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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
- 00-New Opinons From TSC
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- Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text
version of the opinion.
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to download the original WP 6.0 document.
version of the opinion.
- Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.
George Dean
TBALink Chief Editor
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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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