April 2, 2001 Volume 7 — Number 060 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):   01 New Opinion(s) from the Tennessee Supreme Court 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 08 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 IN RE: PETITION OF MEDIATION ASSOCIATION OF TENNESSEE TO REQUIRE ALTERNATIVE DISPUTE RESOLUTION EDUCATION Court:TSC ORDER Judge: ANDERSON First Paragraph: On June 28, 2000, the Mediation Association of Tennessee filed its Petition to Require Alternative Dispute Resolution Education. Because the proposed petition raised issues of important public policy, the Court entered an order on August 29, 2000, soliciting responses to the petition from the Bar and the public. The order requested that responses be filed in the Nashville office of Appellate Court Clerk by December 1, 2000. On November 29, 2000, this Court entered an order granting the petitioner's motion to extend the comment period to January 31, 2001. The Court received a number of thoughtful and constructive responses from various practicing attorneys and bar associations, and wishes to thank all who participated for their valuable input. After due consideration, it is ORDERED that the Mediation Association of Tennessee's Petition to Require Alternative Dispute Resolution Education is hereby denied. http://www.tba.org/tba_files/TSC/mediationadrcle.wpd JESUS M. PARRA v. RIETH-RILEY CONSTRUCTION CO., et al. Court:TSC - Workers Comp Panel Attorneys: Archie Sanders, III, Memphis, Tennessee, for the appellants Rieth-Riley Construction Company, Inc. and Zurich-American Insurance Group. Donna M. Fields, Memphis, Tennessee, for appellee, Jesus M. Parra. 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 judge found the plaintiff, Jesus M. Parra, suffered an 80 percent permanent partial disability to the right foot. The defendants, Rieth-Riley Construction Company and Zurich-American Insurance Group, contend the evidence does not support the award and further say the injury was limited to two toes rather than to the foot. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/parra.wpd RE: Rules of Practice and Procedure of the Tennessee Court of the Judiciary Court:TENNESSEE COURT OF THE JUDICIARY Judge: DANIEL First Paragraph: At the statutory semiannual meeting of the Court of the Judiciary on February 28, 2001, more than a quorum of the Judges of the Court being present, the amendment of Rule 8 of the Rules of the Court of the Judiciary which was adopted by the Court on June 28, 2000, was again discussed. On motion to rescind the amendment duly made and seconded, the Judges of the Court unanimously voted to rescind the amendment to Rule 8 previously adopted on June 28, 2000, returning Rule 8 to its form and wording prior to the amendment. IT IS THEREFORE ORDERED, ADJUDGED and DECREED by the Court that the amendment to Rule 8 of the Rules of the Court of the Judiciary adopted on June 28, 2000 is rescinded and Rule 8 is returned to its form and wording prior to the amendment, to wit: Confidentiality. Except for hearings conducted pursuant to Tenn. Code Ann. S 17-5-308 or sanctions required to be public, matters that come before the Court are confidential. Individual members of the Court will not discuss any matter pending before the Court, except with other members of the Court and with Disciplinary Counsel. http://www.tba.org/tba_files/TSC_Rules/rule8.wpd KARINE MARGARET BAILEY v. MICHAEL CHARLES BAILEY Court:TCA Attorneys: Frank M. Fly and Shawn M. Ashcraft, Murfreesboro, Tennessee, for the appellant, Michael Charles Bailey. Josh A. McCreary, Murfreesobor, Tennessee, for the appellee, Karine Margaret Bailey. Judge: CAIN First Paragraph: These parties were divorced in September 1995, and their Marital Dissolution Agreement was incorporated in the decree of divorce. They were parents of two children, and the court approved the agreement for shared physical custody of the children whereby each parent had custody of both children fifty percent of the time. The MDA provided, "[T]he parties have agreed to deviate from the child support award guidelines due to the shared physical custody of the children." Husband paid Wife $500 per month, which was not in accordance with the guidelines. In June 1999, Husband filed a motion to terminate his child support obligation because of a significant increase in Wife's income. The trial court denied the application, and Husband appeals. We vacate and remand for further proceedings. http://www.tba.org/tba_files/TCA/baileykarine.wpd LORRI LISA BAILEY (CAPPS) v. DAVID WAYNE CAPPS Court:TCA Attorneys: John G. Doak, Sr., Nashville, Tennessee, for the appellant, David Wayne Capps. Anthony E. Hagan, Lebanon, Tennessee, for the appellee, Lorri Lisa Bailey (Capps). Judge: LILLARD First Paragraph: This child custody case has already been the subject of one appeal before this Court. The father was awarded sole custody of the parties' only child, with the mother receiving liberal visitation rights. The mother petitioned for a change of custody. The trial court found that there was no material change in circumstances sufficient to warrant an award of sole custody to the mother. However, the original custody order was modified to provide that the parties had joint custody, with the father being the "primary residential custodian." The trial court also ordered that the mother was no longer required to pay child support and that the mother owed no arrearage in child support. The father appeals. We affirm in part and reverse in part, affirming the order of joint custody and the order that the mother is not required to pay child support, but we reverse on the issue of the mother's child support arrearage. http://www.tba.org/tba_files/TCA/bappsll.wpd GARY LEROY CURTIS v. JANE WELTHA (WILLIAMS) CURTIS Court:TCA Attorneys: R. Eddie Davidson, Nashville, Tennessee for the appellant, Gary Leroy Curtis. Jack Norman, Jr., Nashville, Tennessee for the appellee, Jane Weltha Curtis. Judge: COTTRELL First Paragraph: The trial court dismissed the former husband's second petition for alimony modification and held him in criminal contempt for willful failure to make alimony payments. The trial court also joined the former husband's present wife and father-in-law as defendants after finding that the former husband had transferred a large portion of his property to them, and enjoined them from disposing of or encumbering the property. The former husband contends that his failure to pay alimony is due to a physical disability, and thus, he should not be held in contempt; that his petition to modify the award should not have been dismissed because he had a material change in his financial circumstances; and that his wife and father-in-law should not have been joined as parties. We affirm the trial court. http://www.tba.org/tba_files/TCA/curtisg.wpd DAVID F. DEAN, SR. v. HOME DEPOT USA, INC. Court:TCA Attorneys: Roy D. Campbell, III and Kristin M. Oberdecker, Nashville, Tennessee, for the appellant, Home Depot USA, Inc. Jack A. Butler and Jeffrey R. Kohl, Nashville, Tennessee, for the appellee, David F. Dean, Sr. Judge: CAIN First Paragraph: Plaintiff, David Dean, was a 68 year old frequent patron of Home Depot. On April 27, 1997, Mr. Dean completed his shopping at the store, paid the cashier and, upon departing, appeared to have set off the electric theft detection alarm. An employee of Home Depot stopped Mr. Dean and asked him to step back into the store while employees located the source of whatever triggered the alarm. Mr. Dean was neither arrested nor charged and ultimately left the store. He brought suit against Home Depot for false imprisonment resulting in a jury verdict in his favor for $37,593.00. On Motion for a New Trial, asking in the alternative for remittitur, the trial court reduced the judgment by $3,000.00. Defendant appealed. Upon consideration of the record, we suggest an increased remittitur and remand the case giving Mr. Dean 15 days to accept the suggested remittitur. http://www.tba.org/tba_files/TCA/deandavid.wpd LAURA MAYSHARK NICHOLS v. CRAIG ALAN NICHOLS Court:TCA Attorneys: Craig Alan Nichols, Appellant, Pro Se Laura Mayshark Nichols, Appellee, Pro Se Judge: GODDARD First Paragraph: Craig Alan Nichols appeals the decree of the Trial Court which, among other things, granted his wife a divorce. All of the issues he raises are dependent upon a consideration of the facts introduced in evidence. Because we have no transcript or statement of the evidence we must conclusively presume the evidence presented justified the judgment of the Trial Court. We accordingly affirm the judgment pursuant to Rule 10(a) of this Court. http://www.tba.org/tba_files/TCA/nicholslau.wpd BRENDA REESE v. RICKIE D. REESE Court:TCA Attorneys: Rickie D. Reese, Clifton, Tennessee, Pro Se. Andrew Jackson Dearing, Shelbyville, Tennessee, for the appellee, Brenda Reese. Judge: First Paragraph: The defendant, an incarcerated felon, appeals the action of the Chancellor in granting a divorce to his wife and settling all property rights between the parties. We affirm the judgment of the Chancellor. http://www.tba.org/tba_files/TCA/reesebrenda.wpd STATE OF TENNESSEE v. ANTHONY E. COLLIER Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Victor S. Johnson, District Attorney General and Pam Anderson, Assistant District Attorney, Nashville, Tennessee, for the appellant, State of Tennessee. Sam E. Wallace,Jr., Nashville, Tennessee, for the appellee, Anthony E. Collier. Judge: SMITH First Paragraph: On March 31, 1998, Metropolitan Nashville Police Officers executed a search warrant on the residence and person of Anthony E. Collier, the defendant and appellee. Police searched the defendant, his vehicle and his residence and seized drugs, drug paraphernalia and weapons. The defendant moved to suppress the evidence, and, following a suppression hearing, the trial court granted the defendant's motion. On appeal, the State claims that the trial court erred. We hold that the search of the defendant was not supported by probable cause and any evidence seized from the defendant's person was thus properly suppressed. However, we also find that the failure of the trial court to make findings of fact with respect to the question of whether the contraband was in plain view and thus subject to seizure requires us to remand this case for entry of such findings pursuant to Tenn. R. Crim. P. 12(e). Finally, the search of the defendant's residence was supported by the warrant; thus any evidence seized from the defendant's vehicle or residence should not have been suppressed. Accordingly, we reverse in part and affirm in part the judgment of the trial court, and we remand the case to the trial court for further proceedings in accordance with this opinion. http://www.tba.org/tba_files/TCCA/collieranthony.wpd STATE OF TENNESSEE v. EDDIE ERWIN Court:TCCA Attorneys: John D. Parker, Kingsport, Tennessee, for the appellant, Eddie Erwin. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Greeley Wells, District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Eddie Erwin, was convicted by a jury of the sale of cocaine, a Class C felony. He was sentenced as a Range III, persistent offender to twelve years incarceration. In this appeal as of right, he agues (1) that the evidence was insufficient to support the conviction; (2) that the trial court erred by convicting the Defendant based on the original indictment rather than the re-indictment; (3) that the trial court erred by failing to suppress a videotape containing statements the Defendant made while talking on a telephone in the jail; (4) that the trial court erred by admitting into evidence a photographic lineup; and (5) that the trial court erred by enhancing the Defendant's sentence based on three prior Illinois felony convictions and based on post-offense conduct. We conclude that the evidence was sufficient to support the conviction, that the Defendant was not convicted based on the wrong indictment, and that the trial court did not err by admitting the videotape and the photographic lineup into evidence; thus, we affirm the Defendant's conviction. We do, however, find that the trial court erred by sentencing the Defendant as a Range III, persistent offender, based on three prior Illinois felony convictions, because those convictions would have been misdemeanors under Tennessee law. We therefore modify the Defendant's sentence to ten years as a Range II, multiple offender. We also remand for correction of the judgment, which contains a clerical error reflecting an incorrect offense date. http://www.tba.org/tba_files/TCCA/erwine.wpd RAY CHARLES GASAWAY v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Ray Charles Gasaway. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Ray Charles Gasaway, filed a Petition for Post-Conviction Relief in the Davidson County Criminal Court, which the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issue: whether the trial court erred in ruling that the Petitioner was provided effective assistance of counsel. Specifically, Petitioner argues that his trial counsel failed to investigate, failed to raise the fatal variance between the indictment and the proof at trial and failed to raise as an issue the violation of Petitioner's right to due process because of the delay between the commission of the crimes and commencement of adversarial proceedings. After a thorough review of the record, we affirm the trial court's denial of the Petitioner's post-conviction petition. http://www.tba.org/tba_files/TCCA/gasawayrc.wpd STATE OF TENNESSEE v. DEBORAH GRAHAM & DENICE SMITH Court:TCCA Attorneys: R.B. Baird, III, Rogersville, Tennessee, for the appellant, Deborah Graham; and Denise Terry Stapleton, Morristown, Tennessee, for the appellant, Denice Smith. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Al Schmutzer, District Attorney; W. Brownlow Marsh, Assistant District Attorney; and James B. Dunn, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: After a jury trial, a Cocke County jury found the Defendants, Deborah Graham and Denice Smith, guilty of the first degree murder of Aaron Smith. Following a sentencing hearing, the trial court sentenced both Defendants to life imprisonment with the possibility of parole. In this appeal as of right, the Defendants raise the following issues: 1) whether the trial court erred in not dismissing the indictments because of the State's failure to provide the Defendants with a speedy trial; 2) whether the trial court erred by allowing the State to decide not to consolidate Alexandro Rivera's case with the Defendants' case, because of a potential Bruton problem, without first granting the Defendants an opportunity to be heard on the issue; 3) whether the trial court erred in failing to sever Defendant Smith's case from Defendant Graham's case; 4) whether the trial court erred in consolidating Defendant Graham's case with Defendant Smith's case; and 5) whether the evidence was sufficient to convict each of the Defendants of first degree murder. After a thorough review of the evidence and the applicable law, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/grahamd.wpd STATE OF TENNESSEE v. ANTHONY RAY LAWSON Court:TCCA Attorneys: J. Liddle Kirk, Knoxville, Tennessee, for the Appellant, Anthony Ray Lawson. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Randall E. Nichols, District Attorney General; Scott Green, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Anthony Ray Lawson appeals his conviction of especially aggravated robbery and contests the sufficiency of the evidence. Upon review, we hold that the evidence is sufficient to sustain the conviction and therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lawsonar.wpd TYRONE V. TURNER v. STATE OF TENNESSEE Court:TCCA Attorneys: Lance H. Selva, Murfreesboro, Tennessee, for the appellant, Tyrone V. Turner. Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; and Paul A. Holcombe III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Tyrone V. Turner, appeals the trial court's denial of post-conviction relief. The issue presented for review is whether the petitioner was denied the effective assistance of counsel on direct appeal. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/turnertv.wpd MATHIS T. VAUGHN v. STATE OF TENNESSEE Court:TCCA Attorneys: Carrie W. Kersh, Clarksville, Tennessee, for the appellant, Mathis T. Vaughn. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Mathis T. Vaughn, filed a Petition for Post-Conviction Relief in the Montgomery County Circuit Court, which the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issue: whether the trial court erred in dismissing his Petition for Post-Conviction Relief, based upon a ruling that Petitioner's allegations of ineffective assistance of counsel were without merit. After a thorough review of the record, we affirm the trial court's denial of the Petitioner's Petition for Post-Conviction Relief. http://www.tba.org/tba_files/TCCA/vaughnmt.wpd STATE OF TENNESSEE v. DANIELLE L. WALKER Court:TCCA Attorneys: Mack Garner, Maryville, Tennessee, and Julie A. Rice, Knoxville, Tennessee, for the appellant, Danielle L.Walker. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Counsel for the State, Mike Flynn, District Attorney General, Kirk Andrews and Edward P. Bailey, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Danielle L. Walker, pled guilty in the Blount County Circuit Court to one count of theft of property over $1000, a class D felony. The trial court sentenced the appellant as a standard Range I offender to two years incarceration in the Tennessee Department of Correction. The trial court ordered the appellant to serve twenty days of her sentence in periodic confinement and to serve the balance of her sentence on supervised probation. The trial court also ordered the appellant to make restitution to the victim in the amount of $2,928.56. On appeal, the appellant raises the following issues for our review: (1) whether the trial court erred by refusing to grant the appellant judicial diversion; and (2) whether the trial court erred by refusing to grant the appellant full probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/walkerd.wpd Effect of Home Rule Charter on Liquor Referendum in Lenoir City Date: March 28, 2001 Opinion Number: 01-048 http://www.tba.org/tba_files/AG/OP48.pdf Alderman as Member of Fayetteville Public Utilities Board Date: March 28, 2001 Opinion Number: 01-049 http://www.tba.org/tba_files/AG/OP49.pdf Private Act Addressing County Zoning of Industrial and Commercial Development Areas and Mobile Home Parks Date: March 28, 2001 Opinion Number: 01-050 http://www.tba.org/tba_files/AG/OP50.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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