TBALink Opinion-Flash

March 25, 1996 -- Volume #2 -- Number #31 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 : 2
New Opinons From TCA : 1
New Opinons From TCCA : 13
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

THELMA J. RICKETTS, v. JUNE CARTER, 

Court:TSC

For Plaintiff-Appellee:     For Defendant-Appellant:

Timothy A. Ryan, III        Reid Phillips
Memphis, Tennessee          Memphis, Tennessee

                            Michael L. Robb
                            John H. Dotson
                            Thomason, Hendrix, Harvey, 
                            Johnson & Mitchell
                            Memphis, Tennessee

First Paragraph:

In this personal injury case stemming from an automobile
accident, the defendant, June Carter, appeals from the Court
of Appeals' affirmance of the trial court's denial of her
motion for new trial.  This case presents the following
issue for our determination: whether the trial court erred
by refusing to inquire into a sworn jurors impartiality
after that juror had been involved in automobile accident on
her way to court, and had received injuries similar to those
incurred by the plaintiff.  

URL:http://www.tba.org/tba_files/TSC/RICKETTS.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE,  v. WAYNE M. TRUSTY,  

Court:TSC

For Appellant:                  For Appellee:

A. C. Wharton, Jr.              Charles W. Burson
District Public Defender        Attorney General & Reporter

Walker Gwinn                    Michael E. Moore
Assistant Public Defender       Solicitor General

                                William David Bridges
                                Assistant Attorney General

                                John W. Pierotti
                                District Attorney General

                                Judson W. Phillips
                                Asst District AG

First Paragraph:

The question in this case is whether one indicted for
attempted first-degree murder may be convicted of aggravated
assault.  Aggravated assault, as defined in Tennessee Code
Annotated Section 39-13-102, is neither a lesser grade or
class of attempted first-degree murder nor a lesser included
offense of first-degree murder.  Under Tennessee law, a
conviction for an unindicted offense that is not a lesser
degree of the offense charged or a lesser included offense
may not stand. 

URL:http://www.tba.org/tba_files/TSC/TRUSTYWM.OPN.WP6
Opinion-Flash

LAURENCE ARMOUR,  v. STATE OF TENNESSEE,

Court:TCA

LAURENCE ARMOUR, Pro Se, Memphis.

BEAUCHAMP E. BROGAN, General Counsel, The University of
Tennessee, Memphis, and ODELL HORTON, JR., Associate General
Counsel, Attorneys for Defendant/Appellee.
                        
First Paragraph:

Laurence E. Armour (claimant) filed suit pro se against
the State of Tennessee (defendant) before the Tennessee
Claims Commission seeking damages for injuries to his left
thumb due to the alleged malpractice of two medical resident
physicians at the University of Tennessee Center for Health
Care Sciences in Memphis.  Defendant filed a motion for
summary judgment, which the Commissioner granted. 

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

STATE OF TENNESSEE, v. KEVIN E. ANDERSON,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

F. Mitchell Gibson, Jr.         Charles W. Burson
Attorney at Law                 Attorney General/Reporter
1416 Parkway Towers             450 James Robertson Parkway
404 James Robertson Parkway     Nashville, TN 37234-0497
Nashville, TN 37219
                                John P. Cauley
                                Assistant Attorney General

                                Victor S. Johnson, III
                                District Attorney General

                                Bernard F. McEvoy
                                Asst. District AG
                        
First Paragraph:

The appellant, Kevin E. Anderson, was convicted of vehicular
homicide, a Class C felony, and leaving the scene of an
accident involving death, a Class E felony, by a jury of his
peers.  The trial court found that the appellant was a
standard offender and imposed the following Range I
sentences:  (a)  a fine of $10,000  and confinement for six
(6) years in the Davidson County Jail for vehicular
homicide, and (b) a fine of $1,000 and confinement for one
(1) year in the Davidson County Workhouse for leaving the
scene of an accident.  

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

STATE OF TENNESSEE, v. JOE T. BAKER,

Court:TCCA

For the Appellant:            For the Appellee:

Wade Bobo                     Charles W. Burson
Attorney                      Attorney General and Reporter
129 South Third Street        450 James Robertson Parkway
Clarksville, TN  37040        Nashville, TN  37243-0493
 
and                           Michael E. Moore
                              Solicitor General
James A. Simmons
Attorney                      and
1707 Division Street
Suite 100                     Michael W. Catalano
Nashville, TN  37203          Associate Solicitor General
                              500 Charlotte Avenue
                              Nashville, TN  37243
                               
                              Steve Garrett                                                   
                              Assistant District Attorney
                              204 Franklin Street
                              Suite 200
                              Clarksville, TN  37041 

First Paragraph:

The defendant, Joe T. Baker, appeals of right from his
conviction for felony murder.  The state had unsuccessfully
sought the death penalty.  The trial court imposed a life
sentence.

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

MARTIN BARLOW, III, v. STATE OF TENNESSEE,  

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Martin Barlow, III, Pro Se      Charles W. Burson
Southeastern TN State           Attorney General & Reporter 
Regional Correctional Annex
Route 4, Box 600                Charlotte H. Rappuhn
Pikeville, TN 37367-9243        Assistant Attorney General
                                Criminal Justice Division
    
                                Robin Harris
                                Legal Assistant

                                William M. Locke
                                District Attorney General

                                C. Michael Layne
                                Asst. Dist. AG (former)
                          
First Paragraph:

The appellant, Martin Barlow, III, was indicted for first
degree murder.  While on bond, he voluntarily admitted
himself to a private mental health facility.  He was
committed for approximately 421 days.  Following the state's
decision to try him as an adult, the appellant entered a
negotiated plea to second degree murder in 1988.  He
received a sentence of 16 years confinement less 108 days
credit for time spent in the private mental health facility.

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

STATE OF TENNESSEE, v. DEWAYNE FOSTER,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Comer L. Donnell            Charles W. Burson
District Public Defender    Attorney General & Reporter 

Howard L. Chambers          Clinton J. Morgan
Asst. Public Defender       Counsel for the State

                            Connie Massey
                            District AG, Pro Tem

                            Doug Hall
                            Asst. Dist. Attorney General

First Paragraph:

The appellant, Dewayne Foster, pled guilty pursuant to a
plea agreement to aggravated assault.  Sentenced as a Range
II multiple offender, the appellant received a ten-year
sentence running consecutively to two existing sentences. 
In this appeal, the appellant raises two issues for review. 
First, he claims that the trial court imposed an excessive
sentence.  Secondly, he alleges error in the trial court's
decision to run his sentence consecutively to the existing
sentences.  

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

STATE OF TENNESSEE, v. BUFORD E. GAITER,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Terry A. Fann               Charles W. Burson
Attorney at Law             Attorney General & Reporter
Murfreesboro, TN            Nashville, TN

                            Cecil H. Ross
                            Assistant Attorney General

                            Guy R. Dotson
                            District Attorney General

                            William C. Whitesell, Jr.
                            Assistant District AG

                            Gregory M. Reed
                            Assistant District AG
                        
First Paragraph:

The appellant, Buford E. Gaiter, was convicted of
facilitation of a felony, murder in the first degree, a
Class A felony, and attempt to commit especially aggravated
robbery, a Class B felony, by a jury of his peers.  The
trial court, finding that the appellant was a standard
offender, imposed the following Range I sentences:  (a) 
facilitation of a felony, confinement for twenty-two (22)
years in the Department of Correction and (b) attempt to
commit especially aggravated robbery, confinement for eleven
(11) years in the Department of Correction. 

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

STATE OF TENNESSEE, v. DANNY LEE HOLDER,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Andrew Jackson Dearing, III     Charles W. Burson
Attorney at Law                 Attorney General & Reporter

                                Michael J. Fahey, II
                                Assistant Attorney General

                                W. Michael McCown
                                District Attorney General

                                Weakley E. Barnard
                                Assistant District AG
                       
First Paragraph:

The appellant, Danny Lee Holder, was convicted of raping a
child, a Class A felony, by a jury of his peers.  The trial
court sentenced the appellant to confinement for
twenty-three (23) years in the Department of Correction. 
Three basic issues are presented for review. The appellant
contends that the evidence is insufficient to sustain his
conviction; the sentence imposed by the trial court is
excessive; and Tenn. Code Ann. 39-13-523, which requires a
person convicted of child rape to serve the entire sentence
imposed by the trial court, is unconstitutional.  

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

STATE OF TENNESSEE, v. JAMES E. JOHNSON,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

MICHAEL R. JONES                CHARLES W. BURSON
19th District Public Defender   Attorney General/Reporter

                                MICHELLE L. LEHMANN
                                Assistant Attorney General
                        
                                JOHN CARNEY
                                District Attorney General

                                DENT MORRISS
                                Assistant District AG
                        
First Paragraph:

This is a direct appeal pursuant to Rule 37(b)(2) of the
Tennessee Rules of Criminal Procedure from a plea of nolo
contendere.  In the Defendant's plea agreement, all charges
were dropped except for one count of possession of a
schedule II drug with intent to sell.  He was sentenced to
six years as a Range I offender.  In his plea of nolo
contendere, the Defendant expressly reserved a certified
question of law that is dispositive of the case.  The
certified question of law stems from the trial court's
denial of the defendant's motion to suppress.  

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

STEPHEN R. MASSEY,  v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Hershell D. Koger           Charles W. Burson
135 N. First Street         Attorney General & Reporter 
P.O. Box 1148       
Pulaski, TN   38478         William David Bridgers
                            Assistant Attorney General

                            Mike Bottoms 
                            District Attorney General
                            
                            Richard H. Dunavant
                            Asst. Dist. Attorney General
                       
First Paragraph:

The petitioner, Stephen R. Massey, brings this appeal
challenging the trial court's dismissal of his petition for
post-conviction relief.  Specifically, he claims that (1)
the trial court erred in holding that the failure to provide
petitioner with a preliminary hearing on his probation
revocation was not error, (2) his due process and Fourth
Amendment rights were denied when he was arrested pursuant
to what petitioner labels an "unlawful warrant," and (3) his
counsel was ineffective. 

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

JAMES R. MILLER, v. STATE OF TENNESSEE, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

JAMES R. MILLER, Pro Se     CHARLES W. BURSON
                            District Attorrney General

                            MICHELLE L. LEHMANN
                            Assistant District AG

                            MIKE BOTTOMS
                            District Attorney General

                            JAMES G. WHITE
                            Assistant District AG
                     
First Paragraph:

This is an appeal from an order of the trial court
dismissing a petition for writ of habeas corpus.  The trial
judge found that the petition failed to state a claim
appropriate for habeas corpus relief.  The trial judge
further found that the court did not have jurisdiction to
entertain the petition as a petition for post-conviction
relief, because the petition had not been filed in the court
of the Defendant's conviction. 

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

STATE OF TENNESSEE, v. LESTER A. PEAVYHOUSE,

Court:TCCA

For the Appellant:          For the Appellee:

Russel A. Church            Charles W. Burson
Asst. Public Defender       Attorney General and Reporter

                            William David Bridgers
                            Assistant Attorney General

                            John Wesley Carney, Jr.
                            District Attorney General

                            Arthur F. Bieber
                            Asst. District Attorney General

                            Edward DeWerff
                            Asst. District Attorney General
                       
First Paragraph:

The appellant, Lester A. Peavyhouse, was convicted of two
counts of first degree murder, one count of attempted first
degree murder, one count of attempted second degree murder,
four counts of aggravated assault with a deadly weapon, and
one count of possession of an unlawful weapon.  The
appellant received two life sentences for the first degree
murder convictions (counts one and two), to be served
consecutively.  

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

ERIC PENDLETON, v. STATE OF TENNESSEE, 

Court:TCCA

For the Appellant:          For the Appellee:

Justin Johnson              Charles W. Burson
2131 Murfreesboro Rd.       Attorney General of Tennessee
Nashville, TN 37217         and
                            Christina S. Shevalier 
                            Assistant Attorney General of TN

                            Victor S. Johnson, III
                            District Attorney General           
                            and
                            Paul DeWitt
                            Assistant District AG

First Paragraph:

This case was remanded by the Tennessee Supreme Court for
our consideration in light of House v. State, 911 S.W.2d 705
(Tenn. 1995).  In our previous opinion, we reversed the
Davidson County Criminal Court's dismissal of the
petitioner's third post-conviction petition and remanded the
case for an evidentiary hearing regarding waiver.  In light
of House, we conclude that the trial court's dismissal of
the petitioner's petition should be affirmed.

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

STATE OF TENNESSEE, v. JOSEPH MICHAEL SHELTON,

Court:TCCA

FOR THE APPELLANT:               FOR THE APPELLEE:


GERALD L. MELTON                CHARLES W. BURSON
District Public Defender        Attorney General & Reporter
201 West Main St., Suite 101
Murfreesboro, TN 37130          JOHN P. CAULEY
                                Asst. Attorney General

                                GUY R. DOTSON
                                District Attorney General

                                DAVID L. PUCKETT
                                Asst. District AG

First Paragraph:

The defendant was indicted for aggravated burglary and
especially aggravated kidnapping.  On May 24, 1994, he was
found guilty at a jury trial on both charges.  The trial
court sentenced the defendant to sixteen years for
especially aggravated kidnapping and to three years for
aggravated burglary.  The sentences were ordered to run
concurrently.  

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

WILLIAM CARLOS THOMAS   v. STATE OF TENNESSEE,

Court:TCCA

For the Appellant:          For the Appellee:

ON APPEAL:                  Charles W. Burson
                            Attorney General and Reporter
Richard J. Brodhead         
Cedars Center               Sharon S. Selby
307 West Main Street        Assistant Attorney General
Lebanon, TN  37087                                      
                            Tom P. Thompson, Jr.
                            District Attorney General

First Paragraph:

The appellant, William Carlos Thomas, appeals from an order
entered by the Criminal Court for Wilson County dismissing
his petition for post-conviction relief.  The appellant
raises the following twelve issues for our review:

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

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