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.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
11-New Opinons From TCCA

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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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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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