Opinion Flash

September 15, 2003
Volume 9 — Number 168

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
07 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

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


STEPHANIE SANSOM v. LOOKOUT KNITWEAR, LLC, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Robert J. Uhorchuk, of Chattanooga, Tennessee, for Appellants, Lookout
Knitwear, LLC, and The Hartford Insurance Group.

Fred S. Clelland, of Chattanooga, Tennessee, for Appellee, Stephanie
Sansom.

Judge: THAYER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The trial
court awarded the employee 60 percent permanent partial disability to
her left arm and found her shoulder injury to be compensable but no
permanent injury.  The judgment is affirmed as to the award of 60
percent disability to the arm and the allowance of temporary total
disability benefits; the judgment is reversed as to the shoulder
injury and the commutation of periodic benefits; and the judgment
allowing reimbursement of medical expenses is modified.

http://www.tba.org/tba_files/TSC_WCP/sansoms.wpd

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0915.wpd

SANDRA ANN HENSLEY, ET VIR, CHARLES HENSLEY V. DANIEL SCOKIN, M.D. AND
MEMORIAL ANESTHESIOLOGY ASSOCIATES

Court:TCA

Attorneys:                          

Robert J. Shockey, Nashville, Tennessee, for appellants, Sandra
Hensley, et vir, Charles Hensley.

C. Bennett Harrison, Jr., and Bryan K. Williams, Nashville, Tennessee,
for appellees, Daniel Scokin, M.D. and Memorial Anesthesiology
Associates.

Judge: KIRBY

First Paragraph:

This is a medical battery case.  The patient was scheduled to undergo
a hysterectomy.  Because of prior medical problems, she told the
anesthesiologist that she needed him to use nasal intubation instead
of oral intubation to anesthetize her for the surgery.  The
anesthesiologist told her that he would use the type of intubation
that he thought was best for her.  Ultimately, when the hysterectomy
was performed, the patient was intubated through an oral pathway.  The
patient sued the anesthesiologist for medical battery.  The
anesthesiologist filed a motion for summary judgment.  The trial court
found that the patient knew that the anesthesiologist might use oral
intubation, and that she authorized the procedure both by signing a
consent form prior to the surgery and by not stopping the procedure
when she became aware that the anesthesiologist might use oral
intubation.  Consequently, summary judgment was granted in favor of
the anesthesiologist.  We reverse, finding that a question of material
fact exists as to whether the patient authorized the use of oral
intubation.

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

STATE OF TENNESSEE v. BARRY LEE ARMISTEAD

Court:TCCA

Attorneys:                          

William A. Lane, Murfreesboro, Tennessee, for the Appellant, Barry Lee
Armistead.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Sarah Davis, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Barry L. Armistead appeals from the Davidson County Criminal Court's
revocation of his probationary sentences.  He claims that the lower
court erred in revoking probation because the state failed to prove a
violation by a preponderance of the evidence.  Because we disagree, we
affirm the lower court's judgment.

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

RONALD JEROME BUTLER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Matthew Mayo, Nashville, Tennessee, for the appellant, Ronald Jerome
Butler.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Jon P. Seaborg, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Ronald Jerome Butler, filed a petition for
post-conviction relief in the Davidson County Criminal Court, alleging
that he received the ineffective assistance of trial counsel.  The
post-conviction court denied the petition, and the petitioner contests
this ruling on appeal.  Upon review of the record and the parties'
briefs, we affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. GLEN CHANDLER

Court:TCCA

Attorneys:                          

F. Shayne Brasfield, Franklin, Tennessee, for the appellant, Glen
Chandler.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; Ron Davis, District Attorney General; and
Michael J. Fahey, II, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Glen Chandler, was convicted in a jury trial of the
offenses of attempted first degree murder, attempted second degree
murder, attempted voluntary manslaughter, and reckless endangerment. 
He was sentenced to an effective thirty-eight-years, eleven months and
twenty-nine days sentence.  In this appeal the appellant maintains the
State failed to carry its burden of proof on the question of the
appellant's sanity.  He also argues that the trial court erred in
failing to set aside the guilty verdict of attempted first degree
murder because the proof established that the appellant was incapable
of premeditation.

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

STATE OF TENNESSEE v. BILLY J. COFFELT AND LYLE T. VAN ULZEN

Court:TCCA

Attorneys:                          

Larry Hoover, Nashville, Tennessee, for the appellant, Billy J.
Coffelt.  Cynthia F. Burnes, Nashville, Tennessee, for the appellant,
Lyle T. Van Ulzen.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Sharon Brox, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendants, Billy J. Coffelt and Lyle T. Van Ulzen, were each
convicted of one count of felony escape, two counts of aggravated
assault, and three counts of especially aggravated kidnapping.  The
trial court subsequently sentenced both Defendants to life
imprisonment without the possibility of parole on each of their
especially aggravated kidnapping convictions.  The Defendants were
each sentenced to two years for their escape convictions, and to six
years for each of their aggravated assault convictions.  In this
direct appeal, both Defendants contend that their convictions for
aggravated assault and especially aggravated kidnapping violate due
process, relying on State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). 
Both Defendants also allege error with respect to the trial court's
admission of the identification of the felonies for which they were
serving time when they escaped, and with respect to their sentences on
the kidnapping convictions.  Individually, Coffelt challenges the
sufficiency of the evidence and the admission of proof concerning two
weapons.  Coffelt also alleges that the prosecutor's closing argument
constituted reversible misconduct.  We affirm the Defendants'
convictions.  We reverse the trial court's finding that the Defendants
are repeat violent offenders subject to mandatory sentences of life
imprisonment without the possibility of parole, and remand this matter
for resentencing on the Defendants' convictions of especially
aggravated kidnapping.

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

STATE OF TENNESSEE v. LATRECE JONES

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender, and Donna Robinson Miller,
Assistant District Public Defender, for the appellant, Latrece Jones.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William H. Cox, III, District
Attorney General; and C. Parke Masterson, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

A jury found the defendant guilty of criminally negligent homicide. 
The trial court sentenced her as a mitigated offender to .9 years of
unsupervised probation.  The defendant appeals her conviction and
alleges that the trial court erroneously allowed the improper
admission of evidence regarding child restraint laws and insufficient
evidence to support a conviction.  After careful review, we affirm the
judgment of the trial court.

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

ELBERT M. MARABLE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gregory M. Reed, Murfreesboro, Tennessee, for the Appellant, Elbert M.
Marable, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Elbert M. Marable, appeals the dismissal of his
petition for post-conviction relief by the Rutherford County Circuit
Court.  Pursuant to a negotiated plea agreement, Marable pled guilty
to aggravated assault and was sentenced to three years in the
Department of Correction as a Range I offender.  On appeal, Marable
presents the following issues for our review: (1) whether his plea was
voluntarily and intelligently entered and (2) whether he was denied
the effective assistance of counsel.  After consideration of the
entire record, we conclude that Marable's plea was not voluntarily and
intelligently entered.  Accordingly, his conviction for aggravated
assault is vacated and this case is remanded to the trial court.

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

STATE OF TENNESSEE v. CHARLES WADE SMITH, III

Court:TCCA

Attorneys:                          

Lloyd R. Tatum, Henderson, Tennessee (on appeal); and Ricky L. Wood,
Parsons, Tennessee (at trial), for the appellant, Charles Wade Smith,
III.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; Ronald
L. Davis, District Attorney General; and Jeffrey L. Long, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The defendant, Charles Wade Smith, III, was convicted by a Perry
County jury of second degree murder for the shooting death of his
father.  The trial court sentenced the defendant as a violent offender
to seventeen years of incarceration.  The defendant now appeals
contending that: (1) he was deprived of the opportunity to present
exculpatory evidence; (2) the trial court erred in not giving a jury
instruction regarding the relevance of the Defendant's intoxication to
negate his culpable mental state; and (3) the evidence presented is
insufficient to support his conviction.  Finding no error, we affirm
the judgment of the trial court.

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

County's Imposition of "Workplace Privilege Tax" on Non-County
Residents

Date: September 9, 2003

Opinion Number: 03-114                         

http://www.tba.org/tba_files/AG/2003/op114.pdf

TOSHA's Jurisdiction Under Tenn. Code Ann. S 50-3-409 in
Discrimination Complaints Brought by an Employee of a State Department
or Agency

Date: September 10, 2003

Opinion Number: 03-115                         

http://www.tba.org/tba_files/AG/2003/op115.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


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2003 Tennessee Bar Association