Opinion Flash

June 30, 2003
Volume 9 — Number 115

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
00 New Opinion(s) from the Tennessee Court of Appeals
10 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)
01 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


	FORMAL ETHICS OPINION NO. 2003-F-147

Court:TSC - Rules

First Paragraph:

DR 5-105(D) of Tennessee's prior ethics rules (Code of Professional
Responsibility) required that when  a lawyer moves to another firm, the
new firm is disqualified "from any further participation in any of the
cases in which the attorney had been representing the opposite side
prior to the move."  B.O.P.R. Formal Ethics Opinion 81-F-5.

http://www.tba.org/tba_files/TSC_Rules/2003-F-147.wpd

LEONARD EDWARD BAUGH, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

David M. Hopkins, Nashville, Tennessee, for the appellant, Leonard
Edward Baugh, Jr.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Derrick L. Scretchen, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WEDEMEYER

First Paragraph:

A Davidson County jury found the Petitioner, Leonard E. Baugh, Jr.,
guilty of one count of especially aggravated robbery, five counts of
especially aggravated kidnapping, one count of aggravated burglary,
and one count of unlawful possession of a weapon by a felon.  The
trial court imposed an effective sentence of thirty years.  The
convictions and sentences were affirmed on direct appeal.  See State
v. Leonard Edward Baugh, Jr., M2000-00477-CCA-R3-CD, 2001 Tenn. Crim.
App. LEXIS 415, (Tenn. Crim. App., Nashville, June 1, 2001).  The
Petitioner filed a petition for post-conviction relief, alleging
ineffective assistance of counsel.  Following an evidentiary hearing,
the post-conviction court dismissed the petition.  We affirm the
judgment of the post- conviction court.

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

BILLY WAYNE COSBY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:       

Lucy D. Henson, Pulaski, Tennessee, for the appellant, Billy Wayne
Cosby.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; and Mike Bottoms, District Attorney
General, for the appellee, State of Tennessee.                   

Judge: OGLE

First Paragraph:

The petitioner, Billy Wayne Cosby, pled nolo contendere in the Giles
County Circuit Court to aggravated assault and received a sentence of
eight years incarceration.  Subsequently, the petitioner filed for
post-conviction relief, which petition was denied.  On appeal, the
petitioner contests the summary dismissal of his post-conviction
petition.  Upon review of the record and the parties' briefs, we
reverse the judgment of the post-conviction court and remand for the
appointment of new counsel and further proceedings in accordance with
this opinion.

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

JASON CRAIG DeMARCUS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Thomas L. Whiteside, Atlanta, Georgia, for the appellant, Jason Craig
DeMarcus.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; and Bret T. Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief from his convictions for attempted first degree murder and
three counts of aggravated assault, one of which was merged with the
attempted murder conviction.  He argues that the trial court did not
have jurisdiction to try the juvenile petitioner as an adult and that
he received ineffective assistance of trial counsel.  Based upon our
review, we affirm the post-conviction court's denial of the petition.

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

STATE OF TENNESSEE v. KERRY L. DOWELL

Court:TCCA

Attorneys: 

Ross E. Alderman, District Public Defender, and C. Dawn Deaner and
William J. Steed, III, Assistant Public Defenders, for the appellant,
Kerry L. Dowell.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General;  Victor S. (Torry) Johnson, III, District
Attorney General; and Lisa Naylor, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS
 
First Paragraph:

The defendant, Kerry L. Dowell,  was convicted by a jury of
kidnapping, car jacking, robbery, felony evasion of arrest, and
misdemeanor evading arrest, and was sentenced to an effective twenty-
four years in the Tennessee Department of Correction.  On appeal, the
defendant claims that the evidence was insufficient to support his
conviction for kidnapping, car jacking, and Class D felony evading
arrest; the trial court erred in failing to suppress a statement he
made to the police; the trial court erred in failing to give a
limiting instruction to the jury regarding the defendant's prior
convictions; the trial court failed to properly instruct the jury on
lesser-included offenses; and the trial court erred in sentencing the
defendant consecutively on one of the counts.  The Class D felony
evading arrest conviction is reversed.  We affirm all other judgments
of the trial court.
http://www.tba.org/tba_files/TCCA/dowellkl.wpd

STATE OF TENNESSEE v. RITA ELLIS

Court:TCCA

Attorneys:             

M.J. Hoover, III, Knoxville, Tennessee, for the appellant, Rita Ellis.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Chuck Pope, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Rita Ellis, was convicted upon a jury verdict of theft
under the value of five hundred dollars, a Class A misdemeanor.  She
was sentenced to eleven months and twenty-nine days in the county
jail, but her sentence was suspended, and she was placed on probation.
 She was fined two hundred and fifty dollars.  The Defendant presents
two issues for review, which she states as follows:  (1) failure of
counsel to request recording of proceedings denied right of effective
appeal; and (2) appellant denied ability to properly argue that
verdict was against the weight of the evidence.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. ANGELA E. ISABELL

Court:TCCA

Attorneys:

Joel Kachinsky, Summertown, Tennessee (on appeal), and Fred J. Ramos,
Nashville, Tennessee (at trial), for the appellant, Angela E. Isabell.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Ronald L. Davis, District
Attorney General; and Jeffrey L. Long, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Angela E. Isabell, was convicted by a jury in the Lewis
County Circuit Court of three counts of the sale or delivery of
controlled substances.  The trial court imposed a total effective
sentence of four years incarceration in the Tennessee Department of
Correction.  On appeal, the appellant contests her convictions for the
"sale or delivery" of controlled substances and further complains
about statements made during trial by the State and the State's
witnesses.  The State concedes that there is reversible error. 
Finding the appellant's argument to have merit, we reverse all three
of the appellant's convictions and remand to the trial court for
further proceedings.

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

EARL JUNIOR PIKE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:       

David M. Hopkins, Nashville, Tennessee, for the appellant, Earl Junior
Pike.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Earl Junior Pike, appeals from the post-conviction
court's denial of his petition for post-conviction relief,  which
alleged that his appointed trial counsel was ineffective for not
allowing him to testify at trial.  Following a hearing, the
post-conviction court dismissed the petition, and we affirm.

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

STATE OF TENNESSEE v. JOSEPH LANCE RISNER

Court:TCCA

Attorneys:                          

Richard L. Gaines, Knoxville, Tennessee, for the Appellant, Joseph
Lance Risner.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; C.
Berkeley Bell, Jr., District Attorney General; and Eric Christensen,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Joseph Lance Risner, appeals from the dismissal of his
petition for post-conviction relief.  Pursuant to a "package deal"
plea, Risner, along with five of his co-defendants, pled guilty to
three counts of first degree murder, one count of attempted murder,
two counts of especially aggravated kidnapping, two counts of
kidnapping, and one count of class D felony theft.  On appeal, Risner
presents the following issues for our review: (1) whether his plea was
knowingly and voluntarily entered; (2) whether he was denied the
effective assistance of counsel; and (3) whether the indictment, which
did not include the aggravating circumstances qualifying him for the
death penalty violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348 (2000), and is, thus,  unconstitutional.  Finding no
reversible error, we affirm the judgment of the Greene County Criminal
Court.

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

FLOYD W. SMITH, II v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

James H. Flood, Lebanon, Tennessee, for the appellant, Floyd W. Smith,
II.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Tom P. Thompson, Jr., District
Attorney General; and David E. Durham, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Wilson County jury convicted the Petitioner of second degree murder.
 The trial court sentenced the Petitioner to twenty years in the
Department of Correction.  On direct appeal, the Petitioner's sole
issue was that the twenty year sentence imposed by the trial court was
excessive.  This Court affirmed the trial court's twenty-year
sentence.  The Petitioner then filed a petition for post- conviction
relief, alleging that he was denied effective assistance of counsel at
trial and on appeal.  The post-conviction court found that Petitioner
failed to present clear and convincing evidence to support his claims
and dismissed the petition.  The Petitioner now appeals, arguing that
the post- conviction court erred in denying post-conviction relief
based on ineffective assistance of counsel and flaws in the voir dire.
 Finding no error, we affirm the judgment of the post-conviction
court.

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

STATE OF TENNESSEE v. LAWRENCE E. TRUMAN

Court:TCCA

Attorneys: 

John L. Henderson, District Public Defender, and Douglas P. Nanney,
Assistant Public Defender, for the appellant, Lawrence E. Truman.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Lee E. Dryer, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Lawrence E. Truman, appeals as of right his conviction
by the Williamson County Circuit Court for driving under the influence
of an intoxicant (DUI), a Class A misdemeanor.  The trial court
sentenced the defendant to eleven months, twenty-nine days, with seven
days of the sentence to be served in the county jail and the balance
on probation.  The defendant, who remained free on bond following his
conviction, failed to appear for a subsequent review hearing, and the
trial court issued a capias for his arrest.  In this appeal, the
defendant contends that the evidence is insufficient to support his
DUI conviction.  We dismiss the appeal because the defendant remains
on escape status.

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

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