Opinion Flash

October 21, 2002
Volume 8 — Number 185

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.

This Issue (IN THIS ORDER):
00 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
00 New Opinion(s) from the Tennessee Court of Appeals
08 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


DANIEL M. JOHNSON v. SCHLEGEL TENNESSEE, INC. a/k/a/ BTR SEALING
SYSTEMS NORTH AMERICA OPERATIONS d/b/a BTR, INC. and CIGNA PROPERTY &
CASUALTY

Court:TSC - Workers Comp Panel

Attorneys:

F. R. Evans, Chattanooga, Tennessee, for the appellants, Schlegel
Tennessee, Inc. a/k/a BTR Sealing Systems, North America Operations
d/b/a BTR, Inc. and Cigna Property & Casualty.

Rex A. Dale, Lenoir City, Tennessee, for the appellee, Daniel M.
Johnson.                        

Judge: BYERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The
defendant appeals the trial judge's decision that the plaintiff has a
permanent disability to the mental faculties which was caused by
exposure to chemicals in the workplace.  We affirm the judgment of the
trial court.

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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_1021.wpd

STATE OF TENNESSEE v. CLARENCE W. CARTER

Court:TCCA

Attorneys:

C. Edward Fowlkes, Nashville, Tennessee, for the appellant, Clarence
W. Carter.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; John Zimmerman and Anna Escobar, Assistant District Attorneys
General, for the appellee, State of Tennessee.                        

Judge: SMITH

First Paragraph:

On March 29, 2000, a Davidson County jury convicted the defendant on
one count of conspiracy to sell three hundred grams or more of a
substance containing cocaine and one count of possession with intent
to deliver twenty-six grams or more of a substance containing cocaine.
 For the conspiracy conviction the trial court sentenced him to
thirty-six years as a multiple offender, and for the possession charge
the defendant received a sixteen-year sentence also as a multiple
offender.  In addition, the trial court fined the defendant one
hundred thousand dollars on each count.  The court then determined
that the possession conviction should run consecutively to the
conspiracy conviction resulting in an effective sentence of fifty-two
years.  After unsuccessfully pursuing a motion for a judgment of
acquittal and a new trial motion, the defendant brings this appeal
raising a variety of issues. More specifically, the defendant alleges
1) that the trial court erred by not granting him a judgment of
acquittal on the amended possession count; 2) that the charge of
"possession of over 26 grams of cocaine fatally varied with the
conviction of possession of over 26 grams of c[o]caine with intent to
sell"; 3) that the conspiracy count is void for failing "to allege an
overt act in pursuit of the conspiracy"; 4) that the evidence is
insufficient to support both convictions; 5) that the trial court
erred in failing to provide the lesser-included instruction regarding
conspiracy to sell or deliver under three hundred grams of cocaine; 6)
that the trial court erred in sentencing the defendant as a multiple
offender; and 7) that the trial court excessively sentenced the
defendant as a result of improperly ordering that the sentences
arising from this case are to be served consecutively. After
considering each of these, we find that none of them merit relief and,
therefore, affirm the defendant's convictions.

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

STATE OF TENNESSEE v. CHRISTOPHER LEE COOPER

Court:TCCA

Attorneys:

Mack Garner, District Public Defender, Maryville, Tennessee, for the
appellant, Christopher Lee Cooper.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Mike Flynn, District Attorney General; and
Edward P. Bailey, Jr., Assistant District Attorney General, for the
appellee, State of Tennessee.                       

Judge: WELLES

First Paragraph:

The Defendant, Christopher Lee Cooper, pled guilty to theft over $500,
a class E felony.  The length  and manner of service of the sentence
were to be determined by the trial court.  The trial court sentenced
the Defendant to two years in the Department of Correction as a Range
I standard offender.  The Defendant now appeals as of right the length
and manner of service of his sentence.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. ALLEN LEE DOTSON, SR.

Court:TCCA

Attorneys:

William H. Ortwein, Chattanooga, Tennessee, for the appellant, Allen
Lee Dotson, Sr.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Michael W. Catalano, Associate Solicitor General;
James Michael Taylor, District Attorney General; and Steven M. Blount,
Assistant District Attorney General, for the appellee, State of
Tennessee.                       

Judge: WILLIAMS

First Paragraph:

The defendant challenges the sufficiency of evidence, the trial
court's failure to declare a mistrial,  and the "knowing" jury
instruction as it relates to his second degree murder conviction.  We
hold no reversible error occurred at trial and affirm the judgment
from the trial court.

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

WILLIE TOM ENSLEY v. HOWARD CARLTON, WARDEN AND STATE OF TENNESSEE

Court:TCCA

Attorneys:

Willie Tom Ensley, Mountain City, Tennessee, Pro Se.

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

Judge: WEDEMEYER

First Paragraph:

In 1986, a Davidson County jury convicted the Petitioner of first
degree murder and aggravated rape. The trial court sentenced the
Petitioner to an effective sentence of life plus twenty-seven and a
half years in the Tennessee Department of Correction.  This Court
affirmed the Petitioner's convictions and sentences on direct appeal,
and the Tennessee Supreme Court denied permission to appeal.  The
Petitioner filed a petition for writ of habeas corpus in 2000,
alleging that he is entitled to habeas corpus relief because: (1)
count one of the indictment, charging the Petitioner with felony
murder,  contains no reference to the applicable statute; (2) count
two of the indictment, charging him with aggravated rape, fails to
state an offense because it omits the required allegation of the
appropriate mens rea for aggravated rape; and (3) count one of the
indictment is not signed by the district attorney general.  The trial
court denied the Petitioner's request for habeas corpus relief,
finding that the sufficiency of an indictment cannot be properly
challenged in a habeas corpus proceeding and finding that the
Petitioner failed to establish that the indictment was insufficient. 
After review, we conclude that the Petitioner has failed to establish
a claim for habeas corpus relief, and we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. JASON HAMILTON

Court:TCCA

Attorneys: 

Dwight E. Scott, Nashville, Tennessee, for the appellant, Jason
Hamilton.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; Victor S. Johnson, District Attorney General; and
Brian Holmgren, Assistant District Attorney General for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, Jason Hamilton, was convicted of first degree felony
murder, second degree murder, and attempted aggravated robbery.  The
victim was named Thomas Spivey.  The trial court merged the two murder
convictions and  sentenced the defendant to serve life in prison for
the merged conviction.   For his attempted aggravated robbery
conviction, the trial court ordered the defendant to serve a four-year
sentence concurrently with his life sentence.  The defendant now
appeals those convictions, arguing that the trial court erred by
denying his motion to suppress his self-incriminating statement and
that the evidence is insufficient to support his convictions.  After
reviewing the record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. JAMES F. MASSENGALE

Court:TCCA

Attorneys:       

Richard A. Tate, Blountville, Tennessee, for the appellant, James F.
Massengale.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; and Barry Staubus and Teresa Murray-Smith,
Assistant District Attorneys General, for the appellee, the State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, James F. Massengale, who had been charged with eight
counts of theft of property valued at greater than $10,000, three
counts of theft of property valued at more than $1,000, three counts
of attempted theft of property with a value greater than $10,000, and
one count of burglary of an automobile, was convicted of five counts
of theft over $10,000, one count of attempted theft over $10,000, and
one count of burglary of a vehicle.  The trial court imposed an
effective sentence of eighteen years, with ten years to be served in
the Department of Correction and eight years to be served on
probation.  In this appeal, the defendant asserts that the evidence is
insufficient to support the convictions and that the trial court erred
by ordering consecutive sentences.  The judgments of the trial court
are affirmed.

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

FREDERICK J. ROBINSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Kathleen G. Morris, Nashville, Tennessee, for the appellant, Frederick
J. Robinson.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson III,
District Attorney General; Sharon L. Brox and Roger D. Moore,
Assistant District Attorneys General, for the appellee, State of
Tennessee.                         

Judge: WILLIAMS

First Paragraph:

In 1999, petitioner pled guilty to three counts of first degree
pre-meditated murder and received three concurrent life sentences
without possibility of parole.  Petitioner now appeals from the denial
of his post-conviction relief petition, contending that his plea was
not made knowingly and voluntarily and that he had been denied the
effective assistance of counsel.  We affirm the post-conviction
court's  denial of post-conviction relief.

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

STATE OF TENNESSEE v. JERRY SIMMONS and CATHERINE MARTINEK

Court:TCCA

Attorneys:

H. Louis Sirkin and Jennifer M. Kinsley, Cincinnati, Ohio; John E.
Herbison, Nashville, Tennessee, for the appellants, Jerry Simmons and
Catherine Martinek; and Mitchell B. Dugan, Dickson, Tennessee (at
trial), for appellant Martinek.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Lee E. Dryer, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendants, Jerry Simmons and Catherine Martinek, were tried for
four counts of distribution of obscene material, a Class A
misdemeanor, in violation of Tenn. Code Ann. S 39-17-902.  Each was
convicted of all four offenses, sentenced to concurrent suspended
sentences of eleven months, twenty-nine days, and Simmons was ordered
to pay a fine of $2500 in each count.  Each appealed, alleging, inter
alia, that three of the videotapes were not obscene; that the trial
court improperly admitted check receipts into evidence; that the
prosecutor's final arguments were so improper as to constitute
reversible error; that the court improperly instructed the jury; and
that the proof was not sufficient to sustain the convictions. 
Additionally, Martinek argued that she was convicted of crimes for
which she was not indicted.  As to Martinek, we affirm the conviction
as to one of the videotapes, but reverse the convictions as to the
three remaining videotapes, the proof being insufficient as to her
having actual knowledge of their obscene nature.  Additionally, we
reverse all four of the convictions as to Simmons, the proof being
insufficient that he had knowledge of the obscene nature of the
videotapes. As to the reversed convictions of both defendants, we
dismiss the indictments.

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

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