TBALink Opinion-Flash

October 10, 1997 -- Volume #3 -- Number #098

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):
02-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
02-New Opinons From TCA
11-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • 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.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you 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


STATE OF TENNESSEE 
vs.
BETTY D. LEVANDOWSKI

Court:TSC

Attorneys: 

For Appellant:                  For Appellee:

KENNETH F. IRVINE, JR.          JOHN KNOX WALKUP
Knoxville, TN                   Attorney General and Reporter

                                MICHAEL E. MOORE
                                Solicitor General
                        
                                ELIZABETH T. RYAN
                                Assistant Attorney General
                                Nashville, TN
                        
                                H. GREELEY WELLS, JR.
                                District Attorney General

                                NANCY STALLARD HARR
                                BARRY P. STAUBUS
                                Assistant District Attorneys General
                                Blountville, TN                         

Judge: BIRCH

First Paragraph:

In this appeal, we must determine whether a false response from an
individual to an inquiry made by a law enforcement officer constitutes
a false report within the meaning of Tenn. Code Ann. S 39-16-502(a)(1)
(1991).  After careful review, we hold that S 39-16-502(a)(1) applies
to statements volunteered or initiated by an individual but does not
apply to statements made in response to inquiries by law enforcement
officers.  Accordingly, the judgment of the Court of Criminal Appeals
is affirmed.

URL:http://www.tba.org/tba_files/TSC/LEVANDOW_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
MERLIN EUGENE SHUCK

Court:TSC

Attorneys: 

FOR STATE/APPELLANT                 FOR DEFENDANT/APPELLEE:
John Knox Walkup                    Charles R. Terry
Attorney General & Reporter         Denise S. Terry
                                    Morristown, Tennessee

Michael E. Moore                    Thomas F. Bloom
Solicitor General                   Nashville, Tennessee
                                    (Appeal Only)

Gordon Smith
Associate Solicitor General

Michael J. Fahey, II
Assistant Attorney General
Nashville, Tennessee 

Alfred C. Schmutzer, Jr.
District Attorney General

James B. Dunn
Assistant District Attorney General
Fourth Judicial District
Sevierville, Tennessee                         

Judge: DROWOTA

First Paragraph:

The defendant, Merlin Eugene Shuck, was convicted of one count of 
solicitation to commit first degree murder and two counts of
solicitation to commit especially aggravated kidnaping.  The defense
theory at trial was entrapment, and in support of that defense, Shuck
sought to introduce expert testimony from a neuropsychologist that he
had suffered a cognitive decline and significant deterioration of his
cognitive abilities which rendered him more susceptible to inducement
than the average person.  The trial judge refused to admit the
testimony finding that it would invade the province of the jury. 
Concluding that the trial court abused its discretion in excluding the
testimony, the Court of Criminal Appeals reversed the convictions and
ordered a new trial.  Thereafter, we granted the State permission to
appeal to consider whether expert psychological testimony about a
defendant's susceptibility to inducment is admissible under Tennessee
law to establish entrapment.

URL:http://www.tba.org/tba_files/TSC/SHUCKME_OP.WP6
Opinion-Flash

AMBERJACK, LTD., INC.,      
d/b/a NONCONNAH CORPORATE   
CENTER,                 
vs. 
FRED THOMPSON, Individually, and    
d/b/a THOMPSON QUALITY      
MANAGEMENT, INC. and THOMPSON
QUALITY MANAGEMENT, INC.

Court:TCA

Attorneys:

For the Plaintiff/Appellant     For the Defendant/Appellee, Fred Thompson:

Monique A. Nassar               Beth Brooks       
Memphis, Tennessee              Germantown, Tennessee                            

Judge: SWEARENGEN

First Paragraph:

This lawsuit involves the breach of a lease agreement.  The corporate
lessee vacated the premises and stopped paying rent; consequently, the
lessor filed suit.  The trial court found the lessee in breach of the
lease, but found the lease agreement unconscionable, held that the
lessor failed to mitigate its damages, and held that the president of
the corporate lessee could not be held personally liable.  We affirm
the trial court's finding of a breach, but reverse its remaining
findings and award the lessor damages for the entire term of the
lease.

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

JAMES C. HISE, JR. and wife,    
BRENDA L. HISE
vs.
STATE OF TENNESSEE
DEPARTMENT OF   
TRANSPORTATION, BRUCE   
SALTSMAN, COMMISSIONER

Court:TCA

Attorneys:

John D. Horne, THE WINCHESTER LAW FIRM, Memphis, Tennessee
Attorney for Plaintiffs/Appellants.

John Knox Walkup, Attorney General & Reporter
Michael E. Moore, Solicitor General
Larry M. Teague, Senior Counsel
Attorney for Defendants/Appellees.

Judge: FARMER

First Paragraph:

James C. Hise, Jr. and wife, Brenda L. Hise sued the State of
Tennessee, the Department of Transportation and its commissioner for
damages in an inverse condemnation action.  The complaint alleges
that, after conveying a portion of their property to the state, they
learned that the project adversely impacted their commercial property.
The defendants filed a motion to dismiss on the basis of sovereign
immunity.  The motion was granted and the plaintiffs appealed.

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

STATE OF TENNESSEE
vs.
DEBRA SUE BENSON

Court:TCCA

Attorneys:


FOR THE APPELLANT:              FOR THE APPELLEE:

Paula R. Voss                   John Knox Walkup
Assistant Public Defender       Attorney General & Reporter
1209 Euclid Avenue              500 Charlotte Avenue
Knoxville, TN  37921            Nashville, TN  37243-0497
(Appeal Only)
                                Michael J. Fahey, II
John Halstead                   Assistant Attorney General
Assistant Public Defender       450 James Robertson Parkway
1209 Euclid Avenue              Nashville, TN  37243-0493
Knoxville, TN  37921
(Trial Only)                    Randall E. Nichols
                                District Attorney General
OF COUNSEL:                     P. O. Box 1468 
Mark E. Stephens                Knoxville, TN  37901-1468
District Public Defender
1209 Euclid Avenue              Marsha L. K. Selecman
Knoxville, TN  37921            Assistant District Attorney General
                                P. O. Box 1468
                                Knoxville, TN  37901-1468                          

Judge: Jones

First Paragraph:

The appellant, Debra Sue Benson (defendant), appeals as of right from
a judgment of the trial court revoking her probation.  The defendant
did not contest the grounds established by the State of Tennessee to
support the revocation of her probation.  In this Court, the defendant
contends she was suffering from a mental illness when the violations
of her probation occurred, and, as a result, she was not capable of
complying with the conditions of probation previously imposed by the
trial court.  After a thorough review of the record, the briefs
submitted by the parties, and the law governing the issue presented
for review, it is the opinion of this Court the judgment of the trial
court should be affirmed.

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

JEFFERY L. BRADEN
vs. 
STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

JEFFERY L. BRADEN, pro se           JOHN KNOX WALKUP 
Inmate #158340                      Attorney General & Reporter
Cold Creek Correctional Facility
P.O. Box 1000                       JANIS L. TURNER 
Henning, TN  38041-1000             Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    DAWN DORAN 
                                    Asst District Attorney General
                                    201 Poplar Avenue, Ste. 301
                                    Memphis, TN  38103                          

Judge:WOODALL

First Paragraph:

The Petitioner, Jeffery L. Braden, appeals as of right from the trial
court's dismissal of his second petition for post-conviction relief
without an evidentiary hearing or appointment of counsel.  The
petition was filed in the Criminal Court of Shelby County, Tennessee
on May 2, 1996.  The allegations of the petition set forth that he
pled guilty to first degree murder in the trial court on September 11,
1991 and received a sentence of life imprisonment.  His first petition
for post-conviction relief, alleging ineffective assistance of counsel
was denied on September 14, 1992.  If an appeal was taken from this
order, it is not in the record.

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

STATE OF TENNESSEE
vs.
GEORGE WILLIAM CAIN

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

ARDENA J. GARTH                     JOHN KNOX WALKUP 
District Public Defender            Attorney General & Reporter

DONNA ROBINSON MILLER               MARVIN E. CLEMENTS, JR.
Assistant Public Defender           Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
KARLA GOTHARD                       425 Fifth Avenue North 
Assistant Public Defender           Nashville, TN  37243-0943
701 Cherry Suite - Suite 300 
Chattanooga, TN  37402              WILLIAM H. COX, III
                                    District Attorney General

                                    BATES W. BRYAN, JR.
                                    Asst District Attorney General
                                    Chattanooga-Hamilton County  
                                    Courts Building
                                    Chattanooga, TN  37402                           

Judge:WOODALL

First Paragraph:

The Petitioner, George William Cain, appeals the order of the Hamilton
County Criminal Court dismissing his petition for post-conviction
relief.  The trial court found that the relief requested was barred by
the statute of limitations and dismissed the petition without an
evidentiary hearing.  On appeal, the Petitioner argues that Tennessee
Code Annotated section 40 30-201 et seq. (Supp. 1996), provides for a
"one year window of opportunity" to file for post-conviction relief
through May 10, 1996.  In the alternative, Petitioner argues that
application of the statute of limitations to his petition would
violate constitutional due process guarantees.  Finding no merit to
the Petitioner's arguments, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
JACKIE CROWE

Court:TCCA

Attorneys:


FOR THE APPELLANT                   FOR THE APPELLEE

Gregory D. Smith                    Charles W. Burson
One Public Square, Suite 321        Attorney General & Reporter
Clarksville, TN 37040
                                    Peter M. Coughlan
                                    Assistant Attorney General      
                                    450 James Robertson Parkway                             
                                    Nashville, TN  37243 0493   

Judge: BYERS

First Paragraph:

The defendant was convicted by jury of two counts of rape and two
counts of incest.  He was sentenced as a Range I, standard offender to
twelve (12) years for each rape conviction and to six (6) years for
each incest conviction to the custody of the Department of Correction.
The trial court ordered the defendant to serve the rape convictions
consecutive to each other and consecutive to prior unserved sentences
but concurrent with the incest convictions.  The trial court also
imposed fines in the amount of $25,000 for each rape conviction and
$10,000 for each incest conviction.

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

STATE OF TENNESSEE
vs.
LESTER LEE DOYLE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

GUY T. WILKINSON                JOHN KNOX WALKUP 
District Public Defender        Attorney General and Reporter
24th Judicial District
117 Forrest Avenue North        JANIS L. TURNER
P. O. Box 663                   Assistant Attorney General
Camden, TN 38320                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                G. ROBERT RADFORD    
                                District Attorney General

                                TODD A. ROSE 
                                Assistant District Attorney General
                                P. O. Box 94 
                                Paris, TN 38242                          

Judge:RILEY

First Paragraph:

The defendant, Lester Lee Doyle, was convicted by a Benton County jury
of driving under the influence of an intoxicant, second offense, and
driving on a revoked license.  The sole issue presented on appeal is
whether the evidence adduced at trial is sufficient to support the
jury's verdict.  We affirm the conviction.

URL:http://www.tba.org/tba_files/TCCA/doylel~1_wpd.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
THEODORE FOSTER

Court:TCCA

Attorneys:


FOR THE APPELLANT:              FOR THE APPELLEE:

MARTIN J. LEVITT                JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
312 Vine St.
Chattanooga, TN  37403          MARVIN E. CLEMENTS, JR.
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493    

                                WILLIAM H. COX
                                District Attorney General

                                BATES BRYAN, JR.
                                Asst. District Attorney General
                                600 Market St., Ste. 310
                                Chattanooga, TN  37402                          

Judge: WITT 

First Paragraph:

The defendant, Theodore Foster, is aggrieved of the Hamilton County
District attorney's denial of his application for pretrial diversion
and the Hamilton County Criminal Court's denial of his petition
seeking reversal of that determination.  Foster is under indictment
for vehicular homicide, a Class C felony.  In this interlocutory
appeal, Foster contends the District Attorney's office acted
arbitrarily in denying his application for diversion.  After a
thorough review of the record, we affirm.

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

KENNETH EUGENE      
GOODMAN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

MELINDA MEADOR                      JOHN KNOX WALKUP
234 Forks of the River Parkway      Attorney General and Reporter
Sevierville, TN 37862
                                    PETER M. COUGHLAN
                                    Assistant Attorney General
                                    425 5th Avenue North
                                    Nashville, TN 37243

                                    BILL COX
                                    District Attorney General
                                    600 Market Street
                                    Chattanooga, TN 37402-1972                          

Judge:WELLES

First Paragraph:

The Petitioner, Kenneth Eugene Goodman, 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 a writ of error coram nobis /
motion to vacate judgment" on November 16, 1995.  The trial court
considered the petition both as one for a writ of error coram nobis
and as one for post-conviction relief.  On November 27, 1995, 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.

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

RALPH DEAN PURKEY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:FOR THE APPELLANT         FOR THE APPELLEE

Charles R. Ray, Esq.                Charles W. Burson
211 Third Avenue North              Attorney General & Reporter
P.O. Box 198288
Nashville, TN  37219                Marvin E. Clements, Jr.
                                    Assistant Attorney General      
                                    450 James Robertson Parkway                             
                                    Nashville, TN  37243 0493                             

Judge: BYERS

First Paragraph:

This is an appeal from the summary dismissal of a petition for post
conviction relief.

URL:http://www.tba.org/tba_files/TCCA/purkey2_cca.WP6
Opinion-Flash

GEORGE EDWARD RAYFORD
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

RICHARD F. VAUGHN               JOHN KNOX WALKUP
1928 - 100 N. Main              Attorney General and Reporter
Memphis, TN  38103  
                                ELIZABETH T. RYAN
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                WILLIAM GIBBONS
                                District Attorney General

                                MS. RHEA CLIFT
                                Asst. District Attorney General
                                Criminal Justice Complex
                                Suite #301, 201 Poplar St.
                                Memphis, TN  38103                          

Judge: Hayes

First Paragraph:

The appellant, George Edward Rayford, appeals as of right from the
trial court's dismissal of his petition for post-conviction relief. 
Specifically, the appellant contends that he was deprived of the
ability to enter intelligent and voluntary guilty pleas due to the
ineffective assistance of counsel.  After an evidentiary hearing, the
Criminal Court of Shelby County concluded that the appellant failed to
show by a preponderance of the evidence that he received ineffective
assistance of counsel at his guilty plea hearing.

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

STATE OF TENNESSEE
vs.
HOLLIS G. WILLIAMS

Court:TCCA

Attorneys:FOR THE APPELLANT:        FOR THE APPELLEE:

W. Mark Ward                        John Knox Walkup 
Asst. Shelby County Public          Defender    Atty General & Reporter
147 Jefferson, Suite 900            500 Charlotte Avenue
Memphis, TN  38103                  Nashville, TN  37243-0497
(On Appeal)
                                    Robin L. Harris
Ronald S. Johnson                   Assistant Attorney General
Asst. Shelby County Public Defender 450 James Robertson Parkway
201 Poplar Avenue, Suite 201        Nashville, TN  37243-0493
Memphis, TN  38103-1947
(At Trial)                          William L. Gibbons
                                    District Attorney General
Betty J. Thomas                     201 Poplar Avenue, Suite 301
Asst. Shelby County Public Defender Memphis, TN  38103-1947
201 Poplar Avenue, Suite 201
Memphis, TN  38103-1947             James C. Beasley, Jr.
(At Trial)                          Asst District Attorney General
                                    201 Poplar Avenue, Suite 301
OF COUNSEL:                         Memphis, TN  38103-1947

A C Wharton, Jr.                    Amy J. Weirich
Shelby County Public Defender       Assistant District Attorney General
201 Poplar Avenue, Suite 201        201 Poplar Avenue, Suite 301
Memphis, TN  38103-1947             Memphis, TN  38103-1947                          

Judge: Jones

First Paragraph:

The appellant, Hollis G. Williams (defendant), was convicted of
first-degree felony murder by a jury of his peers.  The State of
Tennessee sought the extreme penalty of death.  However, the jury set
his punishment at life without the possibility of parole.  The
defendant presents three issues for review.  He contends (a) the
evidence is insufficient, as a matter of law, to support his
conviction for a murder committed during an attempt to commit robbery,
(b) the trial court committed error of prejudicial dimensions by
ruling his two convictions for attempt to commit robbery could be used
to impeach him if he opted to testify in support of his defense, and
(c) the trial court committed error of prejudicial dimensions by
permitting the state to introduce victim impact testimony during the
sentencing hearing.  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.

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

STATE OF TENNESSEE
vs.
JOHN PARNELL YAUGHER

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

J. THOMAS MARSHALL, JR.             JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

NANCY CAROL MEYER                   EUGENE J. HONEA
Assistant Public Defender           Assistant Attorney General
101 South Main Street, Suite 450    425 Fifth Avenue North 
Clinton, TN  37716                  2nd Floor, Cordull Hull Building
                                    Nashville, TN  37243

                                    JAMES N. RAMSEY 
                                    District Attorney General

                                    JANICE G. HICKS
                                    Asst District Attorney General
                                    127 Anderson County Courthouse
                                    Clinton, TN  37716                         

Judge:WOODALL

First Paragraph:

The Defendant, John Parnell Yaugher, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure.  The Defendant
was convicted following a jury trial in Anderson County of the offense
of rape of a child.   On appeal, the Defendant challenges the
sufficiency of the allegations in the indictment to charge an offense.
Also, the Defendant challenges the sufficiency of the evidence to
sustain the conviction and specifically argues that his confession was
uncorroborated, that there was no proof of penetration, and that the
State failed to prove beyond a reasonable doubt that he was sane at
the time of the offense.  Further, the Defendant argues that the trial
court erred in denying a motion to suppress his statement to
investigators and by charging in the jury instructions the lesser
grade offense of aggravated sexual battery.  Finding no error, and
that the indictment and the evidence are sufficient, we affirm the
judgment of the trial court.

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

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1998 Tennessee Bar Association