Opinion Flash

April 13, 2004
Volume 10 — Number 071

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
03 New Opinion(s) from the Tennessee Court of Appeals
06 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


CITY OF CHATTANOOGA v. CINEMA 1, INC., ET AL.

Court:TCA

Attorneys:                          

H. Louis Sirkin, Jennifer M. Kinsley, Cincinnati, Ohio, John Herbison,
Nashville, Tennessee, and Arvin H. Reingold, Chattanooga, Tennessee,
for the Appellants Cinema 1, Inc., and David Franklin.

Phillip A. Noblett and Jennifer T. Flowers, Chattanooga, Tennessee,
for the Appellee City of Chattanooga.

Judge: SWINEY

First Paragraph:

David Franklin ("Franklin") operates an adult bookstore in Chattanooga
known as Cinema 1, Inc.  ("Cinema 1").  Numerous undercover visits by
Chattanooga Police Department officers discovered a significant amount
of sexual activity happening at Cinema 1.  This sexual activity
violated the Chattanooga city ordinance regulating adult oriented
establishments.  Based on police reports detailing what the undercover
officers observed at Cinema 1, the Mayor of Chattanooga revoked
Franklin's adult oriented establishment license, a decision later
affirmed by the Chattanooga City Council and then the Trial Court. 
The primary issues on appeal concern whether the Chattanooga ordinance
regulating adult oriented establishments provides the necessary
procedural safeguards required by the First Amendment to be considered
facially constitutional under the federal Constitution.  We conclude
the licensing scheme provides the necessary First Amendment procedural
safeguards.  We further conclude that there was sufficient evidence
presented to revoke Franklin's license.  The judgment of the Trial
Court, therefore, is affirmed.

http://www.tba.org/tba_files/TCA/cinema1.wpd

JULIE JILES, ET AL. v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

James L. Milligan, Jr., Knoxville, Tennessee, for the Appellants,
Julie Jiles and husband, Bryan Jiles.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Mary M. Bers, Senior Counsel, for the Appellee,
State of Tennessee.

Judge: SWINEY

First Paragraph:

Julie Jiles ("Plaintiff")  and her husband, Bryan Jiles , sued the
State of Tennessee ("State") for medical malpractice regarding medical
care Plaintiff received at the Sevier County Health Department.  The
case was tried before the Claims Commission and an Order of Judgment
was entered in March of 2003, holding, inter alia, that the standard
of care was not breached and dismissing Plaintiff's case.  In dicta,
the Judgment also suggested that another health care provider was the
proximate cause of Plaintiff's damages. Plaintiff appeals.  We affirm.

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

SIERRA SUMMERALL v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court:TCA

Attorneys:                          

Sierra Summerall, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Stephen R. Butler,
Assistant Attorney General, for the appellees, Tennessee Department of
Correction, Lt. Cheryl Hargett, James M. Dukes, and Donal Campbell.

Judge: KOCH

First Paragraph:

This appeal arises from a prisoner disciplinary proceeding at the West
Tennessee State Penitentiary.  After a disciplinary board punished him
for possession of marijuana, the prisoner filed a petition for
common-law writ of certiorari in the Chancery Court for Davidson
County asserting that the Department of Correction had deprived him of
due process by substantially departing from its Uniform Disciplinary
Policies.  The trial court dismissed the petition because it was not
timely filed.  The prisoner has appealed.  We affirm the trial court.

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

STATE OF TENNESSEE v. CLIFTON BROWN

Court:TCCA

Attorneys:                          

Larry Samuel Patterson, Jr., Columbia, Tennessee, for the appellant,
Clifton Brown.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Mike Bottoms, District Attorney General;
Larry Nickell, Assistant District Attorney General; and Brent Cooper,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Clifton Brown, was indicted on one count of first degree
felony murder of John Maupin, one count of premeditated first degree
murder of John Maupin, one count of aggravated burglary of Ricky
Howard's home, and one count of especially aggravated kidnapping of
John Maupin.  Prior to the case going to the jury, the State asked for
and received a nolle prosequi as to the charge of premeditated first
degree murder.  Following a jury trial, Defendant was found guilty of
especially aggravated kidnapping and aggravated burglary.  The jury
found Defendant not guilty of first degree felony murder, and found
Defendant guilty of the lesser included offense of reckless homicide. 
Defendant waived a sentencing hearing and agreed to be sentenced as a
Range I, standard offender, to twenty years for the especially
aggravated kidnapping conviction, three years for the aggravated
burglary conviction and two years for the reckless homicide
conviction, with all sentences to run concurrently.  Defendant
appealed the sufficiency of the convicting evidence for all three
convictions.  In his brief, however, Defendant limits his argument on
appeal to the sufficiency of the evidence pertaining to his conviction
for especially aggravated kidnapping, and Defendant does not present
any argument to support his contention that the evidence was
insufficient to sustain his convictions for reckless homicide and
aggravated burglary.  Defendant has thus waived a review of the issues
pertaining to his aggravated burglary and reckless homicide
convictions.  Tenn. R. Crim. P. 10(b).  After a thorough review of the
record, we affirm all three judgments of the trial court.

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

JERRY MITCHELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Cynthia F. Burns, Nashville, Tennessee, for the Appellant, Jerry
Mitchell.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Doug Thurman, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Jerry Mitchell appeals from the Davidson County Criminal Court's
denial of his petition for post- conviction relief, in which he
claimed that his guilty plea to the offense of attempted first degree
murder was involuntary because his attorney erroneously advised him
that he would serve only three years of his fifteen year sentence. 
The lower court found that the petitioner failed to prove his claim by
clear and convincing evidence and denied relief.  Because the
petitioner has not carried his appellate burden of demonstrating error
in the lower court's ruling, we affirm.

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

STATE OF TENNESSEE v. PAUL E. ORR, JR.

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellant, State of Tennessee.

Walter W. Bussart, Lewisburg, Tennessee, for the appellee, Paul E.
Orr, Jr.

Judge: TIPTON

First Paragraph:

The Marshall County Circuit Court ruled that T.C.A. S 55-10-403(n),
which effectively allows Davidson County to have first-time DUI
offenders perform public service instead of serving a jail sentence,
violates equal protection rights and that the doctrine of elision
renders the general DUI sentencing statute, T.C.A. S 55-10-403,
unconstitutional.  The state appeals, claiming (1) that the
defendant's constitutional challenge to the statute was not properly
before the circuit court and (2) that T.C.A. S 55-10-403 and
subsection (n) are constitutional.  We hold that the defendant's
constitutional challenge to T.C.A. S 55-10-403(n) was properly before
the circuit court but fruitless.  In addition, we hold that even if
subsection (n) were unconstitutional, the general DUI sentencing
statute would remain in effect.  We reverse the trial court's order
dismissing the defendant's conviction.

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

STATE OF TENNESSEE v. JOSEPH RUSHING

Court:TCCA

Attorneys:                          

William B. Lockert, III, District Public Defender; and Richard D.
Taylor, Jr., Assistant Public Defender, for the appellant, Joseph
Rushing.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Lisa C. Donegan, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Joseph Rushing, was indicted for one count of rape of a
child and one count of aggravated sexual battery.  Following a jury
trial, the jury found Defendant guilty of count one, rape of a child. 
The State entered a nolle prosequi as to count two, aggravated sexual
battery.  Following a sentencing hearing, the trial court sentenced
Defendant to twenty-three years imprisonment.  On appeal, Defendant
argues that (1) the trial court erred in allowing Defendant's
statements to the police to be introduced at trial; (2) the sentence
imposed on Defendant was excessive; (3) the evidence was insufficient
to support Defendant's conviction for rape of a child; and (4)
Defendant's conviction and sentence violated principles of fundamental
fairness.  After a careful review of the record in this matter, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ANTHONY LAMONT SINGLETON

Court:TCCA

Attorneys:                          

Stephen M. Wallace, District Public Defender, and William Andrew
Kennedy, Assistant Public Defender, for the appellant, Anthony Lamont
Singleton.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Kent L. Chitwood, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Anthony Lamont Singleton, pled nolo contendere to
aggravated assault, a Class C felony; possession of marijuana, fourth
offense, a Class E felony; evading arrest and possession of drug
paraphernalia, Class A misdemeanors; and resisting arrest, a Class B
misdemeanor.  The trial court sentenced him as a Range I, standard
offender to an effective five-year sentence.  After a sentencing
hearing, the trial court ordered that he serve his sentences in
confinement.  The defendant appeals, claiming that the trial court
should have sentenced him to community corrections.  We affirm the
judgments of the trial court.

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

STATE OF TENNESSEE v. DAVID K. WACHTEL, III

Court:TCCA

Attorneys:                          

Joshua G. Strickland, Nashville, Tennessee, for the appellant, David
K. Wachtel, III.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Cara Harr and Joe James, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, David K. Wachtel, III, was convicted in the Sumner
County Criminal Court of three counts of domestic assault. The trial
court imposed a sentence of eleven months and twenty-nine days
incarceration in the Sumner County Jail for each conviction, with one
sentence consecutive to the other two, and placed the appellant on
probation.  On appeal, the appellant raises issues concerning the
trial court's rulings, the sufficiency of the evidence supporting his
convictions, and sentencing.  Upon our review of the record and the
parties' briefs, we affirm the judgments of the trial court.

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

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