Opinion Flash

January 8, 2002
Volume 8 — Number 005

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
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
05 New Opinion(s) from the Tennessee Court of Appeals
12 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


IN THE MATTER OF: ALLAN RUSSELL BURKE V. MAUREEN JO BURKE

Court:TCA

AMENDMENT TO OPINION

http://www.tba.org/tba_files/TCA/burkevburkeamend.wpd

IN THE MATTER OF: ALLAN RUSSELL BURKE v. MAUREEN JO BURKE

Court:TCA

ORDER ON PETITION TO REHEAR

First Paragraph:

The appellant, Allen Russell Burke, has filed a petition to rehear in
the above styled case, contending that this Court's Judgment relies
upon matter of fact or law upon which the parties have not been heard
and that are open to reasonable dispute.  This Court readily
acknowledges the very capable representation of all parties by their
respective counsel.  However, having once again reviewed the record in
this case, we conclude that the Appellant's Petition for Rehearing is
respectfully denied.  The costs of this petition are divided equally
between the parties.

http://www.tba.org/tba_files/TCA/burkevburkeorder.wpd

FREEDOM BROADCASTING OF TN, INC., et al. v. TENNESSEE DEPARTMENT OF REVENUE

Court:TCA

Attorneys: 

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General and Margaret M. Huff, Assistant Attorney General,
for the Appellant, Tennessee Department of Revenue.

Larry D. Crabtree, Douglas R. Pierce, and R. Christopher Lowe,
Nashville, Tennessee, for the appellees, Freedom Broadcasting of TN,
Inc. and Holston Valley Broadcasting Corp.

Judge: FARMER

First Paragraph:

Taxpayers petitioned the Tennessee Department of Revenue seeking an
industrial machinery exemption from taxes on certain broadcasting
equipment pursuant to section 67-6-206 of the Tennessee Code.  After
the administrative law judge concluded that Taxpayers provided a
service and were not in the business of producing tangible personal
property, the Department issued a final denial of Taxpayers'
applications.  The Taxpayers appealed that decision to the chancery
court which reversed the administrative law judge's decision and held
that Taxpayers were entitled to the industrial machinery exemption. 
The Department appeals.  For the reasons set forth below, we affirm
the decision of the chancery court.

http://www.tba.org/tba_files/TCA/freedomopn.wpd

ROBERT VAUGHN ODOM v. MARY JO ODOM

Court:TCA

Attorneys:

Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Mary Jo
Odom.

Karla C. Hewitt, Nashville, Tennessee, for the appellee, Robert Vaughn
Odom.                         

Judge: KOCH

First Paragraph:

This appeal involves a bitter custody dispute over three children
between the ages of nine and fourteen.  During the divorce proceeding
in the Chancery Court for Dickson County, the parties agreed that the
mother would have custody of the children and also agreed on
visitation arrangements that accommodated the mother's planned move to
another state.  Several months after the entry of the divorce decree,
the father petitioned to change custody and to hold the mother in
contempt for interfering with his relationship with the children. 
During the ensuing three years, the parties traded allegations of
sexual and physical abuse of the children and other misconduct. 
Following a bench trial in December 1998, the trial court found that
there had been a material change in the children's circumstances and
granted the father custody of the children.  On this appeal, the
mother asserts that she was denied due process by the trial court's
refusal to require the parties and their children to undergo a
psychological examination and that the trial court unlawfully
delegated its judicial authority to a psychologist who had been
counseling the children.  We have determined that the mother received
an essentially fair hearing on this custody dispute and, therefore,
affirm the trial court.

http://www.tba.org/tba_files/TCA/odomrv.wpd

VP BUILDINGS, INC. v. POLYGON GROUP, INC., et al.

Court:TCA

Attorneys:  

Roger A. Maness, Clarksville, Tennessee, for the appellant, Dawn
Schmuck.

Michael K. Williamson, Craig Hargrow, Clarksville, Tennessee, for the
appellees, First Missionary Baptist Church of Clarksville, Inc., Fred
Dale, Trustee.

Judge: COTTRELL

First Paragraph:

In this appeal the sole shareholder and director of Polygon appeals
the trial court's decision to hold her personally liable for a debt
owed by Polygon.  The corporate officer contracted to do business in
Tennessee, knowing that Polygon was not qualified to do business here
and knowing that Polygon had not filed an annual report in three
years, which made it subject to administrative dissolution.  After
suit was filed against Polygon, the shareholder encumbered all of the
corporation's assets.  Further, after she was sued personally, she
filed to have Polygon's charter retroactively reinstated.  The trial
court held that the shareholder abused the corporate form, that the
corporate entity should be disregarded and that the sole shareholder
and director should be held personally liable.  We affirm the decision
of the trial court.

http://www.tba.org/tba_files/TCA/vpbuildings.wpd

STATE OF TENNESSEE v. DONALD W. BRANCH

Court:TCCA

Attorneys:

A.C. Wharton, Jr., District Public Defender; W. Mark Ward, Assistant
Public Defender; Mozella Ross, Assistant Public Defender; and Marty
McAfee, Assistant Public Defender, Memphis, Tennessee, for the
appellant, Donald W. Branch.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Michael Leavitt, Assistant District Attorney General; and
Glen Baity, Assistant District Attorney General, for the appellee,
State of Tennessee.                        

Judge: WOODALL

First Paragraph:

After Defendant was convicted of two counts of aggravated vehicular
homicide and one count of driving while license revoked, the trial
court imposed an effective sentence of forty-nine years in
confinement.  On appeal, Defendant argues that the evidence was
insufficient to sustain the convictions for aggravated vehicular
homicide, the trial court's instructions to the jury were erroneous,
the blood alcohol test results were admitted in error, the State's
closing argument was improper, and his sentence is excessive.  After a
thorough review of the record, we find that the trial court improperly
applied two enhancement factors.  However, the errors affect only
Defendant's sentence for one count of aggravated vehicular homicide
and, therefore, we reduce this sentence by six months.  We affirm the
judgment of the trial court in all other aspects.

http://www.tba.org/tba_files/TCCA/branchdw.wpd

STATE OF TENNESSEE v. ANTHONY DWIGHT COX

Court:TCCA

Attorneys:

J. Colin Morris, Jackson, Tennessee, for the appellant, Anthony Dwight
Cox.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Donald H. Allen, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: TIPTON

First Paragraph:

The defendant, Anthony Dwight Cox, appeals from his convictions for
aggravated rape and aggravated assault, contesting the sufficiency of
the evidence.  We affirm the judgments of conviction.

http://www.tba.org/tba_files/TCCA/coxad.wpd

STATE OF TENNESSEE v. CHARLES ORLANDO FIELDS

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P.
Atnip, District Public Defender and Kevin McAlpin, Assistant Public
Defender (on appeal); and Tom Rogers, South Fulton, Tennessee (at
trial), for the appellant, Charles Orlando Fields.

Paul G. Summers, Attorney General & Reporter; Laura McMullen Ford,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James T. Cannon, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Charles Orlando Fields, was indicted for one count of
selling one-half gram or more of cocaine within one thousand feet of a
school, a Class A felony, and one count of distributing one- half gram
or more of cocaine within one thousand feet of a school, a Class A
felony.  An Obion County Circuit Court jury convicted him of both
counts.  The trial court merged the distributing cocaine conviction
into the selling cocaine conviction and sentenced the defendant as a
Range II, multiple offender to thirty-three years in the Tennessee
Department of Correction.  The defendant appeals, contending that the
evidence is insufficient to support his conviction and that his
sentence is excessive.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/fieldsc.wpd

STATE OF TENNESSEE v. JOSEPH S. HAYES

Court:TCCA

Attorneys: 

Thomas C. Jessee, Johnson City, Tennessee, and Thomas Dossett,
Kingsport, Tennessee, for the Appellant, Joseph S. Hayes.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and James Goodwin, Assistant District Attorney General, for
the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

The defendant, Joseph S. Hayes, appeals the Sullivan County Criminal
Court's denial of alternative sentencing in the defendant's three
Class B misdemeanor convictions of assault. Finding no reversible
error, we affirm.

http://www.tba.org/tba_files/TCCA/hayesjs.wpd

ANTHONY M. HUNTER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Brent Horst (at hearing) and C. LeAnn Smith (on appeal), Nashville,
Tennessee, for the appellant, Anthony M. Hunter.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Victor S. Johnson, III, District
Attorney General; and Dan Hamm, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

This is an appeal from the denial of post-conviction relief.  The
petitioner contends he was deprived of the effective assistance of
counsel which led to an involuntary guilty plea.  We affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/hunteram.wpd

JASON MICHON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Jason Michon, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger D. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

Petitioner appeals the summary dismissal of his petition for
post-conviction relief after the trial court found it was barred by
the statute of limitations.  We conclude that due process
considerations may have tolled the running of the statute of
limitations if trial counsel misled petitioner concerning his
intention to pursue an appeal.  We, therefore, reverse and remand for
an evidentiary hearing on the issue of tolling.

http://www.tba.org/tba_files/TCCA/michonj.wpd

STATE OF TENNESSEE v. THOMAS WAYNE SHIELDS

Court:TCCA

Attorneys:

Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Thomas
Wayne Shields.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford,
Assistant Attorney General; Robert "Gus" Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: MCGEE OGLE

First Paragraph:

The appellant, Thomas Wayne Shields, challenges both his conviction by
a jury in the Circuit Court of Henry County of one count of assault
and his consequent sentence.  Following a thorough review of the
record and the parties' briefs, we affirm the judgment of the trial
court, concluding that (1) the evidence adduced at trial is sufficient
to support the appellant's conviction of assault; (2) the appellant
waived any objection to the trial court's response to a question posed
by the jury during deliberations, and the trial court's remarks do not
constitute plain error within the meaning of State v. Smith, 24 S.W.3d
274 (Tenn. 2000); and (3) the trial court properly denied the
appellant full probation.

http://www.tba.org/tba_files/TCCA/shieldstw.wpd

STATE OF TENNESSEE v. JOE DAVID SLOAN

Court:TCCA

Attorneys:

Clifford K. McGowan, Jr., Waverly, Tennessee (on appeal) and George
Morton Googe, District Public Defender; and Vanessa D. King, Assistant
Public Defender (at trial) for the appellant, Joe David Sloan.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; James G. Woodall, District Attorney
General; Shaun A. Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: WOODALL

First Paragraph:

The defendant was convicted of Class E felony evading arrest and
operating a vehicle without valid registration.  In this appeal, he
challenges his conviction for evading arrest and raises the following
issues: (1) whether the evidence is sufficient to support his
conviction; (2) whether the trial court erred by not charging the jury
on the lesser-included offense of "failure to yield to law enforcement
officials," Tenn. Code Ann. S 55-8-104; and (3) whether his sentence
is excessive when the trial court erred by imposing a sentence of four
years based, in part, on prior convictions which were not proved at
the sentencing hearing by certified copies of the judgments.  After a
review of the record, we find plain error in the conviction for felony
evading arrest, and reduce that conviction to misdemeanor evading
arrest.  Accordingly, we sentence Defendant to serve eleven (11)
months and twenty-nine (29) days, with a seventy-five (75%) percent
minimum service prior to release, concurrent with the conviction for
violation of vehicle registration law and consecutive to his prior
convictions in Gibson County as classified in the judgment of the
trial court.  We remand this matter to the trial court for entry of a
judgment in accordance with the opinion of this court.  We  affirm the
conviction for violation of the vehicle registration law.

http://www.tba.org/tba_files/TCCA/sloanj.wpd

STATE OF TENNESSEE v. JASPER EVERETT STEWART

Court:TCCA

Attorneys:

F. Glen Sisson (at trial) and K. Jayaraman (at trial and on appeal),
Memphis, Tennessee, for the appellant, Jasper Everett Stewart.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.                           

Judge: RILEY

First Paragraph:

A Tipton County jury convicted the defendant of first degree felony
murder, especially aggravated robbery, and theft under $500.  The
trial court sentenced the defendant to concurrent sentences of life
with the possibility of parole for first degree felony murder, 20
years for especially aggravated robbery, and 11 months and 29 days for
theft.  In this appeal, the defendant contends: (1) the trial court
erroneously admitted his tape-recorded telephone calls from the jail
and items seized from his residence; (2) the state failed to turn over
all tape recordings of his telephone conversations pursuant to his
discovery request; (3) the trial court erroneously permitted a state
witness to respond to an "open-ended" question in narrative form; and
(4) the trial court erroneously neglected to instruct the jury
concerning the definition of specific intent.  We affirm the judgments
of the trial court.

http://www.tba.org/tba_files/TCCA/stewartje.wpd

THOMAS A. STREET v. HOWARD CARLTON, WARDEN, and STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Thomas A. Street, Northeast Correctional Complex, Mountain City,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  and Patricia C. Kussmann, Assistant
Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner was convicted of first degree murder for a killing that
occurred in 1985, and was unsuccessful both in a direct appeal of his
conviction and a petition for post-conviction relief.  Subsequently,
he filed a petition for writ of habeas corpus, the denial of which is
the basis for this appeal.  In that petition, he claimed, as he had in
his earlier petition for post-conviction relief, that his conviction
should be reversed because the jurors were allowed to separate during
the trial.  Based upon our review, we affirm the post-conviction
court's dismissal of the petition.

http://www.tba.org/tba_files/TCCA/streethomasa.wpd

STATE OF TENNESSEE v. CHARLES WILBURN TAYLOR

Court:TCCA

Attorneys:

Craig L. Garrett, Maryville, Tennessee, for the appellant, Charles
Wilburn Taylor.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Daryl Roger Delp, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: GLENN

First Paragraph:

A petition to declare the defendant a motor vehicle habitual offender
was filed and served on him.  He did not appear at the hearing, where
a default judgment was entered.  Subsequently, he filed a motion to
set aside the default order, arguing that the service of the order on
him was inadequate.  The trial court denied the motion, and we affirm
that denial.

http://www.tba.org/tba_files/TCCA/taylorcharlesw.wpd

DERRICK WILLIAMS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Robert Little, Memphis, Tennessee, for the appellant, Derrick
Williams.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Alonda Horn Dwyer, Assistant District Attorney General,
for the appellee, State of Tennessee.                      

Judge: WOODALL

First Paragraph:

The petitioner, Derrick Williams, pled guilty to three counts of
simple robbery, a Class C felony, and one count of aggravated robbery,
a Class B felony.  The trial court sentenced Petitioner as a Range III
persistent offender to fifteen years for each of the simple robbery
convictions and twenty-five years for the aggravated robbery
conviction, with the sentences to be served concurrently for an
effective sentence of twenty-five years.  Thereafter, Petitioner filed
a pro se petition, with one amendment filed by appointed counsel, for
post-conviction relief alleging ineffective assistance of counsel. 
The post-conviction court denied Petitioner relief, which resulted in
this appeal wherein Petitioner claims ineffective assistance of
counsel based on the following: (1) counsel failed to argue that the
indictment concerning aggravated robbery was insufficient whereas it
did not allege an essential element of the offense, i.e., that
Petitioner used a deadly weapon to commit the crime; and (2) counsel
pressured Petitioner to plead guilty, which coercion caused his plea
to be involuntary and, therefore, constitutionally infirm.  After a
review of the record, we affirm the judgment of the post-conviction
court.

http://www.tba.org/tba_files/TCCA/williamsder.wpd

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