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TODAY'S OPINIONS: Thursday, October 13, 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.

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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

THOMAS GARY WESTON, III v. WASTE MANAGEMENT, INC.

Court: TWCA

Attorneys:

Jerry Scott and Chad Allen Massey, Scott & Associates, Murfreesboro, TN,for the appellant, Thomas Gary Weston, III.

Elaine M. Youngblood, Ortale, Kelley, Herbert & Crawford, Nashville, TN,for the appellee, Waste Management, Inc.

Judge: TURNBULL

This workersā compensation appeal has been referred to the SpecialWorkersā Compensation Appeals Panel in accordance with Tenn. Code Ann. ¤ 50-6-225(e)(3) for hearing and reporting to the Supreme Court offindings of fact and conclusion of law. The employee appeals the trial courtās finding of no permanent disability. We conclude that the judgmentof the trial court should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/2005/westont101305.pdf


TINA M. LUNSFORD v. ROBERT W. LUNSFORD

Court: TCA

Attorneys:

Charlotte Lee Rhodes, Nashville, Tennessee, for the appellant, Tina M. Lunsford.

Connie Reguli, Brentwood, Tennessee, for the appellee, Robert W. Lunsford.

Judge: HARRIS

This case arose from the divorce of Tina M. Lunsford and Robert W. Lunsford, his untimelydeath, and a dispute between the estate of Robert W. Lunsford and Tina M. Lunsford as to the right to a pre-retirement death benefit provided by the Young Menās Christian AssociationRetirement Fund in which Mr. Lunsford participated. Even though Tina M. Lunsford was the designated beneficiary of the death benefit at the time of Mr. Lunsford died, the trial courtdetermined the intent of the parties evidenced by their marital dissolution agreement was to divest Tina Lunsford of any interest in his retirement plan. The trial court, by qualified domesticrelations order, directed the death benefit be paid to the contingent beneficiaries and Tina M. Lunsford appealed. Because of the specific language of the marital dissolution agreement, weaffirm.

http://www.tba.org/tba_files/TCA/2005/lunsfordt101305.pdf


STATE OF TENNESSEE V. WANDA G. AYERS

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attoney General; John H. Carney, District Attorney General; and Dan Brollier, Assistant District Attorney General, for the appellant, State of Tennessee.

Peter Olson and Tim Wallace, Clarksville, Tennessee, for the appellee, Wanda G. Ayers.

Judge: WADE

In March of 2002, the defendant, Wanda G. Ayers, was indicted for first degree murder, a class X felony, a crime which allegedly occurred in 1983. See Tenn. Code Ann. ¤ 39-2-202 (1982). The trial court granted a defense motion in limine to exclude expert testimony regarding the manner of death of the deceased. In this extraordinary appeal by the state, the single issue is whether the trial court properly excluded the testimony. Because it is our view that the trial court erred, the order is reversed and the cause is remanded for trial.

http://www.tba.org/tba_files/TCCA/2005/ayersw101305.pdf


STATE OF TENNESSEE v. KENNETH BEARD

Court: TCCA

Attorneys:

Emma Rae Tennent, Assistant Public Defender, Nashville, Tennessee (on appeal); Gary Tamkin and Diane McNamara, Assistant Public Defenders, Nashville, Tennessee (at trial), for the appellant, Kenneth Beard.

Paul G. Summers, Attorney General & Reporter; David E. Coenen, Assistant Attorney General; and Michael Rohling, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Kenneth Beard, entered a plea of guilty to rape, a Class B felony. The trial court imposed a Range I, eight-year sentence. Although the defendant was granted probation, the first year was intensely supervised and the entire term involved special conditions of release. After violating the terms of probation by testing positive for cocaine use and serving nine months in jail, the defendant was reinstated to probation. Shortly thereafter, another probation violation warrant was issued and the trial court required the defendant to serve an additional year in jail as a part of a split confinement sentence. Upon review after the one year period of incarceration, the trial court ordered execution of the original judgment, requiring service of the balance of the term in prison. The judgment of the trial court must be reversed and the cause remanded for service of the sentence on conditional probation.

http://www.tba.org/tba_files/TCCA/2005/beardk101305.pdf


CORTEZ BENNETT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles Walker, Nashville, Tennessee, for the Appellant, Cortez Bennett.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Kristen Shea, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A jury convicted the Petitioner, Cortez Bennett, of first degree premeditated murder, felony murder, attempted first degree murder, and two counts of especially aggravated robbery. This court affirmed the convictions on direct appeal and the Tennessee Supreme Court denied review. The Petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed after a hearing. The Petitioner appeals, contending that his trial counsel rendered ineffective assistance of counsel at trial. After thoroughly 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/bennettc101305.pdf


JASON CRAWFORD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John Dixon, John H. Baker, III, and Donald M. Bulloch, Jr., Murfreesboro, Tennessee, for the appellant, Jason Crawford.

Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General; and Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The petitioner, Jason Crawford, appeals the denial of his petition for post-conviction relief. The single issue presented for review is whether he was denied the effective assistance of counsel. The judgment of the post-conviction court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/crawfordj101305.pdf


STEVEN PAUL DESKINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Steven Deskins.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bernard F. McEvoy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The petitioner, Steven Paul Deskins, was convicted of seven (7) counts of rape of a child and four (4) counts of aggravated sexual battery. On appeal, this Court reversed one (1) of the petitionerās convictions for aggravated sexual battery, finding that it violated due process and double jeopardy, but otherwise affirmed the remaining convictions. See State v. Steven Paul Deskins, No. M200201808-CCA-R3-CD, 2003 WL 21957083 (Tenn. Crim. App., at Nashville, Aug. 14, 2003), perm. app. denied (Tenn. Jan. 5, 2004). The petitioner filed a petition for post-conviction relief alleging, inter alia, ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied post-conviction relief. After a thorough review of the record and the applicable authorities, we affirm the judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/deskinss101305.pdf


STATE OF TENNESSEE v. BRYAN JOHN DROST

Court: TCCA

Attorneys:

J. Barney Witherington IV, Covington, Tennessee, for the Appellant, Bryan John Drost.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Bryan John Drost, was convicted by a Tipton County jury of possession of .5 grams or more of cocaine with the intent to deliver, and he was subsequently sentenced to ten years and six months confinement in the Department of Correction. On appeal, he challenges the trial courtās denial of his motion to suppress, arguing that the affidavit given in support of the warrant was insufficient to establish probable cause because: (1) it failed to establish that the informant was, as alleged, a citizen informant; and (2) the affidavit failed to demonstrate the informant's reliability and credibility as required by Jacumin. After review of the record, we find no error and affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/drostb101305.pdf


STATE OF TENNESSEE v. MICHAEL CARNELL JONES

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender and Donna Robinson Miller, Assistant District PublicDefender, for the appellant, Michael Carnell Jones.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant AttorneyGeneral; and Bill Cox, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Michael Carnell Jones, appeals from the trial courtās revocation of his communitycorrections sentence. For the following reasons, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/jonesm101305.pdf


STATE OF TENNESSEE v. DEON LARKINS

Court: TCCA

Attorneys:

Jonathan E. Richardson, Nashville, Tennessee, for the appellant, Deon Larkins.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Michael Rohling, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Deon Larkins, was convicted by a jury of carjacking. As a result, the trial court sentenced the appellant to twelve (12) years. On appeal, the appellant argues: (1) that the trial court erred in denying his motion to suppress; (2) that the trial court erred in failing to sustain the objections regarding hearsay; (3) that the trial court erred in denying the motion to dismiss based on a false warrant; (4) that the trial court should have granted a mistrial because the jury made a statement that was unfairly prejudicial; (5) that the appellantās constitutional rights were violated because of a ćsecond settingä of the jury after the first panel of jurors was dismissed; (6) that the trial court erred by not ćbringingä a material witness to testify; (7) that the evidence was insufficient to support the appellantās conviction; and (8) the appellantās sentence is excessive. After a thorough review of the evidence, we determine that a number of the appellantās first six (6) issues are waived for failure to prepare an adequate record for our review. As to the remaining issues, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/larkinsd101305.pdf


FREDRICK SLEDGE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gerald Skahan, Memphis, Tennessee, for the appellant, Fredrick Sledge.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alexia Fulgham, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Fredrick Sledge, appeals the trial courtās dismissal of his petition for post-conviction relief. In this appeal, Petitioner argues that his counselās representation at trial was deficient because he failed to file a motion to suppress Petitionerās statement to the police, and he failed to investigate Petitionerās case or interview any witnesses. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/sledgef101305.pdf


District Attorney Generalās Subpoena Authority Under Tenn. Code Ann. ¤ 40-17-123

TN Attorney General Opinions

Date: 2004-10-10

Opinion Number: 05-153

http://www.tba.org/tba_files/AG/2005/op153.pdf

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