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Today's Opinions: December 8, 2004
Volume 10 — Number 235
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.
05 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
01 New Opinion(s) from the Tennessee Court of Appeals
02 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.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 OF TENNESSEE  v.  SHAWN RAFAEL BOUGH 
Corrected Opinion

Court:TSC

Attorneys:                          

Mark E. Stephens and John Halstead, Knoxville, Tennessee, for the
appellant, Shawn Rafael Bough.

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

Judge: BARKER

First Paragraph:

The defendant, Shawn Rafael Bough, was convicted of felony murder and
especially aggravated robbery.  The Court of Criminal Appeals held
that the motion for new trial, which was not filed until the date of
the sentencing hearing on the especially aggravated robbery
conviction, fifty-two days after judgment was entered on the felony
murder conviction, was untimely as to the felony murder conviction. 
The Court of Criminal Appeals also held that two amended motions for
new trial were untimely.  On these two issues, we reverse the Court of
Criminal Appeals, finding that the original motion for new trial, as
well as the two amended motions for new trial, were timely filed as to
both convictions.  The Court of Criminal Appeals found that the
evidence was sufficient to support both convictions.  The remaining
issues addressed by the Court only related to the especially
aggravated robbery conviction because the Court had held that the
motion for new trial was untimely.  On those issues, the Court held
that (1) while the State's reference to a "missing witness" during
closing argument was improper, the error was harmless beyond a
reasonable doubt; (2) the witnesses Deanna Jones, Edie Jones and Dante
Smith were not accomplices whose testimony needed corroboration, and
therefore the trial court did not err in failing to give a jury
instruction on accomplice testimony; and (3) the defendant waived any
objection to the testimony of Isaiah Dixon regarding the defendant's
out-of-court confession by his failure to raise the issue at trial. 
We affirm the Court of Criminal Appeals on these issues.  However,
because the Court of Criminal Appeals did not address these last three
issues with respect to the felony murder conviction or any of the
issues raised in the amended motions for new trial as to either
conviction, we remand the case to the Court of Criminal Appeals for
consideration of those issues.

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

PATRICIA CONLEY, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF MARTHA STINSON, DECEASED v. STATE OF TENNESSEE
Corrected Opinion

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Martha A. Campbell, Senior Counsel, for the
Appellant, State of Tennessee.

Gene Hallworth, Columbia, Tennessee, for the Appellee, Patricia
Conley.

Judge: ANDERSON

First Paragraph:

We granted review in this case to address three issues:  (1) whether
the State is a "governmental entity" under Tennessee Code Annotated
section 20-1-119(g) (Supp. 2003); (2) whether the State may be liable
for medical malpractice under Tennessee Code Annotated section
9-8-307(a)(1)(D) (2003), when there was no "professional/ client"
relationship between the claimant and a state employee; and (3)
whether the State may be liable for the "negligent care, custody, or
control" of a person under Tennessee Code Annotated section
9-8-307(a)(1)(E) (2003) when it administers pre- admission screening
of a nursing home patient as required by federal statute.  The Claims
Commission held that the claimant's action was barred by the one-year
statute of limitations because the State was not a governmental entity
and also that the complaint failed to state a claim upon which relief
could be granted.  The Court of Appeals reversed on the statute of
limitations issue and remanded for further proceedings on the actions
for medical malpractice and negligent care, custody, and control. 
After reviewing the record and applicable authority, we conclude: (1)
that the complaint was timely filed under Tennessee Code Annotated
section 20-1-119(g) because the State is a "governmental entity"; (2)
that the complaint fails to state a claim upon which relief can be
granted for medical malpractice because there was no
"professional/client" relationship between a state employee and the
claimant; and (3) that the complaint fails to state a claim upon which
relief can be granted for the State's "negligent care, custody and
control" when it is based on the State administered pre-admission
screening of a nursing home patient as required by federal statute. 
We therefore affirm the Court of Appeals' judgment in part and
reverse in part.

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

STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS
Corrected Opinion

Court:TSC

Attorneys:                          

Hershell D. Koger, Pulaski, Tennessee, and David Hornik, Nashville,
Tennessee, for the Appellant, Christopher A. Davis.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; Victor
S. Johnson, District Attorney General; and Tom Thurman and Katrin
Miller, Assistant District Attorneys General, for the Appellee, State
of Tennessee.

Judge: ANDERSON

First Paragraph:

The defendant, Christopher A. Davis, was convicted of two counts of
premeditated first degree murder,  two counts of especially aggravated
kidnapping, and two counts of especially aggravated robbery.  The jury
imposed death sentences for both counts of premeditated first degree
murder after finding that evidence of three aggravating circumstances,
i.e., (1) the defendant was previously convicted of one or more
felonies whose statutory elements involved the use of violence to the
person, (2) the murders were committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest of the defendant, and
(3) the murders were knowingly committed, solicited, directed, or
aided by the defendant while the defendant had a substantial role in
committing or attempting to commit a robbery or kidnapping, outweighed
evidence of mitigating circumstances beyond a reasonable doubt.  In
addition, the trial court sentenced the defendant to concurrent
25-year sentences for the especially aggravated kidnapping convictions
to run consecutively to concurrent 25-year sentences for the
especially aggravated robbery convictions.

After the Court of Criminal Appeals affirmed the convictions and the
sentences, the case was automatically docketed in this Court.  We
entered an order specifying seven issues for oral argument, and we now
hold as follows:  (1) the evidence was sufficient to support the
jury's verdicts; (2) the trial court did not err in refusing to
disqualify the District Attorney General; (3) the trial court did not
err in refusing to allow defense counsel to withdraw; (4) the death
sentences were not invalid on the ground that the aggravating
circumstances were not set out in the indictment; (5) the trial court
did not err in allowing the prosecution to establish the "prior
violent felony" aggravating circumstance by relying on an offense
committed as a juvenile; (6) the evidence was sufficient to support
the jury's finding of three aggravating circumstances beyond a
reasonable doubt and its determination that the aggravating
circumstances outweighed the evidence of mitigating circumstances
beyond a reasonable doubt; and (7) the death sentences were not
arbitrary or disproportionate.  We also agree with the Court of
Criminal Appeals' conclusions with respect to the remaining issues,
the relevant portions of which are included in the appendix to this
opinion.  Accordingly, we affirm the judgment of the Court of Criminal
Appeals.

Corrected Opinion:
http://www.tba.org/tba_files/TSC/davischristopher_corr.wpd
Corrected Appendix:
http://www.tba.org/tba_files/TSC/davischristopher_apxcorr.wpd

MICHAEL WAYNE HOWELL  v.  STATE OF TENNESSEE 
Corrected Opinion

Court:TSC

Attorneys:                          

Paul R. Bottei and Kelley J. Henry, Nashville, Tennessee, for the
appellant, Michael Wayne Howell.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Jennifer L. Smith, Senior Counsel, for the
appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

This case comes before us on a motion to reopen a petition for
post-conviction relief.  The petitioner alleges that he is mentally
retarded as defined in Tennessee Code Annotated section 39-13- 203(a)
(2003), and therefore ineligible for the death penalty under State v.
Van Tran, 66 S.W.3d 790 (Tenn. 2001) and Atkins v. Virginia, 536 U.S.
304 (2002).  The trial court denied the motion, finding that the
petitioner failed to make a prima facie showing of mental retardation
sufficient to support reopening his post-conviction proceeding, and
the Court of Criminal Appeals affirmed the denial.  We reverse the
Court of Criminal Appeals, holding that under the specific facts of
this case, in which a petitioner is able, for the first time in his
motion to reopen his petition for post-conviction relief, to claim
ineligibility for the death penalty due to mental retardation under
Van Tran or Atkins, the motion should be considered under the
"colorable claim" evidentiary standard rather than the "clear and
convincing" standard.  We also hold that Tennessee Code Annotated
section 39-13-203(a) (2003) clearly and unambiguously requires the
defendant to have an I.Q. of seventy or below to be considered
mentally retarded.  We conclude that the petitioner's motion to reopen
his post- conviction hearing set out a colorable claim, thus entitling
him to an evidentiary hearing, without a jury, on the issue of mental
retardation.

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

CINDY R. LOURCEY, ET AL. v. ESTATE OF CHARLES SCARLETT, Deceased
Corrected Opinion

Court:TSC

Attorneys:                          

Michele M. Brubaker, Parks T. Chastain and Stacey A. Terral,
Nashville, Tennessee, for the Appellant, Estate of Charles Scarlett,
Deceased.

David L. Cooper, Nashville, Tennessee, for the Appellees, Cindy R.
Lourcey and Vernon B. Lourcey.

Judge: ANDERSON

First Paragraph:

We granted review to determine (1) whether the complaint states a
claim for intentional infliction of emotional distress when it alleges
that the defendant's conduct was outrageous because he shot his wife
and then himself in plaintiff Cindy Lourcey's presence; and (2)
whether the complaint states a claim for negligent infliction of
emotional distress when it does not allege that Cindy Lourcey was
related to the defendant or his wife.  The trial court dismissed the
complaint for failure to state a claim upon which relief may be
granted pursuant to Tennessee Rule of Civil Procedure 12.02(6).  The
Court of Appeals reversed the trial court's judgment after concluding
that the complaint states claims for intentional and negligent
infliction of emotional distress.  After reviewing the record and
applicable authority, we hold that the plaintiffs state a claim for
intentional infliction of emotional distress because Cindy Lourcey
witnessed an "outrageous" act, i.e., the defendant's shooting of his
wife and himself, and that the plaintiffs state a claim for negligent
infliction of emotional distress even though Cindy Lourcey is not
related to the defendant or his wife.  Accordingly, we affirm the
Court of Appeals' judgment.

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

JOHN WILLINGHAM v. SHELBY COUNTY ELECTION COMMISSION, ET AL.

Court:TCA

Attorneys:                          

Kevin A. Snider of Germantown For Appellant, John Willingham

Robert J. Spence, Jr. and Patti C. Bowlan of Memphis For Appellee,
Shelby County Election Commission

Judge: CRAWFORD

First Paragraph:

Plaintiff/Appellant, an unsuccessful candidate for mayor of The City
of Memphis, brought "Complaint for Election Contest" against
Defendant/Appellee, Shelby County Election Commission and Tennessee
Division of Elections.  Plaintiff/Appellant filed Motion to Compel
Discovery and for Continuance, asserting that Defendant/Appellee had
withheld information crucial to Plaintiff/Appellant's case.  The trial
court denied Plaintiff/Appellant's Motion and dismissed Plaintiff's
action pursuant to Tenn. R. Civ. P. 41.02(2).  We affirm.

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

STATE OF TENNESSEE  v. TERRELL DEBERRY AND DAMIEN LASHAWN NIXON, A/K/A
"SKINNY"

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; and Tracey Brewer, Assistant District
Attorney General, for the appellant, State of Tennessee.

Gary F. Antrican, District Public Defender, for the appellee, Terrell
Deberry.

Rebecca S. Mills, Ripley, Tennessee, for the appellee, Damien Nixon.

Judge: WADE

First Paragraph:

The defendant Terrell Deberry was indicted for possession with intent
to deliver .5 grams or more of cocaine.  The defendant Damien Nixon
was also indicted for possession with intent to deliver .5 grams or
more of cocaine and for driving on a revoked license.  After granting
a motion to suppress the cocaine found in the possession of defendant
Deberry, the trial court permitted the state an application for a
discretionary appeal under Rule 9 of the Tennessee Rules of Appellate
Procedure.  Later, the state determined that because the substantive
effect of the trial court's ruling resulted in dismissal of the
charges against each defendant, the more appropriate appellate remedy
was under Rule 3 of the Tennessee Rules of Appellate Procedure.  This
court granted the motion to accept the appeal under Rule 3 and waived
the timely filing of notice of appeal by the state.  The issue
presented for review is whether the trial court erred by granting the
motion to suppress.  Because the evidence was properly suppressed, the
judgment is affirmed.

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

STATE OF TENNESSEE v. JUDY C. TURNER

Court:TCCA

Attorneys:                          

Rebecca D. Slone, Dandridge, Tennessee, for the Appellant, Judy C.
Turner.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Al C. Schmutzer, Jr., District
Attorney General; and Steven R. Hawkins, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Indicted for aggravated burglary and the attempted first-degree murder
of her estranged husband, Judy C. Turner entered a best-interests plea
to assault with intent to commit second-degree murder, a Class B
felony. As part of a plea agreement with the state, the aggravated
burglary charge was dismissed.  The length and manner of service of
the defendant's sentence was reserved for the trial court's
determination.  The trial court denied alternative sentencing and
imposed a nine-year incarcerative sentence.  On appeal, the defendant
argues that she should have received an eight-year sentence making her
eligible for probation or split confinement.  For the following
reasons, we affirm the judgment.

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

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