Opinion Flash

October 21, 2003
Volume 9 — Number 192

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
12 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

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


STATE OF TENNESSEE v. CARL EDWARD BELL

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender, and William J. (Jay)
Steed, III, Assistant Public Defender, for the appellant, Carl Edward
Bell.

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

Judge: WILLIAMS

First Paragraph:

In a plea agreement, the defendant pled guilty to the sale of under .5
grams of cocaine and agreed to a seven-year sentence.  The manner of
service of the sentence was to be determined at a sentencing hearing. 
The trial court ordered the defendant to serve the entire sentence in
the Tennessee Department of Correction, because the defendant had not
demonstrated the potential for rehabilitation or treatment.  We find
no error in the sentence and, therefore, affirm.

http://www.tba.org/tba_files/TCCA/bellce.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.  Also, the trial court erred in instructing the
jury on flight. We conclude, following plain error review, that
attempted reckless homicide is not a recognized crime in Tennessee. 
We reverse and dismiss the defendant's conviction for attempted
reckless homicide.  Further, we conclude that the jury instruction
regarding flight was not error, and the trial court correctly
sentenced the defendant as a Range II, multiple offender.  We affirm
the defendant's convictions and sentences for aggravated burglary and
aggravated assault.

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

BOBBY JOE CARTER v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Larry F. Wallace, Jr., Shelbyville, Tennessee, for the appellant,
Bobby Joe Carter.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William Michael McCown, District
Attorney General; and Weakley E. Barnard, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, serving an effective twenty-year sentence on three
counts of especially aggravated kidnapping, argues the trial court
erred in denying his petition for post-conviction relief because: (1)
his guilty plea was not entered voluntarily and intelligently; and (2)
his trial counsel was ineffective.  We affirm the judgment of the
post-conviction court.

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

STATE OF TENNESSEE v. MONA RAY CLOUD ALIAS MONA R. HEADRICK, ALIAS
MONA R. CLOUD, ALIAS MONA HEADRICK

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack
Garner, District Public Defender; and Stacey D. Nordquist, Assistant
District Public Defender (at trial), for the appellant, Mona Ray
Cloud, alias Mona R. Headrick, alias Mona R. Cloud, alias Mona
Headrick.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and James T. Brooks, III, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Mona Ray Cloud, pled guilty in the Blount County
Circuit Court to aggravated burglary, a Class C felony; violating the
Motor Vehicle Habitual Offender (MVHO) Act, a Class E felony; and
criminal impersonation, a Class A misdemeanor.  Pursuant to the plea
agreement, she received four-year, one-year, and six-month sentences,
respectively, with the one-year and six-month sentences to be served
concurrently to each other but consecutively to the four-year sentence
for an effective sentence of five years in the Department of
Correction (DOC).  The manner of service was to be determined by the
trial court.  After a sentencing hearing, the trial court ordered the
defendant to serve her sentences in confinement.  The defendant
appeals, claiming that she should have received alternative sentences.
We affirm the judgments of the trial court.

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

LARRY COULTER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Larry Coulter, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General;  and William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner's filing of a motion to reconsider did not toll the
running of the thirty day requirement for filing notice of appeal.  We
conclude that the record evinces no basis for determining that justice
requires us to excuse the timely filing of a notice of appeal.

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

STATE OF TENNESSEE v. BARRY INMAN

Court:TCCA

Attorneys:                          

Nathaniel H. Koenig, Nashville, Tennessee, for the appellant, Barry
Inman.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; Mary Katharine White, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Barry Inman, was convicted by a jury in the Williamson
County Circuit Court of possession of over .5 grams of cocaine with
the intent to sell or deliver, possession of Alprazolam with the
intent to sell or deliver, possession of marijuana, possession of drug
paraphernalia, and speeding.  Additionally, the appellant pled guilty
to driving on a revoked license.  The trial court sentenced the
appellant to a total effective sentence of nine years incarceration in
the Tennessee Department of Correction.  On appeal, the appellant
contends that the trial court should have granted his motion for
judgments of acquittal and that the evidence adduced at trial was
insufficient to sustain his convictions.  Upon review of the record
and the parties' briefs, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. GERALDRICK JONES

Court:TCCA

Attorneys:                          

Bill Anderson and James V. Ball, Memphis, Tennessee, for the
appellant, Geraldrick Jones.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Katrina U. Early and James M. Lammey, Jr., Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

This direct appeal of right for first degree murder for which the
defendant received a sentence of life without parole raises five
issues of alleged error: (1) sufficiency of evidence; (2) failure to
suppress the defendant's statements; (3) improper admission of
photographs; (4) improper testimony of experts at the penalty phase of
trial; and (5) improper admission of evidence concerning a prior
conviction of the defendant.  We conclude that the evidence was
sufficient to support the first degree murder conviction.  The issue
concerning admissibility of the defendant's statement is waived by the
defendant's failure to include the suppression hearing in the
appellate record.  We conclude that the remaining issues were properly
decided by the trial court, and we, therefore, affirm the conviction.

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

STATE OF TENNESSEE  v. CHARLES LAWUARY

Court:TCCA

Attorneys:                          

Michael D. Rasnake, Jackson, Tennessee, for the appellant, Charles
Lawuary

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; James G. Woodall, District Attorney
General; James W. Thompson, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Charles Lawuary, appeals from the trial court's order
revoking Defendant's community corrections sentence and requiring him
to serve the sentence in incarceration.  Defendant argues that the
trial court abused its discretion in revoking the community
corrections sentence.  After a review of the record, the briefs of the
parties, and the applicable law, we affirm the judgment of the trial
court.

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

STATE OF TENNESSEE v. JOHNNY LEE LEWIS

Court:TCCA

Attorneys:                          

Larry M. Warner, Crossville, Tennessee, for the appellant, Johnny Lee
Lewis.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General;  Clement Dale Potter, District Attorney
General; and Larry G. Bryant, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appealed his convictions on two counts of facilitation
of second degree murder and one count of aggravated arson, as well as
the effective 65-year sentence.  The defendant's appeal raised the
following issues: insufficiency of evidence to support the
convictions; error in allowing hearsay testimony under the conspiracy
exception; error in allowing cross-examination of the defendant during
limited purpose jury-out hearing; error in allowing a medical expert
to testify outside his area of expertise; failure to instruct the jury
on inadequate crime scene investigation; and error in application of
"particularly vulnerable" enhancement factor during the sentencing
phase.  We conclude that the defendant's issues are without merit and
affirm the convictions and sentence as imposed by the trial court.

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

STATE OF TENNESSEE  v.  CHARLES R. PALMQUIST

Court:TCCA

Attorneys:                          

William A. Cameron, Cookeville, Tennessee, for the appellant, Charles
R. Palmquist.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William Edward Gibson, District Attorney
General; Thomas Tansil, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Charles R. Palmquist, pursuant to a negotiated plea
agreement, pled guilty to DUI first offense and reserved a certified
question of law for appeal pursuant to Tenn. R. Crim. P. 37(b)(2)(i). 
After a review of the record and the briefs of the parties, we affirm
the judgment of the trial court.

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

STATE OF TENNESSEE v. PAUL PETTIBONE

Court:TCCA

Attorneys:                          

William J. Steed, Assistant Public Defender (on appeal), and Paul B.
Seusy, Assistant Public Defender (at trial), Nashville, Tennessee, for
the appellant, Paul Pettibone.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Bret Gunn, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Paul Edward Pettibone, Jr., pled guilty to the offense
of attempted aggravated robbery, a Class C Felony.  He was sentenced
to four years as a Range I, standard offender.  The trial judge
ordered the appellant to serve his sentence in incarceration, but
asserted that if the appellant successfully completed an addiction
treatment program known as Lifeline Therapeutic Community, he could
apply to the court to suspend the rest of his sentence.   In this
appeal as of right, the appellant contends that the trial court erred
by failing to grant either an alternative sentence or a term of
probation after a period of confinement.  After a review of this case,
we conclude that the evidence did not support the grant of an
alternative sentence or a term of probation after a period of
confinement and thus affirm the judgment of the trial court.

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

STATE OF TENNESSEE  v.  JAMES H. THOMPSON

Court:TCCA

Attorneys:                          

Robert S. Peters, Winchester, Tennessee, for the appellant, James H.
Thompson.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough; Assistant Attorney General; James Michael Taylor, District
Attorney General; Steven M. Blount, Assistant District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a conviction for DUI, third offense, after entering a guilty
plea, Defendant James H. Thompson appeals, asserting that he has
presented a certified question of law for review.  Because we conclude
that the question of law, even if properly reserved at the guilty plea
hearing, is not dispositive of the case, we dismiss the appeal.

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

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