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TBALink Opinion-Flash
November 4, 1997 -- Volume #3 -- Number #112
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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- 03-New Opinons From TSC
- 01-New Opinons From TSC-Rules
- 00-New Opinons From TSC-Workers Comp Panel
- 04-New Opinons From TCA
- 07-New Opinons From TCCA
- 03-New Opinons From TSC
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George Dean
TBALink Chief Editor
STATE OF TENNESSEE vs. BOBBY ED BEGLEY Court:TSC Attorneys: For Appellant: For Appellee: JEFFREY A. DEVASHER JOHN KNOX WALKUP Nashville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General KATHY A. MORANTE Deputy Attorney General Nashville, TN VICTOR S. JOHNSON, III District Attorney General KATIE MILLER Assistant District Attorney General Nashville, TN Judge:BIRCH First Paragraph: We granted the defendant's application for permission to appeal in order to determine whether the trial court abused its discretion in admitting testimony concerning the results of a certain method of DNA analysis. While we have previously considered the admission of the results of DNA analysis using the "restriction fragment length polymorphism" (RFLP) method, we address for the first time the admission of testimony regarding DNA analysis using the "polymerase chain reaction" (PCR) method. PCR is to be distinguished from RFLP, the method more statistically precise and firmly established in both the scientific and legal community. After a jury-out hearing, the trial court admitted expert testimony about the results of the PCR analysis performed on the defendant's clothing, and the Court of Criminal Appeals upheld the trial court's determination. URL:http://www.tba.org/tba_files/TSC/begleyb_opn.WP6
STATE OF TENNESSEE
vs.
ROGER DALE HILL, SR.
Court:TSC
Attorneys:
For Appellee: For Appellant:
SHARA ANN FLACY JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
WILLIAM C. BRIGHT KATHY MORANTE
Assistant Public Defender Deputy Attorney General
Pulaski, TN Nashville, TN
T. MICHAEL BOTTOMS
District Attorney General
RICHARD H. DUNAVANT
Assistant District Attorney
General
Pulaski, TN
Judge:BIRCH
First Paragraph:
We accepted the State's application for review in this cause in order
to determine the validity of an indictment which charged aggravated
rape. The Court of Criminal Appeals held the indictment void and the
subsequent conviction invalid because the language of the indictment
failed to allege a culpable mental state.
URL:http://www.tba.org/tba_files/TSC/hillr_opn.WP6
STATE OF TENNESSEE
vs.
LARRY WAYNE STOKES
Court:TSC
Attorneys:
For Appellant: For Appellee:
LARRY WAYNE STOKES, pro se JOHN KNOX WALKUP
Only, TN Attorney General and Reporter
KATHY MORANTE
Deputy Attorney General
Nashville, TN
JOSEPH D. BAUGH, JR.
District Attorney General
JEFFREY P. BURKS
Assistant District Attorney
General
Franklin, TN
Judge:BIRCH
First Paragraph:
Larry Wayne Stokes, the appellant, was convicted in the Circuit Court
of Williamson County of rape of a child, in violation of Tenn. Code
Ann. S 39-13-522 (Supp. 1995). He currently serves a fifteen-year
sentence in the Department of Correction.
URL:http://www.tba.org/tba_files/TSC/stokesl_opn.WP6
SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
November 3, 1997
Court:TSC - Rules
URL:http://www.tba.org/tba_files/TSC_RULES/STATELST8_WPD.WP6
STATE OF TENNESSEE,
DEPARTMENT OF
CHILDREN'S SERVICES
vs.
YVONNE BARDIN
Court:TCA
Attorneys:
Lorraine Raymond, Chattanooga, for Appellant.
John Knox Walkup, Attorney General & Reporter, and Douglas Earl
Dimond, Assistant Attorney General, Nashville, for Appellee.
Judge:INMAN
First Paragraph:
The parental rights of Yvonne Bardin were terminated by the Juvenile
Court of Hamilton County and she appeals. Four (4) children are
involved. The issue presented for review is whether the evidence is
clear and convincing. We find that it is and affirm.
URL:http://www.tba.org/tba_files/TCA/bardin_coa.WP6
FIRST TENNESSEE BANK
NATIONAL ASSOCIATION
vs.
C.T. RESORTS COMPANY, INC.,
C. GARY TRIGGS and JAMES C.
CHILDERS
Court:TCA
Attorneys:
J. MICHAEL WINCHESTER and E. BRIAN SELLERS, LACY & WINCHESTER, P.C.,
Knoxville, for Plaintiff-Appellee.
W. MORRIS KIFER, GENTRY, TIPTOE, KIFER & McLEMORE, Knoxville, for
Defendants-Appellants.
Judge:Franks
First Paragraph:
This appeal is from a summary judgment granted to plaintiff against
defendants by the Trial Judge.
Essentially, defendants insist that the record contains evidence of
misrepresentations of the value of the property by plaintiff's agents,
which was purchased by defendants, and that these representations are
actionable under their counter-claims.
URL:http://www.tba.org/tba_files/TCA/fstnbkna_opn.WP6
LILLIAN ELIZABETH KLINE
vs.
JOHN THOMAS KLINE
Court:TCA
Attorneys:
John P. Chiles, Kingsport, for Appellant.
Robert J. Jessee, Johnson City, for Appellee.
Judge:INMAN
First Paragraph:
These parties were divorced March 12, 1991. The judgment provided
that "husband would pay to wife the sum of $478.00 per month as
spousal support." An agreed order was thereafter entered which
required husband to designate wife as the beneficiary of his
Survivor's Benefit Plan [SBP] pursuant to the Uniformed Services
Former Spouse Protection Act, 10 U.S.C.A. S 1048 et seq., and directed
that the award of $478.00 shall be paid by direct payment to wife from
husband's retirement pay by the Military Finance Center, Denver,
Colorado.
URL:http://www.tba.org/tba_files/TCA/kline_ca3.WP6
KENNETH F. TAGGART and wife,
TONI CORWIN,
vs.
BART A. RICHARDS
Court:TCA
Attorneys:
GARY E. BREWER, LESLIE A. MUSE and STEVEN W. TERRY, BREWER & TERRY,
P.C., Morristown, for Plaintiffs-Appellants.
JAMES K. HORSTMAN, BARRY L. KROLL, ALTON C. HAYNES, LLOYD E. WILLIAMS,
JR., WILLIAMS & MONTGOMERY, LTD., Chicago, and EDWIN L. TREADWAY,
HUNTER, SMITH & DAVIS, LLP, Kingsport, for Defendant-Appellee.
Judge:Franks
First Paragraph:
This is an action for damages for personal injuries allegedly
occurring on April 9, 1993 in the early evening, when the vehicle
operated by the plaintiff was struck by a vehicle operated by the
defendant. Upon trial, a jury returned a verdict for the plaintiff
establishing damages at $8,445.00 and further determined that
defendant was 51% at fault for the accident. The Trial Judge approved
the verdict and plaintiffs have appealed.
URL:http://www.tba.org/tba_files/TCA/taggartk_opn.WP6
STATE OF TENNESSEE
vs.
MICHAEL BUELL
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
GREGORY D. SMITH CHARLES W. BURSON
Contract Appellate Defender Attorney General and Reporter
One Public Square, Ste. 321
Clarksville, TN 37040 GEORGIA BLYTHE FELNER
Assistant Attorney General
Criminal Justice Division
ART JOHNSON 450 James Robertson Parkway
Asst. Public Defender Nashville, TN 37243-0493
215 Reagan Street
Cookeville, TN 38501
WILLIAM EDWARD GIBSON
District Attorney General
BEN FANN
Asst. District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501
Judge: Hayes
First Paragraph:
The appellant, Michael Buell, was convicted by a jury of voluntary
manslaughter. The trial court imposed a sentence of four years to be
served in the Department of Correction. On appeal, the appellant
raises two issues for our review. First, he contends that the trial
court failed to instruct the jury on accident, self-defense, and
defense of a habitation. Second, the appellant contends that the
trial court erred in failing to grant an alternate sentence.
URL:http://www.tba.org/tba_files/TCCA/buellm_opn.WP6
I. G. COURTNER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ISAAC G. COURTNER, pro se JOHN KNOX WALKUP
TDOC no. 132603, Unit 10 Attorney General & Reporter
Northeast Correctional Center
P.O. Box 5000 MARVIN E. CLEMENTS, JR.
Mountain City, TN 37683-5000 Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
DAVID CROCKETT
District Attorney General
Rt. 19, Box 99
Johnson City, TN 37601
Judge: PEAY
First Paragraph:
The petitioner filed his "Motion to Dismiss and for Immediate Release"
on September 18, 1996, alleging that his 1990 conviction for
aggravated rape must be set aside pursuant to this Court's opinion in
State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267, Wayne County
(Tenn. Crim. App. filed June 20, 1996, at Nashville). Specifically,
he claims that the indictment charging him with aggravated rape fails
to allege an essential element of the crime and his conviction must
therefore be set aside. The court below treated the petitioner's
motion as a petition for writ of habeas corpus and denied it on the
grounds that it failed to state a basis for relief. The petitioner
appeals, claiming that the court below erred in treating his petition
as one for a writ of habeas corpus and further contending that he is
entitled to relief under Hill. We affirm the judgment below.
URL:http://www.tba.org/tba_files/TCCA/courtner_opn.WP6
MICHAEL EUGENE McBEE
and
JEFFREY EUGENE DUNLAP
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE M. JEFFRESS JOHN KNOX WALKUP
Attorney for Appellant Dunlap Attorney General and Reporter
1776 Riverview Tower
900 S. Gay Street TIMOTHY F. BEHAN
Knoxville, TN 37902 Assistant Attorney General
450 James Robertson Parkway
KIIMBERLY A. PARTON Nashville, TN 37243
Attorney for Appellant McBee
407 Union Avenue RANDALL E. NICHOLS
Suite 209 District Attorney General
Knoxville, TN 37902
ROBERT L. JOLLEY, JR.
Assistant District Attorney
City-County Building, Ste. 168
400 Main Street
Knoxville, TN 37902-2405
Judge:SMITH
First Paragraph:
On December 14, 1994, a Knox County Criminal Court jury found
Appellants Jeffery Dunlap and Michael McBee each guilty of two counts
of aggravated robbery under Tennessee Code Annotated Section 39-13-402
(1991). As Range III persistent offenders, Appellants were both
sentenced to thirty years imprisonment on each count. The trial court
ordered the sentences to run consecutively for an effective sentence
of sixty years for each Appellant. On appeal, Appellants raise three
issues for review: (1) whether the evidence presented at trial was
sufficient as a matter of law to sustain the convictions; (2) whether
the trial court erred in refusing to allow certain evidence to be
admitted; and (3) whether the sentences were excessive in length.
URL:http://www.tba.org/tba_files/TCCA/dunlapmc_opn.WP6
STATE OF TENNESSEE
vs.
JIMMY GREENE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JULIE A. MARTIN JOHN KNOX WALKUP
P. O. Box 426 Attorney General and Reporter
Knoxville, TN 37901-0426
SANDY R. COPOUS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
KIRK ANDREWS
Assistant District Attorney
706 Walnut Street
Knoxville, TN 37901
Judge:SMITH
First Paragraph:
Appellant Jimmy Greene appeals from a jury verdict rendered in the
Blount County Circuit Court finding him guilty of the aggravated rape
of a person less than thirteen years of age. As a Range I standard
offender, Appellant received a sentence of twenty-two years in the
Tennessee Department of Corrections. On April 10, 1996, Appellant
filed a motion for a new trial alleging, inter alia, the existence of
newly discovered evidence. The trial court denied this motion on May
21, 1996. Appellant presents three issues for consideration on this
direct appeal: (1) whether the evidence was sufficient to sustain the
conviction for aggravated rape; (2) whether the prosecution's remarks
made during closing argument were improper and prejudicial; and (3)
whether the trial court erred in denying Appellant's motion for a new
trial based on the alleged existence of newly discovered evidence.
URL:http://www.tba.org/tba_files/TCCA/greeneji_opn.WP6
GARY WAYNE LOWE
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Douglas A. Trant John Knox Walkup
900 S. Gay Street, Suite 1502 Attorney General of Tennessee
Knoxville, TN 37902 and
Timothy F. Behan
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
127 Anderson County Courthouse
Clinton, TN 37716
Judge: Tipton
First Paragraph:
The petitioner, Gary Wayne Lowe, appeals as of right from the Anderson
County Criminal Court's dismissal of his post-conviction case. The
trial court summarily dismissed the petition, concluding that
principles of "res judicata" barred the petitioner from challenging
the validity of his guilty plea for grand larceny. The court based
its decision on the supreme court's dismissal of a prior
post-conviction petition, in which the petitioner challenged his
habitual offender status based, in part, on the invalidity of the
grand larceny conviction. The sole issue for our review is whether
the trial court erred by summarily dismissing the petition. Because
we conclude that the petitioner is entitled to an evidentiary hearing,
we reverse the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/lowegw_opn.WP6
RANDY L. MILLER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
A. PHILIP LOMANACO JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
112 Durwood Drive
Knoxville, TN 37922 TIMOTHY F. BEHAN
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
JAMES N. RAMSEY
District Attorney General
JANICE G. HICKS
Assistant District Attorney General
127 Anderson County Courthouse
Clinton, TN 37716
Judge: WITT
First Paragraph:
The defendant, Randy L. Miller, appeals his convictions of six counts
of aggravated assault and the six year incarcerative sentence he
received for his crimes. The defendant, a truck driver, received
these convictions in the Anderson County Criminal Court, following a
shooting altercation between himself and a van-load of travelers on
Interstate 75.
URL:http://www.tba.org/tba_files/TCCA/millerrl_opn.WP6
JAMES CLYDE SAYLOR
vs.
HOWARD CARLTON and
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEES
JAMES CLYDE SAYLOR, pro se JOHN KNOX WALKUP
Inmate # 130022 Attorney General & Reporter
P.O. Box 5000
Northeast Correctional Center MICHAEL J. FAHEY, II
Mountain City, TN 37683 Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
DAVID CROCKETT
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
Judge: PEAY
First Paragraph:
The petitioner filed his petition for writ of habeas corpus on August
6, 1996, alleging that his 1989 conviction for aggravated rape
committed in 1987 must be set aside pursuant to this Court's opinion
in State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267, Wayne
County (Tenn. Crim. App. filed June 20, 1996, at Nashville).
Specifically, he claims that the indictment charging him with the
crime fails to allege the essential element of his mens rea and his
conviction must therefore be set aside. The court below summarily
denied the petition on the grounds that it failed to state a basis for
relief. The petitioner appeals. We affirm the judgment below.
URL:http://www.tba.org/tba_files/TCCA/saylorjc_opn.WP6
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© Copyright 1998 Tennessee Bar Association - This Issue (IN THIS ORDER):