TBALink Opinion-Flash

January 29, 1996 -- Volume #2 -- Number #10 Opinion-Flash

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts and the TN Attorney General.

This Issue:
New Opinons From TSC : 0
New Opinons From TCA : 6
New Opinons From TCCA : 9
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

PENNY CAMPBELL, ET AL,
v.
DON SUNDQUIST, Governor of the State of Tennessee, et al, 
and PARTIAL DISSENT

Court:TCA

Charles W. Burson, Attorney General and Reporter
Jerry L. Smith, Deputy Attorney General
For Defendants-Appellants

Abby R. Rubenfeld of Nashville
For Plaintiffs-Appellees

Rebecca L. Brown, Robert K. Rasmussen, 
Susan L. Kay of Nashville
For Amicus Curiae, American Civil Liberties Union of TN

James L. McHugh, Jr., Carolyn I. Polowy and Paul M. Smith
of Washington, D.C.; Irwin Venick of Nashville, 
For Amicus Curiae,American Psychological Association,
The National Association of Social Workers, 
and The Tennessee Chapter of the National Association 
of Social Workers

Glen G. Dukes, Jr., of Nashville
Suzanne Goldberg, Staff Attorney, LAMBDA Legal Defense 
& Education of New York
For LAMBDA Legal Defense and Education and
The Tennesseans for Equality

Peggy June Griffin of Dayton, Amicus Curiae, Pro Se
                        
First Paragraph:

This appeal involves a constitutional challenge under the
Tennessee Constitution  to Tennessee's Homosexual Practices
Act,  T.C.A.  39-13-510 (1991).  On May 26, 1993,
plaintiffs Penny Campbell, John Doe, Jane Doe, James
Tallent, and Christopher Simien, filed a "Verified Petition
for Declaratory and Injunctive Relief" in the Circuit Court
for Davidson County, Tennessee, against defendants Don
Sundquist, Governor of the State of Tennessee, Charles W.
Burson, Attorney General of the State of Tennessee, and
Victor S. Johnson, III, District Attorney General for
Davidson County, each in his official capacity.  The
complaint, as amended, seeks a declaratory judgment
pursuant to T.C.A.  29-14-101, et seq., (1980) that the
Homosexual Practices Act (HPA), a criminal law, violates
plaintiffs' right to privacy under Article I, Sections 1,
2, 3, 7, 8, 19, and 27 of the Tennessee Constitution and
their right to equal protection of the laws under Article
I, Section 8 of the Tennessee Constitution.  Plaintiffs
also seek to enjoin the enforcement of the HPA.

URL:http://www.tba.org/tba_files/TCA/CAMPBELL.OPN.WP6
URL:http://www.tba.org/tba_files/TCA/CAMPBELL.DIS.WP6
Opinion-Flash

CAROL T. COFFEY, 
v.
THE ESTATE OF CLYDE L. MOORE, BERNICE MOORE, EXECUTRIX,

Court:TCA

MICHAEL S. PEMBERTON and ERIC S. NOWINSKI 
of LEWIS, KING, KRIEG, WALDROP & CATRON, P.C., 
Knoxville, for Appellant

PAUL E. DUNN of DUNN, MacDONALD & COLEMAN, P.C., 
Knoxville, for Appellee
                        
First Paragraph:

The plaintiff was injured when he lost control of his
bicycle on Tellico Parkway in Loudon County.  Just prior to
the accident, the original defendant, Clyde L. Moore, had
been driving his automobile to the rear of the plaintiff,
proceeding in the same direction.  Mr. Moore passed the
plaintiff just as the plaintiff lost control of his
bicycle.  The critical question at trial was whether
Moore's vehicle came in contact with the bicycle, causing
the plaintiff to crash.  The jury found for the defendant. 
The plaintiff appeals, arguing one issue--that there was no
material evidence to support the jury's verdict.  Our task
is to determine if such evidence exists in the record
before us.  See T.R.A.P. 13(d).

URL:http://www.tba.org/tba_files/TCA/COFFEY.OPN.WP6
Opinion-Flash

JANE DOE A AND MOTHER A,
JANE DOE C AND FATHER C,
v.
COFFEE COUNTY BOARD OF EDUCATION, JOE BRANDON, 
BOBBY CUMMINGS, NELSON JOHNSON, MARIANNE BRANDON,

Court:TCA

Michelle M. Benjamin of Winchester
For Plaintiffs-Appellants

L. Hale Hamilton, Spears, Moore, Rebman,
& Williams of Chattanooga
Hugh P. Garner, Garner, Lewis & Prickett of Chattanooga
For Appellees
                       
First Paragraph:

This is a suit by two high school students and their parents
seeking damages resulting from alleged assaults by a high
school coach.
    
URL:http://www.tba.org/tba_files/TCA/DOE.OPN.WP6
Opinion-Flash

PERMANENT GENERAL ASSURANCE CORPORATION, 
v.
TAMMY L. NEASE, ANNA RUTH WITT,JOSEPH D. WITT, 
WANDA CHIPPS,MIRANDA McMAHAN, b/n/f and mother,
WANDA CHIPPS, and ARVINE TAYLOR,        
and 
TENNESSEE FARMERS MUTUAL INSURANCE CO., 
and ATLANTA CASUALTY COMPANY

Court:TCA

JEFFREY M. WARD of MILLIGAN & COLEMAN, Greeneville, 
for Appellants TENNESSEE FARMERS MUTUAL INSURANCE COMPANY 
and ATLANTA CASUALTY COMPANY

JERRY M. MARTIN, Knoxville, for Appellee
                       
First Paragraph:

This is a declaratory judgment action filed pursuant to
T.C.A.  29-14-101, et seq.  This litigation traces its
genesis to a two-vehicle accident involving a 1986
Chevrolet Cavalier automobile driven by the defendant Tammy
L. Nease (Nease).  A number of claims were asserted against
Nease whose negligence apparently caused the accident. 
Permanent General Assurance Corporation (PGA) filed the
instant action against Nease and others seeking a
determination that these claims were not covered under the
liability feature of the automobile insurance policy issued
by PGA to Nease's husband.  This suit named as defendants
the accident claimants as well as Tennessee Farmers Mutual
Insurance Company and Atlanta Casualty Company (Tennessee
Farmers/Atlanta Casualty).  These two insurance companies
had been sued as uninsured motorist carriers in the
underlying tort action brought against Nease.  The
Chancellor, following a non-jury hearing, determined that
PGA's policy did not afford coverage to Nease for the
accident.  Tennessee Farmers/Atlanta Casualty appeal,
challenging the correctness of the Chancellor's ruling. 
The individual defendants did not appeal.

URL:http://www.tba.org/tba_files/TCA/NEASE.OPN.WP6
Opinion-Flash

VIRGINIA M. PINSON and husband, WILLIAM A. PINSON,
v.      
MARGARET DENNY BONNELL and PAMELA MARIE PARSONS,

Court:TCA

JAMES H. LONDON and ROY F. SATTERWHITE, III, 
of LONDON & AMBURN, P.C., Knoxville, for Appellants

FRED G. MUSICK and JAMES C. CONE of JENKINS & JENKINS, 
Knoxville, for Appellee MARGARET DENNY BONNELL

JAY ARTHUR GARRISON of KENNERLY, MONTGOMERY & FINLEY, 
Knoxville, for Appellee PAMELA MARIE PARSONS
                       
First Paragraph:

This appeal questions the adequacy of a jury's verdict.  The
plaintiff Virginia M. Pinson (plaintiff) alleged in her
complaint that she sustained physical and emotional
injuries when the automobile in which she was riding as a
guest passenger collided with another vehicle as the latter
attempted to exit from a McDonald's restaurant onto
Cumberland Avenue in Knoxville.  The jury awarded the
plaintiff $500 and awarded her husband $1,683.25 in his
derivative action.  The award was apportioned 75% to the
driver of the exiting vehicle and 25% to Pamela Marie
Parsons, the plaintiff's daughter, who was driving the
vehicle occupied by the plaintiff at the time of the
accident.  The plaintiff and her husband filed a motion for
a new trial or additur.  The trial court denied their
motion, and this appeal followed.  The sole issue on this
appeal is whether the trial judge erred when he failed to
grant the plaintiff and her husband a new trial due to the
alleged inadequacy of the jury's award.

URL:http://www.tba.org/tba_files/TCA/PINSONVM.OP.WP6
Opinion-Flash

JOE HENRY ANGUS v. STATE OF TENNESSEE

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Robert Marlow                   Charles W. Burson
Assistant Public Defender       Attorney General
P.O. Box 1119
Fayetteville, TN 37334          Eugene J. Honea
                                Assistant Attorney General

                                W. Michael McCown
                                District Attorney General

                                Robert Crigler
                                Asst. Dist. Attorney General
                        
First Paragraph:

Pursuant to his pleas of guilty, the appellant, Joe Henry
Angus, was convicted of two counts of aggravated robbery
and one count of aggravated burglary.  He received a total
sentence of twenty years as a Range I standard offender. 
Almost one year later, he filed his petition for
post-conviction relief, asserting that his guilty pleas
were entered without the effective assistance of counsel. 
Counsel was appointed, and, after a full evidentiary 
hearing, the trial court denied relief.  The petitioner now
appeals from the denial of post conviction relief,
contending that the trial judge erred by finding that his
counsel was effective.

URL:http://www.tba.org/tba_files/TCCA/ANGUS.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE,  v.CARY CAUGHRON,

Court:TCCA

FOR THE APPELLANT:               FOR THE APPELLEE:


ED MILLER                       CHARLES W. BURSON
Public Defender                 Attorney General & Reporter

SUSANNA LAWS THOMAS             MERRILYN FEIRMAN        
Asst. Public Defender           Asst. Attorney General

                                AL C. SCHMUTZER, JR.
                                District Attorney General

                                ED BAILEY
                                Asst. District AG
                        
First Paragraph:

By opinion filed on September 20, 1994, this Court affirmed
the defendant's four convictions for first-degree murder,
attempted first-degree murder and aggravated arson.  In
finding that the trial judge had failed to make necessary
findings to support consecutive sentences as set out in
State v. Woods, 814 S.W.2d 378 (Tenn. Crim. App. 1991), the
trial court's order of consecutive sentences was reversed
and concurrent sentences were ordered.

URL:http://www.tba.org/tba_files/TCCA/CAUGHRON.OPN.WP6
Opinion-Flash

BENEDICT JOSEPH COOK, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Benedict Joseph Cook, III,      Charles W. Burson
pro se                          Attorney General & Reporter 

                                Darian B. Taylor
                                Assistant Attorney General

                                Victor S. Johnson, III
                                District Attorney General

                                Tom Thurman
                                Asst. Dist. Attorney General
                        
First Paragraph:

Appellant, Benedict Joseph Cook, III, was convicted of three
counts of aggravated rape and two counts of aggravated
sexual battery.  This Court upheld his convictions and the
Tennessee Supreme Court granted certiorari.  The Supreme
Court's final action, reinstating the trial court's
judgment, occurred on November 12, 1991.  On December 15,
1994, appellant filed for post conviction relief.  The
trial court dismissed his petition as untimely.  We affirm.

URL:http://www.tba.org/tba_files/TCCA/COOK.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE,  v. DAVID LUCIAN GIBSON, 

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Andrew Jackson Dearing, III     Charles W. Burson
Shelbyville, TN                 Attorney General & Reporter 

                                John P. Cauley
                                Assistant Attorney General
    
                                Michael McCown
                                District Attorney General

                                Gary M. Jones
                                Asst. Dist. Attorney General
                        
First Paragraph:

A jury convicted the appellant, David Lucian Gibson, of
attempted first degree murder and imposed a $50,000 fine. 
Sentencing the appellant as a Range I offender, the trial
judge imposed a twenty-two year and nine month sentence. 
On appeal, the appellant raises three issues for review. 
First, he contends that the evidence is insufficient to
support his conviction.  Secondly, the appellant argues
that the trial court erred in denying his motion for
judgment of acquittal.  Finally, he claims that the trial
court erred in sentencing him.  Following our review, we
affirm.

URL:http://www.tba.org/tba_files/TCCA/GIBSON.OPN.WP6
Opinion-Flash

LARRY GILBREATH, v. RICKY BELL, WARDEN,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Larry Gilbreath, Pro Se         Charles W. Burson
Turney Center                   Attorney General & Reporter 
Industrial Prison
                                Ellen H. Pollack
                                Assistant Attorney General

                                Joseph D. Baugh
                                District Attorney General
                        
First Paragraph:

Appellant, Larry Gilbreath, was convicted of rape on April
19, 1971.  He was sentenced to serve 55 years and 1 day
confinement.  Appellant filed Application for Writ of
Habeas Corpus alleging that his sentence "expired on
January 4, 1993."  The trial court dismissed without
conducting an evidentiary hearing.  The trial court held
that appellant must serve one-half of his determinate
sentence prior to being considered for paroled release. 
The court reasoned that good and honor time credit was
inapplicable when calculating parole eligibility on
determinate sentences.  McFadden v. State, 532 S.W.2d 944,
946 (Tenn. Crim. App. 1975).  The trial court further found
neither a factual nor legal basis supporting appellant's
assertion that his sentence had expired.  

URL:http://www.tba.org/tba_files/TCCA/GILBREAT.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE   
v. 
MICHAEL L. KINDALL and ROBERT L. PARHAM

Court:TCCA

FOR THE APPELLANT,          FOR THE APPELLEE:
MICHAEL KINDALL:    

Terry J. Canady             Charles W. Burson
Nashville, Tennessee.       Attorney General and Reporter

FOR THE APPELLANT,          Ellen H. Pollack
ROBERT L. PARHAM:           
                            
Paula Ogle Blair
Nashville, Tennessee 
                    
First Paragraph:

This is an appeal by defendants Michael Kindall and Robert
Parham from a judgment of the Davidson County Criminal
Court, in which both defendants were convicted of
aggravated robbery on June 28, 1994.  The robbery in
question occurred at approximately 1:30 a.m. on July 2,
1993, as the victim, Charles Mosely, Jr., a diabetic, was
returning to his father's home from a convenience store
where he had purchased candy with which to raise his blood
sugar level.   Two men approached Mosely as he walked to
the store and again as he returned.   As they spoke to
Mosely the second time, one of the men revealed a handgun. 
 After leading Mosely to the side of a nearby house, they
robbed him of his jewelry and a small amount of cash.   The
victim was then told to leave.  A shot was fired which the
victim testified he heard pass by his ear, at which point
he ran to his father's house.

URL:http://www.tba.org/tba_files/TCCA/KINDALL.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE, v. JAMES R. RAY,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

JERRY COLLEY                CHARLES W. BURSON
P. O. Box 1476              Attorney General & Reporter
Columbia, TN  
                            HUNT S. BROWN
                            Asst. Attorney General

                            JOSEPH D. BAUGH
                            District Attorney General

                            JEFF BURKS
                            Asst. District Attorney General
                        
First Paragraph:

The defendant was arrested on a capias issued as a result of
an indictment containing four charges of drug violations by
the defendant.  At the time of his arrest, the defendant
was found to be in possession of an additional quantity of
marijuana.  The defendant eventually pled guilty on two of
the original drug charges pursuant to a plea agreement
reached with the State which involved fines of three
thousand dollars ($3000) on each charge and two years
probation.  An additional condition of the plea bargain
agreement was that the State would not pursue the marijuana
charge in exchange for the defendant's guilty pleas.

URL:http://www.tba.org/tba_files/TCCA/RAY.OPN.WP6
Opinion-Flash

SAMMY STARNES    v. WAYNE CLEVINGER, Sheriff

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

SAMMY STARNES, pro se           CHARLES W. BURSON
Northeast Correction Center     Attorney General/Reporter

                                CHRISTINA S. SHEVALIER
                                Assistant Attorney General
                        
                                C. BERKELEY BELL
                                District Attorney General
                
                                DOUG GODBEE
                                Assistant  District Attorney
                        
First Paragraph:

In this pro se appeal the appellant seeks reversal of the
trial court's order dismissing his petition for the writ of
habeas corpus filed pursuant to Tenn. Code Ann. 29-21-101
to -130 (1980).  In the petition the appellant challenges
the denial by authorities of eight (8) months and
forty-nine (49) days of sentence credits allegedly earned
by the appellant while on work release.  The appellant is
currently serving a thirteen (13) year sentence for first
degree burglary, grand larceny and escape.  The habeas
petition does not allege that the appellant's convictions
are void or that his sentence has expired.  For this reason
the trial court dismissed the petition.  We must affirm the
trial court.

URL:http://www.tba.org/tba_files/TCCA/STARNESS.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE, v.TRACEY VAUPEL,

Court:TCCA

FOR THE APPELLANT:               FOR THE APPELLEE:


MICHAEL J. FLANAGAN             CHARLES W. BURSON
    - and -                     Attorney General & Reporter
DALE M. QUILLEN
Nashville, TN                   WILLIAM DAVID BRIDGERS
                                Asst. Attorney General

                                JOSEPH D. BAUGH
                                District Attorney General

                                RONALD L. DAVIS
                                Asst. District AG
                        
First Paragraph:

The defendant, Tracey Vaupel, was charged in the indictment
with taking marijuana into a state institution where
prisoners are quartered in violation of T.C.A.
39-16-201(a)(1).  On January 24, 1995, the defendant filed
an application for pretrial diversion with the district
attorney's office.  The district attorney denied her
application on February 15, 1995.  She then filed a
petition for a writ of certiorari, which the trial court
denied on May 2, 1995.  Pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure, the defendant sought and was
granted permission to appeal the trial court's dismissal of
her petition.  The sole issue presented in this appeal is
whether the trial court erred in affirming the decision of
the district attorney to deny pretrial diversion.  We find
that the defendant's issue lacks merit, and the judgment of
the trial court is affirmed.

URL:http://www.tba.org/tba_files/TCCA/VAUPEL.OPN.WP6
Opinion-Flash

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