April 25, 2001 Volume 7 — Number 076 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 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 01 New Opinion(s) from the Tennessee Court of Appeals 00 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 CHARLOTTE BROWN, ET AL. v. BIRMAN MANAGED CARE, INC., ET AL. Court:TSC Attorneys: Kelli L. Thompson, Knoxville, Tennessee, for the appellants, Birman Managed Care, Inc., Birman & Associates, Inc., Dr. David N. Birman, and Sue D. Birman. Steve D. Gibson, Ashland City, Tennessee, for the appellee, Charlotte Brown, individually and as custodial parent on behalf of the minor child Christen Barenkamp. Judge: DROWOTA First Paragraph: The plaintiff, individually and on behalf of her daughter, sued her former husband and his employers for fraud and civil conspiracy to defraud. She alleges that these defendants successfully carried out a plan to reduce the amount of her former husband's child support payments. Part of the plaintiff's conspiracy claim is based on the testimony of her former husband in a child support hearing in which he is alleged to have falsely stated his income. The defendants moved for summary judgment on two grounds: (1) the quality of the plaintiff's evidence and (2) the defense of "testimonial privilege," which grants a witness immunity from subsequent civil liability based on testimony he gave in a judicial proceeding. The trial court granted the defendants' motion. The Court of Appeals, in an opinion authored by Judge Cantrell, reversed, holding that the defendants were not entitled to summary judgment and that the former husband's testimony comes within the "larger conspiracy" exception to the testimonial privilege. We affirm both holdings of the Court of Appeals. http://www.tba.org/tba_files/TSC/birman.wpd ROBERT SPURLOCK, et al. v. SUMNER COUNTY, TENNESSEE, et al. Court:TSC Attorneys: Barbara J. Moss and Andrew B. Campbell, Nashville, Tennessee, for the movant, Sumner County. Rick Halprin, Chicago, Illinois, for the respondents, Robert Spurlock and Ronnie Marshall. Michael Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, and Mary M. Bers, Assistant Attorney General, for the Amicus Curiae, the State of Tennessee. Judge: BIRCH First Paragraph: This case comes to us on a question of law certified from the United States District Court for the Middle District of Tennessee. The question for our resolution is: "Does a sheriff, when acting in a law enforcement capacity, [act] as a state [official] or [as a] county official under Tennessee law?" We accept certification and answer that a sheriff acts as a county official under Tennessee law. http://www.tba.org/tba_files/TSC/spurlockr.wpd JOHN DAVID TERRY v. STATE OF TENNESSEE Court:TSC Attorneys: Brock Mehler and Michael E. Terry, Nashville, Tennessee, for the appellant, John David Terry. Michael E. Moore, Solicitor General; Tonya G. Miner, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The defendant was first convicted of premeditated first degree murder and arson in 1989. The jury found two statutory aggravating circumstances: (1) that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; and (2) that the murder was committed while the defendant was engaged in committing a larceny. Finding that the aggravating circumstances outweighed the mitigating circumstances, the jury sentenced the defendant to death by electrocution. This Court granted a new sentencing hearing after determining that the trial court had erroneously charged the jury that the murder was committed while the defendant was committing a larceny. In 1997, a jury again sentenced the defendant to death, finding that (1) the murder was especially heinous, atrocious, or cruel in that it involved depravity of mind, and (2) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant. The Court of Criminal Appeals affirmed. On automatic appeal, we affirm and hold that: (1) no prosecutorial misconduct occurred when the prosecutor asked the jury to consider certain facts and circumstances when weighing statutory aggravating circumstances against mitigating evidence; (2) the trial court did not err in allowing the jury to consider relevant facts and circumstances tending to establish aggravating circumstances or to rebut mitigating circumstances; (3) the evidence is sufficient to support a finding that the murder was especially heinous, atrocious, or cruel in that it involved depravity of mind; (4) the evidence is sufficient to support a finding that the defendant committed murder to avoid lawful arrest or prosecution; and (5) the sentence of death is not disproportionate to the sentence imposed in similar cases. For all other issues not specifically discussed in this opinion, we agree with and affirm the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/terryjd.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/terryj_dis.wpd ROBERT PAUL WILSON, JR. v. MARTHA RUTH WILSON Court:TCA Judge: SUSANO First Paragraph: Father has filed a petition for rehearing pursuant to Tenn. R. App. P. 39. In his petition, Father contends that our opinion misconstrues the evidence and fails to follow controlling legal authority on the issues of subject matter jurisdiction and change of custody. Specifically, Father argues that this Court erred in determining that the "custody proceeding," which ultimately led to the trial court's order changing custody to Mother, "commenced" with the filing of Father's initial motion on August 26, 1997. Father further argues that the trial court's delay in entering a final judgment on his motion for more than two years constitutes a refusal of the trial court to exercise jurisdiction over the case and, in the words of the petition, "is nothing less than an attempt to circumvent the provisions of the PKPA." Father further contends that the trial court changed custody solely to punish him and that the evidence does not support a finding that a change of custody would be in the child's best interest. We disagree on all points, although we do not find it appropriate to further discuss the last point made by Father. http://www.tba.org/tba_files/TCA/wilsonrp.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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