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TBALink Opinion-Flash
June 30, 1998 -- Volume #4 -- Number #100
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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- 00-New Opinons From TSC
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Lucian T. Pera
Editor-in-Chief, TBALink
STATE OF TENNESSEE vs. LILLY FRAN BAKER, (A.K.A. LILLIE F. HOLLOWAY) Court:TCCA Attorneys: FOR THE APPELLANT: LLOYD R. TATUM 124 E. Main Street P.O. Box 293 Henderson, TN 38340 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter ELIZABETH T. RYAN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General ED NEAL McDANIEL Assistant District Attorney General 300 Industrial Park Drive P.O. Box 473 Selmer, TN 38375-0473 Judge: SMITH First Paragraph: The defendant, Lilly Fran Baker, appeals a jury conviction for driving under the influence of an intoxicant, third offense. She was sentenced to eleven (11) months and twenty-nine (29) days, all but 120 days suspended, and fined $10,000. On appeal, the defendant raises the following issues for review: (1) whether the evidence was sufficient for the jury to find her guilty beyond a reasonable doubt; (2) whether the trial court erred in failing to declare a mistrial after mistakenly informing the jury that the defendant was also charged with driving while revoked and violating the implied consent law; and (3) whether the trial court's instructions erroneously allowed the jury to consider intoxicants in addition to alcohol. The judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TCCA/bakerlf_opn.WP6
STATE OF TENNESSEE
vs.
CHARLES DAVID BOWLING
Court:TCCA
Attorneys:
FOR THE APPELLANT:
JOHN E. APPMAN
100 Main Street N.
P.O. Box 99
Jamestown, TN 38556-0099
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
ELLEN H. POLLACK
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM PAUL PHILLIPS
District Attorney General
JOHN W. GALLOWAY, JR.
Assistant District Attorney General
P.O. Box 10
Huntsville, TN 37756-0010
Judge: RILEY
First Paragraph:
The defendant, Charles David Bowling, was convicted by a Scott County
jury of twelve (12) counts of rape of a child, Class A felonies. The
trial court sentenced him to concurrent terms of twenty-five (25)
years for each conviction. On appeal, defendant challenges the
sufficiency of the convicting evidence. After a thorough review of
the record before this Court, we affirm the judgment of the trial
court.
URL:http://www.tba.org/tba_files/TCCA/bowlincd_opn.WP6
STATE OF TENNESSEE
vs.
SHERI JO COLE CLEMENTS
Court:TCCA
First Paragraph:
This matter is before the Court upon the state's motion to dismiss.
The appellant did not file a response. Based upon our review of the
entire record before the Court, we affirm the judgment of the trial
court pursuant to Rule 20, Rules of the Court of Criminal Appeals.
URL:http://www.tba.org/tba_files/TCCA/clement1_ord.WP6
STATE OF TENNESSEE
vs.
LULA J. FLANIGAN
WITH CONCURRING OPINION
Court:TCCA
Attorneys:
FOR THE APPELLANT:
STEPHEN M. WALLACE
District Public Defender
TERRY L. JORDAN
Assistant District Public Defender
P.O. Box 839
Blountville, TN 37617-0839
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
MICHAEL J. FAHEY, II
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
H. GREELEY WELLS, JR.
District Attorney General
EDWARD E. WILSON
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Judge: RILEY
First Paragraph:
The defendant, Lula J. Flanigan, was convicted by a Sullivan County
jury of one (1) count of aggravated kidnapping and three (3) counts of
aggravated assault. The trial court sentenced her to concurrent terms
of eleven (11) years for aggravated kidnapping and six (6) years for
each aggravated assault conviction. On appeal, defendant contends
that the trial court erred in failing to merge her aggravated
kidnapping conviction with one conviction for aggravated assault as
the kidnapping was merely incidental to the assault. See State v.
Anthony, 817 S.W.2d 299 (Tenn. 1991). She further claims that the
trial court erred in imposing her sentences. After a review of the
record before this Court, we find no reversible error. Therefore, the
judgment of the trial court is affirmed.
URL:http://www.tba.org/tba_files/TCCA/flaniglj_con.WP6
URL:http://www.tba.org/tba_files/TCCA/flaniglj_opn.WP6
STATE OF TENNESSEE
vs.
REGINALD HANNUM
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Raymond Mack Garner John Knox Walkup
District Public Defender Attorney General of Tennessee
and and
Natalee Hurley Todd R. Kelley
419 High Street Asst Attorney General of Tennessee
Maryville, TN 37804 425 Fifth Avenue North
(AT TRIAL) Nashville, TN 37243-0493
Julie A. Martin Michael L. Flynn
P.O. Box 426 District Attorney General
Knoxville, TN 37901-0426 and
(ON APPEAL) Philip Morton
Asst District Attorney General
363 Court Street
Maryville, TN 37804
Judge: Tipton
First Paragraph:
The defendant, Reginald Hannum, appeals as of right from the Blount
County Circuit Court's denying him a community corrections sentence.
Upon his pleas of guilt, the defendant was convicted of two counts of
knowingly delivering one-half gram or more of cocaine, and he received
concurrent nine-year sentences. The trial court held that the
nine-year sentences rendered the defendant ineligible for a community
corrections sentence. The defendant now contends that he is eligible
for such a sentence and requests that we place him in the community
corrections program. The state concedes that he is eligible. We
remand the case for consideration of a community corrections sentence.
URL:http://www.tba.org/tba_files/TCCA/hannumr_opn.WP6
RONALD L. JONES
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Alan R. Beard John Knox Walkup
601 Chattanooga Bank Building Attorney General of Tennessee
615 Lindsey Street and
Chattanooga, TN 37402 Clinton J. Morgan
Asst Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493
William H. Cox, III
District Attorney General
and
David Denny
Asst District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
Judge: Tipton
First Paragraph:
The petitioner, Ronald L. Jones, appeals as of right from the Hamilton
County Criminal Court's summary dismissal of his pro se petition for
post-conviction relief on the ground that it was barred by the statute
of limitations. The petitioner contends that the petition was timely
filed under the 1995 Post-Conviction Procedure Act. He argues that
the application of the statute of limitations violates his due process
rights because he was unaware of developments in Tennessee law because
he was incarcerated in a federal prison in Kansas. We affirm the
judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/jonesrl_opn.WP6
STATE OF TENNESSEE
vs.
HON. ARDEN L. HILL,
JACKIE W. KESTNER
Court:TCCA
Attorneys:
FOR THE APPELLANT:
MURRAY C. GROSECLOSE, III
(At Trial)
208 E. Market Street
Kingsport, TN 37660-4325
JACKIE W. KESTNER
(On Appeal)
140 Alvin Street
Kingsport, TN 37660
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
MICHAEL J. FAHEY, II
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
DAVID E. CROCKETT
District Attorney General
KENT W. GARLAND
Assistant District Attorney General
Unicoi County Courthouse
Erwin, TN 37650
Judge: RILEY
First Paragraph:
Defendant, Jackie W. Kestner, was convicted by a Washington County
jury of driving under the influence, second offense. Although the
defendant lists thirteen (13) issues for our review, we consolidate
them into the following: 1. whether the trial court erred in
admitting testimony of the horizontal gaze nystagmus test; 2.whether
the arresting officer gave inconsistent and prejudicial testimony;
3.whether the trial court made a prejudicial statement to the jury;
4.whether defendant was improperly denied the right to make a phone
call to his counsel; 5. whether defendant was improperly denied the
right to use a videotape of the arrest; 6. whether the prosecuting
attorney made improper remarks in the closing argument; and
7. whether defendant was denied the right to a speedy trial.
Although we find that the trial court erroneously admitted testimony
concerning the horizontal gaze nystagmus test, we find the error to be
harmless. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/kestnejw_opn.WP6
STATE OF TENNESSEE
vs.
J. C. MEYER
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Charles M. Corn John Knox Walkup
District Public Defender Attorney General & Reporter
P.O. Box 1453
Cleveland, TN 37364-1453 Elizabeth B. Marney
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493
Jerry N. Estes
District Attorney General
Richard Newman
Assistant District Attorney General
P.O. Box 647
Athens, TN 37303-0647
Judge: SUMMERS
First Paragraph:
J. C. Meyer, the appellant, was convicted by a jury of two counts of
rape of a child. The criminal court denied the appellant's motion for
a new trial, and he appealed. He raises several issues for our
review: (1) whether the trial court erred in denying the appellant's
motion to sever the two counts of the indictment; (2) whether the
court erred in failing to order the state to file an additional bill
of particulars; (3) whether the court erred in allowing the state to
introduce into evidence three incidents of sexual penetration when the
appellant was only charged with two counts; (4) whether the trial
court erred in instructing the jury that the appellant's earliest
release date would be after serving 5.73 years in prison; and (5)
whether the evidence was sufficient to support the convictions.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/meyerjc_opn.WP6
STATE OF TENNESSEE
vs.
VERONICA L. PHILLIPS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES ALLEN JOHN KNOX WALKUP
P.O. Box 5027 Attorney General & Reporter
Oneida, TN 37841
MICHAEL J. FAHEY, II
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243 0493
WILLIAM PAUL PHILLIPS
District Attorney General
CLIFTON H. SEXTON
Asst. District Attorney General
P.O. Box 10
Huntsville, TN 37756
Judge: PEAY
First Paragraph:
The defendant was charged in the indictment with one count of reckless
homicide and one count of reckless aggravated assault. The defendant
filed an application for pretrial diversion with the district attorney
general, who denied the defendant's application by written response.
The defendant then filed a petition for writ of certiorari with the
trial court, which was denied. Pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure, the defendant sought and was granted
permission to appeal the trial court's decision to this Court. The
sole issue presented in this appeal is whether the trial court erred
in determining that the district attorney general did not abuse his
discretion by denying the defendant's application for pretrial
diversion. After our review of the record, we affirm the trial
court's decision.
URL:http://www.tba.org/tba_files/TCCA/philipsv_opn.WP6
STATE OF TENNESSEE
vs.
BILLY RAY STOUT
In re AA BONDING COMPANY
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Steven G. Shope John Knox Walkup
620 West Hill Avenue Attorney General and Reporter
Knoxville, TN 37902
Sandy C. Patrick
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Joe C. Crumley, Jr.
Assistant District Attorney
P.O. Box 38
Jonesborough, TN 37659
Judge: Barker
First Paragraph:
Appellant, AA Bonding Company, appeals from a judgment in the
Washington County Criminal Court ordering forfeiture of the appearance
bond for the defendant Billy Ray Stout. The sole issue on appeal is
whether the trial court abused its discretion in failing to fully
exonerate AA Bonding Company upon the return of the defendant to
custody. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/stoutbr_opn.WP6
STATE OF TENNESSEE
vs.
HON. R. JERRY BECK,
JAMES THOMAS TANNER, III
Court:TCCA
Attorneys:
FOR THE APPELLANT:
NAT H. THOMAS
317 Shelby Street
Suite 304
Kingsport, TN 37660-3617
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
SANDY C. PATRICK
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
H. GREELEY WELLS, JR.
District Attorney General
ROBERT H. MONTGOMERY, JR.
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Judge: SMITH
First Paragraph:
The defendant, James Thomas Tanner, III, pled guilty in the Sullivan
County Criminal Court to one (1) count of vehicular homicide, a Class
C felony. The trial court sentenced him as a Range I, standard
offender to three (3) years and denied alternative sentencing. On
appeal, he claims that the trial court erred in refusing to sentence
him as an especially mitigated offender and in denying alternative
sentencing. After a thorough review of the record before this Court,
we affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/tannerjt_opn.WP6
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