TBALink Opinion-Flash

September 4, 1998 -- Volume #4 -- Number #130

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):
01-New Opinons From TSC
00-New Opinons From TSC-Rules
01-New Opinons From TSC-Workers Comp Panel
01-New Opinons From TCA
10-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink



ORDER ESTABLISHING THE SUPREME COURT COMMITTEE
TO IMPLEMENT THE RECOMMENDATIONS OF
THE RACIAL AND ETHNIC FAIRNESS COMMISSION
AND THE GENDER FAIRNESS COMMISSION
("THE COMMITTEE")

Court:TSC

Judge:ANDERSON

First Paragraph:

WHEREAS, the Tennessee Supreme Court recognizes that gender, racial,
and ethnic biases are inimical to the effective administration of
justice

URL:http://www.tba.org/tba_files/TSC/implcomm_ord.WP6
Opinion-Flash

SARAH TAYLOR
VS.
HARMAN AUTOMOTIVE, INC

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:          For the Appellee:

Stuart B. Breakstone        Gayden Drew, IV
Morton & Breakstone         Drew & Martindale, P.C.
200 Jefferson, Suite 725    470 North Parkway, Suite C
Memphis, TN  38103          Jackson, TN  38305                        

Judge:BYERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.

URL:http://www.tba.org/tba_files/TSC_WCP/taylorsa_opn.WP6
Opinion-Flash

JAMES HARRISON JENKINS
VS.
ANNETTE CAROL JENKINS

Court:TCA

Attorneys: 

J. BRANDEN BELLAR
Bellar & Bellar
212 Main Street
P. O. Box 332
Carthage, Tennessee  37030
    ATTORNEY FOR PLAINTIFF/APPELLANT

WILLIAM JOSEPH BUTLER
Farrar, Holliman & Cassidy
102 Scottsville Highway
P. O. Box 280
Lafayette, Tennessee  37083
    ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge:CAIN

First Paragraph:

In this case James Harrison Jenkins appeals the action of the trial
court in dismissing his petition to modify a final decree of divorce.

URL:http://www.tba.org/tba_files/TCA/jenkinsj_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
ANDRE CHAMBERLAIN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:      FOR THE APPELLEE:

ROBERT P. BALLINGER     JOHN KNOX WALKUP
601 Woodland Street     Attorney General and Reporter
Nashville, TN  37206
                        TIMOTHY F. BEHAN
                        Assistant Attorney General
                        425 Fifth Avenue North
                        Nashville, TN  37243-0493

                        VICTOR S. JOHNSON
                        District Attorney General

                        PAUL DEWITT
                        Assistant District Attorney
                        Suite 500, 222-2nd Avenue N.
                        Nashville, TN  37201-1649                         

Judge:SMITH

First Paragraph:

Appellant was convicted of one count of possession with intent to
sell;  two counts of aggravated assault; one count of disorderly
conduct; one count  of resisting arrest; and one count of evading
arrest, from an incident where he walked away from police afficers who
approached the group in which he was standing.  The trial court
sentenced Appellant to a total of 40 years by running the possession
and aggravated assault convictions consecutively.  The remaining
convictions were run concurrently. State v. Chamberlain, C.C.A. No.
01C01- 9509-Cr-00304, Davidson County (Tenn. Crim. App., Nashville,
October 17, 1996).

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

STATE OF TENNESSEE
VS.
RICKY WAYNE COOPER

Court:TCCA

Attorneys:  

FOR THE APPELLANT:
    
    DAVID H. HORNIK
    222 Second Avenue North
    Suite 360M
    Nashville, TN 37201-1649

    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
    
    G. ROBERT RADFORD
    District Attorney General
    
    JOHN W. OVERTON, JR.
    TODD A. ROSE
    Asst. District Attorneys General
    111 Church Street
    P.O. Box 686
    Huntingdon, TN 38344-0686                        

Judge:RILEY

First Paragraph:

The defendant, Ricky Wayne Cooper, appeals as of right his conviction
by a Henry County jury for driving under the influence of an
intoxicant.  The defendant was sentenced to eleven (11) months and
twenty-nine (29) days to be served on probation after ten (10) days
continuous confinement.  The trial court also affirmed the jury's fine
of $700.  The defendant contends on appeal that:

(1) the trial court erred in allowing testimony that the defendant was
administered the horizontal gaze nystagmus (HGN) test;

(2) the evidence presented at trial was insufficient to support a
verdict of guilty; and

(3) the court's sentence of ten (10) days continuous confinement and
its affirmance of the jury's fine of $700 were improper.

Although we find the trial court erred by allowing testimony that an
HGN test was given, we find the error harmless.  The judgment of the
trial court is AFFIRMED.

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

JAMES R. JACKSON
VS.
STATE OF TENNESSEE

Court:TCCA

Judge:WELLES

First Paragraph:

This matter is before the Court upon counsel's Motion to Withdraw,
which was filed on August 24, 1998.  We note that the motion is not
accompanied by an affidavit or a proposed order.  See T.R.A.P. 22(a)
and Rule 7, Tennessee Court of Criminal Appeals Rules.  In the motion,
counsel requests that this Court vacate and reinstate our opinion so
that the appellant will have an opportunity to file an application for
permission to appeal to the Supreme Court pursuant to T.R.A.P. 11. 
Although failing to cite to the correct rules, counsel requests that
he be allowed to withdraw from further representation of the
appellant.

URL:http://www.tba.org/tba_files/TCCA/jacksoj5_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
JOHN WAYNE MANSELL

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:
    
    RUSSELL A. CHURCH
    Assistant Public Defender
    109 South Second Street
    Clarksville, TN  37040
    
    FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    GEORGIA BLYTHE FELNER
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    JOHN WESLEY CARNEY, JR.
    District Attorney General
    
    ARTHUR BIEBER
    Assistant District Attorney General
    204 Franklin Street, Suite 200
    Clarksville, TN  37040

Judge:MOORE

First Paragraph:

The appellant, John Wayne Mansell, was indicted during the January,
1993, term of the Montgomery County grand jury for possession of a
Schedule VI controlled substance for resale and unlawful possession of
a deadly weapon.  On April 30, 1997, after selection of a jury and
commencement of trial, defendant entered a plea of guilty to the
delivery of a Schedule VI controlled substance under Count Two of the
indictment.  Counts One and Three of the indictment were dismissed. 
The plea of guilty was subject to judicial sentencing.  On June 9,
1997, a sentencing hearing was held.  Defendant was sentenced to two
(2) years with six (6) months of his sentence being served in jail and
the balance on probation.  Defendant was also fined $5,000.00.

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

STATE OF TENNESSEE
VS.
CAROLYN F. PICKETT

Court:TCCA

Attorneys: 

For the Appellant:          For the Appellee:

Robert S. Peters            John Knox Walkup
Swafford, Peters & Priest   Attorney General and Reporter
100 First Avenue, S.W.  
Winchester, TN  37398       Karen M. Yacuzzo
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493                
                            
                            James Michael Taylor
                            District Attorney General
    
                            Bill Copeland
                            Asst. District Attorney General
                            Dinah Shore Blvd.
                            Winchester, TN  37398                         

Judge:Hayes

First Paragraph:

The appellant, Carolyn F. Pickett, appeals as of right her conviction
by a Franklin County jury for driving under the influence, first
offense.  Following her conviction, the trial court sentenced the
appellant to ten days in jail, to be served on weekends, with the
balance of her eleven months, twenty-nine days sentence to be served
on supervised probation.  On appeal, she raises the following issues
(1) whether the evidence is sufficient to support her conviction and
(2) whether the delay by the police in affording her the right to a
phone call violated due process of law.

After review, we affirm.

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

JOHN RUCKER
VS.
STATE OF TENNESSE

Court:TCCA

Attorneys:    

FOR THE APPELLANT:
    
    DWIGHT E. SCOTT
    4024 Colorado Avenue
    Nashville, TN  37209
    
    FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    TIMOTHY F. BEHAN
    Assistant Attorney General
    Criminal Justice Division
    450 James Robertson Parkway
    Nashville, TN  37243-0493
    
    VICTOR S. JOHNSON, III
    District Attorney General
    
    KATRIN NOVAK MILLER
    Assistant District Attorney General
    Washington Square, Suite 500
    222 Second Avenue, North 
    Nashville, TN  37201-1649                      

Judge:MOORE

First Paragraph:

The petitioner, John Rucker, appeals the dismissal of his petition for
post-conviction relief.  On March 30, 1995, petitioner entered a best
interest plea of guilty to two (2) counts of second degree murder, one
(1) count of especially aggravated robbery and one (1) count of
especially aggravated kidnaping.

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

CLONTE THOMAS
VS.
STATE OF TENNESSEE  

Court:TCCA                          

Judge:RILEY

First Paragraph:

Petitioner appeals the summary dismissal of his second petition for
post-conviction relief.  The trial court dismissed the petition
finding the statute of limitations had expired, and his allegations
were resolved in his first petition for post-conviction relief.  We
affirm the judgment of the trial court pursuant to Rule 20, Tennessee
Court of Criminal Appeals.

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

STATE OF TENNESSEE
VS.
TYRONE V. TURNER,

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

Gerald L. Melton                John Knox Walkup
District Public Defender        Attorney General & Reporter 
201 West Main Street, Suite 101
Murfreesboro, TN 37130          Deborah A. Tullis
                                Assistant Attorney General
                                Cordell Hull Building, Second Floor
                                425 Fifth Avenue North
                                Nashville, TN 37243
    
                                William C. Whitesell, Jr.
                                District Attorney General
                                Third Floor, Judicial Building
                                Murfreesboro, TN 37130                        

Judge:SUMMERS

First Paragraph:

On March 4, 1996, the appellant, Tyrone V. Turner, was indicted for
second degree murder for the death of Cory Ward.  On July 26, 1996, he
was convicted by a jury of second degree murder and assessed a fine of
$40,000.  The trial court sentenced him to twenty-two years in the
Tennessee Department of Correction and ordered him to serve 100% of
his sentence.

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

STATE OF TENNESSEE
VS.
JAMES KENNETH WALKER, JR

Court:TCCA

Attorneys: 

FOR THE APPELLANT:
    
    RON E. HARMON
    (Trial Only)
    618 Main Street
    P.O. Box 968
    Savannah, TN 38372
    
    MIKE MOSIER
    (Appeal Only)
    204 W. Baltimore
    P.O. Box 1623
    Jackson, TN 38301-1623

    FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    DOUGLAS D. HIMES
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    G. ROBERT RADFORD
    District Attorney General
    
    JOHN W. OVERTON, JR.
    Assistant District Attorney General
    P.O. Box 484
    Savannah, TN 38372-0484                         

Judge:RILEY

First Paragraph:

The defendant, James Kenneth Walker, Jr., appeals as of right his
convictions for seven (7) counts of sales tax evasion by a Hardin
County jury.  The defendant was sentenced to seven concurrent one (1)
year terms with sixty days to be served in the county jail and the
remainder on Community Corrections.  The defendant presents the
following issues for review: (1) whether the evidence presented at
trial was sufficient to support a guilty verdict;

(2) whether the jury was properly charged as to the elements of sales
tax evasion; and

(3) whether the trial court erred in denying total probation.

After a review of the record, the judgment of the trial court is
AFFIRMED.

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

STATE OF TENNESSEE
VS.
VINCENT WALKER

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

SHARA FLACY                 JOHN KNOX WALKUP
District Public Defender    Attorney General and Reporter
128 North 2nd St.   
Pulaski, TN  38478          LISA A. NAYLOR
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN  37243-0493
    
                            MIKE BOTTOMS
                            District Attorney General
                            P. O. Box 459
                            Lawrenceburg, TN  38464

Judge:SMITH

First Paragraph:

On January 6, 1997, the trial court issued a community corrections
violation warrant for failure to pay court costs, fines, supervision
fees, and maintain employment. On May 5, 1997,  a second revocation
warrant was issued, this time for aggravated robbery. On June 2, 1997,
the trial court revoked Appellant's community corrections placement
and imposed his original sentence of incarceration.

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

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