Opinion Flash

December 15, 2003
Volume 9 — Number 228

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
15 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


SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_1215.wpd

LINDA CAMPBELL v. OPAL A. CARROLL, ET AL.

Court:TCA

Attorneys:                          

Michele Neal Scott, Springfield, Tennessee, Pro Se.

Christine Brasher, Springfield, Tennessee, for the appellee and cross
appellant, Linda Campbell.

Judge: COTTERLL

First Paragraph:

This appeal involves the denial by the trial court of a motion for
Rule 11 sanctions.  The request for sanctions was made pro se by
defendant Michele Scott against plaintiff and her counsel for failing
to perform an adequate prefiling investigation as required under Rule
11.  We affirm the judgment of the trial court.

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

KEVIN STANLEY DEMERS v. KAREN ANNETTE WALLACE DEMERS

Court:TCA

Attorneys:                          

Troy Lee Brooks, Mount Juliet, Tennessee, for the appellant, Kevin
Stanley Demers.

Gregory D. Smith, Nashville, Tennessee, for the appellee, Karen
Annette Wallace Demers.

Judge: KIRBY

First Paragraph:

This involves a post-divorce petition to reduce child support.  The
mother and father were divorced in 1998, and the mother was awarded
custody of the parties' three children.  The father was ordered to pay
child support plus private school tuition, based on substantial annual
earnings from self- employment.  In December 2000, the father filed a
petition to have his child support payments reduced based on a decline
in his business.  The father later liquidated the assets of his
business and quit work.  He subsequently amended his petition,
asserting that he had earned no income since the liquidation of his
business.  After a bench trial, the trial court rejected the father's
petition for a  reduction in child support, finding that the father
was willfully underemployed.  The father now appeals.  We affirm,
finding that the evidence does not preponderate against the trial
court's determination that the father was willfully underemployed.

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

LORRAINE M. MILLER v. BRUCE L. MILLER

Court:TCA

Attorneys:                          

Ernest W. Williams; Anna E. Freeman, Franklin, Tennessee, for the
appellant, Bruce L. Miller.

Helen Sfikas Rogers; Lana L. Lennington, Nashville, Tennessee, for the
appellee, Lorraine M. Miller.

Judge: COTTERLL

First Paragraph:

The trial court awarded a divorce to a sixty-four year old woman with
multiple health problems, and ordered her former husband to pay her
$700 per month as alimony in futuro.  The husband argues on appeal
that the trial court erred, because the wife was capable of working,
and was therefore only entitled to rehabilitative alimony.  We affirm
the trial court.

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

FRANK ROBERT BIGSBY v. STATE OF TENNESSEE
DISSENTING OPINION

Court:TCCA

Judge: WADE

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/bigsbyfr_dis.wpd

STATE OF TENNESSEE v. DETRICK COLE

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Public Defender; William L. Johnson (at trial),
Dianne M. Thackery (at trial), W. Mark Ward (on appeal), Tony N.
Brayton (on appeal), and Garland Erguden (on appeal), Assistant Public
Defenders, for the appellant, Detrick Cole.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephen P. Jones and Jennifer Nichols, Assistant District
Attorneys General, for the appellee, State of Tennessee

Judge: RILEY

First Paragraph:

Capital defendant Detrick Cole appeals as of right his sentence of
death resulting from the October 2000 murder of Santeife Thomas.  A
Shelby County jury found the defendant guilty of premeditated first
degree murder.  Following a separate sentencing hearing, the jury
unanimously found the presence of one statutory aggravating
circumstance, i.e., the defendant had previously been convicted of one
or more violent felony offenses; determined that this aggravating
circumstance outweighed any mitigating circumstances; and imposed a
sentence of death.  The defendant now appeals, presenting for our
review the following issues: (1) whether the evidence is sufficient to
support  premeditated first degree murder; (2) whether the trial court
erred in permitting the state to introduce a photograph of the victim
while he was alive; (3) whether the trial court erred in permitting
the introduction of post-mortem photographs of the victim; (4) whether
the fingerprinting of the defendant in the presence of the jury at the
penalty phase was constitutional error; (5) whether the trial court
erroneously prohibited the defendant from introducing hearsay evidence
during the penalty phase; (6) whether the trial court's instructions
to the jury as to the (i)(2) aggravating circumstance were contrary to
the United States Supreme Court's holdings in Apprendi v. New Jersey
and Ring v. Arizona; (7) whether there is a reasonable probability
that the instruction on victim impact evidence coerced the death
sentence from the jury; (8) whether the evidence is sufficient to
establish the defendant had previously been convicted of one or more
violent felony offenses; (9) whether the jury verdict form was clear
as to whether the jury found the aggravating circumstance relied upon
by the state; (10) whether the Tennessee death penalty statutory
scheme is constitutional; and (11) whether the sentence of death
imposed in this case is disproportionate.  Upon review, we question,
but need not determine, whether the trial court in the penalty phase
had the authority under Apprendi and Ring to find the defendant's
prior felony convictions were crimes of violence and to instruct the
jury that these prior convictions were crimes of violence; however, we
conclude that if there were error, any error was harmless beyond a
reasonable doubt.  Thus, we discern no error of law requiring
reversal.  Accordingly, we affirm the defendant's conviction for first
degree murder and the jury's imposition of the sentence of death.

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

JERRY LEE COWAN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jerry Lee Cowan, Pro Se.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and James Michael Taylor, District
Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Jerry Lee Cowan, seeks appellate review of the Blount
County Circuit Court's denial of his motion to reopen his 1992
post-conviction relief petition.  Finding no merit in the appeal, we
affirm the lower court's judgment.

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

JASON MICHAEL CRIM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Jason
Michael Crim.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; and Arthur Bieber, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Jason Michael Crim, appeals the trial court's denial
of his application for post- conviction relief.  The single issue
presented for review is whether the petitioner was denied the
effective assistance of counsel.  The judgment is affirmed.

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

STATE OF TENNESSEE v. RICHARD DILLING

Court:TCCA

Attorneys:                          

Didi Christie, Brownsville, Tennessee, (on appeal); Joseph P. Atnip,
District Public Defender; and William K. Randolph, Assistant Public
Defender, (at trial) for the appellant, Richard Dilling.

Paul G. Summers, Attorney General & Reporter; Jennifer Bledsoe,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and Kevin Alpin, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a bench trial in the Circuit Court of Obion County,
Defendant, Richard Dilling, was convicted of misdemeanor reckless
endangerment.  He was sentenced to serve 11 months and 29 days, with
all but 30 days to be suspended.  He now appeals, challenging both the
sufficiency of the evidence to sustain the conviction and the sentence
imposed by the trial court.  After a careful review of the record, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. CALVIN REGINALD EDWARDS

Court:TCCA

Attorneys:                          

Jeffrey L. Stimpson, Munford, Tennessee, for the appellant, Calvin
Reginald Edwards.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General;  Elizabeth T. Rice, District Attorney
General; and Colin Campbell and James Walter Freeland, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Calvin Reginald Edwards, entered a plea of guilt to
simple possession of marijuana, explicitly reserving a certified
question of law challenging the legality of an investigatory stop. 
See Tenn. R. Crim. P. 37(b)(2)(i).  Because the stop was based upon a
reasonable and articulable suspicion, the judgment is affirmed.

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

ANDREW LEVI JEFFERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Andrew Levi
Jefferson.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and James H. Todd, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Andrew Levi Jefferson, appeals from the Davidson
County Criminal Court's denial of post-conviction and habeas corpus
relief.  In his amended, combined petitions for relief, the petitioner
challenges his 2001, guilty-pleaded convictions of second degree
murder and attempt to commit especially aggravated robbery.  On
appeal, the petitioner claims post-conviction relief because his trial
counsel were ineffective in failing to defeat the transfer of the
petitioner's case from juvenile court to criminal court, in preventing
the petitioner from testifying at the transfer hearing, by failing to
investigate and discover the petitioner's mental status, and in
failing to present a critical issue in pretrial motions.  Also, the
petitioner claims that his guilty pleas were involuntary and unknowing
and that he was denied due process because he was not allowed to
testify in the juvenile court transfer hearing.  In his joined claim
for habeas corpus relief, the petitioner claims that, because of
errors in the transfer from juvenile court, the criminal court lacked
jurisdiction to adjudicate his case.  Based upon our review, we find
no reversible error and affirm the actions of the post-conviction
court.

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

STATE OF TENNESSEE v. ANGALEE LOVE

Court:TCCA

Attorneys:                          

William D. Massey and C. Michael Robbins (on appeal), and Coleman
Garrett and Michelle Botseri (at trial), Memphis, Tennessee, for the
appellant, Angalee Love.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  William L. Gibbons, District Attorney
General; and Patience Branham and Jennifer Nichols, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of aggravated child abuse of her
seventeen-month-old daughter.  The defendant contends on appeal that
the evidence was insufficient to support the conviction, and the trial
court erred in allowing testimony by Dr. Lazar concerning the effects
of acetone.  We conclude that the evidence presented was sufficient to
support the conviction, and any error in admitting the testimony of
Dr. Lazar concerning the effects of acetone was harmless.  The
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. JAMES A. McCURRY

Court:TCCA

Attorneys:                          

George M. Googe, District Public Defender, and Stephen P. Spracher,
Assistant District Public Defender, for the appellant, James A.
McCurry.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Jody S. Pickens, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was charged with driving on a revoked license and
misdemeanor evading arrest.  The jury found him not guilty of driving
on a revoked license and guilty of evading arrest.  The defendant
contends on appeal that the evidence was insufficient to support the
verdict.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. MELISSA A. MELLINGER

Court:TCCA

Attorneys:                          

Lance B. Mayes and M. Don Himmelberg, Nashville, Tennessee, for the
appellant, Melissa A. Mellinger.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Howard Lee Chambers, District Attorney
General Pro Tem; and Jerry D. Hunt, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Melissa A. Mellinger, was convicted by a jury in the
Wilson County Criminal Court of two counts of first offense driving
under the influence (DUI), Class A misdemeanors.  The trial court
merged the convictions, imposed a three hundred fifty dollar ($350)
fine, and sentenced the appellant to eleven months and twenty-nine
days to be suspended upon serving two hundred seventy-three (273) days
in the county jail.  The trial court also suspended the appellant's
driver's license for one year.  On appeal, the appellant argues that
the sentence imposed by the trial court was excessive.  Upon review of
the record and the parties' briefs, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. ANTRAY TERRILL MORROW

Court:TCCA

Attorneys:                          

Wayne T. DeWees, Bolivar, Tennessee (at trial); Guy T. Wilkinson,
District Public Defender; and Richard W. DeBerry, Assistant District
Public Defender (on appeal), for the appellant, Antray Terrill Morrow.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and John W. Overton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

A Hardin County jury convicted the appellant of four counts of
aggravated assault and one count of felony reckless endangerment.  The
trial court imposed an effective twelve-year sentence.  In this
appeal, the appellant argues: (1) there is insufficient evidence to
support his convictions; and (2) the trial court erred in sentencing
him.  Upon review of the record and the parties' briefs, we affirm the
appellant's convictions and sentences for aggravated assault. 
However, because felony reckless endangerment is not a lesser-included
offense of aggravated assault, the jury was improperly instructed on
that offense.  Accordingly, we reverse the appellant's conviction for
felony reckless endangerment and remand for further proceedings
consistent with this opinion.

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

STATE OF TENNESSEE v. STEVEN A. NORVELL

Court:TCCA

Attorneys:                          

M. Scott Collins, Nashville, Tennessee, for the appellant, Steven A.
Norvell.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Jennifer Stribling Tackett and Scott R. McMurtry,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Steven A. Norvell, was convicted by a Davidson County
Criminal Court jury of driving under the influence (DUI), third
offense, a Class A misdemeanor.  The trial court sentenced him to
eleven months, twenty-nine days to be served as one hundred forty days
in jail and the remainder on probation.  In addition, the trial court
ordered that he participate in an alcohol evaluation and treatment
program, suspended his driving privileges for three years, and imposed
a one thousand one hundred dollar fine.  The defendant contends that
the evidence is insufficient to support his conviction because the
state offered no proof that the result of his breathalyzer test was
accurate.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. JASPER TURNER

Court:TCCA

Attorneys:                          

J. Colin Morris, Jackson, Tennessee (on appeal); and George Morton
Googe, District Public Defender; and Stephen P. Spracher, Assistant
Public Defender, Jackson, Tennessee (at trial) for the appellant,
Jasper Turner.

Paul G. Summers, Attorney General and Reporter; P. Robin Dickson,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Jody S. Pickens, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, Jasper Turner, was convicted of
identity theft, a Class D felony. He was sentenced to twelve years
incarceration as a career offender.  On appeal, Defendant challenges
the sufficiency of the evidence to support the conviction, argues that
the trial court erred in sentencing him, and contends that it was
plain error for the trial court to allow the State to refer to the
victim being attacked at the time the victim's wallet and credit cards
were taken.  After a thorough review of the evidence, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. TIMOTHY WAKEFIELD

Court:TCCA

Attorneys:                          

Robert Wilson Jones and Garland Ergueden, Memphis, Tennessee, for the
appellant, Timothy Wakefield.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Hagerman, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Timothy Wakefield, pled guilty to DUI, fourth offense,
and was sentenced to two years in confinement, suspended after service
of 150 days.  The Defendant was placed on community corrections.  A
petition for the revocation of the Defendant's community corrections
sentence was subsequently filed and granted.  The sole issue on appeal
is whether the trial court erred by not allowing the Defendant full
credit for the time that the Defendant had served in the community
corrections program.  We conclude that the trial court erred and
remand to the trial court to modify its judgment to reflect
ninety-eight days of credit for time served.

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

KENNEDY WOODS v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY

Court:TCCA

Attorneys:                          

Kennedy Woods, Nashville, Tennessee, Pro Se.

Daniel W. Champney, John L. Kennedy, and Ann O'Connell, Nashville,
Tennessee, for the appellee, Metropolitan Government of Nashville and
Davidson County.

Judge: CAIN

First Paragraph:

This case involves an Administrative Procedures Act appeal from the
chancery court's determination of Appellant's Petition for Judicial
Review.  The petition sought review of the Civil Service Commission's
final order affirming Appellant's termination for violation of the
Metro Nashville Fire Department's Zero-Tolerance Policy on Substance
Abuse.  We affirm the order of the trial court.

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

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