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TODAY'S OPINIONS: Friday, September 30, 2005
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.

04 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
02 - TN Court of Criminal Appeals
03 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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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

STATE OF TENNESSEE v. STANLEY RAY DAVIS IN RE: RAY D. DRIVER d/b/a DRIVER BAIL BONDS

Court: TSC

Attorneys:

Joel H. Moseley, Sr., and Joel H. Moseley, Jr., Nashville, Tennessee, for the appellant, Ray D. Driver d/b/a/ Driver Bail Bonds.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIRCH

We granted the applications of the State and Ray Driver d/b/a Driver Bail Bonds pursuant to Tennessee Rule of Appellate Procedure 11 in order to determine whether the imposition of sentence upon Stanley Ray Davis, the defendant, effectively terminated Driverās obligations under an appearance bond, and whether Driver is liable for the payment of the fine and costs assessed against the defendant. Although the issue was contested in the Court of Criminal Appeals, in its brief and oral argument to this Court, the State concedes that Driverās obligation to secure the defendantās appearance terminated upon imposition of sentence upon him and entry of judgment. We hold that Driverās obligation terminated upon Davisā sentencing and reverse the decision of the Court of Criminal Appeals and remand the case to the Criminal Court for Campbell County for further orders in aid of this opinion.

http://www.tba.org/tba_files/TSC/2005/daviss93005.pdf


STATE OF TENNESSEE v. DAVID KYLE GILLEY

Court: TSC

Attorneys:

Alfred H. Knight and Roger T. May, Nashville, Tennessee, for the Appellant, David Kyle Gilley.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Joseph F. Whalen, Associate Solicitor General; William C. Whitsell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ANDERSON

We granted review of this interlocutory appeal to address the admissibility of prior acts of physical abuse committed by the defendant against the victim and others under Rule 404(b) of the Tennessee Rules of Evidence. The trial court ruled prior to trial that the Stateās evidence of the defendantās prior acts was admissible in part and inadmissible in part. After granting an interlocutory appeal as requested by both the defendant and the State, the Court of Criminal Appeals held that prior acts of physical abuse committed by a defendant against a victim are per se admissible at trial and that there is no longer a requirement for such a prior act to be relevant to a contested issue. After our review of the record and applicable authority, we hold (1) that the trial court and the Court of Criminal Appeals erred in granting interlocutory review of the trial courtās pretrial ruling on the admissibility of the evidence under Rule 404(b), and (2) that the Court of Criminal Appeals erred in holding that prior acts of physical abuse committed by a defendant against a victim are per se admissible at trial. As a result, the Court of Criminal Appealsā judgment is reversed, and the case is remanded to the trial court for further proceedings.

http://www.tba.org/tba_files/TSC/2005/gilleyd93005.pdf


STATE OF TENNESSEE v. VINCENT JACKSON

Court: TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General; William L. Gibbons, District Attorney General; and Daniel R. Woody, Assistant District Attorney General, for the appellant, State of Tennessee.

Robert L. Parris, Memphis, Tennessee (at post-trial hearing and on appeal); Mike Roberts, Memphis, Tennessee (at post-trial hearing); and Betty Thomas, Assistant Public Defender (at trial), for the appellee, Vincent Jackson.

Judge: BIRCH

We granted the Stateās application to appeal in this case pursuant to Tennessee Rule of Appellate Procedure 11 to determine, in light of the 1989 Revision of the Criminal Code, whether the longhonored rule that a homicide is presumptively second degree murder should be abandoned. Because our current statutory scheme requires that each element of the charged offense be proved beyond a reasonable doubt, we hold that the second degree murder presumption is now obsolete. Additionally, we have addressed the sufficiency of the evidence without engaging the presumption, and we conclude that the evidence presented is insufficient to convict the defendant of first degree murder (premeditated) beyond a reasonable doubt. The evidence is, however, sufficient to support the conclusion that the defendant knowingly killed the victim and, thereby, committed second degree murder. Accordingly, we affirm the judgment of conviction entered by the Court of Criminal Appeals and remand the case to the trial court for a new sentencing hearing.

http://www.tba.org/tba_files/TSC/2005/jacksonv93005.pdf


JANICE W. PURKEY, ET AL. v. AMERICAN HOME ASSURANCE COMPANY d/b/a AIG INSURANCE COMPANY, ET AL.

Court: TSC

Attorneys:

A. James Andrews and Sidney W. Gilreath, Knoxville, Tennessee, for the Plaintiff/Petitioner, Janice W. Purkey.

Melinda Meador and Erica Greene, Knoxville, Tennessee, and Sylvia H. Walbolt, Tampa, Florida, for the Defendant/Respondent, American Home Assurance Company d/b/a AIG Insurance Company.

R. Layne Holley, Germantown, Tennessee, for the Amicus Curiae, The Property Casualty Insurers Association of America.

Judge: ANDERSON

We accepted three questions certified to this Court from the United States District Court for the Eastern District of Tennessee concerning whether provisions in automobile insurance liability policies that exclude coverage for bodily injury to household or family members of the insured are void as against Tennessee law or public policy. We conclude that such provisions are valid.

http://www.tba.org/tba_files/TSC/2005/purkeyj93005.pdf


THOMAS ALBERT DOLAN v. BRUCE POSTON, ET AL.

Court: TCA

Attorneys:

Travis Hawkins, Nashville, Tennessee, for the appellant, Thomas A. Dolan.

Thomas Anthony Swafford, David L. Johnson, Nashville, Tennessee, for the appellees, Bruce E.Poston, and East Tennessee Banking Corp. and Environmental Ink, Inc.

Judge: COTTRELL

The plaintiff is a former University of Tennessee faculty member. He was dismissed from hisposition after the defendant corporate officer circulated a letter to government officials accusing him of using numerous deceptions in the procurement of a grant from the United StatesDepartment of Energy. The plaintiffās pro se defamation lawsuit named the defendant in both his individual and his corporate capacities. The trial court dismissed the claim against thedefendant in his individual capacity under Tenn. R. Civ. P. 12.02(6) and certified the dismissal as final under Tenn. R. Civ. P. 54.02 so it could be appealed. We reverse the trial court.

http://www.tba.org/tba_files/TCA/2005/dolant93005.pdf


BELINDA CAROL MCGRORY FORBES v. PHILIP DALE FORBES

Court: TCA

Attorneys:

Jeffrey Jones of Bartlett, Tennessee for Appellant, Philip Dale Forbes

Leslie Gattas Coleman of Memphis, Tennessee for Appellee, Belinda Carol McGrory Forbes

Judge: CRAWFORD

This is a post-divorce modification of child support case. The trial court reversed theDivorce Referee and found that the provisions of a Marital Dissolution Agreement unambiguously obligated Father/Appellant to pay child support based upon his stated earningcapacity for 1998. Finding that the Marital Dissolution Agreement, by its plain language, is modifiable, we reverse and remand.

http://www.tba.org/tba_files/TCA/2005/forbesb93005.pdf


STATE OF TENNESSEE v. DEBRA ELAINE KIRK

Court: TCCA

Attorneys:

Edward Cantrell Miller, District Public Defender, and Keith A. Haas, Assistant Public Defender,Newport, Tennessee (at trial), for the appellant, Debra Elaine Kirk.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant AttorneyGeneral; Al Schmutzer, Jr., District Attorney General; James Bruce Dunn, Assistant District Attorney, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Debra Elaine Kirk was indicted on one count of aggravated child abuse and onecount of felony murder. Following a jury trial, Defendant was convicted of aggravated child abuse of a child less than six years old, a Class A felony, and criminally negligent homicide, aClass E felony, and lesser included offense of felony murder. Following a sentencing hearing, the trial court sentenced Defendant as a Range I standard offender to twenty-five years for theaggravated child abuse conviction and two years for the criminally negligent homicide conviction. The trial court ordered Defendant to serve her sentences concurrently. In thisappeal, Defendant argues (1) that the length of sentence imposed for her aggravated child abuse conviction violated the principles set forth in the recent United States Supreme Courtās decisionin Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); (2) that the trial court erred in denying Defendantās motion to suppress her statement and in allowingDefendantās statement to be introduced into evidence; (3) that the trial court erred in allowing the admission of evidence of Defendantās prior drug use; (4) that the trial court erred in allowing Dr.Darinka Mileusnic to testify about certain toxicology test results; and (5) that the juryās verdicts were inconsistent. Because we determine that reversible error occurred in the trial courtāsadmission of evidence at trial of Defendantās prior drug use, we reverse the judgments of the trial court and remand for a new trial.

http://www.tba.org/tba_files/TCCA/2005/kirkd93005.pdf


ROBERT RIGGS v. STATE OF TENNESSEE
CORRECTED OPINION

Court: TCCA

Attorneys:

Robert Riggs, Pro Se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Alfred C. Schmutzer, Jr., District Attorney General; and Steven Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Robert Riggs, was convicted by a jury of three counts of misapplication of contract funds. His convictions were affirmed by this Court on direct appeal. See State v. Robert B. Riggs, No. E2000-01983-CCA-R3-CD, 2002 WL 1364031 (Tenn. Crim. App., Knoxville, June 25, 2002). The Tennessee Supreme Court denied the Defendantās application for permission to appeal. The Defendant subsequently filed a pro se petition for post-conviction relief, while he remained incarcerated. The State responded by filing a motion to dismiss on the grounds that the petition had been filed outside the statute of limitations. The Defendant contested the Stateās motion but the trial court granted it without a hearing. The Defendant now appeals the summary dismissal of his petition for post-conviction relief. We reverse the trial courtās ruling and remand this matter for an evidentiary hearing on the timeliness of the Defendantās petition.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/riggsr93005.pdf


Application of Tenn. Code Ann. ¤ 57-5-105(i) to Establishments Operating in a Structurally Separate Portion of a Building

TN Attorney General Opinions

Date: 2005-09-27

Opinion Number: 05-144

http://www.tba.org/tba_files/AG/2005/op144.pdf

Constitutionality of Population Bracket Exemptions of Chapter 495 of the Public Acts of 2005

TN Attorney General Opinions

Date: 2005-09-27

Opinion Number: 05-145

http://www.tba.org/tba_files/AG/2005/op145.pdf

County Employee as School Board Member

TN Attorney General Opinions

Date: 2005-09-27

Opinion Number: 05-146

http://www.tba.org/tba_files/AG/2005/op146.pdf

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