TBALink Opinion-Flash

October 27, 1997 -- Volume #3 -- Number #108

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

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TBALink Chief Editor


KELLY CARR
vs.
UNITED PARCEL SERVICE, ET AL.

Court:TSC

Attorneys:
FOR PLAINTIFF:                  FOR DEFENDANTS:
Deanna C. Bell                  Charles Hampton White
Nashville                       Rebecca Wells Demaree
                                Nashville


FOR AMICUS CURIAE,
TENNESSEE MUNICIPAL             FOR AMICUS CURIAE,
LEAGUE RISK MANAGEMENT,         JOYCE M. GRIMES:
ET AL.:                         Joyce M. Grimes
Pamela Lynn Reeves              Nashville
Knoxville
                          

Judge:HOLDER

First Paragraph:

This case comes to us on a certified question of law.  The plaintiff,
Kelly Carr, filed a sexual harassment action in the United States
District Court for the Middle District of Tennessee alleging
violations of both Title VII of the Civil Rights Act of 1964 ("Title
VII") and the Tennessee Human Rights Act ("THRA").  She named as
defendants her employer, United Parcel Service ("UPS"), and three UPS
employees, Ron Foster, Martin Sisk, and Andrew Martin.  Foster, Sisk,
and Martin filed a motion for judgment on the pleadings arguing that
they could not be held individually liable under either Title VII or
the THRA.  The district court entered an order requesting this Court
"to resolve the issue of whether a defendant can be held individually
liable under THRA."  We accepted certification of the question.  We
hold that, under the facts as certified to us, the THRA does not
impose individual liability in this case.

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

TALMADGE CARVER, et al. 
vs.
CITIZEN UTILITIES COMPANY d/b/a 
CITIZENS TELECOMMUNICATIONS 
COMPANY OF TENNESSEE

Court:TSC

Attorneys:

FOR PETITIONER:                     FOR RESPONDENTS:
R. Eddie Wayland                    Ronald C. Koksal
M. Kim Vance                        Knoxville
Jonathan G. Chance                  Jon Edward Jones
Nashville                           Cookeville


FOR AMICUS CURIAE,
TENNESSEE MUNICIPAL
LEAGUE RISK MANAGEMENT,
THE CITY OF KNOXVILLE, AND
KNOXVILLE MAYOR VICTOR ASHE:
Pamela L. Reeves
Knoxville                          

Judge:HOLDER

First Paragraph:

This case comes to us on a certified question of law.  The plaintiffs,
Talmadge G. Carver, Everett L. Bolin, Jr., Earlene G. Hart, and
Melinda D. Robinson, filed suits in the United States District Court
for the Middle District of Tennessee alleging violations of the Age
Discrimination and Employment Act (ADEA), the Employment Retirement
Income Security Act (ERISA), and the Tennessee Human Rights Act
(THRA).  They seek punitive damages under the THRA.  The defendants,
Citizens Utilities Company d/b/a Citizens Telecommunications Company
of Tennessee, filed motions to dismiss the plaintiffs' claims for
punitive damages.  The district court has certified the following
question for our resolution:  whether punitive damages are available
under the THRA?  We accepted certification and hold that punitive
damages are available under the THRA only for claims involving
discriminatory housing practices and malicious harassment.

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

STATE OF TENNESSEE
vs.
CHARLES BOURGEOIS

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

FRANK LANNOM                        JOHN KNOX WALKUP
Attorney at Law                     Attorney General & Reporter
P.O. Box 649
Lebanon, TN  37088-0649             ELLEN H. POLLACK
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    TOM P. THOMPSON, JR.
                                    District Attorney General

                                    DOUG HALL
                                    Asst District Attorney General
                                    111 Cherry Street
                                    Lebanon, TN  37087
                          

Judge: WITT 

First Paragraph:

The defendant, Charles Bourgeois, appeals his conviction of driving
under the influence.  Bourgeois was convicted following a jury trial
in the Wilson County Criminal Court.  The court sentenced him to serve
11 months, 29 days, with all but 10 days suspended in favor of
probation, revoked his driver's license for one year, and fined him
$350.00 plus costs.  In this direct appeal, Bourgeois alleges the
trial court improperly admitted evidence of the level of alcohol in
his blood.  Although we find no merit in this argument, we
nevertheless reverse the defendant's conviction and remand for a new
trial, based upon plain error in the trial court's instruction to the
jury.

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

STATE OF TENNESSEE
vs.
CARL E. CAMPEN

Court:TCCA

Attorneys: 
FOR THE APPELLANT:                  FOR THE APPELLEE:

CHRISTOPHER VAN RIPER               JOHN KNOX WALKUP
Stuart & Van Riper                  Attorney General and Reporter
300 Market Street
Clinton, TN  37716                  KAREN M. YACUZZO
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    MICKEY LAYNE
                                    District Attorney General
    
                                    STEPHEN E. WEITZMAN
                                    Assistant District Attorney
                                    P. O. Box 147
                                    Manchester, TN  37355                         

Judge: SMITH

First Paragraph:

A Coffee County Circuit Court jury found Appellant Carl E. Campen
guilty of driving under the influence of an intoxicant (DUI), fourth
offense, and driving on a revoked license.  For the DUI conviction,
Appellant received a sentence of eleven months twenty-nine days in the
county jail and a fine of seven thousand dollars.  For the driving on
a revoked license conviction, he received a sentence of one hundred
eighty days in the county jail and a fine of five hundred dollars. 
The trial court ordered the sentences served consecutively.

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

STATE OF TENNESSEE
vs.
DAVID M. CANTRELL

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN H. HENDERSON                   JOHN KNOX WALKUP 
District Public Defender            Attorney General & Reporter
407-C Main Street
P.O. Box 68                         KAREN M. YACUZZO 
Franklin, TN  37065                 Assistant Attorney General
                                    425 Fifth Avenue North 
                                    2nd Floor, Cordell Hull Bldg
                                    Nashville, TN  37243

                                    JOSEPH D. BAUGH, JR.
                                    District Attorney General

                                    RONALD L. DAVIS
                                    Asst District Attorney General
                                    Williamson County Courthouse,
                                    Ste. G-6
                                    P.O. Box 937 
                                    Franklin, TN  37065                          

Judge:WOODALL

First Paragraph:

The Defendant, David L. Cantrell, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure.    Following a jury
trial in the Circuit Court of Hickman County, Defendant was convicted
of four counts of aggravated rape and one count of false imprisonment.
 He was sentenced by the trial court to serve forty (40) years for
each count of aggravated rape and eleven (11) months and twenty-nine
(29) days for the false imprisonment conviction.  Defendant was to
serve all sentences concurrently, except for two of the forty (40)
year sentences, resulting in a total sentence of eighty (80) years. 
Defendant challenges the sufficiency of the evidence and argues the
eighty (80) year sentence is excessive.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE
vs.
GEORGE WESLEY HARVILLE, JR.

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

Edward L. Boring                    John Knox Walkup
Attorney at Law                     Attorney General & Reporter
P. O. Box 381                       500 Charlotte Avenue
Pikeville, TN  37367                Nashville, TN  37243-0497

                                    Daryl J. Brand
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    J. Michael Taylor
                                    District Attorney General
                                    265 Third Avenue, Suite 300
                                    Dayton, TN  37321

                                    Will Dunn
                                    Asst District Attorney General
                                    265 Third Avenue, Suite 300
                                    Dayton, TN  37321                          

Judge: Jones

First Paragraph:

The appellant, George W. Harville, Jr., (defendant), was convicted of
aggravated assault, a Class C felony, by a jury of his peers.  The
trial court found the defendant was a standard offender and imposed a
Range I sentence consisting of a $5,000 fine and confinement for four
(4) years in the Department of Correction.  In this Court, the
defendant contends the trial court committed error of prejudicial
dimensions by failing to suppress evidence on the ground the
aggravated assault occurred after an unlawful stop by a police
officer.  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 that the judgment of the trial court
should be affirmed.

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

STATE OF TENNESSEE
vs.
FRANKLIN JENKINS

Court:TCCA

Attorneys:
FOR THE APPELLANT:                      FOR THE APPELLEE:


NATHANIEL H. KOENIG                     JOHN KNOX WALKUP
150 Second Ave., N., Suite 300          Attorney General & Reporter
Nashville, TN   37201-1902
         (On appeal)                    LISA A. NAYLOR
                                        Asst. Attorney General
SHARA FLACY                             450 James Robertson Pkwy.   
District Public Defender                Nashville, TN 7243-0493
                
LARRY NICKELL                           MIKE BOTTOMS
Asst. Public Defender                   District Attorney General
P.O. Box 1208
Pulaski, TN   38478                     RICHARD H. DUNAVANT
       (At trial)                       Asst. District Attorney General
                                        P.O. Box 304
                                        Pulaski, TN   38478                          

Judge:PEAY

First Paragraph:

The defendant was indicted for aggravated assault committed by use of
a deadly weapon.  A jury convicted him of Class D aggravated assault
and he was sentenced as a Range I standard offender to three years
incarceration.  In this direct appeal, the defendant contends that he
is entitled to a new trial because the court below failed to instruct
the jury on the lesser offense of assault.  He also challenges the
length of his sentence, contending that the trial court erred in
applying certain enhancement factors.  Upon our review of the record,
we reverse the defendant's conviction and remand this matter for
retrial.

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

STATE OF TENNESSEE
vs.
KING DAVID JOHNSON, JR.

Court:TCCA

Attorneys:
FOR THE APPELLANT:                      FOR THE APPELLEE:


HERSHELL D. KOGER                       JOHN KNOX WALKUP
P.O. Box 1148                           Attorney General & Reporter          
Pulaski, TN  38478                                                      
(On appeal)                             SARAH M. BRANCH                                 
                                        Counsel for the State       
                                        LIONEL R. BARRETT, JR.          
                                        450 James Robertson Pkwy.
Washington Square Two, Suite 417        Nashville, TN  37243-0493
222 Second Ave.
Nashville, TN  37201                    MIKE BOTTOMS
       (At trial)                        -and-
                                        ROBERT C. SANDERS
                                        District Attorney General
                                        P.O. Box 459
                                        Lawrenceburg, TN  38464                          

Judge: PEAY

First Paragraph:

The defendant was indicted in June 1993 for first-degree murder of his
girlfriend, Valerie Duke.  A jury convicted him on February 27, 1996,
of second-degree murder, and after a hearing, he was sentenced as a
Range I standard offender to twenty years in the Tennessee Department
of Correction.  In this appeal as of right, the defendant challenges
the sufficiency of the evidence and the appropriateness of his
sentence.  After a review of the record and applicable law, we affirm
his conviction and remand the cause for resentencing.

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

STATE OF TENNESSEE      
vs.
STANLEY LAWSON      

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN E. HERBISON                    JOHN KNOX WALKUP
Attorney at Law                     Attorney General & Reporter
2016 Eight Avenue South
Nashville, Tennessee 37204          DARYL J. BRAND
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243

                                    SALLIE WADE BROWN
                                    Asst District Attorney General
                                    113 West Main Street
                                    Gallitin, Tennessee, 37066
                          

Judge:WALKER

First Paragraph:

The defendant appeals a jury verdict finding him guilty of twenty-five
counts of incest.   The defendant was sentenced to seven years on each
count, with counts one through ten to be served consecutively, and the
others to be run concurrently.   The jury assessed fines of ten
thousand dollars per count.  The court reduced the fines to two
thousand dollars per count.

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

STATE OF TENNESSEE
vs.
ANTONIO D. MASON

Court:TCCA

Attorneys:
For the Appellant:                  For the Appellee:

CURTIS H. GANN                      CHARLES W. BURSON
Assistant Public Defender           Attorney General and Reporter
105 South Main  
P. O. Box 1119                      JANIS L. TURNER
Fayetteville, TN  37334             Assistant Attorney General                          
                                    Criminal Justice Division
(ON APPEAL)                         450 James Robertson Parkway
                                    Nashville, TN 37243 0493        
MICHAEL D. RANDLES      
Assistant Public Defender                       
117 S. Main, STE. 203               WILLIAM MICHAEL MCCOWN
Shelbyville, TN  37160              District Attorney General

(AT TRIAL)                          ROBERT CRIGLER
                                    Asst. District Attorney General
JOHN HARWELL DICKEY                 One Public Square, STE 100
District Public Defender            Shelbyville, TN  37160                          

Judge:Hayes

First Paragraph:

The appellant, Antonio D. Mason, appeals his jury convictions for 
attempted first degree murder, attempted aggravated robbery, and
aggravated assault.  The Bedford County Circuit Court imposed
sentences of twenty-three years and six months for the attempted first
degree murder conviction, six years for the attempted aggravated
robbery conviction, and four years and six months for the aggravated
assault conviction.  The attempted aggravated robbery conviction was
ordered to run consecutive to the attempted first degree murder
conviction, resulting in a total effective sentence of twenty-nine
years and six months.  In this appeal, the appellant contends that the
evidence presented at his jury trial was insufficient to support his
conviction for attempted first degree murder.  Second, the appellant
asserts that the sentences imposed by the trial court were excessive.

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

STATE OF TENNESSEE
vs.
PHYLISS ANN McBRIDE

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

LANCE H. SELVA                  CHARLES W. BURSON
214 West Main Street            Attorney General and Reporter
Murfreesboro, TN  37130
                                LISA A. NAYLOR          
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                WILLIAM WHITESELL
                                District Attorney General
                                Third Floor Judicial Building
                                Murfreesboro, TN  37130                          

Judge:Hayes

First Paragraph:

The appellant, Phyliss Ann McBride, appeals her conviction, by a
Rutherford County jury, for the first degree murder of her husband,
Bobby McBride. The jury fixed the appellant's sentence at imprisonment
for life.  At a separate sentencing hearing, the trial court ordered
the life sentence to run concurrently with seven prior unserved felony
sentences.  In this appeal, the appellant contends that (1) the trial
court failed to comply with the mandatory jury selection procedure set
forth in Tenn. R. Crim. P. 24(c); and (2) the trial court improperly
restricted cross-examination of a State's witness.  Additionally, the
State cross-appeals challenging the trial court's decision that the
appellant's life sentence should be served concurrently with her seven
felony sentences.

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

PERRY T. MILLER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:
For the Appellant:                  For the Appellee:

Perry T. Miller, Pro Se             Charles W. Burson
#87879                              Attorney General of Tennessee
CCA/SCCF, P.O. Box 279              and             
Clifton, TN 38425-0279              Eugene J. Honea
                                    Asst Attorney General of Tennessee                  
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    W. Michael McCown
                                    District Attorney General
                                    P.O. Box 904
                                    Fayetteville, TN 37334                          

Judge:Tipton

First Paragraph:

The petitioner, Perry T. Miller, appeals as of right from the Lincoln
County Circuit Court's summary dismissal of his petition for
post-conviction relief.  The trial court dismissed the petition,
concluding that the petition was barred by the statute of limitations
and that the grounds alleged in the petition had been waived or
previously determined.  We affirm the judgment of the trial court.

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

DAVID PETERS
vs.
RICKY BELL, WARDEN

Court:TCCA
                      
Judge: SMITH

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.  Although not for
the reasons set forth in the state's motion, we find that this is an
appropriate case for affirmance pursuant to Rule 20.

URL:http://www.tba.org/tba_files/TCCA/petersd1_ord.WP6
Opinion-Flash

LEN MARTUCCI
vs.                                     
STATE OF TENNESSEE

Court:TCCA

Attorneys:
For the Appellant:                  For the Appellee:

J. Michael Clement                  Charles W. Burson
210 Charles Seivers Blvd.           Attorney General of Tennessee
Clinton, TN 37716                   and
                                    John Patrick Cauley
                                    Asst Attorney General of TN                     
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    James N. Ramsey
                                    District Attorney General
                                    and
                                    Jan Hicks
                                    Asst District Attorney General
                                    Anderson County Courthouse
                                    Clinton, TN 37716
                          

Judge:Tipton

First Paragraph:

The petitioner, Len Martucci, appeals as of right from the Anderson
County Criminal Court's denial of his petition for post-conviction
relief after an evidentiary hearing.  The petitioner has filed a
somewhat rambling, ninety-five page brief in this court raising a
panoply of issues.  Essentially, the petitioner argues that he is
entitled to post-conviction relief.

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

STATE OF TENNESSEE
vs.
FREDERICK R. PORTER

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:


CHARLES L. BEACH                    JOHN KNOX WALKUP
365 Market St.                      Attorney General & Reporter
Clinton, TN  37716
(At trial and on appeal)            MARVIN E. CLEMENTS, JR.
                                    Asst. Attorney General
DEBORAH MURPHY BEACH                450 James Robertson Pkwy.
365 Market St.                      Nashville, TN  37243-0493
Clinton, TN  37716              
    (At trial)                      ROBERT L. JOLLEY, JR.                                  
    							    Special Prosecutor
DAVID HILL                          P. O. Box 1468
301 E. Broadway                     Knoxville, TN  37901-1468
Newport, TN  37821-3105
    (At trial)                                    

Judge:PEAY

First Paragraph:

The defendant was charged with the premeditated murder of Gerald
Brown, the felony murder of Gerald Brown, and the attempted
premeditated murder of Jerome Anderson.  After a jury trial, he was
convicted of the second-degree murder of Gerald Brown and attempted
second-degree murder of Jerome Anderson; following the verdict, the
trial court dismissed the charge of felony murder.  After a hearing,
the trial court sentenced the defendant as a Range I standard offender
to twenty-five years incarceration for the murder offense and twelve
years incarceration on the attempted murder offense.  The sentences
were run consecutively.

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

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