Opinion Flash

August 26, 2003
Volume 9 — Number 155

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
04 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
05 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


TENNESSEE RULES OF APPELLATE PROCEDURE

RULE 3

APPEAL AS OF RIGHT:   AVAILABILITY; METHOD OF INITIATION

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/2003amnd_rules_appel.wpd

TENNESSEE RULES OF CIVIL PROCEDURE

RULE 4

PROCESS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/2003amnd_rules_civil.wpd

TENNESSEE RULES OF CRIMINAL PROCEDURE

RULE 44

RIGHT TO AND ASSIGNMENT OF COUNSEL

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/2003amnd_rules_crim.wpd

TENNESSEE RULES OF EVIDENCE

RULE 412.1 

RELEVANCE OF VICTIM'S SEXUAL BEHAVIOR IN CIVIL ACTIONS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/2003amnd_rules_evid.wpd

RICKY FLAMINGO BROWN v. STATE OF TENNESSEE
ORDER

Court:TCCA

Judge: SMITH

First Paragraph:

The appellant, Ricky Flamingo Brown, was convicted by a jury in 1987
of the aggravated rape of his then 12-year-old daughter.  He
subsequently escaped and remained at large until June 1990 when he was
captured and commenced to serve the life sentence he received in
absentia.

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

STATE OF TENNESSEE v. VERNON LAMAR BRYANT

Court:TCCA

Attorneys:                          

Mike A. Little, Chattanooga, Tennessee, for the appellant, Vernon
Lamar Bryant.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Rodney C. Strong, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

Following a jury trial, the defendant was found guilty of attempted
reckless homicide, aggravated burglary, and aggravated assault.  The
trial court merged the attempted reckless homicide conviction into the
aggravated assault conviction, and the defendant was sentenced as a
Range II, multiple offender, to ten years for aggravated assault and
six years for aggravated burglary, with the sentences to run
concurrently. The defendant contends that the trial court improperly
merged the attempted reckless homicide conviction into his aggravated
assault conviction and erred by instructing the jury on flight. The
defendant also contends the trial court erroneously sentenced him as a
Range II, multiple offender.  We conclude that the merger of the
defendant's two convictions were not in error and that a jury
instruction regarding flight was proper.  We conclude that the trial
court correctly sentenced him as a Range II, multiple offender.  We
affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. DAVID D. HARRIS

Court:TCCA

Attorneys:                          

Jefre S. Goldtrap, Nashville Tennessee (on appeal) and Lionel Barrett,
Nashville, Tennessee (at trial) for the Appellant, David D. Harris.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Christine M. Lapps, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Charles R.
Carpenter and Jon Seaborg, Assistant District Attorneys General, for
the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, David D. Harris, pled guilty to seven counts of
aggravated robbery, a Class B felony, in the Davidson County Criminal
Court on June 16, 1999.  The trial court sentenced the Defendant to
three eight-year sentences, to be served consecutively.  The trial
court suspended the sentences and ordered the Defendant to serve three
consecutive eight-year terms on supervised probation.  The State
appealed, and this Court reversed the portion of the sentence that
ordered the Defendant to serve twenty-four years of probation on the
three consecutive eight-year sentences, holding that a probationary
sentence for aggravated robbery is contrary to Tennessee Code
Annotated section 40-35-303(a).  Accordingly, we reversed the trial
court's judgment and remanded the case for re-sentencing.  Upon
re-sentencing, the trial court sentenced the Defendant to three
eight-year prison terms and ordered that the sentences run consecutive
to each other and consecutive to a sentence that the Defendant is
currently serving in Williamson County.  The Defendant appealed the
trial court's re-sentencing order and raises the following issues: (1)
whether the trial court erroneously denied  his request for a new
sentencing hearing and; (2) whether the trial court erroneously denied
the Defendant's request, pursuant to Tennessee Rule of Criminal
Procedure 35, for a reduced sentence.  After a through examination of
the record, we conclude that the trial court did not err when it
denied the Defendant's request for a new sentencing hearing; however,
because we conclude that the trial court erroneously believed that it
was without the authority to impose concurrent sentences, we reverse
and remand for it to determine whether the three sentences should run
consecutively or concurrently.

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

STATE OF TENNESSEE v. JOHNNIE W. REEVES

Court:TCCA

Attorneys:                          

David A. Collins (on appeal) and Barry R. Tidwell (at trial),
Nashville, Tennessee, for the appellant, Johnnie W. Reeves.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Brian K. Holmgren, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Davidson County jury convicted the defendant, Johnnie W. Reeves, of
two counts of aggravated child abuse of a child six years of age or
less.  The trial court imposed two concurrent twenty-year sentences. 
On appeal, the defendant contends: (1) the evidence was insufficient
to support the convictions; and (2) the trial court erred in admitting
certain photographs of the victim's injuries.  We affirm the judgments
of the trial court.

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

JOHN W. WILCOX v. STATE OF TENNESSEE
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

It appears that the petitioner, John W. Wilcox, died on June 8, 2003,
as evidenced by copy of a death certificate supplied to this Court by
the State of Tennessee.  This Court, unaware of the petitioner's
death, filed an opinion in this cause on June 10, 2003.  It is the
policy of this Court that appeals are abated at the time of death.

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

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