March 14, 2001
Volume 7 -- Number 047

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
07 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
 

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Lucian T. Pera
Editor-in-Chief, TBALink

						THOMAS GAMMONS v. PETERBILT MOTORS COMPANY, et al.

Court:TSC - Workers Comp Panel

Attorneys:  

Patrick A. Ruth, Nashville, Tennessee, for the appellant, Peterbilt
Motors Company.

William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for
the appellee, Thomas Gammons.                        

Judge: BYERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  The trial court found the plaintiff had sustained a permanent
partial disability to his right arm of sixty percent, which would
entitle him to one-hundred twenty weeks of partial permanent
disability.  The defendant argues the trial judge erred in setting the
amount of the award because the treating physician fixed the medical
impairment rating at six percent, and the independent medical examiner
fixed the rate at thirty-four percent; the trial judge used neither of
these ratings to reach the amount awarded.  We affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TSC_WCP/gammonsthomas.wpd





TIMOTHY JOE ELLINGTON v. LINDA MADDOX, et al.

Court:TCA

Attorneys:

C. Timothy Crocker, Milan, For Appellant, Timothy Joe Ellington

Larry S. Banks, Brownsville, For Appellees, Linda Maddox, Rickey
Maddox, and Kimberly Dawn Rosson                       

Judge: CRAWFORD

First Paragraph:

Natural father filed a petition to obtain custody of his son against
the maternal grandmother and her husband, the child's custodians by
previous court order.  After an evidentiary hearing, the juvenile
court denied father's petition and retained custody in the maternal
grandmother and husband.  Father appeals, and we reverse.

http://www.tba.org/tba_files/TCA/ellingtoncon.wpd




THE STATE OF TENNESSEE, et al. v. JACQUELINE HEARD AND IRVIN M. SALKY

Court:TCA

Attorneys:

R. Porter Feild, John Zelinka, for Appellant

No filing on behalf of Appellee

Judge: HIGHERS

First Paragraph:

This appeal involves an attempt by a taxpayer to redeem his property
after it had been sold at a tax sale.  The taxpayer filed a Petition
to Redeem the property within the one-year statutory period, but
failed to tender the money into court within the one-year period, as
required by statute.  The chancellor below granted the taxpayer an
additional thirty days, as a matter of equity, in which to pay the
money into court and redeem his property.  For the following reasons,
we reverse the judgment of the trial court.

http://www.tba.org/tba_files/TCA/heardjacqueline.wpd





FRANKLIN R. MILLER, et al v. STATE OF TENNESSEE DEPARTMENT OF HUMAN
SERVICES

Court:TCA

Attorneys:   

Paul G. Summers, Attorney General and Reporter, and Pamela A.
Hayden-Wood, Assistant Attorney General, For Appellant, Tennessee
Department of Human Services

Patricia L. Penn, Memphis, For Appellee, Nona J. Miller                       

Judge: CRAWFORD

First Paragraph:

This case involves a denial of Medicaid benefits.  The State of
Tennessee Department of Human Services denied petitioner's application
for Medicaid on a resource assessment which showed that petitioner had
financial resources in excess of the $2,000.00 limit.  The trial court
found that the administrative agency incorrectly included petitioner's
life insurance policy in the resource assessment and reversed the
agency's order denying eligibility.  The trial court remanded the case
to the administrative tribunal to allow the petitioner to present
further evidence regarding the percentage of ownership interest the
petitioner had in the remaining assets.  The Department of Human
Services appeals.  We affirm in part and reverse in part.

http://www.tba.org/tba_files/TCA/millerfra.wpd





PUBLIC EMPLOYEES BENEFIT SERVICES CORPORATION v. ALANA DIANE
PARMINTER, et al.

Court:TCA

Attorneys:

Kathleen N. Gomes, Memphis, For Appellant, Linda Parminter Lane

Eugene G. Douglass, Jr., Bartlett, for Appellee, Alana Diane Parminter

Judge: CRAWFORD

First Paragraph:

Administrator of employee's deferred income plan filed a complaint for
a declaratory judgment seeking a determination of the proper
beneficiary, either employee's widow or employee's sister entitled to
the funds after the employee's death.  The dispute basically involves
an interpretation of the plan terms dealing with the method of
changing beneficiaries.  The trial court awarded the funds to
employee's widow, an employee's sister has appealed.  We vacate and
remand.

http://www.tba.org/tba_files/TCA/pepsco.wpd





IN THE MATTER OF JO'NISE YO'VEE PERRY, DOB: 12/19/1987, CHILD UNDER 18
YEARS OF AGE

Court:TCA

Attorneys:

Andrew Bernstein, Memphis, Tennessee, for the appellant, Johnny Perry,
a.k.a. Is'mail Muhammad.

John S. "Tripp" Wilson, Memphis, Tennessee, for the appellee, Court
Appointed Special Advocate.                     

Judge: KIRBY LILLARD

First Paragraph:

This is an appeal from an order terminating parental rights.  The
father was imprisoned during the hearing of this case.  The father
argues on appeal that the juvenile court should have allowed him to be
physically present at the hearing and should have granted him
discovery he requested, and also contends that terminating his
parental rights was not in his daughter's best interest.  We find that
the trial court did not abuse its discretion in deciding not to
transport the father to the hearing, and in limiting the father's
discovery.  We also find that the trial court did not err in finding
that termination of the father's parental rights was in the child's
best interest.  On this basis, we affirm the order terminating the
father's parental rights.

http://www.tba.org/tba_files/TCA/perryjonise.wpd





MEREDITH ANNMARIE WARREN v. JOHN DAVID WARREN, JR.

Court:TCA

Attorneys:  

Linda L. Holmes, for Appellant

Ron Harvey, for Appellee                        

Judge: HIGHERS

First Paragraph:

In this child custody case, the Appellant and the Appellee agreed to
joint custody of their child with the Appellee being the primary
custodial parent.  After learning of the Appellee's plans to move out
of state with the child, the Appellant filed a Petition for Opposition
of Minor Child's Move from the State of Tennessee and/or Petition for
Change of Custody.  The trial court granted temporary custody to the
Appellant pending a reevaluation of the matter.  After a hearing, the
trial court ordered joint custody of the child to the Appellant and
the Appellee and decreed that the child live primarily with the
Appellee out of state.

The Appellant appeals from the Order Awarding Joint Custody entered by
the Chancery Court of Shelby County.  For the reasons stated herein,
we affirm the trial court's decision.

http://www.tba.org/tba_files/TCA/warrenmeredithann.wpd





EDDIE WILLIAMS, JR. v. ALTON HESSON, WARDEN, et al.

Court:TCA

Attorneys:   

Eddie Williams, Jr., pro se

Paul G. Summers, Attorney General & Reporter, Michael E. Moore,
Solicitor General, Mark A. Hudson, Senior Counsel, for Appellees                       

Judge: HIGHERS

First Paragraph:

This appeal involves a claim of discrimination and denial of access to
the courts by a maximum security inmate in the custody of the
Tennessee Department of Correction.  The court below granted summary
judgment to the defendants.  For the following reasons, we affirm the
trial court's entry of summary judgment.

http://www.tba.org/tba_files/TCA/williamseddie.wpd





STATE OF TENNESSEE v. JIMMY WAYNE BAKER

Court:TCCA

Attorneys:  

John E. Herbison, Nashville, Tennessee, for the appellant, Jimmy Wayne
Baker.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise,
Assistant Attorney General; William Michael McCown, District Attorney
General; Robert G. Crigler, Assistant District Attorney General; and
Ann L. Filer, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Jimmy Wayne Baker, was convicted by a Bedford County
jury of first degree felony murder during the perpetration of or the
attempt to perpetrate theft of property, first degree premeditated
murder, and aggravated arson.  The trial court merged the felony
murder conviction with the premeditated murder conviction.  The
Defendant was sentenced as a Range I standard offender to life
imprisonment for the first degree murder conviction and to twenty-one
years and nine months incarceration for the aggravated arson
conviction, to be served concurrently.  The Defendant now appeals,
arguing the following: (1) that the trial court erred in instructing
the jury to determine whether one of the witnesses was an accomplice;
(2) that the evidence presented at trial was insufficient to convict
the Defendant of premeditated murder, felony murder, or aggravated
arson; (3) that the trial court erred in failing to instruct the jury
that they must agree unanimously on a particular set of facts to
support a finding of first degree felony murder; (4) that his
convictions of both premeditated murder and felony murder violated the
Double Jeopardy Clause and the Supremacy Clause; (5) that the
Defendant was not properly informed of the elements of and facts
necessary to constitute the offense of theft of property as the
underlying felony in the felony murder conviction; (6) that the
Defendant's sentence for aggravated arson was excessive; and (7) that
the trial court erred in failing to instruct the jury on all elements
of the offenses charged.  After review, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/bakerjw.wpd





RONNIE BRADFIELD v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Ronnie Bradfield, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Paula Wulff, Assistant District Attorney General; and John W.
Campbell, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Ronnie Bradfield, was convicted by a jury in the Shelby
County Criminal Court of three counts of attempt to commit second
degree murder, which this Court affirmed on direct appeal.  Petitioner
subsequently filed a pro se petition together with an amended and
supplemental petition for post-conviction relief alleging, primarily,
ineffective assistance of counsel.  The post-conviction judge denied
relief following an evidentiary hearing which took place over numerous
days.  Petitioner now appeals the judgment of the post-conviction
court denying his petition.  We affirm.

http://www.tba.org/tba_files/TCCA/bradfieldr.wpd





STATE OF TENNESSEE v. CURTIS EMERY DUKE

Court:TCCA

Attorneys:  

John B. Nisbet, III, Cookeville, Tennessee, Donna L. Hargrove and
Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the
appellant, Curtis Emery Duke.

Paul G. Summers, Attorney General and Reporter, Russell S. Baldwin,
Assistant Attorney General, W. Michael McCown, District Attorney
General, and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.                      

Judge: McGEE OGLE

First Paragraph:

The appellant, Curtis Emery Duke, was convicted in the Marshall County
Circuit Court of two counts of the sale of crack cocaine, one count of
possession of crack cocaine with the intent to sell, two counts of
criminal impersonation, and one count of failure to appear.  The trial
court sentenced the appellant to a total effective sentence of
thirty-nine years.  On appeal, the appellant raises the following
issues for our review: (1) whether the evidence presented at trial was
sufficient to sustain the appellant's convictions; (2) whether the
trial court erred in failing to instruct the jury on the
lesser-included offense of simple possession; and (3) whether the
trial court erred in sentencing the appellant.  Upon review of the
record and the parties' briefs, we affirm the judgments of the trial
court as modified.

http://www.tba.org/tba_files/TCCA/dukeceaffdasmod.wpd





MARVIN ANTHONY MATHEWS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Marvin Anthony Mathews, Henning, Tennessee, Pro Se.

Michael E. Moore, Solicitor General; Lucian D. Geise, Assistant
Attorney General; and Elizabeth T. Rice, District Attorney General,
for the appellee, State of Tennessee.                          

Judge: WILLIAMS

First Paragraph:

The defendant appeals asserting that the trial court improperly denied
his motion for expungement of records.  After review, we conclude that
the defendant failed to properly effectuate an adequate record for our
review.  Therefore, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/matthewsma.wpd





STATE OF TENNESSEE v. CHRISTOPHER OSBORNE

Court:TCCA

Attorneys:

John H. Henderson, District Public Defender; and Gene Honea, Assistant
District Public Defender, Franklin, Tennessee, for the appellant,
Christopher Osborne.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Lee E. Dryer, Assistant District Attorney General, for
the appellee, State of Tennessee. 

Judge: RILEY

First Paragraph:

A Williamson County jury convicted the defendant of attempted first
degree murder and felony reckless endangerment.  The trial court
sentenced him to concurrent sentences of twenty-four years and two
years, respectively, as a Range I standard offender.  In this appeal,
the defendant alleges (1) the attempted first degree murder
presentment was defective; (2) the proof was insufficient to sustain
his attempted first degree murder conviction; (3) the trial judge
erroneously failed to satisfy his "thirteenth juror" role; and (4) his
sentence is excessive.  Upon review of the record, we find no
reversible error and affirm the judgments and sentences imposed by the
trial court.

http://www.tba.org/tba_files/TCCA/osbornec.wpd





STATE OF TENNESSEE v. PRENTISS PHILLIPS

Court:TCCA

Attorneys:

A C Wharton, Jr., Shelby County Public Defender, Garland Ergueden,
Assistant Public Defender (on appeal); William L. Johnson, Memphis,
Tennessee; and Diane Thackery, Assistant Public Defender (at trial),
for the appellant, Prentiss Phillips.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Patience R. Branham, Assistant District Attorney General; and
Paula H. Wulff, Assistant District Attorney General, for the appellee,
State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant was convicted by a Shelby County jury of first degree
murder and especially aggravated kidnapping.  He was sentenced by the
jury to life without the possibility of parole for the murder
conviction.  He also received a sentence of twenty-five years for the
especially aggravated kidnapping conviction, to be served
consecutively to his life sentence.  The events of this case arose out
of a confrontation between rival gangs living in the Hurt Village
Apartments in Memphis.  The defendant, a high-ranking member of the
Gangster Disciples, was prosecuted for the crimes on a theory of
criminal responsibility.  In this appeal as of right, the defendant
challenges the sufficiency of the evidence to support his convictions.
 After a thorough review of the extensive record in this case, we
conclude that the evidence is sufficient to show that the defendant,
acting with the intent to promote the commission of the charged
offenses, directed and aided other members of the Gangster Disciples
in the commission of the offenses.  His convictions for first degree
murder and especially aggravated kidnapping are, therefore, affirmed.

http://www.tba.org/tba_files/TCCA/phillipsp.wpd





STATE OF TENNESSEE v. CRISS WILLIAMS

Court:TCCA

Attorneys:

James V. Ball, Memphis, Tennessee, for the appellant, Criss Williams.

Paul G. Summers, Attorney General & Reporter; Lucian D. Geise,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Glenn C. Baity, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

A Shelby County jury convicted the Defendant, Criss Williams, of the
second degree murder of Jerry Washington.  Subsequently, the trial
court sentenced the Defendant to twenty-five years of incarceration.
The Defendant challenges his conviction arguing that (1) the evidence
was insufficient to convict him, because the state failed to prove his
identity as the shooter, and (2) that the trial court erred in not
granting his Motion for Judgment of Acquittal.  After a thorough
review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/williamsc.wpd

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