TBALink Opinion-Flash

July 29, 1998 -- Volume #4 -- Number #110

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.

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
13-New Opinons From TCCA

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Editor-in-Chief, TBALink


STATE OF TENNESSEE
vs.
TROY MCLEMORE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

RAYMOND MACK GARNER                 JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter
                      
STACEY NORDQUIST                    CLINTON J. MORGAN
Asst. District Public Defender      Asst. Attorney General
419 High St.                        425 Fifth Ave. N., 2d Floor
Maryville, TN  37804                Nashville, TN  37243
                    
GERALD L. GULLEY, JR. (appeal only) MICHAEL L. FLYNN
Attorney at Law                     District Attorney General
P.O. Box 1708
Knoxville, TN  37901-1708           EDWARD P. BAILEY, JR.
                                    Asst. District Attorney General
                                    363 Court St.
                                    Maryville, TN 37804                        

Judge:WITT

First Paragraph:

The defendant, Troy McLemore, appeals the Blount County Circuit
Court's revocation of his probationary sentence for the crimes of
burglary and theft of property.  He was convicted of those crimes in
1994 following his guilty pleas and received an effective two year
sentence of confinement and probation.  His sentence was extended by
consent for an additional year when he failed to satisfy the financial
obligations imposed with the original sentence.  During this extended
term, a violation summons issued charging the defendant with using
drugs and failing to pay his court costs, restitution and probation
fees.  The trial court found that the defendant had violated the terms
of his probationary sentence and ordered him to serve five months and
six days in the county jail followed by six months of intensive
probation with drug treatment.  In this appeal, he contends (1)  there
is no substantial evidence to support the trial court's revocation of
probation, and (2) the trial court erred in not allowing him to serve
his sentence in intensive probation.  Having reviewed the record and
the parties' briefs, we affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/mclemore_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
ROY D. LEACH    

Court:TCCA

Attorneys:   

For the Appellant:                      For the Appellee:

Virginia Lee Story                      John Knox Walkup
136 Fourth Avenue South                 Attorney General & Reporter
P.O. Box 1608
Franklin, TN. 37065                     Karen M. Yacuzzo
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        2nd Floor, Cordell Hull Bldg.
                                        Nashville, TN. 37243-0493
    
                                        Joseph D. Baugh, Jr.
                                        District Attorney General
                                        Williamson County Cthse. 
                                        Suite G-6,  P.O. Box 937
                                        Franklin, TN. 37065-0937                       

Judge:BARKER

First Paragraph:

The appellant, Roy D. Leach, appeals as of right his conviction in the
Circuit Court of Williamson County.  After a bench trial, the
appellant was convicted of driving under the influence of an
intoxicant and was sentenced to eleven (11) months and twenty nine
(29) days in the county jail.  The trial court ordered the sentence to
be  suspended for a term of probation upon the service of forty eight
(48) hours in jail.  Additionally, the appellant's driver's license
was revoked for one (1) year and he was ordered to pay a three hundred
and fifty ($350) dollar fine.

URL:http://www.tba.org/tba_files/TCCA/leachrdl_opn.WP6
Opinion-Flash
STATE OF TENNESSEE
vs.
FRED BRYAN LINGENFELTER

Court:TCCA

Attorneys:   

 FOR THE APPELLANT:                 FOR THE APPELLEE:

Guy T. Wilkinson                    John Knox Walkup
District Public Defender            Attorney General & Reporter 

W. Jeffery Fagan                    Elizabeth T. Ryan
Asst. District Attorney General     Assistant Attorney General
117 North Forrest Avenue            425 Fifth Avenue North
P.O. Box 663                        2d Floor, Cordell Hull Building
Camden, TN 38320                    Nashville, TN 37243-0493

                                    Robert "Gus" Radford
                                    District Attorney General
                                    111 Church Street
                                    P.O. Box 686
                                    Huntingdon, TN 38344-0686
    
                                    Todd Rose
                                    Asst. District Attorney General
                                    Paris, TN 38242                       

Judge:SUMMERS

First Paragraph:

The appellant, Fred B. Lingenfelter, was convicted by a jury of three
counts of incest, one count of sexual battery, and one count of rape. 
He was sentenced concurrently to three years for each count of incest,
one year for sexual battery, and ten years for rape.  He appeals,
challenging the sufficiency of the evidence and the propriety of
certain evidentiary rulings.  We affirm the judgment of the trial
court.

URL:http://www.tba.org/tba_files/TCCA/lingenfe_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
C. W. McCALEB

Court:TCCA

Attorneys:    

FOR THE APPELLANT:

TERRY B. LARKIN
904 Hwy 48 South
Dickson, TN 37055-3912

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

DARYL J. BRAND
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

JOSEPH D. BAUGH, JR.
District Attorney General

RONALD L. DAVIS
Assistant District Attorney General
Williamson County Courthouse
Suite G-6
P.O. Box 937
Franklin, TN 37065-0937                      

Judge:RILEY

First Paragraph:

The defendant, C.W. McCaleb, was convicted by a Hickman County jury of
simple assault.  The jury fined him $1.  The trial court sentenced the
defendant to eleven (11) months and twenty-nine (29) days with the
sentence to be suspended after service of ninety (90) days in the
county jail.  The defendant presents three (3) issues in this direct
appeal:  (1) whether the evidence presented at trial was sufficient to
support the verdict; (2) whether the prosecuting attorney presented an
improper closing argument; and (3) whether the trial court properly
sentenced the defendant.  The judgment of the trial court is AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/mccalebc_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JAGATH N. PARACHURI

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

THOMAS L. WHITESIDE
172 Second Ave North
Suite 214
Nashville, TN 37201-1908
FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

DEBORAH A. TULLIS
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

JOSEPH D. BAUGH, JR.
District Attorney General
Williamson County Courthouse
Suite G-6
P.O. Box 937
Franklin, TN 37065-0937                         

Judge:RILEY

First Paragraph:

The defendant, Jagath N. Parachuri, appeals the order of the
Williamson County Circuit Court revoking his probation.  Since we
conclude the court improperly modified the original sentences, we
REVERSE AND REMAND the case to the Williamson County Circuit Court for
entry of proper judgments and any further proceedings consistent with
this opinion.

URL:http://www.tba.org/tba_files/TCCA/parachjn_opn.WP6
Opinion-Flash

LYNN BRUCE PERSON
vs.
STATE OF TENNESSEE

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
trial court judgment pursuant to Rule 20, Rules of the Court of
Criminal Appeals.  The record and the petitioner's brief have been
filed in this case.  The petitioner has also filed a response to the
state's motion.

URL:http://www.tba.org/tba_files/TCCA/perso-l1_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
MELISSA J. PEWITT

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

B. KEITH WILLIAMS                   JOHN KNOX WALKUP 
TAYLOR, TAYLOR,                     Attorney General & Reporter
LANNOM & WILLIAMS 
102 East Main Street                ELLEN H. POLLACK 
Lebanon, TN  37087                  Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243

                                    TOM P. THOMPSON 
                                    District Attorney General 
                                    111 Cherry Street 
                                    Lebanon, TN  37087                        

Judge:WOODALL

First Paragraph:

The Defendant, Melissa J. Pewitt, appeals as of right from her
conviction in the Criminal Court of Wilson County.  Following a jury
trial, she was convicted of especially aggravated burglary.  In her
appeal, the Defendant presents the following issues: 1)  Whether the
evidence was sufficient to sustain a guilty verdict on the charge of
especially aggravated burglary; 2) Whether the trial court erred in
allowing the admission of photographs of the victim's injuries which
unfairly prejudiced and inflamed the jury; 3) Whether the trial court
erred in allowing the jury to consider a charge of an incidental crime
in violation of the Defendant's due process rights; 4) Whether the
trial court erred in allowing the jury to consider the charge of
aggravated assault in addition to the charge of especially aggravated
burglary; and 5) Whether the trial court erred in not allowing the
jury foreman to announce the jury's verdict as to the aggravated
assault charge.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/pewittmj_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
ROGER MARTIN/LIBERTY BAIL BOND COMPANY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

Michael J. Gatlin               John Knox Walkup
Attorney at Law                 Attorney General & Reporter 
P.O. Box 27331
Memphis, TN 38167-0331          Elizabeth T. Ryan
                                Assistant Attorney General
                                425 Fifth Avenue North
                                2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493

                                William L. Gibbons
                                District Attorney General

                                James J. Challen, III
                                Assistant District Attorney General
                                201 Poplar, Suite 301
                                Memphis, TN 38103                         

Judge:SUMMERS

First Paragraph:

Liberty Bail Bond Company ("Liberty") was the surety on a $750.00
appearance bond for Roger Martin in Bartlett City Court.  Martin
failed to appear at a scheduled court date.  Liberty Bail Bond filed a
petition for exoneration of surety in the Shelby County Criminal
Court.  After a hearing, the court denied the motion.  Liberty
appeals.  The sole issue for our review is whether the trial court
abused its discretion in denying the petition.  The judgment of the
trial court is affirmed.

URL:http://www.tba.org/tba_files/TCCA/martinro_opn.WP6
Opinion-Flash

CARL LONDON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

Carl London, Pro Se             John Knox Walkup
TDOC # 122534                   Attorney General & Reporter 
Lake County Regional
Correctional Facility           Elizabeth B. Marney
Route 1, Box 330                Assistant Attorney General
Tiptonville, TN 38079           425 Fifth Avenue North
                                Nashville, TN 37243-0493
    
                                Victor S. Johnson, III
                                District Attorney General

                                Lila Statom
                                Dan Hamm
                                Assistant District Attorneys General
                                Washington Square, Suite 500
                                222 Second Avenue North
                                Nashville, TN 37201-1649                         

Judge:SUMMERS

First Paragraph:

The appellant, Carl London, appeals the denial of post-conviction
relief.   In January 1992, the appellant pled guilty to one count of
aggravated rape and received a twenty-three-year sentence in the
Tennessee Department of Correction.  On January 17, 1997, the
appellant filed a pro se petition for post conviction relief, and on
February 5, 1997, the trial court dismissed the petition.  The court
held that the petition was filed outside the statute of limitations,
and the appellant's challenge to his sentence calculation was not a
cognizable claim for post-conviction relief.

URL:http://www.tba.org/tba_files/TCCA/londonca_opn.WP6
Opinion-Flash

MICHAEL LEWIS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

 FOR THE APPELLANT:                 FOR THE APPELLEE:

Robert B. Gaia                      John Knox Walkup
Attorney at Law                     Attorney General & Reporter 
100 North Main Bldg., Suite 3201
Memphis, TN 38103                   Douglas D. Himes
                                    Assistant Attorney General
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493
    
                                    William L. Gibbons
                                    District Attorney General

                                    Alanda Horne
                                    Asst. District Attorney General
                                    201 Poplar Avenue, Third Floor 
                                    Memphis, TN 38103                       

Judge:SUMMERS

First Paragraph:

In August 1994, the appellant, Michael Lewis, pled guilty to
aggravated robbery and theft of property less than $500.  He was
sentenced to concurrent Range I sentences of eight years and one year,
respectively.  In April 1996, the appellant filed a pro se motion for
post-conviction relief.  Counsel was appointed.  An amended petition
was filed alleging that the appellant's guilty pleas were
involuntarily entered due to ineffective assistance of counsel.  After
a hearing, the Shelby County Criminal Court denied the petition.  The
sole issue for our review is whether the evidence preponderates
against the findings of the trial court.  We affirm the hearing court.

URL:http://www.tba.org/tba_files/TCCA/lewismic_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
DEBORAH JO ROVSEK

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:
B. CAMPBELL SMOOT               JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter
14th Judicial District
605 East Carroll Street         CLINTON J. MORGAN
P.O. Box 260                    Assistant Attorney General
Tullahoma, TN 37388             Cordell Hull Building, Second Floor
                                425 Fifth Avenue North
                                Nashville, TN 37243-0493

                                C. MICHAEL LAYNE
                                District Attorney General

                                KENNETH J. SHELTON, JR.
                                Assistant District Attorney General
                                14th Judicial District
                                307 South Woodland
                                P.O. Box 147
                                Manchester, TN 37349                         

Judge:HAYES

First Paragraph:

The appellant, Deborah Jo Rovsek, appeals as of right from the trial
court's revocation of her probation sentence.  She contends that the
trial court abused its discretion by revoking her probation and
ordering her to serve the entire sentence previously imposed.  The
appellant contends that the trial court should have considered "a
period of shock incarceration followed by Community Corrections." 
Based on our review of the briefs and of the entire record in this
cause, we conclude that this is an appropriate case for affirmance
under Rule 20, Tennessee Court of Criminal Appeals Rules.

URL:http://www.tba.org/tba_files/TCCA/rovsek_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
Y'VETTE VITINA VADEN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

JOHN P. DRIVER
120 East Main Street
NationsBank Building, Third Floor
P.O. Box 1336
Murfreesboro, TN 37133-1336

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

DEBORAH A. TULLIS
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

WILLIAM C. WHITESELL, JR.
District Attorney General
303 Rutherford County Jud. Bldg.
Murfreesboro, TN 37130                         

Judge:RILEY

First Paragraph:

The defendant, Y'vette Vitina Vaden, appeals as of right her
convictions for first degree murder, aggravated assault, and reckless
endangerment.  On appeal, she contends the trial court erred by (1)
admitting the taped statement of the victim identifying the defendant
as the person who shot him, and (2) admitting photographs of the
deceased victim.  We find no error and AFFIRM the judgment of the
trial court.

URL:http://www.tba.org/tba_files/TCCA/vadenyv_opn.WP6
Opinion-Flash

TWANDA D. WARD
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

GREGORY D. SMITH
(Appeal Only)
One Public Square, Suite 321
Clarksville, TN 37040

COLLIER W. GOODLET 
(Hearing and Appeal)
Assistant Public Defender
109 South Second Street
Clarksville, TN 37040

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

LISA A. NAYLOR
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

JOHN WESLEY CARNEY, JR.
District Attorney General

ARTHUR F. BIEBER
Assistant District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040-3420                         

Judge:RILEY

First Paragraph:

The petitioner, Twanda D. Ward, appeals the dismissal of her petition
for post-conviction relief.  The petitioner was convicted of the first
degree murder of her husband for which she was sentenced to life
imprisonment.  She was also convicted of aggravated arson and given a
concurrent twenty (20) year sentence.  The sole issue for our review
is whether trial counsel was ineffective for failing to present
evidence of "battered woman syndrome."  The judgment of the trial
court is affirmed.

URL:http://www.tba.org/tba_files/TCCA/wardtd_opn.WP6

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