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Today's Opinions: December 17, 2004
Volume 10 — Number 242
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
03 New Opinion(s) from the Tennessee Court of Appeals
14 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


B & B ENTERPRISES OF WILSON CO., LLC, ET AL. v. CITY OF LEBANON, ET
AL.

Court:TCA

Attorneys:                          

Derrick C. Smith, Nashville, Tennessee, for the appellants, City of
Lebanon, City of Lebanon Planning Commission, Patsy Anderson, Ronnie
Kelly, David Cook, Don Fox, Claude Wilson, Joe Holbrook, Nick Locke,
Jan Mangrum, Joe Hayes, and Johnnie Peyton, in their capacity as
members of the Commission.

Jere N. McCulloch, Lebanon, Tennessee, for the appellees, B & B
Enterprises of Wilson Co., LLC, and Hal Bone d/b/a Hal Bone
Enterprises.

Judge: KOCH

First Paragraph:

This appeal arises from a dispute between the City of Lebanon Planning
Commission and real estate developers regarding approval of a proposed
subdivision.  The planning commission approved the plans for the first
phase of this subdivision but then disapproved the plans for the
second and third phases.  The developers filed a petition for writ of
certiorari in the Chancery Court for Wilson County seeking judicial
review of the commission's actions.  The trial court granted the writ
and determined that the planning commission acted arbitrarily and
capriciously by denying approval of the final subdivision plans.  We
affirm the trial court's decision.

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

PAUL MOSS v. TENNESSEE BOARD OF PROBATION AND PAROLE

Court:TCA

Attorneys:                          

Paul C. Moss, Jr., pro se, Nashville, TN

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Pamela S. Lorch, Senior Counsel, Nashville, TN, for
Appellee

Judge: HIGHERS

First Paragraph:

This action arises out of Appellant's parole hearing proceedings. 
Subsequent to his original parole hearing, Appellant filed a petition
for writ of certiorari with the Davidson County Chancery Court.  Upon
Appellant's motion for summary judgment and Appellee's motion to
dismiss, the trial court granted Appellee's motion to dismiss and
denied Appellant's motion for summary judgment.  For the following
reasons, we affirm.

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

BETTY LONORA McMILLIN WHALEN v. DAVID WESLEY WHALEN

Court:TCA

Attorneys:                          

Joe R. Judkins, Wartburg, Tennessee, for the Appellant, David Wesley
Whalen

Browder G. Williams, Harriman, Tennessee, for the Appellee, Betty
Lonora McMillin Whalen

Judge: LEE

First Paragraph:

The issues in this case are whether the trial court's award of alimony
to the wife was excessive because  the husband's income may be
diminished when he retires from his current employment and whether the
trial court's award to wife for her attorney's fees and expenses was
erroneous.  Upon a finding that the time of the husband's retirement
is uncertain and a further finding that the trial court did not abuse
its discretion in awarding the wife attorney's fees and expenses, we
affirm the judgment of the trial court as rendered and remand.

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

STATE OF TENNESSEE v. RICKY GROVER AARON
WITH SEPARATE CONCURRING AND DISSENTING OPINIONS

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:

In June of 2001, the appellant, Ricky Grover Aaron, was convicted by a
jury of especially aggravated sexual exploitation of a minor and false
imprisonment.  As a result of his convictions, the trial court
sentenced the appellant to eleven (11) years for the conviction for
especially aggravated sexual exploitation of a minor and eleven
months, twenty-nine days on his conviction for false imprisonment. 
The trial court further ordered that the appellant's sentences be
served concurrently to each other, but consecutively to a federal
sentence he was already serving.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/aaronrickyg_con.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/aaronrickyg_dis.wpd

JAMES DAVID ALDER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mickey Hall, Winchester, Tennessee, for the appellant, James David
Alder.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Steve Strain, Assistant District Attorney General,  for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, James David Alder, was found guilty by a jury of
aggravated assault, kidnapping, and unlawful possession of a weapon. 
As a result, he received an effective sentence of twenty (20) years as
a multiple offender.  The judgments were affirmed on appeal.  See
State v. James David Alder, No. M2000-01804-CCA-R3-CD, 2001 WL 1285945
(Tenn. Crim. App. at Nashville, Oct. 25, 2001).  In this
post-conviction proceeding, the petitioner alleges that  for various
reasons his trial counsel was ineffective.  For the following reasons,
we affirm the dismissal of the post-conviction petition.

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

STATE OF TENNESSEE v. AMY JO TAYLOR BLANKENSHIP

Court:TCCA

Attorneys:                          

William B. Lockert, III, District Public Defender; Haylee Bradley,
Assistant Public Defender; and Wade Bobo, Assistant Public Defender,
for the appellant, Amy Jo Taylor Blankenship.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Dan Mitchum Alsobrooks,
District Attorney General; and Lisa C. Donegan, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Amy Jo Taylor Blankenship, appealed the trial court's
judgment revoking her probation and ordering her to serve the
remainder of her sentence in confinement.  We affirm the judgment of
the trial court by memorandum opinion pursuant to Rule 20 of the
Tennessee Rules of the Court of Criminal Appeals.

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

STATE OF TENNESSEE v. WILLIAM CARTWRIGHT

Court:TCCA

Attorneys:                          

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, William
Cartwright.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Steven H. Strain, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, William Cartwright, pled guilty to one count of attempt to
manufacture methamphetamine, a Class D felony.  Pursuant to the plea
agreement, Defendant received a sentence of three years as a Range I
standard offender with the manner of service of his sentence to be
determined by the trial court.  After a sentencing hearing, the trial
court ordered Defendant to serve his sentence in confinement. 
Defendant appeals, arguing that the trial court erred in denying him
alternative sentencing.  We affirm the judgment of the trial court.

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

ORLANDO CRENSHAW v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

William J. Eledge, Lawrenceburg, Tennessee, for the appellant, Orlando
Crenshaw.

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

Judge: WADE

First Paragraph:

The petitioner, Orlando Crenshaw, convicted of attempted first degree
murder, appeals the post- conviction court's denial of his petition
for relief.  He asserts that (1) the trial court erred by failing to
provide jury instructions on the appropriate lesser included offenses
and that his counsel was ineffective for failing to raise the issue on
direct appeal; (2) that the trial court erred by failing to comply
with the requirements of Momon v. State, 18 S.W.3d 152 (Tenn. 1999),
and that his trial counsel was ineffective for failing to adequately
prepare him to testify at trial; (3) that the state failed to prove
that the offense occurred before the return of the indictment; (4)
that the state engaged in prosecutorial misconduct by using false
statements to secure the indictment and soliciting false testimony at
trial; (5) that the trial court erred by providing a misleading jury
instruction on the issue of criminal responsibility and that his
counsel was ineffective for failing to present the issue as a ground
for relief on direct appeal; (6) that the trial court erred by failing
to provide a limiting instruction with regard to certain of the
evidence; (7) that he was denied the right to a fair trial because the
same jury pool used in the trial of his co-defendant was used for his
trial and that his counsel was ineffective for failing to object to
the jury pool; (8) that he was denied the right to a fair trial
because of a violation of Brady v. Maryland, 373 U.S. 83 (1963); and
(9) that the state denied his right to a fair trial by utilizing
mutually exclusive theories in his trial and that of his co-defendant.
 For the reasons set forth in this opinion, the judgment of the
post-conviction court is reversed, the conviction is set aside, and
the cause is remanded for a new trial.

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

STATE OF TENNESSEE v. ROSE MARIE HERNANDEZ

Court:TCCA

Attorneys:                          

Andrew J. Dearing, III, Shelbyville, Tennessee, for the appellant,
Rose Marie Hernandez.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; W. Michael McCown, District Attorney
General; and Michael Randles, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Rose Marie Hernandez, pled guilty to seventy counts of
forgery, a Class E felony, which the trial court merged into
thirty-five convictions of forgery, and the trial court sentenced her
as a Range III, persistent offender to five years and six months for
each conviction.  The trial court ordered some of the sentences to run
concurrently and others to run consecutively for an effective sentence
of thirty-three years and six months in the Department of Correction. 
The defendant appeals, claiming the trial court erred in applying
certain enhancement factors in violation of the rule announced in
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and in
denying alternative sentencing.  Although we conclude that the
sentencing procedure violated the rule announced in Blakely, we hold
it to be harmless beyond a reasonable doubt.  We affirm the judgments
of the trial court.

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

STATE OF TENNESSEE v. CHARLES JACKSON, JR

Court:TCCA

Attorneys:                          

Larry B. Felts, Nashville, Tennessee, for the appellant, Charles
Jackson, Jr.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Dent Morriss, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Charles Jackson, Jr., entered a plea of guilty to
possession of cocaine of over 0.5 grams with intent to sell, a Class C
felony.  The trial court imposed the recommended sentence of eight
years as a Range II multiple offender.  As a part of the plea
agreement, Defendant reserved two certified questions of law under
Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure arguing
that the trial court erred in not suppressing items found during a
search of his vehicle.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. DARIUS JONES

Court:TCCA

Attorneys:                          

Larry Copeland (at trial), Paul Guibao (at trial), and Michael E.
Scholl (on appeal and at trial), Memphis, Tennessee, for the
appellant, Darius Jones.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; and Karen Cook-Twele, Mike Davis, and Tom Hoover,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Darius Jones, was convicted of one count of felony
murder, four counts of aggravated robbery, three counts of attempted
especially aggravated robbery, two counts of attempted aggravated
robbery, and one count of aggravated burglary.  The trial court
ordered consecutive sentences of life with the possibility of parole
for the felony murder, ten years for each of the aggravated robberies
and attempted especially aggravated robberies, and four years for each
of the attempted aggravated robberies and the aggravated burglary, for
an effective sentence of life plus eighty-one years.   In this appeal
of right, the defendant argues that the evidence was insufficient,
that the trial court erred by admitting photographs of the crime
scene, that the trial court erred by limiting the defense
cross-examination of a homicide detective, that the trial court erred
by admitting the videotaped preliminary hearing testimony of one of
the victims, that the trial court erred in its instructions to the
jury, that the sentence was excessive, and that cumulative error
requires reversal.  The conviction for felony murder and sentence of
life with the possibility of parole are affirmed.  The remaining
judgments of conviction are affirmed, but the causes are remanded for
resentencing.

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

STATE OF TENNESSEE v. JEFFERY D. RHOADES

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Jim W.
Horner, District Public Defender; and H. Tod Taylor, Assistant
District Public Defender (at trial), for the Appellant, Jeffery D.
Rhoades.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; and C. Phillip Bivens, District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Jeffery D. Rhoades, appeals from the Dyer County
Circuit Court's 2004 revocation of his 1996 sentences for burglary and
theft. We affirm the revocation of probation and the ordering of
confinement for the balance of the original effective sentence, but we
modify the provisions for sentence credits and remand.

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

STATE OF TENNESSEE v. LARRY E. SHANNON

Court:TCCA

Attorneys:                          

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Larry
E. Shannon.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; Thomas F. Jackson, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Larry E. Shannon, appeals the trial court's order
extending his probation by an additional eighteen months.  He contends
that the trial court lacked jurisdiction because his sentence expired
before the probation revocation warrant was issued.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. HOWARD LAVELLE TATE

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the appellant, Howard
Lavelle Tate.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Pamela Anderson, Assistant District Attorney General, 
for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The Defendant, Howard Lavelle Tate, was pulled over by a Metropolitan
Police Officer in Nashville, Tennessee for violating the noise
ordinance.  The officer asked the Defendant for consent to search the
Defendant's person and the Defendant's vehicle.  The Defendant replied
"whatever" to both these requests.  The officer found scales with a
white powder residue in the Defendant's vehicle.  The Defendant then
fled the officer.  The officer and a second officer caught the
Defendant who then told the officers that they could find the drugs in
his pants leg.  The officers retrieved the drugs and placed the
Defendant under arrest.  The Defendant filed a motion to suppress the
evidence found as a result of the warrantless searches.  The trial
court denied this motion.  The Defendant pled guilty to possession of
over .5 grams of cocaine, a Class B felony, but reserved a certified
question concerning whether the warrantless searches fell within an
exception to the warrant requirement.  The Defendant now appeals on
the basis of the certified question.  We find that the searches fell
within an exception to the warrant requirement and affirm the judgment
of the trial court.

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

JAMES W. TAYLOR aka LUTFI S. TALAL v. WAYNE BRANDON, WARDEN

Court:TCCA

Attorneys:                          

James William Taylor aka Lutfi S. Talal, pro se, for the appellant.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Ronald L. Davis, District Attorney
General; J. Michael Fahey, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, James W. Taylor (aka Lutfi S. Talal), filed a petition
for writ of habeas corpus seeking relief from an allegedly void
judgment, which the trial court dismissed.  The Petitioner now appeals
contending that the trial court erred when it dismissed his petition
because: (1) his presentments were fatally defective which deprived
the trial court of proper jurisdiction; (2) the trial judge violated
his constitutional rights; (3) the trial court erred when it ordered
that the Petitioner's sentences run consecutively; (4) the trial court
erred when it found that the Petitioner was a Range II offender; (5)
the trial court erred when it approved an illegal judgment of
conviction; and (6) the habeas corpus court erred when it denied the
Petitioner a right to respond to the State.  Finding no error in the
judgment of the trial court, we affirm the trial court's dismissal of
the Petitioner's petition for habeas corpus relief.

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

KEVIN TAYLOR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kevin Taylor, Only, Tennessee, Pro Se.

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

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the trial court's denial of his petition for
writ of error coram nobis.  Particularly, he avers that the court
abused its discretion in summarily dismissing his petition solely on
the lack of credibility of the affiant supporting the petition.  We
remand the matter to the trial court for an evidentiary hearing.

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

STATE OF TENNESSEE v. JIMMY ALBERT WARREN

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; and Walt Freeland and Colin Campbell,
Assistant District Attorneys General, for the appellant, State of
Tennessee.

Kim E. Linville, Covington, Tennessee, for the appellee, Jimmy Albert
Warren

Judge: WADE

First Paragraph:

The defendant, Jimmy Albert Warren, indicted for second offense
driving under the influence and DUI per se, filed a pre-trial motion
to suppress all evidence.  The trial court granted the motion in part
and denied it in part, holding that the field sobriety tests and the
statements made by the defendant prior to his arrest were admissible,
but that the blood alcohol content test results were not.  In this
interlocutory appeal initiated by the state, each party claims that
the trial court erred.  The judgment of the trial court is affirmed.

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

Lights on Motor Vehicles

Date: December 15, 2004

Opinion Number: 04-170

http://www.tba.org/tba_files/AG/2004/op170.pdf

Authority to Divide Judicial District

Date: December 15, 2004

Opinion Number: 041-171

http://www.tba.org/tba_files/AG/2004/op171.pdf

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