Opinion Flash

March 12, 2002
Volume 8 — Number 045

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
11 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


LYNN HALL, et al. v. MARK BOOKOUT

Court:TCA

Attorneys:   

Robin L. Miller, Chattanooga, Tennessee, for the Appellant, Mark
Bookout.

Gary R. Patrick, Chattanooga, Tennessee, for the Appellees, Lynn and
Lillian Hall.                       

Judge: SWINEY

First Paragraph:

Lynn and Lillian Hall, the maternal grandparents ("Grandparents") of
the minor child ("Child"), filed a Petition for Custody seeking
permanent custody of the Child, naming the Child's biological father
("Father"), Mark Bookout, as the defendant.  The Grandparents had
temporary custody of the Child pursuant to an ex parte order.  At the
close of proof at trial, the Trial Court found that the Father was not
unfit.  In its Order, however, the Trial Court made no specific
finding regarding the risk of substantial harm if the Child was placed
in Father's custody.  The Trial Court denied the Grandparents'
petition but did not order the Child returned to Father's custody by
any set date but instead provided only that the "ultimate goal" was
for the Child to be returned to Father.  Father appeals.  We affirm,
in part, and modify, in part, and remand.

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

MECHANICS LAUNDRY SERVICE v. AUTO GLASS COMPANY OF MEMPHIS, INC. d/b/a
JACK MORRIS AUTO GLASS

Court:TCA

Attorneys:

Mark Griffin, Memphis, For Appellant, Auto Glass Company of Memphis

William A. Cohn, Cordova, For Appellee, Mechanics Laundry Service                

Judge: CRAWFORD

First Paragraph:

In this breach of contract case, defendant corporation denies
liability under the contract because defendant's employee who signed
the contract, ostensibly on behalf of the corporation, had no
authority to do so.  Plaintiff contends that the person signing the
contract had apparent authority to act for the corporation.  The trial
court granted summary judgment to the plaintiff.  Defendant appeals. 
We vacate, render, and remand.

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

MARK GRAHAM V. MICHAEL J. MOHR

Court:TCA

Attorneys: 

John M. Higgason, Jr., Chattanooga, Tennessee, for the appellant,
Michael J. Mohr.

David L. Moss, Chattanooga, Tennessee, for the appellee, Mark Graham.                         

Judge: SUSANO

First Paragraph:

These consolidated cases arise out of a two-vehicle accident.  The
jury returned a verdict in favor of Mark Graham, assigning 51% of the
fault to Michael J. Mohr and 49% to Graham.  Mohr appeals, raising
issues pertaining to the propriety of the trial court's ruling
excluding the testimony of the police officer who investigated the
accident.  We affirm.

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

ERIC BROOKS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Susan L. Kay; Ryan P. Green; and Sonja Clayton-Pedersen, Nashville,
Tennessee, for the appellant, Eric Brooks.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Pam Anderson, Assistant District Attorney General, for
the appellee, State of Tennessee.                       

Judge: WELLES

First Paragraph:

The Defendant, Eric Brooks, pled guilty to the sale of a controlled
substance and received a sentence of twelve years to be served on
Community Corrections.  The Defendant was subsequently arrested and
his case officer filed an affidavit indicating that his arrest
constituted a violation of his Community Corrections program.  A
hearing was held, at which the Defendant was represented by counsel,
and the trial judge revoked the Defendant's Community Corrections
sentence, re-sentencing him to fourteen years in the Department of
Correction.  The Defendant subsequently filed a petition for
post-conviction relief, which the trial court eventually dismissed
summarily.  The Defendant now appeals from that dismissal.  We affirm
the judgment of the trial court.

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

BARRY DAVIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

D. Michael Dunavant, Ripley, Tennessee, for the appellant, Barry
Davis.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and Tracey A. Brewer, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: WELLES

First Paragraph:

The Defendant, Barry Davis, was convicted by a jury of first degree
premeditated murder and aggravated assault.  His convictions were
affirmed on direct appeal.  See State v. Barry Davis, No.
02C01-9902-CC-00063, 1999 Tenn. Crim. App. LEXIS 845 (Jackson, Aug.
19, 1999).  The Defendant subsequently filed a petition for
post-conviction relief, alleging that he received ineffective
assistance of counsel at trial.  The trial court denied the
Defendant's petition and this appeal followed.  Finding no merit in
the Defendant's allegations, we affirm the judgment of the trial
court.

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

JESSE JAMEEL DAWAN, AKA JESSIE JONES, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:    

James Seymour Haywood, Brownsville, Tennessee, for the appellant,
Jesse Jameel Dawan.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; and Guy Townsend, Assistant District Attorney
General, for the appellee, the State of Tennessee.                      

Judge: WADE

First Paragraph:

The petitioner, Jesse Jameel Dawan, appeals the denial of his petition
for post-conviction relief.  In this appeal, he claims that he was
denied the effective assistance of counsel.  The judgment of the trial
court is affirmed.

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

STATE OF TENNESSEE v. KIMBERLY DAWN FRENCH

Court:TCCA

Attorneys:

Victoria L. DiBonaventura, Paris, Tennessee, for the Appellant,
Kimberly Dawn French.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the Appellee, State of Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

A Henry County jury convicted the Defendant of one count of
introducing drugs into a penal institution.  The Defendant now
appeals, challenging the sufficiency of the convicting evidence. 
After reviewing the record, we conclude that the evidence is
sufficient to support the conviction and therefore affirm the judgment
of the trial court.

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

STATE OF TENNESSEE v. MICHAEL ELVIS GREEN

Court:TCCA

Attorneys:

Scottie O. Wilkes, Memphis, Tennessee, for the appellant, Michael
Elvis Green.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and James W. Freeland, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Hardeman County jury found the defendant guilty of rape.  Four
issues are raised on appeal: (1) whether there was sufficient evidence
to support the conviction; (2) whether the trial court erred in
denying the defendant a continuance; (3) whether evidence of the
defendant's escape from jail was improperly admitted; and (4) whether
the trial court should have charged the jury as to sexual battery,
statutory rape, and Class B misdemeanor assault as  lesser-included
offenses of rape.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. TERRANCE DESHONE KINNIE

Court:TCCA

Attorneys:

Daniel J. Taylor, Jackson, Tennessee, for the appellant, Terrance
Deshone Kinnie.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Shaun Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.                       

Judge: WELLES

First Paragraph:

The Defendant, Terrance Deshone Kinnie, was convicted of second degree
murder.  After a sentencing hearing the Defendant was sentenced to
twenty-three years in the Department of Correction.  On appeal, the
Defendant contends that the evidence is insufficient to support a
verdict of guilty beyond a reasonable doubt.  We affirm the judgment
of the trial court.

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

THEODORE R. POINTER, III v. JAMES DUKES, WARDEN

Court:TCCA

Attorneys:

Theodore R. Pointer, III, Henning, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Stephanie R. Reevers, Associate Deputy Attorney
General, for the appellee, State of Tennessee.                         

Judge: WADE

First Paragraph:

The petitioner filed a petition for writ of habeas corpus, alleging
that the Department of Correction had wrongfully altered two judgment
forms so as to require service of his sentences in prison rather than
in the county workhouse.  The trial court summarily denied the
petition.  Because the petitioner has failed to allege grounds that
would warrant habeas corpus relief, the judgment of the trial court is
affirmed.

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

CHARLES E. ROBINSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Gene Honea, Assistant Public Defender, for the appellant, Charles E.
Robinson.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; and Mary Katherine Harvey, Assistant
District Attorney General, for the appellee, the State of Tennessee.                         

Judge: WADE

First Paragraph:

The petitioner, Charles E. Robinson, appeals the trial court's
dismissal of his petition for post- conviction relief as time-barred. 
The petitioner asserts that, because he was unilaterally denied the
opportunity for second-tier review of his conviction, due process
requires tolling of the statute of limitations. The judgment of the
trial court is reversed and remanded.

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

DEMARCUS SHERIFF SMITH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Mary Ellen Stevens, Union City, Tennessee, for the Appellant, Demarcus
Sheriff Smith.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; Thomas A.
Thomas, District Attorney General; and Jim Cannon, Assistant District
Attorney General, for the Appellee, State of Tennessee.                         

Judge: HAYES

First Paragraph:

The Appellant, Demarcus Sheriff Smith, appeals from the dismissal of
his petition for post- conviction relief.  Smith pled guilty to second
degree murder and aggravated assault, and received an effective
seventeen and one-half-year sentence in the Department of Correction.
On appeal, Smith argues that he received ineffective assistance of
counsel.  After review, we affirm the judgment of the Obion County
Circuit Court dismissing the petition.

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

STATE OF TENNESSEE v. NELSON TROGLIN

Court:TCCA

Attorneys:

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Nelson
Troglin.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and James W. Pope, III, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: WOODALL

First Paragraph:

The defendant, Nelson Troglin, was convicted of second degree murder
following a jury trial in the Bledsoe County Circuit Court.  The trial
court subsequently imposed a sentence of twenty-three years.  In this
appeal, Defendant raises the following issues: (1) whether the
evidence was sufficient to support his conviction; (2) whether the
trial court erred by ruling that Defendant's statement to the police
was admissible as evidence during his trial; (3) whether comments made
by the trial court during curative instructions to the jury
constituted impermissible expressions of bias toward Defendant,
effectively depriving him of his right to a fair trial; (4) whether
the trial court erred when it excluded evidence that a person, not
Defendant, had assaulted the victim on the day of his death, and when
it allowed an expert to testify concerning evidence which was not
revealed to Defendant during regular discovery; (5) whether the trial
court erred by failing to instruct the jury on the lesser- included
offenses of reckless homicide and criminally negligent homicide; and
(6) whether the sentence imposed by the trial court was excessive. 
After a thorough review of the record, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. JOHN DAVID WHITE

Court:TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, John
David White.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and Paul A. Holcombe, III, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, John David White, was convicted by a jury in the
Rutherford County Circuit Court for aggravated burglary, theft of
property valued over $1,000, felony evading arrest, vandalism, and
driving while his license was suspended.  He was sentenced to a total
of twenty-one years in the Department of Correction as a career
offender.  In this appeal, the defendant contends (1) that the trial
court should have suppressed evidence obtained from the stop of his
truck and (2) that the trial court erred in instructing the jury
relative to flight from crime.  We affirm the trial court.

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

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