Opinion Flash

March 11, 2004
Volume 10 — Number 048

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):
03 New Opinion(s) from the Tennessee Supreme Court
03 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
06 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE  v.  WILMORE HATFIELD 

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General,
for the appellant, State of Tennessee.

Onnie Winebarger, Byrdstown, Tennessee, for the appellee, Wilmore
Hatfield.

Judge: BARKER

First Paragraph:

This is an appeal from the Criminal Court for Fentress County which
convicted the defendant, Wilmore Hatfield, of felony reckless
endangerment as a lesser-included offense of aggravated assault. 
Relying on this Court's decision in State v. Moore, 77 S.W.3d 132
(Tenn. 2002), the Court of Criminal Appeals reversed the conviction,
concluding that felony reckless endangerment was not a lesser-included
offense of aggravated assault.  The State then sought, and this Court
granted, permission to appeal on the sole issue of whether felony
reckless endangerment is a lesser- included offense of aggravated
assault committed by intentionally or knowingly causing bodily injury
to another by the use of a deadly weapon.  We hold that it is a
lesser-included offense under State v. Burns, 6 S.W.3d 453 (Tenn.
1999).  Consequently, the Court of Criminal Appeals' decision with
respect to the felony reckless endangerment conviction is reversed,
and that conviction is reinstated.

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

STATE OF TENNESSEE v. TONYA JENNINGS

Court:TSC

Attorneys:                          

William J. Steed, Assistant Public Defender (on appeal) and Laura
Dykes, Deputy Public Defender (at trial), Nashville, Tennessee, for
the appellant, Tonya M. Jennings.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth T. Ryan, Senior Counsel; Gigi Braun,
Assistant District Attorney General; Pamela Anderson, Assistant
Attorney General; Jon P. Seaborg, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

In a bench trial, the defendant was found not guilty by reason of
insanity of the charge of stalking.  Following her release from
judicial hospitalization, she moved to have her public records in this
case expunged under Tennessee Code Annotated section 40-32-101(a)(1). 
Because the pertinent statutory language only provides for expungement
upon "a verdict of not guilty returned by a jury," we find that the
defendant is not entitled to expungement and affirm the judgment of
the Court of Criminal Appeals.

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

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. SARAH OWENS,
ET AL., IN THE MATTER OF S.L.O.

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Douglas Earl Dimond, Assistant Attorney
General, Nashville, Tennessee, for the appellant, Tennessee Department
of Children's Services.

James S. Haywood, Jr., Brownsville, Tennessee, for the appellees,
Frank A. Maddox and Burnett Maddox.

Judge: BIRCH

First Paragraph:

This case presents an issue of jurisdiction-whether the circuit court
or the Court of Appeals has the authority to hear and decide this
appeal from the juvenile court.  We hold that the Circuit Court for
Haywood County has jurisdiction to hear this appeal.  Accordingly, we
remand the case to the Circuit Court for Haywood County to conduct an
appeal de novo pursuant to Tennessee Code Annotated section
37-1-159(a).  The parties have also challenged the circuit court's
authority to transfer the case to the Court of Appeals.  Because we
hold that the circuit court has jurisdiction to hear the appeal, we do
not consider the transfer issue.

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

HENRY EARL CAMPBELL v. JIM KERAS BUICK COMPANY and GREAT AMERICAN
INSURANCE COMPANIES

Court:TSC - Workers Comp Panel

Attorneys:                          

James L. Gordon, Memphis, Tennessee, for the appellant, Henry Earl
Campbell

B. Duane Willis, Jackson, Tennessee, for the appellee, Jim Keras Buick
Company and Great American Insurance Companies

Judge: WALKER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee. Code
Annotated section 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of the finding of fact and conclusions of law.  The
trial court found that the Employee failed to prove causation, failed
to give notice as required by Tennessee Code Annotated section
50-6-201, and waived his right to worker's compensation benefits for a
back injury.  We affirm on the basis that Employee failed to prove
causation and failed to prove notice.

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

ROGER D. REYNOLDS v. TENNESSEE MUNICIPAL LEAGUE RISK MANAGEMENT POOL
and SUE ANN HEAD, DIRECTOR OF DIVISION OF WORKERS' COMPENSATION, STATE
OF TENNESSEE

Court:TSC - Workers Comp Panel

Attorneys:                          

Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, Roger D.
Reynolds

John D. Burleson and Michael L. Mansfield, Jackson, Tennessee, for the
appellee, Tennessee Municipal League Risk Management Pool

Judge: WALKER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated section 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of the finding of fact and conclusions of law.  The
trial court found that the Employee failed to prove causation and
failed to give notice as required by Tennessee Code Annotated section
50-6-201.  We affirm.

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

WILLIAM R. SMOTHERS v. MARKEL LIGHTING, INC; CIGNA INSURANCE CO.;
GENERAL ACCIDENT INSURANCE CO. and SUE ANN HEAD, DIRECTOR OF DIVISION
OF WORKERS' COMPENSATION, STATE OF TENNESSEE

Court:TSC - Workers Comp Panel

Attorneys:                          

Jay E. Degroot, Jackson, Tennessee, for the appellant, William R.
Smothers.

Lawrence W. White and Mark W. Raines, Memphis, Tennessee, for the
appellees, Markel Lighting and General Accident Insurance Company.

Robert O. Binkley, Jr., Tennessee, for the appellee, CIGNA Insurance
Company.

Paul Todd Nicks, Memphis, Tennessee, for the appellee, Revell
Construction Company.

Attorney General Paul G. Summers, and Dianne Dycus, Deputy Attorney
General, Nashville, Tennessee, for the appellee, Second Injury Fund.

Judge: WALKER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated section 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The trial
court found that the Employee failed to give notice as required by
TennesseeC.Annotated section 50- 6-201.  We affirm.

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

DEBBIE LEGENS v. DARIN MARSHALL d/b/a MARSHALL RECOVERY SERVICE, INC.

Court:TCA

Attorneys:                          

David W. Camp, Jackson, TN, for Appellant

James H. Bradberry, Dresden, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This cases arises from the repossession of a 1998 GMC Yukon by the
Defendant, Marshall Recovery Services, Inc.  Plaintiff alleges that
several items of personal property, including cash and jewelry, were
in the vehicle at the time of repossession and that Defendant has
failed to return these items.  Upon conclusion of a bench trial, the
lower court entered a final order on November 26, 2002, awarding
Plaintiff damages in the amount of $15,099.  Notice of appeal was then
filed on December 20, 2002 by "Darin Marshall, d/b/a Marshall
Recovery."  An amended notice of appeal was thereafter filed on
January 2, 2003, purporting to add "Marshall's Recovery Services,
Inc." as a party to the appeal.  For the following reasons, we find
that notice of appeal in this matter was not timely filed and,
consequently, that we lack jurisdiction to hear the appeal.

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

JASON BLAKE BRYANT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Paul G. Whetstone, Mosheim, Tennessee, for the appellant, Jason Blake
Bryant.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant
Attorney General; C. Berkeley Bell, District Attorney General; and
Eric Christiansen, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner filed a Petition for Post-conviction Relief September
26, 2001. After holding a hearing on the petition, the trial court
denied the petition.  The petitioner appealed the trial court's
decision.  We have reviewed the petitioner's many issues, including
allegations of ineffective assistance of counsel and entry of an
involuntary guilty plea, and we affirm the trial court's decision to
deny the petition for post-conviction relief.

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

STATE OF TENNESSEE v. MICHAEL LENARD HALL

Court:TCCA

Attorneys:                          

Mark Stephens, Knoxville, Tennessee (at trial); and Wade V. Davies,
Knoxville, Tennessee (on appeal), for the Appellant, Michael Lenard
Hall.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General;  Randall E. Nichols, District Attorney
General; and Jo Helm, Assistant District Attorney General,  for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Michael Lenard Hall appeals from his Knox County Criminal Court
conviction of first degree murder of his ex-wife, Pamela Hall.  He
claims that insufficient evidence supports his conviction, that the
jury instructions were flawed, and that the prosecution denied him a
fair trial through improper questioning of witnesses and improper
argument.  Because we agree with the defendant that the state failed
to present sufficient proof of premeditation, we modify the first
degree murder conviction and impose a second degree murder conviction
in its place.  However, we are unpersuaded of error warranting a new
trial.  We remand for sentencing on the second degree murder
conviction.

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

STATE OF TENNESSEE V. DARRELL DAVON KING

Court:TCCA

Attorneys:                          

Theodora A. Pappas, Nashville, Tennessee, for the appellant, Darrell
Davon King.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Bernard McEvoy, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

After being indicted on two counts of rape by force, two counts of
rape, two counts of incest, and one count of sexual battery, the
appellant, Darrell Davon King, pled guilty to two counts of rape, for
which he received two, concurrent eight-year sentences at 100%
service.  The manner of the service of the sentences was left open. 
The trial court subsequently ordered the appellant to serve the
sentences in incarceration.  On appeal, the appellant argues that the
trial court erred in denying him probation or community corrections. 
Upon review of the record and the parties' briefs, we conclude that
the trial court erred in failing to state on the record its reasons
for denying probation and/or a community corrections sentence.  As a
result we REVERSE the trial court's sentencing order and REMAND with
directions that the trial court make specific findings of fact with
respect to its sentencing determinations

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

JOE DAVIS MARTIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David M. Hopkins (on appeal) and Mike Anderson (at hearing),
Nashville, Tennessee, for the appellant, Joe Davis Martin.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; Thomas B. Thurman, Deputy District Attorney General; and
Katrin Novak Miller, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of his post-conviction relief
petition relating to his convictions for first degree murder,
attempted first degree murder, and attempted second degree murder.  On
appeal, the petitioner contends: (1) the state withheld exculpatory
evidence; (2) the state failed to correct perjured testimony at trial;
and (3) he received ineffective assistance of counsel at trial.  Upon
review of the record and the applicable law, we affirm the judgment of
the post-conviction court.

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

STATE OF TENNESSEE v. ROBERT SIMERLY

Court:TCCA

Attorneys:                          

Clifton Corker, Johnson City, Tennessee, for the Appellant, Robert
Simerly.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; Joe Crumley, District Attorney General;
and Ken Baldwin, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Robert Simerly, appeals from his Johnson County
Criminal Court conviction of first degree felony murder.  On appeal,
he claims: 1. The convicting evidence is insufficient. 2. The trial
court erred in allowing evidence of non-testifying co-defendants' and
accomplices' statements that inculpated the defendant. 3. The trial
court erred in denying a mistrial when (a) an officer testified that,
during pretrial questioning, the defendant requested an attorney, and
(b) another witness testified that he had been threatened during the
trial. 1. The trial court erred in the admission of expert testimony.
5. The trial court erred in the admission of a prejudicial videotape
that depicted the deceased victim's face. 6. The trial court erred in
excluding the defendant's proffered evidence of judgments of
convictions of two state witnesses. 7. The trial court erred in
failing to instruct the jury on a lesser included offense. Discerning
no reversible error in the proceedings below, we affirm the judgment.

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

KEVIN TATE, PRO SE v. BRUCE WESTBROOK, WARDEN

Court:TCCA

Attorneys:                          

Kevin Tate, pro se.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: RILEY

First Paragraph:

The Petitioner, Kevin Tate, appeals the trial court's denial of his
petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  The
Petitioner fails to assert a cognizable claim for which habeas corpus
relief may be granted.  Accordingly, the State's motion is granted and
the judgment of the trial court is affirmed.

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

Implementation of 2003 Pub. Ch. 344 (Tennessee Commission of Indian
Affairs)

Date: March 3, 2004

Opinion Number: 04-032                         

http://www.tba.org/tba_files/AG/2004/op32.pdf

Constitutionality of legislation prohibiting the issuance or renewal
of license plates depicting the confederate flag.

Date: March 4, 2004

Opinion Number: 04-033                         

http://www.tba.org/tba_files/AG/2004/op33.pdf

Amendment to Pawnbroker Statute

Date: March 8, 2004

Opinion Number: 04-034                         

http://www.tba.org/tba_files/AG/2004/op34.pdf

Authority Of Tennessee Department Of Transportation To Investigate
Alleged Violations Of Tennessee Water Quality Control Act

Date: March 9, 2004

Opinion Number: 04-035                         

http://www.tba.org/tba_files/AG/2004/op35.pdf

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2004 Tennessee Bar Association