Opinion Flash

November 14, 2002
Volume 8 — Number 201

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):
02 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
06 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


STATE OF TENNESSEE v. TAKEITA M. LOCKE
Corrected Opinion

Court:TSC

Attorneys: 

Wade V. Davies (on appeal) and Gerald Lee Gulley, Jr. (at trial),
Knoxville, Tennessee for the appellant, Takeita M. Locke.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and G. Scott Green,
Assistant District Attorney General, for the appellee, State of
Tennessee.                         

Judge: BARKER

First Paragraph:

The defendant, Takeita M. Locke, was tried and convicted in the Knox
County Criminal Court of felony murder and especially aggravated
robbery in the death of Chuck Newman. The Court of Criminal Appeals
unanimously affirmed both convictions.  We granted this appeal to
determine if the trial court committed reversible error by failing to
instruct the jury on certain lesser-included offenses of felony
murder, namely: second degree murder, reckless homicide, and
criminally negligent homicide.  Additionally, with respect to her
conviction for especially aggravated robbery, the defendant maintains
that the trial court committed reversible error by failing to instruct
the jury on the lesser-included offenses of facilitation of a felony
(especially aggravated robbery), aggravated robbery, and robbery. 
After examining the facts and the law relevant to these issues, we
hold that the trial court's failure to instruct the jury on the
lesser-included offenses of second degree murder, reckless homicide,
and criminally negligent homicide was reversible error.  We also hold
that the trial court's failure to instruct on the lesser-included
offenses of facilitation of especially aggravated robbery, aggravated
robbery, and robbery was erroneous, but such errors were harmless
beyond a reasonable doubt.

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

STATE OF TENNESSEE  v.  LINNELL RICHMOND 
Corrected Opinion

Court:TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Robert L. Jolley,
Jr., Assistant District Attorney; for the appellant, State of
Tennessee. 

Wade V. Davies, Knoxville, Tennessee (on appeal) and Keith
E. Haas, Sevierville, Tennessee (at trial) for the appellee, Linnell
Richmond.

Judge: BARKER

First Paragraph:

Following a jury trial, the defendant, Linnell Richmond, was found
guilty by a Knox County jury of aggravated robbery, attempted
aggravated robbery and two counts of attempted first degree
premeditated murder.  The trial court sentenced the defendant to an
effective sentence of twenty-two years for his convictions, to be
served consecutively to a federal sentence arising out of the same
criminal episode.  The Court of Criminal Appeals reversed the judgment
of the trial court upon finding that the trial court erred in failing
to instruct the jury on: (1) the "natural and probable consequence
rule" in relation to the charges of attempted first degree murder; and
(2) robbery as a lesser-included offense of aggravated robbery, and
attempted robbery as a lesser-included offense of attempted aggravated
robbery.  The State appealed to this Court, and we granted the
application.  We hold that: (1) it was harmless error by the trial
court to fail to instruct the jury on the natural and probable
consequences rule in relation to the charge of attempted first degree
murder; and (2) it was likewise harmless error by the trial court in
failing to instruct the jury regarding robbery as a lesser included
offense of aggravated robbery, and attempted robbery as a
lesser-included offense of attempted aggravated robbery.  Therefore,
the judgment of the Court of Criminal Appeals is reversed, and the
defendant's convictions are reinstated.  This case is remanded to the
trial court for enforcement of the judgment.

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

NANCY CRAWFORD, et al. v. ROGER CRAWFORD, et al.

Court:TCA

Attorneys:

Douglas T. Jenkins, Rogersville, Tennessee, for the Appellants, Nancy
Crawford, et. al.

R.B. Baird, III, Rogersville, Tennessee, for the Appellees, Roger
Crawford, et. al.

Judge: SWINEY

First Paragraph:

Plaintiff/Appellant Nancy Crawford owns an interest in a parcel of
real property located in Hawkins County, Tennessee as tenants in
common with the Defendants/Appellees.  Appellant Nancy Crawford filed
suit seeking a partial partition in kind of the subject property and
requesting a tract containing approximately .604 acre be set aside for
her.  The .604 acre adjoins land owned by Ms. Crawford.  The .604 acre
contains a barn, which Ms. Crawford and her late husband had
maintained, improved, and used since the late 1980's believing it was
located on their property.  Appellees opposed a partition in kind and
requested a partition sale.  The Trial Court found it in the manifest
best interest of all parties for the property to be sold, rather than
partitioned in kind, and ordered a sale.  We modify the judgment,
affirm as modified, and remand.

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

WILLIAM C. DUTY and wife WANDA DUTY, v. JOSEPH R. DAUGHERTY and LORENE DAUGHERTY

Court:TCA

Attorneys:

Harold G. Jeffers, Oneida, Tennessee, for Appellants, William C. Duty
and wife, Wanda Duty.

Max E. Huff, Oneida, Tennessee, for Appellees, Lorene Daugherty and
Joseph Daugherty.

Judge: FRANKS

First Paragraph:

In this boundary line dispute, the Trial Court established the
boundary line between the parties' properties based on testimony that
prior owners had agreed on the location of the boundary, which altered
the boundary established by an accurate survey.  We reverse.

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

KELSO OIL COMPANY, INC. v. EAST WEST TRUCK STOP, INC., et al.

Court:TCA

Attorneys:

Gary D. Copas, Nashville, Tennessee, for the Appellants East West
Truck Stop, Inc., and Frank Webb.

Robert S. Stone and Katherine M. Hamilton, Knoxville, Tennessee, for
the Appellee Kelso Oil Company, Inc.                         

Judge: SWINEY

First Paragraph:

This main issue in this appeal involves an Unconditional Guaranty
signed by Frank Webb ("Webb"), the president and owner of East West
Truck Stop, Inc.  In this document, Webb guaranteed the debt of the
"buyer", which was identified as "Frank Webb d/b/a East West Truck
Stop."  The "buyer", however, was the corporate entity, East West
Truck Stop, Inc.  The Trial Court concluded the parties intended for
the document to state the "buyer" was the corporate entity and entered
judgment against Webb personally.  Webb appeals, claiming the Trial
Court improperly used parol evidence to supply an essential term of
the Unconditional Guaranty (i.e. the identity of the "buyer") in
violation of the Statute of Frauds.  We affirm.

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

OMAWALI ASHANTI SHABAZZ, a/k/a FRED EDMOND DEAN v. GREELEY WELLS, et al.

Court:TCA

OPINION ON PETITION TO REHEAR

Judge: GODDARD

Omawali Ashanti Shabazz has filed a petition to rehear, calling to our
attention the fact that no criminal proceeding is now pending as to
him.  A criminal case was pending at the time the matter was heard in
the Trial Court and was the predicate for denial of his suit seeking
access to certain files in the possession of the District Attorney
General, both below and on appeal.

In view of the fact that there is presently no criminal proceeding
pending as to Mr. Shabazz, the petition to rehear is granted, the
opinion and judgment heretofore entered are vacated and the cause
remanded for the Trial Court to determine what materials Mr. Shabazz
is entitled to receive, and what costs Mr. Shabazz should pay in
connection with the copying and transmittal of the materials he is
entitled to receive.

Costs incident to this petition are adjudged one-half against Omawali
Ashanti Shabazz and one-half against Greeley Wells and Barry Staubus.

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

BILLY JOE SMITH v. LISA NIDIFER RICE, et al.

Court:TCA

Attorneys:    

Billy Joe Smith, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Heather C. Ross, Senior Counsel, Attorney
General's Office, Nashville, Tennessee, for the Appellees, Steve
Finney and Lisa Nidifer

K. Erickson Herrin, Johnson City, Tennessee, for the Appellees, Debbie
Barron and Steve Smith

Thomas L. Kilday, Greeneville, Tennessee, for the Appellees, Gregg
Masters, Ron Arnold and David Pauley

Judge: GODDARD

First Paragraph:

In this appeal from the Circuit Court for Johnson County the
Appellant, Billy Joe Smith, asserts that the Circuit Court erred in
denying his motion to alter or amend the Court's prior judgment
dismissing his complaint for alleged violations of his civil rights
upon grounds that the complaint failed to allege any causes of action
other than violations of the United States Constitution.  We affirm
the judgment of the Circuit Court.

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

STATE OF TENNESSEE v. VENITA MICHELLE BURCHELL

Court:TCCA

Attorneys:

Edward S. Ryan, Nashville, Tennessee, for the Appellant, Venita
Michelle Burchell.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Katrin Miller and Philip Wehby, Assistant District
Attorneys General, for the Appellee, State of Tennessee.                       

Judge: WITT

First Paragraph:

Venita Michelle Burchell appeals from her aggravated child abuse and
criminally negligent homicide convictions.  Her convictions result
from a jury trial in the Davidson County Criminal Court pertaining to
fatal injuries inflicted upon Nicholas Boyd Cotton, who was sixteen
months old at the time of his death.  Ms. Burchell urges us to find
error in the lower court's acceptance of the verdict, the admission of
prior bad act evidence, and the limiting of defense expert testimony. 
Because no harmful error occurred, we affirm.

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

MICHAEL EUGENE DUFF v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant,
Michael Eugene Duff.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and G. Scott Green, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The petitioner, Michael Eugene Duff, appeals the Knox County Criminal
Court's denial of his petition for post-conviction relief from his
convictions for two counts of aggravated rape and one count of
aggravated kidnapping for which he received three twenty-five-year
sentences to be served consecutively.  This court affirmed the
judgments of conviction on direct appeal.  See State v. Michael Eugene
Duff, No. 03C01-9501-CR-00008, Knox County (Tenn. Crim. App. Feb. 8,
1996), app. denied (Tenn. July 8, 1996).  The petitioner claims that
he received the ineffective assistance of counsel because his trial
attorney (1) failed to call a DNA serologist to testify and (2) failed
to present witnesses who could testify about  his physical appearance
at the time of the offenses.  We conclude that the trial court's
findings are insufficient for us to determine whether the petitioner
received the ineffective assistance of counsel.  We reverse the trial
court's judgment and remand the case in order for the trial court to
make findings of fact and conclusions of law consistent with this
opinion.

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

MICHAEL EUGENE DUFF v. STATE OF TENNESSEE

Court:TCCA

ORDER

The state has filed a Petition to Rehear relative to our opinion's
apparent imposition of limitations upon the trial court's
reconsideration of the facts upon remand.  The state asserts that the
trial court should have the ability to determine whether prejudice
exists by considering the evidence in toto.  The state notes that the
trial court has not made any findings regarding prejudice and should
not be restricted in its assessment.  The petitioner responds that our
court's opinion foreclosed any need for the trial court to assess
prejudice generally.  He states that we have already concluded that
prejudice exists if the trial court finds a particular witness to be
credible.

We believe that the petitioner's arguments beg the question because
they hinge upon the part of our opinion that the state seeks to
change.  In this respect, given the responsibility of the trial court
to make findings of fact and conclusions of law, we conclude that the
state raises a valid concern.  Therefore, in consideration of the
foregoing, it is hereby ORDERED that the judgment and opinion entered
on September 11, 2002, are vacated.

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

STATE OF TENNESSEE v. GEORGE WILLIAM KING

Court:TCCA

Attorneys: 

Robert Turner, Nashville, Tennessee, for the appellant, George William
King.

Paul G. Summers, Attorney General and Reporter; Jennifer L. 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: WOODALL

First Paragraph:

Defendant, George William King, has appealed the sentence imposed upon
him by the trial court after he pled guilty to one count of statutory
rape.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. WILLIAM JERRY NEAL, aka WILLIAM JAY NEAL

Court:TCCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee (on appeal), and Robert
Marlow, Shelbyville, Tennessee (at trial), for the appellant, William
Jerry Neal.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles, Assistant District Attorney General,
for the appellee, State of Tennessee.                       

Judge: GLENN

First Paragraph:

The defendant, William Jerry Neal, also known as William Jay Neal,
appeals his jury convictions for especially aggravated burglary, a
Class B felony, and vandalism under $500, a Class A misdemeanor,
resulting in concurrent sentences of eleven years, three months and
eleven months, twenty-nine days, respectively.  On appeal, the
defendant argues:  (1) the evidence was insufficient to establish
serious bodily injury, as required for a conviction for especially
aggravated burglary; and (2) the trial court erred by failing to grant
a new trial after learning that one of the jurors had once been
incarcerated with the defendant.  We affirm the judgment of the trial
court.

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

LON S. WALKER v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:

Daryl A. Colson, Livingston, Tennessee, for the appellant, Lon S.
Walker.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William Edward Gibson, District Attorney
General; Ben Fann, Assistant District Attorney General; and Lillie Ann
Sells, Assistant District Attorney General, for the appellee, State of
Tennessee.                        

Judge: WOODALL

First Paragraph:

Petitioner, Lon Walker, filed a petition for post-conviction relief
from his conviction for second degree murder, alleging that he was
denied effective assistance of counsel.  Following an evidentiary
hearing, the post-conviction court denied relief.  In his appeal to
this court, Petitioner raises the issue of whether the trial court
erred in finding that Petitioner received effective assistance of
counsel at trial.  After a careful review, we affirm the judgment of
the post-conviction court.

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

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