Opinion Flash

August 14, 2003
Volume 9 — Number 147

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
05 New Opinion(s) from the Tennessee Court of Appeals
04 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


LINDA BRADLEY, ET AL. v. JOHN A. WADERKER, ET AL.

Court:TCA

Attorneys:                          

Timothy K. Barnes, Clarksville, Tennessee, for the appellants, Linda
Bradley, Stephen M. Deep, and Tamara Deep.

W. Timothy Harvey, Clarksville, Tennessee, for the appellees, John A.
Waderker and The City of Clarksville Police Department.

Judge: CAIN

First Paragraph:

A driver and the passengers in his 1993 Ford Explorer appeal a
non-jury judgment of the Circuit Court of Montgomery County.  The Ford
Explorer collided with a police cruiser at an intersection in the City
of Clarksville.  The trial court held both drivers to be equally at
fault and dismissed the case.  We affirm the trial court.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. CARAH PAIGE
JONES DEMARR

Court:TCA

Attorneys:                          

David L. Allen and C. Wayne Tomerlin, Lawrenceburg, Tennessee, for the
appellant, Carah Paige Jones Demarr.

Paul G. Summers, Attorney General & Reporter and Elizabeth C. Driver,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services.

Judge: CAIN

First Paragraph:

This case involves termination of parental rights of a mother and
custody of the child.  The child at issue was found wandering away
from his mother's house on March 3, 1999, and was taken into DCS
custody, after which the matter languished for over a year without
appropriate administration by DCS and with the mother having very
little contact with her child.  The mother eventually moved out of
state and requested that her child be transferred to that state.  The
case was not transferred, and the mother continued to receive very
little cooperation from DCS and have sparse communication with her
child.  She was, however, attempting to fulfill the requirements of
the DCS prepared Permanency Plan.  Her parental rights were terminated
by the Juvenile Court for Lawrence County in December 2001 for
abandonment by willful failure to visit and willful failure to support
the child for four months prior to the filing of the termination
petition.  We reverse the trial court's finding that the mother's
failure to visit and failure to support was willful.

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

TAMARA LYNN FONTAINE, ET AL. v. WEEKLY HOMES, L.P., d/b/a DAVID WEEKLY
HOMES, LLC, ET AL.

Court:TCA

Attorneys:                          

James.S. Higgins, Nashville, Tennessee, for the Appellants, Weekly
Homes, L.P., d/b/a David Weekly Homes, L.L.C., and Scott Bauer.

Larry L. Crain, Brentwood, Tennessee, for the appellee, Tamara Lynn
Fontaine.

Judge: FARMER

First Paragraph:

Defendants/appellants appeal the trial court's denial of their motion
to compel arbitration.  We affirm.

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

JOE R. HALES v. SHELBY COUNTY, TENNESSEE

Court:TCA

Attorneys:                          

Carroll C. Johnson, Memphis, TN, for Appellant

Joseph Michael Cook, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises from a claim involving an injury sustained by a
county employee.  The trial court awarded the plaintiff $216,400.00
for injuries sustained while working for Shelby County.  The trial
court then denied Shelby County's post-trial motion seeking a credit
or offset for wage continuation benefits already paid to the
plaintiff.  The parties raise multiple issues on appeal.  For the
following reasons, we affirm.

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

TRUMBO, INC. V. WITCO CORPORATION

Court:TCA

Attorneys:                          

Gary K. Smith and Sherry S. Fernandez, Memphis, Tennessee, for
appellant, Trumbo, Inc.

James B. Summers and Richard S. Wade, Memphis, Tennessee, for
appellee, Witco Corporation.

Judge: KIRBY

First Paragraph:

This case involves the loss of evidence.  A metal fabrication company
modified a fat melting tank for another company.  Later, an employee
of the melting tank company was severely injured by hot melted fat
while working with the modified tank.  Following the accident, as part
of an investigation, the employer removed the two temperature gauges
attached to the tank.  The employer paid workers' compensation
benefits to the employee.  The employee then sued the fabrication
company that modified the tank.  The employer intervened to assert its
statutory lien under the workers' compensation laws, so that it could
recover any monies paid to the employee by the fabrication company. 
Five years after the accident, the fabrication company sought
production of the temperature gauges from the employer, as part of its
defense in the lawsuit filed against it by the employee.  The employer
was unable to locate the gauges.  The fabrication company settled the
lawsuit filed by the injured employee, and filed a claim against the
employer for spoliation of evidence and negligence.  The fabrication
company argued that it was forced to settle the underlying lawsuit
with the employee, in part because of the missing gauges.  The trial
court granted a motion for summary judgment in favor of the employer,
finding that the employer did not have a duty to preserve the evidence
and that the fabrication company had not established causation.  The
fabrication company appeals.  We affirm, finding that regardless of
whether the employer had a duty to preserve the temperature gauges,
the fabrication company had not proffered evidence that the gauge
would have materially assisted it in defending the lawsuit filed by
the employee, and thus was  unable to establish causation.

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

STATE OF TENNESSEE v. THOMAS MITCHELL

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; W. Mark Ward, Assistant
Public Defender; and Russell White, Assistant Public Defender, for the
appellant, Thomas Mitchell.

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

Judge: WOODALL

First Paragraph:

Defendant, Thomas Mitchell, was indicted by the Shelby County Grand
Jury for burglary of a building other than a habitation, a Class D
felony.  Following a jury trial, Defendant was convicted as charged
and sentenced as a persistent offender to ten years and six months
confinement.  In this appeal as of right, Defendant presents a single
issue, whether the trial court erred in failing to instruct the jury
on the lesser-included offense of facilitation.  After a review of the
record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. MICHAEL SALVATORE MORANI

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee (on appeal), and Cynthia S.
Lyons, Assistant Public Defender (at trial), for the appellant,
Michael Salvatore Morani.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; and Thomas Tansil and Gary McKenzie,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Michael Salvatore Morani, was convicted of one count of
attempted first degree murder and one count of theft over $10,000. 
The trial court imposed consecutive Range I, standard sentences of
twenty-three years and five years respectively.  The defendant was
fined a total of $60,000.  In this appeal of right, the defendant
contends that the twenty-three-year sentence for attempted murder is
excessive and that the trial court erred by imposing the maximum fines
on each count.  The judgments are affirmed.

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

STATE OF TENNESSEE v. GREGORY ROBINSON

Court:TCCA

Attorneys:                          

Joseph S. Ozment and Steffen G. Schreiner, Memphis, Tennessee (at
trial); and Edmund L. Carey, Jr., Nashville, Tennessee, and Robert C.
Brooks, Memphis, Tennessee (on appeal), for the appellant, Gregory
Robinson.

Paul G. Summers, Attorney General and Reporter; Alice B. Lustre,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Patience R. Branham and Paula Wulff, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant, Gregory Robinson, appeals as of right his conviction
for premeditated first degree murder and sentence of death arising
from the May 1, 1997, murder of Vernon Green.  He also appeals from
the judgment of conviction for especially aggravated kidnapping and
its twenty-five- year consecutive sentence.  A Shelby County jury
convicted the defendant of premeditated first degree murder based upon
the theory of criminal responsibility for the conduct of another. 
Following a separate sentencing hearing, the jury sentenced the
defendant to death after finding two aggravating circumstances beyond
a reasonable doubt, i.e., the murder was especially "heinous,
atrocious, or cruel," see Tenn. Code Ann. S 39-13-204(i)(5), and the
murder was knowingly committed, solicited, directed, or aided by the
defendant, while the defendant had a substantial role in committing or
attempting to commit a kidnapping, see id. S 39-13-204(i)(7).  The
defendant appeals, presenting for our review the following
contentions:  (1) the trial court erred in denying the defendant's
motion for individual and sequestered voir dire; (2) the trial court's
conclusory rejection of a timely Batson challenge warrants a remand;
(3) the evidence was insufficient to sustain the guilty verdicts; (4)
the defendant did not receive a fair trial in the guilt phase due to
the state's use of inconsistent theories in the trial of the defendant
and the subsequent trial of a co-defendant; (5) prosecutorial
misconduct regarding witness Jarvis Shipp deprived the defendant of a
fair trial; (6) the state engaged in multiple instances of misconduct
affecting identification issues; (7) the display of the victim's skull
and admission of gruesome photographs during the guilt phase were
unduly prejudicial; (8) numerous instances of prosecutorial misconduct
deprived the defendant of a fair trial; (9) the trial court
erroneously instructed the jury as to intentional and knowing conduct,
direct and circumstantial evidence, and reasonable doubt; (10) the
trial court erred by failing to instruct the jury on the
lesser-included offenses of facilitation and solicitation of first
degree murder and especially aggravated kidnapping; (11) the trial
court erred by failing to declare a mistrial due to instances of jury
perjury and likely intrusions into the sequestration of the jury; (12)
the trial court erred by not granting a new trial in its role as
thirteenth juror; (13) cumulative error warrants reversal of the
convictions; (14) the sentence for especially aggravated kidnapping
was excessive; (15) the "heinous, atrocious, or cruel" and felony
murder aggravators are unconstitutional; (16) the trial court erred in
the penalty phase by denying a mistrial when there was testimony
regarding the defendant's prior arrest; (17) the trial court erred by
permitting prejudicial and inaccurate information to reach the jurors
regarding "aggravating circumstances"; (18) the trial court
unconstitutionally prevented the jury from considering relevant
mitigating evidence; (19) the admission of a gruesome photograph
during the penalty phase was unduly prejudicial; (20) the prosecutor
presented improper jury argument during the penalty phase; (21) the
trial court gave erroneous jury instructions during the penalty phase
concerning reasonable doubt and the "knowing" mens rea for the felony
murder aggravator; (22) the aggravating circumstances were not
established; (23) the state's use of inconsistent theories in the
trials of the defendant and a co-defendant deprived the defendant of a
fair sentencing determination involving the death penalty; (24) the
death sentence should be vacated based upon a violation of Apprendi v.
New Jersey;  (25) the trial court erred by not granting a new
sentencing hearing based upon its role as thirteenth juror; (26) the
trial court erred in failing to find the death penalty, lethal
injection, and the system of capital punishment in Tennessee are
unconstitutional; and (27) a comparative proportionality review should
result in vacating his death sentence.  Upon our review, we reverse
both convictions and remand for a new trial due to the failure to
instruct on facilitation and solicitation as lesser-included offenses.
 
http://www.tba.org/tba_files/TCCA/robinsng.wpd

THOMAS D. SMITH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and B. Dent Morriss, Assistant District Attorney General, for
the appellant, State of Tennessee.

Gregory D. Smith, Clarksville, Tennessee, for the appellee, Thomas D.
Smith.

Judge: RILEY

First Paragraph:

The state appeals the Robertson County Circuit Court's granting of
post-conviction relief to the petitioner, Thomas D. Smith.  The state
contends the post-conviction court erred in granting relief based upon
the original trial court's failure to reduce to writing its answer to
a jury question posed during deliberations at the petitioner's trial. 
Upon review of the record and the applicable law, we reverse the
judgment of the post-conviction court.

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

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