Opinion Flash

August 26, 2002
Volume 8 — Number 148

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
01 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
07 New Opinion(s) from the Tennessee Court of Criminal Appeals
03 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


KECIA L. HILL v. CALSONIC YOURZU CORPORATION, et al.

Court:TSC - Workers Comp Panel

Attorneys:  

Mary B. Little and Timothy B. Pirtle, McMinnville, Tennessee, for the
appellants, Calsonic Yorozu Corporation and ITT Specialty Risk
Services, Inc.

Eric J. Burch, Manchester, Tennessee, for the appellee, Kecia Hill                        

Judge: LOSER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S50-6-225(e)(3) for hearing and reporting of findings of fact and
conclusions of law.  In this appeal, the employer contends the
evidence preponderates against the trial court's finding of a
permanent injury related to the claimant's incident at work and  the
award of seven and one-half percent disability to the body.  As
discussed herein, the panel has concluded the judgment should be
affirmed.

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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0826.wpd

THOMAS PONCHIK v. DON PAUL, et al.

Court:TCA

Attorneys:

Thomas Ponchik, Pro Se

Tom Anderson, Jackson, For Appellees, Corrections Corporation of
America, Don Paul, Jamison Burvee, Charles Howard, Judith Polk,
Georgia Cross, Fred Figueroa, Julie Bass, and Linda Cooper

Judge: CRAWFORD

First Paragraph:

Plaintiff, an inmate at a correctional facility, filed a complaint
against the facility's private management company and its employees,
alleging violations of prisoner's rights under the United States
Constitution.  The trial court dismissed the complaint for failure to
state a claim upon which relief can be granted.  Inmate appeals.  We
affirm.

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

DEBBIE RISNER v. NATHAN HARRIS 

Court:TCA

Attorneys:

Bruce Moss, Union City, Tennessee, for the appellant, Nathan Harris.

David L. Hamblen, Union City, Tennessee, for the appellee, Debbie
Risner.                        

Judge: LILLARD

First Paragraph:

This is an action to recover personal property.  The plaintiff and
defendant lived together for seventeen years.  In November 1999, the
plaintiff moved out.  She left personal property in the trailer in
which the couple was living, in the nearby convenience store owned by
the defendant, and in a storage unit in another town.  In August 2000,
the convenience store caught on fire, and the plaintiff's personal
property in the store was destroyed.  Soon thereafter, the defendant
took possession of the plaintiff's other personal property that had
been held in the storage unit and called her to come get it.  In
November 2000, the plaintiff filed a warrant in general sessions court
to recover her personal property from the defendant.  She claimed that
the defendant had prevented her from retrieving any of her personal
property.  She received a judgment which was appealed to circuit
court.  The circuit court entered a judgment in favor of the
plaintiff, awarded damages, and ordered the defendant to return
certain items to the plaintiff.  The defendant now appeals.  We
reverse the trial court's decision with respect to two of the items
ordered returned and the property that the plaintiff had kept in the
storage unit in another town, and affirm the remainder of the order.

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

MICHAEL O. BROWN v. STATE OF TENNESSEE 
CORRECTED OPINION: Fixes the cover page of the opinion to show 
that Judge Tipton has a separate concurring opinion

Court:TCCA

Attorneys:

Merrilyn Feirman, Nashville, Tennessee, and Andrew Jackson Dearing,
III, Shelbyville, Tennessee, for the Appellant, Michael O. Brown.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard and Ann Filer, Assistant District
Attorneys General, for the Appellee, State of Tennessee.                          

Judge: WITT

First Paragraph:

The petitioner, Michael O. Brown, appeals the Lincoln County Circuit
Court's denial of post- conviction relief.  In his post-conviction
petition, he challenged his 1996 conviction of selling cocaine by
alleging ineffective assistance of trial counsel.  Because the record
supports the trial court's denial of post-conviction relief, we
affirm.

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

MICHAEL O. BROWN v. STATE OF TENNESSEE 

Court:TCCA

TIPTON CONCURRING

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

STATE OF TENNESSEE v. JIMMY LEE KING

Court:TCCA

Attorneys:

Stephen D. Jackson, Huntingdon, Tennessee, for the Appellant, Jimmy
Lee King.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; G. Robert Radford, District Attorney General; and
Beth Boswell, Assistant District Attorney General, for the Appellee,
State of Tennessee.                       

Judge: WITT

First Paragraph:

Jimmy Lee King stands convicted of the attempted first-degree murder
of Billy Dwayne Pace.  King received his conviction at the conclusion
of a jury trial in the Benton County Circuit Court, and he was
sentenced to a 20-year incarcerative term.  Claiming that the evidence
is insufficient to support the conviction, he has appealed.  Because
we are unpersuaded, we affirm.

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

STATE OF TENNESSEE v. ERNEST WILLIE MAYS

Court:TCCA

Attorneys:

Didi Christie, Brownsville, Tennessee (on appeal), and William B.
Lockert, III, District Public Defender (at trial), for the appellant,
Ernest Willie Mays.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Suzanne M. Lockert, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant, Ernest Willie Mays, pled guilty to sale of cocaine, a
Class C felony, and was sentenced as a Range I, standard offender to
five years in the Tennessee Department of Correction.  He appeals his
sentence, arguing that it is excessive and that the trial court erred
in (1) refusing to consider that less restrictive measures than
incarceration had not been tried unsuccessfully, (2) not applying any
mitigating factors, (3) finding that the offense constituted a
criminal enterprise, and (4) considering the fact that he had four
children out of wedlock.  We affirm the sentence imposed by the trial
court.

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

STATE OF TENNESSEE v. WILSON NEELY

Court:TCCA

Attorneys:   

Marvin E. Ballin, Memphis, Tennessee, for the Appellant, Wilson Neely.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Lee Coffee, Assistant District Attorney General, for the
Appellee, State of Tennessee.                       

Judge: WITT

First Paragraph:

Convicted at a jury trial of first-degree, premeditated murder and
presently serving a life sentence, Wilson Neely appeals from the
Shelby County Criminal Court.  He claims that his conviction is
improperly based upon uncorroborated and insufficient testimony of
accomplices.  Because we disagree, we affirm.

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

JOHN EARL SCALES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

John Earl Scales, Pro Se, Only, Tennessee.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; Victor S. Johnson, District Attorney General; and
Jon Seaborg, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, John Earl Scales, was convicted by a Davidson County
jury of felony murder and attempted aggravated robbery.  He was
sentenced to life imprisonment for the murder with a concurrent
three-year term for the attempted aggravated robbery conviction.  On
direct appeal this Court affirmed the convictions and sentences. 
State v. John Earl Scales, No. 01C01-9709-CR-00412 (Tenn. Crim. App.,
at Nashville Feb. 24, 1999), 1999 Tenn. Crim. App. LEXIS 168, at *28. 
On November 20, 2000, Scales filed a petition for post-conviction
relief.  On December 19, 2000, the post-conviction court summarily
dismissed the petition.  From that dismissal the appellant perfected
the instant appeal.  We find that the post-conviction court erred in
summarily dismissing the appellant's claims regarding the alleged
ineffectiveness of his appellate counsel on the grounds of waiver or
previous determination.  Moreover, we find that the post-conviction
court's order indicating that such allegations do not state "colorable
claims" does not set forth with sufficient specificity the court's
findings with regard to the allegations concerning the alleged
ineffectiveness of appellate counsel.  We therefore remand this case
for entry of an appropriate order in accordance with this opinion.

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

STATE OF TENNESSEE v. MICHAEL L. TAYLOR

Court:TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender; and Richard W. DeBerry,
Assistant Public Defender, for the appellant, Michael L. Taylor.

Paul G. Summers, Attorney General and Reporter, Mark A. Fulks,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and John W. Overton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: WILLIAMS

First Paragraph:

Pursuant to a negotiated plea agreement, the defendant pled guilty to
possession of crack cocaine with the intent to resell, distribute or
manufacture, possession of marijuana, possession of drug
paraphernalia, and four counts of the sale of over .5 grams of crack
cocaine.  The defendant was sentenced as agreed to nine (9) years for
each felony count and eleven months and twenty-nine days for each
misdemeanor count.  The agreement also provided that all of the
sentences would be served concurrently for an effective nine-year
sentence. Following a sentencing hearing, the trial court denied
alternative sentencing.  In this appeal, the defendant challenges the
denial of alternative sentencing.  We affirm.

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

STATE OF TENNESSEE v. VERNON DEWAYNE WALLER

Court:TCCA

Attorneys:

C. Dawn Deaner and Joseph E. Clifton, Assistant Public Defenders,
Nashville, Tennessee, for the Appellant, Vernon Dewayne Waller.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Bret
Gunn, Assistant District Attorney General, for the Appellee, State of
Tennessee.                         

Judge: HAYES

First Paragraph:

A Davidson County jury convicted the Appellant, Vernon Dewayne Waller,
of sale of a counterfeit controlled substance, a class E felony.  The
trial court sentenced Waller as a career offender to six years in the
Department of Correction. On appeal, Waller presents the following
issues for review:

(1) Did the trial court err in ruling that if the Defendant chose to
testify, his prior felony drug convictions would be admissible to
impeach his credibility;

(2) Did the trial court err in allowing the State to introduce a
substance alleged to be cocaine and a lab report identifying it as
such through a witness other than the technician who tested the
substance; and

(3) Did the trial court err in finding the Defendant was a career
offender.

After a review of the record, we find that Waller's issues are without
merit.  Accordingly, the judgment of the trial court is affirmed.

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

Application of State Sales Tax Rate to Goods Delivered On or After
July 15, 2002

Date: August 20, 2002

Opinion Number: 02-087                         

http://www.tba.org/tba_files/AG/2002/OP87.pdf

TennCare Coverage of Drug Treatment

Date: August 20, 2002

Opinion Number:  02-088                        

http://www.tba.org/tba_files/AG/2002/OP88.pdf

Legality of Vending Machine Distributing Instant Win Cards

Date: August 21, 2002

Opinion  Number:  02-089                        

http://www.tba.org/tba_files/AG/2002/OP89.pdf

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