Opinion Flash

December 20, 2002
Volume 8 — Number 224

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
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
04 New Opinion(s) from the Tennessee Court of Appeals
14 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 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


ROBERT JESSIE BURTON, SR.  v. KENT F. GEARIN

Court:TCA

Attorneys:  

Robert Jessie Burton, Sr., Pro Se.

James F. Horner, Memphis, Tennessee, for the appellee, Kent F. Gearin.
                       
Judge: FARMER

First Paragraph:

The plaintiff, a prisoner, sued the defendant who had been appointed
to represent the plaintiff in his petition for post-conviction relief.
 The prisoner, proceeding pro se, filed a motion asking the trial
court to hold this matter in abeyance until his release from prison. 
The motion was denied.  The defendant filed a motion for summary
judgment supported by an un-refuted affidavit which was granted.  The
prisoner appealed the trial court's denial of the motion for abeyance
and we affirm.

http://www.tba.org/tba_files/TCA/burtonrobertj.wpd
								
LARRY MILLARD BUTLER v. STATE OF TENNESSEE ex rel. GWENDOLYN ELIZABETH BUTLER Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Stuart F. Wilson-Patton, Senior Counsel, Office of the Attorney General, for appellant, State of Tennessee. Scott K. Haynes and Austin L. McMullen, Nashville, Tennessee, for appellant, Maximus, Inc. Mary Jo Middlebrooks, Jackson, Tennessee, for appellee, Larry Millard Butler. Judge: LILLARD First Paragraph: This is a contempt of court case. The father and mother were divorced in August 1999. The father was ordered to make child support payments to the mother. The mother later filed a motion to require the father to pay his child support obligation through income assignment. The mother then sought the assistance of a state-authorized child support enforcement contractor to assist her in obtaining an increase in child support. This act triggered statutory provisions associated with Title IV-D of the Social Security Act. The trial court denied the mother's motion to require income assignment, and ordered that the child support payments continue to be paid directly to the mother. The child support contractor then caused a child support payment coupon to be sent to the father, and also issued, on behalf of the Tennessee Department of Human Services, an administrative order to redirect the child support payments to the State's child support collection and disbursement unit. In response, the father filed a motion to hold the mother in civil contempt for taking actions to have the child support payments made by income assignment, and also sought an order enjoining the mother from utilizing the child support contractor. The trial court ordered that the administrative order be set aside. The mother then filed another motion, inter alia, to have the father pay child support by income assignment through the State's central child support collection and disbursement unit. The father filed another motion to have the mother and the child support contractor cited for contempt of court. The trial court held the mother and the child support contractor in contempt, fined each of them, ordered that they reimburse the father for the administrative fees and his attorney's fees, and pay court costs. We reverse, holding that the finding of contempt by the trial judge was an abuse of discretion because the original order was contrary to Tennessee law; Tennessee statutes require the father's child support payments to be redirected through the State child support collection and disbursement unit, and the record does not include evidence supporting an exemption from the statutory requirement that the payments be made by income assignment. http://www.tba.org/tba_files/TCA/butlerlm.wpd
KUBOTA CREDIT CORPORATION, USA v. DOUG TILLMAN, et al. Court:TCA Attorneys: Roger A. Stone, Memphis, Tennessee, for the appellant, Doug Tillman a/k/a Bud Tillman, d/b/a Millington Motors d/b/a AAA Collateral Loan & Jewelry Company.. William D. Wilson, Jr., Memphis, Tennessee, for the appellee, Kubota Credit Corporation. Judge: FARMER First Paragraph: The plaintiff creditor in this case filed suit to recover a tractor that was subject to a security agreement and was pawned to the defendant pawnbroker. The court below awarded summary judgment to the creditor. The pawnbroker appeals, claiming the creditor's security agreement was not properly perfected, and that the creditor therefore does not have a superior right to possession of the tractor. We find issues of material fact exist regarding whether the security agreement was perfected, whether the pledgor had authority to pawn the tractor, and whether the pawn transaction was entered into in good faith. We reverse summary judgment and remand. http://www.tba.org/tba_files/TCA/kubotacreditcorp.wpd
JAMES O. WARD v. SUSAN AMPFERER WARD Court:TCA Attorneys: Daniel Loyd Taylor, Memphis, Tennessee, for the appellant, Susan Ampferer Ward. Larry Rice, Memphis, Tennessee, and Laura D. Rogers, Memphis, Tennessee, for the appellee, James O. Ward. Judge: ASH First Paragraph: Mr. James Ward filed a Compliant for divorce on July 31, 1998. Mrs. Ward filed a Counter-Complaint for Absolute Divorce on November 30, 2000. The trial was held February 19, 2001 through February 22, 2001 and continued March 1, 2001 to March 2, 2001. On March 2, the Chancellor issued findings of fact and divided the marital property. Mrs. Ward asked the court to find Mr. Ward dissipated approximately $107,355 in marital assets, and requested the court award her attorney's fees as well as litigation expenses because the search for hidden funds resulted in a large portion of her attorney's fees. The Chancellor determined Mr. Ward did not dissipate marital assets, and denied the request for attorney's fees. The chancellor entered the final decree of divorce on April 6, 2001. This appeal followed. http://www.tba.org/tba_files/TCA/ward.wpd
STATE OF TENNESSEE v. RICHARD BOKANPER Court:TCCA Attorneys: Mary K. Kent and Tony N. Brayton, Memphis, Tennessee, for the Appellant, Richard Bokanper. Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Richard Bokanper, appeals his Shelby County Criminal Court jury convictions of burglary and theft. Following the guilty verdicts, the trial court sentenced the defendant as a career offender to an effective term of twelve years in the Department of Correction. On appeal, the defendant challenges only the sufficiency of the convicting evidence. Because the evidence insufficiently corroborates the inculpative testimony of an accomplice, we reverse the convictions and dismiss the charges. http://www.tba.org/tba_files/TCCA/bokanperrichard.wpd
STATE OF TENNESSEE v. WILLIAM MARVIN BROWN Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender, for the appellant, William Marvin Brown. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, William Marvin Brown, appeals as of right his conviction by a Marshall County Circuit Court jury for child rape, a Class A felony, and the resulting twenty-three-year, nine-month sentence. He contends that the evidence is insufficient to identify him as the perpetrator of the crime and that the trial court erroneously failed to apply mitigating factors, which resulted in an excessive sentence. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/brownwilliammarvin.wpd
STATE OF TENNESSEE v. ERIC T. DAVIS Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Eric T. Davis. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Eric T. Davis appeals the Montgomery County Circuit Court's revocation of his probationary sentences and order that he serve the sentences as originally imposed in the Department of Correction. He claims that the lower court erred in finding that he committed a criminal offense based upon the uncorroborated testimony of a law enforcement informant. Because we are unpersuaded of error, we affirm. http://www.tba.org/tba_files/TCCA/daviserict.wpd
GLENN D. GOLD v. STATE OF TENNESSEE Court:TCCA Attorneys: Glenn D. Gold, Pro Se. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; John Carney, District Attorney General; and Jennifer L. Smith, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Glenn D. Gold appeals from the Montgomery County Circuit Court's dismissal of his pro se petition in which he seeks post-conviction, habeas corpus, and coram nobis relief. Because his attempts to receive post-conviction and coram nobis relief are untimely and his attempt for habeas corpus relief does not state a claim cognizable in that type of action, we affirm the lower court. http://www.tba.org/tba_files/TCCA/goldglennd.wpd
STATE OF TENNESSEE v. THERESA HALLSFORD Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Mike Bottoms, District Attorney General, for the Appellant, State of Tennessee. J. Russell Parkes, Columbia, Tennessee, for the appellee, Theresa Hallsford. Judge: WELLES First Paragraph: The State appeals from the order of the Maury County Circuit Court reversing the district attorney general's decision to deny the Defendant pretrial diversion for the charge of arson. We reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hallsfordt.wpd
STATE OF TENNESSEE v. JOSEPH JACKSON, JR. Court:TCCA Attorneys: Gerald D. Waggoner, Memphis Tennessee (at trial), and Larry M. Sargent, Memphis, Tennessee (on appeal), for the appellant, Joseph Jackson, Jr. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and David N. Pritchard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant attempted to shoot and kill Johnny Maxwell, missed, and accidentally shot twelve-year- old Brittney Taylor, seriously injuring her. A jury convicted the defendant of attempted first degree murder of Maxwell and attempted first degree murder of Taylor. He appeals, claiming the trial court erroneously charged the jury, relative to the doctrine of transferred intent; that double jeopardy bars convictions of both offense; and the evidence was insufficient to sustain the attempted first degree murder convictions. We agree and affirm both convictions. http://www.tba.org/tba_files/TCCA/jacksonj.wpd
STATE OF TENNESSEE v. JEROME D. MANNING Court:TCCA Attorneys: Kenneth Quillen, Nashville, Tennessee (on appeal); and Dale M. Quillen, Nashville, Tennessee (at trial), for the Appellant, Jerome D. Manning. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Dee Gay, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Jerome D. Manning appeals a certified question of law regarding a police officer's stop of him which resulted in his arrest for illegal possession of narcotics. Because we agree with the trial court that reasonable suspicion supported by specific and articulable facts existed for the stop and that the scope and duration of the detention were not unreasonable, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/manningjeromed.wpd
STATE OF TENNESSEE v. ROBERT S. NEAL Court:TCCA Attorneys: Michael R. Giaimo and J. Steve Daniels (at trial), Livingston, Tennessee, for the appellant, Robert S. Neal. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William Edward Gibson, District Attorney General; and Benjamin W. Fann and John A. Moore, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Robert S. Neal, appeals as of right his convictions by a Putnam County jury of vehicular homicide, reckless endangerment, and child endangerment. He contends (1) that the evidence is insufficient to sustain his convictions, (2) that the trial court erroneously admitted laboratory test results regarding the presence of cocaine in his body, (3) that a Tennessee Bureau of Investigation (TBI) forensic scientist was not qualified to testify about the metabolism of cocaine, and (4) that his sentence is excessive. We merge the two child endangerment convictions pursuant to the Double Jeopardy Clause and affirm the judgments of conviction in all other respects. http://www.tba.org/tba_files/TCCA/nealroberts.wpd
STATE OF TENNESSEE v. JOEL CHRISTIAN PARKER Court:TCCA Attorneys: John B. Nisbett, III, Assistant Public Defender, Cookeville, Tennessee, for the appellant, Joel Christian Parker. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; William Edward Gibson, District Attorney General; Benjamin W. Fann and David Alan Patterson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On February 2, 2000, the defendant was convicted by a jury of the offense of aggravated robbery. He received a sentence of nine years in the state penitentiary. In this appeal he raises eight (8) issues for our review: (1) whether the evidence is sufficient to support the verdict; (2) whether the defendant was tried by a fair and impartial jury; (3) whether the trial court committed reversible error in failing to instruct the jury on the offenses of assault or aggravated assault; (4) whether there was prosecutorial misconduct; (5) whether the defendant was subjected to a constitutionally flawed show-up shortly after the robbery; (6) whether the trial court correctly instructed the jury as to what they must do if they have a reasonable doubt that the defendant possessed the requisite mental state for the offense; (7) whether the trial court should have dismissed the case because the state destroyed evidence fundamental to the defense; (8) whether the defendant's sentence is excessive. We have carefully reviewed each of these claims, and we find that none merit reversal of this case. The judgment of the trial court is therefore affirmed. http://www.tba.org/tba_files/TCCA/parkerjoel.wpd
STATE OF TENNESSEE v. GLENDA PONDER Court:TCCA Attorneys: David N. Brady and John B. Nisbett, III, Cookeville, Tennessee, for the Appellant, Glenda Ponder. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; William Edward Gibson, District Attorney General; and William Locke, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Glenda Ponder appeals the DeKalb County Criminal Court's revocation of her probationary sentence and ordering into effect her incarcerative sentence in the Department of Correction. Upon review, we are unpersuaded that the lower court abused its discretion and therefore affirm. http://www.tba.org/tba_files/TCCA/ponderglenda.wpd
STATE OF TENNESSEE v. KYNASTON SCOTT a.k.a. KYNASTON L. OLAWUMI Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Kynaston Scott a.k.a. Kynaston L. Olawumi. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Lisa Naylor and Shelli Neal, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Kynaston Scott a.k.a. Kynaston L. Olawumi, was convicted by a jury in the Davidson County Criminal Court of first degree murder and felony murder. The trial court merged the convictions and sentenced the appellant to life imprisonment in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence was not sufficient to support his convictions, the trial court erred by instructing the jury on flight, and the trial court erred in admitting an inflammatory photograph. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/scottk.wpd
MICHAEL THOMASON v. KEVIN MYERS, WARDEN Court:TCCA Attorneys: Michael Thomason, Clifton, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Mike Bottoms, District Attorney General; and Renee W. Turner, Assistant District Attorney General, for the appellee, Kevin Meyers, Warden. Judge: WELLES First Paragraph: The Defendant, Michael Thomason, petitioned for a writ of habeas corpus, which the trial court summarily denied. The Defendant now appeals as of right. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/thomasonm1.wpd
STATE OF TENNESSEE v. DONDIE TIDWELL Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee; Larry M. Warner, Crossville, Tennessee; and Larry F. Wallace, LaVergne, Tennessee, for appellant, Dondie Tidwell. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and William C. Whitsell, Jr., District Attorney General for appellee, State of Tennessee Judge: SMITH First Paragraph: A Rutherford County jury convicted the defendant, Dondie Eugene Tidwell, of two counts of first degree murder, one count of conspiracy to commit first degree murder, one count of especially aggravated kidnapping, and one count of theft over $10,000. The trial court merged the defendant's two first degree murder convictions and ordered the defendant to serve twenty-three years for his conspiracy to commit first degree murder conviction, twenty-three years for his especially aggravated kidnapping conviction, and four years and six months for his theft conviction. The trial court ordered these sentences to run concurrently to each other and consecutively to the defendant's sentence for his merged first degree murder conviction, life without the possibility of parole. Thus, the defendant received an aggregate sentence of life without the possibility of parole plus twenty-three years. The defendant now brings this appeal, challenging his convictions and his sentence on the bases that (1) the trial court erred by refusing to allow him to excuse a juror using a peremptory challenge; (2) the evidence introduced at trial is insufficient to support his convictions; (3) the prosecutor made inappropriate comments when delivering the state's opening statement; (4) the trial court erred by allowing an expert to testify on subjects beyond the scope of that witness's expertise; (5) the trial court erred by refusing to allow him to introduce evidence of the drugs that were present in the victim's system at the time of the victim's death; (6) the trial court instructed the jury incorrectly on the charge of conspiracy; (7) the trial court erred by admitting a photograph of the victim taken after the victim's death during the sentencing phase of the trial; (8) the trial court erred by refusing, in the sentencing phase, to allow the defendant to compare his potential sentence to the sentence received by his co-conspirator; (9) the trial court erred by allowing the introduction of certain hearsay evidence; (10) the prosecutor exceeded the permissible scope of his rebuttal closing argument; and (11) the trial court erred by imposing consecutive sentencing. After reviewing the record, we find that the trial court did err by refusing to allow the defendant to exercise a peremptory challenge and that therefore the defendant is entitled to a new trial on this basis. However, we find that the remainder of the issues presented in this appeal have either been waived or lack merit. http://www.tba.org/tba_files/TCCA/tidwelldondie.wpd
JOHN H. WILLIAMS, JR. v. KEVIN MYERS, WARDEN Court:TCCA Attorneys: John H. Williams, Jr., Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; and Renee W. Turner, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner was convicted in 1988 of felony murder and is currently serving a life sentence. After exhausting his direct and post-conviction appeals, the Petitioner filed a petition for a writ of habeas corpus, which the trial court subsequently denied. The Petitioner now appeals the denial of his petition, arguing that the convicting court lacked subject matter jurisdiction due to a defective indictment and that the statute governing first degree murder at the time of his trial was unconstitutionally vague. He contends that for these reasons, his conviction is illegal. Having reviewed the Petitioner's claims, we conclude that the original indictment upon which the Petitioner's conviction was based was not defective and thus that the convicting court was not without subject matter jurisdiction. We further conclude that the statute governing the Petitioner's conviction is not unconstitutionally vague. We therefore affirm the judgment of the trial court in denying the petition for a writ of habeas corpus. http://www.tba.org/tba_files/TCCA/williamsjh1.wpd
Legislator’s Private Meeting with Citizens’ Groups in a Public Facility Date: December 12, 2002 Opinion Number: 02-131 http://www.tba.org/tba_files/AG/2002/OP131.pdf
Activities of Legislative Staff Date: December 12, 2002 Opinion Number: 02-132 http://www.tba.org/tba_files/AG/2002/OP132.pdf
Public Records on the Internet Date: December 18, 2002 Opinion Number: 02-133 http://www.tba.org/tba_files/AG/2002/OP133.pdf
Scheduling Workers' Compensation Benefit Review Conferences Date: December 19, 2002 Opinion Number: 02-134 http://www.tba.org/tba_files/AG/2002/OP134.pdf

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