Opinion Flash

July 14, 2004
Volume 10 — Number 134

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
03 New Opinion(s) from the Tennessee Court of Appeals
14 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 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


KATHRYN C. BLACK v. STEVAN L. BLACK

Court:TCA

Attorneys:                          

Hal Gerber and Margaret M. Chesney, Memphis, Tennessee, for the
appellant, Kathryn C. Black.

Daniel L. Taylor, Memphis, Tennessee, for the appellee, Stevan L.
Black.

Judge: KIRBY

First Paragraph:

This is an independent action for fraud and coercion based on a
marital dissolution agreement.  On September 13, 2000, the parties
executed a marital dissolution agreement, and they were divorced by
final decree entered in circuit court ninety days later on December
12, 2000.  In February 2003, the wife brought this independent action
in the chancery court below for damages for fraud, deceit, and
coercion.  She alleged that the husband had coerced her into signing
the marital dissolution agreement by the use of threats, had prevented
her from obtaining the benefit of counsel, and had misrepresented the
value of his marital assets.  The husband filed a motion to dismiss,
alleging that the wife had failed to state a claim upon which relief
could granted.  The trial court dismissed the wife's lawsuit,
determining that the complaint was essentially an action to set aside
the divorce decree, and that the wife did not set out sufficient facts
to support that claim.  From that decision, the wife now appeals.  We
affirm, finding that the allegations in the complaint cannot be the
basis for an independent action essentially to set aside the divorce
decree.

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

SHIRLEY HALE v. ERWIN OSTROW, ROSE OSTROW, MAX OSTROW
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Stephen R. Leffler, Memphis, TN, for Appellant

Matthew S. Russell, Gary R. Wilkinson, Attorneys for Appellees Erwin
Ostrow & Rose Ostrow

Minton P. Mayer, Memphis, TN, for Appellee Max Ostrow

Judge: HIGHERS

First Paragraph:

This is a premises liability and nuisance case that arose when
Plaintiff fell on a public sidewalk.  Plaintiff's fall occurred on a
patch of broken concrete located on the portion of sidewalk abutting
Neighbor's property, which is located immediately to the north of the
lot owned by Defendants.  Plaintiff filed suit alleging that her fall
was caused, in part, by overgrown bushes on Defendants' property that
obstructed passage on the sidewalk.  Defendants moved for summary
judgment, arguing that, because the fall took place on broken concrete
in front of Neighbor's property, Plaintiff cannot establish duty or
causation.  The trial court granted Defendants' motion, and, for the
following reasons, we affirm.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/haleshirley_dis.wpd

IN RE: R.C.P.
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Christina B. Jackson, Murfreesboro, Tennessee, for the appellant,
M.A.F.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Assistant Attorney General, for the appellee, Tennessee
Department of Children's Services.

Judge: KOCH

First Paragraph:

This appeal involves the termination of a mother's parental rights
with regard to her ten-year-old daughter.  The Department of
Children's Services obtained custody of the child after discovering
that she had been sexually abused by her mother's boyfriend. 
Approximately three months later, the Department and the child's
guardian ad litem filed separate petitions in the Juvenile Court for
Coffee County to terminate the mother's parental rights based on
abandonment under Tenn. Code Ann. S 36-1-113(g)(1) (Supp. 2003) and
severe child abuse under Tenn. Code Ann. S 36-1-113(g)(4).  Following
a bench trial, the juvenile court determined that the Department and
guardian ad litem had failed to present clear and convincing evidence
of abandonment but concluded that the mother had committed severe
child abuse by knowingly failing to protect her daughter from her
boyfriend.  The mother has perfected this appeal.  We have determined
that the record contains clear and convincing evidence supporting the
juvenile court's conclusion that the mother knowingly failed to
protect her child from her boyfriend's sexual abuse and that
terminating the mother's parental rights is in the child's best
interests.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/rcp_con.wpd

STATE OF TENNESSEE v. ANDREW NEAL DAVIS
WITH CONCURRING & DISSENTING OPINION

Court:TCCA

Attorneys:                          

Jodie A. Bell, Nashville, Tennessee, (on appeal); and Ed Yarbrough,
Nashville, Tennessee, (at trial), for the appellant, Andrew Neal
Davis.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. Johnson III, District Attorney
General; Bernard McEvoy, Assistant District Attorney General; and
Brian Holmgren, Assistant District Attorney General, for the appellee,
the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Andrew Neal Davis, was indicted on one count of first
degree premeditated murder, one count of first degree felony murder,
and one count of aggravated child abuse of a child under the age of
eighteen.  Defendant's first jury trial ended in a mistrial.  On the
first day of the second trial, the trial court granted the State's
motion, over Defendant's objection, to amend count three of the
indictment, aggravated child abuse, to substitute the words "under six
years of age" for "under eighteen years of age."  At the conclusion of
his second jury trial, Defendant was convicted of one count of first
degree felony murder and one count of aggravated child abuse of a
child under the age of six.  Prior to the jury's verdict, the State
entered a nolle prosequi as to count one of the indictment, first
degree premeditated murder.  The trial court sentenced Defendant to
life imprisonment with the possibility of parole for the felony murder
conviction.  Following a sentencing hearing, the trial court sentenced
Defendant to twenty-two years imprisonment for the aggravated child
abuse conviction as a Range I offender and ordered the sentence for
aggravated child abuse to run concurrently with Defendant's life
sentence.  Defendant does not appeal his sentence for aggravated child
abuse.  Defendant appeals his convictions alleging (1) that the
evidence is insufficient to support Defendant's convictions for first
degree felony murder and aggravated child abuse beyond a reasonable
doubt; (2) that the trial court erred in allowing the State to
introduce autopsy photographs of the victim; (3) that the trial court
erred in permitting the State's expert witness, Dr. Ellen Clayton, to
offer opinions outside her area of expertise; (4) that the trial court
erred in allowing Dr. Bruce Levy to testify as a rebuttal witness; (5)
that the State's improper cross-examination of Dr. Charles Harlan at
Defendant's first trial which led to Dr. Harlan's refusal to testify
at Defendant's second trial resulted in a denial of Defendant's due
process rights; and (6) that the trial court erred in allowing count
two of the indictment, aggravated child abuse, to be amended on the
day of trial   to reflect that the victim was under the age of six. 
After a thorough review of the record and the arguments and briefs of
counsel, we affirm the judgments of the trial court.

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

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

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

MARCUS EPPS v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Lance Chism, Memphis, Tennessee, for the appellant, Marcus Epps.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; David Zak, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Marcus Epps,  pled guilty to second-degree murder,
three counts of aggravated assault, two counts of attempted especially
aggravated robbery, reckless endangerment, and unlawful possession of
more than 0.5 grams of a controlled substance with intent to sell. 
The trial court sentenced the Petitioner to fifteen years in prison at
100 percent for the second-degree murder conviction and ordered that
the other sentences, which were of shorter duration, run concurrently
to the fifteen-year sentence.  The Petitioner filed a petition seeking
post-conviction relief, alleging that his attorney was ineffective
for: (1) failing to explain the lesser-included charge of facilitation
of felony murder; (2) denying to the Petitioner the right to testify
at his motion hearing; and (3) depriving the Petitioner of his right
to a speedy trial.  Following a hearing, the post-conviction court
dismissed the petition.  Finding no error, we affirm the
post-conviction court's judgment.

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

STATE OF TENNESSEE v. ANTONIO FULLER AND MARCELLUS BETTY

Court:TCCA

Attorneys:                          

Jeff Goldtrap (at trial) and Dwight E. Scott (on appeal), Nashville,
Tennessee, for the appellant, Antonio Fuller.

Justin Johnson (at trial) and Mike J. Urquhart (on appeal), Nashville,
Tennessee, for the appellant, Marcellus D. Betty.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; and Dan Hamm and Sharon Brox, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendants, Antonio Fuller and Marcellus Betty, were each
convicted of one count of aggravated burglary, one count of aggravated
robbery, two counts of especially aggravated kidnapping, one count of
evading arrest, and one count of reckless endangerment.  The trial
court sentenced defendant Fuller, a Range II offender, to ten years
for aggravated burglary, eighteen years for aggravated robbery,
thirty-five years for each especially aggravated kidnapping, seven
years for evading arrest, and four years for reckless endangerment and
ordered partially consecutive service for an effective sentence of
fifty-six years.  The trial court sentenced defendant Betty, a Range I
offender, to six years for aggravated burglary, twelve years for
aggravated robbery, twenty-five years for each especially aggravated
kidnapping, four years for evading arrest, and two years for reckless
endangerment.  The terms for especially aggravated kidnapping were
ordered to be served concurrently to each other and consecutively to
the other sentences, which are to be served consecutively, for an
effective sentence of forty-nine years.  In this appeal, Fuller
asserts that (1) the evidence is insufficient to support his
convictions; (2) his conviction for especially aggravated kidnapping
of one of the victims violates the rule established in State v.
Anthony, 817 S.W.2d 299 (Tenn. 1991); (3) the trial court erred by
refusing to provide a range of punishment instruction to the jury; and
(4) the trial court misapplied certain enhancement factors and should
not have imposed consecutive sentencing.  Betty contends (1) that the
trial court erred by refusing to sever his case from Fuller's; (2)
that the evidence is insufficient to support his convictions; (3) that
the trial court erred by not granting a mistrial when the state failed
to disclose a recording of a 911 call; (4) that the trial court erred
by failing to merge the convictions for aggravated robbery and
especially aggravated kidnapping; (5) that the trial court misapplied
certain enhancement and mitigating factors; and (6) that the trial
court erred by imposing consecutive sentencing.  Because each of the
defendants' convictions for the especially aggravated kidnapping of
one of the victims violates the rule established in Anthony, they are
reversed and dismissed.  Further, because the sentences for especially
aggravated kidnapping were ordered to be served concurrently to each
other, no modification of the effective sentence is necessary. 
Otherwise, the judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. AGEE GABRIEL

Court:TCCA

Attorneys:                          

Michael H. Sneed, Nashville, Tennessee, for the Appellant, Agee
Gabriel.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Beverly White, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Agee Gabriel appeals from the Giles County Circuit Court's revocation
of his probationary sentence.  Alleging myriad procedural and
substantive errors, he asks this court to reverse the revocation
order.  However, we are unpersuaded of error and therefore affirm the
lower court.

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

STEVEN GRIFFIN v. STATE OF TENNESSEE
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Steven Griffin, Appellant, Pro Se.

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

Judge: WITT

First Paragraph:

The petitioner, Steven Griffin, appeals the trial court's denial of
his request for forensic DNA analysis, pursuant to the Post-Conviction
DNA Analysis Act of 2001.  Our review discloses that the trial court
ruled correctly, and we affirm the denial of the petitioner's request.

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

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

STATE OF TENNESSEE v. ROBERT THOMAS HARRIS

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee (on appeal), and Andrew
Jackson Dearing, III, Assistant Public Defender (on appeal and at
trial), for the appellant, Robert Thomas Harris.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; and Michael D. Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Robert Thomas Harris, pled guilty to driving on a
revoked license, fourth offense.  A jury found the defendant guilty of
felony evading arrest and driving under the influence, sixth offense. 
The trial court imposed sentences of eleven months and twenty-nine
days for driving on a revoked license, twelve years for felony evading
arrest, and six years for DUI.  The sentences were ordered to be
served concurrently.  The defendant was sentenced as a career
offender.  See Tenn. Code Ann. S 40-35-108(a)(3).  In this appeal of
right, the defendant argues that the trial court erred by concluding
that he was a career offender.   The judgments of the trial court are
affirmed.

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

ANTHONY DARRELL HINES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Donald E. Dawson, Post-Conviction Defender; and Jon Joseph Tucci,
Assistant Post-Conviction Defender, Nashville, Tennessee, for the
appellant, Anthony Darrell Hines.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General; Dan
M. Alsobrooks, District Attorney General; and B. Dent Morriss,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: GLENN

First Paragraph:

The opinion of the court in this matter was released on January 23,
2004, and the petitioner filed an application for permission to
appeal.  On June 28, 2004, our supreme court granted the application
and remanded to this court, directing that we reconsider our previous
conclusion that "the trial court charged the incorrect version of the
aggravating circumstance in Tennessee Code Annotated section
39-2-203(i)(5) (1982)."  We have reconsidered this issue and conclude
that the trial court utilized the correct version of this statute when
instructing the jury at the resentencing hearing as to aggravating
circumstances.  Additionally, as explained in this opinion on remand,
we erred in the original opinion by stating that our supreme court had
addressed, in the direct appeal of the resentencing hearing, whether
"instructing an inapplicable version of aggravating circumstance
(i)(5) was harmless error."  In fact, the court did not do so.  In our
opinion on remand, we again affirm the post-conviction court's denial
of relief, and refile our opinion which has been altered only to
reflect our consideration of those matters, as previously explained,
set out in the remand order.

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

STATE OF TENNESSEE v. JAMES G. HUPPE, JR.

Court:TCCA

Attorneys:                          

John Wayne Allen, Cookeville, Tennessee, for the appellant, James G.
Huppe, Jr.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Clement Dale Potter, District
Attorney General; and Larry G. Bryant, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, James G. Huppe, Jr., was convicted of burglary and
theft over $1000, Class D felonies, and was sentenced to concurrent
terms of three years, suspended except for fifty-three days, with the
balance to be served on probation.  Additionally, he was ordered to
pay restitution in the amount of $4278 and was fined a total of
$10,000.  On appeal, he argues that he was denied his right to a
speedy trial, the court erred in restricting his cross-examination of
the victim, and the evidence is insufficient to sustain the
convictions.  Following our review, we affirm the judgments of the
trial court.

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

STATE OF TENNESSEE v. ALFRED N. MASON

Court:TCCA

Attorneys:                          

Richard McGee, Nashville, Tennessee, for the appellant, Alfred N.
Mason.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret Gunn, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Alfred N. Mason, pled guilty to possession of over
twenty-six grams of cocaine with the intent to sell, a Class B felony,
and was sentenced as a Range I, standard offender to ten years in the
Department of Correction.  On appeal, he argues that the trial court
erred in denying alternative sentencing.  After review, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. DONNIE MOORE

Court:TCCA

Attorneys:                          

Benjamin S. Dempsey, Huntingdon, Tennessee, for the Appellant, Donnie
Moore.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Michael Markham, Assistant Attorney General; Robert
"Gus" Radford, District Attorney General; and Eleanor Cahill,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Donnie Moore, appeals from the ruling of the Carroll
County Circuit Court, which found that Moore violated the conditions
of probation imposed by the Carroll County General Sessions Court. 
Following a hearing, the general sessions court partially revoked
Moore's probation and ordered him to serve ninety days in jail.  Moore
appealed to the Carroll County Circuit Court.  The circuit court
agreed that Moore had violated the terms of his probation and remanded
the case to the general sessions court for enforcement of the
sentence.  On appeal, Moore argues that the circuit court erred by
failing to conduct a de novo review of the sentence imposed by the
general sessions court and that his sentence was the result of
vindictive prosecution.  Because the circuit court failed to review
Moore's sentence following revocation of his probation, we remand the
case to the circuit court for that limited purpose.

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

STATE OF TENNESSEE v. JUAN LUIS RAVELL

Court:TCCA

Attorneys:                          

William J. Eledge, Lawrenceburg, Tennessee, for the appellant, Juan
Luis Ravell.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Patrick S. Butler, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant entered guilty pleas in Giles County to aggravated rape,
especially aggravated burglary, and assault.  After imposition of the
sentences, but before the judgments became final, the defendant filed
a pro se motion to withdraw the guilty pleas.  The trial court denied
the motion.  The defendant also filed a motion alleging error coram
nobis, which was denied by the trial court.  Both denials were
consolidated for this appeal.  Upon review, we affirm the judgments of
the trial court.

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

JOHN EARL SCALES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the appellant, John Earl
Scales.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Victor S. Johnson, III, District
Attorney General; and Ryan D. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of post-conviction relief relating
to his convictions for felony murder and attempted aggravated robbery.
 On appeal, the petitioner contends he received ineffective assistance
of counsel at trial and on appeal.  We affirm the judgment of the
post- conviction court.

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

STATE OF TENNESSEE v. BRANDON SCOTT WATSON

Court:TCCA

Attorneys:                          

Jeffery A. DeVasher, Assistant Public Defender, Nashville, Tennessee,
for the Appellant, Brandon Scott Watson.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Dan
Hamm, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Brandon Scott Watson, appeals from the sentencing
decision of the Davidson County Criminal Court.  In January of 2003,
Watson pled guilty to two counts of burglary of an automobile, class E
felonies.  Pursuant to a negotiated plea agreement, Watson received
concurrent two-year sentences and, following a sentencing hearing, he
was placed in the Community Corrections program.  On April 15, 2003, a
warrant was issued, alleging that Watson had violated conditions of
his behavioral contract.  Following an evidentiary hearing, the trial
court revoked his community corrections sentences and modified the
previously imposed concurrent sentences to reflect that they be served
consecutively.  In this appeal, Watson contends that: (1) the trial
court erred in revoking his community corrections sentence based on
"unreliable  hearsay" evidence, specifically, the testimony of his
community corrections case officer's referencing a report prepared by
a Davidson County Drug Court investigator, who was not present to
testify at the revocation hearing, and (2) the trial court erred in
ordering his sentences to run consecutively.  After a review of the
record, we find no reversible error and affirm the sentencing decision
of the trial court.

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

STATE OF TENNESSEE v. HARRIL JAY WISDOM

Court:TCCA

Attorneys:                          

Gerald L. Melton, District Public Defender; and Russell N. Perkins,
Assistant District Public Defender, for the appellant, Harril Jay
Wisdom.

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

Judge: GLENN

First Paragraph:

The defendant pled guilty to violation of a motor vehicle habitual
offender ("MVHO") order, a Class E felony, in exchange for a one-year
sentence in the Department of Correction.  With the permission of the
trial court and the State, he sought to reserve as a certified
question of law whether the expiration prior to his offense of the
three-year time period specified in the order declaring him a MVHO
precluded his prosecution for the offense.  Because we conclude that
the defendant failed to meet the requirements for properly reserving a
certified question of law pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2), we dismiss the appeal.

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

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