TBALink Opinion-Flash

February 28, 1997 -- Volume #3 -- Number #026

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:
00-New Opinions From TSC
00-New Opinions From TSC-Rules
04-New Opinions From TSC-Workers Comp Panel
10-New Opinions From TCA
23-New Opinions From TCCA

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George Dean
TBALink Chief Editor


HUBERT M. HURD
vs.
GENERAL SHALE PRODUCTS CORPORATION and CNA INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellants:                 For the Appellee:
Michael J. Mollenhour               J. Anthony Farmer
P.O. Box 9799                       P.O. Box 709
Knoxville, TN  37940                Knoxville, TN  37901                       

Judge: THAYER

First Paragraph:

Defendants, General Shale Products Corporation and CNA Insurance
Company, have appealed from the action of the trial court in awarding
plaintiff, Hubert M. Hurd, 30% permanent partial disability benefits
to the body as a whole. The only issue on appeal is whether the
evidence preponderates against the award of benefits. AFFIRMED.

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

LUMBERMEN'S MUTUAL CASUALTY COMPANY
vs.
YOLANDA GUERRERO

Court:TSC - Workers Comp Panel

Attorneys:   

FOR APPELLANT:                          FOR APPELLEE:

JOHN R. LEWIS                           PETER N. OLSON         
Suite 1900, Nationsbank Plaza           114 Franklin Street    
414 Union Street                        Clarksville, TN 37040                    

Judge: RUSSELL

First Paragraph:

Yolanda Guerrero worked for Quebecor Printing, Inc. Both the
employer's business and the employee's residence were in Montgomery
County; and it was in that county on September 19, 1995, that the
employee reported an injury while at work there. AFFIRMED.

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

BOBBY L. MARLOWE
vs.
VULCAN MATERIALS COMPANY

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellants                  For the Appellee:
Julia S. Howard                     Sherry Brashear
Hodges, Doughty & Carson            William O. Shults
617 Main Street                     103 North First Street
Knoxvillle, Tenn. 37902             Suite 211
                                    P.O. Box 1626
                                    Harlan, Kentucky  40831                        

Judge: THAYER

First Paragraph:

The appeal has resulted from a finding by the trial court that
plaintiff, Bobby L. Marlowe, was entitled to 100% disability benefits
due to contracting an occupational disease while in the employment of
his employer, defendant Vulcan Materials Company. MODIFIED AND
AFFIRMED.

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

GLORIA PERKINS
vs.                                           
WHIRLPOOL CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:

FOR APPELLANT:                          FOR APPELLEE:
DAVID T. HOOPER                         R. STEVEN WALDRON      
109 Westpark Drive, Suite 410           202 West Main Street   
Brentwood, TN 37027                     Murfreesboro, TN 37130  
Nashville, TN 37219-1782                                         

Judge: RUSSELL

First Paragraph:

Gloria Perkins began working for the defendant in its manufacturing
plant in 1985.   In 1993 she was elected to work as a group leader. 
This required her to see that the workers in her group were timely
supplied with parts, and she also personally substituted for workers
who had to temporarily leave their jobs to go to a rest room or first
aid station. AFFIRMED.

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

JOEL FRANK BOOKOUT
vs.
PAMELA WILLIAMS BOOKOUT

Court:TCA

Attorneys: 

RICHARD A. SCHULMAN, Spears, Moore, Rebman & Williams, Chattanooga for
Appellant.
MICHAEL R. CAMPBELL, Campbell & Campbell, Chattanooga, for Appellee.

Judge: McMurray

First Paragraph:

This is an appeal from the trial court's judgment in a divorce action.
 The plaintiff (husband) filed the original action and the defendant
(wife) filed a counterclaim.  The trial court entered judgment
granting the wife a divorce, establishing child support, granting
custody of the children to the wife, setting visitation privileges for
the husband, and dividing the marital estate. MODIFIED IN PART,
AFFIRMED AS MODIFIED AND REMANDED.

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

KENNETH CARL BROOKS
vs.
RAMONA E. BROOKS

Court:TCA

Attorneys: 

CHARLES W. BURSON
Attorney General & Reporter

KIMBERLY M. FRAYN
JENNIFER HELTON SMALL
404 James Robertson Parkway Suite 1501
Nashville, Tennessee 37243-0499
    ATTORNEYS FOR PLAINTIFF/APPELLEE

BRIAN K. FRAZIER
Neal & Harwell
2000 First Union Tower
Nashville, Tennessee 37219-2498
    ATTORNEY FOR DEFENDANT/APPELLANT                         

Judge: CRAWFORD

First Paragraph:

This appeal involves a post-divorce proceeding between petitioner,
Kenneth Carl Brooks (hereinafter Husband) and respondent, Ramona E.
Brooks (hereinafter Wife).  Husband appeals from the order of the
trial court establishing arrearage in ld support payments and
modifying the amount of the previously ordered child support.  Husband
filed a " Petition for Specific Visitation, and Modification of Child
Support."  Wife filed a detailed response to the petition and also
filed a counter-petition for contempt in which she alleged that
Husband was in arrears in payment of the ordered child support
payments and in payment of an award of alimony in solido.  Husband
filed an answer to the counter-claim for contempt and joined issue on
the allegations therein. VACATED AND REMANDED.

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

LUTHER DAVIS
vs.
JIM ROSE, Assistant Commissioner of Correction; KEVIN MYERS, 
Warden; and RUSTY HARVILLE, Disciplinary Board Chairman

Court:TCA

Attorneys: 

LUTHER DAVIS
CCA-SCCF
P. O. Box 279
Clifton, Tennessee  38425-0279
    Pro Se/Petitioner/Appellant

CHARLES W. BURSON
Attorney General and Reporter

ABIGAIL TURNER
Assistant Attorney General
2nd Floor, Cordell Hull Building
426 Fifth Avenue North
Nashville, Tennessee 37243
    Attorney for Respondent/Appellee Jim Rose

TOM ANDERSON
FRANKIE K. STANFILL
P. O. Box 900
Lexington, Tennessee 38351
    Attorneys for Respondents/Appellees 
    Kevin Myers and Rusty Harville                         

Judge: CANTRELL

First Paragraph:

An inmate in a prison operated by Corrections Corporation of America
was disciplined for allegedly stealing four sausage patties.  He filed
a petition for Writ of Certiorari with the chancery court, claiming
that the disciplinary proceedings were defective for several reasons,
including a delegation of disciplinary responsibilities to a private
corporation, in violation of Tennessee law.  The trial court dismissed
the petition for untimeliness.  We affirm the dismissal, but on the
alternate ground of failure to state a claim upon which relief can be
granted. AFFIRMED AND REMANDED.

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

STATE OF TENNESSEE, DEPARTMENT OF HUMAN SERVICES, 
ASSIGNEE OF: JUDY STANLEY
vs.
JOHN FRANKLIN HOOPER

Court:TCA

Attorneys: 

CHARLES W. BURSON
Attorney General & Reporter

KIMBERLY M. FRAYN
JENNIFER HELTON SMALL
404 James Robertson Parkway Suite 1501
Nashville, Tennessee 37243-0499
    ATTORNEYS FOR PLAINTIFF/APPELLEE

BRIAN K. FRAZIER
Neal & Harwell
2000 First Union Tower
Nashville, Tennessee 37219-2498
    ATTORNEY FOR DEFENDANT/APPELLANT                         

Judge: LEWIS

First Paragraph:

This appeal involves the application and constitutionality of
Tennessee's law creating a conclusive presumption of paternity when a
DNA test shows the statistical probability of paternity is ninety-nine
percent (99%) or greater.  The Dickson County Circuit Court held that
Tennessee Code Annotated section 24-7 112(b)(2)(B) is constitutional. 
Since there was no dispute as to any material fact, the court held
that the State was entitled to summary judgment establishing the
defendant's paternity as a matter of law.  In addition, the court
ordered the defendant to make weekly payments for the care and
maintenance of the child as well as for back child support dating from
the time of the child's birth.  We find that the conclusive
presumption of section 24-7-112(b)(2)(B) violates the Due Process
Clause of the Fourteenth Amendment and, therefore, we reverse the
decision of the trial court. REVERSED AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/HOOPER2_OPN.WP6
Opinion-Flash

CHRISTINA RENEE KLINDT
vs.
JOHN MICHAEL ROSS KLINDT

Court:TCA

Attorneys:

CHRISTINA RENEE KLINDT, Pro Se
6001 Old Hickory Boulevard
Apt. # 224
Hermitage, Tennessee  37076

LARRY HAYES, JR.
Boult, Cummings, Conners & Berry
414 Union Street, Suite 1600
P. O. Box 198062
Nashville, Tennessee 37219
    ATTORNEY FOR RESPONDENT/APPELLANT                          

Judge: LEWIS

First Paragraph:

The sole issue in this child custody matter is whether the Chancery
Court for Wilson County had jurisdiction to modify the custody
provisions of a divorce decree entered by the Circuit Court for
Harrison County, Missouri. DISMISSED AND REMANDED.

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

STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES 
vs.
KAREN SUE JACKSON PURCELL, INMATE #205033 TENNESSEE STATE WOMEN'S
PRISON, NASHVILLE, TENNESSEE

Court:TCA

Attorneys:  

THOMAS H. BILBREY, Lafayette, for Appellant.
CHARLES W. BURSON, Attorney General and Reporter and WILLIAM ASHBY
SMITH, JR., Assistant Attorney General, Nashville, for Appellee.
             
Judge: McMurray

First Paragraph:

This is an appeal from the judgment of the trial court that terminated
the parental rights of the appellant, Karen Sue Jackson Purcell
(mother).  AFFIRMED AND REMANDED.

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

J. HAROLD SHANKLE
vs.
THE BEDFORD COUNTY BOARD OF EDUCATION, THE BEDFORD COUNTY BOARD OF
COMMISSIONERS, THE PUBLIC BUILDING AUTHORITY OF BEDFORD COUNTY, and
THE SCHOOL COMPANY

Court:TCA

Attorneys: 

GREGORY L. CASHION
JOHN W. HEACOCK                         AUBREY B. HARWELL, JR.
Manier, Herod, Hollabaugh               Neal & Harwell
 & Smith                                2000 First Union Tower
150 fourth Avenue North, Suite 2200     150 Fourth Avenue North 
Nashville, Tennessee 37219              Nashville, Tennessee  37219
ATTORNEYS FOR PLAINTIFF/APPELLANT


JOHN T. BOBO                            HARRIS A. GILBERT
Bobo, Hunt & Bobo                       CHARLES W. BONE
202 First national Bank Building        KEITH C. DENNEN
P. O. Box 169                           Wyatt, Tarrant & Combs
Shelbyville, Tennessee 37160-0169       1500 Nashville City Center
ATTORNEY FOR THE COUNTY                 511 Union Street
COMMISSION OF BEDFORD COUNTY,           Nashville, Tennessee 37219
TENNESSEE, THE BOARD OF EDUCATION   
OF BEDFORD COUNTY, TENNESSEE and        ATTORNEYS FOR THE SCHOOL
THE PUBLIC BUILDING AUTHORITY OF        COMPANY, L.L.C.
BEDFORD COUNTY, TENNESSEE                         

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiff/appellant, J. Harold Shankle Company,
Inc., from the decision of the Bedford County Chancery Court granting
defendants/ appellees' motion for summary judgment.  The case involved
the construction and application of the Public Building Authority Act
of 1971 ("the Act"), Tennessee Code Annotated sections 12-10-101 to
12-101-124. AFFIRMED AND REMANDED.

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

FRANK SMITH
vs.
STONEY C. DUNCAN

Court:TCA

Attorneys: 

For the Plaintiff/Appellee:             For the Defendant/Appellant:
Michael A. Walker                       John E. Appman
Jamestown, Tennessee                    Jamestown, Tennessee                         

Judge: KOCH

First Paragraph:

This appeal involves the compensation of three deputy clerks employed
by the clerk of the Circuit Court for Fentress County.  In response to
a petition filed pursuant to Tenn. Code Ann. S 8-20-101 (1993), the
Circuit Court for Fentress County entered an order on October 12,
1995, raising the annual salary of the three deputy clerks to
$17,665.00 effective July 1, 1995.  The Fentress County executive
takes issue on this appeal with the evidentiary foundation of the
trial court's opinion.  We have determined that the trial court's
decision should be affirmed as modified in accordance with Tenn. Ct.
App. R. 10(b). AFFIRMED AS MODIFIED AND REMANDED.

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

THE TENNESSEAN, a division of Gannett Satellite Information Network,
Inc., and FRANK SUTHERLAND
vs.
ELECTRIC POWER BOARD OF NASHVILLE

Court:TCA

Attorneys:   

ALFRED H. KNIGHT
WILLIS & KNIGHT
215 Second Avenue, North
Nashville, Tennessee 37201
    Attorney for Plaintiffs/Defendants

LARRY STEWART
HENRY D. FINCHER
424 Church Street, Ste. 2800
Nashville, Tennessee 37219

EUGENE WARD
N.E.S. General Counsel
1214 Church Street
Nashville, Tennessee 37203
    Attorneys for Defendant/Appellee

FRANK S. KING, JR.
KING & BALLOW
1200 Noel Place
200 Fourth Avenue North
Nashville, Tennessee 37219
    Attorney for Tennessee Municipal Electric Power Association                       

Judge: CANTRELL

First Paragraph:

This case arose out of the efforts of a Nashville newspaper, the
Tennessean, to obtain from the Electric Power Board of Nashville the
names, addresses, and telephone numbers of all Nashville Electric
Service (NES) customers pursuant to the Tennessee Public Records Act. 
See Tenn. Code Ann. S 10-7-101 to 10-7-606 (1992 & Supp. 1996).  The
Chancery Court of Davidson County held that the information sought by
the Tennessean was a public record and thus must be provided. 
However, the trial court concluded that NES had the right to charge
the Tennessean $91,619.00 for the costs of producing this information
and of notifying its customers of the Tennessean's request. AFFIRMED
IN PART; REVERSED IN PART; AND REMANDED.

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

DAVID NEAL THOMAS and BRENDA THOMAS
vs.
MICHAEL S. CROCKETT and WILLIAM T. CROCKETT 
and 
AUTO OWNERS INSURANCE COMPANY

Court:TCA

Attorneys: 

J. MITCHELL GRISSIM, JR.
THOMAS M. HORNE
Mitch Grissim & Associates
325 Union Street
Nashville, Tennessee  37201
    ATTORNEYS FOR DAVID NEAL THOMAS

JAMES D. KAY, JR.
BRIDGETT A. WOHLPART
Suite 340M, Washington Square Two
222 Second Avenue North
Nashville, Tennessee  37201
    ATTORNEYS FOR AUTO OWNERS                         

Judge: LEWIS

First Paragraph:

This is an appeal by unnamed defendant/appellant, Auto Owners
Insurance Company ("Auto Owners"), the uninsured/underinsured carrier
of plaintiff/appellee, David Neal Thomas, from the decision of the
trial court which suggested an additur of $12,500.00 to the judgment
of $50,000.00 received by Mr. Thomas. AFFIRMED AND REMANDED.

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

STATE OF TENNESSEE
vs.
SOLOMON AKINS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
G. STEPHEN DAVIS                    CHARLES W. BURSON
District Public Defender            Attorney General and Reporter
208 N. Mill Avenue
Dyersburg, TN  38025-0742           CLINTON J. MORGAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    PHILLIP BIVENS
                                    District Attorney General
                        
                                    JAMES E. LANIER
                                    Assistant District Attorney
                                    115 E. Market
                                    Dyersburg, TN  38024                         

Judge: SMITH

First Paragraph:

This is an appeal as of right pursuant to Tenn. R. App. P. 3.  On
January 26, 1995, Appellant was convicted by a jury of five counts of
selling less than .5 grams of cocaine.  As a Range II offender,
Appellant received a sentence of eight years and six months for each
count.  All five of these sentences were concurrent to each other, but
 consecutive to two previous convictions he was serving on probation. 
In this appeal Appellant alleges the evidence is insufficient to
support the verdicts, and that his sentence is excessive.  Having
reviewed the record in this matter we are of the opinion that the
convictions and sentence are fully supported by the law and evidence
and that this matter should be affirmed pursuant to Rule 20, Rules of
the Court of Criminal Appeals. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/AKINSSOL_ORD.WP6
Opinion-Flash
    
STATE OF TENNESSEE
vs.
GAIL HANELINE BARNES

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:
Christine Zellar Church             Charles W. Burson
Post Office Box 624                 Attorney General and Reporter
Clarksville, TN  37040-0624 
                                    Christina S. Shevalier
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    Dan Mitchum Alsobrooks
                                    District Attorney General

                                    Robert S. Wilson
                                    Asst. District Attorney General
                                    Post Office Box 580
                                    Charlotte, Tn  37036                        

Judge: Hayes

First Paragraph:

The appellant, Gail Haneline Barnes, was found guilty by the Dickson
County Circuit Court of aggravated assault, a class C felony.  She was
sentenced, as a range I offender, to serve five years in the
Department of Correction.  The appellant now appeals her conviction.
REVERSED AND REMANDED.

URL:http://www.tba.org/tba_files/TCCA/BARNESGH_OPN.WP6
Opinion-Flash
   
JEROME SYDNEY BARRETT
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 
For Appellant:
Jerome Sydney Barrett
Pro Se 
Lake County Regional Correctional Facility 
Rt. 1, Box 330
Tiptonville, TN  38079

For Appellee:
Charles W. Burson
Attorney General & Reporter

Ellen H. Pollack
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN  37243-0493

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

Judge: WADE

First Paragraph:

The petitioner appeals the trial court's denial of his petition for a
writ of habeas corpus.  There was no evidentiary hearing.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/BARRETTJ_OPN.WP6
Opinion-Flash
 
LATASHA M. WHITTINGTON-BARRETT
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:
Gale K. Flanary                     Charles W. Burson
Assistant Public Defender           Attorney General & Reporter
P.O. Box 839                        500 Charlotte Avenue
Blountville, TN 37167-0839          Nashville, TN 37243-0497

OF COUNSEL:                         Elizabeth T. Ryan
                                    Assistant Attorney General
Stephen M. Wallace                  450 James Robertson Parkway
District Public Defender            Nashville, TN 37243-0493
P. O. Box 839
Blountville, TN 37167-0839          H. Greeley Wells, Jr.
                                    District Attorney General
                                    P.O. Box 526
                                    Blountville, TN 37617

                                    Phyllis Miller
                                    Assist District Attorney General
                                    P.O. Box 526
                                    Blountville, TN 37617
Judge: Jones

First Paragraph:

The appellant, Latasha M. Whittington-Barrett, appeals as of right
from a judgment of the trial court dismissing his suit for
post-conviction relief.  He contends the trial court "erred in denying
[his] petition for post-conviction relief" because the evidence
adduced at the hearing established (a) he was denied his
constitutional right to the effective assistance of counsel, and (b)
his pleas of guilty are constitutionally infirm because the pleas were
not voluntarily, intelligently and understandingly entered.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/BARRETTL_OPN.WP6
Opinion-Flash
   
STATE OF TENNESSEE
vs.
MICHAEL BELLEW

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
GUY T. WILKINSON                    CHARLES W. BURSON
District Public Defender            Attorney General and Reporter
24th Judicial District
P. O. Box 663                       MARY ANNE QUEEN
Camden, TN  38320                   Legal Assistant

                                    ELLEN H. POLLACK
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville,  TN  37219

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

Judge: SMITH

First Paragraph:

Appellant Michael Bellew pled guilty in the Henry County Circuit Court
to operating a motor vehicle in violation of the Motor Vehicle
Habitual Offenders Act.  As a Range I standard offender, Appellant
received a sentence of two years in the Tennessee Department of
Correction.  In this direct appeal, he presents the following issue:
whether his sentence is excessive. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/BELLEW_OPN.WP6
Opinion-Flash
   
KENNETH ROBERT DANIELS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:
Laura Rule Hendricks                Charles W. Burson
Eldridge, Irvine & Hendricks        Attorney General and Reporter
606 W. Main Street, Suite 350       
P. O. Box 84                        Sandy R. Copous
Knoxville, TN  37901-0084           Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    David E. Crockett
                                    District Attorney General                         

Judge: Hayes

First Paragraph: 

The appellant, Kenneth Robert Daniels, appeals the order of the
Johnson County Circuit Court dismissing his petition for writ of
habeas corpus.  On January 15, 1993, the appellant pled guilty in the
Knox County Criminal Court to one count of second degree murder and to
one count of especially aggravated robbery.  He is presently confined
at the Northeast Correctional Center in Johnson County where he is
serving an effective sentence of forty years for these convictions.
AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/DANIELSK_OPN.WP6
Opinion-Flash
   
STATE OF TENNESSEE
vs.
JERRY DOUGLAS FRANKLIN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
C. EDWARD FOWLKES                   CHARLES W. BURSON
172 Second Avenue North             Attorney General and Reporter
Suite 214
Nashville, TN 37201                 JANIS L. TURNER
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    BERNARD MCEVOY
                                    Assist District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37201-1649                         

Judge: WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Defendant, Jerry Douglas Franklin,
was convicted by a Davidson County jury of one count of vehicular
homicide.  He was sentenced to three years split confinement, with one
year of confinement to be served at one hundred percent.  His driver's
license was revoked for three years.  He challenges both his
conviction and sentence. AFFIRMED AND REMANDED.

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

CURTIS GOULDIN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

CURTIS GOULDIN, pro se              CHARLES W. BURSON
Lake County Correctional Facility   Attorney General and Reporter
Route #1, P.O. Box 330
Tiptonville, TN 38079               ELIZABETH T. RYAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOHN W. PIEROTTI, JR.
                                    District Attorney General

                                    DAVID SHAPIRO
                                    Assist District Attorney General
                                    Suite 301
                                    201 Poplar Avenue
                                    Memphis, TN 38103                          

Judge: RILEY

First Paragraph:

The petitioner, Curtis Gouldin, appeals the order of the Criminal
Court of Shelby County denying his petition for writ of habeas corpus.
 His sole contention is that he received an illegal sentence after he
pled guilty to two (2) counts each of aggravated rape and robbery with
a deadly weapon.  The trial court treated the petition as one for
post-conviction relief and dismissed the petition on the grounds that
(1) it was time-barred, and (2) any non-jurisdictional error was
waived by the guilty plea. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/GOULDIN_OPN.WP6
Opinion-Flash
        
STATE OF TENNESSEE
vs.
JOE A. HENSON

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:
On appeal:                          Charles W. Burson
Walker Gwinn                        Attorney General & Reporter
Assistant Public Defender
                                    Cyril V. Fraser
At trial:                           Counsel for the State   
William Moore                       450 James Robertson Parkway
Assistant Public Defender           Nashville, TN  37243-0493       
201 Poplar Avenue
Suite 2-01                          David C. Henry 
Memphis, TN  38103                  Assist District Attorney General
                                    201 Poplar Avenue 
Of counsel:                         Third Floor
A.C. Wharton, Jr.                   Memphis, TN  38103      
Shelby County Public Defender                         

Judge: WADE

First Paragraph:

The defendant, Joe A. Henson, was convicted of aggravated burglary.
The trial court imposed a Range III sentence of fourteen years. In
this appeal of right, the defendant contends that the evidence was
insufficient.  We disagree and affirm the judgment of the trial court.
AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/HENSONJ_OPN.WP6
Opinion-Flash
        
JANARDO HOWELL
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
G. KLINE PRESTON, IV                CHARLES W. BURSON
176 Second Ave., N.                 Attorney General & Reporter
Nashville, TN   37201
                                    DARYL J. BRAND
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493
                
                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    KATRIN N. MILLER
                                    Asst. District Attorney General
                                    Washington Square, Suite. 500                               
                                    222 Second Ave., N.
                                    Nashville, TN   37201                         

Judge: PEAY

First Paragraph:

The petitioner filed his petition for writ of habeas corpus on July
25, 1995, in Davidson County, Tennessee.  He is presently incarcerated
at the Riverbend Maximum Security Institution.  According to his
petition, his imprisonment arises out of August 17, 1992, convictions
in Sevier County, Tennessee, for the sale of cocaine and auto theft. 
His petition alleges that his sentences are unconstitutional, and he
appeals the lower court's denial of his petition. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/HOWELLJ_OPN.WP6
Opinion-Flash
        
STATE OF TENNESSEE
vs.
STEVE JOHNSON

Court:TCCA

Attorneys:   

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

James David Kendall                 Hunt S. Brown
Assistant Public Defender           Assistant Attorney General
407 Perkins Street                  450 James Robertson Parkway
Union City, TN 38261                Nashville, TN 37243-0493

OF COUNSEL:                         Thomas A. Thomas
                                    District Attorney General
Joseph P. Atnip                     414 Fourth Street, South
District Public Defender            Union City, TN 38261
111 Main Street
Dresden, TN 38225                       

Judge: JONES

First Paragraph:

The appellant, Steve Johnson, was convicted of robbery, a Class C
felony, by a jury of his peers.  The trial court found the appellant
was a persistent offender and imposed a Range III sentence consisting
of confinement for fifteen (15) years in the Department of Correction.
 In this Court, the appellant contends the evidence was insufficient
to support his conviction, the trial court committed error by
permitting the state to introduce (a) his prior felony convictions to
impeach him, (b) evidence of flight, and (c) prior statements to
question a prosecution witness.  In addition, the appellant contends
the sentence imposed by the trial court was excessive. REVERSED AND
REMANDED.

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

        
STATE OF TENNESSEE
vs.
DEWAINE LEGGS

Court:TCCA

Attorneys:      

FOR THE APPELLANT:                  FOR THE APPELLEE:
JEFFREY A. DEVASHER                 CHARLES W. BURSON
Senior Assistant Public Defender    Attorney General and Reporter

DAVID BAKER                         SARAH M. BRANCH
Senior Assistant Public Defender    Assistant Attorney General
1202 Stahlman Building              450 James Robertson Parkway
Nashville, TN  37201                Nashville, TN  37219

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    KATRIN MILLER
                                    Assistant District Attorney
                                    102 Metropolitan Courthouse
                                    Nashville, TN  37201                    

Judge: SMITH

First Paragraph:

Appellant Dewaine Leggs pled guilty to aggravated assault in the
Davidson County Criminal Court.  As a Range I standard offender,
Appellant received a sentence of six years in the workhouse.  In this
direct appeal, Appellant presents the following issue for review:
whether his sentence is excessive. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/LEGGS_OPN.WP6
Opinion-Flash
        
STATE OF TENNESSEE
vs.
JOHNNY LOCKHART

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
Thomas N. DePersio                  Charles W. Burson
Attorney at Law                     Attorney General & Reporter
136 S. Illinois Ave., Suite 104     500 Charlotte Avenue
Oak Ridge, TN 37830                 Nashville, TN 37243-0497
(Appeal Only)
                                    Timothy F. Behan
Walter B. Johnson, II               Assistant Attorney General
Asst District Public Defender       450 James Robertson Parkway
502 Roane Street                    Nashville, TN 37243-0493
Harriman, TN 37748
(Trial Only)                        Charles E. Hawk
                                    District Attorney General
                                    P.O. Box 703
                                    Kingston, TN 37763-0703

                                    D. Roger Delp
                                    Asst District Attorney General
                                    P.O. Box 703
                                    Kingston, TN 37763-0703                        

Judge: Jones

First Paragraph:

The appellant, Johnny Lockhart, entered pleas of guilty to two counts
of attempting to commit murder in the second degree, a Class B felony,
following his pleas of guilty to the offenses.  The parties agreed the
appellant was to be sentenced as a Range I offender, but there was no
agreement regarding the length of the sentences to be imposed by the
trial court.  A sentencing hearing was conducted to determine the
length and manner of serving the sentences.  The trial court imposed a
Range I sentence consisting of confinement for ten (10) years in the
Department of Correction in each count.  The sentences are to be
served consecutively.  The effective sentence imposed by the trial
court was confinement for twenty (20) years.  The appellant contends
the sentences imposed are excessive. AFFIRMED.

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

NOAH H. LUNDY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:
Noah Harrison Lundy #72638          Charles W. Burson
N.E.C.C. 14-227                     Attorney General and Reporter
P. O. Box 5000  
Mountain City, TN  37683-5000       Eugene J. Honea
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    Randall E. Nichols
                                    District Attorney General
                                    City-County Building
                                    Knoxville, TN  37902                         

Judge: Hayes

First Paragraph:

The appellant, Noah H. Lundy, appeals the order of the Knox County
Criminal Court dismissing his pro se petition for post-conviction
relief alleging, inter alia, insufficient evidence and an excessive
and disproportionate sentence.  The trial court dismissed the petition
as being time-barred. AFFIRMED.

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

STATE OF TENNESSEE
vs.
MARIO PENDERGRASS

Court:TCCA

Attorneys:   

FOR THE APPELLANT					FOR THE APPELLEE
Charles W. Burson					David M. Siegel
Attorney General and Reporter		Sr. Assistant Public Defender
450 James Robertson Parkway			Office of the Metropolitan Public Defender
Nashville, TN  37243				1200 Stahlman Bldg.
									Nashville, TN  37201

Amy. L. Tarkington					Ross E. Alderman
Assistant Attorney General			Deputy Public Defender
450 James Robertson Parkway			Office of the Metropolitan Public Defender
Nashville, TN  37243				1200 Stahlman Bldg.
									Nashville, TN  37201

Mr. Tom Thurman
Assistant  District Attorney General
Mr. Robert Moore
Assistant District Attorney General
Washington Square Building
222 2nd Avenue No.
Nashville, TN  37201

Judge: LAFFERTY

First Paragraph:

On April 27, 1995, the state filed an application for extraordinary
appeal by permission pursuant to T.R.A.P. Rule 10 in this Court.  This
Court, on June 27, 1995, granted the State's application for
extraordinary appeal.  The State has presented two issues for review. 
(1) A trial court for Davidson County, subject to a motion to
suppress, granted the suppression of a portion of a first statement
made by the defendant, Mario Pendergrass, but refused to suppress two
additional statements.  Subsequently, the trial court held that
although his suppression ruling was legally correct, the trial court
did not feel it fair to introduce these legally admissible statements
in a capital case and would not admit these statements unless the
State withdrew its notice of intent to seek the death penalty.  Did
the trial court commit error?  (2) Did the trial court commit error in
denying the, State?s motion to recuse itself based on its ruling that
the trial court would suppress the legally admissible statements
unless the State, withdrew its notice of intent to seek the death
penalty? REVERSED IN PART; AFFIRMED IN PART.

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

DEVITO S. POLK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
A C Wharton                         Charles W. Burson
Shelby Co. Public Defender          Attorney General & Reporter 

Diane Thackery                      M. Allison Thompson
Assistant Public Defender           Counsel for the State
201 Poplar, Second Floor            450 James Robertson Parkway
Memphis, TN 38103                   Nashville, TN 37243-0493
    
Edward G. Thompson                  John W. Pierotti
Assistant Public Defender           District Attorney General 
212 Adams Street    
Memphis, TN 38103                   Reginald R. Henderson
                                    Asst. Dist. Attorney General
                                    201 Poplar, Third Floor
                                    Memphis, TN 38103                         

Judge: SUMMERS

First Paragraph:

The appellant, Devito Polk, pled guilty to second degree murder and
was sentenced to 35 years as a Multiple Range II offender.  His
sentence was to be served concurrently with seven pending aggravated
robbery charges.  He, thereafter, filed a post-conviction petition
alleging ineffective assistance of counsel and an unknowing and
involuntary plea.  He appeals the denial of the petition.  He raises
the following issues for our review:  (1) whether he knowingly and
intelligently entered his plea of guilty; and  (2) whether he received
ineffective assistance of counsel. AFFIRMED.

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

STATE OF TENNESSEE
vs.
STEVEN TERRENCE RUSSELL

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:

LARRY E. FITZGERALD                 CHARLES W. BURSON
22 N. Second Street, Ste. 410       Attorney General and Reporter
Memphis, TN  38103      
                                    MARY ANNE QUEEN
                                    Legal Assistant

                                    ELLEN H. POLLACK
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    ROBERT RADFORD
                                    District Attorney General

                                    VICKY SNYDER
                                    Assistant District Attorney
                                    P. O. Box 94
                                    Paris, TN  38242
                                    
Judge: SMITH

First Paragraph:

Appellant Steven Terrence Russell pled guilty in the Henry County
Circuit Court to possession of cocaine in excess of 0.5 grams with
intent to sell or deliver and to possession of marijuana.  As a Range
I standard offender, he received an effective sentence of ten years in
the Tennessee Department of Correction.  In this appeal, Appellant
presents the following issues: (1) whether the trial court erred in
denying his motion to suppress evidence seized during his arrest; and
(2) whether his sentence is excessive. AFFIRMED.

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

JIMMY LESLIE SLUDER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:    

FOR THE APPELLANT:                  FOR THE APPELLEE:
DONALD A. BOSCH                     CHARLES W. BURSON
Attorney for Appellant              Attorney General & Reporter
BOSCH & LUSK, P.C. 
2000 First Tennessee Plaza          MICHAEL J. FAHEY, II
800 South Gay Street                Assistant Attorney General
Knoxville, TN  37929                450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    RANDALL E. NICHOLS
                                    District Attorney General

                                    MARSHA SELECMAN
                                    Asst District Attorney General
                                    Dist Atty General's Office
                                    City-County Building 
                                    Knoxville, TN  37929                          

Judge: WOODALL

First Paragraph:

The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the denial of his petition for
post-conviction relief by the Knox County Criminal Court.  AFFIRMED.

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

MICHAEL SOUTH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:
ROBERT C. IRBY                      CHARLES W. BURSON
4345 Malory Ave., E                 Attorney General and Reporter
Memphis, TN 38111           
                                    DEBORAH A. TULLIS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    KEVIN R. RARDIN
                                    Assistant District Attorney
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN 38103-1947                          

Judge: RILEY

First Paragraph:

This is an appeal from the trial court's dismissal of a
post-conviction relief petition.  The appellant, Michael South, was
convicted of aggravated rape and aggravated robbery and sentenced to
serve 60 years and 30 years, respectively.  The sentences were ordered
to be served consecutively.  AFFIRMED.

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

DELTA RAY VANDYGRIFF
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
SHARA A. FLACY                      CHARLES W. BURSON
Public Defender                     Attorney General & Reporter

JOHN R. WINGO                       KAREN M. YACUZZO
Asst. Public Defender               Asst. Attorney General
128 N. Second St.                   450 James Robertson Pkwy.   
P.O. Box 1208                       Nashville, TN  37243-0493
Pulaski, TN   38478             
                                    MIKE BOTTOMS
                                    District Attorney General

                                    ROBERT SANDERS
                                    Asst. District Attorney General
                                    10 Public Sq.   
                                    Columbia, TN   38401                        

Judge: PEAY

First Paragraph:

The petitioner was convicted by a jury of assault with intent to
commit murder in the first degree and sentenced to twenty-seven years
enhanced by an additional consecutive five years for use of a deadly
weapon, for a total of thirty-two years.  His conviction was affirmed
on direct appeal.  In this petition for post conviction relief, the
petitioner complains of the lower court's refusal to appoint an expert
and he claims that he received ineffective assistance of counsel at
trial. AFFIRMED.

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

STATE OF TENNESSEE
vs.
JAMES WEB

Court:TCCA

Attorneys:     

For the Appellant:                  For the Appellee:
Tom Crider                          Charles W. Burson
District Public Defender            Attorney General and Reporter
    
Laura Rule Hendricks                Robin L. Harris
Appellant Contract Attorney         Assistant Attorney General                      
for the District Public Defender    Criminal Justice Division
810 Henley Street                   450 James Robertson Parkway
Knoxville, TN  37902                Nashville, TN 37243-0493                
                        
                                    Clayburn L. Peeples
                                    District Attorney General
                                    109 East First Street
                                    Trenton, TN  38382                     

Judge: Hayes

First Paragraph:

The appellant, James Webb, was convicted by a jury in the Circuit
Court of Haywood County of the aggravated rape of his daughter.  Tenn.
Code Ann. S 39-2-603 (1982)(repealed 1989).  The trial court sentenced
the appellant as a standard, range I offender to eighteen (18) years
in the Tennessee Department of Correction.  Tenn. Code Ann.
S40-35-112(a)(1) (1990).  AFFIRMED.

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

STATE OF TENNESSEE
vs.
ROBERT ARTHUR WHITE

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:
G. STEVEN DAVIS                     CHARLES W. BURSON
District Public Defender            Attorney General & Reporter
P.O. Box 742 
Dyersburg, TN  38025-0742           LISA T. KIRKHAM
                                    Assistant Attorney General
                                    Second Floor, Cordell Hull Bldg
                                    426 5th Avenue North
                                    Nashville, TN   37243

                                    C. PHILLIP BIVENS
                                    District Attorney General
                                    P.O. Box E
                                    Dyersburg, TN  38025                     

Judge: WOODALL

First Paragraph:

The Appellant appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Appellant was convicted of escape
at a jury trial in Lake County Circuit Court.  The trial court
sentenced the Appellant to one year and ten months as a Range I
Standard Offender to run consecutively to the sentence he was serving
at the time of his escape. AFFIRMED.

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

STATE OF TENNESSEE
vs.
JAMES RUSSELL WICKS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
MICHAEL J. FLANAGAN                 CHARLES W. BURSON
DALE M. QUILLEN                     Attorney General and Reporter
95 White Bridge Road #208
Nashville, TN 37205                 DEBORAH A. TULLIS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    DAN ALSOBROOKS
                                    District Attorney General

                                    SUZANNE LOCKERT
                                    Asst District Attorney General
                                    P.O. Box 580
                                    Charlotte, TN 37036                         

Judge: WELLES

First Paragraph:

This is an appeal pursuant to Rule 37(b)(2)(i) of the Tennessee Rules
of Criminal Procedure.  The Defendant pleaded guilty to possession of
marijuana for resale and possession of drug paraphernalia.  With the
agreement of the State and the trial court, he reserved a certified
question of law that is dispositive of the case.  The certified
question arose from the trial court's denial of a motion to suppress
evidence obtained through a consent search of the Defendant's
residence.  AFFIRMED.

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

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