TBALink Opinion-Flash

February 24, 1998 -- Volume #4 -- Number #036

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):
04-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
05-New Opinons From TCCA

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TBALink Chief Editor


GENEVA GRAHL
vs.
LILLIE DAVIS,                                                       
GREGORY SCOTT JUDKINS and           
JEFFREY TODD JUDKINS

Court:TSC

Attorneys:

For Appellant:              For Appellees
David R. Duggan             Norman H. Newton
DUGGAN & ANDERSON           CRAWFORD, CRAWFORD & NEWTON
Maryville, Tennessee        Maryville, Tennessee
    
J. Michael Garner           Duncan V. Crawford
NICHOLSON & GARNER          CRAWFORD, CRAWFORD, & NEWTON
 Maryville, Tennessee       Maryville, Tennessee    

John A. Walker, Jr.
WALKER & WALKER, P.C.
Knoxville, Tennessee
                          
Judge:DROWOTA

First Paragraph:

The primary issue in this appeal is whether the conservator, Geneva
Grahl, breached her fiduciary duty to the deceased conservatee, Lillie
Davis, by allowing the conservatee's husband, Omer Davis, to transact
four certificates of deposit in which the conservatee had an interest
and reinvest the funds into certificates of deposit held either solely
in the name of Omer Davis or jointly in the name of Omer Davis and
Geneva Grahl.  After carefully considering the controlling authority,
we have determined that Grahl breached her fiduciary duty by allowing
Omer Davis to transact the accounts without first seeking court
approval, and by dealing with the conservatee's property so as to
eventually attain a personal benefit.  Accordingly, we affirm the
judgment of the Court of Appeals reversing the judgment of the trial
court, and remand this case for further proceedings consistent with
this opinion.

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

STATE OF TENNESSEE
vs.                         
GREGORY JAY HOXIE

Court:TSC

Attorneys:

For Appellant:                  For Appellee:
Mark Stephens                   John Knox Walkup
Public Defender                 Attorney General & Reporter
Knoxville, Tennessee            Nashville, Tennessee

Paula R. Voss                   Michael E. Moore
Assistant Public Defender       Solicitor General
Knoxville, Tennessee            Nashville, Tennessee
(Appeal Only)
                                Daryl J. Brand
Timothy M. McLaughlin           Assistant Attorney General
AND                             Nashville, Tennessee
John Halstead
Assistant Public Defenders      Randall Nichols
Knoxville, Tennessee            District Attorney General
                                Knoxville, Tennessee
                
                                Marsha Selecman
                                Asst District Attorney General
                                Knoxville, Tennessee
                          
Judge:DROWOTA

First Paragraph:

The Knox County Grand Jury returned an indictment charging the
defendant, Gregory Jay Hoxie, with one count of felony stalking, one
count of misdemeanor stalking, and two counts of misdemeanor telephone
harassment.  Count one, felony stalking, alleged that the defendant
had stalked the victim, Suzette Hoxie, from June through October,
1994, in violation of an order of protection.  Count two, misdemeanor
stalking, alleged that the defendant had stalked the victim from
January to June, 1994.  Count three alleged that the defendant had
harassed the victim by making threatening telephone calls.  Count four
charged that the defendant had harassed the victim by placing
telephone calls "in an offensively repetitious manner and without a
legitimate purpose of communication."  The State introduced evidence
of numerous incidents in support of its prosecution of felony and
misdemeanor stalking.  At the close of the proof, the jury returned a
verdict of guilty on count one, felony stalking, count two,
misdemeanor stalking, and count four, "offensively repetitious"
telephone harassment.  The jury found the defendant not guilty of
count three, harassment by telephone threat.

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

STATE OF TENNESSEE
vs.
DOUGLAS BRIAN IRWIN

Court:TSC

Attorneys:

APPELLANT                   FOR APPELLEE:
Gerald C. Russell           John Knox Walkup
125 E. Broadway             Attorney General & Reporter
Maryville, Tennessee
                            Michael E. Moore
                            Solicitor General
    
                            Kathy M. Yacuzzo
                            Assistant Attorney General
                            425 Fifth Avenue, North
                            Nashville, Tennessee

                            Michael Flynn
                            District Attorney General
                            5th Judicial District
                            Maryville, Tennessee 
                        
                            Edward P. Bailey    
                            Asst District Attorney General                          
                            Maryville, Tennessee                
                          

Judge:DROWOTA

First Paragraph:

On June 7, 1993, the defendant was charged in a one count indictment
with contributing to the delinquency of a minor in violation of Tenn.
Code Ann. S 37-1-156 (1996 Repl. & Supp. 1997).

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

STATE OF TENNESSEE
vs.
GRAPEL SIMPSON

Court:TSC

Attorneys:

For Plaintiff-Appellee:                 For Defendant-Appellant:

John Knox Walkup                        Lloyd R. Tatum  
Attorney General & Reporter             Tatum & Tatum
Nashville, Tennessee                    Tatum Building
                                        Henderson, Tennessee
Michael E. Moore
Solicitor General
Nashville, Tennessee

Kenneth W. Rucker
Assistant Attorney General
Nashville, Tennessee

Elizabeth T. Rice
District Attorney General
Twenty-Fifth Judicial District
Somerville, Tennessee

Ed McDaniel
Assistant District Attorney General
Selmer, Tennessee
                          
Judge:DROWOTA

First Paragraph:

Based on a confidential informant's tip, police stopped the
defendant's vehicle.  A consensual search of her person revealed
drugs.  The issue in this appeal is whether the tip, as corroborated
by independent police work, exhibited sufficient indicia of
reliability to satisfy the two-pronged constitutional test of
reliability and provide reasonable suspicion to justify the
investigatory stop. We hold that it did and therefore affirm the
judgment of the Court of Criminal Appeals upholding the trial court's
denial of the defendant's motion to suppress.

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

LUTCHER EIDSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Geoffrey Coston                 John Knox Walkup
2813 West End Ave.              Attorney General of Tennessee
Nashville, TN 37203             and             
                                Clinton J. Morgan
                                Asst Attorney General of Tennessee                  
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                Victor S. Johnson, III
                                District Attorney General
                                and
                                John Zimmerman
                                James Sledge
                                Asst District Attorneys General
                                Washington Square
                                222 2nd Avenue North
                                Nashville, TN 37201-1649
                         
Judge:Tipton

First Paragraph:

The petitioner, Lutcher Eidson, appeals as of right from the denial of
his petition for post-conviction relief by the Davidson County
Criminal Court relative to his 1989 convictions for two counts of
assault with intent to commit first degree murder, one of which
resulted in bodily injury.  The convictions were affirmed on appeal. 
State v. Lutcher Eidson, No. 01C01-9004-CR-00097, Davidson County
(Tenn. Crim. App. Dec. 12, 1990), app. denied (Tenn. Feb. 25, 1991). 
He is presently in the custody of the Department of Correction serving
an effective sentence of forty-five years as a Range II, persistent
offender.  The petitioner contends that the trial court erred in
concluding that he received the effective assistance of counsel at his
trial.  We disagree.

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

CHARLES MICHAEL GENTRY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

BOB LYNCH, JR.                      JOHN KNOX WALKUP
Suite 316, Washington Square        Attorney General and Reporter
222 Second Avenue North
Nashville TN 37201                  ELLEN H. POLLACK
                                    Assistant Attorney General
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    STEVE DOZIER
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37201-1649
                         
Judge:WELLES

First Paragraph:

The Petitioner, Charles Michael Gentry, 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.  On May 9,
1996, the Petitioner filed a motion to reopen his first petition for
post-conviction relief, claiming that the "reasonable doubt" jury
instruction charged at his trial was unconstitutional.  In his motion
to reopen, he asserted that his claim was based on the violation of a
constitutional right not recognized as existing at the time of his
trial.  See Tenn. Code Ann. S 40-30-217(a)(1).  The trial court
granted the motion to reopen and considered the Petitioner's claim on
its merits.  On October 29, 1996, the trial court issued an order
denying the petition.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
LANDY G. KASH

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

JACKY O. BELLAR                 JOHN KNOX WALKUP 
BELLAR & BELLAR                 Attorney General & Reporter
212 Main Street 
P.O. Box 332                    CLINTON J. MORGAN
Carthage, TN  37030             Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                TOM P. THOMPSON, JR. 
                                District Attorney General 

                                H. DOUGLAS HALL 
                                Asst District Attorney General
                                111 Cherry Street 
                                Lebanon, TN  37087-3609 
                         
Judge:WOODALL

First Paragraph:

After being convicted of DUI, third offense, and driving on a revoked
license following a jury trial, the Defendant, Landy G. Kash, filed a
Motion for New Trial on December 12, 1996.  There is no order in the
record either granting or denying that motion.  There is a handwritten
notation on the motion that it was overruled, but the judge's
signature does not appear in the notation.  However, for an order to
be valid, it must be in writing and it must be entered in the court's
minutes.  See Evans v. Perkey, 647 S.W.2d 636, 641 (Tenn. App. 1982);
Welch v. State, 553 S.W.2d 917, 919-20 (Tenn. Crim. App. 1977). The
time for appeal runs from the entry of a proper order denying a new
trial.  Tenn. R. App. P. 4(c).

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

STATE OF TENNESSEE
vs.
TIMOTHY DEAN MARTIN

Court:TCCA

Attorneys:FOR THE APPELLANT:        FOR THE APPELLEE:

Andrew J. Dearing, III              John Knox Walkup
Attorney at Law                     Attorney General & Reporter
117 South Main Street               425 Fifth Avenue, North
Shelbyville, TN 37160               Nashville, TN 37243

                                    Clinton J.  Morgan
                                    Counsel for the State
                                    425 Fifth Avenue, North
                                    Nashville, TN 37243

                                    W. Michael McCown
                                    District Attorney General
                                    215 East College Street
                                    Fayetteville, TN 37334

                                    Weakley E. Barnard
                                    Asst District Attorney General
                                    Marshall County Courthouse, Rm 407
                                    Lewisburg, TN 37091
                          
Judge:Jones

First Paragraph:

The appellant, Timothy Dean Martin (defendant), was convicted of
vehicular homicide, a Class C felony, and aggravated assault, also a
Class C felony, by a jury of his peers.  The trial court found the
defendant was a standard offender and imposed the following Range I
sentences: (a) for vehicular homicide, a $5,000 fine and confinement
for four (4) years and eight (8) months in the Department of
Correction, and (b) for aggravated assault, a $5,000 fine and
confinement for three (3) years and four (4) months in the Department
of Correction.  The sentences are to be served concurrently for an
effective sentence of confinement for four (4) years and eight (8)
months in the Department of Correction and fines totaling $10,000. 
Five issues are presented for review.  The defendant contends (a) the
evidence is insufficient, as a matter of law, to support his
convictions; (b) the State of Tennessee (state) acted in bad faith
thereby denying him a fair trial; (c) the trial court erred in
allowing an expert to offer an opinion based upon data gathered by
another individual; (d) the trial court erred by refusing to charge
the jury on the failure of one of the victims to wear a seat belt; and
(e) the sentences imposed by the trial court are excessive.  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 that the judgment of the trial court should be
affirmed.

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

STATE OF TENNESSEE
vs.
ANTHONY JASON MERLO

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Andrew Jackson Dearing, III     John Knox Walkup
117 South Main Street           Attorney General of Tennessee
Shelbyville, TN 37160           and             
                                Ellen H. Pollack
                                Asst Attorney General of Tennessee                  
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                William Michael McCown
                                District Attorney General
                                215 College Street
                                P.O. Box 904
                                Fayetteville, TN 37334
                                and
                                Robert Crigler
                                Asst District Attorney General
                                One Public Square
                                Shelbyville, TN 37160                          

Judge:Tipton

First Paragraph:

The defendant, Anthony Jason Merlo, appeals as of right from his
convictions by a jury in the Bedford County Circuit Court for two
counts of aggravated burglary, a Class C felony, theft of property
valued over five hundred dollars but less than one thousand dollars, a
Class E felony, and theft of property valued five hundred dollars or
less, a Class A misdemeanor.  The defendant was sentenced as a Range
I, standard offender to five years and four months in the custody of
the Department of Correction and fined ten thousand dollars for each
aggravated burglary conviction.  For the felony theft of property
conviction, the trial court imposed a Range I sentence of three years
and six months in the custody of the Department of Correction and a
three- thousand-dollar fine.  The trial court also sentenced the
defendant to eleven months and twenty-nine days and imposed a fine of
two thousand five hundred dollars for the misdemeanor theft
conviction.  The court ordered the defendant to serve his aggravated
burglary convictions consecutive to each other for an effective
sentence of ten years and eight months.  The defendant contends that
(1) the evidence is insufficient to support his convictions and (2)
the trial court erred by ordering consecutive sentences.  We disagree
and affirm the trial court's judgments of conviction.

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

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