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Today's Opinions: August 17, 2005
Volume 11 — Number 157
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
01 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
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


BERTHA PAULETE BROGDEN MORROW v. DANA CORPORATION, ET AL. 

Court:TSC - Workers Comp Panel

Attorneys:                          

Jack V. Delaney, Memphis, Tennessee, for the appellant, Bertha
Paulette Brogden Morrow.

Christopher Hale Crain, Memphis, Tennessee, for the appellees, Dana
Corporation and ITT Hartford Specialty Risk Services.

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 employee asserts that the trial court erred in finding
that the employee suffered no permanent impairment and no vocational
disability as the result of an injury sustained during the course of
her employment with Dana Corporation.  We conclude that the evidence
presented supports the findings of the trial judge and, in accordance
with Tennessee Code Annotated S50-6-225(e)(2), affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TSC_WCP/2005/morrowb81705.pdf

STATE OF TENNESSEE v. FRANK A. ARMSTRONG, JR.

Court:TCCA

Attorneys:                          

Claudia S. Jack, District Public Defender, and Shipp R. Weems,
Assistant Public Defender, for the appellant, Frank A. Armstrong, Jr.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; T. Michel Bottoms, District Attorney
General; and Lawrence R. Nickell, Jr., and Brent A. Cooper, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant, Frank A. Armstrong, Jr., was originally indicted for
first degree premeditated murder but was convicted of second degree
murder.  The defendant was sentenced as a Range I, standard, violent
offender, to twenty years.  On appeal, the defendant alleges error by
the trial court in: (1) failing to grant relief for the State's
failure to preserve evidence; (2) refusing to suppress the defendant's
blood analysis; (3) failing to excuse five jurors for cause; and (4)
that the State failed to negate the defendant's theory of self defense
beyond a reasonable doubt.  After review, we affirm the trial court's
judgment of conviction

http://www.tba.org/tba_files/TCCA/2005/armstrongf81705.pdf

STATE OF TENNESSEE v. HOWARD C. BANKSTON

Court:TCCA

Attorneys:                          

Howard C. Bankston, Clifton, Tennessee, Pro Se. 

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant AttorneyGeneral; and Bill Cox, District Attorney General,
for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Howard C. Bankston, was convicted of felony failure to
appear and sentenced tofour years in the Tennessee Department of
Correction, suspended.  The Defendant's probation was subsequently
revoked.  The Defendant claims to have filed a petition for
post-convictionrelief, and claims that the trial court dismissed his
petition.  Neither the Defendant's petition nor an order disposing of
same is in the record before us.  Because the record contains no final
orderfrom which the Defendant may appeal, we dismiss the Defendant's
appeal.

http://www.tba.org/tba_files/TCCA/2005/bankstonh81705.pdf

DAMION CARRICK V. TONY PARKER, WARDEN 

Court:TCCA

Attorneys:                          

Patrick McGill, Dyersburg, Tennessee, for the apellant, Damion
Carrick.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant AttorneyGeneral; and Phillip Bivens, District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Damion Carrick, appeals the trial court's order
summarily dismissing his petitionfor habeas corpus relief.  In that
petition, the petitioner sought a writ of habeas corpus to release him
from his sentences for two (2) counts of especially aggravated robbery
based on the UnitedStates Supreme Court decision in Blakely v.
Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). We are persuaded
that the trial court was correct in summarily dismissing the habeas
corpuspetition and that this case meets the criteria for affirmance
pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
Accordingly, the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/carrickd81705.pdf

STATE OF TENNESSEE v. JOE L. DAVIS, JR. 

Court:TCCA

Attorneys:                          

Jack T. Marecic, Rogersville, Tennessee, for the Appellant, Joe L.
Davis, Jr.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General;C. Berkeley Bell, District Attorney
General; and Paige Collins, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Joe L. Davis, Jr., presents for review a certified
question of law following hisguilty pleas to two counts of Class B
felony possession of cocaine and one count of felony possession of
marijuana.  See Tenn. R. Crim. P. 37(b)(2)(i).  Davis was subsequently
sentencedto an effective eight-year sentence in the Department of
Correction.  As a condition of his guilty plea, Davis explicitly
reserved a certified question of law challenging the denial of his
motion tosuppress evidence found upon the execution of a search
warrant at his residence. Davis argues that the affidavit given in
support of the warrant is insufficient to establish probable cause. 
Afterreview of the record, we agree.  Accordingly, we reverse the
judgment of the trial court and dismiss the Appellant's judgments of
conviction.

http://www.tba.org/tba_files/TCCA/2005/davisj81705.pdf

BONZIE LAVENDER v. STATE OF TENNESSEE  

Court:TCCA

Attorneys:                          

Bonzie Lavender, Clifton, Tennessee, Pro Se.         

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Bonzie Lavender, appeals from the trial court's order
dismissing his petition for writ of habeas corpus. The state has filed
a motion requesting that this court affirm the trial court's denial of
relief pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. The petitioner has failed to establish that he is entitled to
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/2005/lavenderb81705.pdf

STATE OF TENNESSEE v. MELISSA ANN LAYMAN

Court:TCCA

Attorneys:                          

M. Sue White, Seymour, Tennessee, for the Appellant, Melissa Ann
Layman.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General;James N. Ramsey, District Attorney General;
and Jan Hicks, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Melissa Ann Layman,1 seeks interlocutory review of the
Anderson CountyCriminal Court's ruling rejecting a plea agreement
between Layman and the District Attorney General.  The plea agreement
provided that Layman's indictment for voluntary manslaughterwould be
dismissed and that Layman would receive pretrial diversion for
reckless homicide under a separate count of the indictment.  Following
a hearing, the trial court denied the State'srequest to dismiss
Layman's indictment for voluntary manslaughter, finding dismissal
"contrary to the manifest public interest" and refusing to approve the
memorandum granting pretrialdiversion because Layman's indictment for
voluntary manslaughter statutorily disqualified her from seeking
diversion.  See Tenn. R. Crim. P. 48(a), Tenn. Code Ann. S
40-15-105(a)(1)(B)(iii)(j) (2003).  Finding no error, the judgment of
the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/laymanm81705.pdf

STATE OF TENNESSEE v. MITCHELL PRESNELL 
WITH TWO SEPARATE CONCURRING OPINIONS

Court:TCCA

Attorneys:                          

Kristi M. Davis, Knoxville, Tennessee, for the appellant, Mitchell
Presnell.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General;Al C. Schmutzer, Jr., District Attorney
General; James B. Dunn, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

A Cocke County jury found the defendant, Mitchell Presnell, guilty of
aggravated robbery.  Thetrial court sentenced the defendant to twenty
(20) years as a Range II multiple offender.  In this appeal the
defendant claims that:  (1) the evidence was insufficient to support
his conviction; (2)the trial court erred when it failed to instruct on
the lesser-included offenses of assault and aggravated assault; (3)
the trial court erred in applying enhancement factor (3), that the
defendantwas a leader in the offense; and (4) the defendant was denied
his right to a speedy trial.  After a thorough review of the record,
we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/presnellm81705.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/2005/presnellm_con81705.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/2005/presnellm_2con81705.pdf

STATE OF TENNESSEE v. CHRISTOPHER NEIL SIMMONS 

Court:TCCA

Attorneys:                          

Donna Leigh Hargrove, District Public Defender, and Andrew Jackson
Dearing, Assistant Public Defender, for the appellant, Christopher
Neil Simmons.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael Randles and Ann Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant challenges the denial of alternative sentencing. 
Because the defendant failed to include the presentence report in the
record on appeal, we presume that the trial court accurately evaluated
the defendant's criminal history and background in determining that he
was not a suitable candidate for probation.  Moreover, we conclude
that the requirements that the defendant asserts should have been made
prior to the trial court's denial do not apply in this case. 
Therefore, we affirm the trial court's denial of alternative
sentencing.

http://www.tba.org/tba_files/TCCA/2005/simmonsc81705.pdf

MICHAEL W. SMITH v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Michael Smith, Pro Se, Whiteville, Tennessee. 

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant AttorneyGeneral; William L. Gibbons, District Attorney
General; and Michelle Parks, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Michael W. Smith, proceeding pro se, appeals the Shelby
County CriminalCourt's summary dismissal of his petition for writ of
habeas corpus.  Smith was convicted of rape in Shelby County and
received an eight-year Department of Correction sentence, to beserved
consecutively to a three-year Department of Correction sentence in a
separate case.  On appeal, Smith argues that the trial court erred in
dismissing the petition because his eight-yearsentence has expired. 
After review, we affirm the trial court's dismissal of the petition on
grounds that Smith has failed to establish that his sentence has
expired.

http://www.tba.org/tba_files/TCCA/2005/smithm81705.pdf

Holding Court Outside County Seat

Date: August 8, 2005

Opinion Number: 05-122

http://www.tba.org/tba_files/AG/2005/op122.pdf

Procurement of  Pharmacy Services for Low Income Individuals
Disenrolled from TennCare

Date: August 8, 2005

Opinion Number:  05-123

http://www.tba.org/tba_files/AG/2005/op123.pdf

Election of Aldermen under Mayor-Aldermanic Charter 

Date: August 15, 2005

Opinion Number:  05-124

http://www.tba.org/tba_files/AG/2005/op124.pdf

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