TBALink Opinion-Flash

July 28,1998 -- Volume #4 -- Number #109/B>
What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

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THE EYE CLINIC, P.C. and its shareholders; DR. BEN HOUSE, DR. JIM PRICE, DR. ARTHUR WOODS, DR. MARK BATEMAN and DR. BRUCE HERRON vs. JACKSON-MADISON COUNTY GENERAL HOSPITAL, WEST TENNESSEE HEALTHCARE, INC., and HEALTH PARTNERS, INC. Court:TCA Attorneys: For the Plaintiffs/Appellees: For the Defendants/Appellants: William H. West Gayle Malone, Jr. Nashville, Tennessee Dan H. Elrod Mary Ellen Morris Amanda Haynes Young Nashville, Tennessee For the Intervening For the Amici Curiae, Defendant/Appellant: Tennessee Hospital Association, John Knox Walkup Tennessee Public and Teaching Michael E. Moore Hospitals, Inc. and Hospital Ann Louise Vix Alliance of Tennessee, Inc.: Nashville, Tennessee William B. Hubbard Carlos C. Smith Mark W. Smith Jerry W. Taylor Nashville, Tennessee Judge: LILLARD First Paragraph: This suit involves a challenge by various eye doctors to the business activities of a public hospital district and its spin-offs. The trial court granted summary judgment to the plaintiffs after determining that the defendants' business activities violated the Tennessee Constitution. We reverse. URL:http://www.tba.org/tba_files/TCA/eyeclini_opn.WP6 RIVERBLUFF COOPERATIVE, INC., CHICKASAW BLUFF COOPERATIVE, INC., KEVIN KANE, DAVID AND KAY SOLOMON, T. J. AND EIGA ODEN, DENNIS AND LANA SMITH, ULYS AND JOAN WARD, JAY AND PAT FERGUSON, STANTON BRYANT, GEORGE T. LEWIS III, KEVIN AND GAYLE GRAUER, LARRY AND JOYCE HASSEL, PATRICK W. HALLORAN, RICHARD J. RAINES, MARY PIPER AND PETER STAMBROOK vs. CITY OF MEMPHIS AND MAYOR W. W. HERENTON and CHICKASAW BLUFFS CONSERVANCY, INC. Court:TCA Attorneys: Cannon F. Allen, Memphis, Tennessee Sara Falkinham, Memphis, Tennessee Attorneys for Plaintiffs/Appellants. Ken McCown, Deputy City Attorney, Memphis, Tennessee Attorney for Defendants/Appellees City of Memphis and Mayor W. W. Herenton. Edward M. Bearman, BRANSON & BEARMAN, Memphis, Tennessee Reva M. Kriegel, DONATI & ASSOCIATES, Memphis, Tennessee Attorneys for Intervening Defendant/Appellee Chickasaw Bluffs Conservancy. First Paragraph: This appeal involves a dispute concerning the construction of a pedestrian walkway along the top of the Fourth Chickasaw Bluff overlooking the Mississippi River on the east side of Riverside Drive between Union Avenue and Calhoun Street in downtown Memphis. This is the second controversy concerning the walkway to reach this Court. Previously the Court considered an appeal by the Memphis mayor from the chancery court order requiring him to execute the construction contract for the walkway. Chickasaw Bluffs Conservancy, et al v. The City of Memphis, et al, C.A. No. 02A01-9607-CH 00169 (Tenn. App. Mar. 25, 1997). The pertinent facts established in Chickasaw Bluff Conservancy set out in this Court's opinion, as amplified by the record in this case, provide a helpful history of the events leading to the present controversy. URL:http://www.tba.org/tba_files/TCA/riverblf_opn.WP6 STATE OF TENNESSEE vs. IRA BARBER Court:TCCA Attorneys: FOR THE APPELLANT: BRETT B. STEIN 236 Adams Avenue Memphis, TN 38103-1922 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter MARVIN E. CLEMENTS, JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General PAUL THOMAS HOOVER, JR. Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947 Judge: RILEY First Paragraph: The defendant, Ira Barber, was convicted by a Shelby County jury of two (2) counts of aggravated robbery. He was sentenced to concurrent terms of ten (10) years for each count. On appeal, he claims that (1) the trial court erred in allowing the prosecutor to read the indictment to the jury prior to the state presenting its proof, and (2) the jury instruction on reasonable doubt was unconstitutional. After a review of the record before this Court, we find no error. Accordingly, the judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TCCA/barberi_opn.WP6 STATE OF TENNESSEE vs. DARRON CLAYTON Court:TCCA Attorneys: For the Appellant: For the Appellee: Thomas E. Hansom Charles W. Burson 659 Freeman Attorney General of Tennessee Memphis, TN 38122 and (AT TRIAL) William David Bridges Asst Attorney General of Tennessee 425 Fifth Avenue North Darron Clayton, Pro Se Nashville, TN 37243-0493 Lake County Regional Prison Route 1, Box 330 John W. Pierotti, Jr. Tiptonville, TN 38079 District Attorney General (ON APPEAL) and Chris B. Craft Terrell Harris Assistant District Attorneys General 201 Poplar Avenue Memphis, TN 38103-1947 Judge: Tipton First Paragraph: The defendant, Darron Clayton, appeals as of right from his conviction by a jury in the Shelby County Criminal Court for second degree murder, a Class A felony. He received a Range I, twenty-year sentence for the conviction. He contends that: (1) there is insufficient evidence to sustain his conviction; (2) the state and the medical examiner violated the defendant's constitutional rights by failing to comply with T.C.A. S 38-7-101; (3) the trial court erred by failing to instruct the jury as to criminally negligent homicide;(4) the trial court improperly enhanced his sentence; and (5) he received the ineffective assistance of counsel at trial. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/claytond_opn.WP6 STATE OF TENNESSEE vs. RALPH D. COOPER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Robert M. Brannon, Jr. John Knox Walkup Attorney at Law Attorney General & Reporter 295 Washington Avenue Suite 3 Douglas D. Himes Memphis, TN 38103-1911 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 William L. Gibbons District Attorney General Rosemary Andrews Asst District Attorney General 201 Poplar Avenue, Third Floor Memphis, TN 38103 Judge: SUMMERS First Paragraph: Alleging that the appellant, Ralph D. Cooper, had been convicted of three qualifying vehicular offenses during a five-year period, the state, pursuant to Tennessee Code Annotated S 55-10-601, filed a petition on April 16, 1997 seeking to declare the appellant a habitual motor vehicle offender. On August 26, 1997, a hearing on the petition was held. At the conclusion of the hearing, the trial court, finding no material disputes of fact, granted the state's petition declaring the appellant a habitual motor vehicle offender. URL:http://www.tba.org/tba_files/TCCA/cooperrd_opn.WP6 ROY LEE CRAWFORD vs. STATE OF TENNESSEE Court:TCCA First Paragraph: This matter is before the Court upon the state's motion to dismiss, or in the alternative, motion to affirm the judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The record and petitioner's brief have both been filed. URL:http://www.tba.org/tba_files/TCCA/crawfor-_ord.WP6 STATE OF TENNESSEE vs. REBECCA CUREVICH Court:TCCA Attorneys: FOR THE APPELLANT: THEODORA A. PAPPAS Washington Square Building 222 Second Avenue North Suite 360M Nashville, TN 37201 (Appeal Only) JACK A. BUTLER First American Building Suite 2395 315 Deaderick Street Nashville, TN 37238-2395 (Trial Only) FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter KAREN M. YACUZZO Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General DIANE S. LANCE WILLIAM R. REED Asst. District Attorneys General Washington Square Building 222 Second Avenue North Nashville, TN 37201-1649 Judge:SUMMERS First Paragraph: The defendant, Rebecca Curevich, appeals her Davidson County jury convictions for aggravated child abuse and child neglect. The defendant contends on appeal that: (1) she was unfairly prejudiced by the trial court's refusal to allow the opinion testimony of a police officer; (2) the evidence presented at trial was insufficient to support her convictio n for aggravated child abuse; (3) she was unfairly prejudiced by the state's improper cross-examination; and (4) the trial court imposed an excessive sentence. After a careful review of the record, we AFFIRM the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/curevich_opn.WP6 STATE OF TENNESSEE vs. CHRIS W. FRAME Court:TCCA Attorneys: For the Appellant: For the Appellee: Philip A. Condra John Knox Walkup Dist. Public Defender Attorney General and Reporter P. O. Box 220 Jasper, TN 37347 Janis L. Turner Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 James Michael Taylor District Attorney General William Copeland Asst. District Attorney General 324 Dinah Shore Blvd. Winchester, TN 37398 Judge:SUMMERS First Paragraph: The appellant, Chris W. Frame, appeals as of right his conviction for the class A misdemeanor of evading arrest. The appellant was originally charged with driving under the influence, third offense, and evading arrest. At the conclusion of the proof, a Franklin County jury found the appellant not guilty of driving under the influence but guilty of evading arrest. The trial court sentenced the appellant to 11 months 29 days with 90 days incarceration in the county jail followed by probation. URL:http://www.tba.org/tba_files/TCCA/framecw_opn.WP6 STATE OF TENNESSEE vs. JOHN GILBREATH Court:TCCA First Paragraph: This cause came to be heard on the motion of the state to remand this case for a determination regarding whether the petitioner's conviction for aggravated assault in count ten of his indictment was the result of a clerical error. It appears from the record that the petitioner entered guilty pleas on March 16, 1995, to several offenses. The plea agreement and the transcript of the guilty plea hearing reflect that the petitioner pled guilty to aggravated robbery in count ten. In contrast, the judgment form indicates that the petitioner pled guilty to aggravated assault in count ten. However, the aggravated robbery statute is cited in the judgment form. Subsequently, on December 4, 1997, the petitioner filed a pro se Motion to Correct/Amendment Judgment in the trial court. The trial court's order denying the motion stated in part: URL:http://www.tba.org/tba_files/TCCA/gilbreat_ord.WP6 STATE OF TENNESSEE vs. LONNIE RUSSELL "RUSTY" GRAY Court:TCCA Attorneys: For the Appellant: For the Appellee: Allen Barnes John Knox Walkup 207 Third Avenue North Attorney General and Reporter Third Floor Nashville, TN 37201-1610 Karen M. Yacuzzo Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Lawrence Ray Whitley District Attorney General Thomas Dean Asst. District Attorney General 113 West Main Street Gallatin, TN 3706 Judge: Hayes First Paragraph: The appellant, Lonnie Russell "Rusty" Gray, appeals, pursuant to Rule 10, Tenn. R. App. P., from the decision of the trial court affirming the assistant district attorney general's denial of his application for pre-trial diversion. The appellant seeks to divert four class D felony counts of theft of property. On appeal, the appellant argues that the trial court erred in finding that the prosecutor did not abuse his discretion in denying diversion. After review of the record, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/graylr_opn.WP6 ALFRED E. GRIZZELL vs. STATE OF TENNESSEE Court:TCCA First Paragraph: This matter is before the Court upon the state's motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner is appealing the trial court's denial of his petition for post-conviction relief and opposes the state's motion. URL:http://www.tba.org/tba_files/TCCA/grizzel1_ord.WP6 VINCENT DELANO HADLEY vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK A. MESLER JOHN KNOX WALKUP 200 Jefferson Ave., Ste. 1250 Attorney General & Reporter Memphis, TN 38103 PETER M. COUGHLAN Asst. Attorney General 425 5th Ave. N. 2nd Fl., Cordell Hull Bldg. Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General KEVIN RARDIN Asst. District Attorney General Criminal Justice Complex, # 301 201 Poplar Street Memphis, TN 38103 Judge: WELLES First Paragraph: The Defendant was indicted for first-degree murder. He pleaded guilty to the charge pursuant to a negotiated plea agreement and received a sentence of life imprisonment with the possibility of parole. In this post-conviction proceeding filed in January 1995, the Defendant contends that his guilty plea must be set aside because it was not entered voluntarily and because he received ineffective assistance of counsel. After an evidentiary hearing, the trial court denied relief. We affirm. URL:http://www.tba.org/tba_files/TCCA/hadleyvd_opn.WP6 STATE OF TENNESSEE vs. DEMOND MALIK JOHNSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: On Appeal: Clifford K. McCown, Jr. John Knox Walkup Attorney at Law Attorney General & Reporter 113 North Court Square P.O. Box 26 Marvin E. Clements, Jr. Waverly, TN 37185 Assistant Attorney General 425 Fifth Avenue North At Trial and Of Counsel Cordell Hull Building, Second Floor on Appeal: Nashville, TN 37243 George Morton Googe District Public Defender Jerry Woodall District Attorney General Stephen P. Spracher Assistant District PD James W. Thompson 227 West Baltimore Street Assistant District Attorney General Jackson, TN 38301 P.O. Box 2825 Jackson, TN 38301 Judge: SUMMERS First Paragraph: In 1996, the appellant, Demond Malik Johnson, was indicted for attempt to commit first degree murder, aggravated assault, and reckless endangerment. In January 1997, a jury convicted him of attempt to commit second degree murder, aggravated assault, and reckless endangerment. The trial court sentenced him to eight years, six years, and two years, respectively. His sentences were ordered to run concurrently, for a total effective sentence of eight years. URL:http://www.tba.org/tba_files/TCCA/johnsond_opn.WP6 STATE OF TENNESSEE vs. JASON W. KIMBERLAND Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RON E. HARMON JOHN KNOX WALKUP 618 Main Street Attorney General and Reporter Savannah, TN 38372 PETER M. COUGHLAN Assistant Attorney General 425 5th Avenue North Nashville, TN 37243 ROBERT RADFORD District Attorney General JOHN OVERTON Assistant District Attorney General 2nd Floor, Hardin County Courthouse Savannah, TN 38372 Judge: WELLES First Paragraph: he Defendant, Jason W. Kimberland, appeals as of right pursuant to Tennessee Rule of Appellate Procedure 3(b) the final judgment of conviction of felony murder. Defendant asserts on appeal that insufficient evidence existed by which the jury found him guilty of attempted robbery, the felony upon which his felony murder conviction was based. We conclude that the record contains sufficient evidence to support a jury finding of attempted robbery, and we therefore affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/kimberjw_opn.WP6

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