April 6, 2001 Volume 7 — Number 064 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):   03 New Opinion(s) from the Tennessee Supreme Court 03 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 09 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 IN RE: THE ADOPTION OF FEMALE CHILD, E.N.R. Court:TSC Attorneys: John D. Hamilton, Jackson, Tennessee, for the defendant/appellant, Timothy Ray Rose. Andrea Huddleston, Lawrenceburg, Tennessee, for the plaintiffs/appellees, Amy Jenell Reed and Jonathan Lamar Reed. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Douglas Earl Dimond, Assistant Attorney General, for the intervenor, State of Tennessee. Judge: HOLDER First Paragraph: The parental rights of Timothy Ray Rose, a convicted rapist serving a twelve-year sentence, were terminated by the trial court pursuant to Tenn. Code Ann. S 36-1-113. On appeal, Mr. Rose challenged the constitutionality of S 36-1-113(g)(6) and S 36-1-113(c)(2), which permit termination of an inmate's parental rights under certain circumstances. Mr. Rose's constitutional challenge, however, was raised for the first time in closing argument before the trial court. Accordingly, we hold that the constitutional challenge was not timely made and therefore has been waived except to the extent the challenged statutes are so clearly or blatantly unconstitutional as to obviate the necessity for any discussion. We hold that S 36-1-113(g)(6) and S 36-1-113(c)(2) are not clearly or blatantly unconstitutional. Further, Mr. Rose has failed to comply with Tenn. R. Civ. P. 24.04, Tenn. R. App. P. 32, and Tenn. Code Ann. S 29-14-107(b), which require that the Attorney General be notified of any constitutional challenge to a Tennessee statute. Accordingly, we affirm the judgment of the Court of Appeals. http://www.tba.org/tba_files/TSC/enr.wpd DOROTHY G. MACKIE, Widow of JAMES V. MACKIE v. YOUNG SALES CORPORATION Court: TSC ORDER First Paragraph: Young Sales Corporation, through counsel, has filed a petition to rehear this Court's opinion released on March 1, 2001. We have reviewed the arguments raised in the petition and conclude that they are without merit. Accordingly, it is ORDERED that the petition to rehear is denied. http://www.tba.org/tba_files/TSC/mackierehear.wpd STATE OF TENNESSEE v. GUY WILLIAM RUSH Court:TSC Attorneys: Mark D. Harris (at trial and on appeal) and Richard A. Spivey (at trial), Kingsport, Tennessee, for the appellant, Guy William Rush. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Daryl J. Brand, Associate Solicitor General, Erik W. Daab, Assistant Attorney General, H. Greeley Wells, Jr., District Attorney General, and Edward E. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: Guy William Rush was indicted and tried for one count of attempt to commit second degree murder and one count of aggravated assault. On the attempted second degree murder count, the trial court instructed the jury on a number of lesser-included offenses, including attempted voluntary manslaughter; intentional or knowing aggravated assault accompanied by serious bodily injury; reckless aggravated assault accompanied by serious bodily injury; and assault accompanied by bodily injury. The jury convicted Rush of the lesser-included offense of reckless aggravated assault. Rush appealed, challenging the trial court's instructions on lesser-included offenses, and the Court of Criminal Appeals affirmed. Applying the lesser-included offense test established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), we conclude that neither reckless aggravated assault nor felony reckless endangerment are lesser-included offenses of attempted second degree murder. We conclude, however, that the offense of misdemeanor reckless endangerment is a lesser-included offense of attempted second degree murder and that the trial court erred in failing to so instruct the jury. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the cause for a new trial in accordance with this opinion. http://www.tba.org/tba_files/TSC/rushg.wpd JACK MASON CLARKE v. PROTECTION SERVICES, INC, et al. Court:TSC - Workers Comp Panel Attorneys: Richard E. Spicer, Nashville, Tennessee, for the appellants, Protection Services, Inc. and The Travelers Insurance Company. Tonya Crownover, Nashville, Tennessee, for the appellee, Jack Mason Clarke. 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 suffered a compensable injury and entered a judgment which found he had sustained a sixty-nine percent vocational impairment to the body as a whole. The trial judge also awarded temporary total disability benefits and medical benefits. We reverse judgement of the trial court. http://www.tba.org/tba_files/TSC_WCP/clarkejackmason.wpd DONALD EARL MATHIS v. EMERSON MOTOR COMPANY Court:TSC - Workers Comp Panel Attorneys: P. Allen Phillips and B. Duane Willis, Jackson, Tennessee, for the appellant, Emerson Motor Company. T. J. Emison, Jr., Alamo, Tennessee, for the appellee, Donald Earl Mathis. Judge: DORAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(1999) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff suffered an injury to two of his fingers. The issue for review is whether the trial court erred in finding that the plaintiff sustained an 85 percent permanent partial disability to the right arm. We reverse the trial court and modify the judgment to award the plaintiff 85 percent permanent partial disability to the right hand. http://www.tba.org/tba_files/TSC_WCP/mathisde.wpd JENNIFER McGARITY v. TECUMSEH PRODUCTS COMPANY, et al. Court:TSC - Workers Comp Panel Attorneys: David F. Hessing, Paris, Tennessee, for the appellant, Tecumseh Products Company, Ricky L. Boren, Jackson, Tennessee, for the appellee, Jennifer McGarity. Judge: BELL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Defendant Tecumseh Products Company appeals the judgment of the Circuit Court of Henry County awarding plaintiff permanent partial disability asserting error as to issues of notice, statute of limitations, and causation. For the reasons stated in the opinion we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/mcgjenni.wpd STATE OF TENNESSEE v. FRANKIE E. CASTEEL Court:TCCA Attorneys: Phillip C. Lawrence; Mark D. Hackett; Don W. Poole, Chattanooga, Tennessee, for the appellant, Frankie E. Casteel. Paul G. Summers, Attorney General & Reporter; Erik W. Daab, Assistant Attorney General, Nashville, Tennessee; William Cox, District Attorney General; C. Leland David, Special Prosecutor, Chattanooga, Tennessee, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Following a jury trial, the defendant was convicted of the first-degree murders of Richard Mason, Kenneth Griffith and Earl Smock in the Hamilton County Criminal Court, Douglas A. Myer, J., and the defendant appealed. The Court holds (1) that the trial court's failure to follow statutory procedures before admitting evidence that the defendant had committed prior bad acts was harmless error; (2) evidence that the defendant had threatened trespassers was properly admitted; (3) the evidence was sufficient to convict the defendant; (4) failure to swear-in the jury prior to voir dire was at most harmless error where the jury was impaneled in another county and sworn in there; (5) the trial court did not abuse its discretion in refusing to allow the defendant to present alternative perpetrator evidence when that evidence was too far removed in time and place to connect it to the murders; (6) the trial court's failure to suppress evidence found on the defendant's property was proper because the evidence was seized during a search for the victims; (7) testimony about the contents of incriminating letters and newspaper articles was necessary to explain the defendant's attempt to destroy them; (8) the trial court properly allowed the state to cross examine the defendant about items seized from his home; but (9) the admission of five hours of an extremely prejudicial conversation between the defendant, his wife and his mistress in order to allow the jury to hear one adoptive admission was reversible error, especially when (10) the state relied on the unfairly prejudicial portion of the conversation when arguing its case to the jury in order to highlight the defendant's character. Reversed and remanded. http://www.tba.org/tba_files/TCCA/casteelfrank.wpd STATE OF TENNESSEE v. ALFONZO CHALMERS Court:TCCA Attorneys: A C Wharton, Jr., Shelby County Public Defender; Garland Ergueden, Assistant Public Defender (on appeal); and Mozella Ross, Assistant Public Defender (at trial), for the appellant, Alfonzo Chalmers. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scott Gordon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from his conviction for first degree premeditated murder. He contends that the evidence is insufficient to support the conviction and that the trial court erred by impermissibly commenting on the evidence in violation of article VI, section 9 of the Constitution of Tennessee. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/chalmersa.wpd STATE OF TENNESSEE v. RONNIE DULWORTH Court:TCCA Attorneys: James D. White, Jr., Celina, Tennessee, for the appellant, Ronnie Dulworth. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; Lawrence Ray Whitley, District Attorney General, Pro Tempore; and C. Wayne Hyatt, Assistant District Attorney General, Pro Tempore, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from his conviction for assault, contesting the sufficiency of the evidence and the manner of service of his sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/dulworthr.wpd STATE OF TENNESSEE v. DAVID PRYOR GILLIARD Court:TCCA Attorneys: Michael R. Jones, District Public Defender; and Collier W. Goodlett, Assistant Public Defender, for the appellant, David Pryor Gilliard. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, 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: A Montgomery County jury convicted Defendant, David Pryor Gilliard, of theft of property under $500 in value, and burglary of an automobile. As a result of these convictions, the trial court found the Defendant was in violation of a previously imposed four-year Community Corrections sentence. Following a sentencing hearing, the trial court sentenced Defendant as a Range II multiple offender to four (4) years for the burglary and eleven (11) months and twenty-nine (29) days for the theft with the sentences to run concurrently. The trial court also ordered that the theft and burglary sentences run consecutively to Defendant's Community Corrections violation, for an effective sentence of eight years. Defendant appeals as of right and challenges the length and manner of service of his sentence. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/gilliarddp.wpd STATE OF TENNESSEE v. THOMAS HICKS Court:TCCA Attorneys: Daniel L. McMurtry, Nashville, Tennessee, for the Appellant, Thomas Hicks. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted by a Davidson County jury of aggravated robbery and sentenced by the trial court to twenty-two years in the Tennessee Department of Correction. On appeal, the Defendant argues that the trial court erred in failing to suppress the Defendant's confession. The confession had been videotaped by police detectives, but the video tape was accidentally erased prior to trial. Finding no error by the trial court, we affirm the Defendant's conviction. http://www.tba.org/tba_files/TCCA/hickst.wpd STATE OF TENNESSEE v. CARL JOHNSON and DERRICK SUTTON Court:TCCA Attorneys: Howard Brett Manis, Memphis, Tennessee, for the appellant, Carl Johnson. A C Wharton, Jr., Shelby County Public Defender, and Garland Ergueden, Assistant Public Defender (on appeal) and Charles D. Wright, Memphis, Tennessee (at trial) for the appellant, Derrick Sutton. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; Karen Cook, Assistant District Attorney General; and Reginald R. Henderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendants, Carl Johnson and Derrick Sutton, were each convicted by a jury of especially aggravated robbery. Johnson raises three issues on appeal: (1) whether the evidence was sufficient to support his conviction for especially aggravated robbery; (2) whether the trial court erred in denying his motion for severance; and (3) whether the trial court erred in sentencing him to the maximum sentence of twenty-five years. Sutton challenges the sufficiency of the convicting evidence. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/johnsonc.wpd STATE OF TENNESSEE v. MATTHEW SCOTT JOHNSTON Court:TCCA Attorneys: Joe Walker, District Public Defender; Walter B. Johnson, II, Assistant Public Defender (on appeal); and Roland Cowden, Assistant Public Defender (at trial); for the appellant, Matthew Scott Johnston. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; J. Scott McCluen, District Attorney General; and D. Roger Delp, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Roane County jury convicted the Defendant of theft of an automobile valued at greater than $1,000.00, a Class D felony. He now appeals, arguing that the trial court erred in failing to instruct the jury on the lesser-included offense of unauthorized use of an automobile. We conclude that the trial court erred in failing to instruct the jury on the requested lesser-included offense but that the error was harmless beyond a reasonable doubt. Therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnstonms.wpd STATE OF TENNESSEE v. JEFFREY MCMAHAN Court:TCCA Attorneys: Edward C. Miller, Public Defender, Dandridge, Tennessee, for the appellant, Jeffrey McMahan. Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General, and Steven Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted of DUI, fourth offense. He appeals, contending that the evidence is insufficient to support his conviction. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/mcmahanj.wpd STATE OF TENNESSEE v. MICHAEL WAYNE PERRY Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee; Comer L. Donnell, District Public Defender; and Karen Chaffin, Assistant District Public Defender, for the appellant, Michael Wayne Perry. Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; Robert N. Hibbett, Assistant District Attorney General; and David Durham, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, Michael Wayne Perry, was convicted by a Wilson County jury of second degree murder and first degree felony murder committed during the perpetration of, or attempted perpetration of, rape. The trial court sentenced Defendant to life without parole for the first degree murder conviction, twenty years as a standard Range I offender for the second degree murder conviction, and then merged the two counts into a single conviction for first degree murder. Defendant appeals his convictions and presents the following issues: 1) whether the trial court erred in admitting Defendant's recorded confession; 2) whether the trial court erred in admitting evidence obtained from the vehicle that Defendant drove on the night of the murder; 3) whether the trial court erred in admitting photographs of the victim's body; 4) whether the trial court's instructions to the jury were proper; 5) whether the evidence was sufficient for a rational trier of fact to find Defendant guilty beyond a reasonable doubt; and 6) whether the conduct of law enforcement officials in the case "shocks the conscience." Based upon a careful review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/perrymw.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! 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