March 23, 2001
Volume 7 -- Number 054

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
00 New Opinion(s) from the Tennessee Court of Appeals
18 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

STATE OF TENNESSEE v. WILLIAM CHARLES BOGGS, JR.
Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal only); George
Morton Googe, District Public Defender (of counsel on appeal); and Joe
H. Byrd, Jr., Jackson, Tennessee (at trial) for the appellant, William
Charles Boggs.

Paul G. Summers, Attorney General & Reporter; Mark E. Davidson,
Assistant Attorney General; James (Jerry) Woodall, District Attorney
General; and James W. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: WOODALL

First Paragraph:

Defendant William Charles Boggs was convicted by a Madison County jury
of aggravated child abuse, Tenn. Code Ann. S 39-15-402, a Class A
felony.  The trial court sentenced Defendant as a violent 100%
offender to a term of twenty-one years.  Defendant's sole issue in
this appeal is whether the evidence was sufficient to support his
conviction.  After a thorough review of the record, we affirm the
judgment of the trial court.

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





GEORGE MILTON BROOKS v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Anthony L. Winchester, Dyersburg, Tennessee, for the appellant, George
Milton Brooks.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise,
Assistant Attorney General; C. Phillip Bivens, District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

The petitioner, George Milton Brooks, appeals as of right from the
Dyer County Circuit Court's denial of his petition for post-conviction
relief.  Petitioner contends that he received ineffective assistance
of counsel during his pre-trial proceedings when counsel: (1) failed
to investigate all apparent substantial defenses on Petitioner's
behalf; (2) failed to assert certain Fourth Amendment violations
during the hearing on Petitioner's motion to suppress; and (3)
incorrectly advised Petitioner whether he could properly reserve two
questions of law for appellate review.  After a review of the record,
we affirm the judgment of the post-conviction court.

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





STATE OF TENNESSEE v. C. CURTIS BROWN

Court:TCCA

Attorneys: 

Gerald S. Green, Memphis, Tennessee, for the appellant, C. Curtis
Brown.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Kenneth Roach, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: WILLIAMS

First Paragraph:

The defendant, after having his authority to write bonds in the 30th
Judicial District revoked, appeals the trial court's decision and
asserts that there was insufficient evidence to support the trial
court's findings.  Furthermore, the defendant asserts that the trial
court's action was excessive.  After review, we affirm the trial court
in all respects.

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





STATE OF TENNESSEE v. RICHARD CRAWFORD
WITH DISSENTING OPINION

Court:TCCA

Attorneys:

Kendall Reeves (on appeal) and Timothy Joel Williams (at trial),
Memphis, Tennessee, for the appellant, Richard Crawford.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Camille McMullen, Assistant District Attorney General,
for the appellee, State of Tennessee.                            

Judge: RILEY

First Paragraph:

Defendant, Richard Crawford, was convicted at a bench trial of theft
of a motor vehicle valued over $10,000.  On appeal, the defendant
raises the following two issues for our review: (1) whether the
evidence was sufficient to support his conviction for theft; and (2)
whether the value of the vehicle was properly established.  The
judgment of the Shelby County Criminal Court is affirmed.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/crawfordr_dis.wpd





STATE OF TENNESSEE v. FREDERICK LAMAR DIXON

Court:TCCA

Attorneys:

C. Michael Robbins, Memphis, Tennessee, and George M. Googe, District
Public Defender (on appeal); Scott Kirk, Jackson, Tennessee (at
trial), for the appellant, Frederick Lamar Dixon.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Shaun Alan Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.                          

Judge: WILLIAMS

First Paragraph:

The Defendant, after a jury trial for aggravated robbery, was found
guilty of the lesser included offense of robbery.  Tenn. Code Ann. S
39-13-401.  The Defendant challenges his robbery conviction relying
upon the recent Supreme Court holding in State v. Owens, 20 S.W.3d 634
(Tenn. 2000).  We agree with the Defendant that Owens is controlling
and hold that the violence or intimidation by the Defendant occurred
subsequent to the theft he committed, such that the facts in Owens are
indistinguishable from the facts in the instant case.  Therefore, the
Defendant's conviction of robbery is reversed; however, we modify the
trial court's judgment to show a conviction of theft of merchandise, a
Class A misdemeanor.  See Tenn. Code. Ann.  S 39-14-103 & 105(1). 
Further, the case is remanded for re-sentencing consistent with the
theft of merchandise conviction.

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





CLAUDE FRANCIS GARRETT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Dwight E. Scott, Nashville, Tennessee, for the appellant, Claude
Francis Garrett.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General;  Victor S. (Torry) Johnson III, District
Attorney General; and John C. Zimmermann, Assistant District Attorney,
for the appellee, State of Tennessee.                        

Judge: WILLIAMS

First Paragraph:

The defendant, after being convicted of first degree murder and
sentenced to life imprisonment, was denied post-conviction relief by
the Criminal Court of Davidson County.  Defendant now appeals that
denial and asserts that (1) the State withheld exculpatory evidence in
violation of Brady v. Maryland, thereby undermining the confidence of
the outcome of the trial; (2) the trial court erred by
unconstitutionally instructing the jury; (3) the defendant was not
afforded effective assistance of counsel; and (4) juror misconduct and
bias violated the defendant's constitutional rights.  The issue of
juror misconduct was addressed by this court on direct appeal and,
therefore, is not properly before this court.  After review, we affirm
the trial court's finding that the defendant received effective
assistance of counsel; however, we reverse and remand the case for a
new trial because the prosecution withheld exculpatory evidence in
violation of Brady v. Maryland, thereby undermining the confidence in
the outcome of the trial.

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





JAMES R. HANKINS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Jeffery S. Glatstein, Memphis, Tennessee, for the appellant, James R.
Hankins.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson,
Assistant Attorney General; William L. Gibbons, District Attorney
General; William D. Bond, Assistant District Attorney General, for the
appellee, State of Tennessee.                          

Judge: WITT

First Paragraph:

James R. Hankins appeals the Shelby County Criminal Court's denial of
his petition for post- conviction relief.  All of his allegations are
without merit, save one.  Hankins has established by clear and
convincing evidence that his counsel on direct appeal failed to follow
the required procedures for withdrawal of counsel under Supreme Court
Rule 14.  Accordingly, we affirm in part, reverse in part, and vacate
and reinstate our judgment in Hankins' direct appeal.

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





STATE OF TENNESSEE v. DAVID JOHNSON

Court:TCCA

Attorneys: 

STATE OF TENNESSEE v. DAVID JOHNSONMichael E. Scholl, Memphis,
Tennessee (on appeal); A.C. Wharton, Jr., District Public Defender;
Phyllis Aluko, Assistant Public Defender; and Gwendolyn Rooks,
Assistant Public Defender (at trial), for the appellant, David
Johnson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Jerry Kitchen, Assistant District Attorney General; and Julie
Mosley, Assistant District Attorney General, for the appellee, State
of Tennessee.                         

Judge: WITT

First Paragraph:

The defendant appeals from his Shelby County Criminal Court conviction
and sentence for second degree murder.  The trial court sentenced the
defendant to 37 years in the Department of Correction as a Range II
multiple offender.  In this direct appeal, the defendant complains
that the evidence is insufficient; that double jeopardy barred his
retrial following the grant of a mistrial; that Jencks Act material,
police reports, and arrest histories of state witnesses were
improperly withheld; that he was not allowed to impeach a key witness
in violation of his confrontation rights; that the trial court erred
in ruling that his prior convictions could be used to impeach him if
he testified; that the jury was improperly instructed; and that his
sentence is excessive.  We are unpersuaded that reversible error
occurred and therefore affirm the judgment and sentence of the trial
court.

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





STATE OF TENNESSEE v. JOHN EDWARD JOHNSON, JR.
WITH DISSENTING OPINION

Court:TCCA

Attorneys:

Lance E. Webb, Union City, Tennessee, for the appellant, John Edward
Johnson, Jr.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James T. Cannon, Assistant District Attorney General, for
the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

The defendant pled guilty to felonious possession of a handgun for an
agreed sentence of one year.  The parties reserved a certified
question of law; namely, whether an individual, who was previously
convicted of aggravated assault with a deadly weapon but subsequently
had his full citizenship rights restored pursuant to Tenn. Code Ann. S
40-29-101--105, can lawfully possess a handgun.  We conclude that a
convicted felon, otherwise prohibited from possessing a handgun under
Tenn. Code Ann. S 39-17-1307(b)(1)(A), may lawfully possess a handgun
in his residence after his "full citizenship rights" have been
restored.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/johnsonje_dis.wpd





LaKREASHA KIMBLE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

John E. Finklea, Murray, Kentucky, for the appellant, LaKreasha
Kimble.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Amy P. Weirich, Assistant District Attorney General, for
the appellee, State of Tennessee.                          

Judge: GLENN

First Paragraph:

This is an appeal of a denial of post-conviction relief.  The
petitioner and two codefendants were each convicted of murder in the
perpetration of robbery and of especially aggravated robbery for the
robbery and killing of a man who had given them a ride in his car. 
The petitioner appealed her convictions to the post-conviction court,
arguing, inter alia, that her counsel provided ineffective assistance
by his failure to petition for a severance of trial from her
codefendants.  The post- conviction court denied relief, finding the
petitioner's claims to be without merit.  Based upon a thorough
review, we affirm the post-conviction court's denial of relief.

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





PHYLLIS McBRIDE v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Joe M. Brandon, Jr., Smyrna, Tennessee, for the appellant, Phyllis
McBride

Michael E. Moore, Solicitor General; Todd R. Kelley, Assistant
Attorney General; William C. Whitesell, Jr., District Attorney
General; and David L. Puckett, Assistant District Attorney General;
for the appellee, State of Tennessee.                         

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Phyllis McBride, was convicted by a Rutherford County
jury of first degree murder.  On appeal, this Court affirmed the
conviction.  The Petitioner filed an application for permission to
appeal to the Tennessee Supreme Court which was denied.  The
Petitioner then filed a petition for post-conviction relief. 
Following a hearing, the petition was dismissed.  The Petitioner now
appeals the trial court's denial of post-conviction relief.  Finding
no error, we affirm the judgment of the trial court.

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





STATE OF TENNESSEE v. PHAREZ N. PRICE

Court:TCCA

Attorneys:

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Pharez
N. Price.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Jeffrey L. Long, Assistant District Attorney General, for
the appellee, State of Tennessee.                          

Judge: GLENN

First Paragraph:

The defendant was convicted by a Lewis County jury of criminal
responsibility for facilitation of a felony and possession of drug
paraphernalia.  The underlying felony conviction was for possession of
cocaine in an amount of .5 gram or more with intent to sell or
deliver.  The defendant's brother pled guilty to this felony, a Class
B felony.  The defendant was sentenced as a Range II, multiple
offender to nine years in continuous confinement on the facilitation
conviction and eleven months and twenty-nine days in the workhouse on
the drug paraphernalia conviction, with the sentences to be served
concurrently for an effective sentence of nine years.  In this appeal
as of right, the defendant contends that his sentence on the
facilitation conviction was inappropriate both as to length and manner
of service.  Having reviewed the limited record, we conclude that the
sentence is appropriate and therefore affirm the decision of the trial
court.

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





STATE OF TENNESSEE v. SHERMAN SHAW

Court:TCCA

Attorneys: 

Michael E. Scholl, Memphis, Tennessee, for the appellant, Sherman
Shaw.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Glen C. Baity, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

A Shelby County jury convicted the defendant of aggravated robbery. 
The trial court sentenced him to 15 years as a Range II multiple
offender.  In this appeal, the defendant alleges (1) the trial court
erroneously admitted the defendant's custodial statement; (2) the
evidence was insufficient to sustain the defendant's conviction; (3)
the cumulative effect of the trial court's errors requires a new
trial; and (4) the defendant's sentence is excessive.  After a
thorough review of the record, we affirm the judgment and sentence
imposed by the trial court.

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





STATE OF TENNESSEE v. STEPHEN LESTER THOMAS

Court:TCCA

Attorneys:

Lee Ofman, Franklin, Tennessee, for the appellant, Stephen Lester
Thomas.

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

Judge: GLENN

First Paragraph:

The defendant was charged in the Williamson County Circuit Court with
DUI, first offense, after a police officer observed him operating his
vehicle in an erratic fashion.  A videotape was made and admitted into
evidence of the defendant's taking field sobriety tests, upon which
the officer testified that he did poorly.  Following his conviction
for this offense, the defendant timely appealed.  In his appeal, he
raised several issues, including the refusal of the trial court to
instruct as to a lesser- included offense, complaints about the
admission of evidence, the conduct of the trial, and rulings of the
trial court.  Based upon our review, we affirm the judgment of the
trial court.

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





GEORGE TODD v. WARDEN FRED RANEY
ORDER

Court:TCCA

Judge: WILLIAMS

First Paragraph:

The Petitioner, George Todd, appeals from the Lake County Circuit
Court's denial of his petition for writ of habeas corpus.  In 1985,
the Petitioner entered into a negotiated plea agreement and pled
guilty to second degree murder.  As part of the plea agreement the
Petitioner received a forty-five year sentence as a Range II offender.
 The Petitioner subsequently filed a petition for post-conviction
relief alleging ineffective assistance of counsel.  The petition was
denied and the Petitioner appealed the denial of his petition to this
Court.  On December 21, 1989, this Court affirmed the lower court's
denial of the Petitioner's petition for post-conviction relief.  On
August 24, 2000, the Petitioner filed a petition for writ of habeas
corpus in the Lake County Circuit Court, alleging that the passage of
the Criminal Sentencing Reform Act of 1989 served to void his sentence
and all other sentences in the State of Tennessee, and was the
equivalent of a pardon.  The Lake County Circuit Court denied the
Petitioner's petition.

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





DONNIE WHEELER, et al. v. STATE OF TENNESSEE
WITH 2 CONCURRING OPINIONS

Court:TCCA

Attorneys:

Ricky L. Jenkins, Sparta, Tennessee, for the appellant, Donnie
Wheeler.

Cindy A. Howell, Sparta, Tennessee, for the appellant, Lonnie Wheeler.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements,
Jr., Assistant Attorney General; G. Robert Radford, District Attorney
General; and William M. Locke, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: WILLIAMS

First Paragraph:

The Petitioners filed pro-se petitions for post-conviction relief on
September 25, 1997, in accordance with the Post Conviction Relief Act.
 Tenn. Code Ann. S 40-30-101.  Amended petitions were subsequently
filed by court appointed counsel on November 14, 1997.  The
Petitioners' petitions were later dismissed and this appeal followed. 
In this appeal, the Petitioners set forth several grounds upon which
they claim that post-conviction relief should have been granted. 
Specifically, the Petitioners allege ineffective assistance of
counsel, claiming that counsel: failed to file a motion for judgment
of acquittal; failed to appeal the judgment of conviction for second
degree murder; failed to dismiss two jurors who were alleged to be
biased against the Petitioners, which resulted in a denial of their
right to a fair and impartial jury; failed to interview and
cross-examine a witness of the State's; and failed to file a motion to
suppress photographs that were entered into evidence.  Petitioner
Donnie Wheeler also contends that post-conviction relief should have
been granted because counsel failed to request an instruction on the
lesser-included offense of criminal responsibility for the
facilitation of a felony, and because the trial court failed to charge
the jury with the same lesser-included offense.  After careful
examination of the issues set forth herein, we affirm the
post-conviction court's denial of post-conviction relief to the
Petitioners.

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

CONCURRING OPINION 1 (HAYES)
http://www.tba.org/tba_files/TCCA/wheelerdetal(Hayes)_con.wpd

CONCURRING OPINION 2 (WITT)
http://www.tba.org/tba_files/TCCA/wheelerdetal(Witt)_con.wpd





EARNEST L. WHITE v. STATE OF TENNESSEE
ORDER

Court:TCCA

Judge: SMITH

First Paragraph:

The petitioner, Earnest L. White, appeals the order of the Shelby
County Criminal Court summarily dismissing his habeas
corpus/post-conviction petition without conducting an evidentiary
hearing or appointing counsel. Though styled as a petition for habeas
corpus relief, White asserts therein that ten of his 1984 convictions
should be set aside because of constitutional infirmities in the
process surrounding the entry of his guilty pleas for these offenses.
As the issues raised provide no basis for habeas corpus relief but
rather set out traditional post-conviction concerns, the trial court
considered this pro se petition as one for post-conviction relief. 
However, the trial court thereafter found that the petition had been
filed past the applicable statute of limitations and, therefore,
dismissed the petition. After a review of the record before this
Court, we find that the judgment of the trial court should be affirmed
pursuant to Rule 20, Tennessee Court of Criminal Appeals.

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





STATE OF TENNESSEE v. LAWRENCE WYATT

Court:TCCA

Attorneys: 

Pamela J. Drewery (on appeal) and Ramsdale O'DeNeal (at trial),
Jackson, Tennessee, for the appellant, Lawrence Wyatt.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen,
Assistant Attorney General;  James G. Woodall, District Attorney
General; and James W. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: TIPTON

First Paragraph:

The defendant appeals from his convictions for conspiracy to commit
aggravated robbery and facilitation of aggravated robbery.  He
contends that the evidence is insufficient to support his convictions
and that his sentences are excessive.  We affirm the judgments of the
trial court.

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

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