TBALink Opinion-Flash

October 6, 1998 -- Volume #4 -- Number #143

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 TCA
18-New Opinons From TCCA

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STATE OF TENNESSEE
VS.
AAA AARON'S ACTION AGENCY BAIL BONDS, INC

Court:TCCA

Attorneys:   

For the Appellant:          For the Appellee:

Thomas L. Whiteside         John Knox Walkup
Fowlkes & Whiteside         Attorney General and Reporter
172 Second Avenue North 
Suite 214                   Timothy F. Behan
Nashville, TN  37201-1908   Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493                
                        
                            Victor S. (Torry) Johnson III
                            District Attorney General

                            Steve Dozier
                            Asst. District Attorney General
                            Washington Square, STE 500
                            222-2nd Avenue N
                            Nashville, TN  37201-1649
                       

Judge:HAYES

First Paragraph:

AAA Aaron's Action Agency Bail Bonds, Inc., (AAA), appeals from the en
banc order of the Davidson County Criminal Court suspending AAA's
authority to write bail bonds in Davidson County.  AAA raises two
issues for our review.

I.  "Whether the trial court's summary suspension of appellant as a
bondsman deprived appellant of a constitutionally protected property
interest;" and

II.  "Whether the failure to provide appellant with notice and an
opportunity to be heard when the trial court summarily suspended
appellant was an abuse of discretion."

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

STATE OF TENNESSEE
VS.
WILLIAM BRADLEY

Court:TCCA

Attorneys:     

FOR THE APPELLANT:          FOR THE APPELLEE:

CHARLES GALBREATH           JOHN KNOX WALKUP 
901 Stahlman Building       Attorney General & Reporter
Nashville, TN  37201
                            TIMOTHY F. BEHAN
                            Assistant Attorney General
                            2nd Floor, Cordell Hull Building
                            425 Fifth Avenue North 
                            Nashville, TN  37243

                            VICTOR S. JOHNSON, III
                            District Attorney General

                            ROGER MOORE 
                            Assistant District Attorney General
                            Washington Square   
                            222 Second Avenue North, Suite 500
                            Nashville, TN  37201-1649
                     

Judge:WOODALL

First Paragraph:

William Bradley, the Defendant, appeals as of right from his
conviction for harassment.  In December 1995, Defendant was charged
with harassment.  He was tried and convicted in General Sessions
Court, but appealed to the Criminal Court of Davidson County for a
trial de novo.  After waiving his right to a trial by jury, Defendant
pled not guilty.  The trial court found the Defendant guilty and
sentenced him to eleven (11) months, twenty-nine (29) days.  Defendant
was to serve his sentence on unsupervised probation pursuant to the
provisions of Tennessee Code Annotated section 40-35-313.  In his
appeal, Defendant argues the evidence was insufficient to convict the
Defendant of harassment and that hearsay evidence was improperly
admitted.  We affirm the conviction and sentence, but remand to the
trial court for a withdrawal of the judgment of guilty and entry of an
order in compliance with Tennessee Code Annotated section 40-35-313.

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

LARRY T. CARTER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

LARRY T. CARTER                     JOHN KNOX WALKUP
Pro Se                              Attorney General and Reporter
TDOC #83297
Middle Tennessee Correctional       LISA A. NAYLOR
Complex                             Assistant Attorney General
7177 Cockrill Bend-Industrial Rd    425 Fifth Avenue North
Nashville, TN  37209-1005           Nashville, TN  37243-0493

                                    VICTOR S. JOHNSON
                                    District Attorney General
            
                                    ROGER MOORE
                                    Assistant District Attorney
                                    Washington Square - Ste. 500
                                    222-2nd Avenue N.
                                    Nashville, TN  37201-1649                        

Judge:SMITH

First Paragraph:

Appellant Larry T. Carter appeals the trial court's denial of his
petition for post-conviction relief.  He presents the following issues
for our consideration on this appeal:  (1) whether the trial court
denied Appellant a full and fair evidentiary hearing by failing to
timely file its order dismissing his petition for post-conviction
relief; (2) whether there is a constitutional and statutory right to
the effective assistance of counsel in post-conviction proceedings;
and (3) whether the trial court erred in dismissing Appellant's
petition for post-conviction relief. After a review of the record, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE
VS.
WILLIAM ALVIN CLEMENTS

Court:TCCA

Attorneys:   

    FOR THE APPELLEE:
    
    MICHAEL J. FLANAGAN
    DALE M. QUILLEN
    95 White Bridge Road
    Suite 208
    Nashville, TN  37205
    

    FOR THE APPELLANT:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    TIMOTHY F. BEHAN
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    JOSEPH D. BAUGH, JR.
    District Attorney General
    
    RONALD DAVIS
    Assistant District Attorney General
    Williamson County Courthouse
    Suite G-6
    P.O. Box 937 
    Franklin, TN  37065--937                       

Judge:MOORE

First Paragraph:

William Alvin Clements, Jr., was indicted by the Hickman County grand
jury in November, 1992, with three (3) counts of  especially
aggravated kidnaping and one (1) count of spousal rape.  His father,
William Clements, Sr., posted a $40,000.00 cash bond to secure his
son's release.  The defendant was later found guilty of the charged
crimes.  His father assigned $12,500.00 of the cash bond to counsel
for his son.  The state filed a motion to attach the cash bond and to
apply it towards an $85,000.00 fine and court costs imposed by the
court in this case.  The trial court denied the motion of the state,
but the state prevailed in its appeal to this Court.  The Supreme
Court later reversed the Court of Criminal Appeals on breach of
contract grounds and reinstated the judgment of the trial court.  See
State v. Clements, 925 S.W.2d 224 (Tenn. 1996).   On July 13, 1996,
counsel for defendant in this case moved the trial court for an order
directing the Hickman County Court Clerk to pay post-judgment interest
on the wrongfully withheld funds in accordance with T.C.A. S
47-14-121.  The trial court ordered Hickman County to pay $13,023.30
in interest to William Clements, Sr., Dale Quillen and Michael
Flanagan.  The state, thereafter, filed a timely notice of appeal.

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

DAVID L. GIBSON
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Appellant:          For the Appellee:

Curtis H. Gann              John Knox Walkup
Asst. Public Defender       Attorney General and Reporter
P. O. Box 1119  
Fayetteville, TN  37334     Elizabeth A. Marney
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
John Harwell Dickey         Nashville, TN 37243-0493
District Public Defender    
                        
                            William Michael McCown
                            District Attorney General

                            Robert Crigler
                            Asst. District Attorney General
                            One Public Square, STE 100
                            Shelbyville, TN  37160                        

Judge:HAYES

First Paragraph:

The appellant, David L. Gibson, appeals the denial of his petition for
post- conviction relief by the Bedford County Circuit Court.  A jury
convicted him of attempted first-degree murder and imposed a $50,000
fine.  The trial judge sentenced him to twenty-two (22) years and nine
(9) months as a range I standard offender.  His conviction was
affirmed on direct appeal to this court.  See State v. Gibson, No.
01C01-9503-CC-00099 (Tenn. Crim. App. at Nashville, Jan. 26, 1996). 
The appellant filed a pro se petition for post-conviction relief in
January 1997, which was subsequently amended after counsel was
appointed.  Following a hearing on the merits, the post-conviction
court denied the appellant's petition for post-conviction relief.

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

TERRY L. HALL
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:        

FOR THE APPELLANT:
    
    CLIFFORD K. MCGOWN, JR.
    113 North Court Square
    P.O. Box 26
    Waverly, TN  37185
    (Appeal Only)
    
    STEVE STACK
    Assistant District Public Defender
    P.O. Box 160
    Charlotte, TN  37036-0160
    
    ALAN R. BEARD
    150 2nd Avenue North, Suite 315
    Nashville, TN  37201

    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
    
    DAN MITCHUM ALSOBROOKS
    District Attorney General
    
    JAMES. W. KIRBY
    Assistant District Attorney General
    105 Sycamore Street 
    Ashland City, TN  37015-1806                  

Judge:MOORE

First Paragraph:

Petitioner, Terry L. Hall, was indicted on twenty-seven (27) counts of
aggravated rape.  On April 8, 1991, petitioner pleaded guilty to four
(4) counts of rape.  He agreed to accept an eight (8) year sentence on
each of the four (4) counts of rape with manner of  service
(concurrent, consecutive or probated) to be determined by the trial
court at a sentencing hearing.  The sentencing hearing was conducted
on May  28, 1991.  Petitioner was ordered to serve four (4), eight (8)
year sentences.  The trial court ran each eight (8) year sentence
consecutive to the others.  The issue of the sentence was appealed. 
The Court of Criminal Appeals affirmed the decision of the trial court
by order filed on August 5, 1993.

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

STATE OF TENNESSEE
VS.
DELBERT LEE HARRIS

Court:TCCA

Attorneys:        

For Appellant/Appellee:         For Appellee/Appellant:

Jack L. Garton, Attorney        John Knox Walkup
White, Regen & Garton, PLC      Attorney General and Reporter
107 Professional Building 
110 North Mathis Drive          Deborah A. Tullis           
P.O. Box 190                    Assistant Attorney General
Dickson, TN  37056-0190         Criminal Justice Division
                                Cordell Hull Building, Second Floor
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                Dan Mitchum Alsobrooks 
                                District Attorney General 

                                Robert S. Wilson    
                                Assistant District Attorney General
                                Twenty-Third Judicial District 
                                P.O. Box 580 
                                Charlotte, TN  37036                  

Judge:WADE

First Paragraph:

The defendant, Delbert Lee Harris, was convicted of aggravated
assault, rape, rape of a child, and attempted sexual battery.  The
trial court imposed sentences of four years for aggravated assault,
ten years for rape, twenty-two years for rape of a child, and eleven
months and twenty-nine days for attempt to commit sexual battery.  The
sentence for rape is to be served consecutively to the sentence for
rape of a child for an effective sentence of thirty-two years.  The
defendant was on probation for a prior crime at the time of the
offenses.  All sentences are to be served consecutively to the earlier
term.

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

STATE OF TENNESSEE
VS.
DEMARIO HILL

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Clifford K. McGown, Jr.         John Knox Walkup
113 North Court Square          Attorney General and Reporter
P. O. Box 26    
Waverly, TN  37185              Janis L. Turner
                                Assistant Attorney General
(ON APPEAL ONLY)                Criminal Justice Division
                                425 Fifth Avenue North
Shipp R. Weems                  2d Floor, Cordell Hull Building
District Public Defender        Nashville, TN 37243-0493            

Carey Thompson  
Asst. District Public Defender
P. O. Box 160                       
Charlotte, TN  37036-0160       Dan Mitchum Alsobrooks
                                District Attorney General
(AT TRIAL AND OF COUNSEL
ON APPEAL)                      Robert Wilson
                                Asst. District Attorney General
                                P. O. Box 580
                                Charlotte, TN  37036                         

Judge:HAYES

First Paragraph:

The appellant, Demario Hill, appeals as of right from convictions
entered by the Circuit Court of Dickson County for possession of
cocaine in excess of .5 grams with intent to sell, a Class B felony,
and possession of drug paraphernalia, a Class A misdemeanor.  At the
sentencing hearing as a Range I standard offender, the trial court
imposed a fine of $2,000 and a ten (10) year sentence in the
Department of Corrections for felony possession with intent to sell. 
This sentence was ordered to be served concurrently with an eleven
(11) months and twenty-nine (29) days sentence in the county workhouse
for possession of drug paraphernalia.  The appellant now raises two
issues for our review.  First, the appellant contends the trial court
erred by permitting the State to introduce evidence of marijuana
residue seized during a proper search of the residence.  Second, the
appellant challenges the sufficiency of the evidence to sustain a
conviction for possession of cocaine with intent for resale and
possession of drug paraphernalia.  Following a review of the record,
we affirm the trial court's decision on both issues.

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

BILLY JOE LINTICUM
VS.
STATE OF TENNESSEE

Court:TCCA

Judge:RILEY

First Paragraph:

The petitioner was convicted by a jury of first degree murder in 1975
and sentenced to death.  This Court affirmed the conviction, but the
sentence was commuted to life imprisonment by executive action. 
Hamilton v. State, 555 S.W.2d 724 (Tenn. Crim. App. 1977).

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

STATE OF TENNESSEE
VS.
JOHN B. LOWERY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

ROGER HOOBAN                JOHN KNOX WALKUP 
P.O. Box 1483               Attorney General & Reporter
Knoxville, TN  37901 
                            CLINTON J. MORGAN
                            Assistant Attorney General
                            2nd Floor, Cordell Hull Building
                            425 Fifth Avenue North 
                            Nashville, TN  37243

                            RANDALL E. NICHOLS
                            District Attorney General 

                            ROBERT JOLLEY
                            Assistant District Attorney General
                            City-County Building 
                            Knoxville, TN  37902                         

Judge:WOODALL

First Paragraph:

In this case, the Defendant, John B. Lowery, was convicted of
possession of cocaine with intent to sell on September 16, 1993.  He
was sentenced to serve eight (8) years in the Tennessee Department of
Correction, but the sentence was suspended and he was placed on
probation for the length of the sentence.  Subsequently, a petition to
revoke probation was filed, and after a hearing, the trial court
entered an order revoking probation on December 17, 1996.  Defendant
was ordered to serve the entire sentence of eight (8) years by
incarceration in the Department of Correction.  He was given credit
for two (2) days spent in jail.  The Defendant did not appeal from the
order revoking probation.  However, on April 11, 1997, he timely filed
a motion to modify the sentence pursuant to Rule 35(b) of the
Tennessee Rules of Criminal Procedure.  This motion was denied by the
trial court on May 15, 1997, and Defendant filed a timely appeal on
June 13, 1997, from the order denying modification of the sentence. 
We affirm the judgment of the trial court.

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

CLAUDE E. MOSLEY, JR.
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

For Appellant:                  For Appellee:

Claude E. Mosley, Pro Se        John Knox Walkup
TDOC #249824                    Attorney General & Reporter
HCCF
P.O. Box 549                    Ellen H. Pollack
Whiteville, TN  38075           Assistant Attorney General
                                425 Fifth Avenue North 
                                Nashville, TN  37243
                            
                                Joseph Eugene Perrin
                                Assistant District Attorney General
                                140 Blountville Bypass              
                                P.O. Box 526                
                                Blountville, TN  37617-0526 
Judge:WADE

First Paragraph:

The petitioner, Claude E. Mosley, Jr., appeals from the trial court's
denial of post-conviction relief.  The issue presented for review is
whether the trial court erred by ruling that the petition was barred
by the statute of limitations and by dismissing the petition without
an evidentiary hearing or the appointment of counsel.  We reverse the
judgment of the trial court and remand for further proceedings
consistent with this opinion.

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

JAMES E. NEWSOME
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:        

For the Appellant:                  For the Appellee:

David A. Collins                    John Knox Walkup
211 Printers Alley Bldg., 4th FL    Attorney General and Reporter
Nashville, TN  37201    
                                    Daryl J. Brand
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    Victor S. (Torry) Johnson III
                                    District Attorney General

                                    Pam Anderson
                                    Asst. District Attorney General
                                    Washington Square, Suite 500
                                    222-2nd Avenue North
                                    Nashville, TN  36201-1649                  

Judge:HAYES

First Paragraph:

The appellant, James E. Newsome, appeals the judgment of the Davidson
County Criminal Court denying his petition for writ of error coram
nobis.  Specifically, the appellant contends that the trial court
abused its discretion in finding that the "newly discovered evidence"
lacked credibility.  On May 21, 1992, the appellant entered a guilty
plea to one count of second degree murder and was sentenced to
eighteen years in the Department of Correction as a Range I offender. 
No direct appeals were taken by the appellant.  He is currently
incarcerated at Turney Center Industrial Farm and Prison in Only,
Tennessee.

After review of the record and the applicable law, we affirm the
decision of the trial court dismissing the appellant's petition for
writ of error coram nobis.

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

STATE OF TENNESSEE
VS.
BRUCE ALAN RUDD

Court:TCCA

Attorneys:  

For Appellant:                  For Appellee:

Gregory D. Smith                John Knox Walkup
Contract Appellate Defender     Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN  37040          Todd R. Kelley
(on appeal)                     Assistant Attorney General
                                425 Fifth Avenue North
R. Mack Garner                  Cordell Hull Building, Second Floor
District Public Defender        Nashville, TN  37243-0493
419 High Street
Maryville, TN  37804            Kirk Andrews
(at trial and on appeal)        Assistant District Attorney General
                                Blount County Courthouse
                                363 Court Street    
                                Maryville, TN  37804                        

Judge:WADE

First Paragraph:

The defendant, Bruce Alan Rudd, was convicted of rape of a child, a
Class A felony.  Tenn. Code Ann. S 39-13-522.  The trial court
sentenced the defendant, who qualified as a child rapist, to
twenty-five years imprisonment.  See Tenn. Code Ann. S 39-13-523(b),
(c) (a child rapist must serve the entire sentence undiminished by
sentence reduction credits and there is no release eligibility or
parole eligibility for a child rapist).  A fine of $50,000.00 was
imposed.

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

STATE OF TENNESSEE
VS.
RICHARD T. SMILEY

WITH DISSENT

Court:TCCA

Attorneys:   

FOR THE APPELLANT:          FOR THE APPELLEE:


KEVIN W. SHEPHERD           JOHN KNOX WALKUP
404 Ellis Ave.              Attorney General & Reporter
Maryville, TN 37804
                            TODD R. KELLEY
                            Asst. Attorney General
                            John Sevier Bldg.
                            425 Fifth Ave., North
                            Nashville, TN  37243-0493
        
                            JERRY N. ESTES
                            District Attorney General

                            DORIS MATTHEWS
                            Asst. District Attorney General
                            220 Carson St.
                            Madisonville, TN 37354-1130                       

Judge:PEAY

First Paragraph:

The defendant was indicted for aggravated assault.  A jury found the
defendant guilty of simple assault.  Following a sentencing hearing,
the trial court imposed an eleven month and twenty-nine day sentence,
ordering the defendant to serve ten weekend days in jail with the
balance on probation.  In this appeal as of right, the defendant
argues that the trial court improperly sentenced him and improperly
instructed the jury.  Finding no merit to the defendant's arguments,
we affirm.

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

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

STATE OF TENNESSEE
VS.
FLOYD WAYNE SMITH, II

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

GREGORY D. SMITH                JOHN KNOX WALKUP
One Public Square, Ste. 321     Attorney General and Reporter
Clarksville, TN 37040
                                TIMOTHY F. BEHAN
KAREN CHAFFIN                   Assistant Attorney General
Assistant Public Defender       425 5th Avenue North
213 North Cumberland St.        Nashville, TN 37243
Lebanon, TN 37087           
                                TOM P. THOMPSON, JR.
                                District Attorney General

                                DAVID DURHAM
                                Assistant District Attorney General
                                111 Cherry Street
                                Lebanon, TN 37087                        

Judge:WELLES

First Paragraph:

The Defendant was convicted on a jury verdict of second degree murder.
 For this Class A felony offense, he was sentenced to serve twenty
years in the Department of Correction as a Range I standard offender. 
He appeals the length of his sentence.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE
VS.
JOSEPH FREDERICK STINNETT

Court:TCCA

Attorneys:                          

For the Appellant:              For the Appellee:

Gerald I. Melton                John Knox Walkup
District Public Defender        Attorney General and Reporter
Jeffrey S. Burton   
Assistant Public Defender       Deborah A. Tullis
201 West Main St, Suite 101     Assistant Attorney General
Murfreesboro, TN  37130         Criminal Justice Division
                                425 Fifth Avenue North
                                2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493                
                        
                                William C. Whitesell, Jr.
                                District Attorney General
                                Third Floor, Judicial Building
                                Murfreesboro, TN   37130
Judge:HAYES

First Paragraph:

The appellant, Joseph Frederick Stinnett, was found guilty following a
bench trial in the Rutherford County Circuit Court of the premeditated
first degree murder of Danny Wayne "Red" Phillips and was sentenced to
life imprisonment in the Department of Correction.  After one day of
testimony, the appellant waived his right to a jury trial.  In
consideration, the State dismissed count two, conspiracy to commit
first degree murder, and the pursuit of enhanced punishment.  In this
appeal, the appellant challenges the sufficiency of the evidence of
premeditation and deliberation to elevate the offense to first degree
murder.

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

STATE OF TENNESSEE
VS.
DONALD WALLACE

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Shipp R. Weems                  John Knox Walkup
District Public Defender        Attorney General and Reporter
    
Richard D. Taylor, Jr.          Lisa A. Naylor
Assistant Public Defender       Assistant Attorney General          
                                Criminal Justice Division
(ON APPEAL)                     450 James Robertson Parkway
                                Nashville, TN 37243-0493                                            
Thomas Meeks                        
Attorney at Law                 Dan M. Alsobrooks
137 Franklin Street             District Attorney General
Clarksville, TN  37040
                                Jake Lockert
(AT TRIAL)                      Asst. District Attorney General
                                105 Sycamore Street
                                Ashland City, TN  37016                         

Judge:HAYES

First Paragraph:

The appellant, Donald Wallace, was sentenced to a term of life
imprisonment following his conviction by a Stewart County jury for the
premeditated first degree murder of Melinda Sue Perrin.  In the appeal
of this conviction, the appellant contends that : I.  The evidence is
insufficient to support a conviction for premeditated first degree
murder;

II.  The trial court erred in admitting statements made by the victim
regarding the victim's state of mind;

III.  The trial court erred in admitting photographs of the victim;

IV.  The trial court erred in denying the jury the opportunity to
examine, during its deliberations, a demonstrative exhibit introduced
by the State.

After a review of the record and the applicable law, we find the
evidence insufficient to support a conviction for premeditated first
degree murder.  Accordingly, we vacate the judgment of conviction and
sentence entered by the trial court.  However, we find the evidence
sufficient to establish that the appellant knowingly killed Melinda
Perrin and, accordingly, modify the judgment to reflect a conviction
for second degree murder.  This case is remanded to the trial court
for proceedings consistent with this opinion.

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

STATE OF TENNESSEE
VS.
HASSON WALLER

Court:TCCA

Attorneys:                          

For the Appellant:          For the Appellee:

Robert C. Newton            John Knox Walkup 
900 Anderson Street         Attorney General of Tennessee
Bristol, TN 37620                   and
                            Clinton J. Morgan
                            Assistant Attorney General of Tennessee
                            425 Fifth Avenue North          
                            Nashville, TN 37243-0493

                            C. Berkeley Bell, Jr.
                            District Attorney General
                            and
                            Eric Christiansen
                            Assistant District Attorney General
                            109 South Main Street
                            Greeneville, TN 37743
Judge:TIPTON

First Paragraph:

The defendant, Hasson Waller, was convicted upon his pleas of guilty
in the Greene County Criminal Court of the offenses of possession with
intent to sell marijuana, a Class E felony, and possession of a
firearm in the commission of a felony, a Class E felony.  The
defendant was sentenced as a Range I, standard offender to concurrent
sentences of one year, one hundred ten days to be served in the county
jail and the remainder on probation.  He was also fined two thousand
dollars.  The defendant appeals as of right upon a certified question
of law that is dispositive of this case.  See T.R.A.P. 3(b); Tenn. R.
Crim. P. 37(b).

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

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