September 10, 2001 Volume 7 — Number 165 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 01 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 14 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 BOBBIE WOODS v. MAYTAG JACKSON DISHWASHING PRODUCTS Court:TSC - Workers Comp Panel Attorneys: P. Allen Phillips and Jay Dustin King, Waldrop & Hall, Jackson, Tennessee, for the appellant, Maytag Jackson Dishwashing Products. David Hardee, Hardee, Martin, Jaynes & Ivy, Jackson, Tennessee, for the appellee, Bobbie Woods. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer contends the evidence preponderates against the trial court's finding that the employee's claim for disability resulting from left carpal tunnel syndrome is not time-barred. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/woodsbobbie.wpd CARL O. KOELLA, JR., v. FRED McHARGUE and wife, GRACE McHARGUE Court:TCA Attorneys: Frank M. Fly and Mark J. Downton, Murfreesboro, Tennessee, for Appellants, Fred and Grace McHargue. Robert L. Kahn, Knoxville, Tennessee, for Appellee, Maribel Koella. Judge: FRANKS First Paragraph: Defendants have right of first refusal on tract of real property. The Trial Court held that the giving of a quitclaim deed did not trigger the right of first refusal. Defendants appealed, we affirm. http://www.tba.org/tba_files/TCA/koellac.wpd STATE OF TENNESSEE v. JAMES DAVID ALDER Court:TCCA Attorneys: Martha J. Yoakum, District Public Defender; and B. Jeffery Harmon, Assistant Public Defender, for the appellant, James David Alder. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; J. Michael Taylor, District Attorney General; Steven Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, James David Alder, was convicted of attempted second degree murder, aggravated assault and reckless endangerment. He was sentenced as a Range III Persistent Offender to twenty (20) years for the attempted second degree murder, eleven (11) months and twenty-nine (29) days for assault, and three (3) years for reckless endangerment. His sentences were ordered to run concurrently to each other, but consecutively to the sentence ordered in a case for which the Defendant was on bail at the time he committed the present offenses. On appeal, he argues: (1) the trial court erred in allowing the jury to hear expert testimony concerning the extent of the victim's injuries, the length of her hospital stay and the number of surgeries she had; (2) the evidence was insufficient to sustain a conviction for reckless endangerment; and (3) the trial court failed to follow the sentencing guidelines and improperly ordered consecutive sentencing. After a review of the law and the briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/alderjamesd.wpd STATE OF TENNESSEE v. FELICIA L. BRITTON Court:TCCA Attorneys: Edward DeWerff and Lonna K. Hildreth, Clarksville, Tennessee, for the appellant, Felicia Lashea Britton. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Lance A. Baker, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: After pleading guilty to felony theft of identity, a Class D felony, and to violating her probation, the trial court ordered the defendant to serve one year confinement and one year probation with rehabilitation as a result of violating her probation. In addition, the trial court ordered her to serve an additional three years of probation for the felony theft of identity conviction, to run consecutive to the sentence resulting from the probation violation. The defendant appeals and asserts that the trial court erred in sentencing her on the probation violation, erred in sentencing her to three years of probation for the felony theft of identity, and erred in ordering the two sentences to be served consecutively. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brittonfl.wpd STATE OF TENNESSEE v. JAMES LARRY COX Court:TCCA Attorneys: Phillip A. Condra, District Public Defender, for the appellant, James Larry Cox. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; James Michael Taylor, District Attorney General; Steven Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Phillip A. Condra, District Public Defender, for the appellant, James Larry Cox. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; James Michael Taylor, District Attorney General; Steven Strain, Assistant District Attorney General, for the appellee, State of Tennessee. http://www.tba.org/tba_files/TCCA/coxjamesl.wpd STATE OF TENNESSEE v. ROBERT L. DREW Court:TCCA Attorneys: David A. Collins, Nashville, Tennessee, for the appellant, Robert L. Drew. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Kymberly L. A. Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his conviction of theft of property valued at $1,000 or more, but under $10,000. He contends that the trial court erred in denying his motion to suppress a showup identification of him at the crime scene. He further contends that the evidence was insufficient to support his conviction and that the trial court erred by instructing the jury on flight. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/drewrl.wpd JOAN ELIZABETH HALL v. STATE OF TENNESSEE Court:TCCA Attorneys: T. Lance Carter (at hearing and on appeal) and Deborah R. Kidd (at hearing), Fayetteville, Tennessee, for the appellant, Joan Elizabeth Hall. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; William Michael McCown, District Attorney General; Weakley E. Barnard and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner was originally convicted by a Lincoln County jury of criminal responsibility for first degree murder and sentenced to life imprisonment. The petitioner's conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends her trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief. http://www.tba.org/tba_files/TCCA/hallje.wpd STEVE EDWARD HOUSTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Leslie Curry-Johnson, Nashville, Tennessee, for the appellant, Steve Edward Houston. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. He claims that he received ineffective assistance of appellate counsel on direct appeal. After review, we hold that appellate counsel's decision on direct appeal not to raise potentially improper closing arguments at trial by the prosecutor was neither deficient performance nor prejudicial to the petitioner. We affirm the post-conviction court's denial of the petitioner's petition. http://www.tba.org/tba_files/TCCA/houstonse.wpd STATE OF TENNESSEE v. WILLIAM EDWIN LAMBETH Court:TCCA Attorneys: William B. Lockert, III, District Public Defender (at trial), and Timothy V. Potter, Dickson, Tennessee (on appeal), for the appellant, William Edwin Lambeth. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Dickson County Grand Jury indicted the defendant for rape, and the defendant was convicted of the lesser-included offense of sexual battery. The defendant filed a timely motion for new trial, which was subsequently withdrawn. Almost two months later, the defendant filed a pro se motion alleging his motion for new trial was unilaterally and improperly withdrawn by counsel. Eventually, the trial court held that it lacked jurisdiction to hear the motion for new trial since the defendant's original motion had been withdrawn, and no timely motion was pending. On appeal, defendant contends the trial court's jury charge authorized the jury to convict based on lack of consent, when "force or coercion" was alleged in the indictment. We conclude the motion for new trial was not properly before the trial court, thereby waiving this issue. Nevertheless, we have examined the issue for plain error and conclude defendant's allegation of error is totally without merit. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/lambethwe.wpd STATE OF TENNESSEE v. BARRY MARABLE Court:TCCA Attorneys: Kenneth R. Goble (on appeal) and Roger E. Nell (at trial), Clarksville, Tennessee, for the appellant, Barry Marable. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Barry Marable, appeals from his convictions for aggravated burglary, felony reckless endangerment, felony evading arrest, and misdemeanor theft, contesting the sufficiency of the evidence. We affirm the judgments of conviction except for the one for the evading arrest. We modify that conviction from a Class D felony to a Class E felony and remand the case for sentencing. http://www.tba.org/tba_files/TCCA/marableb.wpd STATE OF TENNESSEE v. FREDDY ALLEN PERRY Court:TCCA Attorneys: Robert D. Massey, Pulaski, Tennesee, for the appellant, Freddy Allen Perry. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Mike Bottoms, District Attorney General; and Richard Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Freddy Allen Perry, pled guilty in the Giles County Circuit Court to four counts of aggravated assault and was sentenced as a standard Range I offender to a total effective sentence of ten years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's denial of full probation and judicial diversion. Upon review of the record and the parties' briefs, we conclude that the trial court erred in failing to state on the record its reasons for denying full probation and judicial diversion; therefore, we reverse the judgment of the trial court and remand for further proceedings. http://www.tba.org/tba_files/TCCA/perryfa.wpd STATE OF TENNESSEE v. DONALD LEE REID Court:TCCA Attorneys: V. Michael Fox, Nashville, Tennessee, for the appellant, Donald Lee Reid. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County jury found Donald Lee Reid guilty of driving under the influence, first offense. The trial court imposed a sentence of 11 months and 29 days, suspended after service of 15 days confinement, and a fine of $500.00. Reid challenges his conviction, his sentence, and his fine. He raises the following issues on appeal: (1) whether the trial court erred in not conducting a jury-out hearing on the defendant's motion in limine regarding the admissibility of the defendant's BAC test results; (2) whether the trial court erred in allowing the results of the BAC test into evidence; (3) whether the trial court erred in refusing to instruct the jury on driving while impaired as a lesser-included offense of driving under the influence; (4) whether the defendant's sentence is excessive; and (5) whether the trial court unconstitutionally imposed a fine of $500.00 since the defendant did not waive his right for the jury to assess the fine. After a careful review of the record, we remand for a jury to assess the fine but affirm in all other respects. http://www.tba.org/tba_files/TCCA/reiddl.wpd STATE OF TENNESSEE v. SHARON RHEA Court:TCCA Attorneys: Julie A. Rice (on appeal), Knoxville, Tennessee; and Mack Garner, Assistant District Public Defender (at trial), Maryville, Tennessee, for the Appellant, Sharon Rhea. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Michael L. Flynn, District Attorney General; and William Reed, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to two counts of introduction of drugs into a penal institution. Her plea agreement required her to serve two concurrent six-year sentences for the offenses, but left the manner of service to the discretion of the trial court. Following a sentencing hearing, the trial court ordered the Defendant to serve her sentences in the Tennessee Department of Correction. The Defendant appeals this decision, arguing that the trial court erred by not ordering an alternative sentence. Because we conclude that the record in this case supports the denial of alternative sentencing, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/rheas.wpd STATE OF TENNESSEE v. EDWARD A. SCHLEGEL, III Court:TCCA Attorneys: David A. Doyle, District Public Defender, Gallatin, Tennessee, for the appellant, Edward A. Schlegel, III. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Edward A. Schlegel, III, pled guilty to two counts of theft over $1,000.00, Class D felonies. See Tenn. Code Ann. SS 39-14-103, -105. The plea agreement provided for concurrent four-year sentences on each count with 12 months to be served in the local jail and the remainder in the Community Corrections program. As a condition of Community Corrections, the defendant would also be jointly and severally liable to the victim for $3,863.10 in restitution. At the sentencing hearing, the trial court ordered the defendant to pay an additional $2,500.00 in "special damages," half of the estimated cost to install a security fence at the victim's business location. In this appeal of right, the defendant contends that the trial court erred by ordering him to pay restitution in an amount different from that stated in the plea agreement. The sentences for theft are vacated and the cause is remanded. http://www.tba.org/tba_files/TCCA/schlegeledwarda.wpd STATE OF TENNESSEE v. JAMES ELBERT TAYLOR, JR. Court:TCCA Attorneys: Randy P. Lucas, Gallatin, Tennessee, for the appellant, James Elbert Taylor, Jr. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; Ron Blanton, Assistant District Attorney General; and Cara Loeffler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, James Elbert Taylor, Jr., was convicted for the aggravated burglary, aggravated kidnapping, and aggravated assault of his estranged wife, Jennifer Albert. The trial court sentenced the Defendant to four years for the aggravated burglary, ten years for the aggravated kidnapping, and three years for the aggravated assault. The court further ordered that the sentences run consecutively to each other and to Defendant's previous conviction in Louisiana. The Defendant raises these issues on appeal: 1) the trial court erred by allowing evidence of Defendant's prior case in Louisiana, which was not relevant under Rule 404; 2) the trial court erred by ruling that the Defendant could be impeached, under Rule 609, with proof of a conviction for attempted manslaughter in Louisiana; and 3) the trial court erred in ordering consecutive sentencing without making specific findings under Tenn. Code Ann. S 40-35-115. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/taylorjamese.wpd STATE OF TENNESSEE v. RICHARD L. THOMPSON Court:TCCA Attorneys: William K. Cather, Lebanon, Tennessee, for the appellant, Richard L. Thompson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Robert Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: Defendant, Richard L. Thompson, was accused by the Wilson County grand jury of incest of his stepdaughter, in three counts, all occurring between May and August 1999. On January 13, 2000, Defendant agreed to plead guilty to one count of incest for a sentence of six (6) years in the Department of Correction. As part of the plea agreement, Defendant requested a sentencing hearing for the trial court to consider an alternative sentence and probation. At the conclusion of the sentencing hearing, the trial court denied Defendant's request for an alternative sentence and probation and confined Defendant in the Department of Correction for six (6) years. On direct appeal, Defendant raises five (5) issues: (1) Whether the trial court improperly considered a 1989 Pennsylvania conviction for an undetermined offense in finding Defendant was not an appropriate candidate for full probation or split confinement; (2) Whether the trial court erred by finding certain statutory enhancement factors applicable to the determination of how the sentence should be served, where length of sentence was determined in the guilty plea; (3) Whether the trial court erred in finding that the sentence of confinement was necessary to avoid depreciating the seriousness of the offense; (4) Whether the trial court erred in failing to consider whether measures less restrictive than confinement had been applied to this offender; and (5) Whether the trial court erred in failing to consider Defendant's special needs into consideration as a factor that made alternative sentencing (community corrections) particularly appropriate in this case. Upon a review of the record, legal arguments, the briefs of the parties, and applicable law, we find no error. Thus, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/thompsonrl.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! 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