SUPREME COURT OPINIONS

Margaret Tobitt vs. Bridgestone/Fireston, Inc.
M2000-00279-SC-WCM-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Charles D. Haston, Sr.

David Miller vs. State
E1998-00247-SC-R11-PD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Ray L. Jenkins
We granted petitioner, David Earl Miller's application for permission to appeal to determine whether this Court's decision in State v. Brown, 836 S.W.2d 530 (Tenn. 1992) created a new state constitutional rule regarding the elements of deliberation and premeditation. Petitioner claims that Brown created a new state constitutional rule and that the jury instructions given at his initial trial violated this rule by relieving the prosecution of its burden to prove the elements of premeditation and deliberation beyond a reasonable doubt. Therefore, the petitioner argues that his conviction of first-degree murder was not supported by sufficient proof. After due consideration, we conclude that Brown did not announce a new state constitutional rule, did not implicate any constitutional right, is not retroactive, and may not serve as the basis for post-conviction relief. Accordingly, we conclude that the petitioner's complaint about the jury instructions given at his initial trial has been waived because it was not raised on direct appeal and that his complaint about the sufficiency of the evidence to support premeditation and deliberation was previously determined by this Court on direct appeal. Accordingly, the decision of the Court of Criminal Appeals is affirmed.

Mattie L. Scales v. City of Oak Ridge, Et Al.
E2000-00499-WCM-CV
Trial Court Judge: James B. Scott, Jr.

State vs. Robert Derrick Johnson
M1998-00546-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: William Charles Lee

State vs. Robert Derrick Johnson
M1998-00546-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: William Charles Lee

State vs. Timothy R. Bowles
M1997-00092-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Seth W. Norman
Timothy R. Bowles was convicted of aggravated rape, attempted rape, and robbery. The Court of Criminal Appeals affirmed the convictions for the sexual offenses, but because the trial court failed to instruct the jury on the lesser-included offense of theft, the intermediate court reversed the robbery conviction. We granted the State's application for review to determine whether the trial court's failure to instruct the jury on the offense of theft constituted reversible error. We granted Bowles's application for review to decide: (1) whether the evidence is sufficient to support the conviction for aggravated rape; and (2) whether the trial court erred in failing to submit the offense of sexual battery to the jury as a lesser-included offense of either aggravated rape or attempted rape. After thorough review and due consideration, we hold that the evidence is sufficient to support the aggravated rape conviction. We further hold that any error on the part of the trial court in failing to instruct the jury regarding the lesser-included offense of sexual battery was harmless. Regarding the robbery conviction, however, we hold that the trial court's failure to instruct the jury on the lesser-included offense of theft constitutes reversible error. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

Wanda Carey Scott v. Ashland Healthcare Center, Inc., et al.
M1999-00346-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Robert E. Burch

We granted review of this case to determine whether the holder of a certificate of need may be held liable for the healthcare facility operator's tortious acts. We hold that the Tennessee statutes and rules governing certificates of need impliedly impose a non-delegable duty upon the certificate of need holder to initiate operation of the healthcare facility. We therefore reverse the judgment of the Court of Appeals, reverse the trial court's judgment, and remand this case to the trial court for further proceedings.

State of Tennessee v. Peter Allen Ross
W1999-00972-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Charles C. Mcginley

The appellant was convicted of possession of a controlled substance and drug paraphernalia with intent to sell after officers discovered 53.5 grams of cocaine in his motel room. Prior to trial, he challenged the search of his motel room under the federal and state Constitutions, but the trial court denied his motion to suppress, finding that he possessed no reasonable expectation of privacy in the room after he disclaimed ownership of the room key. Following his conviction, the appellant urged the trial court to consider as a mitigating factor that his conduct did not cause or threaten serious bodily injury, but the trial court disagreed and sentenced the appellant to serve the maximum term in the range. The Court of Criminal Appeals affirmed the convictions and the sentences, and we granted permission to appeal. Based on our review of the record and applicable legal authorities, we agree that the appellant relinquished his otherwise legitimate expectation of privacy in his motel room by disclaiming ownership of the key and by asserting that it belonged to another person. We also conclude that the evidence is sufficient to support the convictions on both charges. Finally, although the trial court should have considered the mitigating factor in Tennessee Code Annotated section 40-35-113(1),  we conclude that the maximum sentence in the Range is nevertheless appropriate. The judgment of the Court of Criminal Appeals is affirmed.

State of Tennessee v. Peter Allen Ross - Dissenting
W1999-00972-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Charles C. Mcginley

For denying that a key to a hotel room belonged to him, the defendant has been stripped of
his Fourth Amendment right to be free from unreasonable searches and seizures. The majority
imposes this harsh result even in the face of obvious and undisputed evidence that the subject
premises were under the defendant’s exclusive and private control. Because I am unable to agree
that a refusal to incriminate one’s self in response to police inquiries should result in a loss of Fourth Amendment rights, I respectfully dissent.

Dorothy Wilkins v. The Kellog Company
M1999-00676-SC-R3-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge John R. McCarroll, Jr.

This workers’ compensation case presents the question of how a “temporary partial disability”
benefits award, as defined in Tennessee Code Annotated section 50-6-207(2), is calculated. The trial court held that an award is calculated based on the employee’s “average weekly wage,” which is the measure of benefits for the other categories of disability listed in the Workers’ Compensation Law (“temporary total disability,” “permanent total disability,” and “permanent partial disability”). The employer appealed this decision to the Special Workers’ Compensation Appeals Panel. The case was transferred to the full Supreme Court before the Panel handed down its decision. We now reverse the trial court and hold that the express terms of the statute indicate that a temporary partial disability award has a unique method of calculation, based on “the difference between the wage of the worker at the time of the injury and the wage such worker is able to earn in such worker’s partially disabled condition.” Tenn. Code Ann. § 50-6-207(2). This method does not include the average weekly wage definition. Under the correct calculation, the plaintiff in this case is not entitled to any temporary partial disability benefits. The award of $3,258.20 is accordingly reversed and the cause remanded to the trial court. Appeal pursuant to Tenn. Code Ann. § 50-6-225(e); Judgment of the Circuit Court Reversed and Remanded.
 

Dorothy Wilkins v. The Kellog Company - Dissenting
M1999-00676-SC-R3-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge John R. McCarroll, Jr.

The majority holds that the difference between pre- and post-injury wages for an employee whose weekly wage fell from $1,433.82 to $860.80 is $0. This holding, in my view, contravenes legislative intent, creates the potential for abuse of the benefit scheme, and muddles benefit calculation. In order to more effectively promote the Worker’s Compensation Act’s intended objectives and clarify benefit calculation, I would define “wage” in the temporary partial disability provision to mean “average weekly wage,” not “hourly rate of pay.” Accordingly, I respectfully dissent.

State of Tennessee v. John Michael Bane
W1997-02158-SC-DDT-DD
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge John P. Colton, Jr.

The defendant, John Michael Bane, was convicted of felony murder in the perpetration of a
robbery for an offense committed in November of 1988. The jury originally imposed a sentence of
death after it found that evidence of two aggravating circumstances – (1) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind and (2) the murder was committed during the perpetration of a felony – outweighed evidence of any mitigating factors. See Tenn. Code Ann. § 39-2-203(i)(5), (7) (1982). On appeal, this Court affirmed the conviction, but remanded for a new sentencing hearing because the jury’s application of the felony murder aggravating circumstance duplicated the offense of felony murder in violation of article I, section 16 of the Tennessee Constitution. See State v. Bane, 853 S.W.2d 483 (Tenn. 1993). After a new sentencing hearing, the jury again imposed a sentence of death after it found that evidence of two aggravating circumstances – (1) the murder was “especially atrocious or cruel in that it involved torture and depravity of mind” and (2) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another –
outweighed evidence of any mitigating factors. See Tenn. Code Ann. § 39-2-203(i)(5), (6) (1982).

State of Tennessee v. John Michael Bane - Concurring/Dissenting
W1997-02158-SC-DDT-DD
Authoring Judge: Justice Adolpho A. Birch
Trial Court Judge: Judge John P. Colton, Jr.

I concur in the majority decision to affirm the conviction in this case. I continue to believe,
however, that the comparative proportionality review protocol embraced by the majority is
inadequate and fails to satisfy this Court’s duty, mandated by statute,1 to ensure that no death
sentence will be upheld unless it is proportionate to sentences imposed upon comparable defendants in similar cases. Because the protocol fails to provide convincing assurance that this defendant’s death sentence is proportionate, I cannot join the majority decision to impose the death penalty in this case.

Vadalene Brewer v. Michael Dunn Center et al.
E2000-01298-WC-R3-CV
Authoring Judge: Judge John K. Byers
Trial Court Judge: Judge Frank V. Williams, III

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 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 the plaintiff had sustained an injury to her left shoulder in the course and scope of her employment that resulted in 54 percent permanent partial disability. We affirm the judgment of the trial court.

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State vs. Miles Mateyko
M1998-00275-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: W. Charles Lee
The defendant was charged and convicted of child abuse through neglect in violation of Tennessee Code Annotated section 39-15-401(a). The Court of Criminal Appeals reversed the conviction, finding that the State did not establish that the defendant's children suffered any actual, deleterious effect or harm from the neglect. However, the intermediate court found that the defendant was guilty of attempted child abuse through neglect, and it remanded the case for resentencing. The State requested permission to appeal to this Court, and we hold that section 39-15-401(a) does require proof of an actual, deleterious effect or harm to the child's health and welfare and that the mere risk of harm is insufficient to support a conviction. We also hold that in those cases in which no such actual, deleterious effect or harm is shown, a defendant may be convicted of attempted child abuse through neglect under Tennessee Code Annotated section 39-12-101, provided that the State is successful in making the required showing. Because the record in this case contains conflicting evidence as to the required intent necessary for the attempted crime, we remand this case to the Lincoln County Circuit Court for a new trial on the lesser-included offense of attempted child abuse through neglect. The judgment of the Court of Criminal Appeals is affirmed in part and reversed in part.

Travis Watt v. Lumbermens Mutual Casualty Ins. Co., et al.
W2000-00104-SC-R3-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Joe C. Morris

Travis Watt v. Lumbermens Mutual Casualty Ins. Co., et al.
W2000-00104-SC-R3-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Joe C. Morris

Cora Cantrell, et al vs. Knox County Bd of Ed. et al
E1999-01557-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Harold Wimberly
The issue in this appeal is whether non-certified, non-tenured teacher aides have under state law a reasonable expectation of continued employment beyond the term of their written contracts such that they are entitled to back pay and benefits beyond the expiration of their contract period. We conclude that teacher aides do not have a reasonable expectation of continued employment. Accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated.