Opinion Flash

June 18, 2004
Volume 10 — Number 117

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):
02 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
06 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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


JOSEPH AND JEAN GONZALEZ v. STATE OF TENNESSEE DEPARTMENT OF
CHILDREN'S SERVICES, IN THE MATTER OF A.J.H.

Court:TSC

Attorneys:                          

Thomas H. Miller, Franklin, Tennessee, for the appellants, Joseph and
Jean Gonzalez.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Elizabeth C. Driver, Assistant Attorney
General, for the appellee, Tennessee Department of Children's
Services.

Judge: BIRCH

First Paragraph:

In this interlocutory appeal, we consider whether and under what
circumstances grandparents may intervene in proceedings brought to
terminate the parent-child relationship.  In this case, the
grandparents filed a motion in the juvenile court to intervene in a
termination of parental rights proceeding.  The juvenile court denied
the motion, and the grandparents moved for interlocutory appeal
pursuant to Tennessee Rule of Appellate Procedure 9.  The trial court
granted the motion.  Following the Court of Appeals' denial of the
grandparents' application for permission to appeal, they filed an
application for permission to appeal to this Court; we granted the
application.  After a thorough review of the record and relevant legal
authority, we conclude that the motion filed in juvenile court seeking
intervention in the termination of parental rights case is to be
analyzed under Tennessee Rule of Civil Procedure 24.  Using this
analysis, we find no error and affirm the denial of the motion to
intervene.

http://www.tba.org/tba_files/TSC/gonzalezjoseph.wpd

STATE OF TENNESSEE  v.  TRACY LORENZO GOODWIN, alias LAWANDA CARTER
CORRECTED OPINION

Court:TSC

Attorneys:                          

A. Christian Lanier, III, Chattanooga, Tennessee, for the appellant, Tracy Lorenzo Goodwin.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

This is an appeal from the Criminal Court for Hamilton County which
convicted the defendant, Tracy Goodwin, of two counts of reckless
aggravated assault, one count of felony reckless endangerment, and one
count of criminally negligent homicide.  The issues before us are
whether the evidence is sufficient to uphold the convictions, whether
the trial court erred in failing to sever the aggravated assault
charges from the reckless endangerment and criminally negligent
homicide charges, whether the separate convictions for felony reckless
endangerment and criminally negligent homicide violate the
constitutional protection against double jeopardy, and whether the
sentences were excessive.  We find that the evidence was insufficient
to support the convictions for reckless aggravated assault because as
defined by the statute, reckless aggravated assault requires proof of
bodily injury, and no such proof was offered at trial.  We find
sufficient evidence to support the remaining convictions of felony
reckless endangerment and criminally negligent homicide.  We further
find, with respect to the remaining convictions, that the trial court
did not err in failing to sever the trials, the separate convictions
do not violate double jeopardy protections, and the sentencing was not
excessive.  Therefore, the decision of the Court of Criminal Appeals
is reversed in part and affirmed in part.  We remand the case for a
new trial on charges of assault as lesser- included offenses of
aggravated assault.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/goodwintl.wpd

LANI THOMAS ARNOLD and AMES DAVIS, Administrator of the Estate of Mary
Reeves Davis v. W. TERRY DAVIS

Court:TCA

Attorneys:                          

Gregory H. Oakley and Daniel W. Small of Nashville for Appellant, W.
Terry Davis

Ames Davis and Sally B. Buntin of Nashville for Appellees, Lani Thomas
Arnold and Ames Davis, Administrator of the Estate of Mary Reeves
Davis

R. Horton Frank III of Nashville for Appellee, Lani Thomas Arnold

Judge: CRAWFORD

First Paragraph:

This case involves the interpretation of certain provisions of a Trust
Instrument.  The trial court found a latent ambiguity in the
Instrument, allowed extrinsic evidence, and granted Appellee's Motion
for Summary Judgment.  Appellant appeals.  We affirm.

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

IN RE: DMD & JLA 

Court:TCA

Attorneys:                          

Melissa C. Berry, Memphis, Tennessee, for the appellants, Charlotte
Diane Asbridge and Hugh Michael Asbridge.

Virginia M. Alexander, Memphis, Tennessee, for the appellee, Amy
Michelle Darby (Asbridge).

Judge: FARMER

First Paragraph:

The trial court denied Appellants' petition for termination of
Mother's parental rights and returned physical custody of children to
Mother.  We reverse and remand for determination of whether
termination is in the best interests of the children.  We vacate the
order returning physical custody to Mother.

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

JUDITH MAE HARBER As Trustee of Trust B for the Estate of Edwin Erwin
v. LEADER FEDERAL BANK FOR SAVINGS

Court:TCA

Attorneys:                          

Everett B. Gibson, Lawrence Harris, Memphis, TN, for Appellant

Robert E. Craddock, Jr., John S. Wilson, III, Jeffrey Fleishmann,
Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves the wrongful payment of funds by Defendant over
Plaintiff's forged signature.  The lower court found that the majority
of Plaintiff's claims are barred by former Tenn. Code Ann. S 47-4-406,
which places a one-year limit on certain claims by bank customers
seeking to recover losses occasioned by unauthorized signatures.  For
the following reasons, we affirm in part, reverse in part, and remand
for further proceedings.

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

CHERYL O'BRIEN  v. RHEEM MANUFACTURING CO.

Court:TCA

Attorneys:                          

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Cheryl
O'Brien.

Michael North and Ronald G. Harris, Nashville, Tennessee, for the
appellee, Rheem Manufacturing Co.

Judge: CAIN

First Paragraph:

In this appeal an unsuccessful plaintiff seeks review of a jury
verdict approved by the trial court, in favor of the defendant
manufacturer.  We affirm.

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

DAVID SHARP v. STATE OF TENNESSEE 

Court:TCA

Attorneys:                          

David H. Sharp, Pro se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore
Solicitor General and John H. Sinclair, Jr., Assistant Attorney
General, for the State of Tennessee

Judge: FARMER

First Paragraph:

An inmate filed a claim with the Claims Commission contending
negligence on the part of the Tennessee Department of Correction in
miscalculating his sentence credits.  The Commission dismissed for
lack of jurisdiction, the inmate appealed, and we affirm.

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

IN THE MATTER OF: T.S.R.

Court:TCA

Attorneys:                          

Lynda F. Teems, Memphis, Tennessee, for the appellant, Marcus W. Reed.

Paul G. Summers, Attorney General and Reporter and Warren A. Jasper,
Assistant Attorney General, for the State of Tennessee, Department of
Human Services as Assignee of Laterica R. McKinney.

Judge: FARMER

First Paragraph:

The juvenile court entered an order declaring Appellant the father of
T.S.R. and ordered child support.  Appellant failed to pay child
support and incurred an arrearage of $27,051.68.  Appellant petitioned
the court for Rule 60.02 relief from the final order and requested a
blood paternity test.  The DNA test indicated that Appellant was not
the father.  The trial court relieved Appellant of his ongoing child
support but required him to pay the child support arrearage.  For the
following reasons, we affirm.

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

STATE OF TENNESSEE v. JAMES RAY BARTLETT

Court:TCCA

Attorneys:                          

Andrew Jackson Dearing, III, Assistant Public Defender, for the
appellant, James Ray Bartlett.

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

Judge: WADE

First Paragraph:

The defendant, James Ray Bartlett, appeals the trial court's denial of
his request for credit for time served in community corrections. 
Because the defendant has no appeal as of right under Tennessee Rule
of Appellate Procedure 3(b), the cause is dismissed.

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

STATE OF TENNESSEE v. JON BREWBAKER

Court:TCCA

Attorneys:                          

Richard Hughes, Public Defender, Cleveland, Tennessee, for the
appellant, Jon Brewbaker.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Joseph V. Hoffer, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Jon Brewbaker, pled guilty to second degree murder, a
Class A felony.  After a hearing, the trial court sentenced the
Defendant to twenty-three years in the Department of Correction.  The
sole issue on appeal is whether the sentence imposed by the trial
court is excessive.  We affirm the judgment of the trial court.

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

CHRISTOPHER TODD BROWN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the appellant, Christopher
Todd Brown.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Stephen Douglas Thurman, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of post-conviction relief relating
to his convictions for attempted first degree murder and attempted
second degree murder.  On appeal, the petitioner contends: (1) he
received ineffective assistance of counsel at trial and on appeal; and
(2) the trial court erroneously instructed the jury on the definition
of the "knowing" mens rea for attempted second degree murder.  We
affirm the judgment of the post-conviction court.

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

RAYMON HAYMON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Ralph I. Lawson, Dyersburg, Tennessee, for the appellant, Raymon
Haymon.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; and C. Phillip Bivens, District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Raymon Haymon, was convicted by a jury in the Dyer
County Circuit Court of first degree premeditated murder.  Upon
conviction, the petitioner was sentenced to life imprisonment. 
Subsequently, the petitioner filed a petition for writ of error coram
nobis, alleging that one of the witnesses at his trial had recanted
his testimony.  The trial court denied the petition, finding that the
petitioner failed to produce newly discovered evidence.  The
petitioner appeals.  Upon review of the record and the parties'
briefs, we affirm the judgment of the trial court.

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

WILLIAM LEWIS HOUSTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lucy D. Henson and Dennis P. Stack, Pulaski, Tennessee, for the
appellant, William Lewis Houston.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant,
Assistant Attorney General; Mike Bottoms, District Attorney General,
for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

Petitioner was convicted by a Giles County jury for several
drug-related offenses and was given an effective sentence of 72 years.
 In his direct appeal to this Court, his conviction was affirmed, and
his sentence was reduced to 46 years.   Petitioner then filed a
Petition for Post-conviction Relief.  The post-conviction court denied
the petition.  Petitioner appeals the decision of the post-conviction
court and argues three issues on appeal: (1) Whether the
post-conviction court erred in finding that trial counsel was
effective; (2) whether the post-conviction court erred in its decision
with respect to the trial judge's presence in the jury room; and (3)
whether newly-discovered evidence of officer/witness's wrong doing and
character mandates a new trial.  We affirm the decision of the
post-conviction court.

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

STATE OF TENNESSEE v. JOE KING

Court:TCCA

Attorneys:                          

Philip A. Condra, District Public Defender, and David O. McGovern,
Assistant Public Defender, for the appellant, Joe King.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; James Michael Taylor, District Attorney General; and
Steven M. Blount, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant, Joe King, appeals the sufficiency of evidence to
support his conviction for theft and the amount of restitution ordered
by the trial court.  After review of the entire record in this cause,
we conclude that the evidence amply supported the defendant's
conviction.  The issue of restitution is waived pursuant to Rule 10(b)
of the Rules of the Court of Criminal Appeals.

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

STATE OF TENNESSEE V. BARRY RAY LONG

Court:TCCA

Attorneys:                          

Mike Mosier, Jackson, Tennessee, for the appellant, Barry Ray Long.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The Weakley County Grand Jury indicted the defendant for manufacturing
not less than .5 ounce or more than 10 pounds of marijuana.  The
Weakley County Sheriff's Department found the marijuana pursuant to a
search of the defendant's home based on a search warrant.  The
sheriff's department received the search warrant based on information
garnered in a non-consensual warrantless search of a portable shed
behind the defendant's home. Due to previous drug-related charges
which were later dismissed, the portable shed had been the subject of
forfeiture proceedings in 2000.  The defendant made no efforts to
contest the forfeiture, but the sheriff's department also made no
efforts to remove the portable shed.  The defendant filed a motion to
suppress the evidence found as a result of the search of the portable
shed.  After a hearing, the trial court denied the motion. The
defendant then entered a plea of guilty and purported to reserve this
certified question for appeal: Whether or not the search of the
storage shed predicated on a search warrant was preceded and based
upon a prior warrantless search.  Because of the ambiguity of the
certified question as presented, we dismiss the appeal.


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

STATE OF TENNESSEE v. HUBERT E. NARD

Court:TCCA

Attorneys:                          

Robert S. Peters, Winchester, Tennessee, for the appellant, Hubert E.
Nard.

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

Judge: WILLIAMS

First Paragraph:

The defendant, in this appeal of right, challenges the sufficiency of
the evidence to support his convictions for driving under the
influence (DUI) and disorderly conduct.  After a careful review of the
record, we affirm both convictions.  The disorderly conduct conviction
is remanded for modification of judgment to conform to the statutory
maximum sentence.

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

STATE OF TENNESSEE v. JOHN LEMONT PIERCE, a.k.a. JAMES OWENS, a.k.a.
JOHN LAMONTE PIERCE

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the appellant, John Lemont
Pierce.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Bret T. Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, John Lemont Pierce, indicted for two counts of
especially aggravated kidnapping, three counts of aggravated assault,
and simple assault, entered a guilty plea to one count of aggravated
assault.  The trial court imposed a fifteen-year sentence to be served
consecutively to a prior six-year sentence.  In this appeal, the
defendant contends that the trial court erred by ordering a maximum
sentence of 15 years and requiring consecutive service.  The judgment
of the trial court is affirmed.

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

STATE OF TENNESSEE v. JONATHAN W. SUSMAN

Court:TCCA

Attorneys:                          

Andrew L. Berke, Chattanooga, Tennessee, for the appellant, Jonathan
W. Susman.

Paul G. Summers, Attorney General and Reporter; Brent T. Cherry,
Assistant Attorney General; Bill Cox, District Attorney General; and
Bates Bryan, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Jonathan W. Susman, pled guilty to driving while under
the influence of an intoxicant.  As part of his plea agreement, he
expressly reserved with the consent of the trial judge and the State
the right to appeal a certified question of law pursuant to Tennessee
Rule of Criminal Procedure 37(b)(2)(i).  The question is whether there
were sufficient specific and articulable facts to justify a police
officer detaining the Defendant in order for him to perform field
sobriety tests.  We conclude that there were, and we affirm the trial
court's judgment.

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

STATE OF TENNESSEE v. DANNY WILLIAMSON

Court:TCCA

Attorneys:                          

Susanna L. Thomas, Newport, Tennessee, for the appellant, Danny
Williamson.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and James Bruce Dunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Danny Williamson, pled guilty in the Cocke County
Criminal Court to possession of a Schedule VI controlled substance
with intent to sell, a Class D felony.  Pursuant to the plea
agreement, the defendant received a two-year sentence as a Range I,
standard offender with the manner of service to be determined by the
trial court.  After a sentencing hearing, the trial court held that
the need for deterrence warranted the defendant's serving his entire
sentence in confinement.  The defendant appeals, claiming that the
trial court erred by denying his request for full probation.  We
affirm the defendant's sentence but remand the case for entry of a
corrected judgment.

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

JIMMY WAYNE WILSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

E. Lynn Dougherty, Bristol, Tennessee, for the appellant, Jimmy Wayne
Wilson.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman,
Assistant Attorney General; Greeley Wells, District Attorney General;
and William B. Harper, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Jimmy Wayne Wilson, petitioned for post-conviction
relief under the Post- Conviction DNA Analysis Act of 2001, Tenn. Code
Ann. S 40-30-301 et. seq.  The trial court summarily denied relief
upon the State's response that no evidence remained available for
testing.  The Defendant now appeals, asserting that he should have
been afforded a hearing in which to test the veracity of the State's
claim of no remaining evidence.  We affirm the trial court's judgment.

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

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