Opinion FlashMarch 3, 2004Volume 10 — Number 042 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):
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. Howard H. Vogel SHIRLEY ANN BORCHERT v. EMERSON ELECTRIC COMPANY Court:TSC - Workers Comp Panel Attorneys: Richard L. Dunlap, Paris, Tennessee, for the appellant, Emerson Electric Company Charles L. Hicks, Camden, Tennessee, for the appellee, Shirley Ann Borchert Judge: LOSER 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. In this appeal, the employer questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the judgment fails to preponderate against the findings of the trial court. http://www.tba.org/tba_files/TSC_WCP/borchert.wpd WILLIE WOOTEN v. WAL-MART STORES EAST. INC., ET AL. Court:TSC - Workers Comp Panel Attorneys: Jay L. Johnson, Allen, Kopet & Associates, Jackson, Tennessee, for the appellants, Wal-Mart Stores, Inc. Keith V. Moore, Memphis, Tennessee, for the appellee, Willie Wooten Judge: LOSER 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. In this appeal, the employer questions the trial court's findings as to compensability and rate of compensation benefits. The employer also insists the trial court erred in ordering it to pay medical expenses to TennCare, and not directly to the health care providers. The employee insists the employer should have been assessed with a penalty for its failure to provide medical benefits. As discussed below, the panel has concluded the evidence fails to preponderate against the trial court's findings as to compensability and compensation rate, but should be remanded for determining TennCare's subrogation interest, if any. http://www.tba.org/tba_files/TSC_WCP/wooten.wpd MESSER GRIESHEIM INDUSTRIES, INC. D/B/A MG INDUSTRIES v. CRYOTECH OF KINGSPORT, INC., ET AL. Court:TCA Attorneys: Gregory M. Leitner, Chattanooga, Tennessee; Mark G. Arnold, St. Louis, Missouri, and Arthur G. Seymour, Jr., Knoxville, Tennessee, for the Appellants, Messer Griesheim Industries, Inc. d/b/a MG Industries Pamela Blass Bracher, Chattanooga, Tennessee; William Randall Wilson, Chattanooga, Tennessee, and Robert C. Divine, Chattanooga, Tennessee, for the Appellee, Eastman Chemical Company Judge: GODDARD First Paragraph: This appeal from the Knox County Circuit Court questions whether the Trial Court erred in granting a summary judgment in favor of the Appellee/Defendant, Eastman Chemical Company, with respect to various claims connected with the purchase and sale of contaminated carbon dioxide by the Appellant/Plaintiff, Messer Griesheim Industries, Inc., d/b/a MG Industries. We affirm in part, vacate in part and remand. http://www.tba.org/tba_files/TCA/messerg.wpd STATE OF TENNESSEE v. ROGER V. ALEXANDER WITH CONCURRING OPINION Court:TCCA Attorneys: Richard D. Taylor, Ashland City, Tennessee, for the appellant, Roger V. Alexander. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Lisa Donegan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Roger V. Alexander, pled guilty to one count of possession of anhydrous ammonia, a Class E felony. The trial court sentenced the Defendant to four years in the Department of Correction. The Defendant now appeals, alleging that the trial court should have sentenced him to Community Corrections. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/alexanderrv_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/alexanderrv_con.wpd STATE OF TENNESSEE v. DANIEL BILBREY Court:TCCA Attorneys: David Neal Brady, District Public Defender; and Cynthia Lyons, Assistant Public Defender, Cookeville, Tennessee, for the appellant, Daniel Bilbrey. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William Edward Gibson, District Attorney General; and Owen Burnett, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Following a judicial diversion revocation hearing, the trial court sentenced Defendant to six years in the Tennessee Department of Correction in accordance with the terms of his plea agreement which had been negotiated at the time Defendant pled guilty to one count of aggravated assault. The trial court sentenced Defendant without conducting a sentencing hearing. Defendant now appeals his sentence of confinement arguing that the terms of his plea agreement called for a probated sentence in the event his judicial diversion was subsequently revoked. Alternatively, Defendant argues that the terms of his plea agreement did not survive the revocation of his judicial diversion, and the trial court should have conducted a sentencing hearing prior to imposing Defendant's sentence. Defendant also argues that the trial court erred in requiring him to report to his probation officer as a condition of bond pending appeal. Following a thorough review of the record in this matter, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bilbreydaniel.wpd STATE OF TENNESSEE V. ARTHUR BUFORD, III Court:TCCA Attorneys: Ross A. Sampson, Memphis, Tennessee, for the appellant, Arthur Burford, III. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; William L. Gibbons, District Attorney General; Jerry Kitchen and Betsy Carnesale, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Arthur Buford III, was convicted by a jury of two counts of first degree murder. After being sentenced to two consecutive life sentences, the appellant presents the following issues for our review: (1) whether the trial court abused its discretion by allowing the introduction of photographic evidence of the crime scene; (2) whether the evidence is sufficient to sustain the convictions; and (3) whether the trial court properly sentenced the appellant. Finding no reversible error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bufordarthur.wpd STATE OF TENNESSEE v. CURTIS BUFORD Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender, and Tony N. Brayton, Assistant Public Defender (on appeal), and Donna Armstard, Assistant Public Defender (at trial), for the appellant, Curtis Buford. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Curtis Buford, was convicted by a jury in the Shelby County Criminal Court of two counts of aggravated robbery, Class B felonies. Following a sentencing hearing, the trial court sentenced the appellant on each count as a Range II multiple offender to twenty years incarceration in the Tennessee Department of Correction, to be served concurrently. On appeal, the appellant argues that (1) the trial court committed reversible error by not instructing the jury on the lesser- included offenses of aggravated robbery; (2) the multiple convictions for aggravated robbery arising out of a single incident involving a single victim violated double jeopardy principles; and (3) the evidence was insufficient to sustain the appellant's convictions for aggravated robbery. Upon review of the record and the parties' briefs, we conclude that the trial court's failure to charge the jury on the lesser-included offenses of aggravated robbery was error. However, we conclude that the error was harmless beyond a reasonable doubt. We also conclude that the evidence was sufficient to sustain a conviction for aggravated robbery. Additionally, we conclude that the appellant's dual convictions for aggravated robbery violated the principles of double jeopardy. Accordingly, we merge the aggravated robbery convictions into a single conviction and remand to the trial court for the correction of the judgments to reflect the merger of the convictions. http://www.tba.org/tba_files/TCCA/bufordcurtis.wpd NELSON KEITH FOSTER v. STATE OF TENNESSEE Court:TCCA Attorneys: Raymond C. Conkin, Jr., Kingsport, Tennessee, for the appellant, Nelson Keith Foster. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Nelson Keith Foster, appeals from the trial court's dismissal of his petition for post- conviction relief, without affording Petitioner an evidentiary hearing. In his petition, Petitioner asserted that he was entitled to relief from his three convictions for violation of the Habitual Motor Vehicle Offender Act (HMVO) due to ineffective assistance of counsel. The trial court dismissed the petition because Petitioner had argued in his direct appeal from the convictions that he was entitled to relief because he had received ineffective assistance of counsel. We affirm the judgment of the post-conviction trial court. http://www.tba.org/tba_files/TCCA/fosternelsonkeith.wpd STATE OF TENNESSEE v. DOUGLAS MARSHALL MATHIS WITH DISSENTING OPINION Court:TCCA Attorneys: Jerred Creasy and Kirk Vandivort, Charlotte, Tennessee, for the appellant, Douglas Marshall Mathis. Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/mathisdouglas_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/mathisdouglas_dis.wpd STATE OF TENNESSEE v. WILLIAM D. PENDERGRASS Court:TCCA Attorneys: Kenneth K. Crites, Centerville, Tennessee, for the appellant, William D. Pendergrass. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Michael J. Fahey, II, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of third offense driving under the influence (DUI) and driving on a revoked license. He contends on appeal that (1) the evidence was insufficient to support the convictions, (2) the trial court erred in denying his motion to suppress because the deputy did not have reasonable suspicion to initiate the stop, and (3) the deputy's mention of the horizontal gaze nystagmus (HGN) test during his testimony entitled the defendant to a mistrial. Concluding that no reversible error occurred, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/pendergrasswd.wpd EDDIE J. PHIFER v. STATE OF TENNESSEE Court:TCCA Attorneys: Eddie J. Phifer, pro se, Crestview, Florida. Paul G. Summers, Attorney General & Reporter; Kathy Aslinger, Assistant Attorney General; John Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Eddie J. Phifer, was found guilty of aggravated rape and aggravated kidnaping and sentenced to twenty-five years for each conviction to be served consecutively. The appellant filed a motion for a new trial on June 20, 1980 and another motion for a new trial on June 30, 1980. The trial court denied the motion for a new trial on March 6, 1981 and no appeal was filed. In July, 2003, the appellant filed a petition for writ of habeas corpus alleging that he is entitled to habeas corpus relief because a judgment was never rendered against him. The trial court dismissed the petitions. After a review of the record before this Court we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/phifereddie.wpd STATE OF TENNESSEE v. CORNELIUS RICHMOND Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Cornelius Richmond. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendant, Cornelius Richmond, of one count of robbery and three counts of forgery. The trial court ordered the defendant to serve an effective sentence of thirty- three years as a career offender. On appeal, the defendant contends: (1) the trial court erred in denying his motion to suppress his statement to the police; (2) the evidence is insufficient to support his robbery conviction; and (3) the trial court erred in failing to instruct the jury on facilitation as a lesser-included offense. Upon review of the record and the applicable law, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/richmond.wpd DEJUAN J. SCOTT v. STATE OF TENNESSEE Court:TCCA Attorneys: Patrick T. McNally, Nashville, Tennessee, for the appellant, Dejuan J. Scott. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the dismissal of his petition for post-conviction relief from his second degree murder conviction, arguing that the post-conviction court erred in finding that he received the effective assistance of trial counsel. Based on our review of the record, we conclude the petitioner failed to meet his burden of demonstrating by clear and convincing evidence that he was denied the effective assistance of counsel. Accordingly, we affirm the post-conviction court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/scottdejuanj.wpd ADRIAN WHITE v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert C. Brooks, Memphis, Tennessee, for the Appellant, Adrian White. Michael E. Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and John W. Campbell, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner appeals the dismissal of his petition for post-conviction relief. The lower court held that the petition was barred by the post-conviction statute of limitations. Because the record supports this determination, we affirm. http://www.tba.org/tba_files/TCCA/whitead.wpd Remote-Controlled Railroad Locomotives Date: February 11, 2004 Opinion Number: 04-022 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op22.pdf Constitutionality of notice requirement for write-in candidates Date: February 12, 2004 Opinion Number: 04-023 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op23.pdf Effect of Public Chapter No. 175 of the Acts of 2003 on Expungement of Records in Criminal Cases. Date: February 12, 2004 Opinion Number: 04-024 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op24.pdf Protection from civil or criminal liability for medical personnel taking blood samples Date: February 12, 2004 Opinion Number: 04-025 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op25.pdf Interpretation of Tenn. Code Ann. S41-4-140 Date: February 12, 2004 Opinion Number: 04-026 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op26.pdf Constitutionality of S.B. 2074/H.B. 2146, Authorizing Coffee County to Levy a Privilege Tax on "Large Events" Date: February 12, 2004 Opinion Number: 04-027 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op27.pdf Pending legislation to amend Tenn. Code Ann. S 36-6-306, the Grandparent Visitation Act Date: February 17, 2004 Opinion Number: 04-028 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op28.pdf Highway Storm Drainage Maintenance Date: February 25, 2004 Opinion Number: 04-029 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op29.pdf Payment of Pledge to Legislator during Legislative Session Date: February 25, 2004 Opinion Number: 04-030 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op30.pdf Municipalities -- Cash Payments to Officials in Lieu of Paying Life or Health Insurance Premium Date: February 25, 2004 Opinion Number: 04-031 CORRECTED LINK http://www.tba.org/tba_files/AG/2004/op31.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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