Opinion Flash

October 01, 2003
Volume 9 — Number 178

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
02 New Opinion(s) from the Tennessee Court of Appeals
07 New Opinion(s) from the Tennessee Court of Criminal Appeals
06 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


JUDY C. BURROUGHS, Individually and as Surviving Spouse and Personal
Representative of the Estate of Harold L. Burroughs, Deceased v.
ROBERT W. MAGEE, M.D.
WITH OPINIONS CONCURRING AND DISSENTING IN PART

Court:TSC

Attorneys:                          

J. Houston Gordon, Lyle Reid, and Jason G. Whitworth, Covington,
Tennessee, for the Appellant, Judy C. Burroughs.

Hubert B. Jones and Gary H. Nichols, Dyersburg, Tennessee, for the
Appellee, Robert W. Magee, M.D.

David L. Steed and Bryan K. Williams, Nashville, Tennessee, for the
Amicus Curiae, Tennessee Medical Association.

Judge: BARKER

First Paragraph:

This is an action for damages for personal injury and wrongful death
resulting from an automobile accident in which the plaintiff was
injured and her husband was killed.  The plaintiff filed suit against
the driver of the other vehicle.  The plaintiff later amended her
complaint to assert a claim against the other driver's physician,
alleging that on the day before the accident the physician negligently
prescribed two medications to his patient (the other driver),
medications that can impair a person's ability to drive, and that the
physician failed to warn his patient of the risks of driving while
under the influence of the two drugs.  The trial court granted the
physician's motion for summary judgment on the ground that the
physician owed no duty of care to the plaintiff and her husband.  The
Court of Appeals affirmed in part and reversed in part; the
intermediate court held that the physician owed a duty to the
plaintiff and her husband to warn his patient of the risks of driving
while under the influence of the prescribed drugs, but the court held
that the physician owed no duty to the plaintiff or her husband in
deciding whether or not to prescribe the medications to his patient. 
We affirm the judgment of the Court of Appeals.

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

CONCURRING AND DISSENTING
http://www.tba.org/tba_files/TSC/burroughsjc_cd.wpd

CONCURRING AND DISSENTING
http://www.tba.org/tba_files/TSC/burroughsjc_con.wpd

STATE OF TENNESSEE v. GONZALO MORAN GARCIA
WITH ORDER

Court:TSC

Attorneys:                          

Richard M. McGee and James O. Martin, III, Nashville, Tennessee, for
the appellant, Gonzalo Moran Garcia.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Daryl J. Brand, Associate Solicitor General; Victor
S. Johnson, III, District Attorney General; and John Zimmerman,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: BARKER

First Paragraph:

The defendant, Gonzalo M. Garcia, was convicted in the Criminal Court
for Davidson County of possession of one thousand grams or more of
methamphetamine with intent to deliver.  We granted this appeal to
determine whether the evidence obtained as a result of the stop should
have been suppressed.  After examining the facts and law relevant to
the issues, we hold that the defendant's traffic stop was not based
upon reasonable suspicion, in violation of the Fourth Amendment to the
Federal Constitution and Article I, section 7 of the Tennessee
Constitution.  We also hold that the evidence in this case must be
suppressed because the defendant's consent to search his vehicle was
not sufficiently attenuated from his unlawful detention.

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

ORDER
http://www.tba.org/tba_files/TSC/garciagm_ord.wpd

IN RE: M.A., A.A., and J.V.

Court:TCA

Attorneys:                          

Martha Brooke Perry, Ashland City, Tennessee, for the appellant, S.V.

Paul G. Summers, Attorney General and Reporter; Pamela A. Hayden-Wood,
Assistant Attorney General, for the appellee, State of Tennessee
Department of Children's Services.

Judge: COTTRELL

First Paragraph:

This appeal involves a petition filed by the Department of Children's
Services to terminate the parental rights of Mother to her three minor
children.  The juvenile court granted the petition, and Mother appeals
the decision, arguing there was not clear and convincing evidence to
support termination.  Because we find the petition was properly
granted, we affirm the juvenile court.

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

DANIEL B. TAYLOR v. DONAL CAMPBELL, ET AL.

Court:TCA

Attorneys:                          

Daniel B. Taylor, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Kimberly J. Dean, Deputy Attorney General, for
the appellees, Donal Campbell, Commissioner, Tennessee Department of
Correction, Williams Keeling, Roland Colson, Faye Cloud, Dinna Wilson,
Wyema Helms, and Shirley Pluckett.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Department
of Correction regarding the prisoner's sentence credits.  After his
request for a declaratory order was denied, the prisoner filed suit in
the Chancery Court for Davidson County against the Commissioner of
Correction and others seeking a declaration that the Department had
miscalculated his sentence and had erroneously refused to classify him
as a Range I especially mitigated offender.  The trial court granted
the Department's motion for summary judgment and dismissed the
petition.  We concur with the trial court's conclusion that the
Department is entitled to a judgment as a matter of law and,
accordingly, affirm the summary judgment.

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

STATE OF TENNESSEE v. PATRICK J. GRAY

Court:TCCA

Attorneys:                          

Randall A. York, Crossville, Tennessee, for the appellant, Patrick J.
Gray.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William E. Gibson, District Attorney
General; and Gary S. McKenzie, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Patrick J. Gray, pled guilty in the Cumberland County
Criminal Court to vehicular homicide and was placed on judicial
diversion.  During his probationary period, the appellant violated the
terms of his probation.  Accordingly, the trial court revoked the
appellant's probation and ordered him to serve a six-year sentence in
the Tennessee Department of Correction.  On appeal, the appellant
complains that the trial court erred in its rulings during the
probation revocation hearing.  Upon review of the record and the
parties' briefs, we affirm the judgment of the trial court.

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

JOE CLARK MITCHELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Joe Clark Mitchell, Clifton, Tennessee, pro se, for the petitioner,
Joe Clark Mitchell.

Paul G. Summers, Attorney General and Reporter; Christine Lapps,
Assistant Attorney General; and T. Michael Bottoms, District Attorney
General; for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

Petitioner filed a petition for writ of habeas corpus alleging that
the indictments against him were fatally defective and that this
Court's reduction of one of his convictions for aggravated rape to
rape violated the constitutional prohibition against double jeopardy. 
The trial court dismissed the petition without an evidentiary hearing.
 Following a review of the record in this matter, we affirm the order
of the trial court's dismissing the petition for writ of habeas
corpus.

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

JAMES E. POLK v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Hershell D. Koger, Pulaski, Tennessee, for the appellant, James E.
Polk.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Brent C. Cherry, Assistant Attorney General; T.
Michel Bottoms, District Attorney General; and Robert C. Sanders,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Maury County jury convicted the Petitioner of aggravated robbery,
and the trial court sentenced him to twelve years in the Tennessee
Department of Correction.  On direct appeal, this Court affirmed the
conviction, and the Tennessee Supreme Court denied the Defendant's
application for permission to appeal.  The Petitioner then sought
post-conviction relief, alleging that he was denied due process and
effective assistance of counsel.  Following a hearing, the
post-conviction court dismissed the petition, and this appeal ensued. 
We affirm the dismissal of the petition.

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

STATE OF TENNESSEE v. HERSHEL DAVID STANDRIDGE

Court:TCCA

Attorneys:                          

David Brady and John B. Nisbet, III, Cookeville, Tennessee (on
appeal); and Joe L. Finley, Jr., Cookeville, Tennessee (on appeal and
at trial), for the appellant, Hershel David Standridge.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William Edward Gibson, District
Attorney General; and John A. Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

A jury in the White County Criminal Court found the appellant, Hershel
David Standridge, guilty of theft of property valued under $500 and
resisting arrest.  The trial court imposed a total effective sentence
of eleven months and twenty-nine days incarceration in the White
County Jail but suspended service of the sentence and immediately
placed the appellant on probation.  Later, subsequent to his timely
filing a notice of appeal, the appellant's probation was revoked.  On
appeal, the appellant raises issues concerning the sufficiency of the
evidence, sentencing, and the jury instructions.  Upon review of the
record and the parties' briefs, we affirm in part and reverse in part
the judgments of the trial court.

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

STATE OF TENNESSEE  v.  JOHN WILLIE STONE

Court:TCCA

Attorneys:                          

Donna Leigh Hargrove, District Public Defender; Andrew Jackson
Dearing, III, Assistant Public Defender, for the appellant, John
Willie Stone.

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

Judge: SMITH

First Paragraph:

Following a jury trial in the Circuit Court of Bedford County,
Defendant, John Willie Stone, was convicted of burglary of an
automobile, a Class E felony, in violation of Tenn. Code Ann. S 39-14-
402(a)(4).  On appeal, Defendant challenges the sufficiency of the
evidence to support the conviction.  After a careful review of the
evidence, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. VIDAL L. STRICKLAND

Court:TCCA

Attorneys:                          

James Robin McKinney, Jr., Nashville, Tennessee, for the appellant,
Vidal L. Strickland.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Sharon L. Brox and Philip H. Wehby, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Vidal L. Strickland, was convicted by a Davidson County
Criminal Court jury of aggravated robbery, a Class B felony; attempted
aggravated robbery, a Class C felony; and felony possession of a
weapon, a Class E felony.  He was sentenced as a Range I, standard
offender by the trial court to ten years for the aggravated robbery
conviction, four years for the attempted aggravated robbery
conviction, and two years for the felony possession of a weapon
conviction, with the robbery sentences ordered to be served
consecutively, for an effective sentence of fourteen years in the
Department of Correction.  Following the denial of his motion for a
new trial, the defendant filed a timely appeal to this court, arguing:
 (1) the evidence was insufficient to support his robbery convictions;
(2) the trial court erred in denying his motion to suppress the
results of the victims' pretrial identifications; (3)  the trial court
erred in ordering consecutive sentencing; and (4) the trial court
erred in granting the State's motion in limine to suppress the
defendant's statements to law enforcement officers.  Following our
review, we affirm the judgments of the trial court.

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

ANTONIO L. SWEATT, PRO SE  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          
 
Antonio L. Sweatt, Pro Se, Wartburg, Tennessee, for the appellant.

Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Kathy
Morante, Assistant District Attorney General, for the appellee, the
State of Tennessee.
 
Judge: WOODALL

First Paragraph:

Appellant, Antonio L. Sweatt, appeals from the trial court's order
dismissing Appellant's Petitions for Writ of Error Coram Nobis and for
DNA analysis pursuant to the "Post-Conviction DNA Analysis Act of
2001," Tenn. Code Ann. SS 40-30-401 - 413.  The trial court dismissed
the petitions without an evidentiary hearing.  Following a review of
the entire record, we affirm the judgments of the trial court.

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

Issuance of Handgun Carry Permits to Persons Who Have Been Admitted to
Hospitals or Other Institutions for Mental Evaluations but
Subsequently Released Because Treatment was not Necessary

Date: September 23, 2003

Opinion Number: 03-118                          

http://www.tba.org/tba_files/AG/2003/op118.pdf

"Chief Executive Officer" under Tenn. Code Ann. S 7-52-107

Date: September 24, 2003

Opinion Number: 03-119                          

http://www.tba.org/tba_files/AG/2003/op119.pdf

Sale of County Hospital Assets

Date: September 24, 2003

Opinion Number: 03-120                          

http://www.tba.org/tba_files/AG/2003/op120.pdf

Abolition of Office of Constable in Johnson, Sullivan, McNairy,
Stewart, and Lauderdale Counties

Date: September 24, 2003

Opinion Number: 03-121                         

http://www.tba.org/tba_files/AG/2003/op121.pdf

Effect of 2003 Tenn. Pub. Acts Ch. 226: Functions of Juvenile Court
Clerk

Date: September 25, 2003

Opinion Number: 03-122                          

http://www.tba.org/tba_files/AG/2003/op122.pdf

Amendment to In Lieu of Tax Payments Statute

Date: September 25, 2003

Opinion Number: 03-123                         

http://www.tba.org/tba_files/AG/2003/op123.pdf

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