Opinion Flash

June 19, 2002
Volume 8 — Number 105

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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
01 New Opinion(s) from the Tennessee Court of Appeals
06 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


JUDY C. BURROUGHS, INDIVIDUALLY, AND AS SURVIVING SPOUSE AND PERSONAL
REPRESENTATIVE OF THE ESTATE OF HAROLD L. BURROUGHS, DECEASED v.
ROBERT W. MAGEE, M.D.

Court:TCA

Attorneys:

J. Houston Gordon and Jason G. Whitworth, Covington, Tennessee, for
the Appellant, Judy C. Burroughs.

Hubert B. Jones and Gary H. Nichols, Dyersburg, Tennessee, for the
Appellee, Robert W. Magee, M.D.

Judge: LILLARD

First Paragraph:

This is a personal injury and wrongful death case.  The plaintiff and
her husband were involved in an automobile accident.  The plaintiff
sued the driver of the other vehicle for her husband's wrongful death
as well as for injuries she sustained in the accident.  The plaintiff
named the driver's physician as an additional tortfeasor, alleging
that the physician negligently prescribed drugs to a known drug
addict, negligently prescribed two contraindicated drugs, and
negligently failed to warn his patient of the risks of driving while
under the influence of the drugs.  The trial court granted the
physician's motion for summary judgment on the grounds that the
physician had no duty to unidentifiable third parties such as the
plaintiff.  We affirm in part and reverse in part, finding that the
physician owed a duty to the plaintiff and the decedent to warn his
patient of the risks of driving while under the influence of the
prescribed drugs.

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

STATE OF TENNESSEE v. ERICK DARNELL BAILEY

Court:TCCA

Attorneys:

Ralph Newman and Elizabeth Ezell, Nashville, Tennessee (at trial) and
C. Dawn Deaner, Nashville, Tennessee (on appeal) for the Appellant,
Erick Darnell Bailey.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General;
and Pamela Anderson, Assistant District Attorney General, for the
Appellee, State of Tennessee.                        

Judge: WITT

First Paragraph:

The defendant, Erick Darnell Bailey,  appeals his first-degree murder
convictions imposed following a jury trial in the Davidson County
Criminal Court.  The defendant was tried and convicted on both
felony-murder and premeditated-murder counts in the indictment, and
the trial court merged the convictions into a single conviction of
first-degree murder.  The single issue raised on appeal is whether the
convicting evidence is sufficient to support the verdicts.  We modify
the conviction for premeditated murder to second-degree murder and
affirm the conviction for first-degree, felony murder.  The
second-degree murder conviction merges into the felony murder
conviction.

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

STATE OF TENNESSEE v. WILLIAM C. BENTLEY

Court:TCCA

Attorneys:

Lawrence Wilson, Nashville, Tennessee, for the appellant, William C.
Bentley.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Shelli Neal, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, William C. Bentley, was convicted by a Davidson County jury
of attempted aggravated robbery.  In this appeal, he challenges the
sufficiency of the evidence to sustain the conviction, and argues that
the trial court committed reversible error by admitting hearsay
testimony.  After a thorough review of the record, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. ERIC B. BLAKEMORE

Court:TCCA

Attorneys:

Garland Erguden, Assistant Public Defender; AC Wharton, Jr., Shelby
County Public Defender, Memphis, Tennessee, for the Appellant, Eric
Blakemore.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Charles Bell, Assistant
District Attorney General, for the Appellee, State of Tennessee.                  

Judge: HAYES

First Paragraph:

The Appellant, Eric B. Blakemore, was convicted by a Shelby County
jury of one count of second degree murder and one count of attempted
second degree murder.  After a sentencing hearing, Blakemore received
concurrent sentences of twenty-two years for the murder conviction and
ten years for the attempted murder conviction.  On appeal, Blakemore
asserts that the evidence presented at trial was insufficient to
support his conviction for second degree murder.  Specifically, he
argues that the evidence presented supports the lesser offense of
voluntary manslaughter.  After review, we find the evidence legally
sufficient; accordingly, the judgment of conviction is affirmed.

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

STATE OF TENNESSEE v. DAVID TYRONE DOWELL 

Court:TCCA

Attorneys:

Gary F. Antrican, Covington, Tennessee, for the Appellant, David
Tyrone Dowell.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Kim Linville, Assistant District Attorney General, for
the Appellee, State of Tennessee.                        

Judge: WITT

First Paragraph:

The defendant, David Tyrone Dowell, appeals the sentence imposed by
the trial court on his guilty- plea-based aggravated assault
conviction.  Because the record supports the trial court's sentencing
determination, we affirm.

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

STATE OF TENNESSEE v. FLOYD EARL RAYNER, III

Court:TCCA

Attorneys: 

Edward S. Ryan, Nashville, Tennessee, for the Appellant, Floyd Earl
Rayner, III.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bernard McEvoy and Phil Wheby, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Floyd Earl Rayner, III appeals from his five
convictions of rape of a child and five convictions of aggravated
sexual battery, claiming that the trial court (1) failed to fulfill
its duty as the "thirteenth juror" and (2) erred in its sentencing
determinations by not applying mitigating factors in establishing the
length of his sentences and in ordering partial consecutive service of
the sentences.  Because we hold that the trial court discharged its
"thirteenth juror" responsibility and that the sentencing issues have
been waived, we affirm.

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

STATE OF TENNESSEE  v. WILLIAM TONY WRIGHT

Court:TCCA

Attorneys: 

Merrilyn Feirman, Nashville, Tennessee (on appeal); and Gerald L.
Melton, District Public Defender; and Jeffrey S. Henry, Assistant
Public Defender, Murfreesboro, Tennessee (at trial) for the appellant,
William Tony Wright.

Paul G. Summers, Attorney General and Reporter; Gill Geldreich,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Defendant, William Tony Wright, pled guilty to one count of violation
of the Motor Vehicle Habitual Offender Act (MVHO), Tenn. Code Ann. S
55-10-616, a Class E felony.  Pursuant to a negotiated plea agreement,
wherein other pending charges were dismissed, he was sentenced as a
Range II, multiple offender, with the length and manner of service to
be determined by the trial court.  Thirty days later, and prior to the
sentencing hearing, Defendant filed a motion to dismiss the count of
the indictment to which he had previously pled guilty.  In the
alternative, Defendant moved to withdraw his guilty plea.  Defendant
asserted that he should be allowed to withdraw his guilty plea because
he was "legally innocent" of the charge of violation of the MVHO Act. 
He argued that the order declaring him a motor vehicle habitual
offender was not effective at the time of the offense because the
order failed to comply with Rule 58 of the Tennessee Rules of Civil
Procedure.  On the same date, he filed a motion in Rutherford County
Circuit Court Case No. M-43411 to obtain relief from the order
declaring him an habitual motor vehicle offender pursuant to Rule
60.02 of the Tennessee Rules of Civil Procedure.  Both motions were
denied by the trial court, and following a sentencing hearing,
Defendant was sentenced to serve four years in the Tennessee
Department of Correction.  Defendant has appealed in both cases, and
they have been consolidated for our consideration.  In addition to
appealing the denial of his motions, Defendant argues that the
sentence for violation of the MVHO Act is excessive.  After a review
of the record, we affirm the judgments of the trial court.

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

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