October 15, 2001 Volume 7 — Number 190 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1015.wpd DENISE B. FRAZIER v. ROBERT G. FRAZIER Court:TCA Attorneys: Judy Pinkston McCarthy and Dennis McCarthy, Knoxville, Tennessee, for Appellant, Denise B. Frazier. Wanda G. Sobieski, Diane M. Messer and Nanette J. Landen, Knoxville, Tennessee, for Appellee, Robert G. Frazier. Judge: FRANKS First Paragraph: Appellant ask the Court to void portions of the marital settlement agreement incorporated in the parties' Divorce Decree in the State of Illinois. The Trial Court refused and granted appellee summary judgment. We affirm. http://www.tba.org/tba_files/TCA/frazierd.wpd HAROLD LEE JACKSON v. JIM ROUT, Mayor of Shelby County, et al. Court:TCA Attorneys: Harold Lee Jackson, Pro Se Donnie E. Wilson, Shelby County Attorney; Renee Allen-Walker, Senior Assistant County Attorney, For Appellees Judge: CRAWFORD First Paragraph: Citizen filed a petition against county mayor, county sheriff, and county commissioner of public records alleging that he was not furnished the records that he had requested. The trial court sustained the respondent's motion to dismiss for failure to state a claim upon which relief can be granted. Petitioner appeals. We affirm. http://www.tba.org/tba_files/TCA/jacksonhar.wpd STATE OF TENNESSEE v. PATRICIA ADKISSON Court:TCCA Attorneys: John P. Cauley, Franklin, Tennessee (on appeal), and Douglas T. Bates, III, Centerville, Tennessee (at trial), for the appellant, Patricia Adkisson. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Judson Phillips and Kenneth K. Crites, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Patricia Adkisson, who was charged with 253 counts of animal cruelty and one count of tampering with evidence, was convicted on three counts of animal cruelty. See Tenn. Code Ann. SS 39-14-202, 39-16-503. The trial court imposed three consecutive terms of 11 months, 29 days, and granted supervised probation. As a condition of probation, the defendant was prohibited from owning any caged animals for a period of five years. The defendant appealed. Later, the trial court revoked probation and a second appeal followed. In this consolidated proceeding, the defendant claims that (1) the trial court erred by denying her motion to suppress evidence gathered during the initial search of her property; (2) the evidence was insufficient; (3) the sentence was improper; and (4) the trial court lacked authority to revoke her probation. Because the search of the defendant's premises violated constitutional principles, the trial court erred by failing to suppress the evidence which led to the convictions. Accordingly, the convictions are reversed and the causes are remanded. http://www.tba.org/tba_files/TCCA/adkissonp.wpd STATE OF TENNESSEE v. MICHAEL DEAN BAUGH Court:TCCA Attorneys: Donna L. Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender, for the appellant, Michael Dean Baugh. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant entered a best interest guilty plea to aggravated burglary for an agreed sentence of three years as a Range I standard offender, with the potential for alternative sentencing left to the discretion of the trial court, and a misdemeanor theft count was dismissed. Prior to the sentencing hearing, the defendant filed a motion to set aside his plea pursuant to Tenn. R. Crim. P. 32(f), claiming he unknowingly entered it. Following a hearing, the trial court concluded the plea was knowingly entered and denied the defendant's request for alternative sentencing. In this appeal, the defendant claims the trial court erred (1) by denying his motion to withdraw his guilty plea, and (2) by denying alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/baughmd.wpd STATE OF TENNESSEE v. ANGELA H. BLACK Court:TCCA Attorneys: Ross E. Alderman, Public Defender; C. Dawn Deaner, Assistant Public Defender (at trial and on appeal); and James P. McNamara, Assistant Public Defender (at trial), for the appellant, Angela H. Black. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County jury convicted the defendant of theft over $60,000, a Class B felony. The defendant contends in this appeal that (1) the trial court erred in allowing the testimony of a state's witness who heard the victim's testimony despite the trial court's order to sequester witnesses; and (2) the trial court erred in not giving an enhanced unanimity instruction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/blackah.wpd STATE OF TENNESSEE v. JAMES FRANK ELKINS, JR. Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal) and Robert Stovall, Pulaski, Tennessee, (at trial) for the Appellant, James Frank Elkins, Jr. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the Appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: Following a jury trial, Defendant, James Frank Elkins, Jr., was convicted of aggravated sexual battery. Defendant was sentenced to twelve years in the Department of Correction. In his appeal of right, Defendant presents three appellate issues: (1) Whether the trial court erred in failing to charge the jury with the lesser-included offense of child abuse; (2) whether the trial court erred in denying Defendant's Tenn. R. Evid. 412 motion, which sought to explore the alleged victim's knowledge regarding sexual behavior on cross-examination; and (3) whether the trial court erred in allowing the victim to testify at sentencing when "the Rule," Tenn. R. Evid. 615, was violated and the State had already closed its proof in chief. After review, we find no error and affirm the judgment. http://www.tba.org/tba_files/TCCA/elkinsjf.wpd STATE OF TENNESSEE v. MICHAEL FIELDS Court:TCCA Attorneys: Thomas Meeks, Clarksville, Tennessee (at trial), Gregory D. Smith, Clarksville, Tennessee (on appeal), and Roger Nell, Public Defender (on appeal), for the appellant, Michael Fields. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: In 1992, the defendant, Michael Fields, was convicted of two counts of sale of cocaine; the trial court imposed concurrent sentences of eight years in community corrections. In 1993, the defendant pled guilty to possession of cocaine with intent to sell; the trial court imposed an additional sentence of eight years in community corrections and ordered it to be served concurrently with the 1992 sentences. In February of 1997, the trial court revoked the community corrections sentences and ordered the defendant to serve the remainder of his sentences in the Department of Correction. In May of 1997, the defendant entered a plea of nolo contendere to possession with intent to sell less than one-half gram of cocaine; the trial court imposed a sentence of three years, consecutive to his prior sentences, for an effective sentence on all offenses of 11 years, and granted probation. On July 1, 1998, a probation violation warrant was filed in all three cases. The defendant was ordered to serve 30 days of periodic confinement for the violations. On August 1, 1999, another probation violation warrant, which was later amended, was served on the defendant. Ultimately, probation in all three cases was revoked. In this appeal of right, the defendant complains that he had completed his sentence and the trial court had no authority to revoke probation. In the alternative, the defendant argues that if the sentence had not been completed, he should have been returned to intensive probation. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/fieldsmichael.wpd STATE OF TENNESSEE v. MARTIN STUART HAMMOCK Court:TCCA Attorneys: Leslie A. Bruce, Nashville, Tennessee, for the appellant, Martin Stuart Hammock. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: After a trial, Defendant, Martin Stuart Hammock, was found guilty by a Davidson County jury of murder first degree. In accordance with the jury's verdict, the trial court imposed a sentence of life imprisonment with parole. Also accused of murder first degree was a co-Defendant, Brent Rollins, with Angela Watson being indicted for Accessory After the Fact to murder first degree. The co- Defendants were severed prior to trial. In this direct appeal, Defendant contends that: (1) the trial court erred in denying introduction of testimony from the victim's neighbor, David Thompson, regarding the victim's past violent behavior; and (2) the verdict was contrary to the evidence and law in that the proof was insufficient to support a verdict of guilty. After reviewing the record, we reverse, modify and remand the trial court's judgment. http://www.tba.org/tba_files/TCCA/hammockms.wpd STATE OF TENNESSEE v. CAYLE WAYNE HARRIS Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); and Robert H. Stovall, Pulaski, Tennessee (at trial and on appeal), for the appellant, Cayle Wayne Harris. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; Mike Bottoms, District Attorney General; and Richard Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Cayle Wayne Harris, was convicted of three counts of rape of a child. The jury assessed a fine of $50,000 for each count and the trial court imposed sentences of twenty-one years for each offense, two terms to be served concurrently and one to be served consecutively. The effective sentence is, therefore, forty-two years. In this appeal of right, the defendant contends that the evidence was insufficient. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/harriscaylewayne.wpd STATE OF TENNESSEE v. JOHNIE JEFFERSON and LARRY JOHNSON Court:TCCA Attorneys: John F. Canale, III, Memphis, Tennessee, for the Appellant, Johnie Jefferson; and Harry E. Sayle, III, Memphis, Tennessee, for the Appellant, Larry Johnson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Kenneth R. Roach, Assistant District Attorney General; and Terrell L. Harris, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendants, Johnie Jefferson and Larry Johnson, were found guilty by a Shelby County jury of first degree murder in No. W1999-00747-CCA-R3-CD. Both Defendants received life sentences with the possibility of parole. The Defendants now appeal, arguing (1) that there was insufficient evidence to convict them of first degree premeditated murder, (2) that the trial court erred in admitting into evidence a demonstrative exhibit showing the organizational structure of the Gangster's Disciples, (3) that the trial court erred in allowing the jury to take an exhibit showing the organizational structure of the Gangster's Disciples into the jury room during deliberations, (4) that the trial court erred in admitting for impeachment purposes Jefferson's prior convictions, (5) that the trial court erred in denying Jefferson's motion to sever, and (6) that the trial court erred in allowing into evidence the contents of Johnson's car. In addition, Defendant Jefferson sought relief in a petition for a writ of error coram nobis, which was denied by the trial court. Jefferson's appeal from the denial of this petition came before this court in a separate appeal, No. W2000-01970-CCA-R3- CO; however, both cases were consolidated for appellate purposes. We find no reversible error with regard to any of the issues raised; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jeffersonj.wpd STATE OF TENNESSEE v. DENNIS HARRY JOHNSON Court:TCCA Attorneys: Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Dennis Harry Johnson. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Dennis Harry Johnson, pled guilty to two counts of sexual exploitation of a minor. The trial court imposed a sentence of one year and six months on each count, to be served consecutively, for an effective sentence of three years. In this appeal of right, the defendant argues that the trial court erred by denying his request for alternative sentencing and by ordering the sentences to be served consecutively. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/johnsondennish.wpd STATE OF TENNESSEE v. JERRY W. JORDAN Court:TCCA Attorneys: Paul J. Bruno, Nashville, Tennessee, for the appellant, Jerry W. Jordan. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jerry W. Jordan, was convicted of second degree murder in the Criminal Court of Davidson County. After a sentencing hearing, the trial court sentenced the Defendant as a Range I offender to twenty-two years of imprisonment. In his appeal as of right pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure, the Defendant argues that (1) the evidence presented at trial was insufficient to support a verdict of guilt beyond a reasonable doubt, (2) the Defendant's Due Process and Equal Protection rights were violated when the State excluded four African- American jurors, (3) the trial court erred in failing to instruct the jury as to reckless homicide as a lesser-included offense, and (4) the trial court erred in sentencing the Defendant to twenty-two years. We reverse the Defendant's second degree murder conviction due to the trial court's failure to instruct the jury regarding reckless homicide as a lesser-included offense to first degree murder. http://www.tba.org/tba_files/TCCA/jordanjw_opn.wpd RILEY CONCURRING IN PART AND DISSENTING IN PART http://www.tba.org/tba_files/TCCA/jordanjw_dis.wpd STATE OF TENNESSEE v. MATTHEW DeLOSS LARSEN and ANDREW LEE MATTHEWS Court:TCCA Attorneys: Randy P. Lucas, Gallatin, Tennessee, for the appellant, Matthew DeLoss Larsen; and Cheryl J. Skidmore, for the appellant, Andrew Lee Matthews. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendants, Matthew DeLoss Larsen and Andrew Lee Matthews, were indicted for aggravated robbery and aggravated assault. Pursuant to negotiated plea agreements, the defendants pled guilty to robbery, Tenn. Code Ann. S 39-13-401, and aggravated assault, Tenn. Code Ann. S 39-13-102, both Class C felonies. The defendants also agreed to serve consecutive sentences, with the manner of service and length of their sentences to be determined by the trial court. Following a sentencing hearing, the trial court imposed five-year sentences for each felony conviction and denied any form of alternative sentencing, which resulted in effective sentences of ten years confinement for both defendants. In this appeal, Larsen and Matthews separately challenge their sentences on similar grounds, essentially alleging that the trial court erred by (1) finding no mitigating factors were applicable in their respective cases, and (2) denying both defendants any form of alternative sentencing. Our de novo review reveals that the trial court erred in its application of enhancement factors. After a thorough review of applicable law and all relevant facts and circumstances in the record, we modify the trial court's sentencing determination concerning the length of the defendants' sentence for aggravated assault and affirm all other aspects of the judgment of the trial court. http://www.tba.org/tba_files/TCCA/larsenmatthewd.wpd STATE OF TENNESSEE v. LINNELL RICHMOND and SHERVON JOHNSON Court:TCCA Attorneys: Wade V. Davies, Knoxville, Tennessee (on appeal) and Keith E. Haas, Sevierville, Tennessee (at trial) for the appellant, Linnell Richmond; Julie A. Rice (on appeal) and Timothy E. Irwin (at trial) Knoxville, Tennessee, for the appellant, Shervon Johnson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney; for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, a Knox County jury found the Defendants, Linnell Richmond and Shervon Johnson, guilty of aggravated robbery, attempted aggravated robbery and two counts of attempted first degree premeditated murder. Defendant Johnson was also convicted of the additional attempted aggravated robbery of Leonard Hill. The trial court sentenced Defendant Richmond to an effective sentence of twenty-two years for his convictions. Defendant Johnson was order to serve an effective sentence of seventy years for his convictions. The trial court further ordered that both Defendants serve their state sentences consecutively to a federal sentence arising out of the same situation and conduct as the state sentences. In this appeal as of right, the Defendants raise the following issues: 1) whether the evidence was sufficient to convict each Defendant of attempted first degree premeditated murder, attempted aggravated robbery and aggravated robbery; 2) whether the trial court erred in failing to instruct the jury on the natural and probable consequences rule; 3) whether the trial court erred in allowing the state to proceed under a theory of criminal responsibility against Defendant Richmond, when the indictment failed to charge him with criminal responsibility; 4) whether the trial court erred in failing to charge lesser-included offenses; 5) whether the trial court erred in failing to allow the victim, Mose Cuxart, to be impeached with false statements concerning his income tax returns; 6) whether the trial court erred in admitting photographs of Shannon Brown and Kevin Brown; 7) whether the trial court erred in amending the indictment for aggravated robbery; and 8) whether the trial court erred in ordering the Defendants' state sentence to run consecutively to their federal sentence. After a thorough review of the evidence and the applicable law, a majority of the panel affirms each of Defendant Johnson's convictions and sentences. A majority of the panel reverses and remands for a new trial Defendant Richmond's convictions for aggravated robbery, attempted aggravated robbery, and attempted murder. http://www.tba.org/tba_files/TCCA/richmondl_opn.wpd WADE CONCURRING http://www.tba.org/tba_files/TCCA/richmondl_con.wpd SMITH CONCURRING IN PART AND DISSENTING IN PART http://www.tba.org/tba_files/TCCA/richmondl_dis.wpd STATE OF TENNESSEE v. LINDA G. ROBISON Court:TCCA Attorneys: Justin Johnson, Nashville, Tennessee, for the appellant, Linda G. Robison. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; and Charles Michael Layne, District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Linda G. Robison, appeals from the revocation of her probation. She contends that her probation expired before the revocation warrant issued, thereby divesting the trial court of the power to revoke her probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/robisonlg_opn.wpd ANTHONY JEROME STOKES v. STATE OF TENNESSEE Court:TCCA Attorneys: Anthony Jerome Stokes, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and J. Ross Dyer, Assistant Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: In 1995, the petitioner entered pleas of guilty to two counts of murder. Subsequently, he filed a petition for post-conviction relief attacking his sentence. Relief was denied by both the post- conviction court and this court. His post-conviction counsel neither withdrew nor filed an application for permission to appeal. Subsequently, he filed a number of other pleadings of various types, including a second petition for post-conviction relief, the dismissal of which is the basis for this appeal. Through that petition, he sought to file an application for permission to appeal to the supreme court the judgment of this court affirming dismissal of his first petition for post-conviction relief. Based upon our review, we remand the matter to the post-conviction court for an evidentiary hearing. http://www.tba.org/tba_files/TCCA/stokesanthonyj.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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