July 3, 2001 Volume 7 — Number 121 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):   04 New Opinion(s) from the Tennessee Supreme Court 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 02 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 05 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. ADRIAN R. ARNETT Court:TSC Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Adrian R. Arnett. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Gordon W. Smith, Associate Solicitor General, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The defendant was convicted of two counts of aggravated rape, one count of especially aggravated kidnapping, one count of aggravated robbery, one count of aggravated assault, and one count of setting fire to personal property. The trial court, finding sufficient evidence in the record to support application of several enhancement factors, imposed a total effective sentence of fifty years. The defendant appealed, challenging the sufficiency of the convicting evidence, the trial court's application of certain enhancement factors, and the imposition of consecutive sentences. The Court of Criminal Appeals merged the two aggravated rape convictions into a single conviction of aggravated rape but otherwise affirmed each of the other convictions. The court also concluded that three enhancement factors were improperly applied by the trial court and that the mitigating factor contained in Tennessee Code Annotated section 39-13-305(b)(2) was applicable in this case. Nevertheless, the court determined that the remaining enhancement factors warranted the effective fifty year sentence imposed. We granted this appeal to determine whether the sentences are excessive. Based on our review of the record and applicable legal principles, we hold that: (1) evidence in the record supports a finding that the defendant in this case treated the victim with exceptional mental cruelty, Tenn. Code Ann. S 40-35-114(5); (2) expert proof is not required to determine whether psychological injuries inflicted on a victim are "particularly great," Tenn. Code Ann. S 40-35-114(6); (3) evidence other than proof of orgasm is required to establish that the defendant raped the victim to satisfy a desire for pleasure or excitement, Tenn. Code Ann. S 40-35- 114(7); (4) evidence does not support a finding that the crimes resulted in the victim's serious bodily injuries, Tenn. Code Ann. S 40-35-114(12). We affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/arnettadrian.wpd STATE OF TENNESSEE v. JOHN MICHAEL BANE WITH DISSENTING OPINION AND APPENDIX Court:TSC Attorneys: Joseph S. Ozment, Memphis, Tennessee, and Charles S. Kelly, Dyersburg, Tennessee, for the appellant, John Michael Bane. Michael E. Moore, Solicitor General; Amy L. Tarkington, Deputy Attorney General; William L. Gibbons, District Attorney General; and Thomas D. Henderson and Kevin R. Rardin, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: The defendant, John Michael Bane, was convicted of felony murder in the perpetration of a robbery for an offense committed in November of 1988. The jury originally imposed a sentence of death after it found that evidence of two aggravating circumstances - (1) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind and (2) the murder was committed during the perpetration of a felony - outweighed evidence of any mitigating factors. See Tenn. Code Ann. S 39-2-203(i)(5), (7) (1982). On appeal, this Court affirmed the conviction, but remanded for a new sentencing hearing because the jury's application of the felony murder aggravating circumstance duplicated the offense of felony murder in violation of article I, section 16 of the Tennessee Constitution. See State v. Bane, 853 S.W.2d 483 (Tenn. 1993). After a new sentencing hearing, the jury again imposed a sentence of death after it found that evidence of two aggravating circumstances - (1) the murder was "especially atrocious or cruel in that it involved torture and 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 or another - outweighed evidence of any mitigating factors. See Tenn. Code Ann. S 39-2-203(i)(5), (6) (1982). http://www.tba.org/tba_files/TSC/banejm_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/banejm_dis.wpd APPENDIX http://www.tba.org/tba_files/TSC/banejm_apx.wpd STATE OF TENNESSEE v. DERRICK SAYLES Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Peter M. Coughlan, Assistant Attorney General, William L. Gibbons, District Attorney General, James Wax, Assistant District Attorney General, and Patience Branham, Assistant District Attorney General, for the appellant, State of Tennessee. Jeffery S. Glatstein, Memphis, Tennessee, for the appellee, Derrick Sayles. Judge: BIRCH First Paragraph: Derrick Sayles was convicted of second degree murder. The Court of Criminal Appeals reversed the conviction and remanded the cause for a new trial on the ground that the trial court had erred in refusing to allow Sayles's counsel to probe the circumstances surrounding the bond reduction and the charge reduction accorded to the State's principal witness immediately after his testimony. The State appealed. We hold that the trial court erred when it refused to allow Sayles's counsel to probe the circumstances surrounding benefits granted to the witness after his testimony; Sayles's right to confrontation was therefore violated. We cannot hold that this violation was harmless beyond a reasonable doubt. This cause is therefore remanded to the trial court for an evidentiary hearing to allow Sayles's counsel to probe the circumstances resulting in the bond reduction and the charge reduction, both of which were granted after the witness had testified. The judgment of the Court of Criminal Appeals is therefore affirmed in part and reversed in part and this cause is remanded to the trial court for an evidentiary hearing. http://www.tba.org/tba_files/TSC/saylesd.wpd RANDALL D. WEBBER, Jr., et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Court:TSC Attorneys: James S. McDonald, Knoxville, Tennessee, for the appellant, State Farm Mutual Automobile Insurance Company. Roger L. Ridenour, Clinton, Tennessee, for the appellees, Randall D. Webber, Sr., and Lisa S. Webber, individually, and as parents and natural guardians of, Randall D. Webber, Jr. Judge: BARKER First Paragraph: The sole issue in this appeal is whether the plaintiff ratified an insurance policy that provided uninsured motorist coverage in amounts less than the policy's coverage for bodily injury liability. The plaintiff argued in the trial court that he did not authorize the lesser limits of uninsured motorist coverage contained in the contract and that the court should construe the policy to provide for coverage equivalent to the liability provided for bodily injury. The trial court granted the defendant's motion for summary judgment, finding that the plaintiff had ratified, and was bound by, the coverage limits as expressed in the contract. On appeal, the Court of Appeals reversed, finding that an issue of fact existed as to whether the plaintiff intended to ratify the lower uninsured motorist coverage limits. We granted permission to appeal and hold that the trial court correctly granted summary judgment to the defendant. The judgment of the Court of Appeals is reversed. http://www.tba.org/tba_files/TSC/webberrandall.wpd DOROTHY WILKINS v. THE KELLOGG COMPANY WITH DISSENTING OPINION Court:TSC - Workers Comp Panel Attorneys: Larry E. Killebrew and Brett T. Parks, Memphis, Tennessee, for the appellant, The Kellogg Company. B. J. Wade, Memphis, for the appellee, Dorothy Wilkins. Judge: DROWOTA First Paragraph: This workers' compensation case presents the question of how a "temporary partial disability" benefits award, as defined in Tennessee Code Annotated section 50-6-207(2), is calculated. The trial court held that an award is calculated based on the employee's "average weekly wage," which is the measure of benefits for the other categories of disability listed in the Workers' Compensation Law ("temporary total disability," "permanent total disability," and "permanent partial disability"). The employer appealed this decision to the Special Workers' Compensation Appeals Panel. The case was transferred to the full Supreme Court before the Panel handed down its decision. We now reverse the trial court and hold that the express terms of the statute indicate that a temporary partial disability award has a unique method of calculation, based on "the difference between the wage of the worker at the time of the injury and the wage such worker is able to earn in such worker's partially disabled condition." Tenn. Code Ann. S 50-6-207(2). This method does not include the average weekly wage definition. Under the correct calculation, the plaintiff in this case is not entitled to any temporary partial disability benefits. The award of $3,258.20 is accordingly reversed and the cause remanded to the trial court. http://www.tba.org/tba_files/TSC_WCP/wilkinsd_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC_WCP/wilkinsd_dis.wpd IN RE: JURY REFORM PILOT PROJECT ORDER Court:TSC - Rules Judge: ANDERSON First Paragraph: In 1998, the Tennessee Bar Association formed a Jury Reform Commission to evaluate Tennessee jury procedures. The Report of the Commission made a number of recommendations for improvement. In order to assess the potential effect of the recommendations, this Court has reviewed and considered a proposal for a Jury Improvement Pilot Project, which includes fourteen specific recommendations for the improvement of the jury system in the courts of the State of Tennessee. The Pilot Project is to be implemented in a small number of Pilot Project Courts throughout the State of Tennessee beginning September 1, 2001, and ending March 1, 2002. The impact of each recommendation will be studied during and after implementation and the results of the Pilot Program will be disseminated and made available to judges, lawyers, and citizens in Tennessee. http://www.tba.org/tba_files/TSC_Rules/juryrefpilproj_ord.wpd IN RE: AMENDMENT TO SUPREME COURT RULE 10, CODE OF JUDICIAL CONDUCT ORDER Court:TSC - Rules Judge: ANDERSON First Paragraph: Supreme Court Rule 10, Canon 5C(2)(a), is amended by deleting the subsection in its entirety and replacing it with the following: (a) A candidate* shall not personally solicit or accept campaign contributions. A candidate may personally solicit publicly stated support and establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums, and other means not prohibited by law. Such committees may solicit and accept campaign contributions, manage the expenditure of funds for the candidate's campaign, and may also obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting and accepting campaign contributions and public support from lawyers. A candidate's committees may solicit and accept contributions for the candidate's campaign no earlier than 180 days before an election (see Commentary below) and no later than 90 days after the last election in which the candidate participates during the election year. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others. http://www.tba.org/tba_files/TSC_Rules/rule10amend_ord.wpd STATE OF TENNESSEE v. HOLLIE D. CAMPBELL WITH CONCURRING OPINION Court:TCCA Attorneys: David F. Bautista, District Public Defender; Ivan M. Lilly, Assistant Public Defender; and Julie A. Rice, Knoxville, Tennessee, for the appellant, Hollie D. Campbell. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Victor Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: On appeal, the issue is whether a defendant, who pled guilty pursuant to a plea agreement that allowed for a request for judicial diversion, may be sentenced by the trial court to additional time over and above the negotiated plea agreement in the event the Defendant violates the terms and conditions of judicial diversion. We hold the answer to be yes. Further, after a careful review we conclude that the trial court properly sentenced the Defendant. The Defendant's sentence is affirmed. http://www.tba.org/tba_files/TCCA/campbellhd_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/campbellhd_con.wpd MICHAEL W. CLARK v. STATE OF TENNESSEE Court:TCCA Attorneys: James O. Martin, III, Nashville, Tennessee, for the appellant, Michael Clark. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and John W. Price III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief. Specifically, he asserts that he received ineffective assistance of counsel because trial counsel failed to inform him of charges against the victim of the crime. He claims that had he known about the charges against the victim, he would not have pled guilty. After review, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/clarkmw.wpd STATE OF TENNESSEE v. KEVIN DOUGLAS DAVIS Court:TCCA Attorneys: Jeffery S. Frensley and Anthony Adgent, Nashville, Tennessee, for the appellant, Kevin Douglas Davis. Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, 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: OGLE First Paragraph: The appellant appeals his conviction by a jury in the Davidson County Criminal Court of one count of assault. The appellant asserts that his conviction should be reversed and his case remanded for a new trial due to the trial court's failure to instruct the jury in accordance with Tenn. Code Ann. S 39-11-611(b) (1997) and the prosecutor's failure to disclose exculpatory evidence. Because we agree with the appellant that the trial court failed to fully instruct the jury on the justification of self- defense and because reasonable doubt exists that the error was harmless, we grant the requested relief. http://www.tba.org/tba_files/TCCA/daviskd.wpd STATE OF TENNESSEE v. ALBERT EUGENE PLEASANT Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); and Dale Potter, District Public Defender (at trial) for the Appellant, Albert Eugene Pleasant. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William M. Locke, District Attorney General; Thomas J. Miner, Assistant District Attorney General; and Larry G. Ross, Assistant District Attorney General for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Albert Eugene Pleasant, appeals his Warren County Circuit Court jury conviction for first degree murder in connection with the shooting death of his girlfriend on June 9, 1996. In this direct appeal, he contests the sufficiency of the conviction evidence and challenges the admissibility of photographs of the victim taken post-mortem and of evidence of prior threats and physical abuse of the victim by the defendant. After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pleasantae.wpd STATE OF TENNESSEE v. NICHOLAS WILLIAMS Court:TCCA Attorneys: Claudia Jack, Beverly J. White and Shipp Weems, Pulaski, Tennessee, for the appellant, Nicholas Williams. Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General; Elizabeth T. Ryan, Assistant Attorney General; T. Michael Bottoms, District Attorney General; Patrick S. Butler, Assistant District Attorney General; and Richard H. Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: In 1998, the Giles County Grand Jury indicted the Defendant for one count of statutory rape and ten counts of sexual battery. In 1999, a Giles County jury tried the Defendant and found him guilty of one count of statutory rape and five counts of sexual battery. Following a hearing, the trial court sentenced the Defendant to two years incarceration for each conviction and ordered that five of the six sentences be served consecutively, resulting in an effective sentence of ten years. The Defendant now appeals as of right, arguing (1) that the evidence presented at trial was insufficient to support his convictions for sexual battery; (2) that the trial court erred by consolidating all counts for trial; and (3) that he was improperly sentenced. We conclude that the evidence is insufficient as to one count of sexual battery and thus reverse one of the Defendant's convictions for sexual battery. In addition, we conclude that the trial court erred by consolidating all counts for trial, but conclude that this error was harmless. Finally, following our reversal of the sexual battery conviction in case 8652, count one, with a two-year sentence, and a de novo review of the remaining sentences imposed by the trial court, we conclude that an effective sentence of eight years in the Tennessee Department of Corrections is appropriate. http://www.tba.org/tba_files/TCCA/williamsn.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. 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