the victim had been engaged in "mutual combat" at the time of the killing. In cases in which a victim is killed during mutual combat, he asserted, the defendant may be convicted of voluntary manslaughter only. The Court of Criminal Appeals affirmed the conviction for second degree murder but modified Williams's sentence on other grounds. We hold that the evidence is sufficient to support the conviction for second degree murder. In so doing, we reject the defendant's contention that a killing which occurs during mutual combat is, as a matter of law, voluntary manslaughter. The judgment of the Court of Criminal Appeals is, therefore, affirmed. http://www.tba.org/tba_files/TSC/williamsdim.wpd STATE OF TENNESSEE v. KEVIN WAYNE BRIM Court:TCCA Attorneys: Jefre S. Goldtrap, Nashville, Tennessee, attorney for the appellant, Kevin Wayne Brim. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon E. Tyler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from the revocation of his probation, contending that the trial court erred in ordering consecutive sentences. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brimk.wpd STATE OF TENNESSEE v. GRAYLIN BURTON Court:TCCA Attorneys: C. LeAnn Smith, Nashville, Tennessee, for the appellant, Graylin Burton. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Nick Bailey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant pleaded guilty to rape. After a hearing, he was sentenced as a Range I, standard offender to eleven years and six months in confinement. The Defendant appealed and asks this Court to shorten his sentence. He contends that the trial court misapplied an enhancement factor and failed to apply at least two mitigating factors. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/burtong.wpd DANNY S. COSBY v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Danny S. Cosby. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; Victor S. Johnson, District Attorney General and Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Appellant, Danny S. Cosby, pleaded guilty to two counts of attempted first degree murder and to two counts of aggravated assault. Pursuant to a plea agreement, the Davidson County Criminal Court sentenced the Appellant to an effective sentence of thirty years in the Tennessee Department of Correction. The Appellant subsequently filed for post-conviction relief, claiming that his plea was constitutionally defective because he was inadequately represented. The trial court denied relief. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/cosbyds.wpd STATE OF TENNESSEE v. SHANNON HAGEWOOD Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee, William B. Lockert, III, Ashland City, Tennessee, and Chris Young, Assistant Public Defender, for the Appellant, Shannon Hagewood. Paul G. Summers, Attorney General and Reporter, David H. Finley, Assistant Attorney General, Dan Alsobrooks, District Attorney General and Suzanne Lockert, Assistant District Attorney, for the Appellee, State of Tennessee. Judge: SMITH First Paragraph: On November 16, 1999, Shannon Hagewood, the defendant and appellant, pled guilty to three counts of aggravated burglary in a Dickson County Criminal Court. Following a sentencing hearing, the trial court sentenced the defendant as a multiple, Range II offender to six years for the first count, six years for the second count, and eight years for the third count. The court also ordered the defendant to serve the eight-year sentence consecutively to the two six-year sentences, which were to be served concurrently to each other. On appeal, the defendant claims (1) that he did not receive notice, as required by statute, that he would be sentenced as a multiple offender, (2) that the trial court's imposition of an eight-year sentence was erroneous; and (3) that the trial court's imposition of consecutive sentences was erroneous. After a thorough review of the record, we find that, although the trial court did not place its findings in the record, this court's de novo review supports the sentence imposed. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hagewoodshannon.wpd STATE OF TENNESSE v. MICHAEL HERNDON Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, and Lance Baker, Assistant District Attorney General, for the appellant, State of Tennessee. Collier W. Goodlett, Clarksville, Tennessee, for the appellee, Michael Herndon. Judge: OGLE First Paragraph: The appellee, Michael Herndon, was found guilty by a jury in the Montgomery County Circuit Court of one count of burglary of an automobile, a class E felony, one count of theft of property under $500, a class A misdemeanor, and one count of public drunkenness, a class C misdemeanor. The trial court sentenced the appellee as a Range I offender to the following terms of probation: two years for the burglary conviction, eleven months and twenty-nine days for the theft conviction, and thirty days for the public drunkenness conviction. The trial court further ordered the appellee to serve his sentences for the theft and public drunkenness convictions concurrently with each other but consecutively to the sentence for the burglary conviction. On appeal, the State raises the following issue for our review: whether the trial court incorrectly sentenced the appellee to probation. Based upon our review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/herndonm.wpd STATE OF TENNESSEE v. ROBERT LEWIS HERRIN Court:TCCA Attorneys: Thomas E. Hansom, Memphis, Tennessee, and Paul J. Bruno, Nashville, Tennessee, for the appellant, Robert Lewis Herrin. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, W. Michael McCown, District Attorney General, and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Robert Lewis Herrin, pled guilty in the Marshall County Circuit Court to one count of theft of property worth one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), a class D felony. The trial court sentenced the appellant as a Range I offender to three years incarceration in the Tennessee Department of Correction, suspending all but 120 days of the appellant's sentence and granting him supervised probation for a term of ten years. As a special condition of probation, the trial court prohibited the appellant from engaging in "any type [of] construction business or solicitation for business." In this appeal, the appellant argues that the trial court erred in imposing this special condition of probation. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court as modified. http://www.tba.org/tba_files/TCCA/herrinrl.wpd STEVEN EDWARD LEACH v. STATE OF TENNESSEE Court:TCCA Attorneys: Frank Lannom, Lebanon, Tennessee attorney for the Appellant, Steven Edward Leach. Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General and Tom P. Thompson, Jr., District Attorney General, Hartsville, Tennessee attorney for the Appellee, State of Tennessee. Judge: SMITH First Paragraph: On November 19, 1995, a Smith County Grand Jury indicted Steven Edward Leach, the defendant and appellant, for first-degree murder, felony murder, two counts of rape of a child, and attempted rape of a child. Pursuant to a plea agreement, the defendant pled guilty to first-degree murder and rape of a child and the trial court sentenced him to serve life without parole for the murder consecutively to twenty-five years for the rape. The defendant filed a post-conviction petition, and, following a hearing, the trial court denied the petition. On appeal, the defendant claims (1) that he was denied his right to counsel of his choice; (2) that he was denied the effective assistance of counsel; (3) that he was denied his due process right to be present at a hearing; and (4) that the cumulative effect of the trial court's errors violated his due process rights. Because the evidence does not preponderate against the findings of the trial court, we affirm its judgment. http://www.tba.org/tba_files/TCCA/leachsteven.wpd STATE OF TENNESSEE v. JOSEPH MILES Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal) and Edward Earl DeWerff, Clarksville, Tennessee (at trial) for the appellant, Joseph Miles. Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General; Thomas A. Thomas, Obion County District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant Joseph Miles was convicted by a Robertson County jury of second degree murder. After a sentencing hearing, the trial court sentenced Defendant as a Range II violent offender to forty years. On appeal, Defendant raises the following issues: (1) whether the evidence is sufficient to support his conviction for second degree murder, (2) whether the sentence imposed by the trial court is excessive, and (3) whether a finding of plain error pursuant to Tenn. R. Crim. P. 52(b) justifies a dismissal of charges on the ground that the State participated in a conspiracy to kill Defendant. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/milesj.wpd In Re: Paul's Bonding Company, Inc. Court:TCCA Attorneys: Joel H. Moseley, Nashville, Tennessee, for the appellant, Paul's Bonding Company, Inc. Paul G. Summers, Attorney General and Reporter, Marvin Clements, Jr., Assistant Attorney General, Victor S. Johnson, III, District Attorney General, and John C. Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Paul's Bonding Company, Inc., appeals the judgments of the Davidson County Criminal Court ordering complete forfeiture of bail bonds in the cases of criminal defendants Carlos Ramon Ruiz and Castulo Morales Vasquez and partial forfeiture of the bail bond in the case of criminal defendant Reyes Castro. Following a review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/paulsbondingco.wpd STATE OF TENNESSEE v. ROBERT EARL SYLER Court:TCCA Attorneys: David A. Doyle, Gallatin, Tennessee, for the appellant, Robert Earl Syler. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was charged with rape and convicted of that offense after a jury trial. In this appeal as of right, the Defendant contends that the trial court committed reversible error in refusing to instruct the jury on the offense of statutory rape. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/sylerre.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! 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