Opinion Flash
December 20, 2002
Volume 8 — Number 224
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 |
| 14 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
| 04 |
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 |
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.
Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.
Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
ROBERT JESSIE BURTON, SR. v. KENT F. GEARIN
Court:TCA
Attorneys:
Robert Jessie Burton, Sr., Pro Se.
James F. Horner, Memphis, Tennessee, for the appellee, Kent F. Gearin.
Judge: FARMER
First Paragraph:
The plaintiff, a prisoner, sued the defendant who had been appointed
to represent the plaintiff in his petition for post-conviction relief.
The prisoner, proceeding pro se, filed a motion asking the trial
court to hold this matter in abeyance until his release from prison.
The motion was denied. The defendant filed a motion for summary
judgment supported by an un-refuted affidavit which was granted. The
prisoner appealed the trial court's denial of the motion for abeyance
and we affirm.
http://www.tba.org/tba_files/TCA/burtonrobertj.wpd
LARRY MILLARD BUTLER v. STATE OF TENNESSEE ex rel. GWENDOLYN ELIZABETH BUTLER
Court:TCA
Attorneys:
Paul G. Summers, Attorney General and Reporter, and Stuart F.
Wilson-Patton, Senior Counsel, Office of the Attorney General, for
appellant, State of Tennessee.
Scott K. Haynes and Austin L. McMullen, Nashville, Tennessee, for
appellant, Maximus, Inc.
Mary Jo Middlebrooks, Jackson, Tennessee, for appellee, Larry Millard
Butler.
Judge: LILLARD
First Paragraph:
This is a contempt of court case. The father and mother were divorced
in August 1999. The father was ordered to make child support payments
to the mother. The mother later filed a motion to require the father
to pay his child support obligation through income assignment. The
mother then sought the assistance of a state-authorized child support
enforcement contractor to assist her in obtaining an increase in child
support. This act triggered statutory provisions associated with
Title IV-D of the Social Security Act. The trial court denied the
mother's motion to require income assignment, and ordered that the
child support payments continue to be paid directly to the mother.
The child support contractor then caused a child support payment
coupon to be sent to the father, and also issued, on behalf of the
Tennessee Department of Human Services, an administrative order to
redirect the child support payments to the State's child support
collection and disbursement unit. In response, the father filed a
motion to hold the mother in civil contempt for taking actions to have
the child support payments made by income assignment, and also sought
an order enjoining the mother from utilizing the child support
contractor. The trial court ordered that the administrative order be
set aside. The mother then filed another motion, inter alia, to have
the father pay child support by income assignment through the State's
central child support collection and disbursement unit. The father
filed another motion to have the mother and the child support
contractor cited for contempt of court. The trial court held the
mother and the child support contractor in contempt, fined each of
them, ordered that they reimburse the father for the administrative
fees and his attorney's fees, and pay court costs. We reverse,
holding that the finding of contempt by the trial judge was an abuse
of discretion because the original order was contrary to Tennessee
law; Tennessee statutes require the father's child support payments
to be redirected through the State child support collection and
disbursement unit, and the record does not include evidence supporting
an exemption from the statutory requirement that the payments be made
by income assignment.
http://www.tba.org/tba_files/TCA/butlerlm.wpd
KUBOTA CREDIT CORPORATION, USA v. DOUG TILLMAN, et al.
Court:TCA
Attorneys:
Roger A. Stone, Memphis, Tennessee, for the appellant, Doug Tillman
a/k/a Bud Tillman, d/b/a Millington Motors d/b/a AAA Collateral Loan &
Jewelry Company..
William D. Wilson, Jr., Memphis, Tennessee, for the appellee, Kubota
Credit Corporation.
Judge: FARMER
First Paragraph:
The plaintiff creditor in this case filed suit to recover a tractor
that was subject to a security agreement and was pawned to the
defendant pawnbroker. The court below awarded summary judgment to the
creditor. The pawnbroker appeals, claiming the creditor's security
agreement was not properly perfected, and that the creditor therefore
does not have a superior right to possession of the tractor. We find
issues of material fact exist regarding whether the security agreement
was perfected, whether the pledgor had authority to pawn the tractor,
and whether the pawn transaction was entered into in good faith. We
reverse summary judgment and remand.
http://www.tba.org/tba_files/TCA/kubotacreditcorp.wpd
JAMES O. WARD v. SUSAN AMPFERER WARD
Court:TCA
Attorneys:
Daniel Loyd Taylor, Memphis, Tennessee, for the appellant, Susan
Ampferer Ward.
Larry Rice, Memphis, Tennessee, and Laura D. Rogers, Memphis,
Tennessee, for the appellee, James O. Ward.
Judge: ASH
First Paragraph:
Mr. James Ward filed a Compliant for divorce on July 31, 1998. Mrs.
Ward filed a Counter-Complaint for Absolute Divorce on November 30,
2000. The trial was held February 19, 2001 through February 22, 2001
and continued March 1, 2001 to March 2, 2001. On March 2, the
Chancellor issued findings of fact and divided the marital property.
Mrs. Ward asked the court to find Mr. Ward dissipated approximately
$107,355 in marital assets, and requested the court award her
attorney's fees as well as litigation expenses because the search for
hidden funds resulted in a large portion of her attorney's fees. The
Chancellor determined Mr. Ward did not dissipate marital assets, and
denied the request for attorney's fees. The chancellor entered the
final decree of divorce on April 6, 2001. This appeal followed.
http://www.tba.org/tba_files/TCA/ward.wpd
STATE OF TENNESSEE v. RICHARD BOKANPER
Court:TCCA
Attorneys:
Mary K. Kent and Tony N. Brayton, Memphis, Tennessee, for the
Appellant, Richard Bokanper.
Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Jones, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The defendant, Richard Bokanper, appeals his Shelby County Criminal
Court jury convictions of burglary and theft. Following the guilty
verdicts, the trial court sentenced the defendant as a career offender
to an effective term of twelve years in the Department of Correction.
On appeal, the defendant challenges only the sufficiency of the
convicting evidence. Because the evidence insufficiently corroborates
the inculpative testimony of an accomplice, we reverse the convictions
and dismiss the charges.
http://www.tba.org/tba_files/TCCA/bokanperrichard.wpd
STATE OF TENNESSEE v. WILLIAM MARVIN BROWN
Court:TCCA
Attorneys:
Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna Leigh
Hargrove, District Public Defender; and Andrew Jackson Dearing, III,
Assistant District Public Defender, for the appellant, William Marvin
Brown.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant, William Marvin Brown, appeals as of right his
conviction by a Marshall County Circuit Court jury for child rape, a
Class A felony, and the resulting twenty-three-year, nine-month
sentence. He contends that the evidence is insufficient to identify
him as the perpetrator of the crime and that the trial court
erroneously failed to apply mitigating factors, which resulted in an
excessive sentence. We affirm the judgment of conviction.
http://www.tba.org/tba_files/TCCA/brownwilliammarvin.wpd
STATE OF TENNESSEE v. ERIC T. DAVIS
Court:TCCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Eric T.
Davis.
Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and C. Daniel Brollier, Jr., Assistant District Attorney
General, for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Eric T. Davis appeals the Montgomery County Circuit Court's revocation
of his probationary sentences and order that he serve the sentences as
originally imposed in the Department of Correction. He claims that
the lower court erred in finding that he committed a criminal offense
based upon the uncorroborated testimony of a law enforcement
informant. Because we are unpersuaded of error, we affirm.
http://www.tba.org/tba_files/TCCA/daviserict.wpd
GLENN D. GOLD v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Glenn D. Gold, Pro Se.
Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; John Carney, District Attorney General;
and Jennifer L. Smith, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Glenn D. Gold appeals from the Montgomery County Circuit Court's
dismissal of his pro se petition in which he seeks post-conviction,
habeas corpus, and coram nobis relief. Because his attempts to
receive post-conviction and coram nobis relief are untimely and his
attempt for habeas corpus relief does not state a claim cognizable in
that type of action, we affirm the lower court.
http://www.tba.org/tba_files/TCCA/goldglennd.wpd
STATE OF TENNESSEE v. THERESA HALLSFORD
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Mike Bottoms, District Attorney General,
for the Appellant, State of Tennessee.
J. Russell Parkes, Columbia, Tennessee, for the appellee, Theresa
Hallsford.
Judge: WELLES
First Paragraph:
The State appeals from the order of the Maury County Circuit Court
reversing the district attorney general's decision to deny the
Defendant pretrial diversion for the charge of arson. We reverse the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/hallsfordt.wpd
STATE OF TENNESSEE v. JOSEPH JACKSON, JR.
Court:TCCA
Attorneys:
Gerald D. Waggoner, Memphis Tennessee (at trial), and Larry M.
Sargent, Memphis, Tennessee (on appeal), for the appellant, Joseph
Jackson, Jr.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and David N. Pritchard, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
Defendant attempted to shoot and kill Johnny Maxwell, missed, and
accidentally shot twelve-year- old Brittney Taylor, seriously injuring
her. A jury convicted the defendant of attempted first degree murder
of Maxwell and attempted first degree murder of Taylor. He appeals,
claiming the trial court erroneously charged the jury, relative to the
doctrine of transferred intent; that double jeopardy bars convictions
of both offense; and the evidence was insufficient to sustain the
attempted first degree murder convictions. We agree and affirm both
convictions.
http://www.tba.org/tba_files/TCCA/jacksonj.wpd
STATE OF TENNESSEE v. JEROME D. MANNING
Court:TCCA
Attorneys:
Kenneth Quillen, Nashville, Tennessee (on appeal); and Dale M.
Quillen, Nashville, Tennessee (at trial), for the Appellant, Jerome D.
Manning.
Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and
Dee Gay, Assistant District Attorney General, for the Appellee, State
of Tennessee.
Judge: WITT
First Paragraph:
Jerome D. Manning appeals a certified question of law regarding a
police officer's stop of him which resulted in his arrest for illegal
possession of narcotics. Because we agree with the trial court that
reasonable suspicion supported by specific and articulable facts
existed for the stop and that the scope and duration of the detention
were not unreasonable, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/manningjeromed.wpd
STATE OF TENNESSEE v. ROBERT S. NEAL
Court:TCCA
Attorneys:
Michael R. Giaimo and J. Steve Daniels (at trial), Livingston,
Tennessee, for the appellant, Robert S. Neal.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Benjamin W. Fann and John A. Moore, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant, Robert S. Neal, appeals as of right his convictions by
a Putnam County jury of vehicular homicide, reckless endangerment, and
child endangerment. He contends (1) that the evidence is insufficient
to sustain his convictions, (2) that the trial court erroneously
admitted laboratory test results regarding the presence of cocaine in
his body, (3) that a Tennessee Bureau of Investigation (TBI) forensic
scientist was not qualified to testify about the metabolism of
cocaine, and (4) that his sentence is excessive. We merge the two
child endangerment convictions pursuant to the Double Jeopardy Clause
and affirm the judgments of conviction in all other respects.
http://www.tba.org/tba_files/TCCA/nealroberts.wpd
STATE OF TENNESSEE v. JOEL CHRISTIAN PARKER
Court:TCCA
Attorneys:
John B. Nisbett, III, Assistant Public Defender, Cookeville,
Tennessee, for the appellant, Joel Christian Parker.
Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; William Edward Gibson, District Attorney
General; Benjamin W. Fann and David Alan Patterson, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
On February 2, 2000, the defendant was convicted by a jury of the
offense of aggravated robbery. He received a sentence of nine years
in the state penitentiary. In this appeal he raises eight (8) issues
for our review: (1) whether the evidence is sufficient to support the
verdict; (2) whether the defendant was tried by a fair and impartial
jury; (3) whether the trial court committed reversible error in
failing to instruct the jury on the offenses of assault or aggravated
assault; (4) whether there was prosecutorial misconduct; (5) whether
the defendant was subjected to a constitutionally flawed show-up
shortly after the robbery; (6) whether the trial court correctly
instructed the jury as to what they must do if they have a reasonable
doubt that the defendant possessed the requisite mental state for the
offense; (7) whether the trial court should have dismissed the case
because the state destroyed evidence fundamental to the defense; (8)
whether the defendant's sentence is excessive.
We have carefully reviewed each of these claims, and we find that none
merit reversal of this case. The judgment of the trial court is
therefore affirmed.
http://www.tba.org/tba_files/TCCA/parkerjoel.wpd
STATE OF TENNESSEE v. GLENDA PONDER
Court:TCCA
Attorneys:
David N. Brady and John B. Nisbett, III, Cookeville, Tennessee, for
the Appellant, Glenda Ponder.
Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and William Locke, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Glenda Ponder appeals the DeKalb County Criminal Court's revocation of
her probationary sentence and ordering into effect her incarcerative
sentence in the Department of Correction. Upon review, we are
unpersuaded that the lower court abused its discretion and therefore
affirm.
http://www.tba.org/tba_files/TCCA/ponderglenda.wpd
STATE OF TENNESSEE v. KYNASTON SCOTT a.k.a. KYNASTON L. OLAWUMI
Court:TCCA
Attorneys:
Dwight E. Scott, Nashville, Tennessee, for the appellant, Kynaston
Scott a.k.a. Kynaston L. Olawumi.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Lisa Naylor and Shelli Neal, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Kynaston Scott a.k.a. Kynaston L. Olawumi, was
convicted by a jury in the Davidson County Criminal Court of first
degree murder and felony murder. The trial court merged the
convictions and sentenced the appellant to life imprisonment in the
Tennessee Department of Correction. On appeal, the appellant contends
that the evidence was not sufficient to support his convictions, the
trial court erred by instructing the jury on flight, and the trial
court erred in admitting an inflammatory photograph. Upon review of
the record and the parties' briefs, we affirm the judgment of the
trial court.
http://www.tba.org/tba_files/TCCA/scottk.wpd
MICHAEL THOMASON v. KEVIN MYERS, WARDEN
Court:TCCA
Attorneys:
Michael Thomason, Clifton, Tennessee, pro se.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Renee W. Turner, Assistant District Attorney General, for the
appellee, Kevin Meyers, Warden.
Judge: WELLES
First Paragraph:
The Defendant, Michael Thomason, petitioned for a writ of habeas
corpus, which the trial court summarily denied. The Defendant now
appeals as of right. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/thomasonm1.wpd
STATE OF TENNESSEE v. DONDIE TIDWELL
Court:TCCA
Attorneys:
John B. Nisbet, III, Cookeville, Tennessee; Larry M. Warner,
Crossville, Tennessee; and Larry F. Wallace, LaVergne, Tennessee, for
appellant, Dondie Tidwell.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and William C. Whitsell, Jr., District
Attorney General for appellee, State of Tennessee
Judge: SMITH
First Paragraph:
A Rutherford County jury convicted the defendant, Dondie Eugene
Tidwell, of two counts of first degree murder, one count of conspiracy
to commit first degree murder, one count of especially aggravated
kidnapping, and one count of theft over $10,000. The trial court
merged the defendant's two first degree murder convictions and ordered
the defendant to serve twenty-three years for his conspiracy to commit
first degree murder conviction, twenty-three years for his especially
aggravated kidnapping conviction, and four years and six months for
his theft conviction. The trial court ordered these sentences to run
concurrently to each other and consecutively to the defendant's
sentence for his merged first degree murder conviction, life without
the possibility of parole. Thus, the defendant received an aggregate
sentence of life without the possibility of parole plus twenty-three
years. The defendant now brings this appeal, challenging his
convictions and his sentence on the bases that (1) the trial court
erred by refusing to allow him to excuse a juror using a peremptory
challenge; (2) the evidence introduced at trial is insufficient to
support his convictions; (3) the prosecutor made inappropriate
comments when delivering the state's opening statement; (4) the trial
court erred by allowing an expert to testify on subjects beyond the
scope of that witness's expertise; (5) the trial court erred by
refusing to allow him to introduce evidence of the drugs that were
present in the victim's system at the time of the victim's death; (6)
the trial court instructed the jury incorrectly on the charge of
conspiracy; (7) the trial court erred by admitting a photograph of the
victim taken after the victim's death during the sentencing phase of
the trial; (8) the trial court erred by refusing, in the sentencing
phase, to allow the defendant to compare his potential sentence to the
sentence received by his co-conspirator; (9) the trial court erred by
allowing the introduction of certain hearsay evidence; (10) the
prosecutor exceeded the permissible scope of his rebuttal closing
argument; and (11) the trial court erred by imposing consecutive
sentencing. After reviewing the record, we find that the trial court
did err by refusing to allow the defendant to exercise a peremptory
challenge and that therefore the defendant is entitled to a new trial
on this basis. However, we find that the remainder of the issues
presented in this appeal have either been waived or lack merit.
http://www.tba.org/tba_files/TCCA/tidwelldondie.wpd
JOHN H. WILLIAMS, JR. v. KEVIN MYERS, WARDEN
Court:TCCA
Attorneys:
John H. Williams, Jr., Clifton, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; and Renee W. Turner,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner was convicted in 1988 of felony murder and is currently
serving a life sentence. After exhausting his direct and
post-conviction appeals, the Petitioner filed a petition for a writ of
habeas corpus, which the trial court subsequently denied. The
Petitioner now appeals the denial of his petition, arguing that the
convicting court lacked subject matter jurisdiction due to a defective
indictment and that the statute governing first degree murder at the
time of his trial was unconstitutionally vague. He contends that for
these reasons, his conviction is illegal. Having reviewed the
Petitioner's claims, we conclude that the original indictment upon
which the Petitioner's conviction was based was not defective and thus
that the convicting court was not without subject matter jurisdiction.
We further conclude that the statute governing the Petitioner's
conviction is not unconstitutionally vague. We therefore affirm the
judgment of the trial court in denying the petition for a writ of
habeas corpus.
http://www.tba.org/tba_files/TCCA/williamsjh1.wpd
Legislator’s Private Meeting with Citizens’ Groups in a Public Facility
Date: December 12, 2002
Opinion Number: 02-131
http://www.tba.org/tba_files/AG/2002/OP131.pdf
Activities of Legislative Staff
Date: December 12, 2002
Opinion Number: 02-132
http://www.tba.org/tba_files/AG/2002/OP132.pdf
Public Records on the Internet
Date: December 18, 2002
Opinion Number: 02-133
http://www.tba.org/tba_files/AG/2002/OP133.pdf
Scheduling Workers' Compensation Benefit Review Conferences
Date: December 19, 2002
Opinion Number: 02-134
http://www.tba.org/tba_files/AG/2002/OP134.pdf
PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.
GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.
JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.
To join the TBA go to: http://www.tba.org/join_bar.mgi
SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.
Visit the TBALink web site at: http://www.tba.org/op-flash.mgi
UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi
Home • Contact Us • PageFinder • What's New • Help
