TBALink Opinion-Flash

July 2, 1998 -- Volume #4 -- Number #102

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
04-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink


STATE OF TENNESSEE
vs.
DOMINIC JUDE AMARI

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:
Clark Lee Shaw                  John Knox Walkup
2525 Lebanon Road               Attorney General and Reporter
Nashville, Tennessee 37214
(at trial and on appeal)        Ellen H. Pollack
                                Assistant Attorney General
Lionel R. Barrett, Jr.          450 James Robertson Parkway
Washington Square Two           Nashville, Tennessee 37243-0493 
Suite 417                       
Nashville, Tennessee 37201      Victor S. Johnson, III  
(at trial)                      District Attorney General                                           
                                                                            
                                Roger Moore
                                Assistant District Attorney
                                Washington Square Building
                                Suite 500
                                Nashville, Tennessee 37201                        

Judge: BARKER

First Paragraph:

The appellant, Dominic Jude Amari, appeals from the judgment of the
trial court revoking his probation and sentencing him to one (1) year
and six (6) months in the Metro-Davidson County Detention Center, with
the appellant being required to serve thirty days of that sentence at
100%, day for day.  The appellant raises two issues for our
consideration on appeal.  First, he contends that the evidence
introduced at the  probation revocation hearing was insufficient to
support the trial court's decision to revoke his probation.  Second,
he contends that the trial court erred in failing to recuse herself
from the revocation proceeding. Following our review of the record, we
conclude that there is no reversible error and, accordingly, affirm
the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/amaridja_opn.wp6
Opinion-Flash

STATE OF TENNESSEE
vs.
ELROY D. KAHANEK

Court:TCCA

Attorneys:   

For the Appellant:              For the Appellee:
Lee Ofman                       John Knox Walkup
317 Main Street, Suite 208      Attorney General and Reporter
Franklin, TN  37064 
                                Timothy F. Behan
                                Assistant Attorney General                              
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                Joseph D. Baugh, Jr.
                                District Attorney General

                                Mark Puryear
                                Asst. District Attorney General
                                P. O. Box 937
                                Franklin, TN  37065-0937                       

Judge: Hayes

First Paragraph:

The appellant, Elroy D. Kahanek, appeals the verdict of a Williamson
County jury finding him guilty of driving under the influence, third
offense.  The trial court imposed a sentence of 11 months, 29 days,
suspending all but 120 days, and assessed a fine of $5,000.  The
appellant now appeals his conviction, raising the following issues: I.
Whether the trial court erred by overruling the appellant's motion in
limine to exclude evidence of the horizontal gaze nystagmus test; II.
Whether the trial court erred in restricting the appellant's cross
examination of Officer Hardcastle; III.  Whether the trial court erred
in rejecting the appellant's special jury instruction relating to the
"odor of alcohol;" IV.  Whether the trial court erred in instructing
the jury to disregard portions of the appellant's testimony; and V. 
Whether the trial court erred in commenting on the reliability  of an
intake, or, "Receiving Screen Form," required for the processing of
detainees prior to incarceration. After a review of the evidence and
the applicable law, we conclude that the appellant's issues are
without merit.  The judgment of the trial court is affirmed.

URL:http://www.tba.org/tba_files/TCCA/kahaneke_opn.wp6
Opinion-Flash

GUADALUPE MENDEZ
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

For the Appellant:              For the Appellee:
Tim Wallace                     John Knox Walkup        
116 S. Second Street            Attorney General of Tennessee
Clarksville, TN 37040               and             
(AT TRIAL)                      Lisa A. Naylor
                                Asst Attorney General of Tennessee                      
                                425 Fifth Avenue North          
Gregory D. Smith                Nashville, TN 37243-0493
One Public Square, Suite 321
Clarksville, TN 37040           John Wesley Carney, Jr.
(ON APPEAL)                     District Attorney General
                                    and
                                Arthur Bieber
                                Asst District Attorney General
                                204 Franklin Street
                                Suite 200
                                Clarksville, TN 37040-3420                       

Judge: Tipton

First Paragraph:

The petitioner, Guadalupe Mendez, appeals as of right from the
Montgomery County Circuit Court's denial of his petition for
post-conviction relief.  He contends that he is entitled to
post-conviction relief because he received the ineffective assistance
of counsel by trial and direct appeal counsel because counsel (1)
failed to request a mistrial after learning at trial of an inculpatory
statement made by the petitioner and (2) failed to file a timely
application for permission to appeal to the Tennessee Supreme Court. 
We conclude that the petitioner received the effective assistance of
counsel with respect to his claim that counsel should have requested a
mistrial, but we hold that the petitioner is entitled to a delayed
appeal.

URL:http://www.tba.org/tba_files/TCCA/mendezg_opn.wp6
Opinion-Flash

OSCAR FRANKLIN SMITH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:
RICHARD McGEE                   JOHN KNOX WALKUP
                                Attorney General and Reporter

ROBERT J. MENDES                MICHAEL E. MOORE
Cummins Station, Suite 507      Solicitor General
209 Tenth Avenue South  
Nashville, TN 37203             KATHY MORANTE
                                Assistant Attorney General
                                425 5th Avenue North
                                Nashville, TN 37243

                                VICTOR S. JOHNSON, III
                                District Attorney General

                                THOMAS B. THURMAN
                                CHERYL A. BLACKBURN
                                Assistant District Attorneys General
                                Washington Square, Suite 500
                                222 Second Avenue South
                                Nashville, TN 37201-1649                       

Judge: WELLES

First Paragraph:

The petitioner was originally convicted of three counts of
premeditated first degree murder and was sentenced to death on each.
As to one count, the jury found that the murder was especially
heinous, atrocious, or cruel and that the petitioner committed mass
murder.  In addition to these, the jury found two more aggravators on
the remaining two counts: the murder was committed for the purpose of
avoiding, interfering with, or preventing a lawful arrest or
prosecution and the murder was committed during the perpetration of
the murder in the first count.  The Supreme Court affirmed the
convictions and sentences on direct appeal.  State v. Smith, 868
S.W.2d 561 (Tenn. 1993). The petitioner subsequently filed a petition
for post-conviction relief which was denied by the trial court.  In
this appeal from that denial, the petitioner challenges the
effectiveness of his trial and appellate counsel and raises several
other issues regarding the proceedings at trial.  Having reviewed the
entire record on appeal, we find the petitioner has failed to carry
his burden on appeal and, therefore, we affirm the judgment of the
trial court.

URL:http://www.tba.org/tba_files/TCCA/smithosf_opn.wp6

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