8th Annual Labor & Employment Law Forum
April 7 - Nashville

The traditional CLE format will be pushed beyond the norm with a pair
of intriguing and informative panels. These panels will offer labor
and employment practitioners an invaluable opportunity to gain insight
that will directly and immediately improved their practice
Additionally, the forum will include an update on the new developments
at the National Labor Relations Board and recent case law involving
EEO issues.

Today's Opinions: March 4, 2005
Volume 11 — 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.
01 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
02 New Opinion(s) from the Tennessee Court of Appeals
03 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. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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. ANDREW THOMAS, ET AL.
WITH DISSENTING OPINION AND APPENDIX

Court:TSC

Attorneys:                          

Michael E. Scholl and Robert C. Brooks, Memphis, Tennessee, for the
Appellant, Andrew Thomas.

Paul G. Summer, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Alice B. Lustre, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich and
Jennifer Nichols, Assistant District Attorneys General, for the
Appellee, State of Tennessee.

Judge: ANDERSON

First Paragraph:

The defendant, Andrew Thomas, was convicted of felony murder.  In
imposing a death sentence, the jury found that evidence of one
aggravating circumstance, i.e., the defendant was previously convicted
of one or more felonies whose statutory elements involved the use of
violence to the person, outweighed the evidence of mitigating
circumstances beyond a reasonable doubt.  The Court of Criminal
Appeals affirmed the conviction and the death sentence, and the case
was automatically docketed in this Court.  We entered an order
identifying three issues for oral argument and now hold as follows: 
(1) the trial court did not err in excusing a prospective juror for
cause; (2) the trial court erred in refusing to instruct the jury on
lesser included offenses of felony murder but the error was harmless
beyond a reasonable doubt; and (3) the death sentence was not
arbitrary, excessive, 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, the Court of Criminal Appeals' judgment is
affirmed.

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

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

APPENDIX
http://www.tba.org/tba_files/TSC/thomasandrew_apx.wpd

RANDY ALAN BARNES v. AMY ROBERTSON BARNES

Court:TCA

Attorneys:                          

William T. Winchester of Memphis for Appellant, Randy Alan Barnes

Mitchell D. Moskovitz and Adam N. Cohen of Memphis for Appellee, Amy
Robertson Barnes

Judge: CRAWFORD

First Paragraph:

This is a divorce case.  In contemplation of a divorce grounded on
irreconcilable differences,  Husband and Wife entered into a Marital
Dissolution Agreement.  Subsequently, Husband filed a complaint for
divorce, and the complaint, inter alia, disavowed the prior executed
Marital Dissolution Agreement.  The divorce case proceeded to trial,
and the trial court granted the divorce on the ground of inappropriate
marital conduct and enforced the Marital Dissolution Agreement,
dividing the marital property and debt.  Husband appeals.  Because
Husband-Appellant repudiated the Marital Dissolution Agreement prior
to the entry of the trial court's Final Decree of Divorce, there was
no agreement between the parties, and the Marital Dissolution
Agreement should not have been enforced.  We reverse and remand.

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

STATE OF TENNESSEE, ex rel., BRANDI SHANTIKA TAYLOR v. CEDRICK CORTEZ
WILSON

Court:TCA

Attorneys:                          

David M. Waldrop of Memphis for Appellant, Cedrick Cortez Wilson

Paul G. Summers, Attorney General and Reporter; Warren A. Jasper,
Assistant Attorney General for Appellee, State of Tennessee, ex rel.,
Brandi Shantika Taylor

Judge: CRAWFORD

First Paragraph:

Appellant challenges trial court's dismissal of his petition, under
Tennessee Rule of Civil Procedure 60.02(4), seeking to rescind his
voluntary legitimation of child, modify custody, set aside paternity
order and modify child support arrearage, based on results of DNA test
that conclusively proves that he is not the father of the child. We
reverse

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

STATE OF TENNESSEE v. JAMIE L. BAILEY

Court:TCCA

Attorneys:                          

Jim W. Horner, Public Defender; H. Rod Taylor and Patrick R. McGill,
Assistant Public Defenders,  Dyersburg, Tennessee, for appellant,
Jamie L. Bailey.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; and C. Phillip Bivens, District Attorney
General, for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant attempts to appeal a certified question of law pursuant
to Tennessee Rule of Criminal Procedure 37 while a motion is pending
in the trial court.  The trial court has held the defendant's
remaining motion in abeyance because the defendant has pursued this
appeal.  We find this appeal premature and remand the case to the
trial court to complete the proceedings and issue a final judgment,
from which the defendant may then appeal.

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

STATE OF TENNESSEE v. CORNELIUS BOALES
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Frankie K. Stanfill, Lexington, Tennessee, Attorney for the Appellant,
Cornelius Boales.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
Jerry Woodall, District Attorney General; and Bill Martin, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Cornelius Boales, was convicted by a Henderson County
jury of one count of felony possession of cocaine with the intent to
sell, a class B felony, and one count of felony possession of
marijuana with the intent to sell, a class E felony.  For these
crimes, Boales received an effective twelve-year sentence as a Range I
offender.  In addition, the trial court imposed a $100,000 fine as
assessed by the jury for the cocaine conviction.  On appeal, Boales
argues (1) that the evidence is insufficient to support either of his
convictions and (2) that the trial court erred in imposing the maximum
sentence and the maximum fine for his class B felony conviction. 
After review, we conclude that the evidence supports the convictions
and the length of the sentence imposed.  However, we modify Boales'
fine of $100,000 to reflect assessment of a fine in the amount of
$50,000.

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

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

STATE OF TENNESSEE v. JERRY GLEN YATES

Court:TCCA

Attorneys:                          

Timothy Boxx, Dyersburg, Tennessee, for the appellant, Jerry
Glen Yates.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; Allen Strawbridge, Assistant District Attorney General; and
James Cannon, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: WALKER

First Paragraph:

The Appellant, Jerry Yates, appeals the denial by the trial court of a
motion to suppress all evidence in a prosecution for driving under the
influence, alleging an illegal warrantless misdemeanor arrest because
he left the scene of the accident.  We affirm the trial court's denial
of the motion.

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

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