June 5, 2001
Volume 7 — Number 102

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):
01 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
07 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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

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Lucian T. Pera
Editor-in-Chief, TBALink



J. Thomas Marshall, Clinton, Tennessee, for the appellant, Curtis
Jason Ely.

William C. Talman, Knoxville, Tennessee, for the appellant, Laconia
Lamar Bowers.

Michael E. Moore, Solicitor General, and Gordon W. Smith, Associate
Solicitor General, Nashville, Tennessee, for the appellee, State of


First Paragraph:

This is a consolidated appeal from the defendants' convictions in the
Criminal Courts of Anderson County and Knox County, respectively. 
Defendant Ely was originally charged with one count of premeditated
murder and one count of felony murder; defendant Bowers was charged
with two counts of felony murder.  In Ely's case, the State nolle
prossed the premeditated murder count upon the conclusion of the
proof, and the trial court refused to instruct any lesser-included
offenses to felony murder.  He was convicted as charged of felony
murder and sentenced to life imprisonment.  In defendant Bowers's
case, the trial court dismissed the charges of felony murder at the
conclusion of the proof and, over his objection, instructed the jury
on the lesser offenses of second degree murder, reckless homicide, and
criminally negligent homicide.  Bowers was convicted of second degree

On appeal to the Court of Criminal Appeals, Ely argued that the
offenses of second degree murder, reckless homicide, criminally
negligent homicide, facilitation of felony murder, and accessory after
the fact to felony murder were all lesser-included offenses of felony
murder and should have been instructed.  A majority of the
intermediate court held that accessory after the fact was not a
lesser- included offense of felony murder.  However, assuming that the
other lesser offenses were included, the Court of Criminal Appeals
determined that no error occurred because the evidence did not support
an inference of guilt of any of the other lesser offenses.  In his
direct appeal, Bowers argued that second degree murder was not a
lesser-included offense of felony murder and should not have been
charged.  The intermediate court held that second degree murder was a
lesser-included offense of felony murder and that it was properly
instructed in his case.

We granted review in this consolidated appeal to determine several
issues: (1) whether there are any lesser-included offenses to felony
murder;  (2) if there are no lesser-included offenses, whether the
conviction in Bowers's case is therefore invalid;  (3) if there are
lesser-included offenses, whether failure to instruct such offenses
was error in Ely's case; and (4) whether any such error was harmless.
We also take the opportunity in this case to clarify the harmless
error standard, which has been the subject of some confusion since our
decision in State v. Williams, 977 S.W.2d 101, 104-06 (Tenn. 1998). We
conclude that the offenses of second degree murder, reckless homicide,
and criminally negligent homicide are lesser-included offenses of
felony murder, and therefore, instruction on these offenses in
Bowers's case was not error.  In Ely's case, we find that some
evidence exists that reasonable minds could accept as to several
lesser-included offenses, and therefore, the failure to instruct such
offenses was error.  Because we conclude that such error was not
harmless beyond a reasonable doubt, we reverse Ely's conviction and
remand his case for a new trial.


ROBIN M. BERRY, et al. v. WILSON COUNTY BOARD OF ZONING APPEALS, et al. Court:TCA Attorneys: Michael R. Jennings, Lebanon, for Appellants James H. Kinnard, Lebanon, for Appellees Judge: HIGHERS First Paragraph: The Wilson County Board of Zoning Appeals denied Petitioner's request to establish a flea market or a gift shop/deli shop in property zoned C-3 (Highway Commercial). The Board denied Petitioner's request, finding that the Petitioner's proposed businesses were neither permitted uses nor uses permissible on appeal. Petitioner appealed the decision of the Board of Zoning Appeals to the chancery court. The chancery court reversed the decision of the Wilson County Board of Zoning Appeals. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/berryrobinm.wpd
DAVID BRITT v. DONAL CAMPBELL, et al. Court:TCA Attorneys: David Britt, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Dawn Jordan, Assistant Attorney General, for the appellees, Donal Campbell, Ricky Bell, Tommy Vance and Tim Terry. Judge: CANTRELL First Paragraph: A prison inmate escaped from custody and was recaptured. After a disciplinary hearing, the Department of Correction extended his Release Eligibility Date so that he would have to serve an additional 20% of his sentence before being considered for parole. The prisoner filed a Petition for Declaratory Judgment, contending that the Department's action violated statutory and constitutional law. The trial court dismissed the Petition. We affirm. http://www.tba.org/tba_files/TCA/brittd.wpd
JULIA SLEDGE LEACH BRYAN v. JAMES WENDELL LEACH Court:TCA Attorneys: Wm. Kennerly Burger, Murfreesboro, Tennessee, Gregory D. Smith, Nashville, Tennessee, for the appellant, James Wendell Leach. James DuBois, Columbia, Tennessee, John A. Day, Nashville, Tennessee, for the appellee, Julia Sledge Leach Bryan. Judge: COTTRELL First Paragraph: This case involves post-divorce disputes over alimony and child support and issues of contempt of court. The father commenced this appeal after the trial court declined to modify or terminate his alimony obligation and awarded the mother more than $50,000 in child support arrearages and, later, found the father in contempt of court and ordered him to pay a fine of $100 per day until all judgments were paid to the mother. On appeal, the father argues that his alimony obligation should have terminated or decreased, that a portion of his child support payments should be placed in trust for the benefit of the children, and that the trial court erred by fining him for contempt. We affirm the trial court's orders but modify the fine imposed upon the father. http://www.tba.org/tba_files/TCA/bryanleachj.wpd
IN THE MATTER OF: C.L.H., DOB, 7/23/95 AND L.L.H., JR., DOB, 9/12/97 Court:TCA Attorneys: Timothy V. Potter, Dickson, Tennessee, for appellant, J.M.S. J. Reese Holley, Charlotte, Tennessee, for the appellant, L.L.H. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Department of Children's Services. Judge: CANTRELL First Paragraph: The juvenile court of Dickson County granted a petition to terminate the parental rights of the natural parents of two children. The parents raise several issues on appeal, including (1) the juvenile court's refusal to grant a continuance, and (2) the court's conclusion that the grounds for termination were proved by clear and convincing evidence. We affirm the termination of parental rights. http://www.tba.org/tba_files/TCA/clhandllhjr.wpd
FRANKLIN COUNTY, TENNESSEE v. THE TOWN OF MONTEAGLE, TENNESSEE, et al. Court:TCA Attorneys: William C. Killian, Jasper, Tennessee, and David B. Hamilton, Knoxville, Tennessee, for the appellant, The Town of Monteagle, Tennessee and Michael Yarworth, Judith Gunn, Maxine Kemmerly, Thomas Moore, Sr., and Glenn King, in their official capacities as Members of the Grundy County Election Commission. Ben P. Lynch, Winchester, Tennessee, and Carrol D. Kilgore, Nashville, Tennessee, for the appellee, Franklin County, Tennessee. Judge: INMAN First Paragraph: This is an annexation by referendum case. Monteagle is located in Grundy County. Its corporate limits extend to Franklin County. Interested residents of the area sought to be annexed in Franklin County petitioned Monteagle to be annexed. Monteagle adopted a Resolution for the referendum. Nineteen out of twenty eligible voters favored annexation. Franklin County filed a complaint for injunctive relief, which was granted upon a finding that the Resolution was not properly published. Monteagle appealed, but in the interim, adopted another Resolution for a referendum. The voters again favored annexation. The County challenged the second referendum by a Rule 52 motion alleging that Monteagle repealed the Resolution for the second referendum thus making it a nullity. http://www.tba.org/tba_files/TCA/franklincounty.wpd
JAMES L. KIRCHNER v. JACQUELINE KIRCHNER Court:TCA Attorneys: Roland Robert Lenard, Clarksville, Tennessee, for the appellant, Jacqueline Kirchner. Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellee, James L. Kirchner. Judge: CANTRELL First Paragraph: The trial court granted the husband a divorce, divided his military pension between the parties, and awarded the wife rehabilitative alimony. The wife argued on appeal that she should have been given a greater share of the husband's pension, and that the alimony award was inadequate. We affirm the property division and the amount of the alimony award, but remand this case to the trial court for a determination of whether a change of circumstances would entitle the wife to an extension in the duration of the award. http://www.tba.org/tba_files/TCA/kirchnerjl.wpd
WESSINGTON HOUSE APARTMENTS v. ASHLEY CLINARD Court:TCA Attorneys: David M. Pollard, Jr., Goodlettsville, Tennessee, for the appellant Ashley Clinard. Thomas F. Bloom, Nashville, Tennessee, for the appellee, Wessington House Apartments. Drake Holliday, Legal Aid Society of Middle Tennessee, Nashville, Tennessee, and David Kozlowski, Legal Services of South Central Tennessee, Inc., Tullahoma, Tennessee for the Amicus Curiae, Tennessee Association of Legal Services. Judge: COTTRELL First Paragraph: Appellee, a privately owned, government subsidized apartment complex filed an unlawful detainer action seeking to evict appellant, Ashley Clinard, after a small amount of marijuana was found in her apartment. A guest admitted to having the marijuana despite Ms. Clinard's expressed prohibition against drugs in her apartment. The circuit court entered a judgment for possession of the premises against the defendant, interpreting provisions of the lease, one required by federal law and the other allowed by Tennessee law, to permit eviction of a tenant for drug related actions of a guest, even without the knowledge of the tenant. Based upon the Tennessee Supreme Court's decision in Memphis Housing Authority v. Thompson, 38 S.W.3d 504 (Tenn. 2001), holding that a tenant may not be evicted for drug related criminal activities of a guest, under federally-required lease provisions, unless the tenant knew or should have known of the activity and failed to take reasonable steps to prevent it, and because the evidence shows that Ms. Clinard had no reason to know that her guest had marijuana in her apartment, we conclude the eviction based on that provision must be reversed. Additionally, because we find that temporary mere presence of a small amount of marijuana does not constitute "a violent act" or "a real and present danger to the health, safety or welfare of the life or property of other tenants or persons," we conclude that state law does not authorize the summary eviction. Accordingly, we reverse the trial court. http://www.tba.org/tba_files/TCA/wessington.wpd
MICHAEL RUSSO v. STATE OF TENNESSEE Court:TCCA Attorneys: Jesse N.H. Bacon, Madison, Tennessee, for the appellant, Michael Russo. Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of counsel at trial. The petitioner was convicted by a jury of first degree murder for shooting his wife to death, and sentenced to life imprisonment. In his post-conviction petition, the petitioner asserted a number of grounds for relief, including ineffective assistance of counsel. The post-conviction court denied the petition, finding, with regards to the ineffective assistance of counsel claim, that many of the petitioner's allegations did not constitute a deficiency in counsel's performance, and further, that the petitioner had failed to meet his burden of showing that any of the alleged deficiencies of counsel prejudiced the outcome of his case. After a thorough review of the record, we reverse the judgment of the post-conviction court as to the effect of trial counsel's misplacing of photographs which were not located until after the trial and the post-conviction hearing and remand for an additional hearing. As to the other issues, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/russom.wpd
STATE OF TENNESSEE v. LONNIE TURNER Court:TCCA Attorneys: Scott Daniel, Murfreesboro, Tennessee, for the appellant, Lonnie Turner. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; John W. Price, Assistant District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from his convictions for first degree felony murder and aggravated rape, for which he received consecutive sentences of life and twenty-two years, respectively. The defendant contests the sufficiency of the evidence, whether certain statements which he made to investigators were taken in violation of his rights, the validity of the search warrant for samples of his hair and blood, certain evidentiary and procedural rulings of the trial court, the ordering of consecutive sentences, and the denial of his motion for a new trial based upon newly discovered evidence. We affirm the judgments of conviction. http://www.tba.org/tba_files/TCCA/turnerl.wpd
Fingerprinting -- Costs of Electronic Equipment Date: May 24, 2001 Opinion Number: 01-088 http://www.tba.org/tba_files/AG/OP88.pdf

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