August 31, 2001 Volume 7 — Number 161 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 03 New Opinion(s) from the Tennessee Court of Appeals 04 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. KERMIT MAURICE COZART Court:TSC Attorneys: Jim L. Fields, Paris, Tennessee, for the appellant, Kermit Maurice Cozart. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Patricia C. Kussman, Assistant Attorney General, for the appellee, State of Tennessee. Judge: HOLDER First Paragraph: We granted review of this case to decide whether a trial court must instruct the jury based upon this Court's holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). We hold that the trial court properly declined to instruct the jury that it should determine whether the confinement, movement, or detention inherent in the kidnapping was essentially incidental to the accompanying robbery. Applying the principles first enunciated in Anthony, we further hold that the dual convictions for aggravated robbery and aggravated kidnapping in this case do not violate due process. Accordingly, we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/cozartkm.wpd TIMOTHY P. HANCOCK, et al. v. THE CHATTANOOGA-HAMILTON COUNTY HOSP. AUTHORITY, et al. Court:TSC Attorneys: George E. Koontz and John D. McMahan, Chattanooga, Tennessee, for the plaintiffs-appellants, Breanna Hancock, Timothy P. Hancock, and Tina M. Hancock. Arthur P. Brock, Daniel M. Stefaniuk, and Robert Boehm, Chattanooga, Tennessee, for the defendant-appellee, Chattanooga-Hamilton County Hospital Authority, d/b/a T.C. Thompson Children's Hospital. Judge: HOLDER First Paragraph: We granted appeal to determine 1) whether filial consortium losses are recoverable in wrongful death actions; and 2) whether the medical malpractice statute of repose, Tenn. Code Ann. S 29-26-116, bars the plaintiffs' amendment to the complaint to include consortium damages. We hold that (1) filial consortium damages are recoverable under Tenn. Code Ann. S 20-5-113 in wrongful death actions; and (2) the plaintiffs' amendment to the complaint to include consortium damages does not state a new cause of action and is therefore not barred by Tenn. Code Ann. S 29-26-116. Accordingly, the Court of Appeals' judgment is reversed, and the case is remanded to the trial court for proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/hancockt.wpd LARRY DONALD HOWARD, M.D. v. CORNERSTONE MEDICAL ASSOCIATES, P.C. Court:TSC Attorneys: Michael A. Wagner, Chattanooga, TN, for the appellant, Larry Donald Howard, M.D. W. Randall Wilson and Lynda Motes, Chattanooga, TN, for the appellee, Cornerstone Medical Associates, P.C. Judge: HOLDER First Paragraph: In this workers' compensation case, the employee sustained injuries in an automobile accident while traveling to one of two nursing homes at which he worked as medical director pursuant to his employment contract. The trial court granted summary judgment in favor of the employer, finding that the employee's injuries did not occur in the course of his employment. The Special Workers' Compensation Appeals Panel reversed the trial court's decision, held that the injuries were compensable, and remanded the case for a determination of benefits. We disagree with the Panel's recommendation and affirm the trial court's judgment. http://www.tba.org/tba_files/TSC/howardld.wpd STATE OF TENNESSEE v. RUDOLPH MUNN Court:TSC Attorneys: J. Stanley Rogers and Christina Henley Duncan, Manchester, Tennessee, for the appellant, Rudolph Munn. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Marvin S. Blair, Assistant Attorney General; Kim R. Helper, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to determine the following issues: (1) whether the secret police videotaping of the defendant's conversations, while alone with his parents in a police interview room, violated the defendant's rights under the Fourth Amendment to the United States Constitution, article I, S 7 of the Tennessee Constitution, and the federal and state wiretapping statutes; (2) whether the defendant's Miranda rights were violated; (3) whether later confessions made by the defendant should have been suppressed under the "derivative evidence rule"; and (4) whether the trial court erred in the sentencing phase by refusing to charge the no-adverse-inference instruction. A majority of the Court of Criminal Appeals panel affirmed the defendant's conviction for first-degree murder and sentence of life without parole, concluding (1) that the defendant's Fourth Amendment rights were not violated because the defendant did not have a reasonable expectation of privacy; (2) that the defendant was not in custody when he was interviewed by the officers and therefore a Miranda warning was not required; (3) that the issue regarding the derivative evidence rule was moot; and (4) that the trial court did not err by refusing to charge the no-adverse-inference instruction in the sentencing phase. After a thorough review of the record and relevant authority, we hold that the defendant had a reasonable expectation of privacy and that his rights under the Fourth Amendment to the United States Constitution, article I, S 7 of the Tennessee Constitution, and federal and state wiretapping statutes were violated by the secret taping of his conversations in the police interview room. We also conclude that the defendant was not entitled to Miranda warnings because he was not in custody when interviewed and that his confession was not subject to suppression under the derivative evidence rule. Finally, we conclude that the defendant was entitled to have the no-adverse-inference instruction given to the jury during the sentencing phase of the trial. Accordingly, we affirm in part, reverse in part, and remand to the trial court for a new sentencing hearing in accordance with this opinion. http://www.tba.org/tba_files/TSC/munnrudolph.wpd CAROL T. COFFEY, III v. STATE OF TENNESSEE, et al. Court:TCA Attorneys: Carol T. Coffey, III, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Pamela S. Lorch, Assistant Attorney General, for the appellees, State of Tennessee, et al. Judge: LILLARD First Paragraph: This is an appeal by a prisoner plaintiff seeking review of a decision by the Board of Paroles denying his application for parole. The trial court dismissed the plaintiff's petition because it was not filed within sixty days as required by Tennessee Code Annotated S 27-9-102, and denied the plaintiff's motion for relief under Tennessee Rule of Civil Procedure 60.02. The plaintiff now appeals. We affirm. http://www.tba.org/tba_files/TCA/coffeyct.wpd JOHN DAVID FLOYD v. CAROLYN FLOYD Court:TCA Attorneys: Darrell L. Scarlett, Murfreesboro, For Appellant, John David Floyd James L. Weatherly, Jr.; Joseph T. Howell, Nashville, For Appellee, Carolyn Floyd Judge: CRAWFORD First Paragraph: When husband and wife divorced, they signed a marital dissolution agreement which was incorporated into the Final Decree of Divorce providing, inter alia, that husband would have visitation rights with wife's daughter by a previous marriage and husband would in turn pay college tuition and expenses for the child and would leave to the child by Will one-fourth of his estate. A dispute arose as to the extent of visitation, and husband filed a petition to establish visitation rights. Wife filed a petition to require husband to continue his obligations expressed in the marital dissolution agreement. The trial court felt that there was no meeting of the minds between the parties with regard to the visitation issue; therefore, there was no valid contract. Husband appeals. We reverse and remand. http://www.tba.org/tba_files/TCA/floydjoh.wpd RUTH N. WILSON v. LANDON HAYNES SNAPP, JR., et al. Court:TCA Attorneys: Thomas A. Snapp, Knoxville, Tennessee, for the Appellants, Landon Haynes Snapp, Jr., and Gene L. Snapp. William W. Davis, Jr., Knoxville, Tennessee, for the Intervening Appellees, James E. Willis and Neil Leonard. Judge: GOODARD First Paragraph: In this suit the Trial Court held a purported deed from Ruth N. Wilson to Landon Haynes Snapp, Jr., and Gene L. Snapp was champertous and void. The Snapps appeal, contending this holding was in error. We affirm. http://www.tba.org/tba_files/TCA/wilsonruth.wpd STATE OF TENNESSEE v. MELVIN E. BEARD Court:TCCA Attorneys: Eric L. Davis, Franklin, Tennessee; and Lionel R. Barrett, Jr., Nashville, Tennessee, for the appellant, Melvin E. Beard. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Ronald L. Davis, District Attorney General; Derek K. Smith and Lee E. Dryer, Assistant District Attorneys General, for the appellee, State of Tennesssee. Judge: MCGEE OGLE First Paragraph: The appellant, Melvin E. Beard, was convicted in the Williamson County Circuit Court of one count of the sale and delivery of less than .5 grams of crack cocaine, a class C felony. The trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction and imposed a fine of two thousand dollars ($2000). On appeal, the appellant raises the following issues for our review: (1) whether the evidence at trial was sufficient to sustain the appellant's conviction; (2) whether the trial court erred in allowing the State to introduce the portion of an audio tape recording of the drug transaction that occurred outside the presence of the appellant; (3) whether the trial court erred in refusing to grant the appellant's motion for mistrial; and (4) whether the trial court erred in sentencing the appellant. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/beardme.wpd LLOYD PAUL HILL v. STATE OF TENNESSEE Court:TCCA Attorneys: Harvey Douglas Thomas, Algood, Tennessee, for appellant. Lloyd Paul Hill. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Bill Gibson, District Attorney General; and Ben Fann, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: On September 25, 1998, the petitioner entered best interest pleas to four counts of child rape. For these offenses he received concurrent sixteen year sentences. According to the announced plea the convictions arising out of Pickett and Overton Counties were set to be served at thirty percent while the Putnam County convictions were at one hundred percent with the potential to be reduced to eighty-five percent. Within the statute of limitations the petitioner filed a post-conviction petition alleging that his plea was not knowingly and voluntarily entered concerning the consequences thereof. Subsequently, the trial court conducted a hearing and later denied the relief sought in the petition. It is from that denial that the petitioner brings the present appeal continuing to maintain that his plea was not knowingly and voluntarily entered. After reviewing the record and applicable caselaw, we find that the sentences imposed are illegal and, therefore, reverse and remand the matter. http://www.tba.org/tba_files/TCCA/hillloyd.wpd DEBORAH LOUISE REESE v. STATE OF TENNESSEE Court:TCCA Attorneys: Dicken E. Kidwell, Murfreesboro, Tennessee, for the appellant, Deborah Louise Reese. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Deborah Louise Reese, pled guilty in the Rutherford County Circuit Court to one count of felony murder, one count of especially aggravated robbery, and one count of conspiracy to commit especially aggravated robbery. The trial court sentenced the petitioner to a total effective sentence of life imprisonment. Thereafter, the petitioner filed a petition for post-conviction relief alleging that she received ineffective assistance of counsel and that her guilty pleas were neither voluntarily nor knowingly made. Following an evidentiary hearing, the post-conviction court dismissed the petition. The petitioner now appeals this ruling. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/reesedl.wpd LARRY WADE v. STATE OF TENNESSEE Court:TCCA Attorneys: Rayburn McGowan, Jr., Nashville, Tennessee, for the appellant, Larry Wade. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Naylor and James W. Milam, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Larry Wade, appeals the denial of his petition for post-conviction relief by the Criminal Court for Davidson County. He asserts that the ineffective assistance of counsel and the unknowing and involuntary nature of his guilty pleas entitle him to relief from his convictions of attempted second degree murder and possession of one-half gram or more of cocaine with intent to sell. Following a review of the record and the parties' briefs, we affirm the judgment of the post- conviction court. http://www.tba.org/tba_files/TCCA/wadela.wpd PLEASE FORWARD THIS E-MAIL! 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