TBALink Opinion-Flash

August 7, 1996 -- Volume #2 -- Number #71

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.

This Issue IN THIS ORDER:
02-New Opinons From TSC
00-New Opinons From TSC-Rules
01-New Opinons From TSC-Workers Comp Panel
01-New Opinons From TCA
24-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

George Dean
TBALink Chief Editor


SCARLETT LAY LOVE,
v. 
COLLEGE LEVEL ASSESSMENT SERVICES, INC., and NURSING CAREERS, INC.

Court:TSC

For Plaintiff-Appellant:        For Defendants-Appellees:

Donald F. Paine                 Christopher Van Riper
Andrew R. Tillman               Stuart & Van Riper
Carlyle Urello                  Clinton, Tennessee
Paine, Swiney and Tarwater
Knoxville, Tennessee
                        
Judge: DROWOTA, J.

First Paragraph:

J.  The plaintiff, Scarlett Lay Love, appeals from the denial of her
motion to dismiss, the motion being predicated upon the alleged
failure of the defendants, College Level Career Services, Inc., and
Nursing Careers, Inc., to perfect an appeal from the general sessions
court to the circuit court within the ten-day period provided for in
Tenn. Code Ann.  27-5-108.  The sole issue for our determination is
as follows: whether a facsimile (fax) transmission of a notice of
appeal and appeal bond, sent by the defendants to the clerk of the
general sessions court on the final day on which an appeal could be
taken, is sufficient to perfect the appeal.  For the following
reasons, we conclude that the facsimile transmission was not
sufficient to perfect the appeal; therefore, we reverse the judgment
of the Court of Appeals.

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

NANCYE L. LUCIUS and  RICHARD S. BURNS,v. CITY OF MEMPHIS,          

Court:TSC

For Appellant Lucius:               For Appellee:

John J. Heflin, III                 Monice Moore Hagler
BOURLAND, HELFIN, ALVAREZ,          L. Kenneth McCown, Jr.
HOLLEY & MINOR                      Memphis, TN
Memphis, TN

For Appellant Burns:    

Melanie M. Shuttleworth
SHUTTLEWORTH & WILKINSON
Memphis, TN
                         
Judge: WHITE, J.

First Paragraph:

In this suit for personal injury and property damage, the Court must
decide whether municipalities are liable for post-judgment interest on
judgments rendered under the Governmental Tort Liability Act
(hereafter GTLA), Tenn. Code Ann. 29-20-101 et seq. (1980 Repl. &
1995 Supp.).  For the reasons explained below, we hold that judgments
obtained pursuant to the GTLA accrue post-judgment interest.  The
judgment of the Court of Appeals holding to the contrary is therefore
reversed and that of the trial court reinstated.

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

VICKIE LEE PATTERSON v. BTR DUNLOP, INC., d/b/a HUYCK-FORMEX

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Robert Payne Cave               Pamela L. Reeves 
104 North College Street        P.O. Box 131 
Greeneville, TN 37743           Knoxville, TN 37901

Judge: GODDARD, Special Judge

First Paragraph:

The question presented by this appeal is whether the Trial Court was
in error in finding that Vickie Lee Patterson did not show by a
preponderance of the evidence that she had an "increase . . . of
incapacity" since a November 1991 workers' compensation judgment.  The
earlier judgment was based upon a finding that as a result of carpal
tunnel syndrome Mrs. Patterson had sustained a 65 percent vocational
disability to her left arm and 45 percent to her right.

URL:http://www.tba.org/tba_files/TSC_WCP/PATTERSV.OPN.WP6
Opinion-Flash

LISA GRIGGS, 
v.
JAMES P. MIXON, JIMMY R. WORSHAM, GENE BARKSDALE, SHERIFF OF SHELBY
COUNTY, TENNESSEE, and SHELBY COUNTY, TENNESSEE,

Court:TCA

John M. Moore, Kirpatrick, Moore & Westbrook, of Memphis
For Plaintiff-Appellee

M. Dell Stiner, Assistant Shelby County Attorney
For Defendants-Appellants
                       
Judge: W. FRANK CRAWFORD

First Paragraph:

This is a governmental tort liability case arising out of an
automobile collision.  Defendants, James P. Mixon; Gene Barksdale,
Sheriff of Shelby County, Tennessee, and Shelby County, Tennessee,
appeal from the judgment of the trial court awarding plaintiff, Lisa
Griggs, damages for personal injury.

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

FRANK DEWAYNE BASKERVILLE,v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

SHANA C. MCCOY-JOHNSON      CHARLES W. BURSON
Senior Assistant            Attorney General and Reporter
District Public Defender
P.O. Box 700                CLINTON J. MORGAN
Somerville, TN 38068        Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            ELIZABETH RICE
                            District Attorney General

                            CHRISTOPHER MASHBURN
                            Assistant District Attorney General
                            302 Market Street
                            Somerville, TN 38068

Judge:DAVID H. WELLES, JUDGE

First Paragraph:

The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial court's denial of his
petition for post- conviction relief.  The Petitioner pleaded guilty
to attempted second degree murder and possession of a deadly weapon in
the commission of a felony.  He was sentenced as a Range I standard
offender to eight (8) years and one day for the attempted murder
conviction and to a concurrent sentence of one (1) year for the weapon
possession conviction.  At the post-conviction hearing, the trial
judge denied the petitioner's claim of ineffective assistance of
counsel at his guilty plea.  We affirm the judgment of the trial
court.

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

STATE OF TENNESSEE,v. DAVID BINION,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Jan R. Patterson                Charles W. Burson 
225 West Baltimore, Suite B     Attorney General & Reporter
 Jackson, TN   38301 
 (On Appeal)                    William David Bridgers 
                                Assistant Attorney
General George Morton Googe     Criminal Justice Division
District Public Defender        450 James Robertson Parkway 
227 West Baltimore              Nashville, TN 37243-0493 
Jackson, TN   38301
(At Trial and Of Counsel        Jerry Woodall On
Appeal)                         District Attorney General

                                Don Allen 
                                Asst. Dist. Attorney General 
                                P.O. Box 2825 Jackson, TN  38302

Judge: PAUL G. SUMMERS

First Paragraph:

The appellant, David Binion, was convicted by a jury on one count each
of attempt to commit aggravated rape, aggravated sexual battery,
especially aggravated kidnapping, and possession of a deadly weapon
with the intent to employ it in the commission of a felony.
Approximately two weeks later, by agreement of the parties, the
conviction for possession of a deadly weapon was dismissed.  Sentenced
as a Range II offender, the appellant received concurrent twenty-year
sentences in the attempt to commit aggravated rape and aggravated
sexual battery convictions.  Just over two months later, the trial
court dismissed the especially aggravated kidnapping conviction.

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

STATE OF TENNESSEE, v. TERRY BOWEN, w/CONCURRING OPINION

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Bill R. Barron                  Charles W. Burson
J. Mark Johnson                 Attorney General & Reporter
124 East Court Square           450 James Robertson Parkway
Trenton, TN 38382               Nashville, TN 37243-0493
(Appeal Only)
                                Ruth A. Thompson
Robert L. Marlow                Assistant Attorney General
Assistant Public Defender       450 James Robertson Parkway
P.O. Box 1119                   Nashville, TN 37243-0493
Fayetteville, TN 37334
                                W. Michael McCown
                                District Attorney General
OF COUNSEL:                     P.O. Box 904
                                Fayetteville, TN 37334
John H. Dickey  
District Public Defender        Gary M. Jones
P.O. Box 1119                   Asst. District Attorney General
Fayetteville, TN 37334          Bedford County Courthouse
                                Shelbyville, TN 37160

Judge: Joe B. Jones

First Paragraph:

The appellant, Terry Bowen, was convicted of theft over $1,000, a
Class D felony, by a jury of his peers.  The trial court found that
the appellant was a multiple offender and imposed a Range II sentence
consisting of confinement for eight (8) years in the Department of
Correction.  This sentence is to be served consecutively with the
sentences imposed in three prior cases.

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

STATE OF TENNESSEE, v. DAMON W. BYRD,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

JAMES WEATHERLY, JR.            CHARLES W. BURSON
Third National Finance Center   Attorney General and Reporter
22nd Floor, 424 Church St.  
Nashville, TN  37219            CHRISTINA SHEVALIER
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243

                                VICTOR S. JOHNSON
                                District Attorney General

                                THOMAS F. JACKSON, JR.
                                Assistant District Attorney
                                Judicial Building, Ste. 303
                                Murfreesboro, TN  37130

Judge: JERRY L. SMITH

First Paragraph:

The Davidson County Grand Jury indicted Appellant Damon Byrd on two
counts of assault and two counts of sexual battery.  Appellant entered
a plea of not guilty and requested pretrial diversion of the offenses.
In this interlocutory appeal pursuant to Tennessee Rule of Appellate
Procedure 9, Appellant seeks review of the judgment of the Davidson
County Criminal Court affirming the district attorneys denial of
diversion.  Appellant alleges that the district attorney abused his
discretion in denying the request for diversion.

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

STATE OF TENNESSEE,v. GREGORY RUSSELL CURTIS,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

DWAYNE D. MADDOX III    CHARLES W. BURSON
105 East Main Street    Attorney General and Reporter
P.O. Box 430
Huntingdon, TN 38344    MICHELLE L. LEHMANN
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493

                        ROBERT (GUS) RADFORD
                        District Attorney General
                        P.O. Box 686
                        Huntingdon, TN 38344

Judge: DAVID H. WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Defendant entered pleas of guilty
to two counts of selling marijuana and one count of selling cocaine.
The trial judge sentenced the Defendant as a Range I standard offender
to the minimum sentence of one year for each of the marijuana offenses
and to the minimum sentence of eight years for the cocaine offense.
The sentences were ordered to be served concurrently.  One year was
ordered served in confinement with the balance to be served on
supervised probation.  On appeal, the Defendant argues that the trial
court erred by not granting full probation or, in the alternative, a
community corrections sentence without any period of confinement.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE,v. DEREK DENTON,

Court:TCCA

For the Appellant:          For the Appellee:

Marvin E. Ballin            Charles W. Burson
200 Jefferson Avenue        Attorney General of Tennessee
Suite 1250                  and
Memphis, TN  38103          Charlette Reed Chambers              
                            Assistant Attorney General of Tennessee
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            John W. Pierotti, Jr.  
                            District Attorney General   
                                and
                            James J. Challen               
                            Assistant District Attorney General            
                            201 Poplar Ave.
                            Memphis, TN 38103-1947

Judge: Joseph M. Tipton

First Paragraph:

The defendant, Derek C. Denton, appeals as of right from his
convictions by a jury in the Shelby County Criminal Court for
aggravated burglary and aggravated assault, Class C felonies, and
criminally negligent homicide, a Class E felony.  As a Range I,
standard offender, he received six-year sentences and was fined
$10,000 for each of the aggravated burglary and aggravated assault
convictions and a two-year sentence and $2,500 fine for the criminally
negligent homicide conviction.  The defendant was ordered to serve
each sentence consecutively, for an effective sentence of fourteen
years, in the local workhouse.  The defendant presents the following
issues for our review: (1)  whether the evidence was sufficient to
support the defendant's convictions; (2)    whether the trial court
properly charged the jury on circumstantial evidence; (3)   whether
the trial court properly charged the jury on the prosecution's burden
of proof; and (4)   whether the defendant's sentence was excessive.

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

STATE OF TENNESSEE  v. ALFRED D. FLOWERS,

Court:TCCA

Attorneys: N/A

Judge: JERRY L. SMITH

First Paragraph:

ORDER
Appellant Alfred D. Flowers appeals from the dismissal of his petition
for post-conviction relief filed in the Shelby County Criminal Court.
The record reflects that on June 24, 1992, Appellant entered a guilty
plea to second degree murder as well as to six counts of aggravated
robbery and one of criminal attempt for aggravated robbery.   On
appeal, Appellant asserts that he received the ineffective assistance
of counsel in violation of the Sixth Amendment.

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

CHESTER RAY HALL, v. DAVID MILLS, WARDEN,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:


CHESTER RAY HALL, PRO SE        CHARLES W. BURSON
Turney Center, Unit 4           Attorney General & Reporter
Route 1
Only, TN 37140-9709             CYRIL V. FRASER
                                Attorney for the State
                                450 James Robertson Pkwy.                               
                                Nashville, TN  37243-0493
                
                                JOE D. BAUGH
                                District Attorney General

                                RONALD DAVIS
                                Asst. District Attorney General
                                P. O. Box 937
                                Franklin, TN 37065

Judge: JOHN H. PEAY

First Paragraph:

The petitioner, an inmate with the Department of Correction, was
convicted on ten charges of armed robbery.  He filed a petition for a
writ of habeas corpus pursuant to T.C.A.  29-21-101 in which he
claimed his convictions and sentences are void.  The petition was
dismissed without an evidentiary hearing.

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

STATE OF TENNESSEE, v. CHARLES ROBERT HARMUTH,

Court:TCCA

For the Appellant:              For the Appellee:

Timothy S. Priest               Charles W. Burson
100 First Avenue, S.W.          Attorney General of Tennessee
Winchester, TN 37398                and
                                Hunt S. Brown
                                Assistant Attorney General of Tennessee                     
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                James Michael Taylor
                                District Attorney General
                                First American Bank Bldg.
                                Dayton, TN 37321
                                and
                                Steven M. Blount
                                Assistant District Attorney General
                                1 South Jefferson Street
                                Winchester, TN 37398

Judge: Joseph M. Tipton

First Paragraph:

The defendant, Charles Robert Harmuth, is before us in an
interlocutory appeal by permission, T.R.A.P. 9, from the order of the
Franklin County Circuit Court affirming the prosecuting attorneys
denial of his application for pretrial diversion.  The sole issue for
our review is whether the trial court erred by affirming the denial.

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

DONALD RAY HARRIS, v. STATE OF TENNESSEE,   

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

JAN R. PATTERSON                CHARLES W. BURSON
225 West Baltimore Suite B      Attorney General and Reporter
Jackson, TN  38301
                                MICHELLE L. LEHMANN
GEORGE MORTON GOOGE             Assistant Attorney General
District Public Defender for    450 James Robertson Parkway
the 26th Judicial District      Nashville, TN  37243
227 West Baltimore
Jackson, TN  38301              JERRY WOODALL
                                District Attorney General

                                DONALD ALLEN
                                Assistant District Attorney
                                P. O. Box 2825
                                Jackson, TN  38302

Judge: JERRY L. SMITH

First Paragraph:

Appellant Donald Ray Harris appeals the trial courts denial of his
petition for post-conviction relief.  On September 12, 1990, a Madison
County Circuit Court jury convicted Appellant of one count of
aggravated sexual battery.  As a Range I standard offender, he
received a sentence of ten years in the Tennessee Department of
Correction.  On December 31, 1991, this Court affirmed the judgment of
the trial court.  On June 3, 1994, Appellant filed a petition for
post-conviction relief in the Madison County Circuit Court, alleging
that he received ineffective assistance of counsel in violation of his
Sixth Amendment rights.  Following an evidentiary hearing, the trial
court denied his petition.  In this appeal as of right, Appellant
presents the following issue: whether his trial counsel provided
effective assistance.

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

STATE OF TENNESSEE, v. GLENN WATSON JAMERSON,

Court:TCCA

For the Appellant:      For the Appellee:

A. Russell Larson       Charles W. Burson
211 East Main Street    Attorney General and Reporter
Jackson, TN  38301  
                        Robin L. Harris
                        Assistant Attorney General                      
                        Criminal Justice Division
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493                
                        
                        James G. (Jerry) Woodall
                        District Attorney General

                        James W. Thompson
                        Asst. District Attorney General
                        P. O. Box 2825
                        Jackson, TN  38302

Judge: David G. Hayes

First Paragraph:

The appellant, Glenn Watson Jamerson, appeals, in essence, from the
trial courts denial of judicial diversion.  The appellant, pursuant
to a plea agreement, pled guilty in the Madison County Circuit Court
to one count of possession of marijuana, a class E felony, two counts
of statutory rape, also class E felonies, and four counts of
contributing to the delinquency of a minor, class A misdemeanors.  In
accordance with the plea agreement, the trial court imposed a sentence
of two years for each of the class E felonies and a sentence of 11
months and 29 days for each of the class A misdemeanors.  The trial
court ordered that the appellant serve the sentences concurrently. 
The court then suspended the sentences and placed the appellant on
supervised probation.  At a subsequent hearing, prior to the entry of
the judgment of conviction, the court denied the appellants
application for post-plea expungement.

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

STATE OF TENNESSEE, v. JACOB MEEKS,     

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

WILLIAM L. JOHNSON          CHARLES W. BURSON
50 North Front Street       Attorney General and Reporter
Suite 1150
Memphis, TN 38103           MARY ANNE QUEEN
                            Legal Assistant

                            CHRISTINA S. SHEVALIER
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            ELIZABETH RICE
                            District Attorney General

                            CHRISTOPHER MARSHBURN
                            Assistant District Attorney General
                            302 Market Street
                            Somerville, TN 38068

Judge: DAVID H. WELLES

First Paragraph:

The Defendant appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  He appeals from his conviction by jury
of hindering a secured creditor.  The Defendant argues that the
evidence was insufficient to support his conviction.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE, v. TERRY MOORE, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

GEORGE MORTON GOOGE         CHARLES W. BURSON
District Public Defender    Attorney General and Reporter

PAMELA J. DREWERY           ELLEN H. POLLACK
Assistant Public Defender   Assistant Attorney General
227 W. Baltimore            450 James Robertson Parkway
Jackson, TN 38301           Nashville, TN 37243-0493
                        
                            JERRY WOODALL
                            District Attorney General

                            DON ALLEN
                            District Attorney General
                            P.O. Box 2825
                            Jackson, TN 38302

Judge: DAVID H. WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Defendant appeals from an order of
the trial court revoking his probation and ordering him to serve his
entire two-year sentence in the Department of Correction.  Because we
have determined that the issues presented on appeal are now moot, we
dismiss the appeal.

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

STATE OF TENNESSEE, v. REIKO NOLEN, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Charles S. Kelly            Charles W. Burson
802 Troy Avenue             Attorney General & Reporter 
Dyersburg, TN   38025
   (On Appeal)              Robin L. Harris 
                            Assistant Attorney General
G. Stephen Davis            Criminal Justice Division
District Public Defender    450 James Robertson Parkway
P.O. Box 742                Nashville, TN 37243-0493
Dyersburg, TN   38025-0742
    (At Trial)              C. Phillip Bivens
                            District Attorney General
                            Dyer County Courthouse        
                            Dyersburg, TN   38024

Judge: PAUL R. SUMMERS

First Paragraph:

The appellant, Reiko Nolen, was convicted of especially aggravated
robbery and received a twenty-year sentence.  In this appeal he claims
that: 1.    He was denied the effective assistance of counsel,
2.  The trial court erred in overruling his motion for a mistrial
when the victim made reference to the appellants prior criminal
history, 3. His sentence is excessive, and 4.   The evidence is
insufficient to support the verdict. 

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

WILLIAM HENRY PRESTON,  v. BILLY COMPTON,  

Court:TCCA

For the Appellant:                  For the Appellee:

William Henry Preston, Pro Se       Charles W. Burson
Register Number 129292              Attorney General of Tennessee
Route 1, Box 330                    and
Tiptonville, TN 38079-9775          Ellen H. Pollack
                                    Assistant Attorney General of TN                    
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    C. Phillip Bivens
                                    District Attorney General
                                    P.O. Drawer E
                                    Dyersburg, TN 38024

Judge: Joseph M. Tipton

First Paragraph:

The petitioner, William Henry Preston, appeals as of right from the
dismissal of his petition for writ of habeas corpus by the Circuit
Court for Lake County.  The petitioner is presently serving a
forty-year sentence resulting from his 1989 conviction for aggravated
rape.  The trial court dismissed the petition because it failed to
state grounds for relief.  We agree.

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

STATE OF TENNESSEE, v. MARCUS KEITH ROBERTSON,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Hughie Ragan                Charles W. Burson
Attorney at Law             Attorney General & Reporter 
Box 2641
Jackson, TN 38302           Roger A. Page   
                            Assistant Attorney General
                            225 Martin Luther King, Jr. Drive 
                            Jackson, TN 38301

                            James G. (Jerry) Woodall
                            District Attorney General

                            Don Allen        
                            Asst. Dist. Attorney General
                            225 Martin Luther King, Jr. Drive
                            P. O. Box 2825       
                            Jackson, TN 38302-2825

Judge: PAUL G. SUMMERS

First Paragraph:

The appellant, Marcus Keith Robertson, was convicted by a jury of
aggravated assault and received a four-year sentence.  In this appeal
he raises the following issues: 1.  Whether the trial court erred in
failing to instruct the jury on the lesser included offense of
assault; 2. Whether the indictment contained a fatal defect;
3.  Whether trial counsel was ineffective; 4.   Whether the trial
judge erred in allowing the prosecutor to cross examine the appellant
about prior arrests and convictions; and 5. Whether the trial court
erred in failing to give a limiting instruction as to the use of the
prior arrests and convictions.

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

STATE OF TENNESSEE, v. ALFRED SCOTT,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

GEORGE MORTON GOOGE         CHARLES W. BURSON
District Public Defender    Attorney General and Reporter

PAMELA J. DREWERY           CHARLOTTE H. RAPPUHN
Assistant Public Defender   Assistant Attorney General
227 W. Balitmore            450 James Robertson Parkway
Jackson, TN 38301           Nashville, TN 37243-0493

                            JERRY WOODALL
                            District Attorney General

                            DON ALLEN               
                            Assistant District Attorney General
                            P.O. Box 2825
                            Jackson, TN 38302

Judge: DAVID H. WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Defendant appeals from an order of
the trial court revoking his probation and ordering him to serve his
two-year sentence in the Department of Correction.  Because we have
determined that the sole issue presented on appeal is now moot, we
dismiss the appeal.

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

KENNETH M. SCOTT, v. STATE OF TENNESSEE,

Court:TCCA

For the Appellant:              For the Appellee:

Christopher L. Nearn            Charles W. Burson
100 North Main Building         Attorney General of Tennessee
Memphis, TN 38103               and
                                Robin L. Harris
                                Asst Attorney General of Tennessee              
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                John W. Pierotti, Jr.
                                District Attorney General
                                and
                                Judson W. Phillips
                                Assistant District Attorney General
                                201 Poplar Avenue
                                Memphis, TN 38103-1947

Judge: Joseph M. Tipton

First Paragraph:

The petitioner, Kenneth M. Scott, appeals as of right from the Shelby
County Criminal Courts denial of post-conviction relief.  The
petitioner was convicted in 1991 of theft of a motor vehicle valued at
more than ten thousand dollars and received a Range III, persistent
offender sentence of thirteen years in the Department of Correction. 
The conviction and sentence were affirmed on appeal.  State v. Kenneth
Scott, No. 02C01-9202-CR-00048, Shelby Co. (Tenn. Crim. App. Dec. 16,
1992), app. denied (Tenn. Mar. 22, 1993).  In the present appeal, the
petitioner contends that the trial court erred (1) by finding that he
failed to show by a preponderance of the evidence that his trial
attorney rendered ineffective assistance and (2) by having the
petitioner removed from the proceeding after his testimony, but before
his trial attorney testified as a witness for the state.

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

STATE OF TENNESSEE, v. GRAPEL SIMPSON,

Court:TCCA

For Appellant:                  For Appellee:

Lloyd R. Tatum                  Charles W. Burson
Attorney                        Attorney General and Reporter
124 East Main Street
P.O. Box 293                    William David Bridgers
Henderson, Tennessee  38340     Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493

                                Elizabeth T. Rice
                                District Attorney General

                                Ed McDaniel
                                Asst. District Attorney General
                                Justice Complex
                                Selmer, Tennessee  38340

Judge: GARY R. WADE

First Paragraph:

The defendant, Grapel Simpson, pled guilty to possession of dilaudid,
a Schedule II drug, with intent to deliver and sell.  She reserved the
right to appeal as a certified question of law the denial of both a
motion to dismiss, based upon a double jeopardy claim, and a motion to
suppress evidence.  See Tenn. R. Crim. P. 11(e) and 37(b)(2).  The
trial court imposed a Range I sentence of five (5) years, to be served
concurrently with any other sentences for drug-related charges pending
at the time of the defendants plea, and assessed a fine of $2,000.00.

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

STATE OF TENNESSEE, v. GRAPEL SIMPSON,

Court:TCCA

For Appellant:                  For Appellee:

Lloyd R. Tatum                  Charles W. Burson
Attorney                        Attorney General and Reporter
124 East Main Street
P.O. Box 293                    William David Bridgers
Henderson, Tennessee  38340     Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493

                                Elizabeth T. Rice
                                District Attorney General

                                Ed McDaniel
                                Asst. District Attorney General
                                Justice Complex
                                Selmer, Tennessee  38340

Judge: PAUL G. SUMMERS,

First Paragraph:

The appellee, Graple Simpson, was indicted for possession of a
schedule II narcotic with the intent to sell.  Following a summary
administrative forfeiture, the appellee moved the trial court to
dismiss the criminal charge.  She argued that the double jeopardy
clause prohibited further criminal prosecution.  The trial judge
granted the appellee's motion and the state appealed.  We reverse and
remand.

URL:http://www.tba.org/tba_files/TCCA/SIMPSONG.OP2.WP6
Opinion-Flash

STATE OF TENNESSEE, v. BILLY RAY SMITHSON,

Court:TCCA

For the Appellant:                  For the Appellee:

John H. Henderson                   Charles W. Burson
District Public Defender            Attorney General and Reporter
407 C. Main Street  
Franklin, TN  37065-0068            William David Bridgers
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    Joseph D. Baugh, Jr.
                                    District Attorney General

                                    Jeff Burks
                                    Asst. District Attorney General
                                    P. O. Box 937
                                    Franklin, TN  37065-0937

Judge: David G. Hayes

First Paragraph:

The appellant, Billy Ray Smithson, appeals as of right from sentences
imposed by the Criminal Court of Williamson County.  Pursuant to a
plea agreement, the appellant pled guilty to one count of theft of
property over $500, a class E felony; one count of theft of property
over $1000, a class D felony; and two counts of failure to appear,
class E felonies.  The trial court effectively sentenced the
appellant, as a range II multiple offender, to twelve years
incarceration in the Department of Correction.  The appellant now
appeals the trial court's sentencing decisions, contending that the
court's sentence for each offense was excessive and that the court
erred in imposing consecutive sentences.  For the reasons cited
herein, we remand this case for resentencing.

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

STATE OF TENNESSEE, v. JOHN V. WOODRUFF,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

MARK FISHBURN           CHARLES W. BURSON
Attorney at Law         Attorney General and Reporter
Nashville, TN  37201
                        CHRISTINA SHEVALIER
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN  37243

                        VICTOR S. JOHNSON
                        District Attorney General
    
                        THOMAS THURMAN
                        Assistant District Attorney
                        222 Second Avenue South
                        Nashville, TN 37201

Judge:JERRY L. SMITH

First Paragraph:

A Davidson County Criminal Court jury found Appellant John V. Woodruff
guilty of felony murder, especially aggravated robbery, especially
aggravated kidnapping, and first degree murder.  Appellant received a
life sentence for each murder conviction and a twenty year sentence
for both the especially aggravated robbery conviction and the
especially aggravated kidnapping conviction.  The life sentences were
ordered to run consecutive to each other, and the sentences for
robbery and kidnapping were ordered to run concurrent with each other
and with the life sentence for first degree murder.  In this appeal as
of right, Appellant presents the following issues for review: (1)
whether the trial court erred in allowing the introduction of evidence
of sexual assault upon one of the victims; (2) whether the trial court
erred in denying a request for a jury instruction on the lesser
included offense of criminal attempt to commit especially aggravated
robbery; (3) whether the evidence presented at trial is legally
sufficient to sustain convictions for especially aggravated robbery
and first degree murder; and (4) whether the trial court erred in
ordering consecutive life sentences.

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

STATE OF TENNESSEE, v. SHANE WENDALL YANKEE,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:   
Donald A. Bosch                 Charles W. Burson
Bosch, Silvey & Lusk            Attorney General & Reporter
2000 First Tennessee Plaza      500 Charlotte Avenue
Knoxville, TN  37929            Nashville, TN 37243-0497
(On Appeal)
                                Darian B. Taylor
Herbert A. Holcomb              Assistant Attorney General
101 Church Street               450 James Robertson Parkway
Rogersville, TN 37857           Nashville, TN 37243-0493
(At Trial)
                                H. Greeley Wells, Jr.
                                District Attorney General Pro Tem
                                P. O. Box 526
                                Blountville, TN 37617-0526
                                                 
                                John Douglas Godbee
                                Assistant District Attorney General
                                Hawkins County Courthouse
                                Rogersville, TN 37857

Judge: JOE B. JONES

First Paragraph:

The appellant, Shane Wendall Yankee, 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
Range I sentences consisting of a fine of $10,000 and confinement for
six (6) years in the Department of Correction for vehicular homicide,
and a fine of $3,000 and confinement for two (2) years in the
Department of Correction for leaving the scene of an accident
involving death.  Three issues are presented for review:  the
appellant contends that the trial court committed error of prejudicial
dimensions by (a) admitting photographs that were prejudicial, (b)
excluding testimony regarding law enforcement's policy on high speed
chases, and (c) imposing excessive sentences and refusing to sentence
him to an alternative sentence.  After a thorough review of the
record, the briefs of the parties, and the authorities governing these
issues, it is the opinion of this Court that the appellant's
convictions and sentences should be affirmed.

URL:http://www.tba.org/tba_files/TCCA/YANKEE.OPN.WP6

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1998 Tennessee Bar Association