July 30, 2001 Volume 7 — Number 138 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 00 New Opinion(s) from the Tennessee Court of Appeals 07 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. JEREMY WAYNE AIKENS Court:TCCA Attorneys: Wesley M. Baker, Knoxville, Tennessee (on appeal); and Alfred Hathcock, Harriman, Tennessee (at trial); for the appellant, Jeremy Wayne Aikens. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; J. Scott McCluen, District Attorney General; D. Roger Delp, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Loudon County Grand Jury indicted the Defendant for driving under the influence of an intoxicant. The Defendant's first jury trial resulted in a mistrial. Following a second trial, a Loudon County jury convicted the Defendant of the offense charged. The trial court sentenced him to eleven months, twenty-nine days incarceration, with all but four days suspended, and fined him $400. The Defendant now appeals his conviction, arguing (1) that insufficient evidence was presented to support his conviction; and (2) that he received ineffective assistance of counsel at trial. Upon review of the record, we conclude that the evidence presented at trial was sufficient to support the Defendant's conviction, and we conclude that the Defendant received adequate representation at trial. We thus affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/aikensjw.wpd ANTHONY E. BRASFIELD v. STATE OF TENNESSEE Court:TCCA Attorneys: Vanedda Prince, Union City, Tennessee, for the Appellant, Anthony E. Brasfield. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Laura McMullen Ford, Assistant Attorney General, Jim Cannon, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Anthony E. Brasfield, appeals from the dismissal by the Weakley County Circuit Court of his petition for post-conviction relief. On appeal, Brasfield asserts that the trial court erred in finding that his trial counsel was not ineffective by failing to preserve in his direct appeal the issues of (1) the trial court's suppression of his confession to the police and (2) the trial court's failure to charge misdemeanor escape as a lesser-included offense of felony escape. With regard to the first issue, we find that although trial counsel was deficient, no prejudice resulted. With regard to Brasfield's second issue, we find that misdemeanor escape is not a lesser-included offense of felony escape; therefore, no error occurred. Accordingly, the judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/brasfieldae.wpd STATE OF TENNESSEE v. DONALD EADY, SR. Court:TCCA Attorneys: Kenneth L. Miller, Cleveland, Tennessee, for the appellant, Donald Eady, Sr. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and Joseph Hoffer and Steven Crump, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Donald Eady, Sr., was indicted for attempted second degree murder, a Class B felony. See Tenn. Code Ann. SS 39-12-101, 39-13-210. He was convicted of the lesser included offense of attempted voluntary manslaughter, a Class D felony. See Tenn. Code Ann. SS 39-12-101, 39-13-211. The trial court imposed a Range III sentence of 12 years. On appeal, the defendant argues (1) that the trial court erred by allowing testimony regarding prior bad acts; and (2) that the trial court erred by refusing to instruct the jury on the lesser included offense of attempted criminally negligent homicide. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/eadydonald.wpd STATE OF TENNESSEE v. MARGO ELLIS Court:TCCA Attorneys: Christina M. Nordman, Assistant Public Defender, Jackson, Tennessee, for the Appellant, Margo Ellis. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth B. Marney, Assistant Attorney General, Bill Martin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Margo Ellis, appeals from the Henderson County Circuit Court's judgment revoking her sentence of community corrections. Following revocation, Ellis' three-year sentence was ordered to be served in the Department of Correction. At the time of Ellis' indictment and on the date her guilty plea was entered, the trial judge who presided at Ellis' revocation hearing was employed as an assistant district attorney in the same office that prosecuted Ellis. On appeal, Ellis raises one issue for our review: Whether "the trial court erred by neglecting to disqualify himself from presiding over [her] revocation hearing." After review, we find no error and affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/ellismargo.wpd STATE OF TENNESSEE v. TERRY RUTH GRAY Court:TCCA Attorneys: Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General; Elizabeth Rice, District Attorney General for appellant, State of Tennessee. Terry Ruth Gray, Selmer, Tennessee, pro se. Judge: SMITH First Paragraph: On September 30, 1993, Terry Ruth Gray, the Defendant and Appellee, pled guilty to second-degree murder in the McNairy County Circuit Court. The trial court sentenced the Appellee to serve 13.5 years at 20% as a mitigated offender. On October 19, 1999, the Appellee filed a petition for habeas corpus relief in the McNairy County Circuit Court. On January 24, 2000, the Appellee filed a second petition for habeas corpus relief in the trial court. Despite the lack of any showing in the record that, following the filing of the petition, the procedures of Tennessee Code Annotated S 29-21-101, et seq., governing habeas corpus proceedings, were followed, on March 23, 2000, the trial court granted the Appellee's petition. On appeal, the State claims that the trial court erred in granting the petition. After a review of the record, we reverse the judgment of the trial court and remand this case for proceedings in accordance with Tennessee Code Annotated S 29-21-101, et seq. http://www.tba.org/tba_files/TCCA/grayterry.wpd STATE OF TENNESSEE v. ROY B. LIPFORD Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and David B. Shapiro, Assistant District Attorney General, for the appellant, State of Tennessee. Tarik B. Sugarmon, Memphis, Tennessee, for the appellee, Roy B. Lipford. Judge: RILEY First Paragraph: The issues in this interlocutory appeal by the state, as we view them, are straightforward: (1) whether the Supreme Court of Tennessee has the authority by rule to prohibit a full-time municipal judge from representing a defendant or otherwise practicing law after 180 days from assuming judicial office; and (2) if so, whether the Supreme Court of Tennessee intended exactly what the rule says. We conclude that it does and did. We further conclude that a violation of this Supreme Court Rule is prejudicial to the judicial process, and the issue is not waived by the failure of the opposing party to request disqualification at its first opportunity to do so. Accordingly, we reverse the judgment of the trial court which declined to disqualify defendant's attorney, a sitting judge, from further participation in this case. http://www.tba.org/tba_files/TCCA/lipfordrb.wpd STATE OF TENNESSEE v. TERRY WILLIAMS Court:TCCA Attorneys: Robert C. Brooks (on appeal), Memphis, Tennessee; A C Wharton, Jr., District Public Defender, and Michael J. Johnson, Assistant District Public Defender (at trial), for the appellant, Terry Williams. Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Daniel Scott Byer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his convictions of theft over $1000, a Class C felony, and evading arrest, a Class E felony. Tenn. Code Ann. SS 39-14-103 and 39-16-603(b). The defendant received an effective sentence of eighteen years as a career offender. The defendant first contends that the evidence was insufficient to prove the value of the stolen property. He also contends that his trial counsel was ineffective for failing to provide him with "street clothes" to wear during his jury trial. After careful review, we conclude that the evidence was sufficient to establish that the value of the stolen property was over $1000 and that trial counsel was not ineffective for failing to provide the defendant with different clothes to wear during his jury trial. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/williamst.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! 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