APPELLATE COURT OPINIONS

Young Sales Corporation, through counsel, has filed a petition to rehear this Court’s opinion released on March 1, 2001. We have reviewed the arguments raised in the petition and conclude that they are without merit. Accordingly, it is ORDERED that the petition to rehear is denied.

Guy William Rush was indicted and tried for one count of attempt to commit second degree murder and one count of aggravated assault. On the attempted second degree murder count, the trial court instructed the jury on a number of lesser-included offenses, including attempted voluntary manslaughter; intentional or knowing aggravated assault accompanied by serious bodily injury; reckless aggravated assault accompanied by serious bodily injury; and assault accompanied by bodily injury. The jury convicted Rush of the lesser-included offense of reckless aggravated assault. Rush appealed, challenging the trial court's instructions on lesser-included offenses, and the Court of Criminal Appeals affirmed. Applying the lesser-included offense test established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), we conclude that neither reckless aggravated assault nor felony reckless endangerment are lesser-included offenses of attempted second degree murder. We conclude, however, that the offense of misdemeanor reckless endangerment is a lesser-included offense of attempted second degree murder and that the trial court erred in failing to so instruct the jury. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the cause for a new trial in accordance with this opinion.

In this workers’ compensation case, the estate of the employee, Robert W. Cunningham, Sr., has appealed from a chancery court judgment dismissing a claim for death benefits filed against the employer, Shelton Security Service, Inc. The employee, who worked as a security guard for the employer, died of heart failure while performing his duties at a store. At the close of the employee’s proof, the trial court granted the employer’s motion to dismiss on the basis that the emotional stress experienced by the employee the night of his death was not extraordinary or unusual for a security guard. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and conclusions of law, found that there was sufficient evidence of causation to warrant a trial and, thus, reversed the trial court’s dismissal. Thereafter, the employer filed a motion for full Court review of the Panel’s decision. We granted the motion for review to consider whether the trial court erred in dismissing the employee’s claim on the basis that his heart failure did not arise out of the employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in his occupation. After carefully examining the record and considering the relevant authorities, we agree with the Panel and reverse the trial court’s judgment. Tenn. Code Ann. § 50-6-225(e); Findings of Fact and Conclusions of Law by the Special Workers’ Compensation Panel Affirmed; Judgment of the Trial Court Reversed and Case RemandedE. RILEY ANDERSON, C.J.,

We granted review in this workers' compensation case to determine whether the trial court erred in awarding temporary total benefits and death benefits based on the maximum weekly wage where the employee did not earn any wages in the 52 weeks prior to being diagnosed with malignant mesothelioma. On appeal, the Special Workers' Compensation Appeals Panel concluded that the trial court erred in awarding benefits based on the maximum weekly wage because the employee was voluntarily retired at the time of his diagnosis, and that benefits were to be based on the minimum weekly wage. After reviewing the record and applicable authority, we conclude that an employee's voluntary retirement does not preclude workers' compensation benefits for an injury arising out of and in the course of employment and that the trial court properly awarded benefits based on the maximum weekly rate under the facts of this case.

The sole issue in this capital post-conviction appeal is whether the State improperly withheld material, exculpatory evidence at the appellee's capital sentencing hearing. The appellee was convicted of felony murder and sentenced to death in 1985, and in 1991, he filed a post-conviction petition alleging, among other things, that the State improperly withheld a police report that was discoverable under Brady v. Maryland, 373 U.S. 83 (1963). The post-conviction court denied relief, but the Court of Criminal Appeals reversed and vacated the capital sentence. Finding that the police report was exculpatory and material, the intermediate court held that a new sentencing hearing was constitutionally required. The State then appealed to this Court. For the reasons given herein, we hold that the State improperly withheld the police report, which was both "evidence favorable to the accused" and material as to the issue of sentencing. Accordingly, we affirm the judgment of the Court of Criminal Appeals vacating the appellee's sentence, and we remand this case to the Shelby County Criminal Court for a new capital sentencing hearing.