Opinion Flash

July 28, 2004
Volume 10 — Number 144

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

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


WAYLAND MOSLEY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY

Court:TCA

Attorneys:                          

Francis H. Young, Nashville, Tennessee, for the appellant,
Metropolitan Government of Nashville and Davidson County.

John M. Cannon, Goodlettsville, Tennessee and David L. Cooper,
Nashville, Tennessee, for the appellee, Wayland Mosley.

Judge: CAIN

First Paragraph:

Metropolitan Government of Nashville and Davidson County appeals from
the judgment of the trial court in favor of Plaintiff Mosley, a
motorcycle patrolman, who was seriously injured in an on-duty
motorcycle accident.  Applying comparative fault principles the trial
judge held Metro 75% at fault and Mr. Mosley 25% at fault for his
injuries.  Finding that Plaintiff has failed to establish cause-in-
fact between the alleged defect in the helmet and the injuries to
Plaintiff, we reverse the action of the trial court.

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

VANDERBILT MORTGAGE & FINANCE, INC. v. JOSEPH ROTELLO, ET AL.

Court:TCA

Attorneys:                          

George T. Underwood, Jr., Knoxville, Tennessee, for the Appellants
Joseph and Nina Rotello.

Anthony R. Steele, Knoxville, Tennessee, for the Appellee Vanderbilt
Mortgage & Finance, Inc.

Judge: SWINEY

First Paragraph:

Joseph and Nina Rotello ("Defendants") purchased a mobile home from
Clayton Sevierville and financed the purchase through Vanderbilt
Mortgage & Finance, Inc. ("Plaintiff").  After Defendants defaulted on
the installment contract, Plaintiff filed suit and then filed a
properly supported motion for summary judgment seeking possession of
the mobile home.  Defendants, who were proceeding pro se, filed a
response to the motion for summary judgment, but failed to offer any
competent proof to establish a genuine issue of material fact for
trial.  The Trial Court granted Plaintiff's motion for summary
judgment, and we affirm.

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

STATE OF TENNESSEE v. DAVID SCOTT AKERS

Court:TCCA

Attorneys:                          

John W. Palmer and Jason L. Hudson, Dyersburg, Tennessee, (on appeal);
and H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee,
(at trial),  Attorneys for the Appellant, David Scott Akers.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; C.
Phillip Bivens, District Attorney General; and Charles Dyer, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, David Scott Akers, was indicted for the crimes of
robbery and attempted robbery and, following a jury trial, was
convicted of theft under $500 and attempted robbery.  The trial court
consolidated the sentencing hearing for these convictions with Akers'
two pending probation revocation hearings.  Following this hearing,
Akers received an effective ten-year sentence for his two jury
convictions and two one-year sentences from the revocation of his
sentences for violation of the Motor Vehicle Habitual Offender (MVHO)
Act.  On appeal, Akers raises three issues for our review: (1) whether
the trial court erred in admitting Akers' three prior MVHO convictions
for impeachment purposes; (2) whether he was denied the effective
assistance of counsel at trial and at sentencing; and (3) whether the
trial court erred in conducting the revocation hearing without proper
notice.  Finding no error, the judgments of the Dyer County Circuit
Court are affirmed.

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

MICHAEL DOUGLAS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lance R. Chism, Memphis, Tennessee, Attorney for Appellant, Michael
Douglas.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Lee
Coffee, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Michael Douglas,  appeals as of right from the judgment
of the Shelby County Criminal Court denying his petition for
post-conviction relief.  Douglas was convicted in 2000 of attempted
second degree murder and especially aggravated robbery.  On appeal,
Douglas contends that he was denied the effective assistance of
counsel due to trial counsel's (1) failure to seek  suppression of a
photo array because the photograph used was obtained following an
unlawful arrest and (2) failure to adequately cross-examine a witness
as to whether an agreement existed between the witness and the State. 
After review of the issues presented, the judgment is affirmed.

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

WILLIAM HACKWORTH  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Anne M. Davenport, Nashville, Tennessee, for the appellant, William
Hackworth.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; and Dan Hamm, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, William Hackworth, pled guilty to four counts of incest
and received an effective twelve- year sentence as a Range I offender.
 Petitioner filed a pro se petition for post-conviction relief,
alleging, in part, that his trial counsel was ineffective for failing
to seek DNA testing in order to establish the paternity of the child
borne of the victim in this case.  The trial court summarily dismissed
the petition, finding that it was filed outside the one-year statute
of limitations and that Petitioner was not entitled to post-conviction
DNA analysis.  Petitioner appeals the trial court's denial of
post-conviction relief.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. MICHAEL K. MILLER

Court:TCCA

Attorneys:                          

Joseph Ozment and Jesse W. Dalton, III, Memphis, Tennessee, for the
Appellant, Michael K. Miller.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Kevin Rardin, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Aggrieved of the order to serve 90 days of his two-year sexual battery
sentence in confinement, the defendant, Michael K. Miller, appeals. 
We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. BERNARD E. ROLLER, JR.

Court:TCCA

Attorneys:                          

Edward L. Holt, Jr., Murfreesboro, Tennessee, for the appellant,
Bernard E. Roller, Jr.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Gigi Braun, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

Following a jury trial, the appellant, Bernard E. Roller, Jr., was
convicted of driving under the influence.  The trial court sentenced
the appellant to an eleven month, twenty-nine-day sentence and
suspended all of the sentence except for fifteen days, which the
appellant was ordered to serve in the workhouse.  After the denial of
a motion for new trial, the appellant filed a timely notice of appeal
challenging: (1) his sentence as excessive; (2) the trial court's
decision to exclude evidence about the tachograph in the police
officer's car; (3) comments made by the prosecutor during rebuttal
argument; (4) the trial court's failure to take corrective action
following the prosecutor's prejudicial comments; and (5) the trial
court's failure to question the appellant in accordance with Momon v.
State, 18 S.W.3d 152 (Tenn. 1999).  Although we conclude that issues
(1), (2), (3), and (4) are without merit, the record is devoid of
evidence to allow this Court to determine whether the appellant
personally and knowingly waived his right to testify.  Therefore, we
remand the case to the trial court for a hearing to determine whether
the appellant's right to testify was violated, and if so, whether the
violation of the appellant's right to testify was harmless beyond a
reasonable doubt.

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

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