July 10, 2001
Volume 7 — Number 125

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
01 New Opinion(s) from the Tennessee Court of Appeals
06 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

LETA HOALCRAFT v. WALTER TROY SMITHSON
Court:TCA
Attorneys:   

R. E. Lee Davies, Franklin, Tennessee, for the appellant, Leta
Hoalcraft.

Virginia Lee Story, Franklin, Tennessee, for the appellee, Walter Troy
Smithson.                       

Judge: CAIN

First Paragraph:

This Tenn. R. App. P. 10 extraordinary appeal marks the third time
this hotly contested child custody dispute has been before this court.
 In the first appeal, this court reversed the trial court's decision
to ignore his predecessor's final order awarding custody of the
children to their mother and to place the children in their father's
custody.  Hoalcraft v. Smithson, 19 S.W.3d 822 (Tenn. Ct. App. 1999)
("Hoalcraft v. Smithson I").  In the second appeal, this court
reversed the trial court's order requiring the mother to pay the
father child support.  Hoalcraft v. Smithson, No.
M1999-00143-COA-R3-CV, 2000 WL 225583 (Tenn. Ct. App. Feb. 29, 2000)
(No Tenn. R. App. P. 11 application filed) ("Hoalcraft v. Smithson
II").  In this appeal, the mother asserts that the trial judge erred
by (1)  deciding to relitigate the custody issue, (2) disqualifying
her lawyer for perceived ethical violations, and (3) refusing to
disqualify himself from further proceedings in this case.  We have
determined that the father is entitled to a hearing on his motion for
change of custody limited to facts occurring after January 1999.  We
have also determined that the trial court erred by disqualifying the
wife's lawyer and that the record contains evidence that provides a
reasonable basis for questioning the trial judge's impartiality.

http://www.tba.org/tba_files/TCA/hoalcraftleta.wpd


STATE OF TENNESSEE v. RUSSELL ALLEN Court:TCCA Attorneys: Gary M. Howell, Columbia, Tennessee, for the appellant, Russell Allen. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Mike Bottoms, District Attorney General; and Lawrence R. Nickell, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Russell Allen, was convicted in the Maury County Circuit Court of one count of aggravated sexual battery and was sentenced as a Range I offender to eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issue for our review: whether the trial court erred in failing to grant the appellant a new trial based upon newly discovered evidence. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/allenr.wpd
STATE OF TENNESSEE v. LATROY W. ASKEW Court:TCCA Attorneys: William C. Talman, Knoxville, Tennessee, for the appellant, Latroy W. Askew. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, Latroy W. Askew, appeals from the order of the Knox County Criminal Court which revoked Defendant's probation and required him to serve his sentence in the Tennessee Department of Correction. Having reviewed the record and the briefs submitted by the parties, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/askewlw.wpd
STATE OF TENNESSEE v. TRACY BARR Court:TCCA Attorneys: Floyd N. Price, Nashville, Tennessee (on appeal); and Eric L. Davis, Franklin, Tennessee (at trial), for the Appellant, Tracy A. Barr. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon Guffey, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty without a plea agreement to theft of property valued at more than $500.00 and to identity theft. Following a sentencing hearing, the trial court sentenced her to concurrent sentences of one year incarceration for the theft of property conviction and three years incarceration for the identity theft conviction. In this appeal as of right, the Defendant argues that the trial court should have granted her some form of alternative sentencing. Because we conclude that the sentence imposed is adequately supported by the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/barrta.wpd
STATE OF TENNESSEE v. LEE ROY GASS Court:TCCA Attorneys: Scott A. Hodge, Morristown, Tennessee, for the appellant, Lee Roy Gass. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General Pro Tempore; Gene Perrin, Assistant District Attorney General; and Jim Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Lee Roy Gass, was convicted by a jury in the Hamblen County Criminal Court of one count of aggravated rape, one count of burglary, and one count of official misconduct. The trial court sentenced the appellant as a Range I violent offender to twenty-two years incarceration in the Tennessee Department of Correction for the aggravated rape conviction and as a Range I standard offender to four years incarceration in the Department for the burglary conviction and to two years incarceration for the official misconduct conviction. The trial court ordered concurrent service of the appellant's sentences, resulting in an effective sentence of twenty-two years incarceration. In this appeal, the appellant presents the following issues for our review: (1) whether the evidence adduced at trial is sufficient to support his convictions; (2) whether the trial court erred in sustaining the State's objection to testimony by a defense witness concerning the victim's neighbor, Patricia Costner; (3) whether newly discovered evidence warrants the reversal of the appellant's convictions and the remand of this case for a new trial; and (4) whether the trial court erred in sentencing the appellant. Following a review of the record and the parties' briefs, we affirm the judgments of the trial court in the aggravated rape and burglary cases and affirm as modified the judgment in the official misconduct case. http://www.tba.org/tba_files/TCCA/gasslr.wpd
STATE OF TENNESSEE v. JEFFREY SCOTT PETTY Court:TCCA Attorneys: Robert L. Marlow, Shelbyville, Tennessee, for the Appellant, Jeffrey Scott Petty. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, and Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Jeffrey Scott Petty, was indicted by a Bedford County Grand Jury for one count of driving under the influence. On May 30, 2000, a jury convicted the Appellant of DUI, first offense, a class A misdemeanor. On that same day, the trial court sentenced the Appellant to eleven months, twenty-nine days, all suspended except for thirty days incarceration. The trial court further ordered that the thirty days be served periodically on weekends. On appeal, the Appellant raises one issue for our review: Whether the trial court properly ordered the Appellant to serve thirty days of his eleven month, twenty-nine day sentence in periodic incarceration. Upon review, we find no error. Thus, the judgment of the Bedford County Circuit Court is affirmed. http://www.tba.org/tba_files/TCCA/pettyjs.wpd
STATE OF TENNESSEE v. MITCHELL SHEPHARD Court:TCCA Attorneys: Charles M. Corn, District Public Defender, Cleveland, Tennessee (at trial); and John B. Nisbet, III, Cookeville, Tennessee (on appeal), for the appellant, Mitchell Shephard. Paul G. Summers, Attorney General and Reporter; Elizabeth Marney, Assistant Attorney General; Jerry N. Estes, District Attorney General; Amy F. Reedy and William W. Reedy, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A McMinn County jury convicted the defendant of first degree murder in perpetration of aggravated child abuse and, following a sentencing hearing, sentenced the defendant to life without the possibility of parole. In this appeal, the defendant alleges (1) the evidence was insufficient to sustain his conviction; (2) a juror was improperly dismissed for cause; (3) prejudicial statements were made by a juror during voir dire; (4) evidence of the defendant's prior criminal conduct was improperly admitted; (5) prejudicial photographs of the victim were improperly admitted; (6) the state improperly commented on the defendant's failure to testify; (7) the jury was improperly instructed concerning the definition of "knowingly;" (8) the trial court failed to properly instruct the jury on lesser-included offenses; (9) the trial court improperly imposed a life sentence without the possibility of parole due to inadequate notice by the state; (10) the jury was improperly instructed concerning the minimum length of a life sentence; and (11) the verdict forms failed to comply with the statutory requirements. Although we affirm the conviction, we find that the trial court improperly instructed the jury during the sentencing phase that the minimum length of a life sentence is twenty-five years. Accordingly, we remand this case to the trial court for a new sentencing hearing. http://www.tba.org/tba_files/TCCA/shephardm.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? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free!

For the
Plain Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
SUBSCRIBE
3) Leave the body of the message blank

For the HTML Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
SUBSCRIBE HTML
3) Leave the body of the message blank

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

To STOP receiving TBALink Opinion-Flash:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 2001 Tennessee Bar Association