June 18, 2001 Volume 7 — Number 110 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 05 New Opinion(s) from the Tennessee Court of Appeals 02 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink STATE OF TENNESSEE v. CURTIS JASON ELY and STATE OF TENNESSEE v. CURTIS JASON ELY Court:TSC Attorneys: 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 Tennessee. Judge: BARKER 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 murder. 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. http://www.tba.org/tba_files/TSC/elybowersvevised.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0618.wpd ESTATE OF NAN FRANCIS v. KARL FRANCIS Court:TCA Attorneys: Charles Galbreath, Nashville, Tennessee, for the appellant, Estate of Nan Francis. Robert L. Perry, Jr., Ashland City, Tennessee, for the appellee, Karl Francis. Judge: KOCH First Paragraph: This appeal involves a dispute between a widow and her stepson regarding the disposition of a jointly owned certificate of deposit. After her stepson liquidated the certificate of deposit and used the proceeds to obtain another certificate of deposit in his own name, the widow filed suit in the Chancery Court for Cheatham County seeking her share of the funds. The stepson filed a counterclaim, alleging that the widow had contributed to his father's death by failing to provide needed medical care and seeking reimbursement for his father's funeral expenses. The widow died while the suit was pending, and her estate was substituted as a party. After dismissing the stepson's wrongful death claim, the trial court determined that the widow's estate and her stepson should receive equal shares of the proceeds of the account remaining after the payment of a joint debt of the widow's husband and her stepson and that the widow's estate should reimburse the stepson for the expenses he incurred in connection with his father's funeral. On this appeal, the widow's estate asserts that the trial court erred by ordering that the funds in the account be used to repay the joint debt and by ordering it to reimburse the stepson for his father's funeral expenses. We have determined that the trial court properly distributed the proceeds of the deposit account. However, we have also determined that the trial court erred by directing the widow's estate to reimburse the stepson for his father's funeral expenses. http://www.tba.org/tba_files/TCA/francisn.wpd BILLY RAYMOND GEORGE v. MISTY DRIVER GEORGE MULLICAN Court:TCA Attorneys: Daryl M. South, Murfreesboro, Tennessee, for the appellant, Misty Driver George Mullican. J. G. Mitchell, III and William E. Tillery, Murfreesboro, Tennessee, for the appellee, Billy Raymond George. Judge: FARMER First Paragraph: This appeal arises from a child custody action. After divorce, Mother was awarded custody of Child. Father later filed a petition for contempt charging that Mother was denying him visitation. Mother denied these charges and counter-filed claiming that Father had failed to meet his support obligations. While these matters were pending, Mother filed a report with the Department of Children's Services that Father had sexually molested Child. Mother later admitted these charges to be false, and as a result, Father gained temporary custody of Child. Mother later filed this petition requesting the return of Child to her custody. The trial court refused, instead finding that Father was the more fit parent and awarding him permanent custody. Mother appealed this decision. We affirm. http://www.tba.org/tba_files/TCA/georgebilly.wpd VIRNIE M. FULKS v. J. HULAN WATSON, SUPERINTENDENT OF SCHOOLS, ET AL. Court:TCA Attorneys: Robert L. Huskey, Manchester, Tennessee, for the appellant, Virnie M. Fulks. George H. Rieger, II, Nashville, Tennessee, for the appellees, J. Hulan Watson, Superintendent of Schools and the Rutherford County Board of Education. Judge: COTTRELL First Paragraph: This declaratory judgment action was filed by a dissatisfied school system employee who was transferred from his position as Manager of Property, Plant, and Maintenance to the position of maintenance worker and ultimately was informed that he would not be rehired. The employee claimed these employment actions were improper because he was tenured and certified. He also sought additional compensation or compensatory time for extra hours he worked. The trial court determined that the employee was not tenured, could be transferred, and was entitled to only a limited amount of compensatory time. The court also found that the superintendent had authority not to renew the employment with proper notice, but that sufficient notice of nonrenewal had not been provided. We affirm. http://www.tba.org/tba_files/TCA/gulksv.wpd DONNA BROWN MARTIN v. MARY LYNN COLEMAN, et al. Court:TCA Attorneys: David D. Wolfe, Dickson, Tennessee, for the appellant, Mary Lynn Coleman, et al. J. P. Bradley, Waverly, Tennessee, for the appellee, Donna Brown Martin. Judge: COTTRELL First Paragraph: This is a dispute over real property which was the subject of an installment land sales contract between the parties and over the proceeds of an insurance policy after the dwelling on the property burned. The trial court ordered that the title to the property be divested from the Seller and be vested in the Buyer and that the remaining proceeds of the insurance policy be awarded to Buyer after all overdue payments of taxes and insurance and the incurred clean up costs were deducted. The Seller appeals on the grounds that the evidence was contrary to the judgment and that the plaintiff had breached the contract and is entitled to neither the property nor the insurance proceeds. For the reasons below, we affirm the judgment as modified. http://www.tba.org/tba_files/TCA/martind.wpd Holly Lynn Coleman Paul v. Thomas Frazier Paul Court:TCA Attorneys: Selma Cash Paty, Chattanooga, Tennessee, for the Appellant Holly Lynn Coleman Paul. Randy G. Rogers, Athens, Tennessee, for the Appellee Thomas Frazier Paul. Judge: SWINEY First Paragraph: Holly Lynn Coleman Paul ("Wife") filed a complaint seeking a divorce from Thomas Frazier Paul ("Husband") on the basis of inappropriate marital conduct or, in the alternative, irreconcilable differences. Husband filed a counterclaim seeking a divorce on the ground of inappropriate marital conduct. The Trial Court granted Husband the divorce, divided the marital property which the parties could not divide by agreement prior to trial, awarded custody of the two minor children to Husband, and granted visitation to Wife. Wife appeals challenging the Trial Court's determinations on all of these issues. We affirm as modified. http://www.tba.org/tba_files/TCA/paulhl.wpd STATE OF TENNESSEE v. CHRISTOPHER LAMONT KELSO Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); Charles M. Corn, District Public Defender; and William C. Donaldson, Assistant Public Defender (at trial and on appeal), for the Appellant, Christopher Lamont Kelso. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Nashville, Tennessee; Jerry N. Estes, District Attorney General; and Shari Lynn Tayloe, Assistant District Attorney General for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The grand jury for Monroe County charged the defendant with one count of possession of cocaine with intent to resell and one count of felony evading arrest. The defendant went to trial, and the jury acquitted him of the narcotics offense but found him guilty of Class D evading arrest. The trial court sentenced the defendant as a Range II, multiple offender, to five years incarceration in the Department of Correction. In this direct appeal, the defendant challenges the sufficiency of the convicting evidence, the state's misuse of his post-arrest silence, the flight instruction given to the jury, and his classification as a Range II offender. Unpersuaded by the defendant's contentions, we affirm the trial court's judgment and sentence. http://www.tba.org/tba_files/TCCA/kelsocl.wpd STATE OF TENNESSEE v. ONEAL SANFORD Court:TCCA Attorneys: Rebble S. Johnson, Cleveland, Tennessee, for the appellant, Oneal Sanford. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Carl F. Petty, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Oneal Sanford, was convicted by a jury in the Bradley County Criminal Court of one count of criminally negligent homicide, one count of especially aggravated robbery, one count of facilitation of attempt to commit especially aggravated robbery, one count of facilitation of aggravated assault, and one count of evading arrest. The appellant received a total effective sentence of twenty-six years incarceration. On appeal, the appellant raises the following issues for our review: (1) whether the evidence is legally sufficient to support all of the appellant's convictions, (2) whether the trial court erred by admitting hearsay testimony, and (3) whether the trial court erred in sentencing the appellant. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court and remand this case for a correction of the judgments. http://www.tba.org/tba_files/TCCA/sanfordoneal.wpd PLEASE FORWARD THIS E-MAIL! 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