Opinion Flash

January 28, 2002
Volume 8 — Number 016

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):
 
02 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
04 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. JOHNNIE BELL, JR.

Court:TSC

Attorneys:

George Todd East, Kingsport, Tennessee, for the appellant, Johnnie
Bell, Jr.

Paul G. Summers, Attorney and Reporter; Michael E. Moore, Solicitor
General; Patricia C. Kussmann, Assistant Attorney General; H. Greeley
Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant
District Attorney General, for the appellee, State of Tennessee.                         

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine the following issues:  (1) whether
the district attorney general abused his discretion by failing to
consider and weigh evidence favorable to the defendant before denying
the defendant's request for pretrial diversion; and (2) whether the
trial court erred in upholding the denial of pretrial diversion
despite the district attorney general's failure to consider and weigh
evidence favorable to the defendant.  A majority of the Court of
Criminal Appeals recognized that the district attorney general abused
his discretion by failing to consider and weigh all of the relevant
factors, including evidence favorable to the defendant, but
nevertheless concluded that the trial court properly found that
substantial evidence supported the denial of pretrial diversion. After
a thorough review of the record and relevant authority, we hold that
when the district attorney general denies pretrial diversion without
considering and weighing all the relevant factors, including
substantial evidence favorable to the defendant, there is an abuse of
prosecutorial discretion.  We further hold that in such a case, the
proper remedy under the applicable standards of review requires a
remand for the district attorney general to consider and weigh all of
the relevant factors to the pretrial diversion determination.  The
judgment of the Court of Criminal Appeals is reversed, and this case
is remanded for the district attorney general's further consideration
of the defendant's pretrial diversion application in a manner
consistent with this opinion.

http://www.tba.org/tba_files/TSC/belljohn_opn.wpd

STATE OF TENNESSEE v. JOHNNIE BELL, JR.

HOLDER DISSENTING

http://www.tba.org/tba_files/TSC/belljohn_dis.wpd

WHIRLPOOL CORPORATION v. KETKEO NAKHONEINH

Court:TSC

Attorneys:

D. Russell Thomas and Herbert Schaltegger, Murfreesboro, Tennessee,
for the appellant, Ketkeo Nakhoneinh.

David Terence Hooper, Brentwood, Tennessee, for the appellee,
Whirlpool Corporation.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether the employee proved by a
preponderance of the evidence that (1) she complied with the notice
requirement of Tenn. Code Ann. S 50-6-201 and that (2) her injury was
caused by her employment as required by Tenn. Code Ann. S 50-6-103(a).
 We hold that she complied with the notice requirement and that her
injury arose out of her employment.  The judgment of the trial court
and the Special Workers' Compensation Appeals Panel is reversed.  The
case is remanded to the trial court for proceedings consistent with
this opinion.

http://www.tba.org/tba_files/TSC/whirlpool.wpd

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0128.wpd

CHERYL DIANE AUTRY v. JAMES TRAVIS AUTRY

Court:TCA

Attorneys:

Thomas Edward Nelson, Nashville, Tennessee, for the appellant, James
Travis Autry.

Cheryl Diane Autry, Nashville, Tennessee, Pro Se.

Judge: CAIN

First Paragraph:

This appeal involves the issuance of an order of protection.  The
parties were married on May 18, 1999.  One minor daughter was born to
the marriage.  On June 10, 2001, there was a struggle between the
parties over the child.  The appellee sought an order of protection. 
A hearing was held on June 28, 2001, on Mrs. Autry's petition.  Both
parties were present at the hearing.  After hearing the testimony, the
trial court granted Mrs. Autry an order of protection, set child
support, and ordered the minor child removed from TennCare insurance
coverage.

http://www.tba.org/tba_files/TCA/autrycheryl.wpd

RANDALL DEWAYNE HENLEY, et al. v. RUSSELL DALE AMACHER, et al.

Court:TCA

Attorneys:

Paul Campbell, Jr., Chattanooga, Tennessee, for the appellants,
Kenneth D. Amacher and Russell Dale Amacher.

Robert S. Peters, Winchester, Tennessee, for the appellees, Randall
Dewayne Henley and Deborah Henley.

Judge: KOCH

First Paragraph:

This appeal involves an early morning, drunken joyride by four
teenagers that ended when their sport utility vehicle overturned.  One
of the passengers who was injured when he was thrown from the vehicle
sued the driver and his father in the Circuit Court for Franklin
County seeking $200,000.  A jury assessed the passenger's damages and
attributed 75% of the fault to the driver and 25% of the fault to the
passenger.  In accordance with the jury's verdict, the trial court
awarded the passenger a $34,125 judgment against the driver and his
father.  On this appeal, the driver and his father take issue with (1)
the allocation of less than 50% of the fault to the passenger, (2) the
lack of evidence to support the application of the family purpose
doctrine, (3) the awards for permanent impairment and future medical
expenses, and (4) the trial court's refusal to give two requested
instructions.  We have determined that the only reversible error in
the proceeding involves the jury's decision to award the passenger
$20,000 for future medical expenses.  Accordingly, we affirm the
jury's verdict as to liability and allocation of fault.  With regard
to the damage award, we suggest a remittitur which, if accepted, will
reduce the passenger's judgment to $19,125.

http://www.tba.org/tba_files/TCA/henleyrd.wpd

ALVIN MCNAIR v. CARLTON E. SMITH

Court:TCA

Attorneys:

Carlton E. Smith, Pikeville, Tennessee, Appellant, pro se.

Gary M. Kirk, Knoxville, Tennessee, for Appellee, Alvin McNair.                          

Judge: FRANKS

First Paragraph:

The Trial Court entered Judgment finding a constructive trust and
establishing its value on any interest defendant had in the property. 
On appeal, we affirm.

http://www.tba.org/tba_files/TCA/mcnaira.wpd

EVELYN ELAINE TOLLETT v. SHELBY LEE TOLLETT

Court:TCA

Attorneys:  

Phillip C. Lawrence, Chattanooga, Tennessee, for Appellant.

Kiff L. Newkirk, Chattanooga, Tennessee, for Appellee.                      

Judge: FRANKS

First Paragraph:

Husband sought to set aside a Final Divorce Decree on the grounds of
non-compliance with T.C.A. S36-4-103(a).  The Trial Court refused.  We
Affirm.

http://www.tba.org/tba_files/TCA/tollette.wpd

STATE OF TENNESSEE v. JESSIE JAMES AUSTIN

Court:TCCA

Attorneys:

C. Michael Robbins, Memphis, Tennessee (on appeal); Harold Gunn,
Humboldt, Tennessee; Joseph P. Atnip, District Public Defender; and
Kevin McAlpin, Assistant Public Defender, for the appellant, Jessie
James Austin.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and Allen Strawbridge, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: TIPTON

First Paragraph:

The defendant, Jessie James Austin, appeals as of right his
convictions by a Weakley County  Circuit Court jury for two counts of
aggravated assault, a Class C felony.  The trial court sentenced him
as a Range III, persistent offender to twelve years in the Department
of Correction for each count to be served concurrently.  The defendant
contends that the evidence is insufficient to prove either count of
aggravated assault and that the trial court should have instructed the
jury on the lesser included offense of reckless aggravated assault. 
We affirm the trial court's judgments of conviction.

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

STATE OF TENNESSEE v. LAKEISHA JONES

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Tom W.
Crider, District Public Defender, and J. Diane Stoots, Assistant
Public Defender, Trenton, Tennessee (on appeal); and Ramsdale
O'DeNeal, Jr., Jackson, Tennessee (at trial), for the appellant,
Lakeisha Jones.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; Hal Dorsey, Assistant District Attorney
General; Ted Neumann, Assistant District Attorney General; and Guy
Townsend, Assistant District Attorney General, for the appellee, State
of Tennessee.                        

Judge: TIPTON

First Paragraph:

A Haywood County Circuit Court jury convicted the defendant, Lakeisha
Jones, of second degree murder, and the trial court sentenced her as a
violent offender to fifteen years in the Tennessee Department of
Correction.  The defendant appeals, contending that the evidence is
insufficient to support her conviction and that the trial court failed
to instruct the jury as to mutual combat.  We affirm the judgment of
conviction.

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

STATE OF TENNESSEE v. KHANH V. LE

Court:TCCA

Attorneys:

A.C. Wharton, Jr., W. Mark Ward, and Robert W. Jones, Memphis,
Tennessee, for the appellant, Khanh V. Le.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; John W. Pierotti, District Attorney
General; Edgar A. Peterson, IV, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

On November 10, 1997, the appellant, Khanh V. Le, was convicted by a
jury in the Shelby County Criminal Court of one count of first degree
premeditated murder.  The trial court sentenced the appellant to a
term of life imprisonment in the Tennessee Department of Correction. 
The appellant filed an appeal, and this court affirmed the judgment of
the trial court on March 9, 2000.  Accordingly, the appellant filed an
application for permission to appeal to our supreme court pursuant to
Tenn. R. App. P. 11.  The supreme court granted the appellant's
application for the sole purpose of remanding the case to this court
for reconsideration in light of the recent case of State v. Ely, 48
S.W.3d 710 (Tenn.), cert. denied, __ U.S. __, 122 S. Ct. 408 (2001). 
Upon reconsideration, we reverse the judgment of the trial court and
remand this case for a new trial.

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

STATE OF TENNESSEE v. KHANH V. LE

WOODALL CONCURRING ON REMAND

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

STATE OF TENNESSEE v. KHANH V. LE

WELLES CONCURRING

http://www.tba.org/tba_files/TCCA/lekv_con2.wpd

STATE OF TENNESSEE v. JEFFREY L. MARCUM

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton
Googe, Stephen P. Spracher (at trial and on appeal), and J. Colin
Morris (at trial), Jackson, Tennessee, for the appellant, Jeffrey L.
Marcum.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford,
Assistant Attorney General; James G. "Jerry" Woodall, District
Attorney General; and Jody S. Pickens, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

The appellant, Jeffrey L. Marcum, appeals his convictions by a jury in
the Madison County Circuit Court of one count of rape of a child, one
count of aggravated sexual battery, and one count of incest.  In this
appeal, the appellant raises the following issues for our
consideration: (1) whether the trial court erred under Tenn. R. Evid.
412 in limiting his cross-examination of the victim concerning her
"sexual history and knowledge;" (2) whether the evidence adduced at
trial is sufficient to support the jury's "verdict" of guilt; and (3)
whether the trial court erred in failing to instruct the jury on the
lesser-included offense of attempt to commit rape of a child. 
Following a careful review of the record and the parties' briefs, we
affirm the judgments of the trial court for the offenses of aggravated
sexual battery and incest, but we reverse the judgment for the offense
of rape of a child and remand the case for a new trial on that charge.

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

TIMOTHY POTTS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:   

Scott G. Kirk, Jackson, Tennessee, for the appellant, Timothy Potts.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; James G. Woodall, District Attorney
General; and Alfred Lynn Earls and James W. Thompson, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Timothy Potts, pled guilty to second degree murder, a
Class A felony, and was sentenced as a Range II, multiple offender to
thirty-five years in the Tennessee Department of Correction.  He
appeals the trial court's denial of his petition for post-conviction
relief, claiming (1) that his guilty plea was not knowingly,
voluntarily, and intelligently made because he did not understand that
he was pleading guilty as a Range II offender and (2) that he received
the ineffective assistance of counsel.  We affirm the trial court's
denial of the petition.

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

IN RE: SPEEDY RELEASE BAIL BONDS

Court:TCCA

Attorneys:

Marcus M. Reaves, Jackson, Tennessee, for the appellant, Speedy
Release Bail Bonds.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
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: RILEY

First Paragraph:

The appellant, Speedy Release Bail Bonds, appeals the order of the
Madison County Circuit Court denying its motion for reimbursement of a
forfeited bail bond.  Following a review of the record and the
parties' briefs, we reverse the judgment of the trial court and remand
this case for proceedings consistent with this opinion.

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

IN RE: SPEEDY RELEASE BAIL BONDS

MCGEE OGLE CONCURRING AND DISSENTING

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

Liability coverage of Tennessee State Guard and members

Date: January 10, 2002

Opinion Number: 02-011                         

http://www.tba.org/tba_files/AG/OP11.pdf

Same Individual Running for Office of Sheriff and Constable

Date: January 18, 2002

Opinion Number: 02-012                         

http://www.tba.org/tba_files/AG/OP12.pdf

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