May 10, 2001 Volume 7 — Number 086 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 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 00 New Opinion(s) from the Tennessee Court of Appeals 08 New Opinion(s) from the Tennessee Court of Criminal Appeals 09 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 DOROTHY BOND v. MURRAY, INC. Court:TSC - Workers Comp Panel Attorneys: Jay Dustin King and P. Allen Phillips, Waldrop & Hall, Jackson, Tennessee, for the appellant, Murray, Inc. Ricky Boren and Donna Brown Wilkerson, Hill & Boren, Jackson, Tennessee, for the appellee, Dorothy Bond. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists the trial court erred in finding that the employee's disability to her left arm was work-related. No issue is made with respect to the right arm. The trial court treated the gradual injury as two separate injuries and awarded permanent partial disability benefits based on 38 percent to the right arm and 30 percent to the left arm. As discussed below, the panel has concluded the award should be modified, by converting it to one based on 34 percent to both arms, and affirmed. http://www.tba.org/tba_files/TSC_WCP/bondorothy.wpd HAE SUK HOLDER v. WHIRLPOOL CORPORATION Court:TSC - Workers Comp Panel Attorneys: David T. Hooper, Brentwood, Tennessee for the appellant, Whirlpool Corporation. Christopher K. Thompson, Murfreesboro, Tennessee for the appellee, Hae Suk Holder. Judge: CATALANO 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 defendant, Whirlpool Corporation, appeals the judgment of the Chancery Court of Rutherford County where pursuant to Tennessee Code Annotated S 50-6-241(a)(2) the trial court allowed reconsideration of the plaintiff's industrial disability and found that the plaintiff was entitled to receive an additional award of six percent (6%) to the body as a whole in addition to the previous award of eight percent (8%) made in accordance with the original settlement order between the parties filed in the Chancery Court of Davidson County. The defendant submits that the trial court erred in finding that the plaintiff, who was terminated for personal misconduct, was entitled to reconsideration pursuant to Tennessee Code Annotated S 50-6-241(a)(2), resulting in enhancement of a prior disability. Under the recent ruling of the Tennessee Supreme Court in Freeman v. Marco Transportation Co., 27 S.W.3d 909 (Tenn. 2000), in which the Court held that a request for reconsideration brought pursuant to Tennessee Code Annotated S 50-6-241(a)(2) must be filed in the same court that exercised jurisdiction over the original workers' compensation claim, we do not reach the issue raised by the defendant and find that the judgment of the trial court should be reversed and the cause dismissed without prejudice. Under the savings statute, the plaintiff can refile her request for reconsideration in the Chancery Court of Davidson County within one year of the date of the judgment that is the final disposition in this case. http://www.tba.org/tba_files/TSC_WCP/holderhaesukopn.wpd STATE OF TENNESSEE v. CHARLES ROY COLE Court:TCCA Attorneys: J. Colin Morris, Jackson, Tennessee, for the appellant, Charles Roy Cole. Paul G. Summers, Attorney General & Reporter; Laura E. McMullen, Assistant Attorney General; and Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Charles Roy Cole, was charged with aggravated assault and rape of a child. He was acquitted on the first charge and convicted on the second. The trial court imposed a sentence of 20 years. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that the trial court erred in its jury instructions regarding admissions against interest. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/colecharlesr.wpd STATE OF TENNESSEE v. SHIRLEY DAVIS Court:TCCA Attorneys: John Sorrels, Memphis, Tennessee, for appellee, Shirley Davis. Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General; William L. Gibbons, District Attorney General; Janet L. Shipman, Assistant District Attorney, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On December 3, 1998, a Shelby County Grand Jury indicted Shirley Davis, the Defendant and Appellant, for aggravated robbery. Following a jury trial, the Defendant was convicted as charged. After a subsequent sentencing hearing, the trial court sentenced the Defendant to serve nine years incarceration. On appeal, the Defendant claims that the trial court erroneously enhanced her sentence. Although we find that the trial court erroneously applied a statutory enhancing factor, our de novo review reveals the existence of an applicable enhancing factor that was not applied by the trial court. This enhancement factor amply justifies the sentence imposed. Accordingly, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/davisshirley.wpd STATE OF TENNESSEE v. TERRY A. DOMINY Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the Appellee, Terry A. Dominy. Michael E. Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and James G. White, II, Assistant District Attorney General, for the Appellant, State of Tennessee. Judge: WITT First Paragraph: The State of Tennessee appeals the Lawrence County Circuit Court's dismissal of the indictment that charged the defendant, Terry A. Dominy, with three counts of rape of a spouse. See Tenn. Code Ann. S 39-13-507(b) (1991). The trial court based the dismissal upon the state's failure to join the charges with aggravated rape charges contained in a previous indictment. See Tenn. R. Crim. P. 8(a). The defendant had been convicted on the previous aggravated rape charges, but ultimately our supreme court reversed these convictions and dismissed the charges, after which the state then brought the spousal rape charges. See State v. Dominy, 6 S.W.3d 472 (Tenn. 1999). On appeal, the state argues that the mandatory joinder provisions of Rule 8 are inapplicable when the prosecutor was guilty of no willful or deliberate misconduct in not joining the charges in the earlier indictment. We agree with the trial court and affirm the dismissal of the spousal rape indictment. http://www.tba.org/tba_files/TCCA/dominyta.wpd STATE OF TENNESSEE v. WILLIAM M. FAHR Court:TCCA Attorneys: N. Craig Brigtsen, III and Terry D. Smart, Memphis, Tennessee, for the appellant, William M. Fahr. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; Patience R. Branham and Daniel R. Woody, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant was indicted by a Shelby County grand jury on the charge of rape of a child. Pursuant to a negotiated plea agreement, defendant entered a plea of nolo contendere to sexual battery and received a two-year sentence. The issue of how his sentence should be served was submitted to the trial court. Upon our review of the record, we conclude that it is necessary to remand for a new sentencing hearing since the trial court relied upon the defendant's failure to make a public confession at a church in determining the sentence. http://www.tba.org/tba_files/TCCA/fahrwm.wpd STATE OF TENNESSEE v. FREDDIE L. KING Court:TCCA Attorneys: Freddie L. King, Henning, Tennessee, Pro Se. Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and John W. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant pled guilty to several offenses in 1992, receiving an agreed effective sentence of twenty-four years. He subsequently filed for post-conviction relief, which was denied after a hearing. The Defendant filed a second post-conviction petition which the trial court summarily dismissed. The Defendant now appeals; we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/kingfl.wpd STATE OF TENNESSEE v. THOMAS LEON LEWIS, II Court:TCCA Attorneys: Daniel J. Taylor, Jackson, Tennessee, for the appellant, Thomas Leon Lewis, II. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Pursuant to a negotiated plea agreement, the defendant pled guilty to contributing to the delinquency of a minor, a Class A misdemeanor, and unlawful use of an altered vehicle registration plate, a Class E felony. He received concurrent sentences of eleven months, twenty-nine days and two years, respectively, to be served on probation. The defendant appeals the trial court's denial of his request for judicial diversion. Upon our review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lewistlii.wpd STATE OF TENNESSEE v. WINSLOW B. ROBERTS Court:TCCA Attorneys: Garland Erguden (on appeal) and Thomas P. Pera (at trial), Memphis, Tennessee, for the appellant, Winslow B. Roberts. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Janet L. Shipman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Winslow B. Roberts, was found guilty by a Shelby County jury of two counts of especially aggravated kidnapping and two counts of aggravated robbery. The Defendant was sentenced to twenty years on each count of especially aggravated kidnapping, with the terms to be served concurrently, and ten years on each count of aggravated robbery, with the terms to be served concurrently. The trial court ordered that the Defendant's sentences for especially aggravated kidnapping be served consecutively to his sentences for aggravated robbery, for an effective sentence of thirty years. The Defendant now appeals, arguing that there was insufficient evidence presented at trial to convict him of especially aggravated kidnapping and aggravated robbery. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/robertswb.wpd ANTHONY J. ROBINSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Anthony J. Robinson, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and E. Greg Gilluly, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Petitioner was originally convicted by a Shelby County jury of aggravated rape, a Class A felony, and sentenced to thirty-seven years as a Range II offender. Petitioner now appeals the denial of his petition for writ of habeas corpus in which he alleged his indictment was void. Upon our review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/robinsonaj.wpd Preparation of Forms; Practice of Law Regarding Probate Date: May 7, 2001 Opinion Number: 01-071 http://www.tba.org/tba_files/AG/OP71.pdf Senate Joint Resolution 110 Date: May 8, 2001 Opinion Number: 01-072 http://www.tba.org/tba_files/AG/OP72.pdf "TDOT Appreciation Day" Date: May 8, 2001 Opinion Number: 01-073 http://www.tba.org/tba_files/AG/OP73.pdf Constitutionality of Proposed Identity Theft Legislation Date: May 8, 2001 Opinion Number: 01-074 http://www.tba.org/tba_files/AG/OP74.pdf Authority of Metropolitan Nashville Police Department to Provide Law Enforcement Officers or Lease Equipment to a Third Party Date: May 8, 2001 Opinion Number: 01-075 http://www.tba.org/tba_files/AG/OP75.pdf Contribution of city funds to special school district Date: May 8, 2001 Opinion Number: 01-076 http://www.tba.org/tba_files/AG/OP76.pdf Constitutionality of HB 123/SB 019 Date: May 8, 2001 Opinion Number: 01-077 http://www.tba.org/tba_files/AG/OP77.pdf Community-Based Screening for Mental Health Services Date: May 8, 2001 Opinion Number: 01-078 http://www.tba.org/tba_files/AG/OP78.pdf De novo trials in Circuit Court of convictions in General Sessions Court Date: May 8, 2001 Opinion Number: 01-079 http://www.tba.org/tba_files/AG/OP79.pdf PLEASE FORWARD THIS E-MAIL! 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