TBALink Opinion-Flash

March 18, 1998 -- Volume #4 -- Number #050

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

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TBALink Chief Editor


HARRY LUTHER
VS.
BILLY COMPTON, ET AL

Court:TCA

Attorneys: 

Harry Luther, Pro Se

James M. Glasgow; Elam & Glasgow
of Union City, For Appellees                         

Judge:CRAWFORD

First Paragraph:

Plaintiff/Appellant Harry Luther ("Luther") is incarcerated at the
Lake County Regional Correctional Facility ("Correctional Facility"). 
On November 12, 1996, Luther was injured while working in the
Correctional Facility's Vo tech shop building.  A table top that was
stored on a beam above the ground fell, striking Luther in the head. 
Luther was escorted to the Correctional Facility clinic, where he was
treated for a two-inch laceration to his scalp.  Luther complained of
neck and spinal pain, dizziness, blurred vision, and a concussion. 
Defendant/Appellee Donna Klutts ("Nurse Klutts"), a nurse practitioner
employed by the Correctional Facility, testified that the nurses were
instructed to keep Luther in the clinic for eight hours and to conduct
neurological checks every two hours.

URL:http://www.tba.org/tba_files/TCA/lutherha_opn.WP6
Opinion-Flash

LORRIE BETTS MURPHY, Ind. and   
as Mother and next Friend of        
April Murphy
vs.
JESSICA R. CHADWELL and     
GUY ANDERSON

Court:TCA

Attorneys:

HARVEY L. GIPSON
Memphis, Tennessee
Attorney for Appellants

WARREN D. McWHIRTER
McWHIRTER & WYATT
Memphis, Tennessee
Attorney for Appellees
                          
Judge:HIGHERS

First Paragraph:

Plaintiff/Appellant, Lorie Betts Murphy ("Plaintiff") appeals the
judgment of the trial court granting Defendant/Appellee's, Mid-Century
Insurance Company ("Mid Century"), motion for summary judgment.  For
reasons state hereinafter, we affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/murphylb_opn.WP6
Opinion-Flash

CYNTHIA A. PHILLIPS, PAUL       
PHILLIPS, JUDY WEBB, and        
GLENN WEBB
vs.
FRANCIS PEROT
and
KELLY L. PHILLIPS, by and through   
her legal guardian and parent,      
TERESA THURMAN, and TERESA  
THURMAN, Individually
vs.
FRANCIS CERIAC PEROT

Court:TCA

Attorneys:

WESLEY A. CLAYTON
DONALD D. GLENN
WALDROP & HALL, P.A.
Jackson, Tennessee
Attorneys for Appellant

JOHN W. PALMER
Dyersburg, Tennessee
Attorney for Appellees Cynthia A. Phillips and Judy Webb

JOHN VAUGHN
Tiptonville, Tennessee
Attorney for Appellee Kelly L. Phillips                          

Judge:HIGHERS

First Paragraph:

Defendant Francis Perot appeals the trial court's final judgment which
denied the motions for new trial filed by Plaintiffs/Appellees but
which suggested an additur to each of the verdicts rendered by the
jury in favor of the Plaintiffs.  We conclude that the evidence does
not preponderate against the trial court's additurs and, thus, we
affirm the trial court's judgment.

URL:http://www.tba.org/tba_files/TCA/philipca_opn.WP6
URL:http://www.tba.org/tba_files/TCA/philipca_con.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
ALTON B. APPLEGATE

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:

Justin Johnson, Attorney        Charles W. Burson 
Suite 205                       Attorney General and Reporter
2131 Murfreesboro Road          
Nashville, TN  37217            Daryl J. Brand
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493

                                Bernard McEvoy
                                Asst District Attorney General
                                Washington Square, Suite 500
                                222 Second Avenue North 
                                Nashville, TN  37201-1649 
                          
Judge:WADE

First Paragraph:

The defendant, Alton B. Applegate, was indicted by the Davidson County
Grand Jury for driving under the influence of an intoxicant, third
offense.  Thereafter, the defendant pled guilty to DUI, second
offense.  The trial court imposed a sentence of eleven months and
twenty-nine days in jail, all of which was suspended except for
forty-five days.  The defendant was prohibited from driving for two
years and required to perform one hundred hours of public service,
enter an alcohol treatment program, and submit to other conditions. 
The defendant attempted to reserve a certified question of law for
appeal.  See Tenn. R. Crim. P. 37(b)(2).  Because he failed to comply
with the mandatory requirements of Rule 37(b)(2), as interpreted in
State v. Preston, 759 S.W.2d 647 (Tenn. 1988), and as confirmed in
State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996), we must dismiss the
appeal.

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

STATE OF TENNESSEE
vs.
FRANKLIN W. CAMPBELL

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

DEANNA BELL JOHNSON         JOHN KNOX WALKUP
211 Third Avenue North      Attorney General and Reporter
Nashville, TN 37201
                            GEORGIA BLYTHE FELNER
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243

                            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 Defendant, Franklin W. Campbell, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure.  He pleaded
guilty to one count of simple robbery and was sentenced as a standard,
Range I offender to six years of incarceration.  The trial court
denied probation and community corrections.  The Defendant now appeals
his sentence and argues that the trial court erred by sentencing him
to the maximum sentence and for denying him an alternative to
incarceration.  We affirm the judgment of the trial court ordering the
Defendant to serve his sentence in confinement but modify the length
of the sentence to five years.

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

JEFFREY STUART DICKS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Greg W. Eichelman               John Knox Walkup
District Public Defender        Attorney General and Reporter
                            
D. Clifton Barnes               Amy L. Tarkington       
Assistant Public Defender       Assistant Attorney General
1609 College Park Drive         450 James Robertson Parkway
Box 11                          Nashville, TN 37243-0493
Morristown, TN 37813
                                H. Greeley Wells, Jr.
                                District Attorney General
                                P.O. Box 526 
                                Blountville, TN 37617
                                                      
Judge:BARKER

First Paragraph:

In this capital case, the appellant, Jeffrey Stuart Dicks, appeals as
of right the Greene County Criminal Court's dismissal of his fourth
and fifth petitions for post conviction relief.

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

WILLIAM D. FARRAH
vs.
STATE OF TENNESSEE

Court:TCCA

Judge:WOODALL

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.  Based on our
review, we affirm the judgment of the trial court pursuant to Rule 20.

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

STATE OF TENNESSEE
vs.
BRIAN FELTS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

R. Todd Hansrote                John Knox Walkup
Attorney at Law                 Attorney General & Reporter
1 Public Square, Suite 400      425 Fifth Avenue, North
Clarksville, TN 37040           Nashville, TN 37243

                                Ellen H. Pollack
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Dan M. Alsobrooks
                                District Attorney General
                                P.O. Box 580
                                Charlotte, TN 37036-0580

                                George C. Sexton
                                Asst District Attorney General
                                Humphreys County Courthouse
                                Waverly, TN 37185
                         
Judge:Jones

First Paragraph:


The appellant, Brian Felts (defendant), was convicted of theft, a
Class D felony, and aggravated burglary, a Class C felony, by a jury
of his peers.  The trial court, finding the defendant to be a multiple
offender, imposed the following Range II sentences: (a) for theft,
confinement for four (4) years in the Department of Correction and (b)
for aggravated burglary, confinement for eight (8) years in the
Department of Correction.  These two sentences are to be served
concurrently, but the aggravated burglary sentence is to be served
consecutively to a sentence in a Cheatham County case.  One issue is
presented for review.  The defendant contends the trial court
committed error of prejudicial dimensions by permitting the State of
Tennessee (state) to cross-examine him about sworn testimony he gave
in open court when he entered pleas of guilty to these same offenses. 
The pleas of guilty were later set aside in a post-conviction action. 
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/feltsb_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JERRY M. MULLICAN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

JOHN H. HENDERSON
District Public Defender
407-C Main Street
P.O. Box 68
Franklin, TN 37065-0068

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

GEORGIA BLYTHE FELNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

JOSEPH D. BAUGH, JR.
District Attorney General
Williamson County Courthouse
Suite G-6
P.O. Box 937
Franklin, TN 37065-0937                         

Judge:SMITH

First Paragraph:

The defendant, Jerry M. Mullican, appeals as of right from a jury
verdict of guilty to two (2) counts of attempted second degree murder
and one (1) count of aggravated assault.  The defendant was sentenced
to eight (8) and twelve (12) years consecutively for the attempted
murder charges and  three (3) years concurrently for the aggravated
assault charge.  Defendant presents the following issues for review:
(1) whether the evidence presented at trial was sufficient to support
the convictions, and (2) whether the trial court improperly sentenced
the defendant.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE
vs.
GARY LYNN SMITH

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:

Gerald L. Gulley                John Knox Walkup
P.O. Box 1708                   Attorney General & Reporter
Knoxville, TN  37901-1798
(on appeal only)                Timothy Behan
                                Assistant Attorney General
Richard A. Tate                 450 James Robertson Parkway
Assistant Public Defender       Nashville, TN  37243 0493       
P.O. Box 839    
Blountville, TN  37617          Barry Staubus
                                Asst District Attorney General
                                P.O. 526
                                Blountville, TN  37617          
                          
Judge:WADE

First Paragraph:

The defendant, Gary Lynn Smith, pled guilty to introducing drugs into
a penal institute, a Class C felony.  The trial court imposed a
three-year sentence to be served in the Department of Correction.  In
this appeal of right, the defendant claims the trial court erred by
denying an alternative sentence.

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

STATE OF TENNESSEE
vs.
WANDA KAY ZAID

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

Sherry D. Gouger                John Knox Walkup
Assistant Public Defender       Attorney General & Reporter
P.O. Box 220                    425 Fifth Avenue, North
Jasper, TN 37347-3427           Nashville, TN 37343-0493

OF COUNSEL:                     Clinton J. Morgan
                                Counsel for the State
Phillip A. Condra               425 Fifth Avenue, North
District Public Defender        Nashville, TN 37243-0493
P.O. Box 220
Jasper, TN 37347-3427           J. Michael Taylor
                                District Attorney General
                                265 Third Avenue, Suite 300
                                Dayton, TN 37321

                                Thomas D. Hembree
                                Asst District Attorney General
                                P.O. Box 130
                                Jasper, TN 37347-0130
                         
Judge:Jones

First Paragraph:

The appellant, Wanda Kay Zaid (defendant), was convicted of driving
while under the influence, a Class A misdemeanor, reckless driving, a
Class B misdemeanor, and resisting arrest, also a Class B misdemeanor,
by a jury of her peers.  The trial court imposed the following
sentences: (a) driving while under the influence, a fine of $350 and
confinement for fifteen (15) days, (b) reckless driving, a fine of $50
and confinement for fifteen (15) days, and (c) resisting arrest, a
fine of $100 and confinement for five (5) days.  The court ordered the
defendant to serve the sentences for driving while under the influence
and reckless driving concurrently, but ordered these sentences to be
served consecutively to the sentence for resisting arrest.  While the
defendant presents five issues for review, these issues may be
consolidated into three issues.  The defendant contends (a) the
evidence contained in the record is insufficient, as a matter of law,
to support her convictions, (b) the indictment for resisting arrest
does not state a crime, and (c) 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
judgments of the trial court for driving while under the influence and
resisting arrest should be affirmed, and the judgment for reckless
driving should be reversed and the prosecution dismissed as the
evidence is insufficient to support the conviction.

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

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