Opinion Flash

January 21, 2003
Volume 9 — Number 012

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
06 New Opinion(s) from the Tennessee Court of Appeals
15 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0121.wpd
								
ALTON DIXON v. NIKE, INC. Court:TCA Attorneys: Alton Dixon, Memphis, Tennessee, appellant, pro se. Herbert E. Gerson and Thomas J. Walsh, Jr., Memphis, Tennessee, for appellee, Nike, Inc. Judge: KIRBY LILLARD First Paragraph: This case involves alleged wrongful termination of employment and alleged misappropriation of an idea. The employee's original lawsuit ended in a judgment in favor of the employer; this became a final judgment after appeal to this Court. The employee then filed numerous motions, pleadings, and other filings, all based on the same facts underlying the lawsuit that had been finally decided. The additional actions were dismissed, sanctions were imposed on the employee, and the employee was ordered to pay costs and repeatedly admonished not to submit further filings on the matter that was the basis for the original lawsuit. The employee persisted, and filed a second lawsuit based on the same facts. This second lawsuit was dismissed. The employee now appeals. We affirm, and in addition, order that the clerks of this Court and inferior courts not accept any further filings from the employee relating to the matter that was the basis for the original lawsuit until all sanctions and costs are paid. http://www.tba.org/tba_files/TCA/dixona.wpd
JANICE LEE EVANS v. THOMAS JEFFERSON EVANS, JR. Court:TCA Attorneys: Harold F. Johnson, Jackson, For Appellant, Janice Lee Evans Carthel L. Smith, Jr., Lexington, For Appellee, Thomas Jefferson Evans, Jr. Judge: CRAWFORD First Paragraph: This is an appeal of a final decree of divorce involving issues of division of marital property, rehabilitative alimony, child support, and admission of evidence. Wife appeals. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/evansj.wpd
JOHN C. FLOWERS v. JOSEPH E. TURNER and CONNIE TURNER Court:TCA Attorneys: Mitchell G. Tollison, Humboldt, Tennessee, for the appellant, John C. Flowers. Howard B. Hayden, Memphis, Tennessee, for the appellees, Joseph E. Turner and Connie Turner. Judge: LILLARD First Paragraph: This is a personal injury case arising out of an automobile accident. The plaintiff truck driver, during the course of his employment, was involved in an automobile accident with the defendant. The plaintiff sued the defendant based on the injuries he sustained in the accident. The defendant stipulated as to liability, and the case went to trial on the issue of damages. After trial, the jury returned a verdict in favor of the plaintiff for past and future pain and suffering and past medical bills. The trial court entered a judgment on the verdict and denied the plaintiff's motion for an additur and/or a new trial. The plaintiff appeals, asserting that there was no material evidence to support the low amount of the jury's verdict, and appealing the order allowing the defendant to offset the verdict by the amount paid in satisfaction of the workers' compensation lien. We affirm the decision of the learned trial judge, finding material evidence in the record to support the jury's verdict and affirming the order permitting the offset. http://www.tba.org/tba_files/TCA/flowersjc.wpd
CAMELIA GIBSON AND SANDRA GORDON v. JOHN D. RICHARDSON AND THE STATE OF TENNESSEE, BY AND THROUGH BILL GIBBONS, SHELBY COUNTY DISTRICT ATTORNEY GENERAL Court:TCA Attorneys: Jeffrey S. Rosenblum and Marc E. Reisman, Memphis, Tennessee, for the appellant, Camelia Gibson. Eugene A. Laurenzi and Bobby F. Martin, Jr., Memphis, Tennessee, for the appellant, Sandra Gordon. John D. Richardson, Memphis, Tennessee, appellee, pro se. Thomas D. Henderson, Memphis, Tennessee, for the appellee, State of Tennessee. Judge: LILLARD First Paragraph: This case involves the scope of the attorney-client privilege. In April 2002, a daycare van was involved in an accident, killing some and injuring others. Multiple lawsuits were filed arising out of the accident. Subsequently, counsel for the daycare's insurance company took sworn statements of the owners and other employees of the daycare. Eventually, the tort litigation was settled. Meanwhile, the State began a criminal investigation of culpability for the accident. The State obtained a subpoena in general sessions criminal court ordering the insurance company's attorney to turn over the sworn statements. The daycare owners who gave the statements then filed a petition for a writ of certiorari in the chancery court below, seeking to stay enforcement of the subpoena and asserting that the sworn statements were protected by the attorney/client privilege. The chancery court declined to issue the stay. The daycare owners now appeal. We affirm, finding that the chancery court's decision was not unlawful, fraudulent, arbitrary, or capricious. http://www.tba.org/tba_files/TCA/gibsonc.wpd
BARTON HAWKINS, JR. v. AUGUSTA HAWKINS & ESTATE OF BARTON HAWKINS, SR. Court:TCA Attorneys: Barton Hawkins, Jr., Only, TN, pro se Jeffrey S. Rosenblum, Marc E. Reisman, Memphis, TN, for Appellant Karen Johnson Lanis L. Karnes, William H. Schackelford, Jr., Jackson, TN, for Appellees Judge: HIGHERS First Paragraph: This appeal involves the filing of claims against an estate and the filing of exceptions thereto. The trial court allowed the exceptions and awarded the Appellee the portion of her claim concerning two promissory notes. The parties raise multiple issues on appeal. For the following reasons, we affirm in part, reverse in part and remand. http://www.tba.org/tba_files/TCA/hawkins.wpd
DEBORAH BOWERS SMITH v. RILEY DEAN SMITH Court:TCA Attorneys: C. Timothy Crocker, Michael A. Carter, Milan, For Appellant, Riley Dean Smith Mary G. Middlebrooks, Jackson, For Appellee, Deborah Bowers Smith Judge: CRAWFORD First Paragraph: This is an appeal of a final decree of divorce and the order of the trial court on the moton to alter or amend, involving issues of division of marital property, alimony in futuro, contempt of court, and injunctive relief for Wife's alleged harassment of Husband. Husband appeals. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/smithdeb.wpd
STATE OF TENNESSEE v. TAMMY B. DAVENPORT Court:TCCA Attorneys: John Philip Parsons, Cookeville, Tennessee, for the appellant, Tammy B. Davenport. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant pled guilty to six counts of forgery over $1000, a Class D felony, and four counts of forgery, a Class E felony, with the sentences to be set by the trial court. At the conclusion of the sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender to the maximum terms of four years for each forgery over $1000 conviction and two years for each forgery conviction, with the sentences to be served concurrently in the Department of Correction. The trial court denied the defendant's request for full probation or split confinement. The defendant appeals, arguing that the trial court erred by failing to place its findings on the record and by denying probation or a sentence of split confinement. Based on our review, we affirm the sentences imposed by the trial court. http://www.tba.org/tba_files/TCCA/davenporttammy.wpd
STATE OF TENNESSEE v. DENNIS R. GOLTZ Court:TCCA Attorneys: Timothy V. Potter, Dickson, Tennessee, for the Appellant, Dennis R. Goltz. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Kenneth Crites, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Dennis R. Goltz, was convicted by a Hickman County jury of class E felony theft and sentenced to a term of two years, with sixty days to be served in confinement. On appeal, Goltz raises the following issues: (1) whether the trial court erred by removing a juror during the trial after that juror expressed concern about his ability to be fair and impartial; (2) whether he was denied a fair trial due to prosecutorial misconduct during the State's closing argument; and (3) whether his sentence was excessive based upon the trial court's failure to apply a mitigating factor. After review, we find no error with respect to issues (1) and (3). With regard to issue (2), we find that the prosecutor's closing argument affected the verdict to the prejudice of Goltz. Accordingly, the judgment of the trial court is reversed, and this case is remanded for a new trial. http://www.tba.org/tba_files/TCCA/goltzdennisr.wpd
STATE OF TENNESSEE v. JACK HACKERT Court:TCCA Attorneys: Judson W. Phillips, Franklin, Tennessee, Attorney for the Appellant, Jack Hackert. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Mark K. Harvey, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Jack Hackert, appeals the sentencing decision of the Williamson County Circuit Court. The sentence arose from a guilty plea entered by Hackert to: (1) two counts of sale or delivery of marijuana, class E felonies; (2) simple possession of marijuana; and (3) misdemeanor possession of drug paraphernalia. Following a sentencing hearing, Hackert received an effective sentence of two years, eleven months, and twenty-nine days, with one-hundred days to be served in the county jail. On appeal, Hackert raises the single issue of whether the trial court erred by denying full probation. After review, we find no error. Accordingly, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/hackertjack.wpd
STATE OF TENNESSEE v. JOE DAVID HILLIARD Court:TCCA Attorneys: Dwayne D. Maddox, III, Huntingdon, Tennessee, for the appellant, Joe David Hilliard. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Carroll County jury of simple assault and sentenced by the trial court to eleven months and twenty-nine days, with all jail time suspended except for sixty days in the county jail. The sole issue in this appeal is whether the trial court erred in denying total probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hilliardj.wpd
STATE OF TENNESSEE v. HAROLD JACKSON, JR. Court:TCCA Attorneys: Lee Davis, Chattanooga, Tennessee, for the Appellant, Harold Jackson, Jr. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; William H. Cox, District Attorney General; and Christopher Poole, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Following his jury convictions for official misconduct and evidence tampering, the defendant appealed the trial court's denial of his motion to suppress evidence which he alleged had been obtained as a result of a warrantless entry and search of his apartment. Because the record demonstrates that the defendant voluntarily produced the evidence and consented to its seizure without a warrant, we affirm the trial court. http://www.tba.org/tba_files/TCCA/jacksonharoldjr.wpd
STATE OF TENNESSEE v. WILLIE JOHNSON Court:TCCA Attorneys: Joseph Patterson, Jackson, Tennessee, for the appellant, Willie Johnson. 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: The defendant appeals his convictions of burglary and theft of property over five hundred dollars ($500.00). The defendant argues that the State did not present sufficient evidence at trial to support his burglary conviction and contends that he did not receive a speedy trial. We affirm the judgments from the trial court. http://www.tba.org/tba_files/TCCA/johnsonw.wpd
STATE OF TENNESSEE v. THEDDAEUS MEDFORD Court:TCCA Attorneys: Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Theddaeus Medford. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Theddaeus Medford, was convicted by a Lauderdale County jury of two counts of the delivery of cocaine and one count of the attempted delivery of cocaine. On appeal, he raises the following issues: (1) whether two peremptory challenges by the state were in violation of Batson v. Kentucky; (2) whether the evidence was sufficient to support the guilty verdicts; and (3) whether the trial court erred in admitting exhibits upon the suggestion of the court reporter after the examination of the witnesses had concluded. We vacate the judgment of the trial court and remand for a hearing on the alleged Batson violation. http://www.tba.org/tba_files/TCCA/medford.wpd
STATE OF TENNESSEE v. CALVIN M. NEWSOM and ERIC D. WHITE Court:TCCA Attorneys: Michael A. Colavecchio, Nashville, Tennessee, for the Appellant, Calvin M. Newsom; Barry R. Tidwell, Nashville, Tennessee, for the Appellant, Eric D. White. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: A Davidson County jury convicted the Appellants, Calvin M. Newsom and Eric D. White, of possession of .5 grams or more of cocaine, a Schedule II controlled substance, with intent to sell; possession of alprozolam, a Schedule IV controlled substance, with intent sell; felony possession of a deadly weapon; simple possession of marijuana; and possession of drug paraphernalia. Newsom and White raise one issue for our review, whether the evidence was sufficient to support their convictions. After review, we conclude that the proof is insufficient to establish that Newsom and White possessed the drugs, drug paraphernalia, and weapons found inside the residence. Accordingly, the judgments of conviction are reversed and dismissed. http://www.tba.org/tba_files/TCCA/newsomcmwhiteericd.wpd
STATE OF TENNESSEE v. MILA SHAW Court:TCCA Attorneys: Mozella Ross (at trial), and Gerald S. Green (on appeal), Memphis, Tennessee, for the appellant, Mila Shaw. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Teresa S. McCusker, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was found guilty by a jury of theft of property over ten thousand dollars ($10,000) and sentenced to four years and six months in the county workhouse. She contends the evidence was insufficient to sustain the conviction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/shawm1.wpd
STATE OF TENNESSEE v. CLYDE T. SMITH Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Wendy S. Tucker, and Jonathan Farmer, Assistant Public Defenders, for the appellant, Clyde T. Smith. Paul G. Summer, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: While serving a sentence in a community corrections program, the defendant was indicted and arrested on two counts of selling and delivering cocaine. His community corrections status was revoked upon proof of the indictment and arrest alone. The defendant claims that proof of an indictment and arrest, standing alone, is insufficient to support a revocation of a community corrections sentence. We agree and reverse the judgment from the trial court. http://www.tba.org/tba_files/TCCA/smithct.wpd
RICHARD D. SYKES v. STATE OF TENNESSEE Court:TCCA Attorneys: David Martin Hopkins, Nashville, Tennessee, for the appellee, Richard D. Sykes. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: In July 2000, pursuant to a plea agreement, the Petitioner pled guilty to eight felonies: one count of aggravated kidnapping, four counts of aggravated robbery, one count of attempted especially aggravated robbery, one count of attempted first degree murder, and one count of aggravated assault. The trial court sentenced him pursuant to the agreement to an effective sentence of twenty years with a release eligibility percentage of 30% and a concurrent sentence of twelve years with a release eligibility percentage of 100%. The Petitioner subsequently filed a petition for post-conviction relief, and following a hearing on the petition, the trial court denied relief. This appeal ensued. The Petitioner argues on appeal that he received ineffective assistance of counsel when he entered his pleas and that his pleas were thus not entered knowingly or voluntarily. Having reviewed the record, we conclude that the Petitioner was not denied his right to effective representation at the time that he entered his pleas, and we conclude that the Petitioner entered his pleas knowingly, voluntarily, and intelligently. We therefore affirm the trial court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/sykesrd.wpd
STATE OF TENNESSEE v. VICTOR EUGENE TYSON Court:TCCA Attorneys: Paul J. Bruno (on appeal); and Thomas T. Overton, Nashville, Tennessee (at trial), for the appellant, Victor Eugene Tyson. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Pamela S. Anderson and Lisa Naylor, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Davidson County Grand Jury indicted the Defendant for first degree premeditated murder, felony murder, attempted first degree murder and five counts of reckless endangerment. A Davidson County jury found the Defendant guilty of second degree murder, felony murder, attempted first degree murder and five counts of reckless endangerment. After merging the Defendant's convictions for second degree murder and felony murder, the trial court sentenced the Defendant to life imprisonment. The trial court sentenced the Defendant to thirty-five years for the attempted first degree murder conviction to be served consecutively to the life sentence. The trial court merged the five reckless endangerment convictions and sentenced the Defendant to three years to be served concurrently with the other sentences. The Defendant now appeals, arguing the following: (1) that the trial court erred by failing to instruct the jury on all lesser-included offenses; (2) that the trial court erred by denying the Defendant's motion to suppress a photographic lineup; (3) that insufficient evidence was presented at trial to support the Defendant's convictions; (4) that trial counsel was ineffective; and (5) that the trial court improperly assumed that as a matter of law, the sentences in this case must be served consecutively to a prior federal sentence. Concluding that the trial court committed reversible error (the State concedes), by failing to instruct the jury on certain lesser-included offenses of premeditated murder, felony murder and attempted first degree murder, we reverse those three convictions and remand Counts 1, 2, and 3 to the trial court for a new trial. We affirm the conviction for reckless endangerment in Count 4 and the three year sentence imposed in that count. We also remand Count 4 for the trial court to determine whether the sentence imposed in Count 4 should be served concurrently with or consecutively to the Defendant's federal sentence. http://www.tba.org/tba_files/TCCA/tysonve.wpd
STATE OF TENNESSEE v. KENNETH MAURICE VAUGHN Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; C. Dawn Deaner, Assistant Public Defender; and J. Michael Engle, Assistant Public Defender, Nashville, Tennessee, for the appellant, Kenneth Maurice Vaughn. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sarah N. Davis, Assistant District Attorney General; and Kristen K. Shea, Assistant District Attorney General; and Christopher R. Buford, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Kenneth Maurice Vaughn, appeals his convictions in the Davidson County Criminal Court for vandalism and aggravated criminal trespass. At his arraignment, Defendant entered a pro se plea of not guilty. During a hearing on several pretrial motions, at which Defendant proceeded pro se, Defendant signed a written waiver of his right to a trial by jury. After Defendant waived his right to a jury trial, the trial court appointed counsel to represent Defendant and scheduled a bench trial. Following a bench trial, Defendant was convicted as charged, and he received an effective sentence of eleven months and twenty-nine days for each charge, to be served consecutively. In this appeal as of right, Defendant argues that the trial court erred in accepting his jury waiver because he signed the waiver without the assistance of counsel. We conclude that Defendant was not unconstitutionally denied the right to counsel and that he made a valid waiver of his right to a jury trial. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/vaughnkennethmaurice.wpd
STATE OF TENNESSEE v. MELVIN WATERS Court:TCCA Attorneys: Daniel L. McMurtry, Nashville, Tennessee, for the appellant, Melvin Waters. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Brian K. Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The Supreme Court remanded this case to determine the issue of whether the trial court erred in sentencing the defendant to twelve years for the facilitation of aggravated robbery. The defendant was classified as a Range II offender. Twelve years is outside the range of a Range II offender, Class C felony. We conclude that the sentence is proper in that it does not exceed the range for a Class C felony. Offender classification ranges are non-jurisdictional and may be exceeded. We affirm this sentence. http://www.tba.org/tba_files/TCCA/watersm1.wpd
STATE OF TENNESSEE v. ROBERT JAMES YORECK, III Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Robert James Yoreck, III. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Robert James Yoreck, III, was indicted by a Montgomery County grand jury for rape, a class B felony. A negotiated plea agreement allowed the Appellant to plead to class C felony aggravated assault. Following a sentencing hearing, the trial court imposed a nine-year sentence. On appeal, Yoreck argues that his sentence was excessive. After review, we find that plain error dictates the conviction be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of rape. http://www.tba.org/tba_files/TCCA/yoreckrobertjames.wpd
Constitutionality of 2002 Amendments to Professional Privilege Tax Date: January 13, 2003 Opinion Number: 03-002 http://www.tba.org/tba_files/AG/2003/OP2.pdf
Practical Training for Funeral Director License Applicants Date: January 13, 2003 Opinion Number: 02-003 http://www.tba.org/tba_files/AG/2003/OP3.pdf

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