Opinion Flash

January 20, 2004
Volume 10 — Number 012

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
04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
11 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


KIMBERLY CLARK v. HARDEE'S FOOD SYSTEMS, INC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

D. Andrew Saulters, Nashville, Tennessee for appellant, Kimberly Clark

Vanessa L. Comerford, Brentwood, Tennessee for appellee, Hardee's Food
Systems, Inc., et al.

Judge: WALLACE

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeal Panel of the Supreme Court in accordance
with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  The appellant, employee, has appealed the trial court's decision
in this case, holding the employee had failed to carry the burden of
proof as to causation, and denied benefits.  As discussed below, the
panel has concluded the judgment should be affirmed.

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

DINAH FAYE COFFMAN v. DTR TENNESSEE, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Clarence Risin, of Knoxville, Tennessee, for Appellant, DTR Tennessee,
Inc.

James M. Davis, of Morristown, Tennessee, for Appellee, Dinah Faye
Coffman.

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 66 2/3 percent permanent partial
disability.  The employer insists the evidence preponderates against
the award.  Judgment of the trial court is modified to indicate the
award is to each arm and the judgment as modified is affirmed.

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

DEBRA A. PRESSLEY v. STATE OF TENNESSEE

Court:TSC - Workers Comp Panel

Attorneys:                          

J. Anthony Farmer and John P. Dreiser, of Knoxville, Tennessee, for
Appellant, Debra A. Pressley.

Paul G. Summers, Attorney General and Reporter, and George H. Coffin,
Jr., Senior Counsel for Appellee, State of Tennessee.

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 Claims
Commissioner dismissed the complaint finding that the employee's
mental condition was of long duration and was the result of a gradual
build-up of work stress.  The judgment of the Claims Commission is
reversed and the case is remanded.

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

JOHN THOMAS STILL v. COMMISSARY OPERATIONS, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Aubrey T. Givens, Madison, Tennessee, for appellant, John Thomas Still

Mark A. Baugh, Nashville, Tennessee, for appellee, Commissary
Operations, Inc.

Judge: WALLACE

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  The trial court determined that I(1) Employee was entitled to
the current cause of action pursuant to Tennessee Code Annotated
Section 50-6-241(a)(2).  The employee sustained no additional 
vocational disability over and above the previously awarded
twenty-five percent.  As discussed below, the panel has concluded the
judgment of the trial court should be affirmed.

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

NANCY GAIL (PAULK) DORAN v. OATHER PAUL DORAN

Court:TCA

Attorneys:                          

Lloyd R. Tatum, Henderson, TN, for Appellant

Dennis W. Plunk, Savannah, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises from the lower court's disposition of marital
property.  The lower court found that four parcels of real estate in
Hardin County, Tennessee belonged to the parties as marital property
and ruled that the parties held the parcels as tenants in common.  The
lower court then ordered each party to submit a sealed bid for the
purchase of the other's interest in the four parcels, with the highest
bidder to be awarded outright ownership.  Husband appeals this manner
of division, alleging that it fails to ensure that the winning bid
equals or exceeds fair market value.  For the following reasons, we
reverse the ruling of the lower court and remand for further
proceedings.

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

STATE OF TENNESSEE v. MARCILLO ANDERSON

Court:TCCA

Attorneys:                          

Brett B. Stein, Memphis, Tennessee for the appellant, Marcillo
Anderson.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Michael Leavitt, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Marcillo Anderson, was convicted by a jury of second
degree murder and sentenced to twenty years as a Range One, Standard
Offender.  His release eligibility was classified as violent,
requiring him to serve one hundred percent (100%) of his sentence.  In
this direct appeal, the appellant challenges the sufficiency of the
evidence and the trial court's denial of a jury instruction on
self-defense.  We hold that none of the issues raised by the appellant
warrant a reversal and affirm the conviction.

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

STATE OF TENNESSEE v. HOLLY FANT
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Tom W. Crider, District Public Defender, for the appellant, Holly Fant.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Garry Brown, District Attorney General; and Jerald M. Campbell, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH
 
First Paragraph:

The appellant, Holly Fant,  pled guilty to aggravated assault by use
of a deadly weapon resulting in bodily injury and agreed to have her
sentence determined at a sentencing hearing.  The trial court
sentenced the appellant as a Range I, Standard Offender to a four-year
sentence in the Tennessee Department of Correction.  After an appeal,
this Court reversed and remanded the case for a new sentencing
hearing.  See State v. Holly Fant, No. W2001-02634-CCA-R3-CD, 2002 WL
1284229 (Tenn. Crim. App. at Jackson, June 5, 2002).  After a new
sentencing hearing, the appellant was again sentenced by the trial
court as a Range I, Standard Offender to a four-year sentence in the
Tennessee Department of Correction.  In this appeal, the appellant
challenges her sentence by arguing that the trial court: (1)
improperly applied certain enhancement factors to her sentence; (2)
based its determination on evidence not in the record; and (3)
improperly denied her request for a "special needs" Community
Corrections sentence.  After a complete review of the record, we
affirm the judgment of the trial court.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/fantholly_con.wpd

STATE OF TENNESSEE v. GLEN HOLT
CORRECTED OPINION WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

William Allen, Oak Ridge, Tennessee, for the appellant, Glen Holt.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General; Scott
McCluen, District Attorney General; Roger Delp and Frank Harvey,
Assistant District Attorney Generals, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Morgan County jury found the Defendant, Glen Holt, guilty of first
degree felony murder and  aggravated robbery.  The trial court
sentenced the Defendant to nine years in prison for the aggravated
robbery charge, to be served concurrently with a life sentence for the
murder conviction.  The Defendant appeals, contending: (1) that the
evidence was insufficient to support his convictions; (2) that the
trial court erred when it allowed a photograph, offered by the
prosecution, to be admitted into evidence without a proper foundation;
(3) that the jury did not follow the trial court's instructions with
regard to felony murder; and (4) that he did not knowingly,
voluntarily and intelligently waive his constitutional right to
testify in his own defense.  Although we conclude that issues (1), (2)
and (3) are without merit, the record is insufficient for us to
determine whether the Defendant personally and knowingly waived his
right to testify.  Therefore, we remand the case to the trial court
for a hearing to determine whether the Defendant's right to testify
was violated, and if so, whether the violation of the Defendant's
right to testify was harmless beyond a reasonable doubt.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/holtglen_opn.wpd

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/holtglen_con.wpd

WALTER EUGENE INGRAM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Walter Eugene Ingram, Only, Tennessee, Pro se.

Michael E. Moore, Solicitor General; David H. Findley, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
Steve P. Jones, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: OGLE

First Paragraph:

The defendant, Walter Eugene Ingram, filed a "Motion to Correct
Illegal Sentence" in the Shelby County Criminal Court.  Upon reviewing
the motion and the State's response, the trial court summarily
dismissed the motion, finding that it failed to allege grounds for
relief. The defendant appealed.  Upon review of the record and the
parties' briefs, we conclude that the defendant's appeal should be
dismissed.

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

STATE OF TENNESSEE v. GARY ALLEN LARKINS, JR.

Court:TCCA

Attorneys:                          

Stephen M. Wallace, District Public Defender, and William A. Kennedy,
Assistant Public Defender, for the appellant, Gary Allen Larkins, Jr.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and J. Lewis Combs, Jr., Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Sullivan County Criminal Court jury convicted the defendant, Gary
Allen Larkins, Jr., of attempted aggravated assault, a Class D felony;
resisting arrest, a Class B misdemeanor; and disorderly conduct, a
Class C misdemeanor, and the trial court sentenced him to concurrent
sentences of seven years, six months, and thirty days, respectively. 
The defendant appeals, claiming that the evidence is insufficient to
support his convictions.  We affirm the defendant's convictions but
remand the case for entry of a corrected judgment for the attempted
aggravated assault.

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

STATE OF TENNESSEE v. JAMES LUSK, JR.

Court:TCCA

Attorneys:                          

Bryan H. Hoss, Lee Davis, and David W. Wallace, Chattanooga,
Tennessee, for the appellant, James Lusk, Jr.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William H. Cox, III, District
Attorney General; and Barry Allen Steelman, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, James Lusk, Jr., appeals from his twenty-five-year
sentence imposed by the Hamilton County Criminal Court following his
guilty plea to attempted first degree murder, a Class A felony.  The
defendant claims that the trial court failed to apply and weigh
mitigating factors properly.  We affirm the judgment of the trial
court.

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

STATE OF TENNESSEE v. JIMMY DAVID MCELROY

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Renee W.  Turner,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Charles W. Pope, Jr., Assistant District Attorney General, for the
appellant, State of Tennessee.

Charles C. Burks, Jr., Knoxville, Tennessee, for the appellee, Jimmy
David McElroy.

Judge: RILEY

First Paragraph:

The state in this interlocutory appeal challenges the McMinn County
trial court's order granting the defendant's motion to suppress
evidence seized pursuant to a search warrant.  In suppressing the
evidence, the trial court found the informant's information in the
affidavit referred to a different property location than the property
authorized to be searched; therefore, the trial court found a lack of
probable cause for the issuance of the search warrant.  Upon review of
the record and the applicable law, we affirm the trial court's order
granting the motion to suppress.

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

STATE OF TENNESSEE v. DWIGHT MILLER

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., on appeal, Waverly, Tennessee; Tom Crider,
District Public Defender; and Perianne Houghton, Assistant Public
Defender, at trial and on appeal, Trenton, Tennessee, for the
appellant, Dwight Miller.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; Clayburn L. Peeples, District Attorney
General; and Gary Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Dwight Miller, was convicted of first degree murder and
sentenced to life in prison in 1996.  On December 29, 1998, this Court
reversed the judgment of the trial court and remanded the case to the
Haywood County Circuit Court for a new trial.  See State v. Dwight
Miller, No. 02C01-9708-CC-00300, 1998 WL 902592 (Tenn. Crim. App. at
Jackson, Dec. 29, 1998).  At the conclusion of the second trial,
appellant was convicted again by a jury of first degree murder and
sentenced to life in prison.  The issues presented for our review
include: (1) whether the trial court erred in permitting the prior
recorded testimony of a witness to be read into the record; (2)
whether the trial court erred in failing to grant a mistrial after a
bomb threat occurred during the course of the trial; and (3) whether
the evidence is sufficient to sustain the conviction for first degree
murder.  Appellate review is available for the sufficiency of the
evidence despite the appellant's failure to file a timely motion for
new trial under Tennessee Rule of Criminal Procedure 33(b).  The
review of the issues, however, is also dependent upon either a timely
filed notice of appeal, or in the interest of justice, a waiver of the
timely filing of a notice of appeal pursuant to Tennessee Rule of
Appellate Procedure 4(a).  Because the appellant filed an untimely
motion for a new trial, his notice of appeal is likewise tardy. 
Additionally, the appellant has not sought a waiver of the timely
filing of the notice of appeal.  Under these circumstances we conclude
that the appellant has waived review of these issues on appeal. 
Nevertheless, we have in the interest of justice, reviewed the primary
issue of the sufficiency of the evidence.  The evidence is more than
sufficient to support the verdict of the jury.  Accordingly, the
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. GREGORY SKINNER

Court:TCCA

Attorneys:                          

Tom W. Crider, District Public Defender, for the appellant, Gregory
Skinner.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and William D. Bowen and Jerald M. Campbell, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Gregory Skinner, was convicted of two counts of sale of
a Schedule II controlled substance, a Class C felony, and one count of
sale of a counterfeit controlled substance, a Class E felony, and
sentenced as a Range II, multiple offender to ten years for each of
the two counts of sale of a Schedule II controlled substance, to be
served concurrently, and to three years for the sale of a counterfeit
controlled substance, to be served consecutively, for a total sentence
of thirteen years.  This sentence was ordered to be served
consecutively to a previous sentence.  The defendant appeals, arguing
that the evidence was insufficient to support his convictions and that
the trial court erred in applying a nonstatutory factor in setting his
sentence.  Following our review, we affirm the judgments of the trial
court but remand for entry of corrected judgments in Counts 2 and 3.

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

STATE OF TENNESSEE v. RICHARD EUGENE THOMPSON

Court:TCCA

Attorneys:                          

Karen T. Fleet, Bolivar, Tennessee (at trial); and Mark L. Agee and
Jason C. Scott, Trenton, Tennessee (at trial and on appeal), for the
Appellant, Richard Eugene Thompson.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Joe Van Dyke, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Richard Eugene Thompson, appeals the lower court's
failure to grant alternative sentencing following his guilty plea to
vehicular assault.  Discerning no error, we affirm.

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

STATE OF TENNESSEE v. CHARLES VANTILBURG, III

Court:TCCA

Attorneys:                          

Leslie Ballin, Memphis, Tennessee, for the appellant, Charles
Vantilburg, III.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; Thomas Henderson and Karen Cook, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of second degree murder and sentenced to
twenty years in the Tennessee Department of Correction.  He contends
on appeal that 1) the evidence was insufficient to prove that the
killing was "knowing," 2) the trial court erred in admitting a photo
of the victim while he was alive, allowing a "memo of understanding"
to be read into evidence, and refusing to admit a report of an expert
witness into evidence, 3) the State made improper remarks during
closing argument, 4) the trial court gave erroneous jury instructions
as to the definition of "knowingly," and 5) the sentence was improper.
 We conclude that the definition of "knowingly" given by the trial
court improperly lessened the State's burden of proof and was not
harmless beyond a reasonable doubt.  Therefore, we reverse and remand
for a new trial, based on the erroneous jury instruction given by the
trial court.

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

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