Opinion Flash

May 12, 2004
Volume 10 — Number 092

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
01 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
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


JOHNNY PHILLIPS v. A&H CONSTRUCTION COMPANY, INC. and EVERGREEN
NATIONAL INDEMNITY

Court:TSC

Attorneys:                          

Scott Daniel and Melanie Lepp, Murfreesboro, Tennessee, for the
appellant, Johnny Phillips.

Owen R. Lipscomb, Nashville, Tennessee, for the appellees, A&H
Construction Company, Inc. and Evergreen National Indemnity.

Judge: DROWOTA

First Paragraph:

We granted permission to appeal in this case to determine whether the
Chancellor erred in denying temporary total disability benefits
because he concluded that injuries due to an idiopathic loss of
consciousness are not compensable under the Workers' Compensation Act.
 We hold that an injury due to an idiopathic condition is compensable
if an employment hazard causes or exacerbates the injuries.  The
accident arises out of employment if there is a causal connection
between the conditions under which the work is performed and the
resulting injury.  This causal link must be between the employment and
the injury, rather than between the employment and the idiopathic
episode.  We affirm the Chancellor's factual finding that Phillips's
injuries occurred within the course of his employment.  Thus, the
judgment of the Chancellor is reversed in part, affirmed in part, and
this case is remanded to the chancery court for reinstatement of
temporary total disability benefits and further proceedings consistent
with this opinion.

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

GREGORY THOMPSON v. STATE OF TENNESSEE
WITH DISSENTING OPINION

Court:TSC

Attorneys:                          

Michael J. Passino, Nashville, Tennessee, and B. Campbell Smoot,
District Public Defender, Fourteenth Judicial District, Tullahoma,
Tennessee, for the appellant, Gregory Thompson.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Smith, Assistant Attorney General; C.
Michael Layne, District Attorney General, Fourteenth Judicial
District, for the appellee, State of Tennessee.

Judge: DROWOTA

First Paragraph:

The appellant, death-row inmate Gregory Thompson, challenges the trial
court's order denying a hearing on the issue of his competency to be
executed.  The trial court concluded that Thompson had failed to make
a sufficient threshold showing.  After carefully considering de novo
the petition, the trial court's order, and the entire record in this
cause, we conclude that the trial court correctly held that Thompson 
failed to make a threshold showing sufficient to warrant a hearing on
his competence for execution.  Accordingly, the judgment of the trial
court is affirmed.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/thompsongregory_dis.wpd

JESSIE MORROW v. INTERNATIONAL MILL SERVICE, INC. 

Court:TSC - Workers Comp Panel

Attorneys:                          

B. Duane Willis, Jackson, Tennessee, for the appellant, International
Mill Service, Inc.

Jay E. DeGroot, Jackson, Tennessee, for the appellee, Jessie Morrow

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.  We
affirm the award of twenty-five percent permanent partial disability
and the payment of the medical expenses as ordered by the trial court.

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

MICHAEL W. LAMBERSON v. KATHY SUE LAMBERSON

Court:TCA

Attorneys:                          

Clark Lee Shaw, John David Moore, Nashville, Tennessee, for the
appellant, Michael W.Lamberson.

David Lyle, Nashville, Tennessee, for the appellee, Kathy Sue
Lamberson.

Judge: CAIN

First Paragraph:

In this appeal, the ex-husband challenges the trial court's order
denying his post-divorce petition to modify alimony and finding him in
"technical contempt."  We find that the proof is inadequate to
establish willful efforts to defeat alimony obligations, that his
change of employment was not voluntary and that a substantial and
material change of circumstances has occurred, justifying some relief
from the alimony obligation.  The trial court did not err in holding
the ex-husband to be in contempt.  We reverse the judgment in part,
affirm the judgment in part, and remand the case for further
proceedings.

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

EDWIN EARL SANBORN v. CARLOTTA JOAN SANBORN

Court:TCA

Attorneys:                          

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Edwin Earl
Sanborn.

D. Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for
the appellee, Carlotta Joan Sanborn.

Judge: CLEMENT
 
First Paragraph:

After twenty-five years of marriage, Father filed for divorce
asserting irreconcilable differences and inappropriate marital conduct
due to Mother's alleged prescription drug abuse.  Father requested
that he be the primary residential parent of the parties' two minor
children.  Mother filed an answer and counterclaim also requesting to
be the primary residential parent.  The trial court granted Father the
divorce but designated Mother as the primary residential parent. 
Father appealed, asserting that the trial court erred in designating
Mother as the primary residential parent and in setting the
residential schedule.  We affirm

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

LARRY STEPHEN BRUMIT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

W.H. Stephenson, II, Nashville, Tennessee, for the appellant, Larry
Stephen Brumit.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; and William C. Whitesell, District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Larry Stephen Brumit, filed for post-conviction relief
from 1996 convictions for two counts of first degree murder and one
count of conspiracy to commit first degree murder.  The post-
conviction court denied the petition.  In this appeal, the petitioner
argues (1) that the petition was not  barred by the applicable statute
of limitations; and (2) that he was denied the effective assistance of
counsel.  The judgment is affirmed.

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

STATE OF TENNESSEE v. WILLIAM F. CARTWRIGHT

Court:TCCA

Attorneys:                          

Edwin G. Sadler, Cookeville, Tennessee, for the appellant, William F.
Cartwright.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel, Office of the Attorney General; William Edward Gibson,
District Attorney General; and David Alan Patterson, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, William F. Cartwright, appeals as of right from his
convictions by a jury in the Putnam County Criminal Court for
possession with intent to deliver one-half gram or more of cocaine, a
Class B felony, and simple possession of cocaine, a Class A
misdemeanor.   The trial court sentenced him as a standard offender to
concurrent sentences of nine years for possession of one-half gram or
more of cocaine with intent to deliver and eleven months, twenty-nine
days for simple possession of cocaine.  However, the trial court
ordered these convictions merged.  The petitioner contends (1) that
the evidence is insufficient to support his conviction for possession
with intent to deliver one-half gram or more of cocaine, (2) that the
trial court erred in not requiring the state to elect which offense it
was prosecuting, and (3) that his convictions for possession with
intent to deliver one-half gram or more of cocaine and for simple
possession of cocaine violate double jeopardy.  We hold that the
evidence is sufficient and that the trial court did not err by not
requiring the state to elect between offenses with regard to his
cocaine convictions.  We also hold that although the trial court
ordered the cocaine convictions to be merged, it should have entered
only one judgment of conviction and noted the merger of the counts in
that judgment.  We vacate the judgments and remand the case for entry
of a single judgment of conviction

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

STATE OF TENNESSEE v. STANLEY RAY DAVIS IN RE: RAY D. DRIVER d/b/a
DRIVER BAIL BONDS
CORRECTED OPINION WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, Ray D.
Driver d/b/a Driver Bail Bonds.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and Michael O. Ripley, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

Ray D. Driver appeals the Campbell County Criminal Court's judgment
requiring his bail bonding company, Driver Bail Bonds, to pay $570.50
as a bond forfeiture because Stanley Ray Davis failed to appear at a
general sessions court probation hearing.  The appellant contends that
T.C.A. S 40-11- 138(b) relieved his company from liability under the
bond because the defendant already had pled guilty and been sentenced.
 He also claims that his company is not liable for the defendant's
fine and costs because his company did not assume such obligations in
the defendant's bond.  We hold that appellant remained obligated under
the bond and that the trial court did not require him to pay the
defendant's fine and costs.  The trial court is affirmed.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/davisstanleyray.wpd

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

JAMES GORDON FREEMAN v. STATE OF TENNESSEE
WITH ORDER

Court:TCCA

Attorneys:                          

Kathleen G. Morris, Nashville, Tennessee, for the appellant, James
Gordon Freeman.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL
 
First Paragraph:

Petitioner, James Gordon Freeman, filed a pro se petition for
post-conviction relief, which was amended by appointed counsel. 
Following an evidentiary hearing, the trial court dismissed the
petition.  On appeal, Petitioner argues that the post-conviction court
erred in finding that Petitioner received effective assistance of
counsel at trial.  After a thorough review of the record, we affirm
the judgment of the post-conviction court.

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

ORDER
http://www.tba.org/tba_files/TCCA/freemanjamesgordon_ord.wpd

STATE OF TENNESSEE v. JARRET A. GUY

Court:TCCA

Attorneys:                          

John G. Oliva, Nashville, Tennessee, for the appellant, Jarret A. Guy.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; and Dan Hamm and Katrin Miller, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Jarret A. Guy, was convicted of facilitation of first
degree premeditated murder, felony murder, and robbery.  The trial
court merged the facilitation of premeditated first degree murder
conviction into the conviction for felony murder and, after finding
the existence of five aggravating circumstances, the jury imposed a
sentence of life without the possibility of parole.  The trial court
imposed a concurrent sentence of fifteen years for the robbery
conviction.  In this appeal, the defendant asserts that (1) the
evidence is insufficient to support his convictions; (2) the trial
court included erroneous definitions of "knowing" and "intentional" in
its instructions to the jury; (3) the trial court erred by severing
his trial from that of his co-defendant, Jacob Edward Campbell;  (4)
the sentence is excessive; and (5) the cumulative effect of the errors
at trial require reversal.  The judgments of the trial court are
affirmed.

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

STATE OF TENNESSEE v. BRYAN CHRISTOPHER HESTER

Court:TCCA

Attorneys:                          

James Robin McKinney, Jr., Nashville, Tennessee, for the appellant,
Bryan Christopher Hester.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Kathy Morante and Pamela Sue Anderson, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Davidson County Criminal Court jury convicted the defendant, Bryan
Christopher Hester, of second degree murder, a Class A felony, and the
trial court sentenced him as a Range I, violent offender to
twenty-five years in confinement.  The defendant appeals, claiming
that (1) the evidence is insufficient to support his conviction; (2)
the trial court erred by denying his motion to continue when the state
revealed three days before trial that the victim had been taking an
antidepressant and seeing a psychiatrist; (3) the trial court erred by
allowing hearsay into evidence; (4) the trial court erred by allowing
the state to introduce a bow saw into evidence; (5) the trial court
erred by allowing a witness to testify about experiments conducted on
the murder weapon when the state failed to prove the chain of custody;
(6) the trial court erred by allowing the state medical examiner to
testify; and (7) the defendant's sentence is excessive.  We conclude
that the trial court erred by allowing hearsay into evidence but that
the error was harmless.  We also conclude that the defendant's
sentence is not excessive, and we affirm the judgment of the trial
court.

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

MICHAEL D. HUGHES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David R. Heroux, Nashville, Tennessee, for the appellant, Michael D.
Hughes.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Roger Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On November 30, 1992, the petitioner, Michael Douglas Hughes, entered
a plea of no contest to one (1) count of aggravated rape and a plea of
guilty to ten (10) counts of aggravated rape.   He received an
effective eighty-year sentence after a sentencing hearing.  The
petitioner's sentence was affirmed in a delayed appeal.  See State v.
Michael Douglas Hughes, No. 01C01-9701-CR-00021, 1998 WL 301730, at *1
(Tenn. Crim. App. at Nashville, June 10, 1998), perm. to appeal denied
(Tenn. Feb. 22, 1999).  The petitioner sought post-conviction relief
on various grounds.  After the trial court denied the petition as
untimely, the petitioner appealed.  This Court reversed the trial
court's dismissal of the petition and remanded for an evidentiary
hearing.  See Hughes v. State, 77 S.W.3d 801 (Tenn. Crim. App. 2001). 
On remand, the trial court denied the petition after an evidentiary
hearing.  The petitioner then presented this appeal, arguing that the
trial court erred finding that the petitioner received the effective
assistance of counsel and that his guilty plea was knowingly and
voluntarily entered.  We affirm the dismissal of the petition.

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

RONALD L. JOHNSON v. FLORA HOLLAND, Warden

Court:TCCA

Attorneys:                          

Ronald L. Johnson, Middle Tennessee Correctional Complex, Nashville,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Kathy Morante, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Ronald L. Johnson, appeals as of right from the
Davidson County Criminal Court's summary dismissal of his petition for
writ of habeas corpus.  He argues that his convictions for two counts
of passing worthless checks are void because they were not ordered to
be served consecutively to a sentence from which he had been paroled
at the time of the check offenses, his parole subsequently being
revoked.  The habeas corpus court dismissed his petition without a
hearing, and we affirm that action.

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

DON WESLEY MCMILLEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Roger J. Bean, Tullahoma, Tennessee, for the appellant, Don Wesley
McMillen.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Mickey Layne, District Attorney General;
and Doug Aaron, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Don Wesley McMillen, entered a plea of guilty to two
(2) counts of attempted rape of a child in May of 1998.  In exchange
for the guilty pleas, the petitioner received concurrent,
seventeen-year sentences at 35% as a Range II Offender.  The
petitioner timely filed a petition for post-conviction relief arguing
that he received ineffective assistance of counsel and that his guilty
plea was not knowing or voluntary because the trial court violated the
provisions of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977).  The trial
court denied the petition following an evidentiary hearing and this
appeal followed.  We affirm the dismissal of the post-conviction
petition.

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

STATE OF TENNESSEE v. JOHN BRIAN MESSER

Court:TCCA

Attorneys:                          

Tony L. Maples, Murfreesboro, Tennessee, for the appellant, John Brian
Messer.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; and William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, John Brian Messer, entered a plea of guilt to robbery. 
See Tenn. Code Ann. S 39-13- 401.  Pursuant to a plea agreement, the
trial court ordered the sentence of four and one-half years in the
Department of Correction to be served on probation.  After the entry
of the second violation of the terms of his probation, the trial court
ordered that the defendant serve the sentence originally imposed.  The
defendant sought to withdraw his plea, arguing that the state had
violated the plea agreement.  After finding that it lacked
jurisdiction, the trial court denied the motion without a hearing.  In
this appeal of right, the defendant contends that the trial court
erred by denying the motion to withdraw the guilty plea without
appointing counsel and holding a hearing.  The judgment of the trial
court is affirmed.

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

STATE OF TENNESSEE v. JAMES D. ROWLAND

Court:TCCA

Attorneys:                          

R. Steven Waldron, Waldron & Fann, Murfreesboro, Tennessee, for the
Appellant, James D. Rowland.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and John W.
Price, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

This appeal involves review of a certified question of law following
the Defendant, James D. Rowland's, guilty plea to DUI.  See Tenn. R.
Crim. P. 37(b)(2)(1).  Because we find that the certified question is
not dispositive, we are without jurisdiction to entertain the appeal. 
Accordingly, the appeal is dismissed.

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

PATRICK E. SIMPSON v. RICKY BELL, WARDEN

Court:TCCA

Attorneys:                          

Patrick E. Simpson, Riverbend Maximum Security Institution, Nashville,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Stephen Douglas Thurman, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Patrick E. Simpson, pled guilty to two counts of
aggravated assault and was sentenced to concurrent terms of three
years to be served consecutively to his parole violation.  He appeals
the summary dismissal of his petition for habeas corpus relief,
arguing that the trial court failed to enforce his guilty plea
agreement and that his sentence has expired.  Following our review, we
affirm the dismissal of the petition.

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

STATE OF TENNESSEE v. ROXANNE R. VANCE

Court:TCCA

Attorneys:                          

James C. Vance, Nashville, Tennessee, for the appellant, Roxanne R.
Vance.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Jim Todd and Katie Hagan, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

Following a bench trial, the defendant, Roxanne R. Vance, was
convicted of DUI per se, a Class A misdemeanor, and was sentenced to
eleven months, twenty-nine days, all suspended except seven days with
the balance to be served on probation.  In addition, her driver's
license was suspended for one year and she was ordered to pay a fine
of $350 and attend alcohol and drug safety school.  On appeal, she
argues that the trial court erred in finding that her breath alcohol
test results created an irrebuttable presumption of DUI per se and
that the evidence was insufficient to support her conviction.  Based
upon our review, we affirm the judgment of the trial court.

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

RANDY D. VOWELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Richard L. Gaines, Knoxville, Tennessee, for the appellant, Randy D.
Vowell.

Michael E. Moore, Solicitor General; Kathy D. Aslinger, Assistant
Attorney General; James N. Ramsey, District Attorney General; and Jan
Hicks, Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: RILEY

First Paragraph:

The petitioner appeals the Anderson County Criminal Court's denial of
habeas corpus relief relating to his convictions for aggravated rape
and rape.  On appeal, the petitioner contends the original sentencing
court erred in amending the judgments to reflect 100% release
classification after they became final.  We affirm the lower court's
judgment denying habeas corpus relief.

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

Fee for Service of Criminal Process

Date: May 6, 2004

Opinion Number: 04-088                         

http://www.tba.org/tba_files/AG/2004/op88.pdf

Constitutionality of Proposed House Bill 3186

Date: April 10, 2004

Opinion Number: 04-089                         

http://www.tba.org/tba_files/AG/2004/op89.pdf

Authority of General Sessions Judge to Correct a Judgment

Date: May 10, 2004

Opinion Number: 04-090                         

http://www.tba.org/tba_files/AG/2004/op90.pdf

State Fire Marshal Adoption of Uniform Fire Code

Date: May 11, 2004

Opinion Number: 04-091                         

http://www.tba.org/tba_files/AG/2004/op91.pdf

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