TennBarU, the TBA Elder Law Section and the National Academy of Elder
Law Attorneys Present: Elder Law Basics
August 19-21 - Gaylord Opryland Hotel in Nashville

This program covers the breadth of elder law. The distinguished
faculty for this program includes past NAELA presidents and authors of
several national treatises on elder law. Level of instruction is basic
and intermediate. A unique aspect of this program is its focus on a
case study, in which participants will develop a long-term care plan
under the tutelage of experienced elder law attorneys. This course
provides 15.75 hours of general and one hour dual CLE credit.

Today's Opinions: June 1, 2005
Volume 11 — Number 103
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
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
13 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. 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


RUTH HUKE v. TRINITY INDUSTRIES, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

P. Allen Phillips, Jackson, Tennessee, for the appellant, Trinity
Industries, Inc.

William L. Aldred, Jr., Clarksville, Tennessee, for the appellee, Ruth
Huke.

Judge: HARRIS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated section 50-6- 225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. In this
appeal, the employer asserts that the trial court erred in finding
that the employee suffered any permanent partial disability and in
awarding to the employee sixty-four (64%) percent permanent partial
disability to the body as a whole as a result of an injury sustained
during the course of her employment with Trinity Industries, Inc. We
conclude that the evidence presented supports the findings of the
trial judge and, in accordance with Tennessee Code Annotated
B50-6-225(e)(2), affirm the judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/2005/huker6105.pdf

SARAH L. LANE v. TRANE UNITARY PRODUCTS, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Wm. Ritchie Pigue, Marie I. Militana, Nashville, Tennessee, for
appellant, Trane Unitary Products,

William R. Underhill, Springfield, Tennessee, for the appellee, Sarah
H. Lane

Judge: HARRIS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated section 50-6- 225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. In this
appeal, the employer asserts that the trial court erred in awarding to
the employee a 30% vocational disability to her upper left extremity
and 70% vocational disability to her upper right extremity as a result
of her employment with Trane Unitary Products. We conclude that the
evidence presented supports the findings of the chancellor and, in
accordance with Tennessee Code Annotated B50-6-225(e)(2), affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/2005/lanes6105.pdf

SHANNON D. YOUNG v. TONY PARKER, ET AL.

Court:TCA

Attorneys:                          

Shannon D. Young, Pro se.

Paul G. Summers, Attorney General and Reporter, and Bradley W.
Flippin, Assistant Attorney General, for the Appellees, Tony Parker,
et al.

Judge: FARMER

First Paragraph:

The Petitioner, an inmate in custody of the Tennessee Department of
Correction, appeals from the order of the trial court dismissing his
petition for common law writ of certiorari as being untimely filed. We
affirm.

http://www.tba.org/tba_files/TCA/2005/youngs6105.pdf

FRANK ROBERT BIGSBY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Brad W. Hornsby and Kerry Knox, Murfreesboro, Tennessee, for the
appellant, Frank Robert Bigsby.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant
Attorney General; Bill Whitesell, District Attorney General, and
Trevor H. Lynch, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner was convicted of possession of twenty-six (26) grams or
more of cocaine with intent to deliver. He appealed this conviction.
We affirmed his conviction in State v. Bigsby, 40 S.W.3d 87 (Tenn.
Crim. App. 2000). The petitioner then filed a petition for
post-conviction relief. The trial court denied the petitioner's
petition. On appeal, we remanded the petition for the trial court to
enter findings of fact. Frank Robert Bigsby v. State, No. M2002-02260-
CCAR3-PC, 2003 WL 22927139 (Tenn. Crim. App., at Nashville, Dec. 11,
2003). The trial court entered its findings, and we now address the
appeal on the merits. The petitioner's sole issue in his appeal from
the trial court's denial of his post-conviction petition is that he
was offered ineffective assistance of counsel. We have reviewed the
record in this case and conclude that the trial court's denial of the
petitioner's petition was proper. Therefore, we affirm the trial
court's decision.

http://www.tba.org/tba_files/TCCA/2005/bigsbyf6105.pdf

MICHAEL BRAXTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Michael Braxton, Only, Tennessee, Pro Se.

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

Judge: OGLE

First Paragraph:

The petitioner, Michael Braxton, was convicted by a jury in the
Davidson County Criminal Court of aggravated rape and aggravated
assault. He received a total effective sentence of twenty-three years
incarceration in the Tennessee Department of Correction. Subsequently,
the petitioner filed a petition for post-conviction relief, which
petition the post-conviction court summarily dismissed as being
untimely. The petitioner appeals the dismissal, arguing that his
petition was not barred by the statute of limitations. Upon our review
of the record and the parties' briefs, we reverse the judgment of the
post-conviction court and remand for a hearing on the timeliness of
the petitioner's petition.

http://www.tba.org/tba_files/TCCA/2005/braxtonm6105.pdf

STATE OF TENNESSEE v. WILLIAM FERRIS

Court:TCCA

Attorneys:                          

Gerald Stanley Green (on appeal) and Sam Perkins (at trial), Memphis,
Tennessee, for the appellant, William Ferris.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Lee Coffee and David Pritchard, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, WilliamFerris, was convicted by a ShelbyCounty Criminal
Court jury of two counts of especially aggravated kidnapping, a Class
A felony; two counts of aggravated burglary, a Class C felony; and one
count of aggravated robbery, a Class B felony. The trial court
sentenced him as a violent offender to twenty-five years for each of
the especially aggravated kidnapping convictions and as a Range II,
multiple offender to ten years for the aggravated burglary convictions
and twenty years for the aggravated robbery conviction. The court
merged the two counts of especially aggravated kidnapping and the two
counts of aggravated burglary and ordered that the kidnapping,
burglary, and robbery sentences be served consecutively to each other
for an effective sentence of twenty-five years in the Department of
Correction. The defendant raises essentially three issues on appeal:
(1) whether the evidence is sufficient to sustain his convictions; (2)
whether the trial court erred by not declaring a mistrial sua sponte
upon admission of testimony about the defendant's pending indictment
for attempted second degree murder; and (3) whether the trial court
erred in ordering consecutive sentencing. Following our review, we
affirm the judgments of the trial court

http://www.tba.org/tba_files/TCCA/2005/ferrisw6105.pdf

ANDREW CHARLES HELTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kathleen G. Morris, Nashville, Tennessee, for the appellant, Andrew
Charles Helton.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; Pamela Sue Anderson, Assistant District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Andrew Charles Helton, filed a pro se petition for
post-conviction relief, which was amended after appointment of
counsel. Following an evidentiary hearing, the trial court dismissed
the petition. On appeal, Petitioner argues (1) that the prosecutor
misrepresented to the jury during closing argument evidence concerning
the 911 tape; (2) that the prosecutor improperly pointed the murder
weapon at the jury during closing argument; (3) that his trial counsel
was ineffective for failing to object to the prosecutorial misconduct
which occurred during closing argument; and (4) that his trial counsel
provided ineffective assistance when he objected to the jury's request
during deliberations to review the tape of a neighbor's call to the
911 operator on the night of the shootings. After a thorough review of
the record, we affirm the judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/heltona6105.pdf

STATE OF TENNESSEE v. THOMAS DEE HUSKEY

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Gill R. Geldreich and
Joseph F. Whalen, Assistant Attorneys General; Randall E. Nichols,
District Attorney General, for the appellant, State of Tennessee.

Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for
the appellee, Thomas D. Huskey.

Judge: TIPTON

First Paragraph:

The state has appealed the Knox County Criminal Court's suppression of
statements made to police by the defendant, Thomas Dee Huskey, and of
items found and seized from his home. The state contends that (1) the
trial court erred as a matter of law in suppressing the statements and
(2) the trial court erred in suppressing the items found at the home
(a) because the police arrested the defendant in good faith reliance
upon a capias which subsequently was declared void and (b) because the
defendant's father consented to a search of the defendant's room. The
defendant asserts that if the state's appeal is successful, then he
contends that the trial court erred in prior rulings denying
suppression of his statements and the items seized from his home on
other myriad grounds raised by the defendant. We affirm the trial
court.

http://www.tba.org/tba_files/TCCA/2005/huskeyt6105.pdf

DAVID LACKEY v. STATE OF TENNESSEE
WITH ORDER

Court:TCCA

Attorneys:                          

David Lackey, Only, Tennessee, Pro Se.

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

Judge: GLENN

First Paragraph:

The petitioner appeals the summary dismissal of his petition for
post-conviction relief, arguing that he should have been appointed
post-conviction counsel and given an evidentiary hearing. Following
our review, we remand this matter to the post-conviction court to
determine whether the petitioner's right to due process of law
requires that the petition be considered regardless of its
untimeliness.

http://www.tba.org/tba_files/TCCA/2005/lackeyd6105.pdf

ORDER
http://www.tba.org/tba_files/TCCA/2005/lackeyd_ord6105.pdf

DOMINGO PONCE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Domingo Ponce, pro se, Tiptonville, Tennessee.

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

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Domingo Ponce, filed a petition for writ of error
coram nobis, which the trial court summarily dismissed. On appeal, the
Petitioner contends that the trial court erred when it dismissed his
petition. Finding no reversible error, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/2005/ponced6105.pdf

STATE OF TENNESSEE v. PAUL DENNIS REID, JR.
CORRECTED OPINION WITH MEMO

Court:TCCA

Attorneys:                          

James A.Simmonsand Thomas F.Bloom,Nashville, Tennessee for the
appellant, Paul Dennis Reid, Jr.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General; John
W. Carney, Jr., District Attorney General; and Arthur F. Bieber,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Paul Dennis Reid, Jr., was found guilty by a jury of
two counts of premeditated murder, two counts of felony murder, two
counts of especiallyaggravated kidnapping, and one count of
especiallyaggravated robbery. The felony murder convictions were
merged into the premeditated murder convictions. Thereafter, the jury
sentenced the appellant to death based upon the existence of three
aggravating circumstances: the appellant had previously been convicted
of one or more felonies, other than the present charge, the statutory
elements of which involve the use of violence to the person; the
murders were committed for the purpose of avoiding, interfering with
or preventing a lawful arrest or prosecution of defendant or another;
and the murder was especially heinous, atrocious, or cruel in that it
involved torture or serious physical abuse beyond that necessary to
produce death. The trial court sentenced the defendant as a violent
offender to twenty-five years imprisonment for especially aggravated
robbery and especially aggravated kidnapping, to run consecutively to
his sentences for first degree murder and to a prior out-of-state
sentence. Onappeal, appellant presents forty-five issues. After an
extensive review of the record and the applicable law, we find that
none of these issues warrants a reversal of this case. Therefore, the
judgments of the trial court are AFFIRMED.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/reidp6105.pdf

MEMO
http://www.tba.org/tba_files/TCCA/2005/reidp_mem6105.pdf

TERRY LEE ROBINSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David Martin Hopkins, Nashville, Tennessee, for the appellant, Terry
Lee Robinson.

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

Judge: OGLE

First Paragraph:

The petitioner, Terry Lee Robinson, was convicted in the Davidson
County Criminal Court of first degree murder and received a life
sentence. Following an unsuccessful appeal of his conviction, the
petitioner filed a petition for post-conviction relief, alleging
ineffective assistance of counsel at trial. The petitioner now brings
this appeal challenging the post-conviction court's denial of his
petition. After reviewing the record and the parties' briefs, we
affirm the judgment of the post-conviction court

http://www.tba.org/tba_files/TCCA/2005/robinsont6105.pdf

KENNETH STRICKLAND v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Allen D. Hale, Murfreesboro, Tennessee, for the appellant, Kenneth
Strickland.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; and William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Kenneth Strickland, was convicted by a jury of
possession of .5 grams or more of cocaine with the intent to sell or
deliver, and sentenced to twelve years in the Department of
Correction. The judgment against the Defendant was affirmed on direct
appeal. See State v. Kenneth Strickland, No. M2002-00543-CCA-R3-CD,
2003 WL 21997739 (Tenn. Crim. App., Nashville, Aug. 22, 2003). The
Defendant subsequently filed for post-conviction relief claiming that
he had been denied the effective assistance of counsel at trial. After
an evidentiary hearing the trial court denied relief and this appeal
followed. We affirm the judgment of the trial court

http://www.tba.org/tba_files/TCCA/2005/stricklandk6105.pdf

JOHNNY TYUS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Barney Witherington, IV, Covington, Tennessee, for the appellant,
Johnny Tyus.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and James Walter Freeland, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief from his conviction for delivery of .5 grams or more of a
Schedule II controlled substance, cocaine, arguing that the
postconviction court erred in finding he received effective assistance
of trial counsel. Following our review, we affirm the denial of the
petition.

http://www.tba.org/tba_files/TCCA/2005/tyusj6105.pdf

STATE OF TENNESSEE v. ROBERT WILLIAMS

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender, and Tony N.
Brayton, Assistant Public Defender, for the appellant, Robert
Williams.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Alanda Dwyer, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Robert Williams, was convicted by a Shelby County
Criminal Court jury of aggravated burglary, a Class C felony, and
sentenced by the trial court as a career offender to fifteen years in
the Department of Correction. The sole issue he raises on appeal is
whether the circumstantial evidence presented in his case was
sufficient to support his conviction. Following our review, we affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/williamsr6105.pdf

STATE OF TENNESSEE v. CANDICE WORKMAN

Court:TCCA

Attorneys:                          

Terry D. Smart and N. Craig Brigtsen, III, Memphis, Tennessee, for the
appellant, Candice Workman.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Robert Carter, Jr., Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Candice Workman, pled guilty in the Shelby County
Criminal Court to soliciting the sale of less than one-half gram of
cocaine, a Class E felony. The trial court sentenced her to one year
in the workhouse to be served on probation and fined her $2000.00. On
appeal, the defendant contends that the trial court erred by denying
her request for judicial diversion. We affirm the trial court but
remand the case for correction of a clerical error on the judgment of
conviction.

http://www.tba.org/tba_files/TCCA/2005/workmanc6105.pdf

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