October 1, 2001 Volume 7 — Number 180 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 02 New Opinion(s) from the Tennessee Court of Appeals 06 New Opinion(s) from the Tennessee Court of Criminal Appeals 05 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 ELVIS WAYNE IVEY v. LONG HOLLOW LEASING, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Larry L. Crain, Brentwood, Tennessee, for the appellants, Long Hollow Leasing, Company, Inc., et al. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee,Elvis Wayne Ivey. 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 defendant-employer contends the trial court abused its discretion by (1) awarding the plaintiff- employee a default judgment after the defendant failed to obey an order compelling discovery, and by (2) denying its motion for a new trial. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/iveyelvis.wpd THE ESTATE OF JAMES WENDELL KIRK BY YOUR ADMINISTRATOR, RANDALL LEE KIRK, et al. v. JAMES LOWE Court:TCA Attorneys: Fred N. McLean, Paris, Tennessee, for the appellant, James Lowe. Terry J. Leonard, Camden, Tennessee, for the appellees, Randall Lee Kirk, Administrator of the Estate of James Wendell Kirk and Onellia Kirk. Judge: FARMER First Paragraph: The Plaintiffs in this case sued "John Doe," an unknown driver, for injuries and damages resulting from the death of Plaintiffs' decedent. Process was served on decedent's uninsured motorist insurance carrier pursuant to Tennessee's Uninsured Motor Vehicle Coverage statutes. More than one year after the accident, the identity of the "John Doe" was discovered and Plaintiffs filed an amended complaint, naming him as Defendant. The Defendant moved for summary judgment on the basis that he was never an uninsured motorist, but at all pertinent times was insured, and that the one-year statute of limitations had expired. The trial court denied the motion, and we reverse. http://www.tba.org/tba_files/TCA/kirkjames.wpd DAVID WAYNE ROUSE v. IRA NELL ROUSE Court:TCA Attorneys: Venita Marie Martin, Memphis, Tennessee, for the appellant, David Wayne Rouse. Kay Farese Turner, Martin W. Cash, Jr. and William E. Miller, Memphis, Tennessee, for the appellee, Ira Nell Rouse. Judge: FARMER First Paragraph: This is a divorce action wherein the trial court declared the parties divorced. Husband appeals the trial court's decision to admit evidence regarding his retirement plan; its valuation of the same; its award of rehabilitative alimony to Wife; its award of attorney's fees to Wife; its division of marital debt; its adopting Wife's proposed final decree of divorce; its division of marital property; its admitting evidence regarding Husband's use of pornography; and its refusal to permit Husband's Rule 15 Memorandum in the record on appeal. Additionally, Wife seeks her attorney's fees on appeal. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/rousedavidw.wpd STATE OF TENNESSEE v. HENRY B. BASON Court:TCCA Attorneys: Raymond Mack Garner, District Public Defender, and George H. Waters, Assistant District Public Defender, for the appellant, Henry B. Bason. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Henry B. Bason, appeals from his conviction for disorderly conduct, contesting the sufficiency of the evidence. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/basonhb.wpd STATE OF TENNESSEE v. ANTHONY S. CARIE Court:TCCA Attorneys: John H. Henderson, District Public Defender; C. Diane Crosier, Assistant District Public Defender (at trial); and C. Edward Fowlkes, Nashville, Tennessee (on appeal), for the appellant, Anthony S. Carie. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Anthony S. Carie, appeals his bench trial convictions for burglary of a building other than a habitation and theft over $1,000. This case presents three issues for our determination: (1) whether the evidence was sufficient to support the defendant's convictions; (2) whether the trial court erred in not examining the defendant in open court regarding his right to testify; and (3) whether the defendant received effective assistance of counsel at trial. For the reasons set forth below, we conclude there is no reversible error; therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/carieas.wpd STATE OF TENNESSEE v. ANTHONY H. DEAN Court:TCCA Attorneys: A C Wharton, Jr., Shelby County Public Defender; and W. Mark Ward, Assistant Public Defender, for the appellant, Anthony H. Dean. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; J. Robert Carter, Assistant District Attorney General; and Paula Wulff, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of aggravated rape and sentenced to forty years as a violent offender. He timely appealed, alleging, inter alia, that the trial court erred in not suppressing a confession obtained, following his warrantless arrest, after he had been jailed for five days without a determination of probable cause; in allowing DNA results into evidence; and in permitting a forensic nurse examiner to testify as a keeper of the sexual assault resource center records. Based upon our review, we conclude that testimony regarding the records of the Memphis Sexual Assault Resource Center was properly admitted as business records testimony and that the DNA evidence was properly admitted, as well. We conclude that the defendant's confinement violated his Fourth Amendment rights and that his confession should have been suppressed. However, this error was harmless in light of the other evidence. Accordingly, we affirm the conviction. http://www.tba.org/tba_files/TCCA/deananthonyh.wpd STATE OF TENNESSEE v. ROBERT L. EASTERLY Court:TCCA Attorneys: Wade V. Davies, Knoxville, Tennessee, for the Appellant, Robert L. Easterly. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: In this interlocutory appeal, Robert L. Easterly challenges the Knox County Criminal Court's order denying his motion to dismiss a presentment against him. Easterly claims that the state is barred from prosecuting him for the offense charged in the presentment because (1) the case was not joined with a prior prosecution of him in Sevier County, (2) the criminal conduct charged in the presentment is the same offense for double jeopardy purposes as the case in which he was convicted in Sevier County, and (3) the delay in commencement of the Knox County prosecution violates his speedy trial and due process rights. Because we agree with the defendant that both the mandatory joinder rule and double jeopardy principles bar dual prosecutions, we reverse the trial court's order and dismiss the presentment. http://www.tba.org/tba_files/TCCA/easterlyrl.wpd STATE OF TENNESSEE v. RICKY D. GARDNER Court:TCCA Attorneys: William B. McKenzie, Decatur, Tennessee, for the appellant, Ricky D. Gardner. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Ricky D. Gardner, was convicted of one count of vandalism over $500; one count of vandalism over $1,000; three counts of burglary; one count of burglary of a motor vehicle; three counts of theft over $1,000; two counts of theft under $500; and one count of theft over $500. The trial court imposed an effective six-year sentence to be served in a community corrections program. Later, the trial court revoked the alternative sentence and ordered the defendant to serve the balance of his sentence in the Department of Correction. In this appeal of right, the defendant argues that the trial court erred by ordering revocation. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/gardnerrickyd.wpd STATE OF TENNESSEE v. GERALD L. POWERS Court:TCCA Attorneys: W. Mark Ward, Assistant Public Defender, (on appeal), Memphis, Tennessee; Tony N. Brayton, Assistant Public Defender, (on appeal), Memphis, Tennessee; Garland Erguden, Assistant Public Defender, (on appeal), Memphis, Tennessee; Loyce Lambert-Ryan, Assistant Public Defender, (at trial), Memphis, Tennessee; and Larry H. Nance, (at trial), Memphis, Tennessee, for the appellant, Gerald Powers. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Alice B. Lustre, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy P. Weirich, Assistant District Attorney General; and Jerry R. Kitchen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Gerald L. Powers, was convicted by a jury of first degree felony murder in the perpetration of a robbery and of aggravated robbery. The jury sentenced the Defendant to death for the murder on the basis of three aggravating circumstances: that the Defendant was previously convicted of one or more violent felonies; that the Defendant committed the murder to avoid his arrest and/or prosecution; and that the Defendant committed the murder while committing a kidnapping. The trial court subsequently sentenced the Defendant as a Range III persistent offender to thirty years incarceration for the aggravated robbery, to be served consecutive to the death sentence. In this appeal as of right, the Defendant challenges his convictions, raising the following issues: (1) whether the evidence identifying him as the perpetrator is sufficient; (2) whether a variance between the indictment and the proof at trial is material and prejudicial; (3) whether the trial court had jurisdiction over the crimes; (4) whether the Defendant's wife's testimony should have been suppressed pursuant to the marital communications privilege; (5) whether the trial court erred in refusing to admit evidence in support of a third-party defense; (6) whether the trial court erred in admitting a lay witness's testimony identifying photographs as being of the Defendant; and (7) whether the trial court erred in admitting a deposition taken in Mississippi by a Tennessee notary public. The Defendant challenges the imposition of the death sentence on the following grounds: (1) whether the trial court erred in admitting the facts underlying the Defendant's prior felonies; (2) whether the Defendant's prior felonies were violent within the meaning of the statutory aggravating circumstance; (3) whether the evidence is sufficient to support the jury's finding that the Defendant committed the murder to avoid his arrest and/or prosecution; (4) whether the trial court erred in refusing to admit evidence of the victim's bad character; and (5) whether Tennessee's death penalty scheme is constitutional. Finally, the Defendant contends that the trial court should have sentenced him as a Range II offender for the aggravated robbery. Upon our review of the record and relevant legal authority, we find no reversible error in the Defendant's convictions or in the imposition of the death sentence. We reduce the Defendant's sentence for the aggravated robbery to twenty years. In all other respects, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/powersgl1.wpd Service of Process/right of process server/ refusal of service Date: September 24, 2001 Opinion Number: 01-148 http://www.tba.org/tba_files/AG/OP148.pdf Authority of a private business to refuse to allow a private process server or a sheriff from proceeding onto its business property to serve civil papers. Date: September 24, 2001 Opinion Number: 01-149 http://www.tba.org/tba_files/AG/OP149.pdf Licensing of Home Medical Equipment Providers Date: September 24, 2001 Opinion Number: 01-150 http://www.tba.org/tba_files/AG/OP150.pdf Reducing Number of County Commissioners Date: September 25, 2001 Opinion Number: 01-151 http://www.tba.org/tba_files/AG/OP151.pdf Alderman Serving as Constable Date: September 25, 2001 Opinion Number: 01-152 http://www.tba.org/tba_files/AG/OP152.pdf PLEASE FORWARD THIS E-MAIL! 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