Opinion Flash

November 21, 2002
Volume 8 — Number 206

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
01	New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05	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

IN RE: Amendment to Supreme Court Rule 28, Sections 11 and 12

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/rule28amd_ord.wpd

HELEN LOUISE HALL v. JAMES WILLIAM HALL

Court:TCA

Attorneys:   

Walter Bailey, Memphis, For Appellant, James William Hall

Paul E. Lewis, Millington, For Appellee, Helen Louise Hall                       

Judge: CRAWFORD

First Paragraph:

Plaintiff-wife sued defendant husband for a divorce on the grounds of
inappropriate marital conduct and irreconcilable differences.  After a
nonjury trial, a divorce was awarded to wife and she was awarded
alimony in futuro and part of her attorney fees.  Husband has appealed
the award of in futuro alimony.  We affirm.

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

HGI ASSOCIATES, INC. v. MACTRONICS, INC. 

Court:TCA

Attorneys: 

William A. Cohn, Cordova, Tennessee, for the appellant, HGI
Associates, Inc.

Rex L. Brasher, Jr., Memphis, Tennessee, for the appellee, Mactronics,
Inc.                         

Judge: FARMER

First Paragraph:

Plaintiff was awarded a judgment for breach of contract and incidental
damages in the amount of $18,356.  The breach occurred when Defendant
(Seller) was unable to deliver 500 computers which Plaintiff (Buyer)
had contracted to purchase.  Plaintiff appeals contending that the
damages awarded by the trial court were inadequate.  We affirm.

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

PATSY MITCHELL, et ux. v. DR. JAMES ENSOR, M.D., et al.

Court:TCA

Attorneys:

Robert A. McLean, Memphis, For Appellants, Patsy and Steve Mitchell

Albert C. Harvey, Elizabeth T. Collins, Memphis, For Appellees, Dr.
James Ensor, M.D. and Memphis Internal Medicine, P.L.L.C.

Judge: CRAWFORD

First Paragraph:

Patient brought medical malpractice action against physician and
medical group, including allegations that physician failed to obtain
the informed consent of female patient prior to administration of a
testosterone injection.  The circuit court entered judgment on a jury
verdict in favor of physician and medical group.  Patient appealed. 
We affirm and remand.

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

DAGMAR GABRIELE MOSS v. ALVIN WARREN MOSS

Court:TCA

Attorneys:  

Harriet S. Thompson, Bolivar, For Appellant, Dagmar Gabriele Moss

H. Morris Denton, Bolivar, For Appellee, Alvin Warren Moss                        

Judge: CRAWFORD

First Paragraph:

Wife filed a complaint for divorce alleging inappropriate marital
conduct and, in the alternative, irreconcilable differences, and
husband filed a counterclaim for divorce on the same grounds.  The
chancery court awarded the wife an absolute divorce and alimony in
solido in the amount of $1,000.00, to be paid toward her attorney
fees, but denied wife's claim for alimony in futuro.  Wife appeals. 
We affirm as modified and remand.

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

IN THE MATTER OF:   R.C.V. and O.V., children under the age of 18 years

Court:TCA

Attorneys:  

Webb A. Brewer, Barbaralette G. Davis, Nancy Percer Kessler, Memphis
Area Legal Services, Inc., For Appellant, Cynthia Valle

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond,
Assistant Attorney General, ForAppellee, Tennessee Department of
Childrne's Services                        

Judge: CRAWFORD

First Paragraph:

This is a termination of parental rights case on appeal for the second
time.  This Court in the first appeal reversed the order of the
juvenile court terminating the parental rights of the parties
primarily because the trial court failed to provide counsel to the
parties pursuant to Rule 39, Tenn. R. Juv. P.  On remand, the juvenile
court found clear and convincing evidence justifying termination of
parental rights pursuant to the applicable statutes and that
termination was in the children's best interests.  The juvenile court
also held that the appointment of a special judge in this instance was
not unconstitutional nor was the parent denied due process in the
termination proceeding.  As appealed, we affirm.

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

STATE OF TENNESSEE v. CALVIN T. BARHAM

Court:TCCA

Attorneys:

George Morton Googe, District Public Defender, and Vanessa D. King,
Assistant Public Defender, for the appellant, Calvin T. Barham.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Shaun A. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

Defendant pled guilty to possession of cocaine with intent to sell, a
Class C felony.  Defendant's motion to suppress evidence was denied by
the trial court.  Defendant claimed that evidence found on him was the
result of an illegal search and should have been suppressed.  The
suppression issue was certified for review.  We affirm the trial court
and hold the evidence was properly admissible.

http://www.tba.org/tba_files/TCCA/barhamc1.wpd

STATE OF TENNESSEE v. GEORGE R. CROFT

Court:TCCA

Attorneys:

A C Wharton, Jr., and Tony N. Brayton (on appeal); and Timothy J.
Albers and Sherrye J. Brown (at trial), Memphis, Tennessee, for the
appellant, George R. Croft.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and J. Robert Carter, Jr., and David C. Henry, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury found the Defendant guilty of especially
aggravated robbery and felony murder in the perpetration of a robbery.
 The trial court sentenced the Defendant as a Range I violent offender
to life imprisonment for the felony murder conviction and to
twenty-two years for the especially aggravated robbery conviction.  On
appeal, the Defendant argues that the trial court erred by failing to
give a requested jury instruction on lost or destroyed evidence, that
the evidence presented by an accomplice was not sufficiently
corroborated to support the convictions, and that the trial court
erred in sentencing the Defendant for the especially aggravated
robbery conviction by not including in the record specific findings
regarding the enhancement and mitigating factors considered in
sentencing him.  We affirm the Defendant's convictions, but remand to
the trial court for a new sentencing hearing for the especially
aggravated robbery conviction.

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

MICHAEL EDMONDSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Michael
Edmondson.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephen P. Jones, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Michael Edmondson, appeals as of right the Shelby
County Criminal Court's denial of his petition for post-conviction
relief.  He challenges his convictions pursuant to guilty pleas
contending that he received the ineffective assistance of counsel
because his trial attorney failed to investigate and prepare his case
for trial.  We affirm the trial court's denial of the post-conviction
petition.

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

STATE OF TENNESSEE v. LILLIE FRAN FERGUSON

Court:TCCA

Attorneys:

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Lillie Fran
Ferguson.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and James W. Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.                           

Judge: WILLIAMS

First Paragraph:

After entering a guilty plea, the defendant reserved certified
questions for review: (1) whether the Terry search was justified, and
(2) whether the incriminating nature of the contraband was immediately
apparent.  We hold that the officer lacked reasonable suspicion to
justify a Terry frisk and that the object felt was not immediately
apparent as contraband.  We reverse and dismiss the defendant's
conviction.

http://www.tba.org/tba_files/TCCA/fergusonlf1.wpd

STATE OF TENNESSEE v. OPAL GAUSE

Court:TCCA

Attorneys:

Tom W. Crider, District Public Defender; and Joyce Diane Blount,
Assistant Public Defender, Tenton, Tennessee, for the appellant, Opal
Gause.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Larry Hardister, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: WOODALL

First Paragraph:

Defendant, Opal Gause, entered a guilty plea to two counts of
aggravated assault.  The trial court sentenced Defendant to two
consecutive three-year terms, for an effective sentence of six years.
The sentences were suspended, and Defendant was placed on probation
for the length of his original sentences.  A violation warrant was
subsequently issued alleging Defendant had failed to meet the
conditions of his probation.  Following a hearing, Defendant's
probation was revoked, and he was ordered to serve his original
sentence with credit for time served pre-trial.  Defendant now
challenges the revocation of his probation.  Following a review of the
record, we affirm the decision of the trial court.

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

STATE OF TENNESSEE v. JOE L. JONES

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee, (on appeal only); Joseph
P. Atnip, District Public Defender; Colin Johnson, Assistant Public
Defender, Dresden, Tennessee, (at trial and of counsel on appeal).

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and  Allen J.
Strawbridge, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Joe L. Jones, appeals from the sentencing decision of
the Weakley County Circuit Court.  After a trial by jury, Jones was
convicted of casual exchange, a class A misdemeanor.  Following a
sentencing hearing, Jones received a split confinement sentence of
eleven months and twenty-nine days, with forty-five days to be served
in the county jail followed by probation.  The trial court also
imposed a $500 fine.  On appeal, Jones contends that the trial court
erred in imposing a sentence of continuous confinement and that the
fine was excessive.  Finding no error, the judgment is affirmed.

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

								
STATE OF TENNESSEE v. JASON ALLEN MOBLEY

Court:TCCA

Attorneys:

Victoria L. DiBonaventura, Paris, Tennessee (at trial); Guy T.
Wilkinson, District Public Defender; and W. Jeffery Fagan, Assistant
District Public Defender (on appeal), for the appellant, Jason Allen
Mobley.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.                      

Judge: TIPTON

First Paragraph:

The defendant, Jason Allen Mobley, appeals as of right from the Henry
County Circuit Court's revoking his eight-year probation.  The
defendant contends that the trial court erroneously revoked his
probation without sufficient proof that he was using drugs.  We affirm
the trial court.

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

								
								
STATE OF TENNESSEE v. DEREK T. PAYNE

Court:TCCA

Attorneys:

William D. Massey (at trial and on appeal) and Gerald D. Skahan (at
trial), Memphis, Tennessee, for the appellant, Derek T. Payne.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Karen Cook and Reginald R. Henderson, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Derek T. Payne, was convicted by a Shelby County
Criminal Court jury of second degree murder, a Class A felony, and
attempted especially aggravated robbery, a Class B felony, and was
sentenced by the trial court to an effective sentence of thirty-seven
years in the Department of Correction.  In this appeal as of right, he
challenges the sufficiency of the evidence in support of his
convictions, the sentences imposed, and the trial court's evidentiary
rulings.  We affirm the judgments of the trial court.

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

								
								
JOHN PARKER ROE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Douglas A. Trant, Knoxville, Tennessee, for the appellant, John Parker
Roe.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Amy Weirich, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, John Parker Roe, was convicted by a jury of first
degree premeditated murder.  His conviction was affirmed on direct
appeal.  See State v. John Parker Roe, No. 02C01-9702-CR- 00054, 1998
Tenn. Crim. App. LEXIS 39 (Jackson, Jan. 12, 1998), perm. appeal
denied (Tenn., Jan. 4, 1999).  The Defendant subsequently filed for
post-conviction relief, alleging that he received ineffective
assistance of counsel at trial.  After an evidentiary hearing, the
post-conviction court denied relief.  This appeal followed.  We
affirm.

http://www.tba.org/tba_files/TCCA/roejp.wpd
								
								KENNETH SMITH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Kenneth Smith, Whiteville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Colin A. Campbell, Assistant District Attorney General,
for the appellee, State of Tennessee.
 
Judge: WOODALL

First Paragraph:

Petitioner, Kenneth Smith, appeals pro se the trial court's dismissal
of his Petition for Post- Conviction Relief, which he also filed pro
se.  The record on appeal does not contain the transcript of the
proceedings below.  There is nothing in the record to indicate that
Petitioner's court-appointed counsel was allowed to withdraw or that
Petitioner waived the assistance of counsel on appeal.  Pursuant to
our holding in Drummer v. State, 6 S.W.3d 520 (Tenn. Crim. App. 1999),
the judgment of the trial court is vacated and this case is remanded
for the trial court to reinstate the order dismissing the Petition for
Post-Conviction Relief.  If Petitioner is still indigent, counsel
appointed to represent Petitioner at the post-conviction hearing shall
continue to represent Petitioner on appeal and the case shall proceed
pursuant to the Tennessee Rules of Appellate Procedure.

http://www.tba.org/tba_files/TCCA/smithken.wpd
								
								
STATE OF TENNESSEE v. MICHAEL TUCKER

Court:TCCA

Attorneys: 

A C Wharton, Jr., Public Defender, and W. Mark Ward, Assistant Public
Defender, Memphis, Tennessee (on appeal); and William L. Johnson,
Memphis, Tennessee (at trial), for the Appellant, Michael Tucker.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; William L. Gibbons, District Attorney
General; James Wax and Karen Cook, Assistant District Attorneys
General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Shelby County Grand Jury indicted the Defendant for felony murder
in the perpetration of a robbery, first degree premeditated murder,
and especially aggravated robbery.  Following a trial, at which the
Defendant was tried with his co-defendant, a Shelby County jury
convicted the Defendant of second degree murder.  The Defendant now
appeals his conviction as of right, arguing that insufficient evidence
was presented to support his conviction, that the trial court supplied
the jury with improper supplemental instructions, and that the trial
court improperly commented on the evidence at trial.  Concluding that
sufficient evidence was presented to support the Defendant's
conviction for second degree murder, that the trial court's
supplemental instructions  to the jury were proper, and that the trial
court did not improperly comment on the evidence, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/tuckerm_opn.wpd
								
								STATE OF TENNESSEE v. MICHAEL TUCKER

Court:TCCA

WADE CONCURRING

http://www.tba.org/tba_files/TCCA/tuckerm_con.wpd
								
								STATE OF TENNESSEE v. MICHAEL TUCKER

Court:TCCA

TIPTON DISSENTING

http://www.tba.org/tba_files/TCCA/tuckerm_dis.wpd
								
								KEVIN WILKINS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Kevin Wilkins, Whiteville, Tennessee, pro se.

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

Judge: WOODALL

First Paragraph:

Petitioner, Kevin Wilkins, filed his petition for post-conviction
relief in the Shelby County Criminal Court on December 6, 2001.  The
State filed a response moving the trial court to dismiss the petition
because it was filed after the statute of limitations had expired. 
Without a hearing, the trial court entered an order granting the
State's request and dismissed the petition on the basis that it was
filed past the one-year limitation set forth in Tennessee Code
Annotated section 40-30-202.  Petitioner filed a timely notice of
appeal.  We reverse the judgment of the trial court and remand this
case for a hearing.

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

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