April 17, 2001 Volume 7 — Number 070 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):   02 New Opinion(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 04 New Opinion(s) from the Tennessee Court of Appeals 06 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 STATE OF TENNESSEE v. VINCENT SIMS Court:TSC Attorneys: W. Mark Ward and Tony N. Brayton, Memphis, Tennessee, for the appellant, Vincent Sims. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joseph F. Whalen, Assistant Attorney General, for the appellee, State of Tennessee. Judge: HOLDER First Paragraph: Vincent Sims was convicted of especially aggravated burglary and first degree premeditated murder in the shooting death of Forrest Smith. Sims was sentenced to twenty years on the especially aggravated burglary conviction and was sentenced to death for the first degree murder conviction. The sentences were ordered to run consecutively. On direct appeal, the Court of Criminal Appeals affirmed Sims's convictions and sentences. We entered an order designating the following issues for oral argument: 1) whether the evidence is sufficient to support the verdict of first degree premeditated murder; 2) whether the trial court erred in refusing to charge the law of self-defense; 3) whether the record supports the aggravating circumstance that the defendant had been previously convicted of a felony whose statutory elements involve violence to the person; 4) whether the trial court erred in allowing the State to cross-examine defense witnesses at the sentencing hearing about the defendant's prior criminal convictions; 5) whether the trial court erred in refusing to allow the defendant to present hearsay evidence at the sentencing hearing; 6) whether prosecutorial misconduct during closing argument at the sentencing phase of the trial denied the defendant his constitutional rights; 7) whether the evidence is sufficient to support aggravating circumstance (i)(5), that the murder is especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; 8) whether the jury instruction on aggravating circumstance (i)(5) denied the defendant his constitutional right to a unanimous jury finding; and 9) whether the sentence should be upheld under the Court's mandatory review under Tenn. Code Ann. S 39-13-206(c)(1). Having carefully reviewed these issues and the remainder of the issues addressed in Sims's brief, we find no merit to his arguments. Sims raises no assignments of error related to his especially aggravated burglary conviction, and after careful review of the record we find no plain error requiring reversal of that conviction. Accordingly, we affirm the Court of Criminal Appeals in all respects. http://www.tba.org/tba_files/TSC/simsvinc_opn.wpd CONCURRING AND DISSENTING http://www.tba.org/tba_files/TSC/simsv_con.wpd APPENDIX (Excerpts from the Court of Criminal Appeals' Decision) http://www.tba.org/tba_files/TSC/simsvinc_app.wpd DEXTER L. WILLIAMS v. STATE OF TENNESSEE Court:TSC Attorneys: Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General, Nashville, Tennessee, for the appellant, State of Tennessee. John E. Eldridge, Knoxville, Tennessee, for the appellee, Dexter L. Williams. Judge: BARKER First Paragraph: The appellee in this case was convicted of first degree murder and sentenced to life imprisonment. After the Court of Criminal Appeals affirmed the conviction, the appellee averred that his trial counsel failed to notify him of counsel's withdrawal from the case, or to explain to him his rights for filing a pro se petition to this Court. Although a Rule 11 petition was eventually filed, it was dismissed as time-barred. Appellee then filed a post-conviction petition for relief, which the trial court dismissed without a full evidentiary hearing because the appellee was unprepared to present evidence. The Court of Criminal Appeals remanded the case for an evidentiary hearing. The State appealed, arguing that the post-conviction petition was untimely pursuant to the 1995 Post- Conviction Procedure Act and should have been dismissed. We agree that the appellee filed his petition after the statute of limitations had run. However, because the appellee may have been deprived by his counsel of a reasonable opportunity to seek post-conviction relief, due process considerations may have tolled the limitations period during this time when the appellee was unable to seek such relief. Because the record needs further development for this Court to decide this issue, we affirm the decision of the Court of Criminal Appeals to remand the case to the trial court for further evidentiary hearing to determine the circumstances surrounding the appellee's untimely filing of his post-conviction petition. http://www.tba.org/tba_files/TSC/williamsdl_opn.wpd BRIDGESTONE/FIRESTONE, INC. v. FERNANDO GONZALES Court:TSC - Workers Comp Panel Attorneys: J. Mitchell Grissim, Jr., Nashville, Tennessee for the appellant, Fernando Gonzales B. Timothy Pirtle, McMinnville, Tennessee for the appellee, Bridgestone/Firestone, Inc. Judge: WEATHERFORD 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 S50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant/counter-plaintiff, Fernando Gonzales appeals the judgment of the Chancery Court of Warren County, where the trial court found that Mr. Gonzales retained a five percent (5%) permanent vocational disability to his right and left upper extremities for his work- related bilateral carpal tunnel syndrome. For the reasons stated in this opinion, we modify the judgment of the trial court and award Mr. Gonzales a twenty percent (20%) permanent vocational disability. http://www.tba.org/tba_files/TSC_WCP/bridgegonzales.wpd MARIE MOYERS, v. KEMPER INSURANCE COMPANIES, et al. Court:TSC - Workers Comp Panel Attorneys: Steven H. Trent and Jennifer P. Keller, Johnson City, Tennessee, for the appellants, Kemper Insurance Companies and Performance Food Group. Donald B. Oakley, Morristown, Tennessee, for the appellee, Marie Moyers. 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's husband suffered a fatal heart attack arising out of his employment with the defendant and entered judgment accordingly. The trial court found the heart attack was caused by emotional stress rather than physical exertion. The defendant asserts the evidence preponderates against the finding of the trial court. We find the evidence does not support the judgment of the trial court. We, therefore, reverse the judgment of the trial court and dismiss this case. http://www.tba.org/tba_files/TSC_WCP/moyersm.wpd R. G. BURNETT v. JAMES RAY SWAFFORD AND RHONDA SWAFFORD Court:TCA Attorneys: Phillips M. Smalling, Byrdstown, Tennessee, for the appellant, R. G. Burnett. Joe M. Looney, Crossville, Tennessee, for the appellees, James Ray Swafford and Rhonda Swafford. Judge: LILLARD First Paragraph: This appeal arises from an oral contract between a landlord and tenant. The plaintiff operated a grocery and leased a grocery store to the defendant for a period of ten years, pursuant to a written lease. The parties had a separate oral agreement in which the defendant agreed to buy the plaintiff's business. When the defendant vacated the property at the end of the lease, the parties disagreed as to whether the oral agreement included a purchase of the store equipment. The trial court found that the plaintiff had converted certain items belonging to the defendant, and entered a judgment in favor of the defendant for $5,000. We find that the trial court's decision is based on its determinations of credibility, and affirm. http://www.tba.org/tba_files/TCA/burnettrg.wpd CONNIE HARRIS AND HUSBAND, DANNY HARRIS v. MARRIOTT INTERNATIONAL, INC., D/B/A RESIDENCE INN BY MARRIOTT, BRENTWOOD, TENNESSEE, AND FIBERCARE, INC. Court:TCA Attorneys: Phillip R. Newman, Franklin, Tennessee, for the appellants, Connie Harris and Husband, Danny Harris. Cyrus L. Booker, Nashville, Tennessee, for the appellee, Marriott International, Inc., d/b/a Residence Inn by Marriott, Brentwood, Tennessee. Thomas I. Carlton, Jr., Beth C. Baggett, Nashville, Tennessee, for the appellee, Fibercare, Inc. Judge: LILLARD First Paragraph: This is a slip and fall case. The plaintiff filed her complaint barely within one year of the injury, but did not cause process to issue until six months later. Both defendants moved to dismiss plaintiff's case as time-barred under the one-year statute of limitations. The trial court granted the motions. We reverse and remand, finding that under Rule 3 of the Tennessee Rules of Civil Procedure, the plaintiff can rely on the filing of her complaint to toll the statute of limitations so long as the plaintiff causes process to issue within one year of the filing of the complaint. http://www.tba.org/tba_files/TCA/harrisc.wpd RANDALL E. JORDAN v. CSX TRANSPORTATION, INC. Court:TCA Attorneys: Wayne L Robbins, Jr., Gareth S. Aden, Nashville, Tennessee, for the appellant, CSX Transportation, Inc. Cyrus L. Booker, Charlnette Richard, Nashville, Tennessee, for the appellee, Randall E. Jordan. Judge: LILLARD First Paragraph: This is a suit by an employee against his employer, a railroad operator, under the Federal Employers' Liability Act. The employee alleged that he suffered injuries caused by chemical solvents used by the employer. Prior to trial, the employer made an offer of judgment under Rule 68 of the Tennessee Rules of Civil Procedure. This offer was refused. After the trial, the jury found that the employee failed to prove that his injuries were caused by the chemical solvents. The employer moved for an award of costs not included in the court clerk's bill of costs, under Rules 68 and 54.04 of the Tennessee Rules of Civil Procedure. The employee moved for a new trial. The trial court denied both parties' motions, and both parties appealed. We affirm the trial court's denial of both parties' motions. http://www.tba.org/tba_files/TCA/jordanre.wpd IN RE: SIERRA CHEYENNE SATTERWHITE Court:TCA Attorneys: Alan R. Beard, Chattanooga, Tennessee, for the Appellant, Timothy Pelfrey Glenna M. Ramer, Chattanooga, Tennessee, for the Appellees, James and Margaret Satterwhite Judge: GODDARD First Paragraph: The Maternal Grandparents of the Minor Child filed a petition to terminate the biological father's and Mother's parental rights to Minor Child and to adopt her. The Minor Child, who was born out of wedlock, had lived with her Maternal Grandparents all of her life. She viewed her grandparents as her parents. Default judgment was granted against Mother. Father never supported the child and had limited visitation with her. The Trial Court terminated both the biological Father's and Mother's parental right's. Father appealed. We affirm the decision of the Trial Court. http://www.tba.org/tba_files/TCA/satterwhitesie.wpd STEPHAN LAJUAN BEASLEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles P. Dupree, Chattanooga, Tennessee, for the appellant, Stephan Lajuan Beasley. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William H. Cox III, District Attorney General; and Dean C. Ferraro, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner was originally convicted by a Hamilton County jury of first degree murder and received a sentence of life imprisonment without the possibility of parole. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied. In this appeal, the petitioner contends (1) his trial counsel provided ineffective assistance of counsel, and (2) he was denied the right to testify at trial and at sentencing. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief. http://www.tba.org/tba_files/TCCA/beasleysl.wpd JERRY L. COX v. STATE OF TENNESSEE Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender; and Terry J. Jordan and Joseph F. Harrison, Assistant Public Defenders, for the Appellant, Jerry L. Cox. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Jerry L. Cox appeals from the Sullivan County Criminal Court's denial of motions in which he raised various claims related to sentence calculation and sentence validity. In part, Cox seeks the benefit of various sentence credits for the sentence he is presently serving in the Department of Correction. He also alleges that one of his sentences is void or has expired. Because there is no appeal as of right from the denial of Cox's motions challenging his sentences, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/coxjl.wpd STATE OF TENNESSEE v. JIMMY LEE CULLOP, JR. Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee; Stephen M. Wallace, Gale K. Flanary and Terry L. Jordan, Assistant Public Defenders, for the Appellant, Jimmy Lee Cullop, Jr. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Jimmy Lee Cullop, Jr. appeals from his convictions of aggravated burglary, theft of property valued over $500, felony reckless endangerment, speeding, felony evading arrest, violation of an habitual motor vehicle offender order, and theft of property valued at $10,000 or more. Cullop claims that the evidence is insufficient to support his convictions of aggravated burglary, reckless endangerment, and the two counts of theft. Further, he alleges that a law enforcement officer's in-court identification was tainted by the officer's previous viewing of a photograph of the defendant, that the trial court erred in denying a mistrial when a state's witness testified that the defendant was "on probation or something," and that he was improperly sentenced as a Range II offender and given consecutive sentences. Upon consideration, we discern error in the judgment for felony evading arrest and remand to the trial court for further action. We discern error or possible error in the judgments for theft over $10,000 and speeding and remand for correction of clerical error. In all other respects, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/cullopJL_opn.wpd CONCURRING AND DISSENTING http://www.tba.org/tba_files/TCCA/cullopjl_dis.wpd STATE OF TENNESSEE v. THOMAS J. FAULKNER, JR. Court:TCCA Attorneys: Carl R. Ogle, Jr., Jefferson City, Tennessee, for the Appellant, Thomas J. Faulkner, Jr. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; Michael A. Gallegos, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Thomas J. Faulkner, Jr. stands convicted of four counts of attempted first degree murder and one count of theft over $1,000. He received his sentence at the conclusion of a jury trial in the Grainger County Circuit Court and is presently serving an effective 73-year sentence for these crimes. In this direct appeal, he raises numerous issues related to admission of evidence, release of a juror, sufficiency of the evidence, severance, jury instructions and sentencing. Upon review, we are unpersuaded of error and therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/faulknertj_opn.wpd CONCURRING http://www.tba.org/tba_files/TCCA/faulknertj_con.wpd CHARLES FRANK GRIFFIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Mike A. Little, Chattanooga, Tennessee, for the Appellant, Charles Frank Griffin. Paul G. Summers, Attorney General & Reporter; Glen C. Watson, Assistant Attorney General; William H. Cox, III, District Attorney General; and Dean C. Ferraro, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The Hamilton County Criminal Court dismissed Charles Griffin's petition for post-conviction relief. Asserting claims of ineffective assistance of counsel, he appeals. Finding no error, we affirm. http://www.tba.org/tba_files/TCCA/griffincf.wpd STATE OF TENNESSEE v. JEFFREY T. SILER Court:TCCA Attorneys: John W. Routh, Knoxville, Tennessee, for the appellant, Jeffrey T. Siler. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Sally Jo Helm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant was convicted by a Knox County jury of the offense of felony murder and received a life sentence. He raises the following two issues on appeal: (1) whether the trial court erred in denying his motion to suppress his confession; and (2) whether the trial court erred in disallowing certain expert testimony. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/silerjt.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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