TBALink Opinion-Flash

December 13, 1996 -- Volume #2 -- Number #116

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.

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W & F LAND COMPANY, et al.
    Plaintiffs/Appellees
vs.
CHEROKEE PLACE, et al.
    Defendants/Appellants
JOHN R. FISER
    Intervening Plaintiff/Appellee
vs. 
CHEROKEE PLACE, et al.

Court:TCA

Harold P. Stone and Anna F. Hinds, Stone & Hinds, P.C., Knoxville, For
    the Appellant, Cherokee Place. 
David Wilson Long, R. Louis Crossley, Jr., Andrew L. Colocotronis,
    Long, Ragsdale & Waters, P.C., Knoxville, For the Appellant, First
    Tennessee Bank National Association. 
Keith McCord, McCord, Troutman & Irwin, P.C., Knoxville, For the 
    Appellee, W & F Land Company. 
George w. Morton, Jr., Morton & Morton, Knoxville,
    For the Appellee, C. Richard Bales. 
Raymond E. Lacey, Lacey & Winchester, P.C., Knoxville, For the 
    Appellee, John R.   Fiser.
Wanda G. Sobieski, Sobieski, Messer & Assoc., Knoxville, For the
    Appellee, Haresh K. Mirani.

Judge: INMAN

First Paragraph:

Many of the issues in this case are fact-driven, requiring a
determination of the credibility of the witnesses; others are
questions of law.  Our review is de novo on the record, accompanied
with a presumption of the correctness of the trial court's findings of
fact unless the evidence preponderates against it.  Tenn. R. App. P.
13(d).  No presumption of correctness attaches to issues of law, Hill
v. Tennessee Rural Health Improvement Assn., 882 S.W.2d 801 (Tenn. Ct.
App. 1994), but we defer to the Chancellor with respect to the
credibility of witnesses.  Bowman v. Bowman, 836 S.W.2D 563 (Tenn. Ct.
App. 1991). AFFIRMED AND REMANDED.

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

LYNNE W. BROCK
vs.
J. DONALD BROCK

Court:TCA

    For Appellant                       For Appellee
RICHARD W. BETHEA, JR.              THOMAS O. HELTON
NICOLE R. BARNETT                   Baker, Donelson, Bearman
Stophel & Stophel, P.C.             & Caldwell
Chattanooga, Tennessee              Chattanooga, Tennessee
                          
Judge: SUSANO

First Paragraph:

In this divorce case, the trial court dissolved a marriage of 31
years.  The court granted the counter-plaintiff, J. Donald Brock
(Husband), a divorce from the original plaintiff, Lynne W. Brock
(Wife), on the ground of adultery; awarded Husband custody of the
parties' four minor children, subject to Wife's liberal visitation
rights; divided the parties' property; and denied Wife's request for
alimony in futuro and counsel fees.  Husband appealed. REVERSED IN
PART, AFFIRMED IN PART, REMANDED WITH INSTRUCTIONS.

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

STATE OF TENNESSEE
VS. 
MARQUETIA BROWN,

Court:TCCA

    or Appellant:                  For Appellee:
Monte D. Watkins                Charles W. Burson
176 Second Avenue, North        Attorney General & Reporter
Suite 300
Nashville, TN  37201            Charlotte H. Rappuhn 
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493           

                                Dan Hamm
                                Asst. District Attorney General
                                Washington Square
                                222 Second Avenue, North
                                Nashville, TN  37201-1649                         
    
Judge: WADE

First Paragraph:

The defendant, Marquetia Brown, was convicted of second degree murder
for the shooting death of her husband, Frederick Brown.  The trial
court imposed a range one sentence of seventeen and one-half years. In
this appeal of right, she challenges the sufficiency of the evidence
and asserts that the sentence is excessive. AFFIRMED AS  MODIFIED.

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

STATE OF TENNESSEE
VS. 
MARTHA JEAN FRAZIER

Court:TCCA

    FOR THE APPELLANT:              FOR THE APPELLEE:
RANDALL A. YORK                 CHARLES W. BURSON
P.O. Box 3549                   Attorney General and Reporter
Crossville, TN 38557
                                TIMOTHY F. BEHAN
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                BILL GIBSON 
                                District Attorney General

                                LILLIE ANN SELLS
                                Assistant District Attorney General
                                145 S. Jefferson Avenue
                                Cookeville, TN 38501
Judge: WELLES   

First Paragraph:

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure.  The Defendant appeals from the trial
court's determination that the District Attorney General did not abuse
his discretion by denying pretrial diversion.  We affirm the judgment
of the trial court.

URL:http://www.tba.org/tba_files/TCAA/FRASIERM_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE,
VS.
HORACE C. GADDIS,

Court:TCCA

    For Appellant:                  For Appellee:
John T. Conners, III            Charles W. Burson
Counsel for the Appellant       Attorney General & Reporter 
134 Riverwood Drive
Franklin, TN  37069             Karen M. Yacuzzo
                                Assistant Attorney General 
                                Criminal Justice Division 
                                450 James Robertson Parkway 
                                Nashville, TN  37243-0493

                                Mark Puryear    
                                Assistant District Attorney General 
                                P.O. Box 937
                                Franklin, TN  37065-0937                         

Judge: WADE

First Paragraph:

The defendant was convicted of aggravated burglary and theft over
$500.00.  The trial court imposed concurrent, range I sentences, six
and two years, respectively.  In this appeal of right, the defendant
presents the following issues for review:  (1) whether the trial court
erred by ruling that the defendant's confession to the police was not
the fruit of an unlawful arrest, and (2)  whether the trial court
erred by ruling that the delay in the prosecution did not deny the
defendant a speedy trial.  AFFIRMED.

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

MARVIN ANTHONY MATHEWS  
VS.
FRED RANEY, WARDEN

Court:TCCA

    For the Appellant:                  For the Appellee:
Marvin Anthony Mathews              Charles W. Burson
Cold Creek Correctional Facility    Attorney General and Reporter
P.O. Box 1000                       450 James Robertson Parkway
Henning, TN 38041-1000              Nashville, TN 37243-0493
(Pro Se)
                                    Charlotte H. Rappuhn
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Lisa A. Naylor
                                    Legal Assistant                         

Judge: BARKER

First Paragraph:

Appellant, Marvin Anthony Mathews, appeals the summary dismissal of
his petition for writ of habeas corpus by the Lauderdale County
Circuit Court.  Appellant is serving a term of life imprisonment after
being convicted in Shelby County of grand larceny and adjudicated a
habitual offender in December of 1988.  Acting pro se, appellant filed
a petition for writ of habeas corpus on June 21, 1993.  His petition
asserts that the Habitual Offender Act under which he was sentenced in
1988 is unconstitutional and thereby the convicting court was without
jurisdiction to order his confinement.  On August 3, 1995, the trial
court summarily dismissed appellant's petition without an evidentiary
hearing, finding that the alleged statute was constitutional. We 
affirm the judgment.

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

STATE OF TENNESSEE
VS.
GEORGE LEBRON MORGAN

Court:TCCA

    FOR THE APPELLANT:              FOR THE APPELLEE:
Robert N. Meeks                 Charles W. Burson
Attorney at Law                 Attorney General & Reporter 
Parklon Building, Suite Six 
4548 Brainerd Road              Janet M. Kleinfelter
Chattanooga, TN 37411           Assistant Attorney General
                                Financial Division
                                500 Charlotte Avenue
                                Nashville, TN 37243-0493

                                Gary D. Gerbitz 
                                District Attorney General
                                Former)

                                Yolanda D. Mitchell
                                Asst. Dist. Attorney General
                                600 Market Street, Suite 310
                                Chattanooga, TN 37402                          

Judge: SUMMERS

First Paragraph:

The appellant, George Lebron Morgan, was convicted of second degree
murder, aggravated robbery, and attempted aggravated robbery.  He was
sentenced to twenty years for second degree murder, ten years for
aggravated robbery, and five years for attempted aggravated robbery. 
The second degree murder and the attempted robbery sentences were
ordered to run consecutively.  The aggravated robbery sentence was
ordered to run concurrently. AFFIRMED.

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

STATE OF TENNESSEE  
VS. 
EDWARD THOMPSON 

Court:TCCA

    For the Appellant:              For the Appellee:
Susanna Laws-Thomas             Charles W. Burson
Assistant Public Defender       Attorney General and Reporter
Fourth Judicial District                                
102 Mims Avenue                 Darian B. Taylor
Newport, TN 37821               Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Alfred C. Schmutzer, Jr.
                                District Attorney General
                                Sevier County Courthouse
                                Suite 301
                                evierville, TN 37862

                                Richard R. Vance
                                Assistant District Attorney
                                339-A E. Main St.
                                Newport, TN 37821                     

Judge: BARKER

First Paragraph:

The appellant, Edward Thompson, appeals as of right his convictions in
the Cocke County Circuit Court of attempted second degree murder,
aggravated kidnapping, and theft of property over $1,000.00.  As a
Range II offender, appellant received respective sentences of twenty
(20) years, twelve (12) years, and four (4) years.  The latter two
sentences were ordered to be served consecutively to the twenty (20)
year sentence, but concurrent with each other.  Appellant's effective
sentence, therefore, is thirty-two (32) years. On appeal, appellant
argues that the evidence was insufficient to support any of the guilty
verdicts and that he should not have received consecutive sentences. 
As a part of his sufficiency issue, the appellant also contends that
the trial court erred in failing to instruct the jury on the lesser
offense of attempt to commit voluntary manslaughter.  Finding no
error, we affirm appellant's convictions and consecutive sentences.

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

IMOTHY EARL WATERS
VS. 
STATE OF TENNESSEE

Court:TCCA

    FOR THE APPELLANT:              FOR THE APPELLEE:
RICHARD F. VAUGHN               CHARLES W. BURSON
1928 -- 100 N. Main             Attorney General & Reporter
Memphis, TN   38103
                                ELLEN H. POLLACK
                                Asst. Attorney General
                                450 James Robertson Pkwy.                               
                                Nashville, TN  37243-0493
                
                                JOHN W. PIEROTTI
                                District Attorney General

                                ALANDA HORNE
                                Asst. District Attorney General
                                201 Poplar Ave., Third Fl.                              
                                Memphis, TN   38103
Judge: PEAY

First Paragraph:

The petitioner was convicted after a jury trial of first-degree murder
and assault with intent to commit first-degree murder.  His
convictions were affirmed on direct appeal.  He petitioned for
post-conviction relief, alleging ineffective assistance of counsel at
trial and on appeal and due process violations arising from the jury
instructions; improper closing argument by the State; and the State's
failure to provide exculpatory evidence.  After an evidentiary
hearing, the court below denied relief.  The petitioner now appeals,
adding as an issue that the court below erred by refusing to allow him
to be present during his trial attorney's testimony.  After a review
of the record, we affirm.

URL:http://www.tba.org/tba_files/TCCA/WATERSTE_OPN.WP6

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