Opinion Flash

March 3, 2004
Volume 10 — Number 042

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
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
11 New Opinion(s) from the Tennessee Court of Criminal Appeals
10 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


SHIRLEY ANN BORCHERT v. EMERSON ELECTRIC COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

Richard L. Dunlap, Paris, Tennessee, for the appellant, Emerson
Electric Company

Charles L. Hicks, Camden, Tennessee, for the appellee, Shirley Ann
Borchert

Judge: LOSER

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.  In this
appeal, the employer questions the trial court's findings as to
permanency and extent of vocational disability.  As discussed below,
the panel has concluded the judgment fails to preponderate against the
findings of the trial court.

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

WILLIE WOOTEN v. WAL-MART STORES EAST. INC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Jay L. Johnson, Allen, Kopet & Associates, Jackson, Tennessee, for the
appellants, Wal-Mart Stores, Inc.

Keith V. Moore, Memphis, Tennessee, for the appellee, Willie Wooten

Judge: LOSER

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.  In this
appeal, the employer questions the trial court's findings as to
compensability and rate of compensation benefits.  The employer also
insists the trial court erred in ordering it to pay medical expenses
to TennCare, and not directly to the health care providers.  The
employee insists the employer should have been assessed with a penalty
for its failure to provide medical benefits.  As discussed below, the
panel has concluded the evidence fails to preponderate against the
trial court's findings as to compensability and compensation rate, but
should be remanded for determining TennCare's subrogation interest, if
any.

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

MESSER GRIESHEIM INDUSTRIES, INC. D/B/A MG INDUSTRIES v. CRYOTECH OF
KINGSPORT, INC., ET AL.

Court:TCA

Attorneys:                          

Gregory M. Leitner, Chattanooga, Tennessee; Mark G. Arnold, St. Louis,
Missouri, and Arthur G. Seymour, Jr., Knoxville, Tennessee, for the
Appellants, Messer Griesheim Industries, Inc. d/b/a MG Industries

Pamela Blass Bracher, Chattanooga, Tennessee; William Randall Wilson,
Chattanooga, Tennessee, and Robert C. Divine, Chattanooga, Tennessee,
for the Appellee, Eastman Chemical Company

Judge: GODDARD

First Paragraph:

This appeal from the Knox County Circuit Court questions whether the
Trial Court erred in granting  a summary judgment in favor of the
Appellee/Defendant, Eastman Chemical Company, with respect to various
claims connected with the purchase and sale of contaminated carbon
dioxide by the Appellant/Plaintiff, Messer Griesheim Industries, Inc.,
d/b/a MG Industries.  We affirm in part, vacate in part and remand.

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

STATE OF TENNESSEE v. ROGER V. ALEXANDER
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Richard D. Taylor, Ashland City, Tennessee, for the appellant, Roger
V. Alexander.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Dan Alsobrooks, District Attorney General;
and Lisa Donegan, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Roger V. Alexander, pled guilty to one count of
possession of anhydrous ammonia, a Class E felony.  The trial court
sentenced the Defendant to four years in the Department of Correction.
The Defendant now appeals, alleging that the trial court should have
sentenced him to Community Corrections.  We affirm the judgment of the
trial court.

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

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

STATE OF TENNESSEE v. DANIEL BILBREY

Court:TCCA

Attorneys:                          

David Neal Brady, District Public Defender; and Cynthia Lyons,
Assistant Public Defender, Cookeville, Tennessee, for the appellant,
Daniel Bilbrey.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Owen Burnett, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a judicial diversion revocation hearing, the trial court
sentenced Defendant to six years in the Tennessee Department of
Correction in accordance with the terms of his plea agreement which
had been negotiated at the time Defendant pled guilty to one count of
aggravated assault.  The trial court sentenced Defendant without
conducting a sentencing hearing.  Defendant now appeals his sentence
of confinement arguing that the terms of his plea agreement called for
a probated sentence in the event his judicial diversion was
subsequently revoked.  Alternatively, Defendant argues that the terms
of his plea agreement did not survive the revocation of his judicial
diversion, and the trial court should have conducted a sentencing
hearing prior to imposing Defendant's sentence.  Defendant also argues
that the trial court erred in requiring him to report to his probation
officer as a condition of bond pending appeal.  Following a thorough
review of the record in this matter, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE V. ARTHUR BUFORD, III

Court:TCCA

Attorneys:                          

Ross A. Sampson, Memphis, Tennessee, for the appellant, Arthur
Burford, III.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Jerry Kitchen and Betsy Carnesale, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Arthur Buford III, was convicted by a jury of two
counts of first degree murder.  After being sentenced to two
consecutive life sentences, the appellant presents the following
issues for our review: (1) whether the trial court abused its
discretion by allowing the introduction of photographic evidence of
the crime scene; (2) whether the evidence is sufficient to sustain the
convictions; and (3) whether the trial court properly sentenced the
appellant.  Finding no reversible error, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. CURTIS BUFORD

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender, and Tony N. Brayton,
Assistant Public Defender (on appeal), and Donna Armstard, Assistant
Public Defender (at trial), for the appellant, Curtis Buford.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Jones, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Curtis Buford, was convicted by a jury in the Shelby
County Criminal Court of two counts of aggravated robbery, Class B
felonies.  Following a sentencing hearing, the trial court sentenced
the appellant on each count as a Range II multiple offender to twenty
years incarceration in the Tennessee Department of Correction, to be
served concurrently.  On appeal, the appellant argues that (1) the
trial court committed reversible error by not instructing the jury on
the lesser- included offenses of aggravated robbery; (2) the multiple
convictions for aggravated robbery arising out of a single incident
involving a single victim violated double jeopardy principles; and (3)
the evidence was insufficient to sustain the appellant's convictions
for aggravated robbery.  Upon review of the record and the parties'
briefs, we conclude that the trial court's failure to charge the jury
on the lesser-included offenses of aggravated robbery was error. 
However, we conclude that the error was harmless beyond a reasonable
doubt.  We also conclude that the evidence was sufficient to sustain a
conviction for aggravated robbery.  Additionally, we conclude that the
appellant's dual convictions for aggravated robbery violated the
principles of double jeopardy.  Accordingly, we merge the aggravated
robbery convictions into a single conviction and remand to the trial
court for the correction of the judgments to reflect the merger of the
convictions.

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

NELSON KEITH FOSTER v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Raymond C. Conkin, Jr., Kingsport, Tennessee, for the appellant,
Nelson Keith Foster.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Joseph Eugene Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL
 
First Paragraph:

Petitioner, Nelson Keith Foster, appeals from the trial court's
dismissal of his petition for post- conviction relief, without
affording Petitioner an evidentiary hearing.  In his petition,
Petitioner asserted that he was entitled to relief from his three
convictions for violation of the Habitual Motor Vehicle Offender Act
(HMVO) due to ineffective assistance of counsel.  The trial court
dismissed the petition because Petitioner had argued in his direct
appeal from the convictions that he was entitled to relief because he
had received ineffective assistance of counsel.  We affirm the
judgment of the post-conviction trial court.

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

STATE OF TENNESSEE v. DOUGLAS MARSHALL MATHIS
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Jerred Creasy and Kirk Vandivort, Charlotte, Tennessee, for the
appellant, Douglas Marshall Mathis.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Carey J. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, Douglas Marshall Mathis, was convicted of first degree
murder and sentenced to life imprisonment.  In this appeal, he
contends: (1) that the evidence is insufficient; (2) that the trial
court erred by giving an irrelevant definition of "knowing" as a part
of the instructions to the jury; (3) that the prosecutor's comments
during closing argument were improper; (4) that he was denied the
right to a fair and impartial jury; and (5) that the trial court erred
by admitting certain evidence.  The judgment of the trial court is
affirmed.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/mathisdouglas_dis.wpd

STATE OF TENNESSEE v. WILLIAM D. PENDERGRASS

Court:TCCA

Attorneys:                          

Kenneth K. Crites, Centerville, Tennessee, for the appellant, William
D. Pendergrass.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  Ronald L. Davis, District Attorney
General; and Michael J. Fahey, II, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of third offense driving under the
influence (DUI) and driving on a revoked license.  He contends on
appeal that (1) the evidence was insufficient to support the
convictions, (2) the trial court erred in denying his motion to
suppress because the deputy did not have reasonable suspicion to
initiate the stop, and (3) the deputy's mention of the horizontal gaze
nystagmus (HGN) test during his testimony entitled the defendant to a
mistrial.  Concluding that no reversible error occurred, we affirm the
judgments of the trial court.

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

EDDIE J. PHIFER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Eddie J. Phifer, pro se, Crestview, Florida.

Paul G. Summers, Attorney General & Reporter; Kathy Aslinger,
Assistant Attorney General; John Carney, District Attorney General;
and Dent Morriss, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Eddie J. Phifer, was found guilty of aggravated rape
and aggravated kidnaping and sentenced to twenty-five years for each
conviction to be served consecutively.  The appellant filed a motion
for a new trial on June 20, 1980 and another motion for a new trial on
June 30, 1980.  The trial court denied the motion for a new trial on
March 6, 1981 and no appeal was filed.  In July, 2003, the appellant
filed a petition for writ of habeas corpus alleging that he is
entitled to habeas corpus relief because a judgment was never rendered
against him.  The trial court dismissed the petitions. After a review
of the record before this Court we AFFIRM the judgment of the trial
court.

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

STATE OF TENNESSEE v. CORNELIUS RICHMOND

Court:TCCA

Attorneys:                          

Brett B. Stein, Memphis, Tennessee, for the appellant, Cornelius
Richmond.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Carnesale, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Shelby County jury convicted the defendant, Cornelius Richmond, of
one count of robbery and three counts of forgery.  The trial court
ordered the defendant to serve an effective sentence of thirty- three
years as a career offender.  On appeal, the defendant contends: (1)
the trial court erred in denying his motion to suppress his statement
to the police; (2) the evidence is insufficient to support his robbery
conviction; and (3) the trial court erred in failing to instruct the
jury on facilitation as a lesser-included offense.  Upon review of the
record and the applicable law, we affirm the judgments of the trial
court.

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

DEJUAN J. SCOTT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Patrick T. McNally, Nashville, Tennessee, for the appellant, Dejuan J.
Scott.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger D. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the dismissal of his petition for
post-conviction relief from his second degree murder conviction,
arguing that the post-conviction court erred in finding that he
received the effective assistance of trial counsel.  Based on our
review of the record, we conclude the petitioner failed to meet his
burden of demonstrating by clear and convincing evidence that he was
denied the effective assistance of counsel.  Accordingly, we affirm
the post-conviction court's dismissal of the petition.

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

ADRIAN WHITE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert C. Brooks, Memphis, Tennessee, for the Appellant, Adrian White.

Michael E. Moore, Solicitor General; Jennifer L. Bledsoe, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
John W. Campbell, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner appeals the dismissal of his petition for
post-conviction relief.  The lower court held that the petition was
barred by the post-conviction statute of limitations.  Because the
record supports this determination, we affirm.

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

Remote-Controlled Railroad Locomotives

Date: February 11, 2004

Opinion Number: 04-022                        

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op22.pdf

Constitutionality of notice requirement for write-in candidates

Date: February 12, 2004

Opinion Number: 04-023                         

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op23.pdf

Effect of Public Chapter No. 175 of the Acts of 2003 on Expungement of
Records in Criminal Cases.

Date: February 12, 2004

Opinion Number: 04-024                         

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op24.pdf

Protection from civil or criminal liability for medical personnel
taking blood samples

Date: February 12, 2004

Opinion Number: 04-025                         

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op25.pdf

Interpretation of Tenn. Code Ann. S41-4-140

Date: February 12, 2004

Opinion Number: 04-026                        

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op26.pdf

Constitutionality of S.B. 2074/H.B. 2146, Authorizing Coffee County to
Levy a Privilege Tax on "Large Events"

Date: February 12, 2004

Opinion Number: 04-027                         

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op27.pdf

Pending legislation to amend Tenn. Code Ann. S 36-6-306, the
Grandparent Visitation Act

Date: February 17, 2004

Opinion Number: 04-028                        

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op28.pdf

Highway Storm Drainage Maintenance

Date: February 25, 2004

Opinion Number: 04-029                          

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op29.pdf

Payment of Pledge to Legislator during Legislative Session

Date: February 25, 2004

Opinion Number: 04-030                         

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op30.pdf

Municipalities -- Cash Payments to Officials in Lieu of Paying Life or
Health Insurance Premium

Date: February 25, 2004

Opinion Number: 04-031                         

CORRECTED LINK
http://www.tba.org/tba_files/AG/2004/op31.pdf

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