September 25, 2001 Volume 7 — Number 176 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 02 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0924.wpd IN RE: TENNESSEE LAWYER ASSISTANCE PROGRAM Court:TSC - Rules On January 7, 1999, this Court adopted Rule 33 of the Rules of the Supreme Court establishing the Tennessee Lawyer Assistance Program ("TLAP") and appointed a Commission to administer TLAP. In accordance with Rule 33.02(D)(1), the Commission established policies and procedures consistent with Rule 33 and, by order of December 14, 2000, gave notice and opportunity for comment to the Tennessee bench and bar. Comments were received from the Tennessee Association of Criminal Defense Lawyers and the Knoxville Bar Association. The comment period expired March 31, 2001. The Court wishes to thank all who participated in this process for their views, responses, and assistance. Accordingly, it is ORDERED that the Tennessee Lawyer Assistance Program Policies and Procedures, as attached to this Court's order of December 14, 2000, are approved and adopted by this Court in accordance with Rule 33.02(D)(1). http://www.tba.org/tba_files/TSC_Rules/lawyersassist_ord.wpd DAVID NEVILLS v. SOUTH CENTRAL CORRECTIONAL DISCIPLINARY BOARD Court:TCA Attorneys: David Nevills, Clifton, TN, pro se Tom Anderson, Jackson, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves the denial of a petition for writ of certiorari brought in chancery court by a state prisoner. The prisoner requested review of actions allegedly in violation of due process taken by a prison disciplinary review board. The chancery court granted a motion for summary judgment in favor of the disciplinary review board and for the following reasons, we affirm. http://www.tba.org/tba_files/TCA/nevillsdavid.wpd JACKIE ROBINSON v. PATRICK J. LECORPS, M.D. Court:TCA Attorneys: Mary A. Parker, Nashville, Tennessee, Richard D. Piliponis, Mt. Juliet, Tennessee, for the appellant, Jackie Robinson. C. Hayes Cooney, Nashville, Tennessee, for the appellee, Patrick J. Lecorps, M.D. Judge: COTTRELL First Paragraph: This case arises from a medical malpractice suit in which defendant's motion to dismiss was granted pursuant to Tenn. Code Ann. S 29-26-115 after plaintiff's sole expert was excluded from testifying because his testimony was based on a national standard of orthopedic care. For the reasons below, we affirm the lower court's decision to exclude the plaintiff's medical proof. We also affirm the dismissal of the case. http://www.tba.org/tba_files/TCA/robinsonj.wpd STATE OF TENNESSEE v. THOMAS E. COWAN, JR. Court:TCCA Attorneys: Thomas E. Cowan, Jr., Pro Se. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Dennis Brooks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Thomas E. Cowan, Jr., was found guilty of contempt. The trial court imposed a jail sentence of 10 days, six of which were suspended. In this appeal of right, the defendant argues that the evidence was insufficient; that the trial judge should not have acted as a witness; and that the sentence was excessive. Because the evidence was insufficient, the judgment is reversed and the cause dismissed. http://www.tba.org/tba_files/TCCA/cowanthomase.wpd STATE OF TENNESSEE v. NEIL FRIEDMAN Court:TCCA Attorneys: Thomas E. Cowan, Jr., for the appellant, Neil Friedman. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; and Ken Baldwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Neil Friedman, was convicted of driving under the influence, third offense, and driving on a revoked license. The trial court imposed a sentence of 11 months and 29 days, six months of which was to be served in the county jail, for driving under the influence. A consecutive sentence of six months, 30 days of which was to be served, was imposed for driving on a revoked license. This court affirmed the judgment on direct appeal. State v. Neil M. Friedman, No. 03C01- 9704-CR-00140 (Tenn. Crim. App., at Knoxville, Apr. 14, 1998). The application for permission to appeal to the supreme court was denied December 21, 1998. In a hearing conducted on the following day, the trial court reduced the DUI sentence to 120 days, which the defendant has since served, followed by seven months and 29 days of probation. Over one year later, the trial court revoked the probation and ordered service of the remainder of the sentence. In this appeal, the defendant contends that the trial court no longer had authority to revoke the probation. Because the sentence had been fully served and the probationary term had ended when the probation revocation warrant was issued, the judgment must be reversed and the cause dismissed. http://www.tba.org/tba_files/TCCA/friedmanneil.wpd STATE OF TENNESSEE v. GRADY PAUL GATLIN Court:TCCA Attorneys: Michael J. Collins, Shelbyville, Tennessee, for the appellant, Grady Paul Gatlin. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Mike McCowen, District Attorney General, and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Grady Paul Gatlin, was convicted by a jury of possession with intent to sell a schedule IV controlled substance, possession with intent to sell a schedule II controlled substance, possession of drug paraphernalia, and conspiracy to possess with intent to sell a schedule II controlled substance. In this appeal as of right, the Defendant argues (1) that the evidence introduced at trial was insufficient to prove that the Defendant intended to sell controlled substances and (2) that it was plain error for the trial court to fail to instruct the jury on the lesser included offense of casual exchange. We reverse the Defendant's convictions for possession with intent to sell a controlled substance and also his conviction for conspiracy to possess with intent to sell a controlled substance. The Defendant's conviction for possession of drug paraphernalia remains unaffected. http://www.tba.org/tba_files/TCCA/gatlingp_opn.wpd WITT CONCURRING AND DISSENTING http://www.tba.org/tba_files/TCCA/gatlingp_con.wpd RILEY DISSENTING http://www.tba.org/tba_files/TCCA/gatlingp_diss.wpd STATE OF TENNESSEE v. THOMAS L. JONES Court:TCCA Attorneys: Brett B. Stein and Larry A. Diamond, Memphis, Tennessee, for the appellant, Thomas L. Jones. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant was convicted by a jury in the Shelby County Criminal Court of second degree murder and was sentenced as a violent offender to twenty-one years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the evidence was sufficient to convict the appellant of second degree murder; and (2) whether the trial court erred by refusing to grant a mistrial because of improper jury instructions characterizing the appellant's statement as a confession. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jonestl.wpd STATE OF TENNESSEE v. TERRY A. ROGIER Court:TCCA Attorneys: Kyle C. Atkins, Humboldt, Tennessee, for the Appellant, Terry A. Rogier. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Laura McMullen Ford, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Terry A. Rogier, by means of an interlocutory appeal seeks review of the trial court's decision affirming the district attorney general's denial of pre-trial diversion. Rogier was indicted by a Madison County Grand Jury for the offenses of reckless endangerment, a class E felony, and reckless driving, a class B misdemeanor. After review, we find that the prosecutor failed to consider all the relevant factors in denying diversion. Accordingly, we reverse the trial court's finding that the prosecutor did not abuse his discretion and remand to the trial court for further proceedings. http://www.tba.org/tba_files/TCCA/rogierterrya.wpd KENTRAIL STERLING v. STATE OF TENNESSEE Court:TCCA Attorneys: Kentrail Sterling, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy P. Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of two counts of especially aggravated kidnapping and two counts of aggravated robbery pursuant to Tennessee Code Annotated SS 39-13-305 and 402. In this appeal the defendant raises the following issues: 1) whether the trial court had jurisdiction to try the defendant; 2) whether the judgments of the trial court for especially aggravated kidnapping are void because the defendant was not provided sufficient notice of the charged offenses; 3) whether Tennessee Code Annotated SS 39-13-304(b)(2) and 305(a) are unconstitutionally vague and ambiguous since both statutes contain only one aggravating element - the employment of a deadly weapon; 4) whether trial counsel displayed impropriety during closing arguments by erroneously stating that the defendant had previously confessed to the crimes he was charged with; 5) whether counsel was ineffective; 6) whether the jury charge was "unconstitutionally vague and ambiguous for failure to charge as to any elements constituting especially aggravated kidnapping," and 7) whether the defendant's consecutive and enhanced sentences were proper. After examining each of these issues raised by the defendant we modify the aggravated robbery sentences but otherwise affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/sterlingk.wpd KELVIN A. TAYLOR v. STATE OF TENNESSEE Court:TCCA Attorneys: Vanedda Prince Webb, Union City, Tennessee, for the Appellant, Kelvin A. Taylor. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Thomas A. Thomas, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Kelvin A. Taylor, appeals from the dismissal of his petition for post-conviction relief by the Weakley County Circuit Court. Pursuant to a negotiated plea agreement, Taylor entered a "best interest" plea to class D felony child abuse, and was sentenced to six years in the Department of Correction as a range II offender. In this collateral attack of his conviction, Taylor presents two issues for our review: (1) whether the general sessions court's revocation of his bond without a hearing and the resulting confinement prior to indictment violated double jeopardy and due process rights; and (2) whether trial counsel was ineffective. After a review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/taylorkelvina.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. 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