March 5 , 2001 Volume 7 -- Number 040 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 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 01 New Opinion(s) from the Tennessee Court of Appeals 09 New Opinion(s) from the Tennessee Court of Criminal Appeals 03 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 FREDDIE DEAN SMITH, et al. v. TONY O. HALEY, M.D. Court:TCA Attorneys: Bob McD. Green, Johnson City, Tennessee, for the Appellants Freddie Dean Smith, et al. James E. Brading, Johnson City, Tennessee, for the Appellee, Tony O Haley. Judge: SWINEY First Paragraph: Freddie Dean Smith and Anita Ann Smith ("Plaintiffs") filed a medical malpractice action against Tony O. Haley, M.D. ("Defendant"). Defendant moved for summary judgment with his affidavit filed in support thereof. The motion was granted after Plaintiffs failed to file timely any competent medical proof to defeat the motion. Plaintiffs filed a Motion to Reconsider along with the affidavit of Joseph Bussey, M.D. The Trial Court granted the motion and reinstated the case to the active docket. Dr. Bussey later refused to give his deposition because he was not comfortable giving a deposition after reviewing the medical records and because he did not believe the case was going to "go this far" when he provided the affidavit. Defendant moved to strike the affidavit of Dr. Bussey and requested the Trial Court to reinstate its previous dismissal. The Trial Court granted Defendant's motion. Seeking additional time to locate another medical expert, Plaintiffs then filed a motion to alter or amend the judgment pursuant to Rule 59.04, Tenn. R. Civ. P., and for relief from the judgment pursuant to Rules 60.02(1) and 60.02(5), Tenn. R. Civ. P. The Trial Court denied this motion, and Plaintiffs appeal this denial. We affirm. http://www.tba.org/tba_files/TCA/smithfd.wpd RAYMOND HARDIE COX v. STATE OF TENNESSEE Court:TCCA Attorneys: Raymond Hardie Cox, Atlanta, Georgia, Pro Se. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Raymond Hardie Cox, appeals as of right from the dismissal of his post-conviction petition. He asserts that the trial court erred by dismissing his petition as barred by the statute of limitations. We find no error; thus, we affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/coxrh.wpd STATE OF TENNESSEE v. CONNIE EASTERLY Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter, David M. Himmelreich, Deputy Attorney General, William C. Bright, Assistant Attorney General, and James Michael Taylor, District Attorney General, for the appellant, State of Tennessee. Charles J. Gearhiser and Sam D. Elliott, Chattanooga, Tennessee, for the appellee, Connie Easterly. Judge: McGEE OGLE First Paragraph: In this case, we granted the State's application for extraordinary appeal to determine whether the Sequatchie County Circuit Court erred in denying the State's motion to quash subpoenas issued by the appellee, Connie Easterly, in defense of an indictment charging her with five counts of official misconduct and five counts of forgery. The disputed subpoenas require the attendance and testimony of Michael C. Greene, the Commissioner of the Tennessee Department of Safety, and John Morgan, the Comptroller of the Treasury, at the appellee's trial. Following a thorough review of the record and the parties' briefs, we affirm and modify in part and reverse in part the trial court's order. http://www.tba.org/tba_files/TCCA/easterlyco.wpd STATE OF TENNESSEE v. RICHARD M. FAR, JR. Court:TCCA Attorneys: Gerald L. Melton, District Public Defender; and Russell N. Perkins, Assistant Public Defender, for the appellant, Richard M. Far, Jr. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and John W. Price, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Richard M. Far, Jr., was convicted by a Rutherford County jury of Class D forgery of a document valued at more than $1,000. Subsequently, the trial court sentenced Defendant as a Range III persistent offender to ten (10) years to be served consecutively to Defendant's sentence in an arson case (F-45893). Defendant raises two issues on appeal: 1) whether the trial court erred in excluding Defendant from his trial and sentencing hearing and 2) whether the trial court properly considered the sentencing guidelines in sentencing Defendant. After a review of the record, we reverse the judgment of the trial court and remand this matter for a new trial. http://www.tba.org/tba_files/TCCA/farrm.wpd STATE OF TENNESSEE v. JOHN CHARLES JOHNSON Court:TCCA Attorneys: John E. Rodgers, Jr., Nashville, Tennessee, for the appellant, John Charles Johnson. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Katrin Miller, Assistant District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant John Charles Johnson was convicted by a Davidson County jury of second degree murder, facilitation of aggravated kidnapping, and especially aggravated robbery. The trial court sentenced Defendant to twenty-five years for second degree murder, five years for facilitation of aggravated kidnapping, and twenty years for especially aggravated robbery. The trial court further ordered that Defendant's sentences for second degree murder and facilitation of aggravated kidnapping be served consecutive to each other and concurrent with Defendant's sentence for especially aggravated robbery, resulting in an effective sentence of thirty years. Defendant raises the following issues in this appeal: (1) whether the evidence was sufficient to support his three convictions; (2) whether the trial court erred in not granting Defendant's motion for judgment of acquittal on the ground that the testimony of a co-defendant was uncorroborated; (3) whether the trial court erred in not allowing Defendant to play a tape containing exculpatory statements; (4) whether the trial court erred by failing to charge the lesser-included offenses of voluntary manslaughter and facilitation to commit voluntary manslaughter; and (5) whether the length of the sentences imposed by the trial court were proper. Following a review of the record, we affirm the judgment of the trial court concerning Defendant's convictions and the lengths of Defendant's sentences. We reverse the trial court's order of consecutive sentencing and remand for a new hearing solely on the issue of concurrent or consecutive sentencing.Defendant John Charles Johnson was convicted by a Davidson County jury of second degree murder, facilitation of aggravated kidnapping, and especially aggravated robbery. The trial court sentenced Defendant to twenty-five years for second degree murder, five years for facilitation of aggravated kidnapping, and twenty years for especially aggravated robbery. The trial court further ordered that Defendant's sentences for second degree murder and facilitation of aggravated kidnapping be served consecutive to each other and concurrent with Defendant's sentence for especially aggravated robbery, resulting in an effective sentence of thirty years. Defendant raises the following issues in this appeal: (1) whether the evidence was sufficient to support his three convictions; (2) whether the trial court erred in not granting Defendant's motion for judgment of acquittal on the ground that the testimony of a co-defendant was uncorroborated; (3) whether the trial court erred in not allowing Defendant to play a tape containing exculpatory statements; (4) whether the trial court erred by failing to charge the lesser-included offenses of voluntary manslaughter and facilitation to commit voluntary manslaughter; and (5) whether the length of the sentences imposed by the trial court were proper. Following a review of the record, we affirm the judgment of the trial court concerning Defendant's convictions and the lengths of Defendant's sentences. We reverse the trial court's order of consecutive sentencing and remand for a new hearing solely on the issue of concurrent or consecutive sentencing. http://www.tba.org/tba_files/TCCA/johnsonjc.wpd STATE OF TENNESSEE v. TAMMY YVONNE KNIGHT Court:TCCA Attorneys: Carrie W. Kersh, Clarksville, Tennessee (on appeal) and Michael R. Jones, District Public Defender, and Charles S. Bloodworth, Assistant Public Defender (at trial), for the appellant, Tammy Yvonne Knight. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant pled guilty to four counts of obtaining prescription drugs by use of a forged prescription, and the trial court sentenced her to an effective sentence of fourteen years incarceration. The defendant contests the sentences imposed. We affirm the trial court. http://www.tba.org/tba_files/TCCA/Knightty.wpd STATE OF TENNESSEE v. CHRISTOPHER ALLEN McBRYAR Court:TCCA Attorneys: Larry G. Roddy, Sale Creek, Tennessee, for the appellant, Christopher Allen McBryar. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William H. Cox, III, District Attorney General; Dana Lesley-Draper, Assistant District Attorney General; and Dean C. Ferraro, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Hamilton County jury convicted the Defendant of violating the Sexual Offender Registration and Monitoring Act. The trial court subsequently sentenced him to 180 days incarceration. In this appeal as of right, the Defendant argues (1) that the evidence presented at trial is insufficient to support his conviction; (2) that the trial court improperly instructed the jury; (3) that the trial court erred by concluding that his sentence could not be suspended; and (4) that Tennessee Code Annotated S 40- 39-108(b) violates his right to confrontation. Finding no error, we affirm the Defendant's conviction and sentence. http://www.tba.org/tba_files/TCCA/mcbyarca.wpd STATE OF TENNESSEE v. RICHARD E. McCULLOUGH Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender, Shelbyville, Tennessee, for the appellant, Richard E. McCullough. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant pled guilty to one count of violating the Habitual Motor Vehicle Offender Act and one count of driving under the influence, eighth offense, both Class E felonies. He was sentenced to consecutive terms of one year and six months for each offense. In this appeal, defendant challenges the trial court's denial of alternative sentencing. Upon our review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcculloughre.wpd STATE OF TENNESSEE v. RICHARD C. SILK Court:TCCA Attorneys: William W. Burton and Gerald L. Melton, Murfreesboro, Tennessee, for the appellant, Richard C. Silk. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General' William C. Whitesell, Jr., District Attorney General; and Paul A. Holcombe, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: McGEE OGLE First Paragraph: The appellant, Richard C. Silk, was convicted by a jury in the Rutherford County Circuit Court of one count of resisting arrest, a class B misdemeanor. The trial court sentenced him to six (6) months incarceration in the Rutherford County Jail, assigning a service percentage of seventy-five percent (75%). The appellant now presents the following issues for our review: (1) whether the evidence adduced at trial is sufficient to support the appellant's conviction of resisting arrest; (2) whether the trial court erred in sustaining certain objections by the State to the appellant's testimony concerning a statement made to him by an arresting officer; and (3) whether the trial court erred in sentencing the appellant. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/silkrc.wpd STATE OF TENNESSEE v. MICHAEL E. WALLACE Court:TCCA Attorneys: Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Michael E. Wallace. Paul G. Summers, Attorney General & Reporter and Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, District Attorney General and Jon Seaborg, Assistant District Attorney, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On August 25, 1998, a Davidson County Grand Jury indicted Michael E. Wallace, the defendant and appellant, of one count each of the following: possession of cocaine with intent to sell more than .5 grams of cocaine, simple possession of marijuana, possession of a weapon, possession of drug paraphernalia and evading arrest. Following a jury trial, the defendant was convicted for possession with intent to sell less than .5 grams of cocaine, a lesser included offense of count one. The defendant was also convicted of all other counts as charged. After a sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender, to serve ten years for possession of cocaine with intent to sell consecutively to two years for possession of a weapon. For the remaining counts, the court ordered the defendant to serve two eleven month and twenty-nine day sentences concurrently to each other and the other counts. On appeal, the defendant claims (1) that the evidence was insufficient to support his conviction; (2) that the trial court erroneously allowed a police officer to offer expert opinion testimony; (3) that the trial court erroneously denied the defendant's motion for a mistrial after a witness testified to prior bad acts of the defendant; (4) that the court erroneously refused to instruct the jury to consider lesser-included offenses; and (5) that the court erroneously ordered consecutive sentences. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wallacemichael.wpd Authorization for Taxation in Home Rule City Date: February 27, 2001 Opinion Number: 01-026 http://www.tba.org/tba_files/AG/OP26.pdf Judicial Commissioners' Authority to Issue Extended Orders of Protection Date: February 27, 2001 Opinion Number: 01-027 http://www.tba.org/tba_files/AG/OP27.pdf Applicability of Parenting Plan Act to Juvenile Court Cases Date: February 27, 2001 Opinion Number: 01-028 http://www.tba.org/tba_files/AG/OP28.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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