Opinion Flash

September 26, 2002
Volume 8 — Number 169

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
04 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


STATE OF TENNESSEE v. DAVID M. BLACK

Court:TCA

Judge: COTTRELL

First Paragraph:

The State has petitioned this court to rehear its decision in this
case.  The state also requested, and was twice granted, additional
time to supplement or correct the appellate record to include an
amended judgment reflecting the details of Mr. Black's 1997 conviction
and sentencing.  The State has now filed this amended judgment
properly certified by the trial court which heard Mr. Black's petition
for restoration of citizenship.  The amended judgment was introduced
at the hearing on the restoration petition but was not included in the
record in the appeal. Because the trial judge has certified that the
amended judgment was introduced and considered in the hearing, we
grant the State's motion to supplement the record.

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

TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. C. M. S., et al.

Court:TCA

Attorneys: 

Larry Samuel Patterson, Jr., Columbia, Tennessee, for the appellant,
C.M.S.

Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services.

Judge: COTTRELL

First Paragraph:

This case involves the termination of parental rights of the mother of
two children, both of whom were born while the mother was a minor.  At
the time of the hearing the son was almost five and the daughter was
almost three, and they have been in state custody since they were one
year old and three months old, respectively.  The trial court
terminated the mother's parental rights because of the persistence of
conditions which prevent the safe return of the children to the mother
and because there was little likelihood the conditions would be
remedied at an early date to allow a safe return in the near future.
We affirm that decision.

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

WILLIAM H. HORTON v. TENNESSEE DEPT. OF CORRECTION, et al.
WITH CONCURRING OPINION

Court:TCA

Attorneys: 

William H. Horton, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; and Pamela S. Lorch, Assistant Attorney General,
for the appellee, Tennessee Department of Correction.

Tom Anderson, Jackson, Tennessee, for the appellee, Doctor R. Crants.                         

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding two minor Class C disciplinary
infractions.  After his internal appeals were denied, the prisoner
filed a petition for common-law writ of certiorari in the Chancery
Court for Davidson County challenging three procedural aspects of the
disciplinary hearings.  The Department filed a Tenn. R. Civ. P.
12.02(6) motion to  dismiss the petition.  Instead of directing the
Department to file the official records of the two proceedings, the
trial court dismissed the prisoner's complaint regarding one
proceeding and directed the Department to submit additional
information regarding the other proceeding.  After the Department
submitted additional information, the trial court, now treating the
Department's motion as a motion for summary judgment, dismissed the
remainder of the prisoner's complaint.  The prisoner has perfected
this appeal.  We have determine that the trial court properly
dismissed the prisoner's challenges to the disciplinary proceeding
regarding the being out of place infraction.  However, we have
determined that the prisoner has stated a claim with regard to the
Department's compliance with Tenn. Dep't Corr. Policy No.
9502.01(VI)(D)(2) regarding the disrespect infraction.  Therefore, we
reverse the dismissal of this portion of the prisoner's petition and
remand the case for further proceedings.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/hortonw_con.wpd

KENNETH E. NELSON, et al. v. METRIC REALTY, et al.

Court:TCA

Attorneys:

H. Buckley Cole and Carol M. Joiner, Nashville, Tennessee, for the
appellants, Kenneth E. Nelson and Nashville Lodging Co.

Garry K. Grooms, Nashville, Tennessee, for the appellees, Metric
Realty, Metric Realty Corp., Metric Holdings, Inc., Metric Management,
Inc., GHI Associates II, L.P., Metric Realty Services, Inc., Chris
Komanowski, Joseph D. Long, Ronald E. Zuzack, Robert A. Fiddaman, and
W. Patrick McDowell.                          

Judge: CAIN

First Paragraph:

Plaintiffs appeal the action of the trial court in converting a
T.R.C.P. Rule 12.02 motion of those referred to as "affiliated
defendants" into a T.R.C.P. Rule 56 motion and then granting it,  and
in sustaining a motion for summary judgment in favor of those
described as "advisor defendants."  The action against all Defendants
asserted tortious interference with contract.  Defendants appeal the
trial court action in overruling their motion for summary judgment
based upon the statute of limitations.  We affirm the action of the
Chancellor in granting summary judgment to the "affiliated defendants"
and in granting the motion for summary judgment of the "advisor
defendants."  We further hold that the statute of limitations had
expired as to all defendants.  As modified, the judgment of the trial
court is affirmed.

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

STATE OF TENNESSEE v. FREDDIE DEAN BLEDSOE

Court:TCCA

Attorneys:   

G. Earl Patton, Crossville, Tennessee, for appellant, Freddie Dean
Bledsoe.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General;  Bill Gibson, District Attorney General;
and Anthony Craighead, Assistant District Attorney General, for
appellee, State of Tennessee.                       

Judge: SMITH

First Paragraph:

The appellant was convicted by a jury of the offense of aggravated
assault.  He was sentenced to a term of six years incarceration and
the jury assessed a $10,000 fine.  On appeal he contends that the
evidence is insufficient to support the verdict.  After a careful
review of the record we find that the evidence is sufficient to
support the verdict and we affirm the judgment of the trial court.

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

JERRY BRITT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

P. Richard Talley and S. Douglas Drinnon, Dandridge, Tennessee, for
the appellant, Jerry Britt.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Christopher Scruggs, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: WEDEMEYER

First Paragraph:

The Petitioner was charged with one count of aggravated sexual
battery; five counts of rape of a child; two counts of possession with
intent to sell or deliver a controlled substance; and six counts of
the delivery of a controlled substance.  The Petitioner subsequently
pled guilty to two counts of possession with intent to sell or deliver
a controlled substance and to six counts of the delivery of a
controlled substance.  He also entered an Alford plea to three counts
of attempted rape of a child.  Pursuant to his plea agreement, the
trial court sentenced the Petitioner to an effective sentence of
forty-eight years.  The Petitioner subsequently filed a timely
petition for post-conviction relief which was heard and denied by the
trial court.  In this post-conviction appeal, the Petitioner contends
that he received ineffective assistance of counsel when he entered his
pleas; that his counsel's deficient performance rendered his guilty
pleas unknowing and involuntary; and that he should be granted
post-conviction relief because of newly discovered evidence. 
Concluding that the Petitioner received adequate representation when
he entered his plea; that his pleas were entered knowingly,
voluntarily, and intelligently; and that the Petitioner is not
entitled to post-conviction relief on the basis of newly discovered
evidence, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE  v. EVANGELINE COMBS and JOSEPH D. COMBS
WITH CONCURRING OPINION

Court:TCCA

Attorneys: 

Stephen M. Wallace, District Public Defender; Terry L. Jordan,
Assistant Public Defender; and Joseph F. Harrison, Assistant Public
Defender, Blountville, Tennessee, for the appellant, Evangeline Combs;
and Richard A. Spivey, Kingsport, Tennessee, for the appellant, Joseph
D. Combs.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Barry Staubus, Assistant District Attorney General, for
the appellee, State of Tennessee.                          

Judge: WOODALL

First Paragraph:

The Defendants, Joseph D. Combs and Evangeline Combs (husband and
wife), were charged by  presentment returned by a Sullivan County
grand jury with numerous offenses: Joseph Combs was indicted for one
count of especially aggravated kidnapping, two counts of aggravated
assault, one count of aggravated perjury, one count of aggravated
rape, and seven counts of rape.  Evangeline Combs was indicted for one
count of especially aggravated kidnapping, three counts of aggravated
assault, two counts of assault, and four counts of aggravated child
abuse.  Following the close of all proof, the trial court dismissed
one count of aggravated assault in the presentment against both
Defendants and three counts (one for aggravated assault and two for
simple assault) against Evangeline, finding the offenses in these four
counts were barred by the statute of limitations.  Following
deliberation, the jury found Defendant Evangeline Combs guilty of
especially aggravated kidnapping and four counts of aggravated child
abuse, and not guilty of one count of aggravated assault. Defendant
Joseph Combs was found guilty of especially aggravated kidnapping,
aggravated assault, aggravated perjury, and aggravated rape, in
addition to  seven counts of rape.  Evangeline Combs received a
sentence of 65 years, and Joseph Combs received an effective sentence
of 114 years.  The Defendants, represented by different counsel, filed
separate notices of appeal.  Thereafter, the two cases were
consolidated to form the instant appeal which presents the following
issues: (1) whether the trial court properly conducted voir dire
proceedings; (2) whether the trial court erred by allowing the State
to amend the presentment for especially aggravated kidnapping; (3)
whether the State properly complied with Defendants' request for a
bill of particulars regarding the charge of especially aggravated
kidnapping; (4) whether the trial court improperly admitted evidence
of prior bad acts; (5) whether the evidence was sufficient to support
the Defendants' convictions; (6) whether the trial court's
instructions to the jury included all appropriate lesser-included
offenses; (7) whether the trial court failed to fully and properly
instruct the jury concerning the especially aggravated kidnapping
charge; (8) whether the trial court erred by failing to merge the
convictions for certain offenses; and (9) whether the sentences
imposed on both Defendants were proper.  Defendant Joseph Combs
additionally presents the issue of whether seven of his eight rape
convictions should be reversed because the State failed to allege
sufficient facts in the presentment to properly toll the statute of
limitations for these offenses.  After a thorough review of the
record, we reverse Defendant Joseph Combs' conviction for aggravated
perjury and remand the matter for a new trial on that charge.  In all
other respects, we affirm the judgments of the trial court as
modified.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/combse_con.wpd

STATE OF TENNESSEE v. MELISSA D. HAYMAN

Court:TCCA

Attorneys: 

Mack Garner, Assistant District Public Defender, Maryville, Tennessee,
for the appellant, Melissa D. Hayman.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Mike Flynn, District Attorney
General; and William Reed, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

A jury convicted the Defendant, Melissa D. Hayman, of aggravated
burglary, aggravated assault, and aggravated kidnapping.  The trial
court sentenced the Defendant as a Range I standard offender to six
years each for the burglary and the assault convictions, and to twelve
years as a Range I violent offender for the kidnapping.  The six year
sentences were ordered to be served consecutively to the twelve year
sentence and to each other, for an effective sentence of twenty-four
years.  All of the Defendant's sentences were ordered to be served in
the Department of Correction.  In this direct appeal the Defendant
contends that the kidnapping conviction violates her constitutional
rights under State v. Anthony, and further challenges the length and
manner of service of her sentences.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. JOSEPH LANTRIP

Court:TCCA

Attorneys:

A C Wharton, Jr., District Public Defender, and Tony N. Brayton and
William Yonkowski, Assistant Public Defenders, for the appellant,
Joseph Lantrip.

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

Judge: WILLIAMS

First Paragraph:

Defendant pled guilty to aggravated rape and aggravated kidnapping. 
On appeal, defendant (1)  asserts that the trial court erred in its
application of enhancement factors to the sentences and (2) asserts
that the imposition of consecutive sentences was improper.  After
reviewing the sentence de novo, we conclude that the trial court erred
in sentencing defendant.  We reverse and remand for resentencing.

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

STATE OF TENNESSEE v. JEREMY WHITE

Court:TCCA

Attorneys:  

Mark S. McDaniel, Memphis, Tennessee, for the appellant, Jeremy White.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Lee Coffee and Alanda Dwyer, Assistant District Attorneys
General, for the appellee, State of Tennessee.                        

Judge: OGLE

First Paragraph:

On May 2, 2000, a Shelby County Grand Jury indicted the appellant,
Jeremy White, for attempt to commit first degree murder, especially
aggravated robbery, especially aggravated burglary, and especially
aggravated kidnapping.  The appellant retained an attorney, Mark
McDaniel, to defend him against the State's prosecution in the Shelby
County Criminal Court.  However, in addition to maintaining a private
practice, McDaniel was a "part-time prosecutor" for the Town of
Collierville in Shelby County.  Accordingly, the State filed a motion
to disqualify McDaniel from representing the appellant due to a
conflict of interest.  Following a hearing, the trial court granted
the State's motion.  From the trial court's order, the appellant now
brings this interlocutory appeal.  Having thoroughly reviewed the
record and the parties' briefs, we affirm the judgment of the trial
court.

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

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