August 29, 2001 Volume 7 — Number 159 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 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 05 New Opinion(s) from the Tennessee Court of Appeals 08 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. EDWARD D. COFFEE Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Lucian D. Geise, Assistant Attorney General, Tom P. Thompson, Jr., District Attorney General, David E. Durham, Assistant District Attorney General, for the appellant, the State of Tennessee. Hugh Green, Lebanon, Tennessee, for the appellee, Edward D. Coffee. Judge: BIRCH First Paragraph: Edward D. Coffee was indicted for possession of certain controlled substances with intent to sell and possession of drug paraphernalia. Because the judicial commissioner failed to make and retain an exact copy of the original search warrant as required by Tennessee Rule of Criminal Procedure 41(c), the trial court suppressed the evidence recovered in the search and dismissed the indictment. The Court of Criminal Appeals affirmed the trial court's judgment, and we now also affirm. http://www.tba.org/tba_files/TSC/coffeee.wpd STATE OF TENNESSEE v. MILES MATEYKO Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellee, Miles Mateyko. Judge: BARKER First Paragraph: The defendant was charged and convicted of child abuse through neglect in violation of Tennessee Code Annotated section 39-15-401(a). The Court of Criminal Appeals reversed the conviction, finding that the State did not establish that the defendant's children suffered any actual, deleterious effect or harm from the neglect. However, the intermediate court found that the defendant was guilty of attempted child abuse through neglect, and it remanded the case for resentencing. The State requested permission to appeal to this Court, and we hold that section 39-15-401(a) does require proof of an actual, deleterious effect or harm to the child's health and welfare and that the mere risk of harm is insufficient to support a conviction. We also hold that in those cases in which no such actual, deleterious effect or harm is shown, a defendant may be convicted of attempted child abuse through neglect under Tennessee Code Annotated section 39-12-101, provided that the State is successful in making the required showing. Because the record in this case contains conflicting evidence as to the required intent necessary for the attempted crime, we remand this case to the Lincoln County Circuit Court for a new trial on the lesser-included offense of attempted child abuse through neglect. The judgment of the Court of Criminal Appeals is affirmed in part and reversed in part. http://www.tba.org/tba_files/TSC/mateykomiles.wpd DAVID EARL MILLER v. STATE OF TENNESSEE Court:TSC Attorneys: Mark Stephens, John Halstead, and Paula R. Voss, Knoxville, Tennessee, for the appellant, David Earl Miller. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J. Brand, Associate Solicitor General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. W. Mark Ward, Memphis, Tennessee, for Amicus Curiae, Tennessee Association of Criminal Defense Lawyers. Judge: DROWOTA First Paragraph: We granted petitioner, David Earl Miller's application for permission to appeal to determine whether this Court's decision in State v. Brown, 836 S.W.2d 530 (Tenn. 1992) created a new state constitutional rule regarding the elements of deliberation and premeditation. Petitioner claims that Brown created a new state constitutional rule and that the jury instructions given at his initial trial violated this rule by relieving the prosecution of its burden to prove the elements of premeditation and deliberation beyond a reasonable doubt. Therefore, the petitioner argues that his conviction of first-degree murder was not supported by sufficient proof. After due consideration, we conclude that Brown did not announce a new state constitutional rule, did not implicate any constitutional right, is not retroactive, and may not serve as the basis for post-conviction relief. Accordingly, we conclude that the petitioner's complaint about the jury instructions given at his initial trial has been waived because it was not raised on direct appeal and that his complaint about the sufficiency of the evidence to support premeditation and deliberation was previously determined by this Court on direct appeal. Accordingly, the decision of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/millerdavide.wpd MARGARET TOBITT v. BRIDGESTONE/FIRESTONE, INC. Court:TSC Attorneys: B. Timothy Pirtle, McMinnville, Tennessee, for the appellant, Bridgestone/Firestone, Inc. John L. Norris, Nashville, Tennessee, for the appellee, Margaret Tobitt. Judge: DROWOTA First Paragraph: In this workers' compensation case, the employer, Bridgestone/Firestone, Inc., has appealed from a judgment of the Circuit Court of Warren County awarding the employee, Margaret Tobitt, fifty percent permanent partial disability benefits to the body as a whole, with twenty percent of the award commuted to a lump sum. The trial court found that the employee suffered an aggravation of a pre-existing jaw condition after she was struck by a car while walking through the employer's parking lot. The employer appealed, arguing that (1) the employee failed to prove that she suffered an injury arising out of her employment, (2) the trial court incorrectly combined the employee's medical impairment ratings, and (3) the award of fifty percent was excessive. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn. Code Ann. S50-6-225(e)(3), found that there was insufficient evidence of causation to warrant an award of benefits and thus reversed the trial court's judgment. Thereafter, the employee filed a motion for full Court review of the Panel's decision pursuant to Tenn. Code Ann. S50-6- 225(e)(5)(B). We granted the motion to consider whether the evidence preponderates against the trial court's finding that the employee's injury arose out of her employment. After carefully examining the record and considering the relevant authorities, we agree with the trial court's finding that the employee established a causal connection between her injury and being struck by the car. Accordingly, the trial court's judgment is affirmed. http://www.tba.org/tba_files/TSC/tobittmargaret.wpd ANDERSON DISSENTING http://www.tba.org/tba_files/TSC/tobittmargaretdis.wpd PAULL ANDERSON v. EDWARD MEZVINSKY Court:TCA Attorneys: Paull Anderson, Morriswotn, Tennessee, Appellant, Pro Se Frank A. Johnstone, Kingsport, Tennessee, and W. Gordon Ball, Knoxville, Tennessee, for the Appellee, Edward Mezvinsky Judge: GODDARD First Paragraph: Paull Anderson sues Edward Mezvinsky, seeking damages for breach of the contract to pay Mr. Anderson certain fees in connection with solicitation of donations to the Foundation for Advancement, Education and Employment of American Indians. The jury found in favor of Mr. Mezvinsky. Mr. Anderson appeals, raising the issues set out in our opinion. We find the issues raised on appeal to be without merit and affirm the judgment entered. http://www.tba.org/tba_files/TCA/andersonpaull.wpd J. MACDONALD BURKHART, M.D. v. U.S. COMMERCE EQUIPMENT FINANCE, LLC Court:TCA Attorneys: Timothy M. McLemore and Richard T. Scrugham, Jr., Knoxville, Tennessee, for the appellant, J. MacDonald Burkhart, M.D. Archie R. Carpenter, Knoxville, Tennessee, for the appellee, U.S. Commerce Equipment Finance, LLC. Judge: SUSANO First Paragraph: This is an action brought to recover monies allegedly overpaid under a finance lease that was coupled with an option to purchase. The plaintiff, J. MacDonald Burkhart, M.D., and the defendant, U.S. Commerce Equipment Finance, LLC, ("U.S. Commerce"), entered into an agreement, under the terms of which Burkhart would acquire certain equipment by way of a finance lease with an option to purchase. Subsequent to the expiration of the initial term, Burkhart continued, according to him by mistake, to make installment payments and did not exercise his option to purchase. Nearly a year later, he did exercise the option. After U.S. Commerce refused Burkhart's request for a refund of installments allegedly paid by mistake, Burkhart filed this action. The trial court found in favor of U.S. Commerce except to the extent of one monthly "overpayment" by Burkhart. Burkhart now appeals, arguing that the trial court erred (1) in failing to award him the installment payments made by him after the expiration of the original term; (2) in failing to award him prejudgment interest; and (3) in failing to award him attorney's fees. U.S. Commerce argues that the trial court erred in awarding Burkhart the equivalent of one monthly payment. We affirm. http://www.tba.org/tba_files/TCA/burkhartjm.wpd KANTA KEITH, et al. v. GENE ERVIN HOWERTON, et al. Court:TCA Attorneys: Donald Kelly Vowell, Knoxville, Tennessee, for the Appellants, Kanta Keith, Darlene Keith and Walter Jackson. Craig Lawrence Garrett, Maryville, Tennessee, for the Appellees, Gene Ervin Howerton and Easy Money, Inc. Judge: GODDARD First Paragraph: In this appeal from a judgment of the Knox County Circuit Court the Plaintiffs/Appellants, Kanta Keith, Darlene Keith and Walter Jackson, contest the Trial Court's ruling that the Defendants/Appellees, Gene Ervin Howerton and Easy Money, Inc., did not violate the Tennessee Consumer Protection Act of 1977 with respect to pawn transactions entered into with the Plaintiffs. The Plaintiffs also contest the amount of damages awarded by the Trial Court for property belonging to them which was stolen while in possession of the Defendants. We affirm in part as modified, reverse in part, and remand for proceedings not inconsistent with this opinion. We adjudge costs of the appeal against the Defendants, Gene Ervin Howerton and Easy Money, Inc. http://www.tba.org/tba_files/TCA/keithkanta.wpd PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY v. TINA JOHNSON SHANKLES, et al. Court:TCA Attorneys: S. Roger York, Crossville, Tennessee, for the Appellants, Kristy Jo Johnson and Arnold Joe Johnson, Jr. David W. Wallace, Chattanooga, Tennessee, for the Appellees, Tina Johnson Shankles and Gordon Lee Johnson Judge: GODDARD First Paragraph: This is an interpleader bill filed by Provident Life and Accident Insurance Company against four named Beneficiaries in a policy of insurance issued to their father, Arnold Joe Johnson. Two of the Beneficiaries were children by a former marriage of Mr. Johnson, who were added as such shortly before his death. The two Beneficiaries by a subsequent marriage insisted that the provisions of a divorce decree precluded Mr. Johnson from adding his other two children as Beneficiaries. The Trial Court found that all four should share in the proceeds of the policy equally and entered a summary judgment to that effect. We vacate and remand. http://www.tba.org/tba_files/TCA/providentlifeshankles.wpd DEBRA SMITH v. EZ PAWN COMPANY, et al. Court:TCA Attorneys: Jerrold L. Becker, Knoxville, Tennessee, for the Appellant, Debra Smith David S. Clark, Oak Ridge, Tennessee, for the Appellees, EZ Pawn Company, EZ Enterprises and James Cameron Judge: GODDARD First Paragraph: This is a suit by Debra Smith seeking damages against EZ Pawn Company and others because of sexual harassment visited upon her by James Cameron, the owner of the company. The Trial Court found that her claim under the Tennessee Human Rights Act and under the Malicious Harassment Statute were barred by the applicable statute of limitations. We affirm. http://www.tba.org/tba_files/TCA/smithdebra.wpd STATE OF TENNESSEE v. LARICO S. FICKLIN Court:TCCA Attorneys: A.C. Wharton, Jr., Public Defender; Garland Erguden, Assistant Public Defender (on appeal); and Larry H. Nance, Assistant Public Defender (at trial), for the appellant, Larico S. Ficklin. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Edgar A. Peterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendant of second degree murder, and the trial court sentenced him to 25 years as a Violent Offender. In this appeal, the defendant alleges (1) the evidence was insufficient to sustain his conviction, and (2) the trial court erroneously admitted the defendant's custodial confession. We conclude that the defendant's initial arrest was without probable cause, and that the defendant's confession was obtained approximately 53 hours from his arrest without a judicial determination of probable cause. The defendant's confession was, therefore, erroneously admitted, and the error was not harmless. We reverse the defendant's conviction and remand for a new trial. http://www.tba.org/tba_files/TCCA/ficklinls.wpd STATE OF TENNESSEE v. MICHAEL A. FOSTER Court:TCCA Attorneys: William D. Massey, Memphis, Tennessee, for the Appellant, Michael A. Foster. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Pritchard, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Michael A. Foster, was indicted by a Shelby County Grand Jury for possession of cocaine in excess of .5 gram, a class B felony. Under the terms of a plea agreement, Foster pled guilty to criminal attempt to possess cocaine less than .5 gram, a class D felony. The plea agreement further provided that Foster would receive a sentence of two years with the manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the trial court ordered that Foster's two-year sentence be served in confinement in the Shelby County Correction Center. On appeal, Foster argues that the trial court erred in denying an alternative sentence. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/fosterma.wpd STATE OF TENNESSEE v. ANDREIA JONES Court:TCCA Attorneys: Robert C. Brooks, Memphis, Tennessee, for the appellant, Andreia Jones. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Daniel S. Byer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant challenges the denial of pretrial diversion by the District Attorney General and subsequent denial of relief by the trial court. We conclude that the defendant failed to file a petition for writ of certiorari and improperly sought to have the trial court consider matters not presented to the District Attorney General; thus, defendant has failed to establish that the District Attorney General abused his discretion in denying pretrial diversion. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jonesa.wpd STATE OF TENNESSEE v. SHERON LAMPTON Court:TCCA Attorneys: C. Michael Robbins (on appeal), Memphis, Tennessee; and George Morton Googe and Michael D. Rasnake (at trial and on appeal), Jackson, Tennessee, for the Appellant, Sheron Lampton. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted of second offense driving under the influence and violation of the open container law. The trial court sentenced her to eleven months, twenty-nine days incarceration for the DUI conviction, suspended after service of ninety days, and to thirty days incarceration, suspended, for violation of the open container law. In this appeal as of right, the Defendant argues that the evidence presented at trial was insufficient to support her convictions. Having reviewed the record, we conclude that sufficient evidence was presented to support the jury's findings of guilt and therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lamptons.wpd QUENTIN LEWIS v. STATE OF TENNESSEE Court:TCCA Attorneys: Gerald Stanley Green, Memphis, Tennessee, for the Appellant, Quentin Lewis. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scott Gordon, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Quentin Lewis, appeals from the dismissal of his petition for post-conviction relief following an evidentiary hearing in the Shelby County Criminal Court. In his petition, Lewis collaterally attacks his conviction for aggravated robbery upon grounds that his trial counsel was ineffective. After review of this issue on appeal, the judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/lewisquentin.wpd STATE OF TENNESSEE v. LAVARNE MADISON Court:TCCA Attorneys: Leslie I. Ballin and Gray W. Bartlett, Memphis, Tennessee, for the appellant, Lavarne Madison. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; William L. Gibbons, District Attorney General; and Janet Shipman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was charged in a two-count indictment with one count of the unlawful possession of more than .5 grams of cocaine with the intent to sell, and one count of the unlawful possession of more than 26 grams of cocaine with the intent to deliver. A separate indictment returned the same day charged one count of the unlawful possession of marijuana. Pursuant to a negotiated plea agreement, he subsequently pled guilty to two misdemeanor drug possession offenses in connection with the charges, and was sentenced to concurrent sentences of 11 months, 29 days. The trial court refused his request for judicial diversion, but granted him probation, with the condition that he spend 90 days in a halfway house. In a timely filed appeal to this court, the defendant raises two issues: (1) whether the trial court erred in denying his request for judicial diversion; and (2) whether the trial court abused its discretion in sentencing him to three months in the halfway house as a condition of probation. Based upon a careful review, we affirm the judgment of the trial court. However, we remand to the trial court for entry of a corrected judgment form to reflect the disposition of all charges against the defendant. http://www.tba.org/tba_files/TCCA/madisonlavarne.wpd STATE OF TENNESSEE v. LAQUENTON MONGER Court:TCCA Attorneys: Edwin C. Lenow, Memphis, Tennessee, for the appellant, LaQuenton Monger. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, LaQuenton Monger, was convicted by a jury in the Shelby County Criminal Court of one count of first degree felony murder by aggravated child abuse and one count of aggravated child abuse. The trial court imposed concurrent sentences of life imprisonment in the Tennessee Department of Correction for the felony murder conviction and twenty years imprisonment in the Department for the aggravated child abuse conviction. On appeal, the appellant challenges the sufficiency of the evidence underlying his conviction of felony murder and further challenges the trial court's failure to instruct the jury on lesser-included offenses of felony murder. Following a thorough review of the record and the parties' briefs, we reverse the appellant's convictions of felony murder and aggravated child abuse and remand the cases to the trial court for a new trial. http://www.tba.org/tba_files/TCCA/mongerlq.wpd REGINALD WEBB v. STATE OF TENNESSEE Court:TCCA Attorneys: Russell C. Rutledge, Memphis, Tennessee, for the appellant, Reginald Webb. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy L. Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Petitioner appeals the denial of post-conviction relief by the Shelby County Criminal Court. He contends he received ineffective assistance of counsel at his jury trial where he was convicted of second degree murder. We affirm. http://www.tba.org/tba_files/TCCA/webbr.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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