TBALink Opinion-Flash

March 21, 1997 -- Volume #3 -- Number #032

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

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00-New Opinions From TSC
00-New Opinions From TSC-Rules
00-New Opinions From TSC-Workers Comp Panel
17-New Opinions From TCA
18-New Opinions From TCCA

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George Dean
TBALink Chief Editor


WILLIAM E. BERSCH
vs.
DEBRA K. GROETTUM (BERSCH) WEXLER

Court:TCA

Attorneys: 

M. Stanley Givens, Johnson City, for the Appellant
Edward Kershaw, Greeneville, for the Appellee                         

Judge: INMAN

First Paragraph:

These parties were divorced in Fairfax County, Virginia in March 1992.
 Custody of their two children was awarded to Mother. AFFIRMED

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

KENNETH EUGENE CAMPBELL
vs.
HEIDI ROBINSON and SARKES TARZIAN, INC.
    and
KENNETH EUGENE CAMPBELL
vs.
TIMES PRINTING COMPANY, MARK CURRIDEN, and HEATHER SMITH

Court:TCA

Attorneys:                          

CHARLES G. WRIGHT, JR., Chattanooga for Appellant.
ROGER W. DICKSON, and WILLIAM P. EISELSTEIN, Miller & Martin,
     Chattanooga, for Appellees.

Judge: McMurray

First Paragraph:

These consolidated cases present two common issues for our
determination. In each case, the trial court dismissed the complaint
which sought damages for defamation.  The court determined that the
plaintiff, a public school teacher, was a public official for the
purposes of the law of defamation.  The court further found that the
complaints did not state a cause of action for defamation against a
public official.  We affirm the judgment of the trial court. AFFIRMED
AND REMANDED.

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

AMANDA LINN CASHION
vs.
EVELYN C. ROBERTSON, JR., in his capacity as Commissioner, 
Tennessee Dept. of Mental Health and Mental Retardation, 
and DON G. HOLT, in his capacity as Commissioner, 
Tennessee Dept. of Personnel

Court:TCA

Attorneys:   

For the Plaintiff/Appellant:            For the Defendants/Appellees:

Amanda Linn Cashion, Pro Se             John Knox Walkup
Memphis, Tennessee                      Attorney General and Reporter

                                        Sherry E. Martin
                                        Assistant Attorney General                       

Judge: KOCH

First Paragraph:

This appeal involves the Department of Mental Health and Mental
Retardation's dismissal of a probationary staff attorney because she
was "not fitting in."  After unsuccessfully seeking a declaratory
order from her former department, the Civil Service Commission, and
the Department of Personnel, the staff attorney filed an action in the
Chancery Court for Davidson County challenging her termination and
seeking back pay, expungement of her employment records, and
attorney's fees.  The trial court granted the motion to dismiss, and
the staff attorney has perfected this appeal.  While the trial court
properly held that it lacked subject matter jurisdiction over the
claims for monetary relief, it  erred by holding that it lacked
subject matter jurisdiction over the claim for declaratory relief.  We
have determined, however, that the complaint fails to state a claim
for a declaratory relief under Tenn. Code Ann. S 4-5-224 (1991). 
AFFIRMED AND REMANDED.

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

CECIL WAYNE CRAFT
vs.
PATRICIA CAROL CRAFT

Court:TCA

Attorneys: 

FOR APPELLANT:                      FOR APPELLEE:

A. RUSSELL WILLIS                   Not represented
WILLIS & KNIGHT
215 Second Avenue North
Nashville, Tennessee 37201                         

Judge: CANTRELL

First Paragraph:

The trial court granted both parties a divorce, granted custody of the
two children to the wife, set child support at $1,500 per month, and
divided the marital property.  On appeal, the husband challenges the
award of custody, the amount of child support, and the requirement
that the husband pay the wife $50,000 as her share of the equity in
the business that was awarded to him.  We affirm the trial court.
AFFIRMED AND REMANDED.

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

M. E. CUNNINGHAM (CLARK)
vs.
J. C. CUNNINGHAM

Court:TCA

Attorneys:                          

APPELLANT J. C. CUNNINGHAM Pro Se
MARTHA MEARES OF MARYVILLE and JOHN E. McDONALD OF OAK RIDGE FOR
     APPELLEE

Judge: Goddard

First Paragraph:

James C. Cunningham, appearing pro se, appeals a divorce decree
raising 11 separate issues.  See appendix.  Our review of the record
persuades us that, except as to issue five,  the only issue that
arguably could be considered as addressing the order appealed, this is
an appropriate case for affirmance under Rule 10(a) of this Court.  We
reached this conclusion because Mr. Cunningham's appeal as to the
other issue was not timely perfected. AFFIRMED AND REMANDED.

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

WILLIAM T. DePRIEST, GATES- PATE-McDANIEL, HENRY H. HEADDEN, 
JOEL P. MORRIS, MAURICE PINSON, RICHARD R. STANDEL, JR., 
and W. O. VAUGHN, JR.
vs.
1717-19 WEST END ASSOCIATES, a Tennessee Partnership, Mid-Town
Associates, a Tennessee Partnership, O'Hare, Sherrard & Roe, a
Tennessee Partnership, and John R. Voigt

Court:TCA

Judge: TODD

First Paragraph:

The appellees, O'Hare, Sherrod & Roe and John R. Voigt, have filed a
respectful petition to rehear calling attention to a typographical
error in the opinion of this Court in which the word, "cites" was
erroneously typed, "cities". On its own motion, this Court orders the
correction of said order.

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

ANDREA GIOVINO
vs.
BARRY KINCAID and EDDIE CAPLES

Court:TCA

Attorneys:  

For the Plaintiff/Appellant:            For the Defendants/Appellees:

E.E. Edwards, III                       Lisa M. Carson
EDWARDS & SIMMONS                       Franklin, Tennessee
Nashville, Tennessee
                       
Judge: KOCH

First Paragraph:

This appeal involves the forfeiture of $100,000 in currency used to
purchase one hundred pounds of marijuana from an undercover officer. 
A person claiming to be the innocent owner of a portion of the seized
funds filed a declaratory judgment action in the Circuit Court for
Williamson County asserting that the money had been seized illegally,
that she had been deprived of an opportunity to file a claim for the
money, and that the money should be returned.  The trial court
dismissed the complaint because the claimant had failed to exhaust her
administrative remedies under the Tennessee Drug Control Act.  We have
determined that the claimant was entitled to a portion of the
declaratory relief she sought and, therefore, vacate the order
dismissing her complaint. VACATED AND REMANDED.

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

LORI LEE GRISSOM (BROWN)
vs.
JEFFREY DONALD GRISSOM

Court:TCA

Attorneys:   

For the Plaintiff/Appellant:            For the Defendants/Appellees:

E.E. Edwards, III                       Lisa M. Carson
EDWARDS & SIMMONS                       Franklin, Tennessee
Nashville, Tennessee
                       
Judge: INMAN

First Paragraph:

This appeal came on to be heard upon the record from the Circuit Court
of Knox County and briefs filed on behalf of the respective parties. 
Upon consideration thereof, this Court is of the opinion that there is
reversible error in the trial court's judgment. VACATED and REMANDED.

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

KNOX COUNTY EDUCATION ASSOCIATION
vs.
THE KNOX COUNTY BOARD OF EDUCATION and EARL HOFFMEISTER,
Superintendent, of the Knox County School System

Court:TCA

Attorneys: 

For the Plaintiff/Appellant:            For the Defendants/Appellees:

E.E. Edwards, III                       Lisa M. Carson
EDWARDS & SIMMONS                       Franklin, Tennessee
Nashville, Tennessee                 

First Paragraph:

This cause was regularly heard and considered by the court.  IT IS NOW
ORDERED that the judgment of the Trial Court is affirmed in part,
reversed in part, and the cause remanded.  The costs of appeal are
adjudged to one-half to each party, for which execution may issue if
necessary.

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

MATTHEW CHRISTIAN LOCKABY b/n/f 
and mother, MARY ELIZABETH LOCKABY
vs.
CITY OF KNOXVILLE and JAMES T. HUSKEY

Court:TCA

Attorneys: 

HARRY WIERSEMA, JR., Knoxville, for Appellant.
SHARON E. BOYCE, Knoxville, for Appellee, City of Knoxville.                         

Judge: McMurray

First Paragraph:

The sole issue presented by the parties for our review is whether the
twelve month limitation period contained Section 29 20-305(b) of The
Governmental Tort Liability Act (T.C.A. S 29-20 101, et seq.), is
tolled by the filing of a claim with the Tennessee Claims Commission. 
The trial court correctly responded in the negative and dismissed the
plaintiff's complaint on motion of the defendant.  Nevertheles,
however, for reasons hereinafter stated, we vacate the judgment of the
court and remand the case to the trial court for further action.
VACATED AND REMANDED.

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

HEIRS OF THE ESTATE OF WILLIAM A. MCCALL, SR.
vs.
JOE E. JOHNSON

Court:TCA

Attorneys: 

PAUL R. WHITE
L. R. DeMARCO
Suite 400 Washington Square
214 Second Avenue North
Nashville, Tennessee 37201
    ATTORNEYS FOR PLAINTIFFS/APPELLANTS

JAMES E. ZWICKEL
1102 17th Avenue South
Suite 304
Nashville, Tennessee 37212
    ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiffs/appellants, the heirs of the estate of
William A. McCall, from a decision of the chancery court finding
Appellants did not have a foreign judgment against defendant/appellee,
Joe E. Johnson, subject to enforcement under the Uniform Enforcement
of Foreign Judgments Act because Appellee had satisfied his liability
under the judgment. REVERSED AND REMANDED.

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

MARLENA RUSSELL 
vs.
MARGARET CULPEPPER, Commissioner Of The Tennessee Department of
Employment Security, Duly Appointed Successor of James A. Davenport,
and CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY (Erlanger)

Court:TCA

Attorneys:      

HARRY BERKE OF CHATTANOOGA FOR APPELLANT
CHARLES W. BURSON, Attorney General and Reporter; KIMBERLY M. FRAYN,
     State of Missouri Bar No. 41766; and JENNIFER H. HANN, Deputy 
     Attorney General, OF NASHVILLE FOR MARGARET CULPEPPER
CARLOS C. SMITH and J. ROBIN ROGERS OF CHATTANOOGA FOR
     CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY

Judge: Goddard

First Paragraph:

Appellant, Marlena Russell, applied to the Tennessee Department of
Employment Security for unemployment compensation benefits.  The Board
of Review denied the Appellant's claim upon a finding that her
discharge was for misconduct connected with her work within the
meaning of T.C.A. 50-7-303(a)(2).  The Hamilton County Chancery Court
affirmed the decision of the Board of Review after determining that
substantial and material evidence supported the Board's finding of
misconduct connected with her employment. AFFIRMED AND REMANDED.

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

WILLIAM SMITH
vs.
MITCHELL BEARFIELD

Court:TCA

Attorneys: 

JAMES A. NIDIFFER, Johnson City, for Plaintiff-Appellee.
MICHAEL A. EASTRIDGE, Johnson City, for Defendant-Appellant.
                         
Judge: Franks

First Paragraph:

This dispute arose over the sale of a tractor.  The Trial Judge
determined the tractor was defective at the time of the sale, but had
been warranted otherwise, and he entered judgment for damages for the
purchaser for $6,421.47.  AFFIRMED AND REMANDED.

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

STATE OF TENNESSEE 
DEPARTMENT OF HUMAN SERVICES
vs.
JOE ERIC TAYLOR, SR.

Court:TCA

Attorneys: 

SHARON F. PATTERSON, Knoxville, for Appellant.
CHARLES W. BURSON, Attorney General and Reporter, and WILLIAM ASHBY
     SMITH, Assistant Attorney General, for appellee.

Judge: McMurray

First Paragraph:

This is an appeal from a judgment of the juvenile court of Knox County
wherein the court terminated the parental rights of the appellant
(defendant).  For reasons hereinafter stated, we reverse the judgment
of the trial court. REVERSED AND REMANDED.

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

PATRICIA UTLEY
vs.
DAVID CULLUM and TRUCK SALVAGE INC.

Court:TCA

Attorneys:

For the Plaintiff/Appellant:        For the Defendants/Appellees:

Frank C. Ingraham                   Tom Corts
Nashville, Tennessee                ORTALE, KELLEY, HERBERT,
                                    & CRAWFORD
Frank J. Scanlon                    Nashville, Tennessee
Nashville, Tennessee                          

Judge: KOCH

First Paragraph:

This appeal involves a dispute concerning the financial responsibility
for cleaning up environmental contamination on leased property.  After
the lease expired, the lessor filed suit in the Circuit Court for
Davidson County seeking to recover the expected costs to remediate the
contamination.  The lessee moved for summary judgment based on the
doctrine of res judicata, asserting that the lessor could have
asserted the claim in an earlier circuit court proceeding.  The trial
court granted the summary judgment, and the lessor has appealed.  We
affirm the summary dismissal of this complaint. AFFIRMED AND REMANDED.

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

BARBARA WILKINSON,  
PAUL WILKINSON, and 
BIT & PUMP, INC.    
vs.
ROBERT E. STINSON

Court:TCA

Attorneys:   

CARL R. OGLE, JR., OF JEFFERSON CITY FOR APPELLANTS
JEFFREY L. JONES OF DANDRIDGE and DALTON L. TOWNSEND OF KNOXVILLE FOR
     APPELLEE

Judge: Goddard

First Paragraph:

Barbara Wilkinson and her husband, Paul Wilkinson, and Bit & Pump,
Inc., appeal a judgment of the Circuit Court for Jefferson County,
finding that they were entitled to a total of $7500 damages for both
Mrs. Wilkinson's injuries, Mr. Wilkinson's loss of consortium, and
property damage to a vehicle owned by Bit & Pump, Inc. AFFIRMED AND
REMANDED.

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

MARSHA R. WILLIAMS
vs.
SEARS, ROEBUCK AND COMPANY, d/b/a SEARS

Court:TCA

Attorneys: 

MARSHA R. WILLIAMS
153 Twin Oaks Drive
Nashville, TN 37211
PRO SE/PLAINTIFF/APPELLANT

KEENE W. BARTLEY, #9889
Schulman, LeRoy & Bennett
501 Union Street, Suite 701
P.O. Box 190676
Nashville, TN 37219-0676
ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge: TODD

First Paragraph:

The plaintiff, Marsha R. Williams, has appealed from a jury verdict
and judgment dismissing her suit for personal injuries sustained in a
fall on the premises of the defendant, Sears, Roebuck & Company.
AFFIRMED AND REMANDED.

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

STATE OF TENNESSEE
vs.
UNTWON BISHOP, and EMANUEL COBB

Court:TCCA

Attorneys:

FOR THE APPELLANTS:                 FOR THE APPELLEE:

At Trial:                           CHARLES W. BURSON
DAVID HAMBLEN                       Attorney General & Reporter
307 S. Second St.
Union City, TN 38261                KAREN M. YACUZZO
                                    Assistant Attorney General
On Appeal:                          Criminal Justice Division
JAN R. PATTERSON                    450 James Robertson Parkway
225 W. Baltimore, Suite B           Nashville, TN 37243-0493    
Jackson, TN. 38301
                                    JAMES T. CANNON
Of Counsel on Appeal:               Asst District Attorney General
JOSEPH P. ATNIP                     27th Judicial District
District Public Defender            Union City, TN.  38261
P.O. Box 734
Dresden, TN 38225                          

Judge: SMITH

First Paragraph:

The defendants, Untwon Bishop and Emanuel Cobb, were both convicted of
aggravated robbery, a Class B felony, upon trial by jury in the
Criminal Court for Obion County.  As Range I offenders, each was
sentenced to the minimum sentence of eight years. In this appeal of
right the defendants contend that the evidence was insufficient to
prove that they were the perpetrators of the robbery and also that the
trial court committed plain error in giving a "dynamite charge" to the
jury.  Because we find that the evidence was insufficient to convict
Untwon Bishop, we reverse his conviction and dismiss the case.  Upon
examination of the jury instructions we also find reversible error
requiring a new trial for Emanuel Cobb. REVERSED AND DISMISSED -
UNTWON BISHOP. REVERSED AND REMANDED - EMANUEL COBB.

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

RANDOLPH W. BROBECK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellant:
Randolph Brobeck, pro se
Morgan County Regional           
Correctional Facility
P.0. Box 2000
Wartburg, TN  37887

For Appellee:

Charles W. Burson
Attorney General & Reporter

Eugene J. Honea
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN  37243-0493

Cecil C. Mills
Assistant District Attorney General
113 West Church Street
Greeneville, TN  37743                         

Judge: WADE

First Paragraph:

The petitioner, Randolph Brobeck, appeals from the trial court's
summary dismissal of his application for post-conviction relief.  The
single issue presented on review is whether the action was barred by
the statute of limitations.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
WILLIE LEWIS BROWN

Court:TCCA

Attorneys:                          

For the Appellant:                  For the Appellee:

Ardena J. Garth                     Charles W. Burson
District Public Defender            Attorney General and Reporter
    
Donna Robinson Miller               Eugene J. Honea
Asst. Public Defender               Assistant Attorney General             
701 Cherry Street, Suite 300        Criminal Justice Division
Chattanooga, TN 37402               450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    William H. Cox III
                                    District Attorney General

                                    David M. Denny
                                    Asst. District Attorney General
                                    600 Market Street
                                    Courts Building
                                    Chattanooga, TN  37402
                                    
Judge: Hayes

First Paragraph:

On January 28, 1993, the appellant, Willie Lewis Brown, entered guilty
pleas, pursuant to a plea agreement, in the Hamilton County Criminal
Court, to one count of especially aggravated robbery, one count of
especially aggravated burglary, two counts of attempted first degree
murder, and four counts of aggravated robbery.  Pursuant to the plea
agreement, the trial court imposed the minimum sentence within range I
for each of the eight offenses and ordered concurrent sentences for an
effective sentence of fifteen years. DELAYED APPEAL DISMISSED.

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

STATE OF TENNESSEE
vs.
GREGORY B. BUFFORD

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:

WALKER GWINN                        CHARLES W. BURSON
Assistant Public Defender           Attorney General and Reporter
201 Poplar Suite 2-01   
Memphis, TN  38103                  WILLIAM DAVID BRIDGERS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    PATIENCE BRANHAM
                                    Assistant District Attorney
                                    201 Poplar Avenue - 3rd Floor
                                    Memphis, TN  38103
                                    
Judge: SMITH

First Paragraph:


A Shelby County Criminal Court jury found Appellant Gregory B. Bufford
guilty of aggravated robbery.  As a Range I standard offender, he
received a sentence of ten years in the Tennessee Department of
Correction.  In this direct appeal, Appellant presents the following
issues for review: (1) whether the evidence presented at trial is
legally sufficient to sustain a conviction for aggravated robbery; (2)
whether the jury was properly instructed on eyewitness identification;
and (3) whether his sentence is excessive. AFFIRMED; SENTENCE 
MODIFIED.

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

STATE OF TENNESSEE
vs.
FREDERICK D. BUTLER, DEWAYNE B. BUTLER, AND ERIC D. ALEXANDER

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEES:

Charles W. Burson                   Leslie I. Ballin
Attorney General & Reporter         Attorney at Law
500 Charlotte Avenue                200 Jefferson Avenue, Suite 1250
Nashville, TN 37243-0497            Memphis, TN 38103
                                    (Counsel for Frederick D. Butler)
Kathy Morante
Deputy Attorney General             W. Mark Ward
450 James Robertson Parkway         Assistant Public Defender
Nashville, TN 37243-0493            147 Jefferson Avenue, Suite 900
                                    Memphis, TN 38103
John W. Pierotti                    (Counsel for Dewayne B. Butler)
District Attorney General
201 Poplar Avenue, Suite 301        William D. Massey
Memphis, TN 38103                   Attorney at Law
                                    3634 Austin Peay Highway
Terrell L. Harris                   Memphis, TN 38125
Asst District Attorney General      (Counsel for Eric D. Alexander)
201 Poplar Avenue, Suite 301            
Memphis, TN 38103                         

Judge: Jones

First Paragraph:

This Court granted the application of the State of Tennessee (state)
for an interlocutory appeal to determine whether the felony murder
aggravating circumstance can be used to enhance a life sentence to a
life sentence without the possibility of parole in a felony murder
case when the state does not seek a death sentence.  After a thorough
review of the record, the briefs submitted by the parties, and the law
governing the issue presented for review, it is the opinion of this
Court the judgment of the trial court denying the motion of Frederick
D. Butler to strike the felony murder aggravating circumstance from
the state's notice should be affirmed, and the judgment of the trial
court granting the motions of Dewayne B. Butler and Eric D. Alexander
should be reversed.  This cause is remanded to the trial court for
further proceedings consistent with this opinion. AFFIRMED IN PART AND
REVERSED IN PART.

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

STATE OF TENNESSEE
vs.
JAMES L. CARTER

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

MR. W. MARK WARD                    CHARLES W. BURSON
Assistant Shelby County             Attorney General & Reporter
Public Defender        
147 Jefferson, Suite 900   
Memphis, TN 38103                   DARIAN B. TAYLOR
                                    Attorney General's Office
A.C. WHARTON                        450 James Robertson Parkway
Shelby County Public Defender       Nashville, TN 37243

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    CHARLES BELL
                                    Assistant District Attorney
                                    Criminal Justice Complex
                                    3rd Floor
                                    Memphis, TN 38103                         

Judge: BROWN

First Paragraph:

The appellant, James L. Carter, was convicted of the offense of murder
in the first degree and sentenced to life in prison.  He has appealed
from that conviction, alleging the following:  1) that the
constitutional provisions against double jeopardy should act to
preclude his retrial after a previous trial ended in a mistrial, 2)
that the testimony of two witnesses should not have been admitted
because the state failed to preserve the testimony of those witnesses
from the preliminary hearing, 3) that the evidence was insufficient to
convict of murder in the first degree, and 4) that it was error to
admit testimony that the victim had stated before her death that the
appellant had threatened her.  After a careful review of the record we
find no reversible error, and we therefore affirm the conviction.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
GREGG DUNCAN

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

S. Dwayne Jollay                    Charles W. Burson
2224 Branner Ave.                   Attorney General of Tennessee
Jefferson City, TN 37760                and
(AT TRIAL)                          Timothy F. Behan
                                    Asst Attorney General of Tenn
Carl R. Ogle, Jr.                   Criminal Justice Section
P.O. Box 129                        450 James Robertson Parkway
Jefferson City, TN 37760            Nashville, TN 37243-0493
(ON APPEAL)
                                    Alfred C. Schmutzer, Jr.
                                    District Attorney General
                                    Sevier County Courthouse
                                    Sevierville, TN 37862
                                        and
                                    James L. Gass
                                    Asst District Attorney General
                                    P.O. Box 70
                                    Dandridge, TN 37725                          

Judge: Tipton

First Paragraph:

The defendant, Gregg Duncan, was convicted in a jury trial in the
Jefferson County Circuit Court of robbery, a Class C felony.  He was
sentenced to serve five years as a Range I, standard offender.  The
defendant appeals as of right contending that the record contains
insufficient evidence corroborating the testimony of two accomplices
and that his sentence is excessive.  We disagree with the defendant's
claims and affirm the defendant's conviction and sentence. AFFIRMED.

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

STATE OF TENNESSEE
vs.
JEHIEL FIELDS

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

D. Mitchell Bryant                  John Knox Walkup
260 N. Ocoee Street                 Attorney General of Tennessee
Cleveland, TN 37364-0161                and             
                                    Elizabeth T. Ryan
                                    Asst Attorney General of Tenn                   
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    Jerry N. Estes
                                    District Attorney General                               
                                    203 E. Madison Ave.                             
                                    Athens, TN 37303 0647
                                        and                 
                                    Joseph A. Rehyansky
                                    Asst District Attorney General
                                    P.O. Box 1351
                                    Cleveland, TN 37364-1351                         

Judge: Tipton

First Paragraph:

The defendant, Jehiel Fields, appeals as of right from his conviction
by a jury in the Bradley County Criminal Court for first degree murder
and especially aggravated burglary, a Class B felony.  He was
sentenced to life imprisonment and to eight years in the custody of
the Department of Correction as a Range I, standard offender,
respectively.  The sentences are to be served concurrently. CONVICTION
FOR FIRST DEGREE MURDER AFFIRMED; CONVICTION FOR ESPECIALLY AGGRAVATED
BURGLARY REDUCED TO AGGRAVATED BURGLARY AND REMANDED FOR RESENTENCING.

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

STATE OF TENNESSEE
vs.
BILLY E. JOHNSON, AKA WILLIAM E. JOHNSON

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Tony N. Brayton                     John Knox Walkup
Assistant Public Defender           Attorney General and Reporter
201 Poplar - Second Floor                           
Memphis, TN 38103
(At trial)                          Deborah A. Tullis
                                    Assistant Attorney General
William D. Massey                   450 James Robertson Parkway
3074 East Street                    Nashville, TN 37243-0493
Memphis, TN 38128
(On appeal)
                                    John W. Pierotti
                                    District Attorney General

                                    David C. Henry
                                    Assistant District Attorney
                                    201 Poplar - Third Floor
                                    Memphis, TN 38103                         

Judge: Barker

First Paragraph:

This is an appeal as of right by appellant, Billy E. Johnson,
following his convictions in the Shelby County Criminal Court of
aggravated assault, driving on a revoked license, fifth offense, and
leaving the scene of an accident.  As a career offender, appellant
received a twelve (12) year sentence for the aggravated assault
conviction.  He received six (6) month sentences to be served at
seventy (70) percent in the workhouse on the misdemeanor offenses. 
All sentences are to be served concurrently. AFFIRMED.

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

STATE OF TENNESSEE
vs.
TREMAILE MALONE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

ASHLEY L. OWNBY                     CHARLES W. BURSON
180 North Ocoee Street              Attorney General and Reporter
P. O. Box 176
Cleveland, TN  37364-0176           HUNT S. BROWN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    JERRY N. ESTES
                                    District Attorney General

                                    SHARI TAYLOE
                                    Assistant District Attorney
                                    P. O. Box 1351
                                    Cleveland, TN  37364-1351                        

Judge: SMITH

First Paragraph:

A Bradley County Criminal Court jury found Appellant Tremaile Malone
guilty of rape.  As a Range I standard offender, he received a
sentence of eight years in the Tennessee Department of Correction.  In
this direct appeal, Appellant presents the following issues for
review: (1) whether the trial court erred in refusing to grant a
mistrial following the State's use of a peremptory challenge to remove
an African-American from the jury pool; and (2) whether the trial
court erred in excluding evidence of the victim's prior sexual
conduct. AFFIRMED.

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

STATE OF TENNESSEE
vs.
DAVID McCLAIN

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:


EDWARD G. THOMPSON                  CHARLES W. BURSON
Asst. Public Defender               Attorney General & Reporter
616 Adams Ave.
Memphis, TN  38103                  SARAH M. BRANCH                    
(on appeal)                         Counsel for the State
                                    450 James Robertson Pkwy.
A.C. WHARTON                        Nashville, TN  37243-0493
Public Defender
Criminal Justice Complex            JOHN W. PIEROTTI
201 Poplar St.                      District Attorney General
Memphis, TN  38103
     (at trial)                     DANIEL R. WOODY
                                    Asst. District Attorney General
                                    Criminal Justice Complex
                                    Third Floor, 201 Poplar 
                                    Memphis, TN  38103                          

Judge: PEAY

First Paragraph:

The defendant was indicted in March 1995 on one count of forgery, a
Class E felony.  He pled guilty to the charge and was sentenced as a
Range III persistent offender to four years in the Shelby County
Correctional Center.  He petitioned the court to suspend the remainder
of his sentence and place him on Community Corrections.  The court
denied his request and it is from this denial that he now appeals. 
After a review of the record, we find that the trial court was not in
error, and we affirm. AFFIRMED.

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

STATE OF TENNESSEE
vs.
ANGELA MOORE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Joe H. Walker                       John Knox Walkup
Public Defender                     Attorney General of Tennessee
     and                                and
Walter B. Johnson, II               Hunt S. Brown
Assistant Public Defender           Asst Attorney General of Tenn         
P.O. Box 334                        450 James Robertson Parkway     
Harriman, TN 37748                  Nashville, TN 37243-0493

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

Judge: Tipton
                    
First Paragraph:

The defendant, Angela Moore, was convicted upon her plea of guilty in
the Roane County Criminal Court of the offense of simple possession of
cocaine, a Class A misdemeanor.  She received a suspended sentence of
eleven months and twenty-nine days and a fine of seven hundred and
fifty dollars.  She appeals as of right upon a certified question of
law that is dispositive of this case.  See T.R.A.P. 3(b); Tenn. R.
Crim. P. 37(b).  She contends that the trial court erred by denying
her motion to suppress cocaine and a pipe that was seized from her in
violation of her Fourth Amendment rights.  In support, she argues that
the police stopped her without having reasonable suspicion to believe
that she had committed a crime and then unreasonably searched her
pockets.  We conclude that the defendant's Fourth Amendment rights
were not violated and affirm the decision of the trial court.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
DONALD RAY MUNSEY

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

Edward Cantrell Miller              Charles W. Burson
District Public Defender            Attorney General and Reporter
    
Lu Ann Ballew                       Elizabeth T. Ryan
Asst. Public Defender               Assistant Attorney General             
P. O. Box 416                       Criminal Justice Division
Dandridge, TN  37725                450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    Alfred C. Schmutzer, Jr.
                                    District Attorney General

                                    Richard Vance
                                    Asst. District Attorney General
                                    Sevierville Courthouse
                                    Sevierville, TN                          

Judge: Hayes

First Paragraph:

The appellant, Donald Ray Munsey, appeals his convictions by a
Grainger County jury for aggravated burglary, a class C felony, arson,
also a class C felony, and public intoxication, a class C misdemeanor.
The trial court imposed concurrent sentences of six years
incarceration in the Tennessee Department of Correction for the
aggravated burglary and the arson convictions.  Additionally, the
trial court imposed a sentence of thirty days incarceration in the
Grainger County Jail for the public intoxication conviction and
ordered that the appellant serve the sentence concurrently with the
sentences for the felony convictions. AFFIRMED IN PART; REVERSED IN
PART.

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

STATE OF TENNESSEE
vs.
DONALD PHILLIPS a.k.a. DONALD ROSS

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE

A.C. Wharton, Jr.                   John Knox Walkup
District Public Defender            Attorney General and Reporter
201 Poplar Avenue, Ste. 201         450 James Robertson Parkway
Memphis, Tennessee 38103-1947       Nashville, Tennessee 37243 0493
                    
Walker Gwinn                        Clinton J. Morgan
Assistant Public Defender           Assistant Attorney General
201 Poplar Avenue, Ste. 201         450 James Robertson Parkway
Memphis, Tennessee 38103-1947       Nashville, Tennessee 37243 0493

William Moore                       J. Robert Carter, Jr.
Assistant Public Defender           Assistant Attorney General
201 Poplar Avenue, Ste. 201         201 Poplar Avenue, 3rd Floor
Memphis, Tennessee 38103-1947       Memphis, Tennessee 38103-1947                          

Judge: Barker

First Paragraph:

The Appellant, Donald Phillips, appeals as of right his Shelby County
conviction of robbery.  He was sentenced to seven years imprisonment. 
He argues on appeal that the evidence presented at trial was
insufficient for the jury to find him guilty of robbery.  After a
careful review of the record on appeal we find that there is no merit
to the Appellant's claim and, therefore, affirm his conviction and
sentence. AFFIRMED.

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

ANTHONY SMITH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For Appellant:
Margaret C. Lamb
Assistant Public Defender
Office of District Public Defender
142 East Market Street
Johnson City, TN  37601


For Appellee:

Charles W. Burson
Attorney General & Reporter

Elizabeth T. Ryan
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN  37243-0493

Joe Crumley, Michael J. LaGuardia, and William R. Mooney
Assistant District Attorneys General
P.O. Box 38
Jonesborough Courthouse
Jonesborough, TN  37659                          

Judge: WADE

First Paragraph:

The petitioner, Anthony Smith, appeals from the trial court's summary
dismissal of his application for post-conviction relief.  The single
issue presented on review is whether the trial court erred by
dismissing the pro se petition without an evidentiary hearing after
finding that the statute of limitations had expired. AFFIRMED.

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

STATE OF TENNESSEE
vs.
GERALD ROBERT STEVENS, LAURIE ANN WILLIAMS, 
JAMES DARREN BROTHERS

Court:TCCA

Attorneys: 

FOR THE APPELLANTS:                 FOR THE APPELLEE:

DAVID H. HORNIK                     CHARLES W. BURSON
Attorney for Stevens                Attorney General & Reporter
(trial & appeal)        
Attorney for Williams 
(appeal only)
222 Second Ave. N.                  DEBORAH A. TULLIS
Suite 360M                          Assistant Attorney General
Nashville, Tennessee 37201          450 James Robertson Pkwy.
                                    Nashville, Tennessee 37243 0493
VICTORIA L. DIBONAVENTURA       
Attorney for Williams               ROBERT G. RADFORD
(trial only)                        District Attorney General
209 West Wood St.                   
Paris, Tennessee 38242
                                    VICKI SNYDER
ERIC D. KINSOLVING                  Asst. District Attorney General
Attorney for Brothers               P.O. Box 686
(appeal only)                       Huntingdon, Tennessee 38344
222 Second Ave.N.                   
Suite 360M                      
Nashville, Tennessee                
                            
MICHAEL L. AINLEY
Attorney for Brothers 
(trial only)
123 North Poplar
Paris, Tennessee 38242                         

Judge: RILEY

First Paragraph:

Gerald Stevens, Laurie Williams, and James Brothers appeal as of right
from a jury verdict of guilty for the manufacture of a Schedule II
controlled substance (methamphetamine) and possession of unlawful drug
paraphernalia.  For the manufacture of a Schedule II controlled
substance, Stevens was sentenced to five years and Williams and
Brothers to three years and six months incarceration in the Tennessee
Department of Correction.  For possession of unlawful drug
paraphernalia, Stevens, Williams, and Brothers were sentenced to 11
months and 29 days in the county jail.  All sentences are to be served
concurrently.    The jury further fined each defendant $100,000 for
the manufacture of the controlled substance and $2,500 for possession
of unlawful drug paraphernalia.  Defendants present four issues for
our review: 1) whether the evidence was sufficient to sustain
defendants' convictions for the manufacture of a schedule II
controlled substance and possession of unlawful drug paraphernalia; 2)
whether the trial court erroneously  admitted certain photographs and
items seized  from defendants' residence; 3) whether the trial court
improperly allowed use of the term "precursor" by the state's
witnesses; and 4) whether the affidavit in the search warrant was
sufficient. AFFIRMED.

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

GREGORY D. WILLIAMS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:


GREGORY D. WILLIAMS, pro se         CHARLES W. BURSON
West Tennessee High Security        Attorney General & Reporter
P.O. Box 1050
Henning, TN  38041                  ELLEN H. POLLACK                                    
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    REGINALD HENDERSON
                                    Asst. District Attorney General
                                    Criminal Justice Complex
                                    Third Floor
                                    201 Poplar  
                                    Memphis, TN  38103                       

Judge: PEAY

First Paragraph:

The petitioner appeals from the trial court's dismissal of his
petition for post-conviction relief.  In this appeal as of right, the
petitioner contends that the trial court erred in dismissing his
petition.  We disagree and affirm the action of the trial court.
AFFIRMED.

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

ARTHANIEL L. WOMBLE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

A. Christian Lanier, III            Charles W. Burson
Suite 150, 615 Lindsay Street       Attorney General and Reporter
Chattanooga, TN  37403  
                                    Darian B. Taylor
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    William H. Cox III
                                    District Attorney General

                                    Thomas Evans
                                    Asst. District Attorney General
                                    Courts Building
                                    600 Market Street
                                    Chattanooga, TN  37402                        

Judge: Hayes

First Paragraph:

The appellant, Arthaniel L. Womble, appeals the dismissal of his
petition for post-conviction relief by the Criminal Court of Hamilton
County.  The appellant is currently incarcerated in the Department of
Correction pursuant to his conviction, on January 9, 1992, for
conspiracy to possess more than three hundred grams of cocaine.  The
appellant asserts that his trial counsel was ineffective under the
Sixth Amendment to the United States Constitution and Article I,
Section 9 of the Tennessee Constitution. Following a thorough review
of the record, we affirm the judgment of the post-conviction court.
AFFIRMED.

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

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