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Today's Opinions: August 22, 2005
Volume 11 — Number 160
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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
10 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


ALICE ANN TRAVIS v. KAYSER-ROTH CORPORATION 

Court: TWCA

Attorneys:

J. Arnold Fitzgerald, Dayton, Tennessee, for appellant, Alice Ann
Travis. 

Jeffrey L. Cleary, Chattanooga, Tennessee, for appellee, Kayser-Roth
Corporation. 

Judge: THAYER

This workersā compensation appeal has been referred to the Special
Workersā Compensation Appeals Panel of the Supreme Court in
accordance with Tenn. Code Ann. ¤ 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.The trial court dismissed the case finding plaintiff had not
established sufficient evidence to prove notice and causation of
injury.Plaintiff insists the court was in error in weighing the
evidence.The judgment is affirmed. 

http://www.tba.org/tba_files/TSC_WCP/2005/travisa82205.pdf

TERRY L. SAHLIN v. LABORATORY GLASS, INC. 

Court: TWCA

Attorneys:

David J. Silvus and Lindsey B. Lander, Knoxville, Tennessee, for
appellant, Laboratory Glass, Inc. 

H. Douglas Nichol, Knoxville, Tennessee, for appellee, Terry L.
Shalin. 

Judge: THAYER

This workersā compensation appeal has been referred to the Special
Workersā Compensation Appeals Panel of the Supreme Court in
accordance with Tenn. Code Ann. ¤ 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.The trial court awarded the employee 100 percent permanent
disability.The employer contends the trial court was in error in
calculating the average weekly wage and in finding the employee was
totally disabled. Judgment is affirmed. 

http://www.tba.org/tba_files/TSC_WCP/2005/sahlint82205.pdf

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS 

Court: TSC-R

http://www.tba.org/tba_files/TSC_Rules/2005/certlist82205.pdf

KINA CRIDER, ET AL. v. THE COUNTY OF HENRY, TENNESSEE 

Court: TCA

Attorneys:

Richard L. Dunlap, III, Paris, TN, for Appellant 

Lee M. Greer, III, Paris, TN, for Appellee

Judge: HIGHERS

The plaintiff filed a motion for summary judgment with the trial
court.After conducting a hearing on the motion, the trial court
entered an order which amounted to a denial of the plaintiffās
motion. Accordingly, the trial courtās order does not constitute a
final judgment which the plaintiff may appeal to this Court.This
appeal stands dismissed for lack of appellate jurisdiction. 

http://www.tba.org/tba_files/TCA/2005/criderk82205.pdf

CHERRYLE E. SEXTON v. JIM K. DUNCAN,ET AL. 

Court: TCA

Attorneys:

Roger S. Waldron, Murfreesboro, Tennessee, for the appellant,
Cherryle E. Sexton. 

David J. Sneed, Brentwood, Tennessee, for the appellee, Jim K.
Duncan, Administrator AdLitem for the Estate of Lester W. Martin. 

Judge: HARRIS

This is an appeal from the granting of defendantās motion for summary
judgment in a wrongfuldeath action filed by the plaintiff, widow of
Charles B. Sexton, against the estate of Lester W. Martin.Both Mr.
Sexton and Mr. Martin were employed by LoJac Enterprises, Inc.
(LoJac), andwere traveling from a job site to their residences when
they were involved in an automobile accident resulting in their
deaths.The vehicle in which they were traveling was owned by
LoJac,was assigned to Mr. Sexton but was being operated by Mr.
Martin.The plaintiff, Mrs. Sexton, received workersā compensation
benefits as the result of the death of her husband.The trialcourt,
having determined that Martin was acting within the course of his
employment with LoJac, granted motion for summary judgment filed in
behalf of the Martin estate based upon theexclusive remedy provisions
of Tennessee Code Annotated ¤ 50-6-108.We affirm. 

http://www.tba.org/tba_files/TCA/2005/sextonc82205.pdf

ROBERT WILLIAM FULLER, JR. v. LYNN GAIL FULLER 

Court: TCA

Attorneys:

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Robert
William Fuller, Jr. 

Barrett T. Painter, Cleveland, Tennessee, for the appellee, Lynn Gail
Harrison. 

Judge: SUSANO

In this post-divorce action, Robert William Fuller, Jr.(ćFatherä)
filed a petition seeking, among other things, a modification of the
custody arrangement with respect to the partiesā minor son, Ryan; an
enforcement of parenting time with both Ryan and his daughter,
Caitlyn; and a finding of contempt against his former wife, Lynn Gail
Harrison, formerly Fuller (ćMotherä).Mother filed a counterclaim,
seeking an increase in child support.Following a hearing, the trial
court essentially denied Fatherās petition.It left Mother as the
primary residential parent of both children.In addition, the trial
court ordered that Fatherās visitation with Caitlyn would be at the
sole discretion of a named counselor.The trial court did not find
Mother in contempt.Father appeals.We affirm in part, reverse in part,
and modify in part. 

http://www.tba.org/tba_files/TCA/2005/fullerw82205.pdf

DeANGELO BEETHOVEN NEWMAN v. LISA MICHELLE MYATT

Court: TCA

Attorneys:

Christopher P. Capps, Morristown, Tennessee, for appellant. 

M. Stanley Givens, Johnson City, Tennessee, for appellee. 

Judge: FRANKS

The father filed a Petition to change custody of minor son from
mother to father.Upon hearing evidence, the Trial Court held there
had been a material change of circumstances and it was in the childās
best interest to award custody to the father.On appeal, we affirm. 

http://www.tba.org/tba_files/TCA/2005/newmand82205.pdf

KIM WELLS, ET AL. v. HAMBLEN COUNTY TENNESSEE, ET AL. 

Court: TCA

Attorneys:

Larry V. Roberts, Kingsport, Tennessee, for the appellants, Kim
Wells, Individually, Kim Wells, Next of Kin of Matthew Wells,
Deceased. 

Gary M. Prince, P. Alexander Vogel, Knoxville, Tennessee, for the
appellee, Hamblen County Tennessee d/b/a Hamblen County Sheriffās
Department. 

Judge: COTTRELL

The trial court dismissed an action against the county arising from a
deputy sheriffās allegedly negligent failure to arrest a man who had
just assaulted his former girlfriend, the mother of his child. The
man later murdered his young son.The mother of the child
appealed.Because the public duty doctrine provided a shield from
liability, and the complaint did not allege facts sufficient to
establish the special duty exception, we affirm the trial court. 

http://www.tba.org/tba_files/TCA/2005/wellsk82205.pdf

SYLVIA T. WILSON v. EMILY PRICE 

Court: TCA

Attorneys:

C. Douglas Fields, Crossville, Tennessee, for the appellant, Sylvia
T. Wilson. 

Farrell A. Levy and Jennifer L. Chadwell, Knoxville, Tennessee, for
the appellee, Emily Price.

Judge: FARMER

Plaintiff Price brought this cause of action for ejectment.Defendant
Wilson invoked the affirmative defenses of adverse possession, the
statutory limitations period prescribed at Tennessee Code Annotated ¤
28-2-103, and laches.The trial court determined that Defendant had not
met the elements of adverse possession upon finding Defendantās use of
Plaintiffās property was permissive. The trial court entered judgment
for Plaintiff, and Defendant appeals.We reverse in part, vacate in
part, and remand for entry of judgment consistent with this opinion.


http://www.tba.org/tba_files/TCA/2005/wilsons82205.pdf

STATE OF TENNESSEE v. ANTONIO SANDERS

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender, Phyllis L. Aluko (on
appeal), Robert C. Felkner, and Kindle Elizabeth Nance, Assistant
Public Defenders, for the appellant, Antonio Sanders. 

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Paul F. Goodman and Michelle L. Kimbril-Parks, Assistant
District Attorneys General, for the appellee, State of Tennessee. 

Judge: TIPTON

A Shelby County Criminal Court Jury convicted the defendant, Antonio
Sanders, of two counts of first degree felony murder; two counts of
aggravated robbery, a Class B felony; one count of aggravated
burglary, a Class C felony; and five counts of attempted aggravated
robbery, a Class C felony.The trial court merged the two counts of
first degree murder together and the two counts of aggravated robbery
together and sentenced the defendant to life imprisonment for the
felony murder, eight years for the aggravated robbery, three years
for the aggravated burglary, and three years for each count of
attempted robbery, all to be served concurrently.The defendant
appeals, claiming that the evidence is insufficient, that the trial
court improperly approved the use of an interpreter at trial, and
that the trial court erred in ordering the sequestration of the
jury.We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/sandersa82205.pdf

STATE OF TENNESSEE v. ARTHUR T. COPELAND 

Court: TCCA

Attorneys:

Randall E. Reagan, Knoxville, Tennessee; Gerald L. Gulley, Jr.,
Knoxville, Tennessee (on appeal); W. Phillip Reed, Maryville,
Tennessee; and Robert W. White, Maryville, Tennessee (at trial), for
the appellant, Arthur T. Copeland.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Alice B. Lustre, Assistant Attorney General;
Michael L. Flynn, District Attorney General; Kirk Andrews, Assistant
District Attorney General; and Edward P. Bailey, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee. 

Judge: WITT

The defendant, Arthur T. Copeland, was convicted by a Blount County
jury of one count of first degree premeditated murder.The jury found
that the state proved one aggravating circumstance: The defendant was
previously convicted of one or more felonies involving violence to the
person. Upon its further finding that the aggravating circumstance
outweighed the mitigating circumstances beyond a reasonable doubt,
the jury sentenced the defendant to death.In this appeal as of right,
the defendant raises issues regarding the sufficiency of the evidence;
the exclusion of jurors; an invalid indictment; the admission of
certain testimony; the exclusion of expert testimony;his right to
testify in his own defense; the denial of due process; the denial of
his motion for continuance; the denial of his motion to suppress;
error by the trial court during voir dire; the denial of a change of
venue; prosecutorial misconduct during closing argument in the guilt
and sentencing phases; discovery violations by the prosecution; error
in allowing the introduction of certain photographs; denial of a
request for a special jury instruction; the failure to charge the
jury on a self-defense theory; the refusal to disqualify the district
attorney's office; the refusal to excuse trial counsel from post-trial
representation of the defendant; the failure to grant a new trial
based on newly discovered evidence; improper jury instructions; the
denial of expert funding for development and use of mitigation
evidence; the admission of photos of the victim; the cumulative
effects of errors during the guilt and sentencing phases; and various
constitutional challenges to the death penalty and to the statutory
capital sentencing procedure in this state.After review, this court
concludes that reversible error attended the trial court's response
to defendant's decision not to testify and that the death penalty in
this case is disproportionate to the particular offense.We therefore
reverse the conviction and sentence. 

http://www.tba.org/tba_files/TCCA/2005/copelanda82205.pdf

STATE OF TENNESSEE v. JUSTIN PAUL BRUCE 

Court: TCCA

Attorneys:

J. Thomas Marshall, Jr., District Public Defender, for the Appellee,
Justin Paul Bruce. 

Paul G. Summers, Attorney General & Reporter; David E. Coenen,
Assistant Attorney General; James N. Ramsey, District Attorney
General; and Jan Hicks, Assistant District Attorney General, for the
Appellant, State of Tennessee. 

Judge: WITT

Before the court is an appeal by the State as of right pursuant to
Rule 3(c) of the Tennessee Rules of Appellate Procedure.The
defendant, Justin Paul Bruce, moved to suppress evidence seized
during a search of his automobile.The trial judge concluded that the
evidence had been illegally seized and granted the motion to
suppress.We affirm the judgment of the trial court and remand this
case for further proceedings. 

http://www.tba.org/tba_files/TCCA/2005/brucej82205.pdf

LEROY HALL, JR. v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Donald E. Dawson and Paul J. Morrow, Nashville, Tennessee, for the
appellant, Leroy Hall, Jr.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William H. Cox, District Attorney
General; Barry A. Steelman, Assistant District Attorney General, for
the Appellee, State of Tennessee. 

Judge: WEDEMEYER

In 1992, a jury convicted the Petitioner, Leroy Hall, Jr., of first
degree premeditated murder and aggravated arson, and it sentenced him
to death for the first degree murder conviction.The trial court
imposed a consecutive twenty-five year sentence for the aggravated
arson conviction.On direct appeal, the Tennessee Supreme Court
affirmed the Petitionerās convictions and sentences.See State v.
Hall, 958 S.W.2d 679 (Tenn. 1997), cert. denied, 524 U.S. 941
(1998).The Petitioner filed a pro se petition for post-conviction
relief, which was subsequently amended by appointed counsel. After an
evidentiary hearing, the post-conviction court dismissed the
petition.The Petitioner appeals that judgment, contending that: (1)
his trial counsel rendered ineffective assistance at trial; (2) the
post-conviction court erroneously denied the Petitionerās request for
an expert attorney to establish his claim of ineffective assistance of
counsel; and (3) the death sentence violates the Petitionerās rights
under the federal and State constitutions and international law.After
throughly reviewing the record and the applicable law, we conclude
that there exists no reversible error.Accordingly, we affirm the
judgment of the post-conviction court. 

http://www.tba.org/tba_files/TCCA/2005/halll82205.pdf

STATE OF TENNESSEE v. JEREMIAH E. HAYES 

Court: TCCA

Attorneys:

Howard Laxon Upchurch, Pikeville, Tennessee, for the appellee,
Jeremiah E. Hayes. 

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and James W. Pope, III, Assistant District Attorney General,
for the appellant, State of Tennessee. 

Judge: MCLIN

The State has appealed to this Court pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure from an interlocutory order of
the trial court suppressing evidenceresulting from a search and
seizure.The question presented for our review is whether the
defendant had standing to contest the search of an outbuilding
located on property near his premises.Upon review of the record, we
affirm the trial courtās findings that the defendant had a reasonable
expectation of privacy in the outbuilding but not in the area
surrounding the outbuilding.

http://www.tba.org/tba_files/TCCA/2005/hayesj82205.pdf

STATE OF TENNESSEE v. JONATHAN RAY TAYLOR 

Court: TCCA

Attorneys:

Kevin C. Angel, Oak Ridge, Tennessee, for the Appellant, Jonathan Ray
Taylor.

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: WEDEMEYER

As a result of the shooting death of his wife, the Anderson County
Grand Jury indicted the Defendant, Jonathan Ray Taylor, for second
degree murder and reckless homicide.A plea agreement was reached in
which the second degree murder count would be dismissed and the
Defendant would plead guilty to reckless homicide and receive a two
year sentence.The trial court rejected this plea agreement.The State
then attempted to nolle prosequi the second degree murder charge, and
the trial court refused to allow the nolle prosequi.We granted the
Defendantās application for interlocutory appeal to address whether
the trial court erred: (1) when it rejected the proposed plea
agreement; (2) when it denied the Stateās request to enter a nolle
prosequi on the charge of second degree murder; and (3) when it
refused to recuse itself.Finding that there exists no reversible
error, we affirm the judgment of the trial court. 

http://www.tba.org/tba_files/TCCA/2005/tayloj82205.pdf

STATE OF TENNESSEE v. LARRY VAUGHN, ALIASDEMERTRUIS MOORE 

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender; Donna Robinson Miller,
Assistant District Public Defender (on appeal) and Steve Brown,
Assistant Public Defender (at trial), for the appellant, Larry
Vaughn, alias Demertruis Moore. 

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William H. Cox, District Attorney
General; and Bates Bryan, Assistant District Attorney General, for
the appellee, State of Tennessee. 

Judge: MCLIN

The defendant, Larry Vaughn, alias Demertruis Moore, appeals the
revocation of his community corrections sentence by the Hamilton
County Criminal Court.He argues that the record does not contain
sufficient evidence to support the revocation.We affirm the judgment
of the trial court. 

http://www.tba.org/tba_files/TCCA/2005/vaughnl82205.pdf

STATE OF TENNESSEE v. LARRY WALCOTT 

Court: TCCA

Attorneys:

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Larry
Walcott. 

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and James W. Pope, Assistant District Attorney General, for
the appellee, State of Tennessee. 

Judge: WELLES

The Defendant, Larry Walcott, was convicted by a jury of aggravated
assault.The trial court sentenced the Defendant as a Range I,
standard offender to five and one-half years in the Tennessee
Department of Correction.In this appeal as of right, the Defendant
raises four issues:1) whether the trial court erred in refusing to
recuse itself; 2) whether the trial court erred in refusing to
sequester the jury; 3) whether the evidence is sufficient to support
his conviction; and 4) whether the trial court erred in ordering the
Defendant to serve his sentence in confinement.Finding no reversible
error in the issues raised by the Defendant, we affirm the judgment
of the trial court. 

http://www.tba.org/tba_files/TCCA/2005/walcottl82205.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

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 Appellantās judgments of
conviction. 

http://www.tba.org/tba_files/TCCA/2005/davisj82205.pdf

STATE OF TENNESSEE v. MICHELLE TIPTON 

Court: TCCA

Attorneys:

Dennis Campbell, Sevierville, Tennessee, for the Appellant, Michelle
Tipton. 

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant AttorneyGeneral; Al Schmutzer, Jr., District Attorney
General; and Steve Hawkins, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Michelle Tipton, was convicted by a Sevier County jury
of the first degree felonymurder and second degree murder of Pamela
Hale.The trial court merged the second degree murder conviction with
her first degree felony murder conviction, resulting in a sentence of
lifeimprisonment.On appeal, Tipton raises the following issues for our
review: (1) whether the evidence was sufficient to support the
verdicts; (2) whether the District Attorney Generalās officeshould
have been disqualified from prosecuting the case based upon
Appellantās co-counselās subsequent employment with the State; (3)
whether the testimony of two witnesses should havebeen excluded due
to disclosure violations; (4) whether the trial court abused its
discretion in admitting into evidence certain photographs of the
deceased and a portion of the deceasedāsskull; (5) whether the
Stateās closing argument was proper; (6) whether the trial court
erred in admitting her co-defendantās statement; and (7) whether the
trial court should have instructed thejury with regard to parole
eligibility.After a review of the record, we reverse Tiptonās
conviction for second degree murder based on the trial courtās
failure to instruct the juryconcerning the natural and probable
consequences rule.However, a review of the issues raised on appeal
reveals no error.Accordingly, Tiptonās conviction and sentence for
first degree felonymurder are affirmed. 

http://www.tba.org/tba_files/TCCA/2005/tiptonm82205.pdf

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