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.

This Issue (IN THIS ORDER):
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

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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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

                                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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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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