Opinion Flash

September 11, 2002
Volume 8 — Number 158

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
00 New Opinion(s) from the Tennessee Court of Appeals
12 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


TAMIKA WASHINGTON v. FEDERAL EXPRESS CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:

Steve Taylor, Memphis, Tennessee, for the appellant, Tamika Washington

J. Mark Griffee and Robert B. C. Hale, Memphis, Tennessee, for the
appellee, Federal Express Corporation                        

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.  In this
appeal, the employee questions the trial court's disallowance of
permanent disability benefits.  As discussed below, the panel has
concluded the evidence fails to preponderate against the findings of
the trial court.

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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS
Corrected Version

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlistcx_0909.wpd

LEE O. ANDERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Shana McCoy-Johnson, Somerville, Tennessee, and Didi Christie,
Brownsville, Tennessee for the appellant, Lee O. Anderson.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Ryan D. Brown, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: TIPTON

First Paragraph:

The petitioner, Lee O. Anderson, appeals the Fayette County Circuit
Court's denial of his petition for post-conviction relief from his
convictions for delivery of one-half gram of cocaine and delivery of
less than one-half gram of cocaine.  This court affirmed the judgments
of conviction.  See State v. Lee O. Anderson, No.
W2000-00671-CCA-R3-CD, Fayette County (Tenn. Crim. App. Feb. 9, 2001),
app. denied (Tenn. June 25, 2001).  The petitioner claims that he
received the ineffective assistance of counsel because his trial
attorney (1) failed to present evidence of the petitioner's treatment
for drug addiction in order to support a casual exchange defense and
(2) failed to raise an insufficiency of the evidence claim on appeal
of his convictions.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. WILLIE NEAL BURTON

Court:TCCA

Attorneys:

George Morton Googe, District Public Defender, and Nina Wong Seiler,
Assistant Public Defender, for the appellant, Willie Neal Burton.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; James G. Woodall, District Attorney
General; and James W. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.                     

Judge: TIPTON

First Paragraph:

The defendant, Willie Neal Burton, appeals as of right from the
Chester County Circuit Court's revocation of his community corrections
sentence.  The trial court found that he had violated the terms of his
community corrections sentence by conduct unbecoming good citizenship,
involving arrests and convictions for subsequent offenses while
serving his community corrections sentence.  It sentenced the
defendant to a six-year sentence as a career offender.  The defendant
contends that the trial court erroneously revoked his community
corrections sentence and that the resulting six-year sentence is
excessive.  We affirm the trial court's revocation and sentence.

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

JAMES WILLIAM DASH v. HOWARD W. CARLTON, WARDEN

Court:TCCA

Attorneys:

James W. Dash, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter, and Kathy D. Aslinger,
Assistant Attorney General, for the appellee, State of Tennessee.                         

Judge: WADE

First Paragraph:

The petitioner, James William Dash, filed a petition for writ of
habeas corpus which was denied by the trial court for lack of
jurisdiction.  In this appeal of right, the petitioner argues that the
trial court clerk erroneously filed the petition in the criminal court
rather than the circuit court, that his judgment of conviction is
void, and that the trial court erred in the assessment of costs.  The
trial court's order taxing costs to the petitioner is reversed. 
Otherwise, the judgment of the trial court is affirmed.

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

MICHAEL EUGENE DUFF v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant,
Michael Eugene Duff.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and G. Scott Green, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The petitioner, Michael Eugene Duff, appeals the Knox County Criminal
Court's denial of his petition for post-conviction relief from his
convictions for two counts of aggravated rape and one count of
aggravated kidnapping for which he received three twenty-five-year
sentences to be served consecutively.  This court affirmed the
judgments of conviction on direct appeal.  See State v. Michael Eugene
Duff, No. 03C01-9501-CR-00008, Knox County (Tenn. Crim. App. Feb. 8,
1996), app. denied (Tenn. July 8, 1996).  The petitioner claims that
he received the ineffective assistance of counsel because his trial
attorney (1) failed to call a DNA serologist to testify and (2) failed
to present witnesses who could testify about  his physical appearance
at the time of the offenses.  We conclude that the trial court's
findings are insufficient for us to determine whether the petitioner
received the ineffective assistance of counsel.  We reverse the trial
court's judgment and remand the case in order for the trial court to
make findings of fact and conclusions of law consistent with this
opinion.

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

STATE OF TENNESSEE v. HERMAN LEO MATTHEWS

Court:TCCA

Attorneys:   

Amy M. Kroeger, Springfield, Tennessee, for the appellant, Herman Leo
Matthews.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann,
Assistant Attorney General; John Carney, District Attorney General;
and Joel Perry, Assistant District Attorney General, for the appellee,
State of Tennessee.                       

Judge: SMITH

First Paragraph:

On March 9, 2001, the appellant pled guilty to driving on a revoked
driver's license.  See Tenn. Code Ann. S 55-50-504.  He was sentenced
to 20 days confinement in the Robertson County jail followed by 6
months probation.  As part of the plea arrangement, the appellant
reserved a certified question for appeal pursuant to Tenn. R. Crim. P.
37(b)(2)(i).  That certified question concerns the legality of the
stop of the appellant due to the inability of the arresting police
officer after sundown to see the rear license plate on the appellant's
vehicle.  The trial judge concluded that the stop of the appellant was
reasonable and denied the appellant's motion to suppress all evidence
flowing from the stop.  Because we agree that under the facts of this
case the stop of appellant's vehicle was reasonable under the Fourth
Amendment to the United States Constitution, and Art. I, Sec. 7 of the
Constitution of Tennessee, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ANTONIO J. MITCHELL

Court:TCCA

Attorneys:

Steve Temple, Memphis, Tennessee, for the Appellant, Antonio J.
Mitchell.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Jerry Harris, Assistant District Attorney General, for
the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

The defendant, Antonio Mitchell, appeals his Shelby County jury
conviction of attempted first- degree murder and claims that the
evidence is insufficient to sustain the conviction.  We disagree and
affirm.

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

STATE OF TENNESSEE v. HAROLD D. ROBERTS

Court:TCCA

Attorneys:

Philip A. Condra, District Public Defender, for the appellant, Harold
D. Roberts.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Julia N. Oliver, Assistant District Attorney General, for
the appellee, State of Tennessee.                       

Judge: GLENN

First Paragraph:

The defendant was convicted of driving under the influence, third
offense; driving on a revoked license; felonious evading arrest; and
violating the open container law.  The trial court granted a motion
for judgment of acquittal as to the felonious evading arrest
conviction and imposed the following sentences: eleven months,
twenty-nine days, suspended after serving ten months in continuous
confinement, for DUI, third offense; four months in the county jail,
plus six months' probation, for driving on a revoked license; and
thirty days for violating the open container law, with all sentences
to be served concurrently.  The defendant appealed, arguing that the
trial court erred by denying his request to give the jury the missing
witness instruction and by improperly sentencing him.  We affirm the
judgments of the trial court but remand for entry of a corrected
judgment as to Count 2 reflecting that the defendant was convicted of
third offense DUI.

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

ROY C. SMITH, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Roy C. Smith, Jr., Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

The petitioner, Roy C. Smith, Jr., pled guilty to one count of rape of
a child and was sentenced to fifteen years incarceration in the
Tennessee Department of Correction.  Subsequently, the petitioner,
acting pro se, filed a petition for a writ of habeas corpus, alleging
that his conviction is illegal because he pled guilty to a crime that
was not in effect at the time of the commission of the offense.  The
trial court dismissed the petition and the petitioner now appeals. 
Upon review of the record and the parties' briefs, we affirm the
judgment of the trial court.

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

ROY C. SMITH, JR. v. STATE OF TENNESSEE

Court:TCCA

WITT CONCURRING

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

R. B. TOBY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

R. B. Toby, pro se, Mountain City, Tennessee.

Paul G. Summers, Attorney General & Reporter; Laura McMullen Ford,
Assistant Attorney General;  Al Schmutzer, Jr., District Attorney
General; and Charles Atchley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                    

Judge: SMITH

First Paragraph:

The appellant filed a Motion to Vacate an Illegal Sentence.  The trial
judge treated the motion as a petition for post-conviction relief and
dismissed the case as time barred.  In this appeal, the appellant
claims the actions of the trial court were erroneous.  We respectfully
disagree.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. HAROLD J. TURNER

Court:TCCA

Attorneys:

Tony L. Axam, Atlanta, Georgia (on appeal), and William Monroe,
Memphis, Tennessee (at trial), for the appellant, Harold J. Turner.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and James Lammey, Assistant District Attorney General, for
the appellee, State of Tennessee.                      

Judge: GLENN

First Paragraph:

The defendant, Harold J. Turner, was convicted of driving under the
influence ("DUI") and sentenced to eleven months, twenty-nine days in
the county workhouse, with all but seven days suspended and the
balance to be served on probation.  In addition, his driver's license
was revoked for one year and he was ordered to attend alcohol safety
school and pay a fine of $500.  In his appeal, the defendant argues
that the trial court should have instructed the jury to consider
whether he was guilty of driving while impaired without first having
to determine that he was not guilty of DUI.  Following our review, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. HARLEY B. UPCHURCH

Court:TCCA

Attorneys:

David N. Brady, District Public Defender; and John B. Nisbet, III,
Assistant District Public Defender, for the appellant, Harley B.
Upchurch.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Owen G. Burnett, Assistant District Attorney General, for
the appellee, State of Tennessee.                       

Judge: RILEY

First Paragraph:

Defendant pled guilty to burglary, theft under $500, and vandalism
under $500 and was sentenced by the trial court to an effective
sentence of four years with the requirement that he serve one year
"day for day" in the county jail followed by twelve years of
supervised probation.  On appeal, defendant contends (1) the length of
his sentence is excessive; (2) he should have been granted full
probation; and (3) the trial court erred in requiring him to serve his
time of confinement "day for day."  We remand for deletion of the "day
for day" requirement because it deprives the defendant of the
opportunity to earn statutory sentencing credits; however, we affirm
the judgments of the trial court in all other respects.

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

STATE OF TENNESSEE v. WALTER WILSON

Court:TCCA

Attorneys:   

A.C. Wharton, Jr., District Public Defender; W. Mark Ward, Assistant
Public Defender (on appeal); and Trent Hall, Assistant Public Defender
(at trial), for the Appellant, Walter Wilson.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steven Jones and Amy Weirich, Assistant District
Attorneys General, for the Appellee, State of Tennessee.                       

Judge: WITT

First Paragraph:

Walter Wilson, the defendant, was convicted of second-degree murder,
felony murder, and attempted especially aggravated robbery by a Shelby
County jury.  The jury sentenced the defendant to life without the
possibility of parole for the felony-murder conviction, and the trial
court imposed a consecutive, ten-year sentence in the Department of
Correction for the attempted especially aggravated robbery.  On
appeal, the defendant contends that the evidence was insufficient to
support his convictions, that applicable lesser-included offenses were
not charged to the jury, and that consecutive sentencing is
inappropriate because he is not a dangerous offender.  We affirm the
attempted especially aggravated robbery conviction, but we reverse and
remand for a new trial on the homicide counts based on the failure to
instruct on lesser-included offenses.

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

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