UNDERSTANDING THE NEW CHILD SUPPORT GUIDELINES
This new TennBarU course will help you learn just what the new Child
Support Guidelines will mean to your clients and your practice. Each
seminar location features presentations by the most knowledgeable
people in the field and will also include two panel discussions
involving local judges and practitioners. Leading the programs will be
Laura Morgan, who literally wrote the book on child support
guidelines, economist Jane Venohr, who designed Tennessee's new Income
Shares Guidelines, and DHS Assistant General Counsel Kim Beals.

Dec. 6 in Memphis
Dec. 7 in Jackson
Dec. 8 in Nashville
Dec. 9 in Chattanooga
Dec. 10 in Knoxville
Dec. 14 in Johnson City

Today's Opinions: November 10, 2004
Volume 10 — Number 217
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.
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
00 New Opinion(s) from the Tennessee Court of Appeals
14 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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.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

MICHAEL BROWN v. STATE OF TENNESSEE, KEVIN MYERS, WARDEN
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

The Appellant, Michael Brown, has filed a petition to rehear in this
case.  The opinion of this Court, affirming the judgment of the trial
court, was filed October 15, 2004.  Upon review of the petition to
rehear, we conclude that it should be denied.

ORDER
http://www.tba.org/tba_files/TCCA/brownmichael_ord.wpd

BRIAN SHANE CALDWELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Richard W. Clark, III, Knoxville, Tennessee, for the appellant, Brian
Shane Caldwell.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Marsha Mitchell, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Brian Shane Caldwell, was convicted by a jury of first
degree felony murder and first degree burglary.  He was sentenced to
concurrent terms of life imprisonment and ten years, respectively. 
The Defendant's convictions and sentences were affirmed on direct
appeal.  See State v. Brian Shane Caldwell, No. 1176, 1988 WL 94393
(Tenn. Crim. App., Knoxville, Sept. 13, 1988).  The Defendant
subsequently filed for post-conviction relief  alleging, inter alia,
that he had received ineffective assistance of counsel at trial. 
After an evidentiary hearing, the trial court denied relief; this
appeal followed.  We affirm the judgment of the trial court.

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

WAYNE DAVIDSON v. RICKY BELL, WARDEN
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

The petitioner, Wayne Davidson, has filed a petition for rehearing
pursuant to Rule 39 of the Tennessee Rules of Appellate Procedure. 
The petitioner raises numerous complaints regarding this court's
opinion affirming the dismissal of his petition for writ of habeas
corpus.  Specifically, he contends that this court incorrectly stated
material facts and erroneously concluded that the Criminal Sentencing
Reform Act of 1982 and the habitual criminal statute did not violate
his constitutional rights.

ORDER
http://www.tba.org/tba_files/TCCA/davidsonwayne_ord.wpd

JAMES DUBOSE v. STATE OF TENNESSEE, KEVIN MYERS, WARDEN
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

The Appellant, James Dubose, has filed a petition to rehear in this
case.  The opinion of this Court, affirming the judgment of the trial
court, was filed October 15, 2004.  Upon review of the petition to
rehear, we conclude that it should be denied.

ORDER
http://www.tba.org/tba_files/TCCA/dubosejames_ord.wpd

JESSE HADDOX v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

R. Claiborne Richards, Jr., Nashville, Tennessee, and Vanessa Potkin,
New York, New York, for the appellant, Jesse Haddox.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger D. Moore, Assistant District Attorney General for
the appellee, State of Tennessee.

Judge: WEDEMEYER
 
First Paragraph:

In 1981, a Davidson County jury convicted the Petitioner, Jesse
Haddox, of second-degree murder,  and the trial court sentenced him to
life in prison.  In 2002, the Petitioner filed a post-conviction
petition requesting DNA  testing pursuant to the Post Conviction DNA
Analysis Act of 2001.  The trial court denied the Petitioner's
post-conviction petition, concluding that the results of any tests of
the remaining DNA evidence would not exonerate the Petitioner.  The
Petitioner now appeals, contending that the trial court erred by
denying his post-conviction petition.  After thoroughly reviewing the
record and the applicable law, we conclude that there exists
reversible error in the trial court's judgment.

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

MARIO HARRIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mario Harris, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Mario Harris, appeals from the order of the trial court
dismissing his petition for post-conviction relief as time-barred. 
The State has filed a motion requesting that this Court affirm the
judgment of the trial court pursuant to Rule 20 of the Rules of the
Court of Criminal Appeals.  We grant the State's motion and affirm the
judgment of the trial court.

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

KENNETH R. LEWIS v. ROBERT WALLER, WARDEN

Court:TCCA

Attorneys:                          

Kenneth R. Lewis, Pro se

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; Kathy Morante, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

In 1991, the Petitioner, Kenneth R. Lewis, pled guilty to second
degree murder, and the trial court sentenced him as a Range I offender
to twenty-five years in prison.  The Petitioner did not perfect a
direct appeal.  In 2003, the Petitioner filed a petition for habeas
corpus relief, which the habeas court summarily dismissed.  The
Petitioner appeals the order dismissing his petition, contending that:
(1) his plea and sentence were illegal; and (2) the habeas court erred
when it dismissed his petition without holding an evidentiary hearing.
 Finding no reversible error, we affirm the habeas court's judgment.

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

STATE OF TENNESSEE v. CARL RAY NIDIFFER

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Robert H. Montgomery, Jr., Assistant District Attorney
General, for the appellant, State of Tennessee.

William J. Byrd, Elizabethton, Tennessee, for the appellee, Carl Ray
Nidiffer.

Judge: TIPTON

First Paragraph:

The Carter County Criminal Court ruled that the state could not
suspend the defendant's driver's license for one year pursuant to
T.C.A. S 55-10-406(a)(3), the implied consent law, because it found he
was not under arrest when he refused to consent to a blood alcohol
test.  The state appeals, claiming that the trial court erred in
holding that the defendant was not under arrest when the officers read
him the implied consent form. We hold the defendant was under arrest,
and we reverse the judgment of the trial court.

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

WADE JAMES ODUM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Wade James Odum, Edgefield, South Carolina, Pro Se.

Paul G. Summers, Attorney General and Reporter; Elizabeth Bingham
Marney, Assistant Attorney General; W. Michale McCown, District
Attorney General; and Ann L. Filer, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Wade James Odum, appeals from the trial court's
dismissal of his petition for error coram nobis relief.  The State has
filed a motion requesting that this Court affirm the trial court's
denial of relief pursuant to Rule 20, Rules of the Court of Criminal
Appeals.  We grant the State's motion and affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. LAWRENCE WARREN PIERCE

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher,
Assistant Public Defender (on appeal); and J. Michael Engle and
Rebecca Warfield, Assistant Public Defenders (at trial), for the
appellant, Lawrence Warren Pierce.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Victor S. Johnson, III, District
Attorney General; and Amy Eisenbeck and Ryan D. Brown, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Lawrence Warren Pierce, was indicted for aggravated
kidnapping and rape,  convicted of the lesser-included offenses of
kidnapping and sexual battery, and sentenced as a Range II, multiple
offender to nine years and three years, respectively, to be served
consecutively.  On appeal, he argues that the evidence is insufficient
to support his convictions; the conviction for kidnapping violates his
due process rights because it was incidental to the sexual battery
offense; and the trial court erred in denying his motion to dismiss
due to the State's destruction of evidence and in imposing excessive
sentences to be served consecutively.  Applying the subsequent
decision of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531
(2004), we reduce the defendant's sentence for kidnapping to eight
years.  In all other respects, the judgments of the trial court are
affirmed.

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

STATE OF TENNESSEE v. RAWSHARD J. SMITH

Court:TCCA

Attorneys:                          

Ardena J. Garth, Public Defender, Chattanooga, Tennessee, for the
appellant, Rawshard J. Smith.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Bill Cox, District Attorney General; and
Mary Sullivan Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Rawshard J. Smith, pled guilty to possessing less than
.5 grams of cocaine.  He was sentenced as a standard Range I offender
to three years on intensive probation.  Following a revocation
hearing, the trial court revoked the Defendant's probation and ordered
him to serve the remainder of his sentence in confinement.  The
Defendant now appeals.  We affirm the judgment of the trial court.

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

JONATHAN D. TEARS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the
appellant, Jonathan D. Tears.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Bernard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Marshall County jury convicted the Petitioner, Jonathan D. Tears, of
multiple drug-related offenses, and the trial court sentenced him to
twelve years.  The Petitioner did not appeal his convictions or
sentence, but filed a pro se petition for post-conviction relief on
the grounds that he was denied effective assistance of counsel. 
Following a hearing on the post-conviction petition, the
post-conviction court dismissed the petition.  On appeal, the
Petitioner contends that he was denied effective assistance of counsel
because: (1) both his trial and appellate counsel failed to properly
advise him about the law regarding his right to file a motion for new
trial; (2) trial and appellate counsel failed to inform the Petitioner
of his right to appointed counsel for appeal; and (3) trial and
appellate counsel failed to fully advise him of his right to appeal
the sentence imposed by the trial court.  After thoroughly reviewing
the record and the applicable law, we conclude that there exists
reversible error in the trial court's judgment.

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

STATE OF TENNESSEE v. TERRELL THOMAS

Court:TCCA

Attorneys:                          

Edward C. Miller, Public Defender, Dandridge, Tennessee, for the
appellant, Terrell Thomas.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Al C. Shmutzer, Jr., District
Attorney General; and James B. Dunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is a direct appeal as of right from two jury verdict drug
convictions of the sale of less than 0.5 grams of cocaine.  The trial
court sentenced the Defendant, Terrell Thomas, to concurrent terms of
six years for each offense.  On appeal, the Defendant argues two
issues: (1) the State failed to provide exculpatory information to the
defense in violation of Brady v. Maryland, 373 U.S. 65 (1963); and,
(2) the trial court erred in not granting the Defendant's motion for
new trial based on newly discovered evidence.  We affirm the judgment
of the trial court.

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

LARRY D. TURNLEY, PRO SE v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Larry Turnley, pro se.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Larry D. Turnley, appeals the trial court's dismissal
of his petition for the writ of habeas corpus, which was treated as a
petition for post- conviction relief by the trial court.  The State
has filed a motion requesting that this Court affirm the trial court's
denial of relief pursuant to Rule 20, Rules of the Court of Criminal
Appeals.  The Petitioner filed his petition outside the statute of
limitations for post-conviction purposes.  Moreover, the petitioner is
incarcerated in a federal prison, and federal prisoners are
specifically excluded from state habeas corpus relief.  Accordingly,
the State's motion is granted, and the judgment of the trial court is
affirmed.

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

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