Opinion Flash

January 22, 2002
Volume 8 — Number 013

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):
 
01 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 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
 

There are three ways for TBALink members to get the full-text versions of these opinions from the Web:

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.

Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

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


STATE OF TENNESSEE v. JOHN R. FARNER, JR.
OPINION ON PETITION TO REHEAR

Court:TSC

Judge: PER CURIAM

First Paragraph:

The State of Tennessee has filed a petition to rehear asking this
Court to reconsider certain portions of the opinion.

Contrary to the assertions of the petition the opinion does not
require the giving of a special "proximate cause" instruction in every
homicide case.  The opinion requires the giving of a general causation
instruction whenever the homicide offense does not itself explicitly
or implicitly include a causation instruction. As the State
recognizes, some of the homicide offenses include elements that
implicitly instruct the jury that a causation finding is necessary. 
Also without merit is the State's assertion that the suggested pattern
jury instruction set out in footnote 16 conflicts with existing law
and relieves the State of its burden of proof.  The State's petition
confuses criminal negligence and causation.  Both elements must be
proven beyond a reasonable doubt to establish criminally negligent
homicide.  Moreover, we emphasize that the language in footnote 16 is
merely a suggestion which may be accepted, revised, or rejected by the
Pattern Jury Instruction Committee.

Accordingly, the State's petition to rehear is DENIED.  Costs of this
petition are taxed to the State of Tennessee, for which execution may
issue if necessary. 

http://www.tba.org/tba_files/TSC/farnerr_reh.wpd

KHYVA PHIPPS  v. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA , et
al.

Court:TSC - Workers Comp Panel

Attorneys: 

B. Timothy Pirtle, McMinnville, Tennessee, for the appellants
Insurance Company of the State of Pennsylvania and Carrier
Corporation.

William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee for
the appellee, Khyva Phipps.
                         
Judge: WEATHERFORD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Panel of the Supreme Court in accordance with 
Tennessee Code Annotated S 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 appellants, Insurance Company of the State of Pennsylvania
and Carrier Corporation insist that: 1)  the trial court erred in
excluding the medical records of Dr. Robert Cannon, M.D. documenting
the employee's treatment for injuries sustained in a previous car
accident, which was offered into evidence by appellant through the
deposition of the physician's custodian of records; 2)  the evidence
preponderates against the trial court's finding that the plaintiff
suffered a compensable injury to her back under the Workers'
Compensation Act; and 3)  the trial court erred in its application of
the burden of proof as provided by the Workers' Compensation Act.
After a complete review of the entire record, the briefs of the
parties, and the applicable law, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TSC_WCP/phippskhyva.wpd

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0122.wpd

ASHAD R.A. MUHAMMAD ALI v. TENNESSEE BOARD OF PROBATION AND PAROLE, et
al.

Court:TCA

Attorneys:

Ashad R.A. Muhammad Ali, Wartburg, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General,
Nashville, Tennessee, for the appellees, Tennessee Board of Probation
and Parole, Charles Traughber, Ray Maples, Don Dills, John Greer and
Colis Newble, Jr.                           
 
Judge: CAIN
 
First Paragraph:

Petitioner seeks a writ of certiorari from the decision of the board
of paroles declining to grant him parole.  The Chancery Court of
Davidson County, Irvin H. Kilcrease, Jr., Chancellor, dismissed the
petition.  We affirm the chancellor.

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

TERRY BROUGH, et al. v. MURIEL GERMAINE ADCROFT

Court:TCA

Attorneys: 

Gary R. Wilkinson, Russell C. Rutledge, Memphis, TN, for Appellant

R. Sadler Bailey, Memphis, TN, for Appellees                         

Judge: HIGHERS

First Paragraph:

This appeal involves a trial court's grant of prejudgment interest on
arbitration awards.  Subsequent to an automobile accident, the
plaintiffs filed suit against their uninsured motorist policy carrier
and another individual involved in the accident.  The case proceeded
to arbitration and the plaintiffs were awarded $140,000.00, which was
paid by the insurance company.  Upon obtaining new counsel, the
plaintiffs learned of a relationship between the arbitrator and the
insurance company and motioned the court to vacate the arbitration
award.  The trial court granted plaintiff's motion and resubmitted the
case for a second arbitration.  The plaintiffs were awarded
$245,000.00 at the second arbitration and, soon after, motioned the
court for prejudgment interest on the award.  The trial court awarded
the plaintiffs $71,042.72 of prejudgment interest.  The insurance
company appealed the decision to grant  prejudgment interest and both
parties have contested the method of calculation employed by the trial
court.  For the following reasons, we affirm in part, vacate in part,
and remand this case for further proceedings consistent with this
opinion.

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

STATE OF TENNESSEE ex rel. PAULA DEAN BUCHANAN v. JOSEPH TULLY
BUCHANAN, III

Court:TCA

Attorneys: 

Thomas D. Frost, Murfreesboro, Tennessee, for the appellant, Joseph
Tully Buchanan, III.

Paul G. Summers, Attorney General and Reporter; and Stuart F.
Wilson-Patton, Assistant Attorney General, for the appellee, State of
Tennessee, ex rel. Paula Buchanan.                         

Judge: KOCH

First Paragraph:

This appeal involves a belated dispute over unpaid child and spousal
support.  After their divorce, the former spouses twice changed the
custody arrangements and support obligation in their 1993 divorce
decree without obtaining court approval.  In 1998, a private Title
IV-D contractor, acting on behalf of the State of Tennessee, filed
suit in the Circuit Court for Davidson County seeking to collect
$59,150 in unpaid child support and spousal support from the former
husband.  The trial court held that the former husband could not, as a
matter of law, assert the defenses of laches, estoppel, or waiver
against these claims, granted a $51,250 judgment against the former
husband, and placed a judgment lien against the former husband's
house.  While the trial court correctly determined that the former
husband could not assert equitable defenses with regard to the child
support arrearage, the trial court erred by refusing to permit him to
assert equitable defenses against the claim for unpaid spousal
support.  Accordingly, we vacate the portion of the judgment awarding
the wife $29,150 for unpaid spousal support and remand the case for
further proceedings.

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

IDA DOUGLAS, et al. v. WILLIAM O. FOSTER, et al.

Court:TCA

Attorneys:

John M. Cannon, Goodlettsville, Tennessee, for the appellants, Ida
Douglas and Dovie Allen.

John B. Holt, Springfield, Tennessee, for the appellees, William O.
Foster and Barbara Foster.                          

Judge: CANTRELL

First Paragraph:

The appellants, Ida Douglas and Dovie Allen, and appellees, William
and Barbara Foster, entered into a contract for the sale of a house. 
After the buyers had lived in the house for a few years, several
problems emerged.  The buyers sued the sellers for rescission of the
contract.  The trial court granted the sellers' motion for involuntary
dismissal after the presentation of the buyers' proof at trial.  We
affirm the decision of the trial court.

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

THOMAS W. HARRISON, et al. v. EARL LAURSEN, et al.

Court:TCA

Attorneys: 

Earl and Dolorita Laursen, Pulaski, Tennessee, Pro Se.

Thomas H. Peebles, Columbia, Tennessee, for the appellees, Thomas W.
Harrison, Terry Harrison and Brenda Harrison Kenamore.                         

Judge: CAIN

First Paragraph:

This appeal involves pre-judgment interest on unpaid attorney's fees. 
The defendants owed the law firm attorney's fees alleged to be in the
amount of $16,544.52 that accrued between November 1990 to April 1993.
 In 1996, the parties orally agreed to a lesser payment of $7,000.00
in settlement of the larger debt.  The defendants paid $1,500.00 but
failed to pay the remaining balance owed.  The trial court ordered
Defendants to pay pre-judgment interest on the unpaid fees and
Defendants appeal.  We affirm.

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

MERRIMACK MUTUAL FIRE INSURANCE COMPANY v. GLORIA C. BATTS

Court:TCA

Attorneys:

Raymond G. Prince, Nashville, Tennessee, for the appellant, Gloria C.
Batts.

Parks T. Chastain, Nashville, Tennessee, for the appellee, Merrimack
Mutual Fire Insurance Company.                          

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a homeowner and her insurance
company regarding the damages to her house caused by the tornado that
struck Nashville on April 16, 1998.  When they could not agree on the
amount of the loss, both parties invoked the insurance policy's
provision for the appointment of appraisers.  After the parties' two
appraisers could not agree on the amount of the loss, the two
appraisers selected a third appraiser who eventually agreed with the
homeowner's appraiser regarding the amount of the loss.  The insurance
company filed suit in the Chancery Court for Davidson County, seeking
a declaratory judgment that it was required to pay the homeowner less
than one-half of the amount of the loss calculated by the two
appraisers.  Both parties filed motions for partial summary judgment. 
The trial court granted the insurance company's motion, concluding
that the insurance policy's appraisal clause was not an agreement for
binding arbitration and that the appraisers had not been empowered to
determine whether parts of the claimed damage had been caused by a
peril covered by the policy.  The homeowner takes issue with both of
the trial court's legal conclusions on this appeal.  We have
determined that the trial court interpreted the insurance policy
correctly and, therefore, that the trial court properly concluded that
the insurance company was entitled to a judgment as a matter of law.

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

JOSEPH CARL PIERCE, SR., et al. v. CORRECTIONS CORPORATION OF AMERICA,
et al.

Court:TCA

Attorneys:

Joseph Carl Pierce, Sr., Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellees, Corrections
Corporation of America, Prison Management Services, Inc, Prison Realty
Trust, Inc. and Correctional Management Services Corporation.

Judge: FARMER

First Paragraph:

This is an appeal from an order of the trial court granting a motion
to dismiss the complaint for failure to state a claim upon which
relief can be granted.  We reverse in part and affirm in part.

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

DONALD M. TAYLOR v. MICHAEL C. GREENE, COMMISSIONER OF THE TENNESSEE
DEPARTMENT OF SAFETY

Court:TCA

Attorneys:  

John M. Higgason, Jr., Chattanooga, Tennessee, for the appellant,
Donald M. Taylor.

Paul G. Summers, Attorney General and Reporter; Paula D. Godsey,
Nashville, Tennessee, for the appellee, Commissioner Michael C. Greene.                        
 
Judge: CAIN

First Paragraph:

Donald M. Taylor appeals the judgment of the Chancery Court of
Davidson County, which affirmed forfeiture of his vehicle by the
Administrative Law Judge following a hearing pursuant to the Tennessee
Administrative Procedures Act.  Tenn. Code Ann. S 4-5-322.  We find
forfeiture of the vehicle to be an excessive fine under the Eighth
Amendment to the Constitution of the United States and under article
I, section 16 of the Tennessee Constitution, and accordingly, the
decision of the Chancellor is reversed.

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

STATE OF TENNESSEE v. CHAD DAVIS
WITH ORDER

Court:TCCA

Attorneys:

Leslie I. Ballin, Memphis, Tennessee, for the Appellant, Chad Davis.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and William Bond,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                          

Judge: HAYES

First Paragraph:

The Appellant, Chad Davis, pled guilty in the Shelby County Criminal
Court to DUI, second offense, and driving on a revoked license.  At
the sentencing hearing, Davis requested that he be permitted to serve
on work release the imposed forty-five day mandatory jail sentence for
DUI, second offense, and the consecutive two-day jail sentence for
driving on a revoked license.  The trial court found Davis was
ineligible for work release because he was self-employed.  Davis now
appeals this ruling.  In response, the State asserts that the trial
court was without authority under the provisions of the work release
statute, Tennessee Code Annotated S 41-2-128, to grant work release to
Davis or any other person convicted of  DUI, second offense, prior to
expiration of the minimum period of confinement.  After review, we
find the trial court's ruling misplaced.  Nonetheless, we conclude
that Davis was not entitled to "work release," as only the general
sessions court has the authority to grant work release under the
provisions of Tennessee Code Annotated S 41-2-128.

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

ORDER
http://www.tba.org/tba_files/TCCA/davischad_ord.wpd

STATE OF TENNESSEE v. PARKER ODELL DONEY, JR.

Court:TCCA

Attorneys:

Mike Carter, Gallatin, Tennessee, for the appellant, Parker Odell
Doney, Jr.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Sallie Wade Brown, Assistant District Attorney General,
for the appellee, State of Tennessee.                            

Judge: RILEY

First Paragraph:

The defendant, Parker Odell Doney, Jr., appeals his convictions for
one count of aggravated robbery and two counts of aggravated assault
and his sentences totaling fifteen years in the Department of
Correction.  The defendant contends the evidence presented against him
at trial was insufficient to support his convictions, and the trial
court erred in sentencing him.  After a thorough review of the record,
we reduce the aggravated assault sentences but otherwise affirm the
judgments of the trial court.

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

STATE OF TENNESSEE v. SHAUN MICHAEL FLEEGLE

Court:TCCA

Attorneys:

M. Jeffrey Whitt (on appeal and at trial) and Rick Clark (at trial),
Knoxville, Tennessee, for the Appellant, Shaun Michael Fleegle.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Randall Eugene Nichols, District Attorney
General; and G. Scott Green, Assistant District Attorney General, for
the Appellee, State of Tennessee.                          

Judge: WEDEMEYER

First Paragraph:

A Knox County jury found the Defendant guilty of voluntary
manslaughter, a Class C felony; and the trial court sentenced him as a
Range I, standard offender to five years, four of which were to be
served on probation.  The Defendant now appeals, arguing the
following: (1) that the trial court failed to properly consider
enhancement and mitigating factors during sentencing, and (2) that the
trial court erred in failing to grant judicial diversion.  Finding
that the trial court properly sentenced the Defendant, we affirm the
judgment of the trial court.

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

JOHN H. FRASURE, III v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Howard B. Manis, Memphis, Tennessee, for the appellant, John H.
Frasure, III.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Rosemary Andrews, Assistant District Attorney General for
the appellee, State of Tennessee.                         

Judge: TIPTON

First Paragraph:

The petitioner, John H. Frasure, III, appeals the Shelby County
Criminal Court's denial of his petition for post-conviction relief
from his guilty plea to especially aggravated robbery, a Class A
felony, and theft of property valued over ten thousand dollars but
less than sixty thousand dollars, a Class C felony.  The trial court
sentenced the petitioner as a violent offender to fifteen years in the
Tennessee Department of Correction for the especially aggravated
robbery conviction and as a Range I, standard offender to three years
for the theft of property conviction, to be served concurrently.  The
petitioner claims that he received the ineffective assistance of
counsel because his trial attorney (1) failed to prepare adequately
for trial because she did not interview any witnesses for the case and
did not hire an investigator to assist with the case; (2) did not
subpoena witnesses for a hearing to suppress the petitioner's
confession or trial; (3) failed to investigate thoroughly his mental
condition; and (4) failed to file a change of venue motion.  We affirm
the trial court's denial of the petition.

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

STATE OF TENNESSEE v. CLEANDER CLEON HARTMAN, JR.
WITH CONCURRING OPINION

Court:TCCA

Attorneys: 

Ernest W. Williams and Dana C. McLendon III, Franklin, Tennessee, for
the appellant, Cleander Cleon Hartman, Jr.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General;  Ronald L. Davis, District Attorney
General; and Derek Keith Smith, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: WILLIAMS

First Paragraph:

The defendant appeals from his convictions of aggravated sexual
battery, sexual battery by an authority figure, and sexual battery. 
We conclude that the conviction for Count Two of sexual battery by an
authority figure must be reversed and dismissed because stepparents as
a matter of law are not included in the statute under which the
defendant was indicted. Additionally, evidence of uncharged sex crimes
was erroneously admitted and inappropriately argued resulting in undue
prejudice to the defendant. The cumulative effect of these errors
requires a new trial on Count One and Count Three.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/hartmanccjr_con.wpd

BARTON L. HAWKINS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Robert Little, Memphis, Tennessee, for the Appellant, Barton L.
Hawkins.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Carnesale, Assistant District Attorney General, for
the Appellee, State of Tennessee.                          

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury convicted the Petitioner of rape, and the trial
court sentenced him as a Range I violent offender to eight years and
one day in the Tennessee Department of Correction.  The Petitioner
subsequently filed a petition for post-conviction relief.  The trial
court conducted a post- conviction hearing and denied relief.  The
Petitioner now appeals the denial of post-conviction relief, arguing
that he received ineffective assistance of counsel at trial. 
Specifically, he contends that his counsel (1) failed to aggressively
question the victim regarding consent; (2) failed to object to the
admission of expert testimony; (3) failed to aggressively
cross-examine the prosecution's expert witness concerning her
qualifications and her testimony in chief; (4) failed to prepare or
investigate the case; (5) failed to object to "prejudicial witness
examination and argument regarding the swapping of" a car battery; (6)
failed to discuss defense strategy with the Petitioner; (7) failed to
question the Petitioner about his knowledge of the victim's previous
sexual behavior; (8) failed to review the transcript from the
Petitioner's preliminary hearing; (9) failed to offer evidence of an
injury to the Petitioner's hand; (10) failed to argue in closing the
weight the jury should give testimony by the State's expert witness
and failed to object to the State's definition of reasonable doubt in
closing arguments; and (11) "failed to raise all probable issues on
appeal."  Having reviewed the record, we conclude that the
Petitioner's representation was not deficient and therefore affirm the
judgment of the trial court denying post-conviction relief.

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

GREGORY L. HOLLINGSWORTH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Pamela Drewery-Rodgers, Selmer, Tennessee, for the appellant, Gregory
Hollingsworth.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Jerry Woodall, Assistant District Attorney
General; and Al Earls, Assistant District Attorney General, for the
appellee, State of Tennessee.                          

Judge: WELLES

First Paragraph:

On May 3, 1999, the Defendant, Gregory L. Hollingsworth, pled guilty
to aggravated assault, vehicular assault, driving after being declared
an habitual motor vehicle offender, and two counts of criminal
impersonation.  The convictions were obtained in Madison County,
Tennessee.  The Defendant apparently did not appeal, but filed pro se
for post-conviction relief in Carter County, Tennessee, where he was
incarcerated.  The trial court summarily dismissed the petition for
improper venue.  The Defendant refiled his petition on May 25, 2000,
in Madison County, Tennessee.  The trial court summarily dismissed the
petition as barred by the one year statute of limitations.  The
Defendant now appeals.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. MARIO JOHNSON

Court:TCCA

Attorneys: 

AC Wharton, Jr., Public Defender; Garland Erguden, Assistant Public
Defender, Memphis, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Patience Branham Johnson,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                         

Judge: HAYES

First Paragraph:

The Appellant, Mario Johnson, was convicted by a Shelby County jury
for first-degree felony murder during the perpetration of a robbery
and was sentenced to life imprisonment with parole.  On appeal,
Johnson argues that the evidence presented at trial was insufficient
to support the verdict.  After review, we find no error and affirm the
judgment of the Shelby County Criminal Court.

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

STATE OF TENNESSEE v. EDDIE MEDLOCK

Court:TCCA

Attorneys:

AC Wharton, Jr., Public Defender; Tony N. Brayton, Assistant Public
Defender, Memphis, Tennessee, for the Appellant, Eddie Medlock.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Peter M. Coughlan, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jennifer Nichols,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                          

Judge: HAYES

First Paragraph:

The Appellant, Eddie Medlock, was convicted after a trial by jury of
two counts of aggravated rape and two counts of especially aggravated
kidnapping, class A felonies.  The Appellant, a Range III persistent
offender, was sentenced to sixty years on each count.  The Criminal
Court of Shelby County ordered the rape counts to run concurrent, the
kidnapping counts to run concurrent, and the rape and kidnapping
counts to run consecutively to each other, for an effective
one-hundred and twenty-year sentence.   On appeal, Medlock argues
that:  (1) his multiple punishments for especially aggravated
kidnapping and multiple punishments for aggravated rape violated
double jeopardy principles; (2) his convictions for especially
aggravated kidnapping violated due process principles of State v.
Anthony; (3) the evidence was insufficient to sustain his convictions;
(4) the trial court failed to articulate its findings of applicable
enhancing factors at sentencing; and (5) consecutive sentencing was
improper.  After  review, we find Medlock's multiple convictions for
especially aggravated kidnapping constitute double jeopardy. 
Accordingly, one count of especially aggravated kidnapping is reversed
and dismissed; the sentences and convictions for the remaining two
counts of aggravated rape and one count of especially aggravated
kidnapping are affirmed.

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

BEQUIR YMERLI POTKA, FATMIR AGOLLI, STAVRI POPA & EPISON PULAHA v.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Mark C. Scruggs, Nashville, Tennessee, for the Appellants, Bequir
Ymerli Potka, Fatmir Agolli, Stavri Popa, and Epison Pulaha.

Paul G. Summers, Attorney General & Reporter; Jennifer Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Brian Holmgren, Assistant District Attorney General, for
the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

We granted the defendants' application for interlocutory appeal, see
Tenn. R. App. P. 9, to review the trial court's disqualification of
defense counsel based upon conflicting interests in counsel's
representation of all four defendants.  Because we conclude that the
lower court acted within its discretion in disqualifying counsel from
multiple representation, we affirm.

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

TIMOTHY RATHERS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Robert Little and John Finklea, Memphis, Tennessee, for the appellant,
Timothy Rathers.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephanie Johnson, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: OGLE

First Paragraph:

The petitioner, Timothy Rathers, was convicted by a jury in the Shelby
County Criminal Court of one count of possessing less than ten pounds
of marijuana with intent to deliver and one count of possessing over
.5 gram of cocaine with intent to deliver.  The trial court sentenced
the petitioner to an effective sentence of ten years incarceration in
the Tennessee Department of Correction.  Subsequently, the petitioner
filed a petition for post-conviction relief alleging that he received
ineffective assistance of counsel at trial.  The post-conviction court
denied the petition, finding that the petitioner had not met his
burden of demonstrating counsel's ineffectiveness.  The petitioner
appeals. Upon review of the record and the parties' briefs, we affirm
the judgment of the post- conviction court.

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

STATE OF TENNESSEE v. JOE W. STEWARD

Court:TCCA

Attorneys:

Gary M. Howell, Columbia, Tennessee, for the appellant, Joe W.
Steward.

Paul G. Summers, Attorney General & Reporter; Marvin E. Clements, Jr.,
Assistant Attorney General; and Jeffrey L. Long, Assistant District
Attorney General, for the appellee, State of Tennessee.                          

Judge: WADE

First Paragraph:

The defendant, Joe W. Steward, was convicted of driving under the
influence, second offense, and possession of a weapon with intent to
go armed.  The trial court denied his challenge to the propriety of a
roadblock.  This court affirmed.  See State v. Joe Steward, No.
M1999-01284-CCA-R3-CD (Tenn. Crim. App., at Nashville, Aug. 18, 2000);
see also Tenn. R. App. P. 11.  Our supreme court granted an
application for permission to appeal and, after filing its opinion in
State v. Hicks, 55 S.W.3d 515 (Tenn. 2001), remanded the case to this
court for reconsideration.  By the guidelines established in Hicks, it
is apparent that the record is insufficient to establish a compelling
state interest to justify the roadblock.  The judgments of the trial
court are, therefore, reversed and the indictments are dismissed.

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

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN TBALink!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free!

For the Plain Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

For the HTML Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE HTML
3) Leave the body of the message blank

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

To STOP receiving TBALink Opinion-Flash:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank

© Copyright 2002 Tennessee Bar Association