TBALink Opinion-Flash

June 27, 1997 -- Volume #3 -- Number #065

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 Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
00-New Opinons From TCCA

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George Dean
TBALink Chief Editor


LUTHER T. BECKETT
vs.
GAYLORD ENTERTAINMENT
COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee:

George E. Couple, Jr.               Richard K. Smith
172 Second Avenue, North            Christina Norris
Suite 218                           Fifth Floor, Noel Place
Nashville, TN 37201                 200 Fourth Avenue, North
                                    Nashville, TN 37219                          

Judge: INMAN

First Paragraph:

The issue is whether the defendant should be estopped to plead the bar
of the Statute of Limitations.  The trial judge ruled that waiver and
estoppel were not implicated and dismissed the suit. AFFIRMED.

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

CALSONIC YOROZU CORPORATION and 
YASUDA FIRE AND MARINE INSURANCE
COMPANY OF AMERICA
vs.                                              
SULAY LAMIN

Court:TSC - Workers Comp Panel

Attorneys:   

FOR THE APPELLANT:                    FOR THE APPELLEES:

MICHELLE M. BENJAMIN                  B. TIMOTHY PIRTLE     
P.O. Box 177                          Suite 302, City Bank Bldg.
Winchester, TN 37398                  McMinnville, TN 37110                         

Judge: RUSSELL

First Paragraph:

Sulay B. Lamin was an assembly line worker for Calsonic Yorozu
Corporation.  He underwent surgery for a herniated lumbar disc and
claimed that the condition was a compensable injury.  Two issues of
fact were dispositive:  (1) was the disc herniated in the course and
scope of Mr. Lamin's employment; and (2) if so, was the statutory
notice requirement complied with or waived. AFFIRMED.

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

DAVID H. CRENSHAW, SR.
vs.
ATS SOUTHEAST, INC.

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellant:                  For the Appellee:

Fred C. Dance                       Charles Abbott
Dance, Dance & Lane                 Abbott & Burlison
3200 West End Ave., Ste. 101        6263 Poplar Ave., Ste. 1130
Nashville, TN  37203                Memphis, TN  38119
                       

Judge: BYERS

First Paragraph:

This is an appeal by the employer from an order of the trial court
setting aside a previously issued order of dismissal for failure to
prosecute a workers' compensation case within one year under the local
rules of court for Davidson County.  The trial court set aside the
dismissal order under Rule 60.02, Tenn. R. Civ. p. AFFIRMED.

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

EMPIRE BEROL, U. S. A.
vs.
NANCY LEE ESTES

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellee:

Fred B. Hunt, Jr.                   Jerry W. Carnes
202 First National Bank Bldg        Jennifer A. Lawrence
P. O. Box 169                       424 Church Street
Shelbyville, TN 37160-0169          SunTrust Center, 14th Floor
                                    Nashville, TN 37219-2392
                         
Judge: INMAN

First Paragraph:

The posture of this case is somewhat unusual.  The plaintiff is Empire
Berol U.S.A., the employer of the defendant Nancy Lee Estes.  It
sought a declaratory judgment on March 11, 1993 of the respective
rights of the parties under the workers' compensation law, alleging
that Estes was asserting a job-related accident resulting in physical
injury.  Estes filed her answer, admitting that she was injured, but
that her condition was one that progressively occurred and was not
diagnosed as carpal tunnel syndrome until December 28, 1992.  About
four months later, Estes filed another answer, coupled with a
counter-claim, through different counsel, in which she alleged that
she sustained an injury by accident on or about November 17, 1992
during the course of her employment by the plaintiff. AFFIRMED.

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

DARLA GAIL FARMILOE
vs.
SATURN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellee:

Thomas H. Peebles, IV               J. Anthony Arena
Dana C. McLendon, III               Schulman, LeRoy & Bennett
Waller Lansden Dortch & Davis       501 Union Building, 7th Floor
809 South Main Street, # 300        P. O. Box 190676
P. O. Box 1035                      Nashville, TN 37219-0676
Columbia, TN 38402-1035                         

Judge: INMAN

First Paragraph:

This complaint was filed June 23, 1994.  The plaintiff alleged that
she sustained various job-related injuries arising from her
employment, the first being November 21, 1991 involving upper back and
shoulder pain which developed gradually.  The defendant admitted the
report of these injuries. MODIFIED.

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

CAROLE SIMPSON
vs.     
SATURN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:                  For the Appellee:

Thomas H. Peebles, IV               N. Houston Parks
Dana C. McLendon                    TRABUE, STURDIVANT & DeWITT
WALLER, LANSDEN, DORTCH             Columbia, Tennessee
    & DAVIS                 
Columbia, Tennessee                        

Judge: Brandt

First Paragraph:

Saturn Corporation appeals from the trail court's award of permanent
partial benefits based upon a 65% disability to the whole body.  The
fundamental issue is whether the plaintiff's disability from
depression is caused by her work injury at Saturn.   The Court
concludes that it is and affirms the trial court. AFFIRMED.

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

BILLIE DOVETA SMITHERS
vs.                                          
RUSSELL STOVER CANDIES, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

FOR THE APPELLANT:                      FOR THE APPELLEES:

OWEN R. LIPSCOMB                        KELLY R. WILLIAMS     
WATKINS, McGUGIN, McNEILLY & ROWAN      P.O. Box 608              
Suite 300, 214 Second Avenue North      Livington, TN 38570       
Nashville, TN 370201                            

Judge: RUSSELL

First Paragraph:

Billie D. Smithers, a 33 year old married woman, injured her back at
work on April 22, 1993, by lifting tubs of candy.  The injury was
promptly reported, initially manifesting itself by pelvic pain and
vaginal bleeding.  Several days later she began experiencing low back
pain and leg numbness.  She in time was seen by a multiplicity of
physicians.  At the conclusion of the trial of this case it was the
judgment of the trial court that Mrs. Smithers suffered a back injury
in the course and scope of her employment by the defendant, and she
retained a 12% vocational impairment to the body as a whole. AFFIRMED.

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

SSI SERVICES, INC.
vs.
HOWARD L. BAKER

Court:TSC - Workers Comp Panel

Attorneys:                          

For the Appellant:                  For the Appellee:

H. Thomas Parsons                   Gary S. Napolitan
Parsons, Nichols & Johnson          D. Scott Bennett
101 West Main Street                Leitner, Williams, Dooley 
Manchester, TN 37355                 & Napolitan
                                    Third Floor, Pioneer Building
                                    Chattanooga, TN 37402
                                    
Judge: INMAN

First Paragraph:

This action began as one for a declaratory judgment under the workers'
compensation laws that the accident suffered by the employee
("hereafter, plaintiff") resulted in minimal impairment only.  The
plaintiff counterclaimed, alleging that he sustained a job-related
rotator cuff tear of his left shoulder with a biceps tendon tear
requiring surgical repair on May 20, 1993, and that he aggravated the
condition in the Spring of 1994 when further surgery was required.
MODIFIED.

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

BOBBY STEPHEN CANNON
vs.
TERRI LYN LIVINGSTON CANNON
and 
BETTY LIVINGSTON

Court:TCA

Attorneys: 

For Appellant                       For Appellee Terri Lyn
                                    Livingston Cannon

F. D. GIBSON                        R. D. HASH
KEVIN TEFFETELLER                   Maryville, Tennessee
Maryville, Tennessee

                                    For Appellee Betty Livingston
                                    NO APPEARANCE
                         
Judge: Susano

First Paragraph:

This is a post-divorce dispute concerning the custody of Tabitha LeAnn
Cannon, age ten.  The order of the trial court, from which this appeal
was taken, denied the petition of the child's father, Bobby Stephen
Cannon (Father), for change of custody.  Instead, the trial court
continued the child's custody in her mother, Terri Lyn Livingston
Patterson (Mother), who had been granted sole legal custody of the
child when she and Father were divorced on February 12, 1987.  On this
appeal, Father initially raised two issues.  He argued that the trial
court abused its discretion in failing to change custody.  He also
contended in his brief that "the trial court erred in awarding legal
fees to a non successful intervening party," i.e., the child's
maternal grandmother, Betty Livingston (Intervening Party). AFFIRMED
AND REMANDED.

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

CINDA KAY CANTRELL
vs.
JAMES CLARENCE CANTRELL
and
MARIE LOYA

Court:TCA

Attorneys: 

For the Plaintiff/Appellant:            For the Defendant/Appellee:

Louise R. Fontecchio                    Michael K. Radford       
Nashville, Tennessee                    Nashville, Tennessee

For the Intervenor/Appellee:

John Aaron Holt
Nashville, Tennessee                         

Judge: LILLARD

First Paragraph:

This is a divorce case involving the division of marital property. 
Among other things, the trial court found that $30,000 from the
husband's mother was a loan to the husband and wife, and the wife
appeals. We affirm. AFFIRMED.

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

MIKE T. HUNTER
vs.
DAMIAN V. BURKE; and    
DONNIE WEAR and JOE GUFFEY,  
individually and doing business
as J&D AUTO SALES
and
EDWIN THOMPSON, also known  
as EDWARD THOMPSON

Court:TCA

Judge: Susano

First Paragraph:

The appellants Wear and Guffey have filed a petition for rehearing in
which they argue that our opinion overlooks material facts in the
record.  They contend that these "overlooked" facts made out a
question for the jury; hence, so the argument goes, the trial judge
committed error when he directed a verdict against them.  They also
argue that we were wrong when we held that the failure of the trial
judge to instruct the jury regarding the principles of comparative
fault was harmless.

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

JAMES THIGPEN
vs.
FIRST CITY BANK

Court:TCA

Attorneys: 

For the Plaintiff/Appellant:            For the Defendant/Appellee:

Gregory L. Cashion                      David B. Scott      
Carol R. Connor                         Nashville, Tennessee  
Nashville, Tennessee                                         

Judge: LILLARD

First Paragraph:

This case is an appeal of the trial court's denial of a Rule 60.02
motion to set aside an order of  summary judgment.  We affirm the
decision of the trial court. AFFIRMED.

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

DIANE SLAWSON WATTERS
vs.
WILLIAM G. WATTERS and
GENERAL MILLS, INC.

Court:TCA

Attorneys:  

James D. Causey, Memphis, Tennessee
Jean E. Markowitz, Memphis, Tennessee
Attorneys for Defendant/Appellant William G. Watters.

Daniel D. Warlick, Nashville, Tennessee
Attorney for Plaintiff/Appellee.                        

Judge: FARMER

First Paragraph:

This case concerns the dissolution of the fourteen year marriage of
William G. Watters (Husband) and Diane Slawson Watters (Wife). 
Husband has appealed from the final decree alleging error in the trial
court's classification and division of the marital estate, award of
alimony and calculation of child support and in certain evidentiary
rulings. AFFIRMED AS MODIFIED AND REMANDED.

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

GERALD WHITE
WHITE TRUCKING COMPANY
vs.
AQUARIUS INDUSTRIES, INC.,
d/b/a AQUARIUS-PINNACLE, INC.,  
PINNACLE FIBERGLASS, INC. and
PRAXIS INDUSTRIES, INC.

Court:TCA

Attorneys:    

Jeffrey Parrish; Reynolds & Reynolds
of Jackson, For Appellant
 
John Cook and Jennie D. Latta;
Krivcher, Magids, Neal, Cottam &
Campbell, P.C., of Memphis  
For Appellee                      

Judge: CRAWFORD

First Paragraph:

This appeal arises out of an action to collect a debt.  Plaintiff,
Gerald White, d/b/a Gerald White Trucking Company (White), appeals
from the order granting summary judgment in favor of defendant, Praxis
Industries, Inc. AFFIRMED.

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

STATE OF TENNESSEE
vs.
CHRISTOPHER M. BARHAM

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

Stephen P. Spracher                 John Knox Walkup
Assistant Public Defender           Attorney General and Reporter
227 West Baltimore                          
Jackson, TN 38301
(At trial)                          Mary M. Bers    
                                    Assistant Attorney General
George Morton Googe                 450 James Robertson Parkway
District Public Defender            Nashville, TN 37243-0493
227 West Baltimore
Jackson, TN 38301
(On appeal)                         James G. (Jerry) Woodall    
                                    District Attorney General

                                    James W. Thompson
                                    Assistant District Attorney
                                    225 Martin Luther King Drive
                                    Jackson, TN 38302                        

Judge: Barker

First Paragraph:

The appellant, Christopher M. Barham, appeals as of right his
conviction in the Madison County Circuit Court of one count of
assault.  Appellant was sentenced to the maximum eleven (11) months,
twenty-nine (29) days for the misdemeanor offense.  This sentence was
ordered to run consecutively to prior sentences unrelated to this
conviction. REVERSED AND REMANDED.

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

STATE OF TENNESSEE
vs.
JAMANN T. BOOKER

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

KENNETH F. IRVINE, JR.              JOHN KNOX WALKUP
606 W. Main Street, Ste. 350        Attorney General & Reporter
P.O. Box 84         
Knoxville, Tennessee 37901-0084     SANDY R. COPOUS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee   37243 0493

                                    JAMES N. RAMSEY
                                    District Attorney General

                                    JAN HICKS
                                    Asst District Attorney General
                                    127 Anderson County Courthouse
                                    100 North Main Street
                                    Clinton, TN 37716                        

Judge: RILEY

First Paragraph:

The defendant, Jamann T. Booker, appeals the trial court's decision to
revoke his probation.  Defendant pled guilty to five counts of the
sale of cocaine and received an effective sentence of eight years in
the Tennessee Department of Correction.  After serving a portion of
his sentence and completing "boot camp," he was placed on intensive
supervised probation.  While on probation, defendant was arrested on
another two counts of selling cocaine.  Due to this arrest, a
probation violation warrant was issued.  A probation revocation
hearing was subsequently held wherein the trial court revoked
defendant's probation.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
RONNIE BRADFIELD

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Ronnie Bradfield, Pro Se            John Knox Walkup
Route 1, Box 330                    Attorney General & Reporter
Tiptonville, TN 38079-9775          500 Charlotte Avenue
                                    Nashville, TN 37243-0497

                                    Deborah A. Tullis
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37343-0493

                                    William L. Gibbons
                                    District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

                                    Johnny R. McFarland
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

                                    Alanda Horne
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103                         

Judge: Jones

First Paragraph:

The appellant, Ronnie Bradfield (defendant), was convicted of
attempted first-degree murder, a Class A felony, carrying a firearm
during judicial proceedings, a Class E felony, and possession of a
firearm after being convicted of a felony, a Class E felony, by a jury
of his peers.  The trial court, finding the defendant was a persistent
offender, imposed a Range III sentence consisting of confinement for
sixty (60) years.  As to the remaining two offenses, the trial court
found the defendant was a multiple offender and imposed a Range II
sentence of four (4) years for each offense.  In this Court, the
defendant raises a multitude of issues.  After a thorough review of
the record, the briefs submitted by the parties, and the law governing
the issues presented for review, it is the opinion of this Court the
judgment of the trial court should be affirmed. AFFIRMED.

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

STATE OF TENNESSEE
vs.
STEVEN A. BUSH

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL J. FLANAGAN                 JOHN KNOX WALKUP
DALE M. QUILLEN                     Attorney General & Reporter
Attorneys At Law
95 White Bridge Road #208           SANDY R. COPOUS 
Nashville, TN 37205                 Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    DAN MITCHEM ALSOBROOKS
                                    District Attorney General

                                    ROBERT WILSON
                                    Asst. District Attorney General
                                    P.O. Box 580
                                    Charlotte, TN 36036                        

Judge: WITT

First Paragraph:

The defendant, Steve A. Bush, brings a direct appeal from the Circuit
Court of Dickson County where he was indicted for murder in the second
degree and was convicted of voluntary manslaughter, a Class C felony. 
He received a sentence of six years to serve in the Tennessee
Department of Correction and was ordered to pay restitution in the
amount of $8,500.00.  On appeal the defendant challenges only the
trial court's denial of probation.  After a thorough review of the
record, we affirm the trial court's judgment; however, we hold that
the order for payment of restitution should be vacated. AFFIRMED AS
MODIFIED/

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

PHILIP KEVIN COOK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

PHILIP KEVIN COOK, Pro Se           JOHN KNOX WALKUP
Special Needs Facility              Attorney General and Reporter
7575 Cockrill Bend Road
Nashville, TN 37209-1057            PETER COUGHLAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    KATRIN N. MILLER
                                    Asst 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.  On October 9, 1995, the Defendant filed
what appears to be his third petition for post-conviction relief.  The
trial court summarily dismissed the petition without appointing
counsel or conducting an evidentiary hearing.  It is from the order of
dismissal that the Defendant appeals.  We affirm the judgment of the
trial court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
ROY DON GIBSON

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

J. Thomas Caldwell                  John Knox Walkup
Attorney at Law                     Attorney General & Reporter
114 Jefferson Street                500 Charlotte Avenue
Ripley, TN  38063                   Nashville, TN  37243-0497

                                    Deborah A. Tullis
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    Elizabeth T. Rice
                                    District Attorney General
                                    302 Market Street
                                    Somerville, TN  38068

                                    Christopher S. Marshburn
                                    Asst District Attorney General
                                    302 Market Street
                                    Somerville, TN  38068

                                    James W. Freeland, Jr.
                                    Asst District Attorney General
                                    302 Market Street
                                    Somerville, TN  38068                        

Judge: Jones

First Paragraph:

The appellant, Roy Don Gibson (defendant), was convicted of four
counts of rape of a child, a Class A felony, by a jury of his peers.
The trial court, finding the defendant was a standard offender,
imposed a Range I sentence consisting of confinement for twenty-one
(21) years in the Department of Correction for each offense. He was
also fined $25,000 for one conviction involving penile penetration. 
The trial court ordered that the sentences are to be served
concurrently. The judge's sentencing order stated Gibson will serve 30
percent of his term before he is eligible for release classification.
CONVICTIONS AFFIRMED, REMANDED FOR RESENTENCING.

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

STATE OF TENNESSEE
vs.
FERNANDO REMIRUS HAYLES

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

KIMBERLY A. PARTON                  JOHN KNOX WALKUP 
Attorney at Law                     Attorney General & Reporter
407 Union Avenue, Suite 209
Knoxville, TN   37902               WILLIAM D. BRIDGERS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    RANDALL E. NICHOLS 
                                    District Attorney General

                                    S. JO HELM 
                                    Asst District Attorney General
                                    400 Main 
                                    P.O. Box 1468
                                    Knoxville, TN  37901-1468                         

Judge: WOODALL

First Paragraph:

The Defendant, Fernando Remirus Hayles, appeals as of right according
to Rule 3 of the Tennessee Rules of Appellate Procedure.  Following a
jury trial, the Defendant was convicted of voluntary manslaughter in
the Criminal Court of Knox County.  He was sentenced by the trial
court to serve six (6) years  imprisonment as a Range I Standard
Offender.  The Defendant raises two issues in his appeal: (1) the
trial court erred in refusing to allow testimony which would tend to
support the Defendant's theory of self-defense on the issue of the
first aggressor; and (2)  the sentence imposed by the trial court was
excessive due to the trial court's improper consideration of both
aggravating and mitigating factors.  We affirm the Defendant's
conviction. AFFIRMED.

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

JESSIE JAMES HOUSE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

Jessie James House, Pro Se          Charles W. Burson
R.M.S.I. Unit 6-B-119               Attorney General & Reporter 
7475 Cockrill Bend Ind. Rd. 
Nashville, TN 37209-1010            Daryl J. Brand
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493
                                    
                                    Victor S. (Torry) Johnson III
                                    District Attorney General

                                    Roger D. Moore
                                    Asst. Dist. Attorney General
                                    Washington Square
                                    222 2nd Avenue North, Suite 500
                                    Nashville, TN 37201-1649                        

Judge: SUMMERS

First Paragraph:

The appellant, Jessie James House, was convicted in 1987 of robbery
accomplished by use of a deadly weapon.  In 1995 he filed a petition
for post-conviction relief, approximately seven years after his
conviction became final.  The trial court dismissed the petition on
the ground that it was barred by the statute of limitations. 
AFFIRMED.

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

STATE OF TENNESSEE
vs.
ERIC EUGENE HOUSTON

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Mark Stevens                        Charles W. Burson
District Public Defender            Attorney General of Tennessee
     and                                and             
John Halstead                       Michael J. Fahey, II
Assistant Public Defender           Asst Attorney General of Tennessee      
1209 Euclid Avenue                  450 James Robertson Parkway     
Knoxville, TN 37921                 Nashville, TN 37243-0493

                                    Randall E. Nichols
                                    District Attorney General
                                        and
                                    Paul Gentry
                                    Asst District Attorney General
                                    City-County Building
                                    Knoxville, TN 37902                         

Judge: Tipton

First Paragraph:

The defendant, Eric Eugene Houston, appeals as of right from the
revocation of his probation by the Knox County Criminal Court.  He
contends that the trial court abused its discretion by revoking his
probation. AFFIRMED.

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

STATE OF TENNESSEE
vs.
STEVE EDWARD HOUSTON

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

HERSHELL  D. KOGER                  JOHN KNOX WALKUP
135 N. First St.                    Attorney General & Reporter
P.O. Box 1148
Pulaski, TN 38478                   SARAH M. BRANCH
                                    Counsel for the State
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    T. MICHAEL BOTTOMS
                                    District Attorney General
                                    P.O. Box 459
                                    Lawrenceburg, TN 38464-0459

                                    RICHARD H. DUNAVANT
                                    Asst. District Attorney General
                                    Giles County Courthouse
                                    P.O. Box 304
                                    Pulaski, TN 38478-0304                         

Judge: WITT

First Paragraph:

Steve Edward Houston, the defendant, appeals pursuant to Rule 3,
Tennessee Rules of Appellate Procedure, from the trial court's
revocation of his probation.  He contends that the record contains no
substantial evidence supporting the order of revocation.  AFFIRMED.

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

PAUL G. HULL
vs.
STATE OF TENNESSEE  
AND JIMMY HARRISON, 
WARDEN

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

Pro Se                              CHARLES W. BURSON
PAUL G. HULL                        Attorney General and Reporter
Cold Creek Corr. Facility   
Minimum Security Complex            LISA A. NAYLOR
P. O. Box 1000                      Assistant Attorney General  
Henning, TN  38041-1000             Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    WILLIAM DAVID BRIDGERS
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493                        

Judge: Hayes

First Paragraph:

The appellant, Paul G. Hull, appeals from the Lauderdale County
Circuit Court's denial of his application for writ of habeas corpus. 
He is currently confined at the Cold Creek Correctional Facility,
where he is serving an eight year sentence for a 1990 aggravated
assault conviction from Coffee County.    On March 8, 1996, the
appellant filed the instant petition for writ of habeas corpus.  The
trial court dismissed the appellant's petition, finding that it failed
to state a cognizable claim for habeas corpus relief.  In this appeal,
the appellant challenges the trial court's summary dismissal of his
application for writ of habeas corpus. AFFIRMED.

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


STATE OF TENNESSEE
vs.
JAMES R. LEMACKS

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

J.P. BRADLEY                        JOHN KNOX WALKUP
110 West Main Street                Attorney General and Reporter
Waverly, TN 37185
                                    JANIS L. TURNER
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    DAN ALSOBROOKS
                                    District Attorney General

                                    GEORGE SEXTON
                                    Asst District Attorney General
                                    Humphreys County Courthouse
                                    Room 206
                                    Waverly, TN 37185                          

Judge: WELLES

First Paragraph:

The Defendant appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  He was convicted by a Humphreys County
jury of driving while intoxicated and sentenced to 11 months and 29
days, suspended except for 30 days with the remainder to be served on
probation.  His driver's license was suspended for one year and he was
ordered to attend DUI school.  He appeals his conviction raising two
issues for review: (1) That the trial court erred in charging criminal
responsibility when the Defendant was not formally indicted on this
charge; and (2) that the trial court erred in charging criminal
responsibility when the other party involved was never charged with
any offense.   Although not precisely on either of the issues raised,
we reverse and remand for a new trial. REVERSED AND REMANDED.

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

JIMMY L. MATHIS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

GUY WILKINSON                       JOHN KNOX WALKUP
Public Defender                     Attorney General & Reporter

RICHARD W. DeBERRY                  ELLEN H. POLLACK
Asst. Public Defender               Asst. Attorney General
P.O. Box 663                        450 James Robertson Pkwy.   
Camden, TN   38320                  Nashville, TN  37243-0493
                
                                    ROBERT (GUS) RADFORD
                                    District Attorney General

                                    JOHN OVERTON
                                    Asst. District Attorney General
                                    Hardin County Courthouse                                
                                    Savannah, TN   38372                         

Judge: PEAY

First Paragraph:

The petitioner pled guilty to one count of aggravated sexual battery
and was sentenced to eight years in the Department of Correction.  He
subsequently filed a petition for post-conviction relief alleging
ineffective assistance of counsel and that his guilty plea was neither
knowing nor voluntary.  After a hearing, the court below denied
relief, finding "nothing in the record that would imply that the
petitioner was denied any right guaranteed by the constitutions of the
United States or the State of Tennessee."  Upon our review of the
record, we find that the evidence does not preponderate against the
lower court's finding.  Accordingly, the judgment below is affirmed in
accordance with Rule 20 of the Court of Criminal Appeals of Tennessee.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
MATTHEW L. MOATES

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

W. HOLT SMITH                       JOHN KNOX WALKUP
209 Tellico Street North            Attorney General and Reporter
Madisonville, TN 37354              
                                    MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JERRY N. ESTES
                                    District Attorney General
                        
                                    RICHARD NEWMAN
                                    Asst District Attorney General
                                    P.O. Box 647
                                    Athens, TN 37303                         

Judge: CRAFT

First Paragraph:

Defendant, Matthew L. Moates, appeals as of right from a jury
conviction for aggravated robbery.  Moates presents four issues for
our review: 1) whether the evidence was sufficient to sustain the
conviction; 2) whether the trial judge erred in failing to institute
procedures mandated by Batson v. Kentucky and improperly allowed the
State to exclude the only black member of the jury venire; 3) whether
the State improperly withheld from Defendant a plea bargain agreement
with a state witness; and 4) whether a photo line-up was unduly
suggestive and should have been suppressed.  We affirm the judgment of
the trial court.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
DALE NOLAN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

PHILIP A. CONDRA                    JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

B. JEFFERY HARMON                   MERRILYN FEIRMAN
Asst District Public Defender       Assistant Attorney General
P.O. Box 220                        Criminal Justice Division
204 Betsy Pack Drive                450 James Robertson Parkway
Jasper, TN  37347                   Nashville, TN 37243-0493    

                                    JAMES MICHAEL TAYLOR
                                    District Attorney General

                                    JAMES W. POPE, III
                                    Asst. District Attorney
                                    265 Third Ave., Ste. 300
                                    Dayton, TN  37321                         

Judge: WITT

First Paragraph:

The appellant, Dale Nolan, was convicted by the Circuit Court of
Sequatchie County of assault, aggravated assault, attempted second
degree murder and kidnapping.  The court imposed sentences of 11
months, 29 days for the  assault, 4 years for the reckless aggravated
assault, and 9 years for the attempted second degree murder, all to
run concurrently.  The court also imposed a 6-year sentence for the
kidnapping conviction to be served consecutively to the attempted
second degree murder sentence.  The appellant is before this court on
his direct appeal, and he has raised numerous issues for our
consideration relating to the sufficiency of the evidence, jury
instructions and verdict form, the applicability of the insanity
defense, the constitutional rights of a unanimous verdict and
protection against double jeopardy, the court's role as the thirteenth
juror, and sentencing.  Upon our review, we affirm the convictions and
sentences in all cases except the aggravated assault.  This latter
conviction is reversed, and the indictment  is dismissed, an action
that the state concedes is appropriate. AFFIRMED - ATTEMPT TO COMMIT
SECOND DEGREE MURDER; KIDNAPPING; ASSAULT REVERSED AND DISMISSED -
AGGRAVATED ASSAULT.

URL:http://www.tba.org/tba_files/TCCA/NOLAN2_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
MICHAEL ROBINSON, MELVIN AGNO TAYLOR,                                               
FRED HOLBERT WOODS, JR., and    
BRIAN SWAGGERTY

Court:TCCA

Attorneys:

FOR THE APPELLANTS:                     FOR THE APPELLEE:

For Appellant Robinson:                 Charles W. Burson
James W. Greenlee                       Attorney General & Reporter
118 Bruce Street                        500 Charlotte Avenue
Sevierville, TN 37862                   Nashville, TN 37243-0497

For Appellant Taylor:                   Eugene J. Honea
Edward C. Miller                        Assistant Attorney General
Public Defender                         450 James Robertson Parkway
P. O. Box 416                           Nashville, TN 37243-0493
Dandridge, TN 37725-0416                
                                        Alfred C. Schmutzer, Jr.
For Appellant Ray:                      District Attorney General
James D. Hutchins                       125 Court Avenue, Suite 301
P. O. Box 946                           Sevierville, TN 37862
Dandridge, TN 37725-0946
                                        Richard R. Vance
For Appellant Woods:                    Asst. District Attorney Gen.
Steven E. Marshall                      339 East Main Street
124 Court Avenue, Suite 201             Newport, TN 37821
Sevierville, TN 37862

For Appellant Swaggerty:
Tim S. Moore
396 Moore Brand Way
Newport, TN 37821                         

Judge: Jones

First Paragraph:

The appellants, Melvin Taylor, Thomas Jermaine Ray, Fred Holbert
Woods, Jr., and Brian Swaggerty (defendants), were convicted of second
degree murder, a Class A felony, by a jury of their peers.   Michael
Robinson, a co-defendant, was convicted of facilitation of second
degree murder, a Class B felony. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/NOLAN2_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
J.Y. SEPULVEDA

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:  

David B. Hill                       Charles W. Burson
Attorney at Law                     Attorney General & Reporter
301 E. Broadway 
Newport, TN 37821                   Sharon S. Selby  
                                    Assistant Attorney General
R.J. Tucker                         Criminal Justice Division
Attorney at Law                     450 James Robertson Parkway
317 East Main St.                   Nashville, TN 37243 0493
Newport, TN  37821
                                    Alfred C. Schmutzer, Jr.    
                                    District Attorney General

                                    James Gass    
                                    Asst Dist. Attorney General
                                    Sevier County Courthouse
                                    Sevierville, TN  37801                          

Judge: Burch

First Paragraph:

Following a jury trial, Appellant was found guilty of Felony Murder,
Especially Aggravated Burglary and Theft of less than five hundred
($500)Dollars.  The jury sentenced Appellant to life for the murder
and the trial court sentenced him to ten years for the burglary and
eleven months twenty-nine days for the theft.  The trial court ruled
that the burglary sentence be served consecutively to the murder
sentence, while the theft sentence be served concurrently therewith.
AFFIRMED IN PART; MODIFIED IN PART.

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

STATE OF TENNESSEE
vs.
RONNIE C. TURNER

Court:TCCA

Attorneys:  

For the Appellant:              For the Appellee:

JOHN B. BLAIR, III              CHARLES W. BURSON
176 2nd Avenue, North           Attorney General and Reporter
Suite 406   
Nashville, TN  37201            PETER COUGHLAN
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN. 37243-0493               
                        
                                VICTOR S. (TORRY) JOHNSON III
                                District Attorney General

                                WILLIAM R. REED
                                Asst. District Attorney General
                                Washington Square, Suite 500
                                222-2nd Avenue, N
                                Nashville, TN.  37201-1649                        

Judge: Hayes

First Paragraph:

The appellant, Ronnie C. Turner, appeals from the dismissal of his
petition for post-conviction relief.  The appellant was indicted on
six counts of aggravated rape by a Davidson County Grand Jury. 
Pursuant to a plea agreement, three of the counts were dismissed, with
the appellant pleading guilty to the remaining three counts of
aggravated rape.  Under the terms of the plea agreement, the appellant
received an effective sentence of fifteen years confinement in the
Department of Correction.  On April 4, 1995, the appellant filed for
post-conviction relief alleging that his pleas were not voluntary and
that his trial counsel was ineffective.  The post-conviction court
conducted an evidentiary hearing and denied relief.  The appellant now
appeals this denial alleging that trial counsel was ineffective for
(1) failing to subpoena a witness at a suppression hearing; (2)
failing to require the State to respond more specifically to his
requested bill of particulars; and (3) failing to correctly inform him
as to the amount of time it would take to "flatten his sentence."
AFFIRMED.

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

STATE OF TENNESSEE
vs.
ROBERT ALLEN VAUGHN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

DAVID SIMPSON                       JOHN KNOX WALKUP
113 West Main St.                   Attorney General & Reporter
Gallatin, TN 37066      
                                    JANIS L. TURNER
                                    Counsel for the State
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    LAWRENCE RAY WHITLEY
                                    District Attorney General

                                    MICHAEL HIGGINBOTHAM
                                    113 West Main St.
                                    Gallatin, TN 37066
                                             
                                             
Judge: WITT 

First Paragraph:

The defendant, Robert Allen Vaughn, pleaded guilty to two counts of
burglary, a Class D felony.  On January 2, 1996, the trial court
accepted the state's recommendation and sentenced the defendant to
concurrent eight-year sentences as a Range III offender.  The trial
judge ordered the defendant to serve his sentence in the Department of
Correction.  In this appeal, the defendant challenges the trial
court's denial of probation. AFFIRMED.

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

STATE OF TENNESSEE
vs.
FRANK WEAVER

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

J. THOMAS MARSHALL, JR.             JOHN KNOX WALKUP
District Public Defender            Attorney General and Reporter
101 South Main Street
Clinton, TN 37716                   MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JAMES N. RAMSEY
                                    District Attorney General

                                    BETH BOATNER
                                    JAN HICKS
                                    JOHN MADDOX
                                    Asst District Attorneys General
                                    127 Anderson County Courthouse
                                    Clinton, TN 37716
                          
Judge: RILEY

First Paragraph:

The appellant, Frank Weaver, was convicted by a jury of vehicular
homicide, vehicular assault, misdemeanor assault and driving without a
license.  The trial court sentenced him to concurrent maximum
sentences of fifteen (15) years for vehicular homicide, twelve (12)
years for vehicular assault, eleven (11) months and twenty-nine (29)
days in the county jail for misdemeanor assault and 30 days in the
county jail for driving without a license.  The trial court also
imposed the maximum fine allowable by statute on each offense. 
AFFIRMED IN PART, REVERSED IN PART.

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

STATE OF TENNESSEE
vs.
CLYDE DEWAYNE WESEMANN

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:  

Stephan M. Wallace                  Charles W. Burson
District Public Defender            Attorney General & Reporter
P.O. Box 839
Blountville, TN. 37617              Merrilyn Feirman  
                                    Assistant Attorney General
Greg L Lauderback                   Criminal Justice Division
Attorney at Law                     450 James Robertson Parkway
Lauderback & Lauderback             Nashville, TN 37243 0493
434 Shelby Street
Kingsport, TN. 37660                H. Greeley Wells, Jr.
                                    District Attorney General
                      
                                    Rebecca H. Davenport
                                    Asst Dist. Attorney General
                                    Blountville, TN. 37617
                          

Judge: Burch

First Paragraph:

Following a jury trial, Appellant was found guilty of Murder in the
First Degree, Aggravated Burglary and Theft of less than five hundred
($500)Dollars.  The jury sentenced Appellant to life for the murder
and the trial court sentenced him to ten years for the burglary and
eleven months twenty-nine days for the theft.  The trial court ruled
that the burglary sentence shall be served consecutively to the murder
sentence. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/WESEMAN2_OPN.WP6

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