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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00-New Opinons From TSC
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00-New Opinons From TSC-Workers Comp Panel
02-New Opinons From TCA
12-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink



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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash


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
Opinion-Flash

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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