Opinion Flash

July 16, 2004
Volume 10 — Number xxx

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):
01 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
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


STATE OF TENNESSEE v. GREGORY PIERCE 

Court:TSC

Attorneys:                          

Steve McEwen, Mountain City, Tennessee, and Terry L. Jordan,
Blountville, Tennessee, for the appellant, Gregory Pierce.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kathy D. Aslinger, Assistant Attorney General; Al
C. Schmutzer, Jr., District Attorney General, and James Goodwin,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: DROWOTA

First Paragraph:

We granted permission to appeal in this case to determine whether the
trial court erred in considering the results of the defendant sex
offender's polygraph examination when denying the defendant's request
for probation.  The polygraph examination was administered as part of
the risk assessment report that is mandated by statute for all sex
offenders seeking probation.  Because polygraph examinations are
inherently unreliable, we hold that trial courts may not consider
polygraph examination results or any portion of a risk assessment
report that relies upon polygraph examination results when imposing
sentences.  However, even excluding the polygraph examination results,
the record in this case supports the denial of probation. 
Accordingly, the judgment of the Court of Criminal Appeals is affirmed
in part and modified in part.

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

T. GREEN, ET AL. v. CITY OF MEMPHIS, ET AL.

Court:TCA

Attorneys:                          

Thomas E. Hansom of Memphis for Appellants, J. Mack, R. Burton, D.
Parker, and V. NcNeil

Kathleen L. Caldwell of Memphis for Appellants, G. Bennett, L. Bennett
and W. Taylor

Louis P. Britt, Thomas J. Walsh, Jr. and Mary H. Beard of Memphis for
Appellees, City of Memphis and Memphis Police Services Division

Judge: CRAWFORD

First Paragraph:

Plaintiffs, police officers along with a number of others, were
promoted to sergeant after passing a promotional test.  Subsequently,
the test was declared invalid by the federal court and the city
announced its intention to restore the affected officers to their
previous rank pending the administration of a new promotional test. 
Plaintiffs, along with others, filed suit in chancery court to enjoin
this action on the part of the city.  The chancery court issued a
temporary injunction, enjoining the city from removing plaintiffs from
their rank of sergeant or from reducing their pay pending final
judgment.  The chancellor clarified the injunction by order which
provided that the injunction would be in effect only "until such time
as promotions are made from the 2001 sergeant promotional process." 
Of the fifty-four plaintiffs in the chancery court taking the new
promotional test, the seven plaintiffs-appellants did not rank high
enough for promotion.  On motion of the city, the chancery court
dissolved the preliminary injunction previously issued and, by consent
order, allowed the plaintiffs full credit of time served as sergeant
as a result of the first promotional process.  Plaintiffs have
appealed.  We affirm.

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

DELORES M. KING v. TENNESSEE FARMERS INSURANCE COMPANY, ET AL.

Court:TCA

Attorneys:                          

Carthel L. Smith, Jr., Lexington, TN for Appellants

James R. Krenis, Jackson, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves payment of an insurance claim demanded by Appellee
from Appellant after Appellee's belongings were destroyed in a fire. 
Appellant refused payment on the basis that Appellee failed to notify
Appellant of an address change.  After a hearing, the trial court
awarded Appellee $32,000, representing her claim under the insurance
policy, and $8,000 as a 25% bad faith penalty.  For the following
reasons, we affirm in part and vacate the award representing a bad
faith penalty.

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

STATE OF TENNESSEE v. MARTY WILLIAM THOMAS

Court:TCCA

Attorneys:                          

Mike A. Little, Chattanooga, Tennessee, for the appellant, Marty
William Thomas.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William H. Cox, District Attorney General;
and Barry A. Steelman, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Marty William Thomas, was convicted by a jury in the
Hamilton County Criminal Court of four counts of aggravated rape and
one count of aggravated burglary.  Following a hearing, the trial
court sentenced the appellant to an effective sentence of fifty-four
years incarceration in the Tennessee Department of Correction.  On
appeal, the appellant claims that the trial court erred by (1)
admitting into evidence three photographs of the appellant taken on
different dates; (2) replaying only the direct testimony of the victim
for the jury during deliberation; and (3) denying the appellant's
motion for a mistrial on the ground that the jury was prejudiced by
media reports.  Upon review of the record and the parties' briefs, we
affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JOEY DEWAYNE THOMPSON

Court:TCCA

Attorneys:                          

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Joey Dewayne
Thompson.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Phillip H. Morton, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Joey Dewayne Thompson, appeals as of right from his
convictions by a jury in the Knox County Criminal Court for second
degree murder, a Class A felony, and attempted second degree murder, a
Class B felony.  The trial court sentenced him to twenty-five years
for the second degree murder and twelve years for the attempted second
degree murder, to be served consecutively in the Department of
Correction.  The defendant contends that: (1) the evidence is
insufficient to support the convictions; (2) the trial court erred by
allowing the state to amend the indictment to include a count for
first degree felony murder; (3) the trial court erred by admitting a
9-1-1 tape; (4) the trial court erred by allowing reference to the
defendant's nickname, "Joe Thug"; (5) the trial court erred by
allowing the state to cross-examine the defendant on a robbery charge
that had been dismissed; (6) prosecutorial misconduct requires a new
trial; (7) the trial court erred in its instructions to the jury
regarding "knowing"; and (8) the trial court erred in giving him
excessive and consecutive sentences.  We conclude that the trial court
committed reversible error in its instructions to the jury regarding
"knowing."  Accordingly, we reverse the judgments of the trial court
and remand the case for a new trial.

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

Nepotism Act as Applied to State Park Employees

Date: July 12, 2004

Opinion Number: 04-113                        

http://www.tba.org/tba_files/AG/2004/op113.pdf

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