November 9, 2001
Volume 7 — Number 209

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
00 New Opinion(s) from the Tennessee Court of Appeals
05 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
 

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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

DAVID KEE v. UNIMIN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:

Richard C. Manglesdorf, Jr., and Thomas J. Dement, II, Nashville,
Tennessee, for the appellant, Unimin Corporation

Terry J. Leonard, Camden, Tennessee, for the appellee, David Kee                        

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.  This is an
action by an injured employee to recover workers' compensation
benefits for three separate claimed injuries by accident occurring at
different times.  After a trial on the merits, the trial judge
dismissed the claim based on an arm injury for insufficient proof that
it occurred at work, but awarded, inter alia, permanent partial
disability benefits based on 40 percent to the body as a whole for the
injuries to the neck and back.  The employer has appealed contending
(1) the evidence preponderates against the trial court's finding that
the employee's claimed neck injury is compensable and (2) the trial
court erred in awarding permanent disability benefits for the neck
injury and for an admittedly compensable low back injury.  As
discussed below, the panel has concluded the judgment should be
affirmed.

http://www.tba.org/tba_files/TSC_WCP/keedavid.wpd







STATE OF TENNESSEE v. NORDELL BUGGS

Court:TCCA

Attorneys: 

Larry B. Felts, Nashville, Tennessee, for the appellant, Nordell
Buggs.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams
III, 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:

Defendant contends that the evidence was insufficient to support the
convictions of attempted burglary and possession of burglary tools. 
We affirm the judgments from the trial court.

http://www.tba.org/tba_files/TCCA/buggsn.wpd







STATE OF TENNESSEE v. RITA DAVIS

Court:TCCA

Attorneys:

John H. Dickey, Fayetteville, Tennessee, for the Appellant, Rita
Davis.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and  Weakley E. Barnard,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Rita Davis, pled guilty to one count of failure to
appear, a class E felony, and was sentenced as a career offender to
six years confinement.  No direct appeal of her sentence was taken. 
Davis then filed a petition for post-conviction relief, requesting (1)
a delayed direct appeal of her sentence; and (2) that her conviction
be vacated upon grounds: (a) that her guilty plea was involuntarily
entered based upon ineffective assistance of counsel; and (b) that her
conviction was obtained in violation of "constitutional due process
rights."

After review, we find that the post-conviction court's consolidation
of issue (1), granting the direct appeal of her sentence, and issue
(2), the collateral review of Davis' challenge to her conviction
through post-conviction process, conflicts with our previous holding
in Gibson v. State, 7 S.W.3d 47 (Tenn. Crim. App. 1998).  Thus,
consistent with Gibson,  we reverse and remand issue (2)  with
instructions that Davis' collateral attack of her conviction be
dismissed without prejudice.  With respect to issue (1), we grant
review of Davis' six-year sentence.  After review, we find this issue
is without merit and affirm her sentence as imposed.


http://www.tba.org/tba_files/TCCA/davisrita.wpd







STATE OF TENNESSEE v. PAMELA SUE KING

Court:TCCA

Attorneys:     

Michael A. Colavecchio (on appeal) and Lionel R. Barrett, Jr. (at
trial), Nashville, Tennessee, for the appellant, Pamela Sue King.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Pamela S. Anderson, Assistant District Attorney General,
for the appellee, State of Tennessee.                     

Judge: SMITH

First Paragraph:

The defendant, Pamela Sue King, was indicted by a Davidson County
Grand Jury on one count of first degree premeditated murder.  She was
subsequently convicted by a jury of second degree murder, and was
sentenced by the trial court to twenty-three years incarceration at
100% as a violent offender.  Following the denial of her motion for a
new trial, she filed a timely appeal to this court, raising two
issues: (1) whether the evidence was sufficient to support her
conviction for second degree murder; and (2) whether the trial court
erred in allowing the jury to use a dictionary in its deliberations.  
After a review of the record, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/kingpamela.wpd







STATE OF TENNESSEE v. JOHNNY MORROW

Court:TCCA

Attorneys:       

Philip A. Condra, Jasper, Tennessee, for the Appellant, Johnny Morrow.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; James Michael Taylor, District Attorney General, for the
Appellee, State of Tennessee.                   

Judge: HAYES

First Paragraph:

The Appellant, Johnny Morrow, a former member of the Tennessee Army
National Guard, was convicted by a jury of five penal provisions of
the Tennessee Military Code of 1970.  The convictions were merged into
a single Class E felony offense of fraud against the government, in
violation of Tenn. Code Ann. S 58-1-630(3).  Morrow appeals his
conviction, arguing: (1) that the penal provisions of Title 58, which
are peculiar to the military, are not applicable to a member of the
National Guard when not on active duty or in drill status; and (2)
that  his prosecution was barred by the statute of limitations.  After
review, we find merit in Morrow's argument that three of his
convictions (Counts II, III, and IV), including  his felony conviction
of fraud against the government, did not occur while in a drill or
duty status; therefore, these convictions are reversed and dismissed. 
We find that two of his convictions (Counts V and VI), both
misdemeanors, are not subject to a drill or duty status requirement
and, after finding they are not barred by the statute of limitations,
these convictions are affirmed.  Accordingly, the judgment is affirmed
in part, reversed in part, and remanded for misdemeanor sentencing.


http://www.tba.org/tba_files/TCCA/morrowjohnny.wpd







STATE OF TENNESSEE v. KENNETH LEE PIPKIN

Court:TCCA

Attorneys:

Kenneth R. Goble, Jr., Clarksville, Tennessee, for appellant, Kenneth
Lee Pipkin.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; David H. Findley, Assistant Attorney General; Dan
Alsobrooks, District Attorney General; and George Sexton, District
Attorney General, for appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

A Stewart County grand jury indicted the defendant on one count of
first degree murder involving Marilyn June Adkins' death.  Following a
jury trial, he stood convicted of second degree murder.  For this
offense he received fifteen years as a Range I, standard offender. 
Thereafter the defendant elected not to file a new trial motion and
waived his right to bring a direct appeal. Nevertheless, he later
filed a post-conviction petition alleging five grounds for relief. 
Finding that trial counsel had provided ineffective assistance in
advising the defendant regarding  waiving direct appeal, this Court
allowed him to file a delayed appeal. See Kenneth Lee Pipkin v. State,
No. 01C01-9608-CC-00328, 1997 WL 749441 at *1, 8-9 (Tenn. Crim. App.
at Nashville, Dec. 4, 1997.) As no new trial motion had been brought,
the defendant was also allowed to file such motion. See id. at *9.
Through this motion the defendant unsuccessfully alleged that there
was insufficient evidence to support his conviction.  He now brings
the same issue before this Court.  However, after reviewing the
matter, we find it to lack merit and affirm the action of the lower
court.

http://www.tba.org/tba_files/TCCA/pipkinkenneth.wpd

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