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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