Opinion Flash

September 30, 2004
Volume 10 — Number 189

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
05 New Opinion(s) from the Tennessee Court of Appeals
08 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


JOHN E. ALLEN v. QUENTON T. WHITE, ET AL.

Court:TCA

Attorneys:                          

John E. Allen, Tiptonville, TN, pro se

Paul G. Summers, Attorney General & Reporter, Michael E. Moore,
Solicitor General, Jennifer L. Brenner, Assistant Attorney General,
Nashville, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This appeal concerns the dismissal of a common law writ of certiorari
by the Circuit Court of Lake County.  Appellant, an inmate in the
custody of the Tennessee Department of Correction, filed a pro se
Petition for Writ of Certiorari to challenge the results of a prison
disciplinary proceeding instituted against him.  The trial court
granted Appellee's motion to dismiss the petition as untimely filed in
violation of the applicable statute of limitations.  For the reasons
stated below, we affirm the decision of the trial court.

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

SHIRLEY PATRICIA GILLIAM, Mother and next of kin of LaSHUN HALL,
Decedent V. MICHAEL G. DERRICK, Administrator Ad Litem for the Estate
of SANTRES A. JOHNSON, Decedent

Court:TCA

Attorneys:                          

Walter Bailey, Jr., Memphis, Tennessee, for the appellant, Shirley
Patricia Gilliam, Mother and next of kin of LaShun Hall, decedent.

Edward M. Hurley, Jr., and Kimberly Schuerman, Memphis, Tennessee, for
the appellee, Michael G. Derrick, Administrator Ad Litem for the
Estate of Santres A. Johnson.

Judge: KIRBY

First Paragraph:

This is a wrongful death action.  The plaintiff's decedent was riding
as a passenger in a car driven by the defendant's decedent.  The car
collided at a high rate of speed into the guard rail of a bridge. 
Both the driver and the passenger died in the accident.  It was later
determined that the driver was intoxicated, but that the passenger had
not been drinking.  The plaintiff, the mother of the passenger, filed
this wrongful death action against the estate of the driver, alleging
that the driver's negligent conduct caused the death of her son. 
After a jury trial, the jury returned a verdict in favor of the
defendant.  The jury concluded that the passenger was 50% at fault for
his demise, because the passenger knew or should have known that the
driver was intoxicated when he got into the car.  The plaintiff now
appeals.  We reverse, finding no material evidence to support the
jury's conclusion that the passenger knew or should have known that
the driver was intoxicated.

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

DOLORES E. McNABB v. CHERYL L. GRAY, ET AL.

Court:TCA

Attorneys:                          

D. Mitchell Bryant, Cleveland, Tennessee, for the appellants, Cheryl
L. Gray and Joseph R. Evans, III.

Valerie A. Chastain, Athens, Tennessee, for the appellees, Dolores E.
McNabb and Cynthia Brock.

Judge: SUSANO

First Paragraph:

In these consolidated cases , the basic issue for resolution is
whether a warranty deed from Dolores E. McNabb ("the Grantor") to
Cheryl L. Gray and Joseph R. Evans, III ("the Grantees"), should be
set aside.  The trial court set the deed aside.  The Grantees appeal. 
We affirm.

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

SHARI PARKER MORROW, ET AL. v. FAY A. JONES

Court:TCA

Attorneys:                          

Margaret Barr-Myers and Susan L. Ratner, Memphis, Tennessee, and
Norris A. Kessler, II, Winchester, Tennessee, for the Appellant, Shari
Parker Morrow.

Patricia A. Odell, Memphis, Tennessee, for the Appellee, Estate of Fay
A. Jones.

Judge: FARMER

First Paragraph:

Plaintiff/Buyer brought a cause of action alleging breach of a real
estate contract and seeking specific performance.  The trial court
entered judgment for Defendant/Seller.  We affirm in part, modify in
part, and remand.

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

ROSETTA WILLIS v. MIKE SETTLE, ET AL

Court:TCA

Attorneys:                          

James I. Pentecost and William B. Mauldin of Jackson for Appellant,
Corrections Corporation of America

David W. Camp of Jackson for Appellee, Rosetta Willis

Judge: CRAWFORD

First Paragraph:

This is an appeal from a judgment entered on a jury verdict for
Plaintiff/Appellee.  Plaintiff/Appellee was taken hostage by a
prisoner who escaped from the control and custody of
Defendant/Appellant, a private corporation contracting with the State
of Tennessee to provide prison security.  Defendant/Appellant asserts
that it is entitled to immunity under the Public Duty Doctrine, that
there was no material evidence on which the jury could have based its
verdict, that the award of compensatory damages was excessive and not
supported by the evidence, that Defendant/Appellant cannot be held
responsible for the actions of its employees under the doctrine of
respondeat superior, and that the trial court erred in not granting a
mistrial.  We affirm.

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

STATE OF TENNESSEE  v.  FRANKLIN D. BROOKS

Court:TCCA

Attorneys:                          

Ross E. Alerman, District Public Defender; William J. Steed (on
appeal), Assistant Public Defender; and Paul Seusy (at trial),
Assistant Public Defender, for the Appellant, Franklin D. Brooks.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret Gunn, Assistant District Attorney General, for the
Appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Franklin D. Brooks, was indicted by the Davidson County
Grand Jury for burglary, theft, and vandalism.  Following a jury
trial, Defendant was convicted of burglary, a Class D felony. 
Following a sentencing hearing, Defendant was sentenced as a Range II
offender to serve seven years on community corrections.  As a
condition of his sentence, Defendant was ordered to complete the
Lifelines program while incarcerated.  Defendant appeals his sentence.
 We conclude that the trial court erred by sentencing Defendant to
serve more than one year of his sentence of split confinement  in
continuous confinement.  We also conclude that Defendant is entitled
to receive credit for time served in confinement.  Accordingly, we
remand this case for entry of an Amended Judgment to allow credit for
time served in confinement, and we modify the sentence, and order that
Defendant be released from custody and placed on community corrections
to serve the remainder of his sentence.

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

STATE OF TENNESSEE v. LAMONT E. HAYES

Court:TCCA

Attorneys:                          

John H. Henderson, District Public Defender; and Douglas P. Nanney,
Assistant District Public Defender, for the appellant, Lamont E.
Hayes.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; Mary Katharine White, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Lamont E. Hayes, was indicted on twenty counts of forgery,
attempted forgery, theft over $1,000, theft over $500, and fraudulent
use of a credit card.  Following a jury trial, Defendant was convicted
of the following offenses: Count 1, theft of property over $1,000, a
Class D felony; Count 2, fraudulent use of a credit card, a Class A
misdemeanor; Counts 3, 7, 8, and 16, forgery, a Class E felony; Counts
4, 5, 10, 13, 14, 17, and 18, the lesser included offense of
facilitation of a forgery, a Class A misdemeanor; and Count 12, theft
of property under $500, a Class A misdemeanor.  The jury found
Defendant not guilty of Count 19, attempted forgery, a Class A
misdemeanor.  The State requested, and was granted, a nolle prosequi
as to Counts 6, 9, 11, 15, and 20.  Following a sentencing hearing the
trial court sentenced Defendant as a Range I, standard offender, to
four years for Count 1, theft of property over $1,000, and two years
for each forgery conviction in Counts 3, 7, 8, and 16.  The trial
court sentenced Defendant to eleven months twenty- nine days for each
misdemeanor conviction.  The trial court ordered the felony sentences
to be served consecutively, and the misdemeanor sentences to be served
concurrently with each other and consecutively to the felony
sentences, for an effective sentence of twelve years, eleven months,
and twenty-nine days. On appeal, Defendant argues that the evidence is
insufficient to support his convictions and that the trial court erred
in determining the length of Defendant's sentence and imposing
consecutive sentencing. Based on a review of the record, we conclude
that the trial court improperly applied enhancement factor (5) in
determining the length of Defendant's sentences.  Based upon our de
novo review, we modify the trial court's judgment to reduce
Defendant's sentence for theft of property over $1,000 by one year to
a sentence of three years.  The trial court's judgment is affirmed in
all other respects.

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

STATE OF TENNESSEE v. KEVIN MAGNESS

Court:TCCA

Attorneys:                          

Steven R. Roller, McMinnville, Tennessee, and Donald Capparella,
Nashville, Tennessee, for the appellant, Kevin Magness.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Clement Dale Potter, District
Attorney General; and Larry G. Bryant, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Warren County Circuit Court jury convicted the defendant, Kevin
Magness, of manufacturing more than one hundred grams of
methamphetamine, a Class B felony, and the trial court sentenced him
as a Range I, standard offender to eight years in confinement.  The
defendant appeals, claiming that (1) the evidence is insufficient to
support his conviction, and (2) the trial court erred by allowing into
evidence the manner by which the state calculated the weight of the
substance containing methamphetamine.  We hold that the evidence is
sufficient to show felonious manufacturing but that an incorrect
standard was used to calculate the weight of the controlled substance.
 We modify the defendant's conviction to reflect a conviction for a
Class C felony, and we remand the case to the trial court for
resentencing.

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

STATE OF TENNESSEE v. JIMMY M. McCRARY, JR.

Court:TCCA

Attorneys:                          

Matthew Mayo, Nashville, Tennessee, (on appeal) and William Kennerly
Burger, Murfreesboro, Tennessee, (at trial) for the appellant, Jimmy
M. McCrary, Jr.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William C. Whitesell, Jr.,
District Attorney General; and J. Paul Newman, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Jimmy M. McCrary, Jr., pled guilty to the following charges
without a recommendation from the State as to sentencing:  two counts
of sale of .5 grams or more of cocaine in Case No. F53183A; one count
of possession of .5 grams or more of cocaine with the intent to sell
in Case No. F53594A; one count of sale of .5 grams or more of cocaine
in Case No. F53916.  Defendant also waived the presentment of  Case
No. F54156 to the Rutherford County grand jury and pled guilty to one
count of sale of .5 grams or more of cocaine upon a criminal
information.  See Tenn. Code Ann. S 40-3-103.  Each of the charged
offenses is a Class B felony.  As part of the plea agreement, the
State agreed to the dismissal of count two of Case No. F53916 and
count three of Case No. F53183A.  Following a sentencing hearing, the
trial court sentenced Defendant to an effective sentence of
twenty-eight years as a Range I, standard offender. Defendant now
appeals the length of his sentences in Case Nos. F53183A and F54156,
and the trial court's order that his sentence in Case No. F54156 run
consecutively to his sentences in Case No. F53183A.  Defendant does
not appeal the trial court's order that his sentences in Case Nos.
F53183A and F54156 run consecutively to his sentences in Case Nos.
F53594 and F53916.  After a careful review of the record in this
matter, we  reverse the trial court's order that Defendant's sentence
in Case No. F54156 run consecutively with his sentences in Case No.
F53183A.  We reverse the trial court's judgment as to sentencing in
Case Nos. F53183A and F54156, and remand for a new sentencing hearing
as to the length of the sentences in these cases.  In all other
aspects, the trial court's judgments are affirmed.

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

STATE OF TENNESSEE v. JIMMY L. MCGLOTHEN

Court:TCCA

Attorneys:                          

B. Jeffery Harmon (at trial and on appeal) and Robert Morgan (at
trial), Jasper, Tennessee, for the appellant, Jimmy L. McGlothen.

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

Judge: OGLE

First Paragraph:

The appellant, Jimmy L. McGlothen, pled guilty in the Sequatchie
County Circuit Court to one count of aggravated sexual exploitation of
a minor.  He received a sentence of six years incarceration in the
Tennessee Department of Correction.  The trial court denied the
appellant any form of alternative sentencing, and the appellant
appeals that denial.  Upon our review of the record and the parties'
briefs, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ERIC DEVON MCLEAN

Court:TCCA

Attorneys:                          

Richard McGee, Nashville, Tennessee (at trial and on appeal), and
James O. Martin, III, Nashville, Tennessee (on appeal), for the
appellant, Eric Devon McLean.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Eric Devon McLean, was found guilty by a jury in the
Marshall County Circuit Court of one count of aggravated assault.  He
received a sentence of five and one-half years in the Tennessee
Department of Correction.  On appeal, the appellant challenges the
sufficiency of the evidence supporting his conviction and raises
various sentencing issues.  Upon our review of the record and the
parties' briefs, we affirm the judgment of the trial court.

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

WILLIAM GLENN WILEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; Victor S. Johnson, III, District Attorney General; and
Lisa A. Naylor, Assistant District Attorney General, for the
appellant, State of Tennessee.

Jodie A. Bell, Nashville, Tennessee, for the appellee, William Glenn
Wiley.

Judge: RILEY

First Paragraph:

The post-conviction court ordered a new trial relating to the
petitioner's felony murder conviction for which he was sentenced to
life without parole, but denied him relief regarding his especially
aggravated robbery conviction.  The state appeals, contending the
post-conviction court erred in granting relief based upon the trial
court's failure to charge second degree murder as a lesser- included
offense of felony murder.  The petitioner cross-appeals, asserting:
(1) he received ineffective assistance of counsel at the trial level;
(2) he is entitled to relief based upon the results of DNA testing;
(3)  the trial court erred in failing to charge intoxication as a
defense; (4) the trial court erred in admitting victim impact evidence
and in failing to properly instruct the jury during the penalty phase;
and (5) the trial court improperly instructed the jury regarding the
prior violent felony aggravating circumstance.  We affirm the judgment
of the post-conviction court.

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

STATE OF TENNESSEE v. MICHAEL YARBROUGH

Court:TCCA

Attorneys:                          

Haylee A. Bradley, Assistant District Public Defender, Ashland City,
Tennessee, for the Appellant, Michael Yarbrough.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
and Lisa Donegan, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Michael Yarbrough, appeals the revocation of his
community corrections sentence by the Humphreys County Circuit Court. 
Yarbrough was initially convicted of class C felony sale of cocaine
and placed in the Community Corrections Program for a term of six
years.  Following a revocation hearing, Yarbrough was found to be in
violation of his behavioral agreement contract, which resulted in the
reinstatement of his sentence with the Department of Correction.  On
appeal, Yarbrough argues that the trial court's ruling was "arbitrary"
and not justified by the evidence.  After review, the judgment of the
trial court is affirmed.

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

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