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Today's Opinions: August 12, 2005
Volume 11 — Number 154
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
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

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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


IN THE MATTER OF: M.A.R., dob 3/26/99 and J.S.R., dob 7/16/99,
Children Under 18 Years of Age

Court: TCA

Attorneys:

Brandon K. Fisher, Clinton, TN, for Appellants

Paul G. Summers, Attorney General and Reporter, Jennifer L. Brenner,
Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

This is a parental termination case.The parentsā next door neighbors
overheard the mother striking, cursing, and threatening her daughter
over a baby monitor and recorded the incident.The tape also captured
the father coming home from work and asking the mother about certain
marks on the child. The neighbors subsequently turned the tape over to
the Tennessee Department of Childrenās Services.The juvenile court
placed the children in the protective custody of the department, and
the department implemented a permanency plan requiring the mother and
father, among other things, to undergo therapy.The department
subsequently filed a petition in the juvenile court seeking to
terminate the parentsā parental rights.The juvenile court found that
the department proved each ground alleged by clear and convincing
evidence and that termination was in the childrenās best interest.We
affirm.

http://www.tba.org/tba_files/TCA/2005/mar81205.pdf

JOHN R. BLACK, a/k/a RENE J. BLACK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee (on appeal), and Monte Watkins,
Nashville, Tennessee (attrial), for the appellant, John R. Black.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General;Victor S. (Torry) Johnson III, District
Attorney General; Amy H. Eisenbeck, Assistant District Attorney
General; and Rachelle Laisnez, Assistant District Attorney General,
for the appellee,the State of Tennessee.

Judge: WOODALL

Petitioner, John R. Black, a/k/a Rene J. Black, filed a petition for
post-conviction relief, asamended, alleging ineffective assistance of
counsel at trial and on appeal.Following an evidentiary hearing, the
post-conviction court denied the petition.On appeal, Petitioner
arguesthat trial counselās assistance was ineffective (1) for failing
to prepare an adequate record for appeal; (2) for failing to request
an instruction on the lesser included offense of falseimprisonment or
raise the trial courtās failure to do so on appeal; and (3) for
failing to object to the prosecutorās improper questions and comments
during Petitionerās cross-examination at trialand during closing
argument.After a thorough review of the record, we affirm the judgment
of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/blackj81205.pdf

STATE OF TENNESSEE v. CARLOS ALBERTO CABELLERO-GRAJEDAIN RE:E & W
BONDING COMPANY

Court: TCCA

Attorneys:

Dale Quillen, Nashville, Tennessee, for the appellant, E & W Bonding
Company.

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

Judge: WOODALL

Appellant, E & W Bonding Company, appeals the trial court's denial of
its motion for relief of itsobligation under a bail bond of $100,000
in the case of criminal defendant Carlos Albert
Cabellero-Grajeda.After a thorough review of the record, we affirm the
judgment of the trialcourt.

http://www.tba.org/tba_files/TCCA/2005/cabellerec81205.pdf

JEFFREY CASEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mark Chapman, Nashville, Tennessee, for the appellant, Jeffrey Casey

Paul G. Summers, Attorney General & Reporter; and Roger Moore,
Assistant District AttorneyGeneral, Nashville, Tennessee, for the
appellee, State of Tennessee.

Judge: WADE

The petitioner, Jeffrey Casey, appeals the trial courtās dismissal of
his petition for habeas corpusrelief.The issue presented for review is
whether the petition was properly dismissed without an evidentiary
hearing.The judgment is affirmed.

http://www.tba.org/tba_files/TCCA/2005/caseyj81205.pdf

CUMECUS R. CATES, SR. v. RICKY BELL, WARDEN

Court: TCCA

Attorneys:

Cumecus R. Cates, Sr., Pro Se, Petros, Tennessee

Paul G. Summers, Attorney General & Reporter; David Edward Coenen,
Assistant AttorneyGeneral, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the Stateâs motion to affirm the
judgment of the trial courtby memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals.The petitioner, Cumecus R.
Cates, has appealed the trial courtâs order summarily dismissing
hispetition for the writ of habeas corpus.In that petition, the
petitioner sought a writ of habeas corpus to release him from various
sentences.We are persuaded that the trial court was correctin
summarily dismissing the habeas corpus petition and that this case
meets the criteria for affirmance pursuant to Rule 20, Rules of the
Court of Criminal Appeals.Accordingly, theStateâs motion is granted,
and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/catesc81205.pdf

STATE OF TENNESSEE v. DANIEL LEE COOK

Court: TCCA

Attorneys:

Gene Honea, Assistant Public Defender, Franklin, Tennessee, for the
appellant, Daniel LeeCook.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General;Ronald L. Davis, District Attorney General;
and Derek K. Smith, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

The appellant, Daniel Lee Cook, pled guilty in the Williamson County
Circuit Court to recklessburning, and the trial court sentenced him to
eleven months, twenty-nine days to be served as thirty days in jail
and the remainder on probation.The trial court also ordered the
appellant topay restitution in the amount of one hundred fifty dollars
per month for five years.On appeal, the appellant claims that the
State failed to prove the fair market value of the destroyed
propertyand that the trial court erred by ordering a payment schedule
that extended beyond the maximum statutory term of probation
supervision that could have been imposed for the offense.Weconclude
that the evidence was sufficient for the trial court to determine the
amount of the victimâs loss.However, the trial court erred regarding
the restitution payment schedule.Therefore, we reverse the judgment of
the trial court and remand the case for further proceedings consistent
with this opinion.

http://www.tba.org/tba_files/TCCA/2005/cookd81205.pdf

STATE OF TENNESSEE v. GREGORY BERNARD GRIER

Court: TCCA

Attorneys:

N. Andy Myrick, Jr., Fayetteville, Tennessee, (on appeal), and Richard
Cawley, Shelbyville,Tennessee, (at trial), for the appellant,

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant AttorneyGeneral, and William Michael McCown, District
Attorney General; Ann L. Filer, Assistant District Attorney General;
and Michael D. Randles, Assistant District Attorney General, for
theappellee, the State of Tennessee

Judge: WOODALL

In Case No. 15207, the Bedford County Grand Jury charged Defendant,
Gregory Bernard Grier,with the sale of less than 0.5 grams of cocaine
in Count 1, and with delivery of the same cocaine in Count 2.Following
a jury trial, he was convicted of both charges.The trial court merged
theconviction in Count 2 with the conviction in Count 1, and,
following a sentencing hearing, Defendant was sentenced to serve nine
(9) years in the Department of Correction as a Range IImultiple
offender for his Class C felony conviction.Due to the unique
procedural history of this case pertaining to the preparation of the
record on appeal and the status of Defendantâs formercounsel at the
time of filing a statement of the evidence in lieu of a verbatim
transcript, we are compelled to reverse the judgment of the trial
court and remand this case to the trial court forproceedings
consistent with this opinion.

http://www.tba.org/tba_files/TCCA/2005/grierg81205.pdf

STATE OF TENNESSEE v. KASHE M. HARRIS

Court: TCCA

Attorneys:

Ross E. Alderman, District Public Defender, Nashville, Tennessee;
Jeffrey A. DeVasher,Assistant Public Defender, Nashville, Tennessee
(on appeal); and Diane McNamara, Assistant Public Defender, Nashville,
Tennessee (at hearing), for the Appellee, Kashe M. Harris.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant,
Assistant AttorneyGeneral; Victor S. Johnson, III, District Attorney
General; and James Sledge, Assistant District Attorney General, for
the Appellant, State of Tennessee.

Judge: WITT

The defendant, Kashe M. Harris, pleaded guilty to one count of
fraudulent receipt of foodassistance (food stamp fraud), Tenn. Code
Ann. € 71-5-314 (Supp. 2003), and one count of fraud in obtaining aid
for dependent children (AFDC fraud), id. € 71-3-120.The defendant
receivedjudicial diversion and was placed on unsupervised probation
for concurrent terms of two years for each count and ordered to make
restitution.After serving a portion of her two-yearprobationary period
and completing restitution, she moved the court to terminate her
probation and expunge her record.The trial court granted the
defendantâs motion, and the state now bringsthe instant appeal.Because
we find that the trial court had jurisdiction to grant the defendantâs
motion, we affirm the judgment of the lower court.

http://www.tba.org/tba_files/TCCA/2005/harrisk81205.pdf

STATE OF TENNESSEE v. KENDRICK D. HUTTON

Court: TCCA

Attorneys:

Stanley K. Pierchoski, Lawrenceburg, Tennessee (on appeal), and Dennis
P. Stack, Pulaski,Tennessee (at trial),for the appellant, Kendrick D.
Hutton.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant AttorneyGeneral; Patrick S. Butler, District Attorney
General; and Beverly White, Assistant District AttorneyGeneral, for
the appellee, the State of Tennessee.

Judge: WOODALL

Following a revocation hearing, the trial court revoked the probation
of Defendant, Kendrick D.Hutton, and ordered him to serve the
remainder of his sentence in confinement.On appeal, Defendant requests
this Court to remand the matter for a new probation revocation
hearingbecause the trial court failed to follow the statutory
procedure governing probation revocations. After review, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/huttonk81205.pdf

RANDY L. MAY v. KEVIN MYERS, WARDEN

Court: TCCA

Attorneys:

Randy L. May, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; T.Michel Bottoms, District Attorney
General; and Helena Walton Yarbrough, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Randy L. May, sought a writ of habeas corpus from the
Wayne County CircuitCourt, claiming that his 1981 life sentence had
been rendered void by the Board of Probation and Paroleâs order that
not only denied parole but also mandated, according to the petitioner,
that heserve the balance of his sentence.The circuit court granted the
stateâs motion to dismiss the petition without a hearing, and the
petitioner appealed.We affirm the dismissal of the petition.

http://www.tba.org/tba_files/TCCA/2005/mayr81205.pdf

MARK MEDLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Richard T. Roney, Murfreesboro, Tennessee, for the appellant, Mark
Medley.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant AttorneyGeneral; William C. Whitesell, Jr., District
Attorney General; and Laurel A. Nutt, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Mark Medley, appeals from the Rutherford County
Circuit Courtâs denial of post-conviction relief.In his petition, and
now in this appeal, he alleges that he entered an involuntary guilty
plea based upon the ineffective assistance of counsel.For the reasons
set forthin this opinion, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/medleym81205.pdf

STATE OF TENNESSEE v. ROXA H. PERKINS

Court: TCCA

Attorneys:

Jeffrey S. Pulley (on appeal), Nashville, Tennessee, and Aubrey L.
Harper, Jr. (at trial),McMinnville, Tennessee, for the appellant, Roxa
H. Perkins.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Senior Counsel; CharlesM. Layne, District Attorney General; and
Douglas D. Aaron, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

In this appeal the defendant, Roxa Perkins, contests her conviction of
possession of over .5grams of a Schedule II controlled substance with
the intent to sell or deliver same.She raises four (4) issues for
review: (1) whether the warrantless seizure and detention of the
defendantviolated her constitutional rights; (2) whether probable
cause and exigent circumstances existed which justified a warrantless
search of the defendantâs vehicle; (3) whether the trial court erredin
failing to instruct the jury with respect to lesser included offenses
of facilitation, attempt, and facilitation of attempt to possess drugs
with the intent to sell or deliver; and (4) whether thedefendant
received the effective assistance of counsel.After a thorough review
of the record and the applicable legal authorities we find no
reversible error or ineffective assistance of counseland we therefore
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/perkinsr81205.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/2005/perkinsr_con81205.pdf

FRANCIS L. SANSCHARGRIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Francis Sanschargrin, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant AttorneyGeneral; Lawrence Ray Whitley, District Attorney
General; and Sallie Wade Brown, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Francis Sanschargrin, filed a pro se petition for writ of
habeas corpus relief.The trialcourt dismissed the petition, finding no
grounds entitling Petitioner to habeas corpus relief.On appeal, we
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/sanschargrinf81205.pdf

STATE OF TENNESSEE v. DWAYNE TYRONE SIMMONS

Court: TCCA

Attorneys:

Dwayne Tyrone Simmons, Pro se.

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

Judge: OGLE

A Marshall County Circuit Court jury convicted the appellant, Dwayne
Tyrone Simmons, ofaggravated burglary and theft of property valued
less than $500.The trial court sentenced the appellant to concurrent
sentences of eight years, ten months for the aggravated
burglaryconviction and nine months, eighteen days for the theft
conviction.In this appeal, the appellant raises various issues,
including that the evidence is insufficient to support his
aggravatedburglary conviction and that he was unable to present
photographs of the home in question to the jury.Upon review of the
record and the partiesâ briefs, we affirm the judgments of the
trialcourt.

http://www.tba.org/tba_files/TCCA/2005/simmonsd81205.pdf

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