Opinion Flash

July 8, 2004
Volume 10 — Number 130

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
02 New Opinion(s) from the Tennessee Court of Appeals
05 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

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.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

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


CHRISTY JOHNSON, ET AL. v. DUNCAN E. RAGSDALE

Court:TCA

Attorneys:                          

David Burlison, Memphis, TN; John J. Allan, St. Louis, MO, for
Appellants

David M. Cook, Virginia M. Patterson, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves the dismissal of Appellant's legal malpractice
claim against Appellee on the basis that Appellee, after the initial
dismissal of Appellant's medical malpractice claim, failed to file a
lawsuit before the statutory period for refiling expired.  The General
Sessions Court of Shelby County entered a judgment for Appellee. 
Appellant subsequently appealed this decision to the Circuit Court of
Shelby County, which dismissed Appellant's cause for lack of
jurisdiction.  We reverse the circuit court's decision and remand for
further proceedings.

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

SAM SPICER, ET AL. v. STACE THOMPSON, ET AL.

Court:TCA

Attorneys:                          

James Douglas Kay, Matthew Brothers, Tom Price Thompson, III,
Nashville, Tennessee, for the appellees, cross-appellants, Sam Spicer
and wife, Karen Spicer.

Gregory Hall Oakley, Nashville, Tennessee, for the appellant, Don
Pickard and, cross-appellees, Don Pickard, Stace Thompson and Howard
Morris.

Judge: CAIN

First Paragraph:

Appellant Don Pickard appeals the action of the trial court finding
that he defamed Sergeant Sam Spicer in public statements to the news
media.  Spicer cross appeals from the action of the trial court in
dismissing his malicious prosecution action against Don Pickard, Stace
Thompson and Howard Morris.  We affirm the action of the trial court
in the defamation case and affirm the action of the trial court in the
malicious prosecution case as to Howard Morris.  The malicious
prosecution case against Don Pickard and Stace Thompson is affirmed in
part and reversed in part.  The case is remanded to the trial court
for further proceedings.

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

STATE OF TENNESSEE v. RICKY GROVER AARON

Court:TCCA

Attorneys:                          

Jeffrey DeVasher, Assistant Public Defender, Nashville, Tennessee, for
the appellant, Ricky Grover Aaron.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; Victor S. Johnson , District Attorney General; Brian
Holmgren and Lisa Naylor, Assistant Districts Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On October 28, 1999, the defendant, Ricky Grover Aaron, was indicted
by the Davidson County Grand Jury for especially aggravated sexual
exploitation of a minor and especially aggravated kidnapping. 
Following a jury trial in June of 2001, the defendant was convicted of
especially aggravated sexual exploitation of a minor and false
imprisonment.  The trial court sentenced the defendant to eleven years
for especially aggravated sexual exploitation of a minor and eleven
months, twenty-nine days for false imprisonment.  The sentences were
to run concurrently to each other and consecutively to a federal
sentence the defendant was serving at the time of trial.  The
defendant argues eight issues on appeal:(1) whether the trial court
erred in denying the defendant's motion to dismiss due to unnecessary
delay; (2) whether the trial court erred in denying the defendant's
pretrial motion to suppress his alleged admissions to police because
the defendant was subjected to custodial interrogation without having
been given Miranda warnings; (3) whether the trial court erred in
denying the defendant's motion to suppress a handgun seized by police
from his vehicle; (4) whether the evidence in the record is sufficient
to support a finding by a rational trier of fact that the defendant is
guilty beyond a reasonable doubt of especially aggravated sexual
exploitation of a minor and false imprisonment; (5) whether the trial
court erred in admitting alleged hearsay testimony related to the
alleged victim's mother's response to her daughter's characterization
of the defendant as a "pervert"; (6) whether the trial court erred in
admitting evidence that another person had been convicted of a sexual
offense involving the alleged victim in an unrelated case; (7) whether
the trial court erred in failing to declare a mistrial when the
prosecutor, in direct violation of the trial court's pretrial ruling,
elicited testimony from a police detective that the defendant admitted
having child pornography on his computer; and (8) whether the trial
court erred in imposing an excessive sentence for the defendant's
conviction for especially aggravated sexual exploitation of a minor,
and did the court further err in ordering that the sentences in this
case be served consecutively to the defendant's federal sentence.  We
affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. ROGER DALE BRYAN

Court:TCCA

Attorneys:                          

Merrilyn Feirman, Nashville, Tennessee; Michael Collins & Curtis Gann,
Assistant Public Defenders, Shelbyville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth T. Ryan, Senior Counsel; W. Michael
McCown, District Attorney General; and Michael Randles, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Roger Dale Bryan, was convicted of driving under the
influence (DUI), fourth offense, and driving on a revoked license,
third offense, by a Bedford County jury.  The verdict returned by the
jury found Bryan guilty of both driving and being in physical control
while under the influence.  On appeal, Bryan challenges the legal
sufficiency of the proof supporting each basis for conviction.  After
review of the record, we find the evidence sufficient for both and
affirm the judgments of conviction, which were merged into a single
conviction for DUI.

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

STATE OF TENNESSEE v. BRYAN K. MILLER

Court:TCCA

Attorneys:                          

David McGovern, Assistant Public Defender, Jasper, Tennessee, for the
Appellant, Bryan K. Miller.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Michelle R. Chapman, Assistant Attorney General; J.
Michael Taylor, District Attorney General; and Steven M. Blount,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Bryan K. Miller, appeals his conviction for driving
under the influence (DUI), fourth offense.  On appeal, Miller raises
the single issue of whether the evidence was sufficient to support his
conviction.  Finding the evidence legally sufficient, the judgment is
affirmed.

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

SKYLA SEPEDA SMITH v. CHERRY LINDAMOOD, WARDEN, and STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

John C. Ford, Nashville, Tennessee, for the appellant, Skyla Sepeda
Smith.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Kathy Morante, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Skyla Sepeda Smith, filed a petition for habeas corpus
relief in the Davidson County Criminal Court.  In the petition she
alleged that the conviction she received after pleading guilty to one
count aggravated child abuse is illegal and void because a conflict
between the guilty plea and the judgment effectively resulted in an
illegal sentence.  The Davidson County Criminal Court dismissed the
petition.  Because the petitioner does not present a cognizable claim
for habeas corpus relief, we affirm the dismissal of the petition.

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

ROGER LEE WILSON  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David A. Stuart, Clinton, Tennessee, for the appellant, Roger Lee
Wilson.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; James N. Ramsey, District Attorney
General; and Jan Hicks, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Roger Lee Wilson, was indicted by the Anderson County
Grand Jury on 28 counts, including charges of child rape, aggravated
sexual battery, and statutory rape, and against multiple victims.  The
trial court severed the counts, and count five was the only count to
be tried by a jury.  The jury found Petitioner guilty of the charged
offense of rape of a child.  Following the jury trial, Petitioner
entered "best interest" guilty pleas to several other counts, and the
remaining counts were dismissed by nolle prosequi.  Pursuant to the
negotiated plea agreement, Petitioner waived his right to a direct
appeal from his conviction and sentence in count five.  For all of his
convictions, Petitioner received an effective sentence of 22 years. 
Petitioner filed a petition for post-conviction relief, alleging that
his trial counsel was ineffective.  Specifically, Petitioner argues
that trial counsel was ineffective for failing to raise as an issue at
trial that there was a fatal variance between the indictment and the
proof; failing to call Hubert Wallace, Art Moore, and Dwayne Wilson as
witnesses at trial; and requesting to reserve his opening statement
until after the close of the State's proof.  Petitioner also argues
that his counsel who withdrew from representation prior to trial was
ineffective for misplacing evidence.  Finally, Petitioner argues that
his guilty pleas were not knowingly and voluntarily entered, and that
the waiver of his right to appeal is not valid.  The trial court
denied post-conviction relief and Petitioner appeals.  After reviewing
the record, we affirm the judgment of the trial court.

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

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2004 Tennessee Bar Association