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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.
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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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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