TBALink Opinion-Flash

July 29, 1997 -- Volume #3 -- Number #070

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

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George Dean
TBALink Chief Editor


SUPREME COURT OF TENNESSEE 
STATE LIST 
FOR PERMISSION TO APPEAL 
July 28, 1997

Court:TSC - Rules

URL:http://www.tba.org/tba_files/TSC_RULES/STATELST_WPD.WP6
Opinion-Flash

ALSIDE SUPPLY CENTER OF 
KNOXVILLE
vs.
SMITH HERITAGE SIDING 
COMPANY, INC., and DENNIS 
CLEMMER
and
METROPOLITAN LIFE INSURANCE 
COMPANY

Court:TCA

Attorneys:  

JACK B. DRAPER, ARNETT, DRAPER & HAGOOD, Knoxville, for Plaintiff
Appellant.
JOHN A. LUCAS and MARTIN B. BAILEY, HUNTON & WILLIAMS, Knoxville, for
Appellee.

Judge: Franks

First Paragraph:

In this action, the Chancellor, pursuant to T.R.C.P. Rule 11,
sanctioned Alside Supply Center of Knoxville (Alside) $10,000.00, and
Alside has appealed. VACATED AND REMANDED.

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

ROY BEATY, JR
vs. 
SHERIFF R. H. JOHNSON,
Individually and as 
Sheriff of Monroe County,
and Monroe County

Court:TCA

Attorneys: 

JOHN W. CLEVELAND OF SWEETWATER FOR APPELLANT
ELIZABETH A. TOWNSEND and GERALD L. GULLEY, JR., OF KNOXVILLE FOR
APPELLEES

Judge: Goddard

First Paragraph:

Roy Beaty, Jr., appeals dismissal by summary judgment of his suit
seeking damages against R. H. Johnson, Sheriff of Monroe County, and
Monroe County for personal injuries he received while incarcerated in
the Monroe County Jail. VACATED AND REMANDED.

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

JANICE BARTLEY CASTEEL
vs.
CLIFTON PHILLIP CASTEEL

Court:TCA

Attorneys: 

William A. Mynatt, Jr. and Jason H. Long, Knoxville, 
  for the Appellant
Douglas J. Toppenberg and J. Elaine Burke, Knoxville, 
  for the Appellee
          
Judge: INMAN

First Paragraph:

These parties were divorced on September 16, 1994.  By agreement, they
were awarded joint legal custody of three sons, who would reside
principally with their mother, hereafter appellant.

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

FIRST TENNESSEE BANK, N.A.
formerly VALLEY FIDELITY BANK 
AND TRUST COMPANY
vs.
W. P. BOONE DOUGHERTY

Court:TCA

Attorneys: 

J. MICHAEL WINCHESTER and GORDON D. FOSTER, Lacy & Winchester, P.C.,
for appellant.
W. P. BOONE DOUGHERTY, appellee, Pro Se                         

Judge: McMurray

First Paragraph:

We are called upon on this appeal to construe Rule 3 and Rule 4,
Tennessee Rules of Civil Procedure in para materia. The trial court
determined that service of process in this case was not timely
returned in accordance with Rule 3 and that the statute of limitations
was not thereby tolled.  We affirm the judgment of the trial court.

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

JOHN M. GERWELS 
vs.
CURT T. PHILLIPS

Court:TCA

Attorneys:

THOMAS A. BICKERS OF KNOXVILLE FOR APPELLANT
BEECHER A. BARTLETT, JR., and ADRIENNE L. ANDERSON OF KNOXVILLE FOR
APPELLEE

Judge: McMurray

First Paragraph:

This is an appeal from a judgment entered by the Knox County Circuit
Court in a suit arising from the construction of a private residential
home.  John M. Gerwels, Plaintiff-Appellant, filed suit alleging that
Curt T. Phillips, Defendant-Appellee, was liable for defects in the
construction of Mr. Gerwels' house, for cost overruns, and for alleged
defamatory statements concerning Mr. Gerwels.  Mr. Phillips filed a
counter-suit seeking monies owed for work performed. AFFIRMED IN PART;
REVERSED IN PART; and REMANDED.

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

MARY S. HOOPER, individually and as 
surviving spouse and next of kin of 
ROBERT HOOPER, deceased
vs.
OWENS-CORNING FIBERGLAS 
CORPORATION, et al

Court:TCA

Attorneys:  

Michael Y. Rowland and Janet Edwards, Rowland & Rowland, P.C.,
Knoxville, for the Appellant 
Dwight E. Tarwater, Thomas A. Bickers, Andrew R. Tillman, Knoxville,
for the Appellees

Judge: INMAN

First Paragraph:

This is an action for damages for wrongful death.  The plaintiff
alleged that her husband died of malignant mesothelioma caused by
asbestos to which he was last exposed in 1962.  He died on August 7,
1994, 32 years after his last exposure.  This action was filed August
19, 1994 against various manufacturers of products containing
asbestos.  As relevant here, it was dismissed on motion for summary
judgment which applied the bar of the statute of repose,  T.C.A. S
29-28-103(a).  The plaintiff appeals and presents for review the issue
of whether the application of the statute of repose violates Article
1, Section 17 of the Constitution of Tennessee, the open courts
provision.  We hold that it does not and affirm the judgment.
AFFIRMED.

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

HUEY A. HOWELL
vs.
CITY OF LENOIR CITY, TN, ET AL

Court:TCA

Attorneys: 

Wayne A. Ritchie, II, Knoxville, for Appellant
Pamela L. Reeves, Knoxville, for Appellees                         

Judge: INMAN

First Paragraph:

The plaintiff was injured when a large, long-dead tree fell from an
embankment onto the top of his automobile as he was driving on First
Avenue [Rock Springs Road] in Lenoir City, Tennessee. In his
twice-amended complaint filed in the Circuit Court the plaintiff seeks
to recover damages for his injuries.  He alleged that the tree was
situated on property owned by the defendant Lenoir City which had
actual or constructive notice of its dangerous condition or the danger
it posed to the public, and therefore enjoyed no immunity pursuant to
T. C. A. S 29-20-203(b). REVERSED in part; AFFIRMED in part, and
REMANDED.

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

STEFONE McCLENDON, father of
DAMIEN O'SHAY MAURICE
McCLENDON, the next of kin of   
CYNTHIA VANESSA FRANCIS
vs.
DR. BENNETT T. CROWDER, II, and 
EMERGENCY COVERAGE CORPORATION

Court:TCA

Attorneys: 

H. Naill Falls, Jr. and James B. Johnson, Nashville, for Appellant
James H. London and Margaret G. Klein, Knoxville, for Appellee
                         
Judge: INMAN

First Paragraph:

This is an action for damages for the death of Cynthia Francis
allegedly caused by the malpractice of Dr. Bennett Crowder, II, an
emergency room physician who was a contract physician with the
defendant Emergency Coverage Corporation which had contracted with the
Sweetwater Hospital to operate its emergency room. REVERSED and
REMANDED.

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

MUNICIPAL EMPLOYEES CREDIT  
UNION
vs.
RHONDA SANDERS

Court:TCA

Attorneys:

Dean Greer, Kingsport, for Appellant
William K. Rogers, Kingsport, for Appellee
                          
Judge: INMAN

First Paragraph:

The General Sessions and Circuit Courts held the appellant liable to
the appellee for a series of credit card charges incurred over a
period of two years by virtue of a VISA Credit Card issued jointly to
the appellant and her now-deceased husband.  She appeals, insisting
that she did not sign the application for the card and hence cannot be
liable. AFFIRMED.

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

NATIONAL BOOK WAREHOUSE, 
INC.
vs.
BOOK-MART OF FLORIDA, INC.

Court:TCA

Attorneys:  

F. DULIN KELLY and CLINTON L. KELLY, Hendersonville, for
Plaintiff-Appellant.
JOHN B. WATERS, III, LONG, RAGSDALE & WATERS, P.C., Knoxville, for
Defendant-Appellee.

Judge: Franks

First Paragraph:

In this declaratory judgment action, the plaintiff sought a
declaration of the respective rights of the parties under an agreement
entered between plaintiff and defendant, both of whom are engaged in
the retail sale of books and related products. AFFIRMED AND REMANDED.

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

IN RE: ESTATE OF LILLIE 
KERLEY PORTER (DECEASED)

SHIRLEY PORTER WHEELER and      
TEDDY LEE PORTER
vs.
THOMAS STEVE HARVEY, 
individually and in his capacity as 
Executor of the Estate of Lillie Porter

Court:TCA

Attorneys:   

Jess D. Campbell, Knoxville, for Appellants.
Mary Katherine Longworth, Peggy J. S. Monger, Loudon, for Appellees.
                      
Judge: INMAN

First Paragraph:

The dispositive issue in this case is whether Clyde and Lillie Porter
contracted to make mutual wills. AFFIRMED.

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

GINGER REED and DAVID REED
vs.
ROSIE L. CLARK REED

Court:TCA

Attorneys: 

R0BERT N. GODDARD, GODDARD & GAMBLE, Maryville, for Plaintiffs
Appellees.
DUNCAN V. CRAWFORD and STEPHEN S. OGLE, CRAWFORD, CRAWFORD & NEWTON,
Maryville, for Defendant-Appellant.
           
Judge: Franks

First Paragraph:

In this action, the Trial Court on stipulations of fact entered
judgment against defendant, for proceeds paid to the defendant on a
life insurance policy.  Defendant has appealed. AFFIRMED AND REMANDED.

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

DANIEL W. SMITH
vs.
M. L. WALLER, JR. and   
JOYCE C. WALLER

Court:TCA

Attorneys: 

C. Paul Harrison, Knoxville, for Appellants
James Harvey Stutts, Sweetwater, for Appellee                         

Judge: INMAN

First Paragraph:

This action was filed in Chancery Court for damages for breach of
contract.  The plaintiff leased certain premises from the defendants,
who allegedly terminated his tenancy and refused to recognize a
renewal option, thereby triggering the complaint for damages. MODIFIED
and REMANDED.

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

WADE WILSON
vs.
ROBERT B. BOZEMAN
and
BEAN STATION VOLUNTEER RESCUE
SQUAD, INC., and RUTLEDGE
VOLUNTEER RESCUE SQUAD, INC.

Court:TCA

Attorneys:   

MICHAEL P. McGOVERN, Knoxville, for Plaintiff-Appellee.
BRENDA L. LINDSAY, Knoxville, for Defendant-Appellant.
RICHARD L. HOLLOW, Knoxville, for Defendants/Cross-Appellees.
                       
Judge: Franks

First Paragraph:

In this action the original appellant Robert B. Bozeman dismissed his
appeal, and plaintiff as cross-appellant, has appealed the Trial
Court's directing verdicts for the remaining defendants. AFFIRMED AND
REMANDED.

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

STATE OF TENNESSEE
vs.
WILLIAM HENRY BARNEY

with DISSENTING & CONCURRING OPINIONS

Court:TCCA

Attorneys:  

FOR THE APPELLANT                   FOR THE APPELLEE

Karl Dean                           John Knox Walkup
District Public Defender            Attorney General and Reporter
1202 Stahlman Building              450 James Robertson Parkway
Nashville, Tennessee 37201          Nashville, Tennessee 37243-0493
                    
Jeffrey A. DeVasher                 Sarah M. Branch 
Assistant Public Defender           Assistant Attorney General
1202 Stahlman Building              450 James Robertson Parkway
Nashville, Tennessee 37201          Nashville, Tennessee 37243-0493

Joan A. Lawson                      Victor S. Johnson, III
Assistant Public Defender           District Attorney General
1202 Stahlman Building              Washington Square
Nashville, Tennessee 37201          222 2nd Avenue, North, Ste 500
                                    Nashville, Tennessee 37201
Jerrilyn Manning
Assistant Public Defender           William R. Reed 
1202 Stahlman Building              Asst District Attorney General
Nashville, Tennessee 37201          Washington Square
                                    222 2nd Avenue, North, Ste 500
                                    Nashville, Tennessee 37201                        

Judge: Barker

First Paragraph:

The Appellant, William H. Barney, appeals as of right his convictions
and sentences for aggravated sexual battery and rape of a child.
AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/BARNEYWH_OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/BARNEYWH_CON.WP6
URL:http://www.tba.org/tba_files/TCCA/BARNEY_DIS.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
WILLIAM D. BUCY, II

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

MATTHEW M. MADDOX                   JOHN KNOX WALKUP
105 East Main Street                Attorney General and Reporter
P.O. Box 430
Huntingdon, TN 38344                KENNETH W. RUCKER
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

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

Judge: WELLES

First Paragraph:

This appeal presents a certified question of law pursuant to Rule
37(b)(2)(iv) of the Tennessee Rules of Criminal Procedure.  The
Defendant pleaded guilty to misdemeanor possession of drugs and
possession of a prohibited weapon.  With the consent of the trial
court, he reserved a certified question of law that is dispositive of
the case.  The certified question arose from the trial court's denial
of a motion to suppress evidence obtained from the Defendant during a
search conducted by a police officer.  We affirm the judgment of the
trial court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
YVONNE BURNETTE, ALIAS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

MARK E. STEPHENS                    JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

PAULA R. VOSS (Appeal)              GEORGIA BLYTHE FELNER
DAVID GALL (Hearing)                Assistant Attorney General
Assistant Public Defenders          Criminal Justice Division
1209 Euclid Avenue                  450 James Robertson Parkway
Knoxville, TN  37921                Nashville, TN 37243-0493    
    
                                    RANDALL E. NICHOLS
                                    District Attorney General

                                    LEON FRANKS
                                    Asst. District Attorney General
                                    P.O. Box 1468
                                    Knoxville, TN  37901-1468
                        

Judge: WITT

First Paragraph:

The appellant, Yvonne Burnette, appeals the Knox County Criminal
Court's revocation of her probationary sentence.  As a result of the
probation revocation, she is currently serving her 8 year sentence for
sale of cocaine, a Class B felony, in custody of the Department of
Correction.  In this appeal, she contends the trial court abused its
discretion in revoking her probation.  Having reviewed the record of
the proceedings below, we find no reversible error and affirm the
judgment of the lower court. AFFIRMED.

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

JEFFREY LYNN BUSH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

SHAWN A. TIDWELL                    CHARLES W. BURSON
Stanton, Tidwell & Mendes, PLLC     Attorney General and Reporter
Cummins Station, Suite 507  
209 Tenth Avenue South              DARYL J. BRAND
Nashville, TN  37203                Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    VICTOR S. (TORRY) JOHNSON III
                                    District Attorney General

                                    KATRIN N. MILLER
                                    Asst. District Attorney General
                                    Washington Sq., Suite 500
                                    222-2nd Ave.  N.
                                    Nashville, Tn  37201-1649                         

Judge: Hayes

First Paragraph:

The appellant, Yvonne Burnette, appeals the Knox County Criminal
Court's revocation of her probationary sentence.  As a result of the
probation revocation, she is currently serving her 8 year sentence for
sale of cocaine, a Class B felony, in custody of the Department of
Correction.  In this appeal, she contends the trial court abused its
discretion in revoking her probation.  Having reviewed the record of
the proceedings below, we find no reversible error and affirm the
judgment of the lower court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
GERALD EDWARD DIXON

Court:TCCA

Attorneys:  


FOR THE APPELLANT:                  FOR THE APPELLEE:

JIM W. STAMBAUGH                    JOHN KNOX WALKUP
Post Office Box 1003                Attorney General & Reporter
Morristown, TN 37816-1003
                                    MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                            

Judge: WITT 

First Paragraph:

Gerald Edward Dixon, Jr., the petitioner appeals pursuant to Rule 3,
Tennessee Rules of Appellate Procedure, from the trial court's
dismissal of his petition for writ of habeas corpus.   On November 29,
1993, the petitioner pleaded guilty to one count of aggravated
burglary and one count of aggravated rape.  He received concurrent
sentences of three and seventeen years.  The petitioner does not
challenge the validity of his conviction for aggravated burglary, but
he contends that his conviction for aggravated rape is void because
the indictment failed to allege the mens rea for that offense.  See
State v. Roger Dale Hill, No. 01CO1-9508-CC-00267 (Tenn. Crim. App.,
Nashville, June 20, 1996), perm. to appeal granted (Tenn. 1997).
AFFIRMED.

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

STATE OF TENNESSEE
vs.
STEPHON MATTHEW FEARN

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN HARWELL DICKEY                 JOHN KNOX WALKUP 
District Public Defender            Attorney General & Reporter

CURTIS H. GANN                      JANIS L. TURNER
Assistant Public Defender           Assistant Attorney General
105 South Main                      425 Fifth Avenue North 
P.O. Box 1119                       2nd Floor, Cordell Hull Building
Fayetteville, TN  37334             Nashville, TN  37243

                                    WILLIAM EDWARD GIBSON
                                    District Attorney General

                                    WILLIAM MICHAEL McCOWN
                                    Asst District Attorney General
                        
                                    ROBERT G. CRIGLER 
                                    Asst District Attorney General
                                    One Public Square, Suite 300
                                    Shelbyville, TN  37160-3953                        

Judge: WOODALL

First Paragraph:

The Defendant, Stephon M. Fearn, appeals as of right according to Rule
3 of the Tennessee Rules of Appellate Procedure.  He was convicted of
aggravated burglary and misdemeanor theft following a jury trial in
the Circuit Court for Bedford County.  The jury imposed fines in the
amount of five thousand dollars ($5,000.00) and one thousand dollars
($1,000.00) for his convictions, respectively.  At his sentencing
hearing, Defendant was sentenced by the trial judge to nine (9) years
and six (6) months incarceration as a Range II, Multiple Offender for
the aggravated burglary conviction and eleven (11) months, twenty-nine
(29) days for the theft conviction.  These sentences were ordered to
be served consecutively to each other and to Defendant's prior
sentences for which he was on parole at the time of the aggravated
burglary and theft.  Defendant argues the evidence was insufficient to
support both the aggravated burglary and the theft convictions, and
that the trial court erred by imposing an excessive sentence.
CONVICTION AND SENTENCES AFFIRMED; REMANDED FOR ENTRY OF AMENDED
JUDGMENTS.

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

STATE OF TENNESSEE
vs.
JOHN L. GOODWIN, III

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN L. GOODWIN, III.               JOHN KNOX WALKUP
Pro Se - Habeas Corpus              Attorney General and Reporter

JOHN R. PHILLIPS, JR.               KATHY MORANTE
Attorney - Sentencing               Assistant Attorney General
117 East Main Street                450 James Robertson Parkway
Gallatin, TN 37066                  Nashville, TN 37243

                                    LAWRENCE RAY WHITLEY
                                    District Attorney General

                                    DEE GAY
                                    Asst District Attorney General
                                    113 West Main Street
                                    Gallatin, TN 37066                         

Judge: WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure.  The Defendant appeals both his sentence and the
trial court's denial of his petition for writ of habeas corpus.  These
separate appeals were consolidated by the trial court and filed with
one appellate record.  The Defendant raises the following issues
regarding his sentence: (1) That the trial court erred in classifying
the Defendant as a Range II offender; (2) that the trial court
improperly sentenced him to consecutive terms for his two convictions;
(3) that the trial court misapplied sentence enhancement factors; and
(4) that the trial court erred by imposing a longer sentence upon
remand.  The Defendant also raises the following issues pro-se
regarding his petition for habeas corpus: (1) That the trial court was
biased against the Defendant; (2) that the trial court erred by
refusing to correct perjured testimony and that his due process rights
were violated by the State's failure to produce exculpatory evidence;
and (3) that the trial court erred by denying his petition when the
attorneys involved in his case had formed a conspiracy to deprive the
Defendant of his liberty.  We affirm the judgments of the trial court.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
ANGELA GRISSOM

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL D. GALLIGAN                 JOHN KNOX WALKUP
Galligan & Newman                   Attorney General and Reporter
308 West Main Street    
McMinnville, TN  37110              MARY ANNE QUEEN
                                    Legal Assistant

                                    CHRISTINA S. SHEVELIER
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    BILL LOCKE
                                    District Attorney General

                                    ROBERT W. BOYD
                                    Assistant District Attorney
                                    Professional Building
                                    McMinnville, TN  37110                        

Judge: SMITH

First Paragraph:

Appellant Angela Grissom entered a plea of guilty to one count of
theft of property valued in excess of $10,000 in violation of
Tennessee Code Annotated Section 39-14-103 (1991).  See also id. S
39-14-105(4).  Following a sentencing hearing on March 24, 1994, the
trial judge sentenced Appellant to the maximum sentence of six years
in the Department of Correction.  However, soon thereafter, by order
filed May 26, 1995, the trial judge placed Appellant on Community
Corrections with the requirement that she observe a sentencing
arrangement involving time in the county jail and house arrest and
that she repay the victim corporation $29,778.37 and pay $1000 into
the Economic Crime Fund.  On appeal, Appellant asserts that she is
presumed to be an appropriate candidate for a non-incarcerative
sentence and that, under the particular circumstances of her case, the
trial judge should have granted her full probation. AFFIRMED AS
MODIFIED.

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

LORENZO HERRON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

Lorenzo Herron, Pro Se              John Knox Walkup
C.C.C.F. P.O. Box 1000              Attorney General & Reporter
Henning, TN 38041-1000              500 Charlotte Avenue
(Appeal Only)                       Nashville, TN 37243-0497

Robert C. Irby                      Timothy F. Behan
Attorney at Law                     Assistant Attorney General
4345 Mallory Road                   450 James Robertson Parkway
Memphis, TN 38111                   Nashville, TN 37243-0493

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

                                    Paul Thomas Hoover, Jr.
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

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

Judge:  Jones

First Paragraph:

The appellant, Lorenzo Herron (petitioner), appeals as of right from a
judgment of the trial court dismissing his suit for post-conviction
relief after an evidentiary hearing.  In this Court, the petitioner,
proceeding pro se, presents eight issues for review.  These issues may
be characterized as the trial court's failure to apply the proper
standard for determining whether his counsel afforded him the
effective assistance of counsel, provide him with a full and fair
hearing, and rule upon certain 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 pursuant to Rule 20,
Tennessee Court of Criminal Appeals. AFFIRMED.

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

ALBERT HOLSTON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

WAYNE CHASTAIN                      JOHN KNOX WALKUP
66 Monroe, Suite 804                Attorney General and Reporter
Memphis, TN 38103
                                    KENNETH W. RUCKER
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-4351

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    JOHNNY MCFARLAND
                                    Asst District Attorney General
                                    Criminal Justice Complex, Ste 301
                                    201 Poplar Street
                                    Memphis, TN 38103                         

Judge: WELLES

First Paragraph:

The Petitioner, Albert Holston, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate Procedure from the trial court's
denial of his petition for post-conviction relief.  He filed a
petition for post-conviction relief on July 12, 1996.  On July 30,
1996, the trial court dismissed the petition without conducting an
evidentiary hearing, finding that it was barred by the statute of
limitations.  We affirm the judgment of the trial court. AFFIRMED.

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

WALTER E. INGRAM
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

WALTER E. INGRAM, PRO SE            JOHN KNOX WALKUP
P.O. Box 1050                       Attorney General and Reporter
Henning, TN 38041
                                    CLINTON J. MORGAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    LEE V. COFFEE
                                    Asst District Attorney General
                                    Criminal Justice Complex, Ste 301
                                    201 Poplar Street
                                    Memphis, TN 38103                          

Judge: WELLES

First Paragraph:

The Petitioner, Walter E. Ingram, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure from the trial court's
denial of his petition for post-conviction relief.  The Petitioner
filed a pro se petition for post conviction relief on April 10, 1996. 
On April 25, 1996, the trial court dismissed the petition without
conducting an evidentiary hearing, finding that it was barred by the
statute of limitations.  We affirm the judgment of the trial court.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
JAMES LLOYD JULIAN, II

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT M. COHEN                     JOHN KNOX WALKUP
303 High Street                     Attorney General and Reporter
Maryville, TN 37804
                                    MICHAEL J. FAHEY, II
WILLIAM LEE BROWN                   Assistant Attorney General
706 Walnut Street                   450 James Robertson Parkway
Knoxville, TN 37902                 Nashville, TN 37243-0493

                                    CHARLES E. HAWK
                                    District Attorney General

                                    ROGER DELP
                                    FRANK HARVEY
                                    Asst District Attorneys General
                                    P.O. Box 703
                                    Kingston, TN 37763                         

Judge: WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure.  The Defendant, James Lloyd Julian, II, was
convicted by a Loudon County jury of rape of a child, especially
aggravated kidnapping, and first-degree felony murder.  The State
sought the death penalty and during the sentencing phase of the trial,
the jury found two aggravating circumstances: (1) that the victim was
less than twelve (12) years of age and the defendant was over eighteen
(18) years of age, and; (2) that the murder was especially heinous,
atrocious and cruel.  See Tenn. Code Ann. SS 39-13-204(i)(1),(5). 
However, the jury determined that the aggravating circumstances did
not outweigh the mitigating circumstances and sentenced the Defendant
to  imprisonment for life without parole.  See Tenn. Code Ann. S
39-13-204(f)(2).  At a separate sentencing hearing for the two
remaining counts, the trial court sentenced the Defendant as a Range I
standard offender to twenty-five years (25) for the rape and
twenty-five years (25) for the kidnapping to run concurrently with
each other but consecutive to the sentence of life without parole. 
The Defendant appeals his convictions and sentences. AFFIRMED.

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

JAMES C. LEVEYE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

E. COVINGTON JOHNSTON, JR.          CHARLES W. BURSON
136 Fourth Avenue South             Attorney General and Reporter
Franklin, TN  37064
                                    DARYL J. BRAND
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    JOE D. BAUGH, JR.
                                    District Attorney General

                                    DEREK K. SMITH
                                    Assistant District Attorney
                                    P. O. Box 937
                                    Franklin, TN  37065-0937                              

Judge: SMITH

First Paragraph:

Appellant James C. Leveye appeals the dismissal of his petition for
post-conviction relief, presenting the following issue: whether the
trial court erred in dismissing his petition as time-barred. AFFIRMED.

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

STATE OF TENNESSEE
vs.
ROBERT KEVIN MOORE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          		FOR THE APPELLEE:

DAVID NEAL BRADY                    JOHN KNOX WALKUP 
District Public Defender            Attorney General & Reporter

H. MARSHALL JUDD                    RUTH THOMPSON 
Assistant Public Defender           Assistant Attorney General
215 Reagan Street                   425 Fifth Avenue North 
Cookeville, TN  38501               2nd Floor, Cordell Hull Building
                                    Nashville, TN  37243

                                    WILLIAM EDWARD GIBSON
                                    District Attorney General

                                    BENJIMAN W. FANN
                                    Asst District Attorney General
                        
                                    LILLIE ANN SELLS
                                    Asst District Attorney General
                                    145 South Jefferson Avenue
                                    Cookeville, TN  38501-3424                        

Judge: WOODALL

First Paragraph:

The Defendant appeals as of right from the trial court's imposition of
a twenty-five (25) year, Range I sentence for his conviction of
aggravated rape, following a guilty plea in the Putnam County Criminal
Court.  In this appeal, the Defendant argues that: (1) The trial court
erred by not requiring the State to file a written notice of the
enhancement factors it planned to use against the Defendant prior to
the sentencing hearing; (2) the trial court erred in applying
enhancement factors found in Tennessee Code Annotated section
40-35-114(6),  (7), and (10); and (3) the trial court erred in not
finding that the Defendant's lack of a criminal history was a
mitigating factor.  We affirm the judgment of the trial court.
AFFIRMED.

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

DAVID PALMER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

A. Wayne Henry                      Charles W. Burson
322 Grove Street                    Attorney General of Tennessee
P.O. Box 366                            and             
Loudon, TN 37774-0366               Clinton J. Morgan
                                    Asst Attorney General of Tennessee                  
                                    450 James Robertson Parkway     
                                    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 petitioner, David Palmer, appeals as of right from the trial
court's summary dismissal of his second petition for post-conviction
relief.  The trial court dismissed the petition on various grounds,
including the petition's failure to state a claim for relief that had
not been waived or previously determined.  The sole issue for our
review is whether the trial court erred by dismissing the petition. 
We conclude that it did not. AFFIRMED.

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

JIMMY RAY POTTER
vs.
STATE OF TENNESSEE

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules.  Finding that the
trial court properly denied post-conviction relief, we grant the
state's motion to affirm the judgment pursuant to Rule 20.

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

RONALD RICKMAN
vs.
STATE OF TENNESSEE

with CONCURRING OPINION

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

WILLIAM P. REDICK, JR.              CHARLES W. BURSON
Post Office Box 187                 Attorney General and Reporter
6750 Old Hickory Blvd.  
Whites Creek, TN  37189             JOHN P. CAULEY
                                    Assistant Attorney General                 
(ON APPEAL)                         Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243 0493
                                            
WILLIAM P. REDICK, JR., 
Director
PAUL BOTTEI,                        JAMES J. CHALLEN, III
Staff Attorney                      Assistant District Attorney                 
Capital Case Resource Center        Criminal Justice Complex
of Tennessee                        Suite 301, 201 Poplar Ave.
704 18th Ave. South                 Memphis, TN  38103      
Nashville, TN  37203                        

Judge: Hayes

First Paragraph:

The appellant, Ronald Rickman, appeals the post-conviction court's
summary dismissal of his third petition for post-conviction court
relief.  In 1978, the appellant was convicted of first degree murder
and sentenced to death for the contract killing of Deborah Lee
Groseclose, the wife of his co-defendant, William Groseclose.  In
1981, our supreme court affirmed the appellant's conviction.  State v.
Groseclose and Rickman, 615 S.W.2d 142 (Tenn.), cert. denied, 454 U.S.
882, 102 S.Ct. 367 (1981).  In 1982, the appellant filed his first
petition for post conviction relief, which the post-conviction court
denied following the appointment of counsel and a full evidentiary
hearing.  This court affirmed the lower court's judgment.  Groseclose
and Rickman v. State, No. 9 (Tenn. Crim. App. at Nashville, February
16, 1984).  Our supreme court denied the appellant permission to
appeal, and the United States Supreme Court denied certiorari. 
Rickman v. Tennessee, 469 U.S. 963, 105 S.Ct. 363 (1984).  In 1985,
the appellant filed a Petition for Writ of Habeas Corpus in federal
district court.  Subsequently, in 1989, while his habeas corpus
petition was still pending in federal district court, the appellant
filed his second petition for post-conviction relief.  In 1990, the
post-conviction court dismissed the appellant's petition without an
evidentiary hearing.  This court affirmed the lower court's judgment. 
Rickman v. State, No. 15 (Tenn. Crim. App. at Jackson, September 11,
1991), perm. to appeal denied, (Tenn. 1992).  In 1994, pursuant to the
appellant's motion for partial summary judgment of his habeas corpus
petition, the federal district court vacated the appellant's sentence
of death.  Rickman v. Dutton, 854 F. Supp. 1305 (M.D. Tenn. 1994). 
Thereafter, in a separate opinion, the federal district court vacated
the appellant's conviction for first degree murder.  Rickman v.
Dutton, 864 F.Supp. 686 (M.D. Tenn. 1994).  The federal district
court's opinions are now on appeal before the United States Court of
Appeals for the Sixth Circuit. AFFIRMED.

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

ROGER LEE SAWYERS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:


GREG EICHELMAN                      JOHN KNOX WALKUP
Public Defender                     Attorney General & Reporter

D. CLIFTON BARNES                   MICHAEL J. FAHEY, II
Asst. Public Defender               Asst. Attorney General
1609 College Park Dr., Box 11       450 James Robertson Pkwy.   
Morristown, TN   37813-1618         Nashville, TN  37243-0493
                
                                    C. BERKELEY BELL
                                    District Attorney General

                                    VICTOR J. VAUGHN
                                    Asst. District Attorney General
                                    510 Allison St.
                                    Morristown, TN   37814                         

Judge: PEAY

First Paragraph:

The petitioner filed for post-conviction relief which was denied by
the trial court.  This Court affirmed.  The Tennessee Supreme Court
subsequently reversed and remanded for a hearing.  Following the
ordered hearing, the court below denied relief, from which the
petitioner now appeals.  Upon our review of the record, we affirm the
judgment. AFFIRMED.

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

STATE OF TENNESSEE
vs.
ROBERT SCOTT

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Dicken E. Kidwell                   John Knox Walkup
Attorney at Law                     Attorney General & Reporter
300 East Vine Street                500 Charlotte Avenue
Murfreesboro, TN 37130              Nashville, TN 37243-0497
(Appeal Only)
                                    Michael J. Fahey, II
Guy R. Dotson, Jr.                  Assistant Attorney General
Attorney at Law                     450 James Robertson Parkway
102 South Maple Street              Nashville, TN 37243-0493
Murfreesboro, TN 37130
(Trial Only)                        William C. Whitesell, Jr.
                                    District Attorney General
                                    303 Rutherford Cty Judicial Bldg
                                    Murfreesboro, TN 37130

                                    Thomas F. Jackson, Jr.
                                    Asst District Attorney General
                                    303 Rutherford Cty Judicial Bldg
                                    Murfreesboro, TN 37130                         

Judge: Jones

First Paragraph:

The appellant, Robert Scott (defendant), was convicted of aggravated
sexual battery, a Class B felony, by a jury of his peers.  The trial
court, finding the defendant to be a standard offender, imposed a
Range I sentence consisting of confinement of eight (8) years in the
Department of Correction.  In this Court, the defendant raises
numerous issues.  After a thorough review of the record, the briefs of
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
reversed and this cause remanded to the trial court for a new trial. 
The trial court explicitly expressed dissatisfaction with the verdict
of the jury, but upheld the verdict when considering the matter as the
thirteenth juror. REVERSED AND REMANDED FOR A NEW TRIAL.

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

STATE OF TENNESSEE
vs.
ERIC D. WALLACE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

W. Mark Ward                        John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
147 Jefferson Avenue, Suite 900     500 Charlotte Avenue
Memphis, TN 38103                   Nashville, TN 37243-0497

Betty Jo Thomas                     Daryl J. Brand
Assistant Public Defender           Assistant Attorney General
201 Poplar Avenue, Suite 2-01       450 James Robertson Parkway
Memphis, TN 38103                   Nashville, TN 37243-0393

OF COUNSEL:                         William L. Gibbons
                                    District Attorney General
A C Wharton, Jr.                    201 Poplar Avenue, Suite 3-01
Shelby County Public Defender       Memphis, TN 38103
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103                   Jerry R. Kitchen
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103                        

Judge: Jones

First Paragraph:

The appellant, Eric D. Wallace (defendant), was convicted of first
degree murder and attempt to commit first degree murder, a Class A
felony, by a jury of his peers.  The defendant was sentenced to life
in the Department of Correction for the offense of murder first
degree.  The trial court, finding the defendant to be a standard
offender, imposed a Range I sentence consisting of confinement for
fifteen (15) years in the Department of Correction for the offense of
attempt to commit first degree murder.  The sentences are to be served
consecutively.  In this Court the defendant contends (a) the evidence
is insufficient to support his convictions and (b) the trial court
abused its discretion by ordering the sentences to be served
consecutively.  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 that the judgment of the
trial court should be affirmed. AFFIRMED.

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

STATE OF TENNESSEE
vs.
ERIC D. WALLACE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

Daniel J. Runde                     John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
128 North Second Street             500 Charlotte Avenue
Pulaski, TN 38478                   Nashville, TN 37243-0497

OF COUNSEL:                         M. Allison Thompson
                                    Assistant District Attorney
Shara Ann Flacy                     450 James Robertson Parkway
District Public Defender            Nashville, TN 37243-0493
128 North Second Street             
Pulaski, TN 38478                   T. Michael Bottoms
                                    District Attorney General
                                    P.O. Box 459
                                    Lawrenceburg, TN 38464

                                    James G. White, II
                                    Asst District Attorney General
                                    P.O. Box 459
                                    Lawrenceburg, TN 38464                        

Judge: Jones

First Paragraph:

The appellant, Roland John Welch (defendant), was convicted of
attempted voluntary manslaughter, a Class D felony, by a jury of his
peers.  The trial court, finding that the defendant was a multiple
offender, imposed a Range II sentence consisting of confinement for
eight (8) years in the Department of Correction.  In this Court, the
defendant contends the admission of certain hearsay statements
constituted reversible error, and the trial court misapplied certain
mitigating factors and aggravating circumstances.  After a thorough
review of the record, the briefs submitted by the parties, and the law
governing the issues, 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/WELCHRJ_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
ROSIE LEE WOOTEN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

B. Campbell Smoot                   Charles W. Burson
Public Defender                     Attorney General
P.O. Box 260
Tullahoma, TN 37388                 Michelle K. Hohnke
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0488

                                    C. Michael Layne
                                    District Attorney General
                                    P.O. Box l47
                                    Manchester, TN 37355
                         
Judge: SCOTT

First Paragraph:

The appellant, Rosie Lee Wooten, appeals the sentence imposed upon her
following her plea of guilty to the charge of voluntary manslaughter. 
The trial judge sentenced the appellant to a term of three years
imprisonment in the Tennessee Department of Correction as a Range I
standard offender. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/WOOTENRL_OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/WOOTENRL_DIS.WP6

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