TennBarU Teleseminar: Changes in Federal Estate Tax and Tennessee
Inheritance Tax Laws & Family Limited Partnerships: Current
Developments in Wealth Preservation
April 26 Teleseminar

Speakers Paul Hayes and Thomas Buckner will examine the current
federal estate tax and Tennessee inheritance tax exemptions and
provide a practical solution to drafting estate plans for married
couples, which allow use of the maximum federal estate tax exemption
without creating a current Tennessee inheritance tax liability. This
course will also briefly discuss the following recent changes to
federal and state estate tax laws: (i) the repeal of the state death
tax credit, (ii) the new state death tax deduction, and (iii) the
effect of other states decoupling their estate tax from the federal
estate tax. Finally, this seminar will discuss the mechanics of this
wealth preservation tool and provide necessary guidance to estate
planners in the wake of the United States Tax Court decision in
Strangi II.

Today's Opinions: January 31, 2005
Volume 11 — Number 019
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.
02 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
09 New Opinion(s) from the Tennessee Court of Criminal Appeals
03 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. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


STATE OF TENNESSEE v. ROBERT FAULKNER
WITH CONCURRING AND DISSENTING IN PART OPINION AND APPENDIX

Court:TSC

Attorneys:                          

Robert C. Brooks, Memphis, Tennessee, for the appellant, Robert
Faulkner.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Phillip Gerald Harris and
Jennifer Nichols, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: HOLDER

First Paragraph:

The defendant, Robert Faulkner, was convicted of the first degree
premeditated murder of his wife, Shirley Faulkner.  The jury imposed a
sentence of death based upon the aggravating circumstance that the
defendant was previously convicted of one or more violent felonies. 
See Tenn. Code Ann. S 39-13-204(i)(2) (1997).  The Court of Criminal
Appeals affirmed.  On automatic appeal under Tennessee Code Annotated
section 39-13-206(a)(1) (2003), we designated the following issues for
oral argument:   1) whether the trial court improperly excluded
testimony at the guilt phase regarding Faulkner's "diminished
capacity"; 2) whether the trial court committed harmful error in its
instructions defining "intentionally" and "knowingly"; 3) whether the
failure of the verdict form to recite that the jury found the
aggravating circumstance "beyond a reasonable doubt" rendered the
verdict invalid; and 4) whether the sentence of death is
disproportionate or invalid under the mandatory review of Tennessee
Code Annotated section 39-13-206(c)(1) (2003).  Having carefully
reviewed these issues and the issue of photographic evidence raised by
Faulkner, we find no merit to his arguments.  Accordingly, we affirm
the judgment of the Court of Criminal Appeals.

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

CONCURRING AND DISSENTING IN PART OPINION
http://www.tba.org/tba_files/TSC/faulknerrobert_con.wpd

APPENDIX
http://www.tba.org/tba_files/TSC/faulknerrobert_apx.wpd

STATE OF TENNESSEE v. KEVIN L. LAWRENCE

Court:TSC

Attorneys:                          

William D. Massey and C. Michael Robbins, Memphis, Tennessee (on
appeal); William D. Massey and Lorna McClusky, Memphis, Tennessee (at
trial), for the appellant, Kevin L. Lawrence.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; Phyllis
Gardner and Jennifer Nichols, Assistant District Attorneys General,
for the appellee, State of Tennessee.

Judge: BIRCH

First Paragraph:

We granted permission to appeal in this case pursuant to Tennessee
Rule of Appellate Procedure 11 to determine whether the trial court
properly denied the defendant's motion to suppress evidence obtained
during the investigation of a shooting death.  To resolve this issue,
we must determine whether the investigators had probable cause to
arrest the defendant and whether the delay in taking him before a
magistrate for a judicial determination of probable cause should
independently require the exclusion of the evidence obtained during
the first few hours of his detention.  Because we are of the opinion
that the officers had probable cause to arrest the defendant, we
conclude that the evidence recovered at the scene was not subject to
suppression.  As to the defendant's claim of "unreasonable delay," it
is obvious that the defendant was not taken before a magistrate for a
judicial determination of probable cause within a constitutionally
reasonable time.  However, the evidence the defendant sought to
suppress was obtained during the first few hours of his arrest.  Thus,
these evidentiary items were not tainted by exploitation of the
constitutional violation and are not, therefore, subject to
suppression.  Accordingly, we affirm the judgment of the Court of
Criminal Appeals.

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

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_013105.wpd

STATE OF TENNESSEE v.  TIMMIE DARRELL BOSTON

Court:TCCA

Attorneys:                          

Emma Rae Tennant (on appeal); and Elizabeth P. Ezell and Amy D.
Harwell (at trial), Nashville, Tennessee, for the appellant, Timmie
Darrell Boston.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Brian Holmgren, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is a direct appeal as of right from convictions on a jury verdict
of rape of a child and assault.  The Defendant, Timmie D. Boston, was
sentenced as a Range I offender to twenty years' imprisonment for the
rape conviction and six months for assault, with the two sentences to
be served concurrently.  The Defendant argues two issues on appeal:
(1) that the evidence was insufficient to find the Defendant guilty of
rape of a child, and (2) that the trial court erred in imposing a
mid-range sentence.  We affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JACKIE SAMUEL FINGER

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee, (on appeal); and Shawn G.
Graham, Assistant District Public Defender, Maryville, Tennessee, (at
trial), for the appellant, Jackie Samuel Finger.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Mike Flynn, District Attorney
General, and Robert Headrick, Assistant District Attorney, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Jackie Samuel Finger, pled guilty to aggravated
burglary and attempted rape.  The plea agreement specified that he
would receive a four-year sentence on each charge as a Range I,
Standard Offender and that the sentences would run concurrently, for
an effective sentence of four years. The manner of service of the
sentence was to be determined by the trial court.  After a hearing,
the trial court denied alternative sentencing and ordered the
appellant to serve the sentence in the Department of Correction in the
Special Needs Facility.  On appeal, the appellant challenges his
conviction for aggravated burglary as void due to a mistake on the
judgment form and the trial court's denial of alternative sentencing. 
Because the trial court corrected the judgment to reflect the proper
conviction and properly denied alternative sentencing, we affirm the
judgment of the trial court.

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

SAMUEL L. GIDDENS v. STATE OF TENNESSEE
CORRECTED OPINION

Court:TCCA

Attorneys:                          

Samuel L. Giddens, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; and Mike Bottoms, District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Samuel L. Giddens, appeals from the trial court's
denial of his petition seeking habeas corpus 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.  The State's motion is granted.  The judgment of the trial
court is affirmed.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/giddenssamsl.wpd

KENNETH LAMAR HOPKINS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Kenneth
Lamar Hopkins.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; Bill Cox, District Attorney General, and
Dave Denny, Assistant District Attorney, for the appellee, State of
Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Kenneth Lamar Hopkins, pled guilty to one charge of
misdemeanor assault.  He received a suspended sentence of eleven
months, twenty-nine days.  Subsequently, the petitioner filed a
petition for post-conviction relief, alleging that: (1) his guilty
plea was not knowingly and voluntarily entered; (2) his waiver of
right to counsel was not knowing or voluntary; (3) his guilty plea
violated due process; and (4) the district attorney general promised
him that his parole would not be violated as a result of his guilty
plea.  After a post-conviction hearing, the post-conviction court
denied the petition.  The petitioner appeals, arguing that: (1) the
post-conviction court erred when it allowed the inclusion of the
expected testimony of the assistant district attorney as a stipulation
at the post-conviction hearing; (2) the post-conviction court erred
"when it sustained the contentions of the state in violation of the
missing witness rule;" and (3) the post-conviction court's actions
violated the petitioner's due process rights.  For the following
reasons, we affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. GEORGE A. JOHNSON

Court:TCCA

Attorneys:                          

Micaela Burnham, Assistant Public Defender, for the appellant, George
A. Johnson.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Steven R. Hawkins, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, George A. Johnson, was convicted of rape, a Class B
felony, and statutory rape, a Class E felony, and was sentenced as a
Range II, multiple offender to twenty years at 100% in the Department
of Correction for the rape conviction and four years at 35% for the
statutory rape conviction, to be served concurrently.   Additionally,
both sentences were to be served consecutively to the remainder of a
three-year sentence for attempted aggravated sexual battery for which
the defendant's probation was revoked as a result of the convictions
currently on appeal.  On appeal, the defendant raises the following
issues:  (1) whether the evidence was sufficient to sustain his
convictions; and (2) whether the trial court erred in not suppressing
his confession, imposing the maximum sentence, and not allowing the
defendant to impeach the victim with a prior inconsistent statement. 
Based on our review, we affirm the judgments of the trial court.

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

ANTHONY MURFF v. DAVID MILLS, WARDEN, WEST TENNESSEE STATE
PENITENTIARY

Court:TCCA

Attorneys:                          

Anthony Murff, pro se.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: MCLIN

First Paragraph:

The Petitioner, Anthony Murff, appeals the trial court's denial of his
petition for habeas corpus 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.  Because
Petitioner has failed to allege a ground entitling him to habeas
corpus relief, we grant the State's motion and affirm the judgment of
the lower court.

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

STATE OF TENNESSEE v. JOHNNY ROYSTON, JR.

Court:TCCA

Attorneys:                          

Nat Thomas, Kingsport, Tennessee, for the Appellant, Johnny Royston,
Jr.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; H. Greeley Wells, Jr., District
Attorney General; and James F. Goodwin, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Aggrieved of the trial court's denial of alternative sentencing for
his convictions of aggravated assault and coercion of a witness, the
defendant, Johnny Royston, Jr., appeals.  Because the record supports
the trial court's judgments, we affirm.

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

ROBERT L. SMITH, JR.  v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert L. Smith, Jr., pro se.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Robert L. Smith, appeals from the trial court's
dismissal of his petition for post-conviction relief.  The trial court
found the petition be barred by the applicable statute of limitations
and that the Petitioner had filed previous petitions that were
resolved on the merits.  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 find the State's
motion has merit.  Accordingly, the motion is granted and the appeal
is affirmed pursuant to Rule 20, Rules of the Court of Criminal
Appeals.

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

STATE OF TENNESSEE v. BRANDON WALLACE

Court:TCCA

Attorneys:                          

William Dan Douglas, Jr., Ripley, Tennessee, for the appellant,
Brandon Wallace.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Brandon Wallace, was convicted by a jury of two counts
of attempted first degree murder (Counts 1 and 2); attempted second
degree murder (Count 3); attempted especially aggravated robbery
(Count 4); especially aggravated burglary (Count 5); and felony
reckless endangerment (Count 6).  He was sentenced as a Range I,
standard offender to twenty-three years in the Department of
Correction for Counts 1 and 2, to be served consecutively; ten years
for Count 3, to be served concurrently with Counts 1 and 6; ten years
for Count 4 which the trial court merged with Count 5, for which he
also was sentenced to ten years, to be served consecutively to Count 1
and concurrently with Count 2; and two years for Count 6, to be served
concurrently with Counts 1 and 3, for a total effective sentence of
forty-six years.  Additionally, the jury set fines totaling $138,000,
which were reduced by the trial court to $1,000.  The defendant raises
two issues on appeal:  (1) whether the evidence was sufficient to
support his convictions, excluding his felony reckless endangerment
conviction; and (2) whether the trial court erred in sentencing. 
Following our review, we affirm the judgments of the trial court but
remand for resentencing and for entry of corrected judgments
reflecting the offense date as July 1, 2002.

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

Private Security Guard's Authority to Direct Traffic on Public Roads --
Partial Reconsideration of Attorney General's Opinion No. 03-022

Date: January 26, 2005

Opinion Number: 05-011

http://www.tba.org/tba_files/AG/2005/op11.pdf

Pretrial Diversion in Juvenile Appeals to Circuit or Criminal Court

Date: January 26, 2005

Opinion Number: 05-012

http://www.tba.org/tba_files/AG/2005/op12.pdf

Extending Term of Current Lebanon Mayor and Aldermen

Date: January 26, 2005

Opinion Number: 05-013

http://www.tba.org/tba_files/AG/2005/op13.pdf

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