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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.
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- 00-New Opinons From TSC
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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
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
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
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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