May 30, 2001 Volume 7 — Number 098 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 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 04 New Opinion(s) from the Tennessee Court of Appeals 04 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 CONSUMER ADVOCATE DIVISION, ON BEHALF OF TENNESSEE CONSUMERS v. TENNESSEE REGULATORY AUTHORITY AND BELLSOUTH TELECOMMUNICATIONS, INC. Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor General; and L. Vincent Williams, Assistant Attorney General, for the appellant, Consumer Advocate Division. J. Richard Collier and Julie Woodruff, Nashville, Tennessee, for the appellee, Tennessee Regulatory Authority. Guy M. Hicks and Patrick W. Turner, Nashville, Tennessee, for the appellee, BellSouth Telecommunications, Inc. Judge: LILLARD First Paragraph: This is an appeal from an order by the Tennessee Regulatory Authority. The Tennessee Regulatory Authority denied the Consumer Advocate Division's request for a declaratory order as to the applicability of Tennessee Code Annotated SS 65-5-208(a) and 65-5-209 to a telephone company's proposed tariff. It also denied the Consumer Advocate Division's request for a declaratory order as to the applicability of a previous order by the Authority approving the telephone company's application for price regulation, dismissed its claim for breach of contract, and denied its request for injunctive relief. Consequently, the proposed tariff was approved. The Consumer Advocate Division appeals. We affirm. http://www.tba.org/tba_files/TCA/consumeradvocate.wpd BILLY HEMBREE, JR., et al. v. STATE OF TENNESSEE Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Michael W. Catalano, Associate Solicitor General and David T. Whitefield, Senior Counsel, Nashville, Tennessee, for the appellant, State of Tennessee. William B. Raiford, III, Clarksdale, Mississippi, for the appellees, Billy D. Hembree, Sr., and Sharon Hembree, Wrongful Death Beneficiaries and Natural Parents of Billy Hembree, Jr., Deceased; Richard Harding and Kathryn Harding, Wrongful Death Beneficiaries and Natural Parents of Misty Harding, Deceased; Robert L. Huff, Jr., and David Ross. Judge: CAIN First Paragraph: Lester Peavyhouse, having been found not guilty by reason of insanity after an April 1985 attack upon his sister with a hatchet, was committed by the Circuit Court of Stewart County to the Middle Tennessee Mental Health Institute ("MTMHI") in Nashville for involuntary care and treatment on March 1, 1988. In January 1989, he was transferred from MTMHI to Luton Community Mental Health Center subject to a mandatory outpatient therapy plan. In July 1989, he was transferred to Vanderbilt Mental Health Center Adult Outpatient Services section. Ultimately, Peavyhouse enrolled as a student at Austin Peay State University with out patient therapy through Harriet Cohn Center in Clarksville. On October 31, 1991, Peavyhouse entered a private residence in Clarksville with a .410 gauge shotgun and shot to death Misty Harding and Billy Hembree, seriously wounded David Ross and Robert Huff, and committed aggravated assaults upon Charity Baggett, Deanna Shepherd, Walter Scott Palmer, and Jeffery Underwood. Peavyhouse was convicted on all charges and sentenced to two consecutive life terms in prison plus fifty-six years. The estates of Harding and Hembree, together with the other victims of the October 31, 1991 assaults, brought suit against the State of Tennessee before the Tennessee Claims Commission charging MTMHI with negligence in the January 23, 1989 release of Peavyhouse from a secure treatment facility. The Tennessee Claims Commission rendered judgment in favor of the claimants and the State of Tennessee Appeals. We affirm the judgment of the Claims Commission. http://www.tba.org/tba_files/TCA/hembree.wpd B. GAYDEN PATE, et al. v. C & S OF TENNESSEE, INC., et al. Court:TCA Attorneys: Jerry V. Smith, Dickson, Tennessee, for the appellants, C & S of Tennessee, Inc. and Mark A. Cunningham. Michael M. Castellarin, Nashville, Tennessee, for the appellees, B. Gayden Pate and wife, Marjorie Pate. Judge: CANTRELL First Paragraph: The plaintiffs signed a contract for the purchase of a new home, conditional on their ability to sell their present home and to obtain a mortgage loan. They gave the defendant developer $30,000 as earnest money. When they were unable to sell their home, they asked for the return of the earnest money. The defendant refused, and the purchasers sued. The trial court ordered the defendant to return the $30,000. We affirm, but we modify the court's judgment to assess interest and attorney fees against the sellers. http://www.tba.org/tba_files/TCA/patebg.wpd JOHNNIE ROBERTS v. CARL DOUGLAS ENGLAND Court:TCA Attorneys: John Acuff, John Nisbet, and Michael H. Knowlton, Cookeville, Tennessee, for the appellant Carl Douglas England. Larry B. Stanley, Jr., McMinnville, Tennessee and Diana C. Benson, Murfreesboro, Tennessee, for the appellee, Johnnie Roberts. Judge: COTTRELL First Paragraph: This is an appeal from a bench trial involving a boundary dispute between the parties. Testimony of the parties, other witnesses, the deeds, and the surveys of each party's surveyor were admitted into evidence. Considering all of the testimony and documentation submitted, the trial court held that the boundary as stated by the plaintiff's surveyor was the proper boundary. The sole issue on appeal is whether the plaintiff failed to join a third party adjoining land owner as an indispensable and necessary party, thereby resulting in the failure of the trial court to properly resolve fully and completely the dispute. For the reasons below, we vacate the judgment of the trial court and remand. http://www.tba.org/tba_files/TCA/robertsj.wpd RICHARD LEE FRANKLIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Allison M. Barker, Crossville, Tennessee, for the appellant, Richard Lee Franklin. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William E. Gibson, District Attorney General; Anthony J. Craighead, Assistant District Attorney General; and Ben Fann, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: In his original trial, the Petitioner, Richard Lee Franklin, was convicted of first degree murder by a Cumberland County jury for the death of David Kirkland. Due to procedural errors at Petitioner's first trial, the trial court granted Petitioner's motion for a new trial. Petitioner was retried and the jury convicted him of second degree murder. The trial court sentenced the Petitioner to twenty-two years of incarceration. State v. Richard Lee Franklin, No. 03C01-9706-CR-00219, 1998 WL 458580, at *1, Cumberland County (Tenn. Crim. App., Knoxville, August 10, 1998), perm. to appeal denied (Tenn. 1999). Subsequently, Petitioner filed a petition for post-conviction relief which was denied. In this appeal as of right, he asserts that the post-conviction court erred in finding his trial counsel's performance to be effective. Specifically, the appellant contends that trial counsel was ineffective for (1) failing to investigate and present witnesses that would support a defense of self- defense; (2) for failing to discuss trial strategies and defenses with the Petitioner; and (3) for failing to request an instruction on self-defense. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/franklinrl.wpd JOHNNY WAYNE GARNER and RICHARD DARRELL MILLER v. STATE OF TENNESSEE Court:TCCA Attorneys: Timothy P. Underwood, Pulaski, Tennessee, for the appellant, Johnny Wayne Garner. Leslie Curry-Johnson, Nashville, Tennessee, for the appellant, Richard D. Miller. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Richard H. Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Both Petitioners appeal from the post-conviction court's denial of their post-conviction relief petitions. The Petitioners claim ineffective assistance of counsel at trial and on appeal for failing to object to an erroneous jury instruction and failing to raise the erroneous jury instruction in their direct appeal. The post-conviction court found the jury instruction to be erroneous; however, it denied relief. After a thorough review, we conclude that the jury instruction was erroneous and prejudicial to the Petitioners and find that trial and appellate counsel were ineffective for failing to object to the erroneous jury instruction at trial and for failing to raise it on direct appeal. Accordingly, we reverse the post-conviction court's denial of relief and remand the Petitioners' cases to the trial court for new trials on the issues of aggravated arson. http://www.tba.org/tba_files/TCCA/garnermiller.wpd STATE OF TENNESSEE v. CHARLES ARTHUR REEVES Court:TCCA Attorneys: Michael R. Jones, District Public Defender, and Charles S. Bloodworth, Assistant Public Defender, for the appellant, Charles Arthur Reeves. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Lance A. Baker, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appealed the trial court's loss of jurisdiction when he was transferred into the custody of the Department of Correction. The issue is now moot. Accordingly, this appeal is dismissed. http://www.tba.org/tba_files/TCCA/reevesca.wpd STATE OF TENNESSEE v. WILLIAM R. STEVENS Court:TCCA Attorneys: Brock Mehler and Michie Gibson, Jr., Nashville, Tennessee, for the appellant, William R. Stevens. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer Smith, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Tom Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, William R. Stevens, was convicted of two counts of first degree premeditated murder and one count of especially aggravated robbery, arising out of the deaths of his wife and mother-in-law. For each of his murder convictions, he was sentenced to death. He now appeals as of right, raising the following eleven issues for our review: (1) whether it was error to limit the testimony of crime-scene expert Gregg McCrary; (2) whether it was error to exclude evidence which tended to show that Corey Milliken had an independent motive to commit the murders; (3) whether it was error to admit a redacted version of Sandi Stevens' diary; (4) whether the trial court failed to apply the hearsay and other evidentiary rules in an evenhanded manner; (5) whether the hearsay statements of Corey Milliken to Sarah Suttle should have been excluded as not being "in furtherance of the conspiracy"; (6) whether the cumulative effect of all errors at trial violated the Defendant's right to due process of law; (7) whether instructing the jury that it must agree unanimously in order to impose a life sentence and prohibiting it from being told the effect of a non-unanimous verdict violates the Eighth and Fourteenth Amendments; (8) whether the Tennessee Code Annotated section 39-13-204(i)(4) aggravating circumstance fails to narrow the class of death-eligible defendants in violation of the Eighth and Fourteenth Amendments; (9) whether the failure to articulate meaningful standards for proportionality review mandated by Tennessee Code Annotated section 39-13-206 violates the Defendant's right to due process under the Fourteenth Amendment; (10) whether the unlimited discretion vested in the prosecutor as to whether or not to seek the death penalty violates the Eighth and Fourteenth Amendments; and (11) whether the death penalty is imposed in a discriminatory manner in violation of the Eighth and Fourteenth Amendments. After a thorough review of the record and the relevant legal authorities, we find no reversible error on the part of the trial court. Accordingly, we affirm the Defendant's convictions and his sentences of death. http://www.tba.org/tba_files/TCCA/stevenswr.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! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? 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