TBALink Opinion-Flash

October 14, 1998 -- Volume #4 -- Number #147

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):
05-New Opinion(s) from the Tennessee Supreme Court
08-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06-New Opinion(s) from the Tennessee Court of Appeals
17-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

Lucian T. Pera
Editor-in-Chief, TBALink



STATE OF TENNESSEE
VS.
DEWAYNE B. BUTLER, FREDRICK D. BUTLER, and ERIC D. ALEXANDER

Court:TSC

Judge:PER CURIAM

First Paragraph:

It appearing to the Court that the original opinion in this case,
filed September 14, 1998, inadvertently stated that mitigating
circumstances must be proven beyond a reasonable doubt.  Such a burden
of proof is not required by the provisions of Tennessee Code Annotated
Sections 39-13-204(e)(1) and 39-13-207(d).

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the attached
opinion and judgment be, and the same hereby is, substituted for the
opinion and judgment previously filed in this cause on September 14,
1998, without the further taxing of costs.

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

STATE OF TENNESSEE
VS.
DEWAYNE B. BUTLER, FREDRICK D. BUTLER, and ERIC D. ALEXANDER

Court:TSC

Attorneys: 

For the Appellants:                 For the Appellee:

A.C. Wharton                        John Knox Walkup
Shelby County Public Defender       Attorney General & Reporter     
W. Mark Ward & Sherrye Brown        Michael E. Moore
Assistant Public Defenders          Solicitor General       
Memphis
(Attorneys for Dewayne Butler)      Kathy Morante   
                                    Deputy Attorney General 
Leslie I. Ballin & Mark A. Mesler                       
Memphis                         
(Attorneys for Fredrick Butler)             

William Massey
Memphis
(Attorney for Eric Alexander)                                        

Judge:BARKER

First Paragraph:

The sole issue in this interlocutory appeal is whether the State may rely upon 
the felony murder aggravating circumstance when seeking a sentence of
life without the possibility of parole for defendants charged with
felony murder.  We hold that there are no constitutional or statutory
prohibitions and accordingly affirm the judgment of the Court of
Criminal Appeals.

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

STATE OF TENNESSEE
VS.
NATHAN ALLEN CALLAHAN

Court:TSC

Attorneys:

FOR APPELLANT:          FOR APPELLEE:

STEPHEN M. WALLACE      JOHN KNOX WALKUP
Blountville             Attorney General and Reporter

                        DARIAN B. TAYLOR
                        Assistant Attorney General
                        Nashville                         

Judge:HOLDER

First Paragraph:

We granted this appeal to decide whether a juvenile can
constitutionally waive the right to remain silent when the juvenile
has not been informed of the possibility of being prosecuted as an
adult.  We hold that:  (1) neither the Tennessee Constitution nor the
United States Constitution requires police officers to inform the
defendant that he may be prosecuted as an adult; and (2) juvenile
waivers shall be analyzed under a totality-of-the-circumstances test,
which requires consideration of factors consistent with those
enumerated in Fare v. Michael C., 442 U.S. 707, 724-25 (1979).  The
decision of the Court of Criminal Appeals affirming the defendant's
conviction is affirmed.

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

FRANK CRITTENDEN
VS.
STATE OF TENNESSEE

Court:TSC

Attorneys:        

PETER D. HEIL       JOHN KNOX WALKUP
Nashville, TN       Attorney General and Reporter

                    MICHAEL E. MOORE
                    Solicitor General

                    ELIZABETH T. RYAN
                    Assistant Attorney General
                    Nashville, TN

                    VICTOR S. JOHNSON, III
                    District Attorney General

                    WILLIAM REED
                    Assistant District Attorney General
                    Nashville, TN                  

Judge:BIRCH

First Paragraph:

In this post-conviction case, Frank Crittenden, the appellant, pleaded
guilty to eight counts of aggravated rape.  After a sentencing
hearing, the trial court imposed an effective sentence of one hundred
years to the Department of Correction.  Two issues are before this
Court:  first, the appellant contends that the indictment upon which
he was convicted failed to allege a culpable mental state and, for
that reason, the trial court was without jurisdiction to enter
judgments of conviction; second, he insists that he did not have the
assistance of counsel and consequently failed to file a notice of
appeal.  Hence, he seeks a delayed appeal.

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

THE CITY OF WHITE HOUSE
VS.
LAWRENCE RAY WHITLEY,           
District Attorney General for the
Eighteenth Judicial District of the State of
Tennessee, JOHN CARNEY, District
Attorney General for the Nineteenth Judicial
District of the State of Tennessee and STATE OF TENNESSEE,
    Appellees,
And

TAYLOR (TED) EMERY, Sheriff for Robertson
County, Tennessee; J.D. VANDERCOOK,
Sheriff for Sumner County, Tennessee

Court:TSC

Attorneys: 


FOR APPELLANT:      FOR AMICUS CURIAE:      FOR APPELLEES:
City of White House NonLawyer General       Whitley & Carney
David Amonette      Sessions Judges of      John Knox Walkup
Gallatin, Tennessee Claiborne, Greene,      Atty General & Reporter
                    Lake and Obion Counties 
                    Douglas T. Jenkins
                    Rogersville, Tennessee  Michael E. Moore
                                            Solicitor General
                    And                 
                                            Gordon W. Smith
                    W. Lewis Jenkins, Jr.   Assoc Solicitor General
                    WILKERSON, GAULDIN      Nashville, Tennessee
                    & HAYES 
                    Dyersburg, Tennessee                         

Judge:DROWOTA

First Paragraph:

In this appeal, we are confronted with the question of whether Article
I, Section 8 of the Tennessee Constitution precludes non-attorney
judges from presiding over trials of criminal offenses which are
punishable by incarceration.  We have determined that individuals
charged with a criminal offense punishable by incarceration are
constitutionally entitled to have an attorney judge preside at the
trial.  However, this right may be waived in a manner consistent with
the provisions of Rule 5(c), Tenn. R. Crim. P.  The principles
announced herein apply to (1) all cases tried or retried after the
date of this opinion, and (2) to all cases on appeal in which the due
process issue has been raised in the trial court and preserved as a
ground for appeal.  Accordingly, the judgment of the Court of Appeals
is affirmed.

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

RICHARD LEE BENNETT
VS.
BRIDGESTONE, U.S.A., INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:          For the Appellee:
Wm. Kennerly Burger         Kitty Boyte
SunTrust Bank Building      Kimbra Spann
Suite 306                   150 Second Avenue North
201 E. Main Street          Suite 201
P. O. Box 1969              Nashville, TN 37201
Murfreesboro, TN 37133-1969                         

Judge:INMAN

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. The issue in
this case is whether the trial judge properly dismissed the complaint
owing to the failure of the plaintiff to prove by a preponderance of
all the evidence that his disability was job-related. Review of the
findings of fact made by the trial court is de novo upon the record of
the trial court, accompanied by a presumption of the correctness of
the finding, unless the preponderance of the evidence is otherwise. 
Tenn. Code Ann. S 50-6- 225(e)(2).  Stone v. City of McMinnville, 896
S.W.2d 548, 550 (Tenn. 1995).

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

WILLIE GOOCH
VS.
McKINNON BRIDGE COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                  For Appellee:

Michael L. Weinman              James H. Tucker, Jr.
Tatum, Tatum & Weinman          Manier & Herod
Henderson, Tennessee            Nashville, Tennessee
                         

Judge:LOSER

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. section 50-6-225(e) for hearing and reporting of
findings of fact and conclusions of law.  The issue on appeal is
whether the denial of the employee's motion to set aside the workers'
compensation settlement was an abuse of discretion. As discussed
below, the panel has concluded the trial court did not err and that
the trial court's action should be affirmed.

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

SANDRA GAIL HOLMES
VS.
BRIDGESTONE/FIRESTONE, INC. 

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:          For the Appellee:

Kitty Boyte                 Susan K. Bradley
GRACEY, RUTH, HOWARD,       WILSON & BRADLEY
    TATE & SOWELL           6 Public Square North
150 Second Avenue North,    Murfreesboro, TN 37130
Suite 201
Nashville, TN 37201                         

Judge:INMAN

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/holmess_opn.WP6
Opinion-Flash

BONNIE MAE DOS KNUTSON
VS.
DOLLAR GENERAL CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:  

FOR THE APPELLANTS:                 FOR THE APPELLEE:
                            
JOHN THOMAS FEENEY                  CHARLES L. HICKS      
CATHERINE L. GRANT                  9 N. Court Square       
FEENEY & LAWRENCE                   P. O. BoX 957
P. O. Box 198685                    Camden, Tennessee 38320 
Nashville, Tennessee 37219-8685                        

Judge:RUSSELL

First Paragraph:

This appeal in a workers' compensation case has been referred to the
Special Workers' Compensation Appeals Panel of the Supreme Court in
accordance with Tennessee Code Annotated Section 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/knutsonb_opn.WP6
Opinion-Flash

WILLIAM RANDY LITTRELL and
ANITA CAROL LITTRELL, surviving
kin and heirs at law and administrators
of the Estate of EDITH CAROLYN LITTRELL
VS.
LAWRENCE COUNTY ADVOCATE, INC.

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:              For the Appellee:

D. Randall Mantooth             Paul A. Bates
LEITNER, WILLIAMS, DOOLEY       Christopher V. Sockwell
    & NAPOLITAN, PLLC           BOSTON, BATES, HOLT
2300 First American Center          & SOCKWELL
Nashville, TN 37238-2300        235 Waterloo St.
                                P. O. Box 357
                                Lawrenceburg, TN 38464                        

Judge:INMAN

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/littrell_opn.WP6
Opinion-Flash

RICHARD MAY
VS.
LIBERTY MUTUAL INSURANCE COMPANY and SOUTHERN
MANUFACTURING GROUP

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:          For the Appellee:
Jerry R. Humphreys          Frank D. Farrar
P. O. Box 190609            102 Scottsville Hwy.
150 Second Avenue, North    P. O. Box 280
Suite 225                   Lafayette, TN 37083
Nashville, TN 37219-8125                        

Judge:INMAN

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/mayr_opn.WP6
Opinion-Flash

DANNY E. RAY
VS.
THE YASUDA FIRE & MARINE INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:     

For the Appellant:              For the Appellee:
Donald D. Zuccarello            D. Brett Burrow
Suite 206, Washington Square    Suite 2600, The Tower
222 Second Avenue North         611 Commerce Street
Nashville, TN 37201             P. O. Box 23890
                                Nashville, TN 37202-3890                     

Judge:INMAN

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/rayd_opn.WP6
Opinion-Flash

KENNETH M. WARD
VS.
TANGENT INDUSTRIES

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:              For the Appellee:
Jerry R. Humphreys              Tom McFarland
P. O. Box 190609                925 N. Kentucky Street
150 Second Ave, N, Ste. 225     P. O. Box 12
Nashville, TN 37219-0609        Kingston, TN 37763                         

Judge:INMAN

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/wardk_opn.WP6
Opinion-Flash

ATS, INC.
VS.
JAMES CURTIS KENT and GEORGE V. KENNEY and BILL R.
McLAUGHLIN, Trustees for UNION PLANTERS NATIONAL BANK,
     Defendants and Third Party Plaintiffs/Appellees,
VS.
KEITH M. CANFIELD
     Third Party Defendant and Cross-Plaintiff/Appellee,
VS.
MID-SOUTH TITLE INSURANCE CORPORATION and LAWYERS
TITLE INSURANCE CORPORATION
     Cross-Defendants-Appellees.

Court:TCA

Attorneys:  

Harold D. Mangrum, MANGRUM & MANGRUM, Memphis, Tennessee
Attorney for Plaintiff/Appellant.

Oscar C. Carr, III, GLANKLER BROWN, PLLC, Memphis, Tennessee
Attorney for Defendants/Third Party-Plaintiffs/Appellees.

Stephen R. Leffler, Memphis, Tennessee
Attorney for Third Party Defendant/Cross-Plaintiff/Appellee.

R. Mark Glover, BAKER, DONELSON, BEARMAN & CALDWELL, Memphis, Tenn
Attorney for Cross-Defendants/Appellees.                        

Judge:FARMER

First Paragraph:

This appeal involves the enforcement of a judgment lien where,
subsequent to the attachment of the judgment lien, the encumbered real
property was sold to a buyer who simultaneously granted a purchase
money mortgage to a financial institution.

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

JAMIE HAMILTON and wife BONNIE HAMILTON
VS.
GARY COOK, KEN DYKES, ANDY TWEED, WADE HENDRON, FRANK
EVANS, TENNESSEE WILDLIFE RESOURCES AGENCY, TENNESSEE
WILDLIFE RESOURCES COMMISSION, HAROLD HURST, BRIAN THOMPSON,
LARRY THURSTON, JEFF MARTIN, and PAUL BROWN

Court:TCA

Attorneys: 

Vincent A. Sikora, THE SIKORA LAW FIRM, Piney Flats, Tennessee
Attorney for Plaintiffs/Appellants.


John Knox Walkup, Attorney General and Reporter
Elizabeth P. McCarter, Senior Counsel
Attorneys for Defendants/Appellees.                         

Judge:FARMER

First Paragraph:

Plaintiffs Jamie and Bonnie Hamilton, husband and wife, appeal the
trial court's final judgment dismissing their claims for declaratory
and injunctive relief against Defendants/Appellees Tennessee Wildlife
Resources Agency and Tennessee Wildlife Resources Commission and
dismissing their civil rights claim against other Defendants/Appellees
who are employees of the Tennessee Wildlife Resources Agency.  We
affirm in part and reverse in part the trial court's judgment.

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

JIMMY HAWKINS
VS.
DENNIS ELLIS

Court:TCA

Attorneys: 

JOE H. BYRD, JR.
Jackson, Tennessee
Attorney for Appellant

TERRY ABERNATHY
Selmer, Tennessee
Attorney for Appellee                         

Judge:HIGHERS

First Paragraph:

Defendant/appellant, Dennis Ellis ("appellant"), appeals the judgment
of the trial court awarding plaintiff/appellee, Jimmy Hawkins, Sr.
("appellee"), a net judgment of $28,867.64 and an equitable lien on
the subject real estate until payment of the judgment. For reasons
stated hereinafter, we affirm the judgment of the trial court.

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

MAX NORTON and LONG OUTDOOR ADVERTISING
VS.
JOHN A. McCASKILL d/b/a CITY SIGN COMPANY

Court:TCA

Attorneys:    

James T. Ryal, Jr.; Adams, Ryal & Flippin of Humboldt
For Appellant

Larry A. Butler, Justin S. Gilbert; Spragin, Barnett,
Cobb & Butler, PLC of Jackson
For Appellees                      

Judge:CRAWFORD

First Paragraph:

This appeal involves a dispute over the duration of a lease. 
Defendant John A. McCaskill (McCaskill), doing business as City Sign
Company (City Sign), appeals the Chancellor's order granting partial
summary judgment to plaintiffs Max Norton (Norton) and Long Outdoor
Advertising (LOA).

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

STATE OF TENNESSEE
VS.
MELISSA ANN SWEAT

Court:TCA

Attorneys:       

For the Appellant:                  For the Appellee:

Shawn G. Graham                     John Knox Walkup
Asst. District Public Defender      Attorney General and Reporter
419 High Street 
Maryville, TN  37804                Todd R. Kelley
                                    Assistant Attorney General
                                    Criminal Justice Division
Raymond Mack Garner                 425 Fifth Avenue North
District Public Defender            2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493                
                        
                                    Michael L. Flynn
                                    District Attorney General

                                    Philip Morton
                                    Asst. District Attorney General
                                    363 Court Street
                                    Maryville, TN  37804                   

Judge:HAYES

First Paragraph:

In 1995, the appellant was convicted of facilitation of aggravated
burglary and facilitation of theft, in case C-8870.   Pursuant to a
plea agreement, the trial court imposed an effective sentence of two
years.  The appellant was ordered to serve twenty-eight days of
periodic weekend confinement followed by placement in the Community
Corrections program for the remainder of her sentence.

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

RANDY ALBERT WATKINS
VS.
VICKI LYNN (SMITH) WATKINS

Court:TCA

Attorneys: 

For the Plaintiff/Appellant:    For the Defendant/Appellee:

Patricia L. Penn                Donna M. Fields   
Memphis, Tennessee              Memphis, Tennessee                              

Judge:LILLARD

First Paragraph:

This is an interstate child custody dispute.  The child's father and
mother were first divorced in Tennessee with custody awarded to the
father.  The parents reconciled, and remarried, later divorcing again
in an Arkansas court.  Custody was awarded to the mother.  After a
dispute over visitation, the father utilized an order from the prior
Tennessee divorce to physically remove the children to Tennessee with
him.  The father was ordered by the Tennessee trial court to return
the children to their mother, and appeals from this order.  We affirm.

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

STATE OF TENNESSEE
VS.
CHARLES DAVID BARRIER

Court:TCCA

Attorneys:

FOR THE APPELLANT:      FOR THE APPELLEE:

DANIEL L. SMITH         JOHN KNOX WALKUP
614 Main Street         Attorney General and Reporter
Savannah, TN 38372
                        CLINTON J. MORGAN
                        Assistant Attorney General
                        425 5th Avenue North
                        Nashville, TN 37243

                        ROBERT RADFORD
                        District Attorney General

                        JOHN OVERTON
                        Assistant District Attorney General
                        Hardin County Courthouse
                        Savannah, TN 38372                          

Judge:WELLES

First Paragraph:

The Defendant was convicted on a jury verdict of driving while under
the influence, second offense.  In this appeal he argues that the
evidence introduced against him is insufficient to support his
conviction.  We disagree and affirm the judgment of the trial court.

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

STATE OF TENNESSEE
VS.
JOEY D. BIDWELL

Court:TCCA

Attorneys: 

For Appellant:              For Appellee:

Carol Ann Barron            John Knox Walkup
Attorney                    Attorney General & Reporter
264 Third Avenue
Dayton, TN  37321           Ellen H. Pollack
(at motion to withdraw      Assistant Attorney General
and on appeal)              425 Fifth Avenue North
                            Nashville, TN  37243-0493

                            Will Dunn
                            Assistant District Attorney General
                            First American Bank Building
                            Third and Market Streets
                            Dayton, TN  37321                         

Judge:WADE

First Paragraph:

The defendant, Joey D. Bidwell, appeals the trial court's denial of
his motion to withdraw his pleas of nolo contendere to two counts of
vehicular assault, a Class D felony.  Tenn. Code Ann. S 39-13-106. 
The issue presented for review is whether the trial court should have
permitted withdrawal of his pleas.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE
VS.
BILLY BIVENS

WITH CONCURRING OPINION

Court:TCCA

Attorneys:  

FOR THE APPELLANT:      FOR THE APPELLEE:

DONALD B. REID          JOHN KNOX WALKUP
10 West Madison Avenue  Attorney General and Reporter
P.O. Box 628
Athens, TN 37371-0628   CLINTON J. MORGAN
                        Assistant Attorney General
                        425 5th Avenue North
                        Nashville, TN 37243-0493

                        JERRY N. ESTES
                        District Attorney General
                        Washington Avenue
                        Athens, TN 37303                        

Judge:WELLES

First Paragraph:

The Defendant, Billy Bivens, appeals from his convictions for official
misconduct in violation of Tennessee Code Annotated S 39-16-402 and
assault in violation of S 39-13-101.  The trial court entered judgment
on both convictions on May 30, 1997, and Defendant filed a Motion for
a New Trial and/or Acquittal on April 11, 1997.  Because this motion
has not yet been granted or denied, Defendant's appeal is not properly
before this Court.  We therefore dismiss the appeal for absence of a
final judgment.

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

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

STATE OF TENNESSEE
VS.
RICKY RAYMOND BRYAN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:


GERALD L. MELTON                JOHN KNOX WALKUP
District Public Defender        Attorney General & Reporter
201 West Main St., Suite 101
Murfreesboro, TN  37130         LISA A. NAYLOR
(On Retrial and On Appeal)      Asst. Attorney General
                                John Sevier Bldg.
BRAD W. HORNSBY                 425 Fifth Ave., North
P.O. Box 398                    Nashville, TN  37243-0493
Murfreesboro, TN  37133-0398
(At First Trial)                WILLIAM WHITESELL
                                District Attorney General
                                Third Floor Judicial Bldg.
                                Murfreesboro, TN  37130                         

Judge:PEAY

First Paragraph:

The defendant was indicted for and found guilty of first-degree
murder.  Following a hearing, the defendant was sentenced to life
imprisonment.  In this appeal as of right, the defendant presents the
following issues for review:

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

STATE OF TENNESSEE
VS.
EDDIE L. COLEY, JR.

WITH CONCURRING AND DISSENTING OPINIONS

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          FOR THE APPELLEE:


JOHN HENDERSON              JOHN KNOX WALKUP
Public Defender             Attorney General & Reporter

VANESSA PETTIGREW BRYAN     KAREN M. YACUZZO
LARRY D. DROLSUM            Asst. Attorney General
Asst. Public Defenders      John Sevier Bldg.
P.O. Box 68                 425 Fifth Ave., North
Franklin, TN  37065-0068    Nashville, TN  37243-0493
        
                            JOE D. BAUGH
                            District Attorney General

                            MARK PURYEAR
                            DEREK SMITH
                            Asst. District Attorneys General
                            P.O. Box 937
                            Franklin, TN  37064                        

Judge:

First Paragraph:

The defendant was indicted for aggravated robbery, a class B felony. 
His first trial resulted in a hung jury.  Upon retrial, the jury
convicted him as charged.  Following a sentencing hearing, he was
sentenced as a Range I standard offender to twelve years
incarceration, the maximum sentence.  The defendant now appeals,
arguing that the trial court erred in excluding expert testimony
regarding eyewitness identification, that the convicting evidence was
insufficient as a matter of law, and that his sentence was excessive
because the trial court failed to give due weight to certain
mitigating factors.  We affirm.

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

CONCURRING
URL:http://www.tba.org/tba_files/TCCA/coleyel_con.WP6
Opinion-Flash
DISSENTING
URL:http://www.tba.org/tba_files/TCCA/coleyel_dis.WP6
Opinion-Flash

EARL E. COLLIER
VS.
STATE OF TENNESSEE,

Court:TCCA

Attorneys:        

FOR THE APPELLANT:          FOR THE APPELLEE:

Albert J. Newman, Jr.       John Knox Walkup
Suite 500 Burwell Bldg.     Attorney General and Reporter
602 South Gay Street
Knoxville, Tennessee 37902  Janis L. Turner
                            Counsel for the State
                            Criminal Justice Division
                            Cordell Hull Bldg. Second Floor
                            425 Fifth Avenue, North
                            Nashville, Tennessee 37243-0493
                        
                            Randall E. Nichols
                            District Attorney General
                            City-County Building
                            Knoxville, TN  37902                  

Judge:SMITH

First Paragraph:

The Appellant filed the instant appeal to preserve his rights to
post-conviction relief in the event the Tennessee Supreme Court were
to rule that the case of State v. Anthony, 817 S.W.2d 299 (Tenn.
1991), announced a new constitutional rule which requires retroactive
application.  In fact our Supreme Court has now held that Anthony did
not announce a new constitutional rule.  Moore v. State, 943 S.W.2d
878 (Tenn. 1997).  The Appellant now acknowledges that his petition
for post-conviction relief is time-barred and that the trial court was
correct in dismissing it.  The State agrees.

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

STATE OF TENNESSEE
VS.
JOHNNY DAVIDSON

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

JOHN E. HERBISON            JOHN KNOX WALKUP
2016  Eighth Avenue South   Attorney General and Reporter
Nashville, TN  37204        
                            TIMOTHY F. BEHAN
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN  37243-0493
    
                            MIKE BOTTOMS
                            District Attorney General

                            WILLIAM C. BRIGHT
                            Assistant District Attorney
                            809 South Main Street
                            Suite 200
                            Columbia, TN  38401                         

Judge:SMITH

First Paragraph:

On August 14, 1996, the Appellant, Johnny Davidson, pleaded guilty to
four counts of selling cocaine, one count of selling marijuana, and
one count of evading arrest.  As a result, the Appellant received an
effective sentence of twelve years unsupervised probation with the
special condition that the Appellant contact the judge or his
probation officer before re-entering the State of Tennessee.  On May
9, 1997, the trial court revoked his probation.  On appeal, the
Appellant raises the following issues for review:

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

STATE OF TENNESSEE
VS.
LARRY DIXON

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

MICHAEL R. JONES            JOHN KNOX WALKUP 
District Public Defender    Attorney General & Reporter
110 Sixth Avenue, West
Springfield, TN  37172      KAREN YACUZZO 
                            Assistant Attorney General
                            2nd Floor, Cordell Hull Building
                            425 Fifth Avenue North 
                            Nashville, TN  37243

                            JOHN WESLEY CARNEY, JR.
                            District Attorney General

                            DENT MORRISS
                            Assistant District Attorney General
                        500 South Main Street
                            Springfield, TN  37172                         

Judge:WOODALL

First Paragraph:

The Defendant, Larry Dixon, appeals as of right his conviction of
especially aggravated sexual exploitation of a minor.  He was
convicted following a bench trial in the Robertson County Circuit
Court.  The trial court subsequently sentenced Defendant to ten (10)
years as a Range I Standard Offender.  In this appeal, Defendant
raises the following issues:

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

STATE OF TENNESSEE
VS.
RACHEL MARIE GREEN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

JEFFREY A. DeVASHER (on appeal) JOHN KNOX WALKUP
Assistant Public Defender       Attorney General & Reporter

WENDY S. TUCKER (at trial)      KATHY MORANTE
Assistant Public Defender       Assistant Attorney General
                                425 5th Avenue North
KARL F. DEAN (at trial)         Nashville, TN 37243
Metro Public Defender
                                VICTOR S. JOHNSON
1202 Stahlman Building          District Attorney General
Nashville, TN 37201             
                                STEVE DOZIER
                                Assistant District Attorney General
                                Washington Square, Suite 500
                                222-2nd Avenue North
                                Nashville, TN 37201-1649                         

Judge:WELLES

First Paragraph:

The Defendant, Rachel Marie Green, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure.  She was
convicted by a Davidson County jury of facilitation of second degree
murder and facilitation of attempted second degree murder.  The trial
court sentenced her as a Range I standard offender to concurrent terms
of ten years imprisonment for facilitation of second degree murder and
five years imprisonment for facilitation of attempted second degree
murder.  In this appeal, the Defendant raises the following seven
issues for our consideration:

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

STATE OF TENNESSEE
VS.
MARK GRIFFIS

Court:TCCA

Attorneys:

For the Appellant:      For the Appellee:

Joe Walker              John Knox Walkup
Walter B. Johnson, II   Attorney General and Reporter
P. O. Box 334   
Harriman, TN  37748     Todd R. Kelley
                        Assistant Attorney General          
                        Criminal Justice Division
                        425 Fifth Avenue North
                        2d Floor, Cordell Hull Building
                        Nashville, TN 37243-0493                
                        
                        Charles E. Hawk
                        District Attorney General

                        Dennis Humphrey
                        Asst. District Attorney General
                        P. O. Box 703
                        Kingston, TN  37763                          

Judge:HAYES

First Paragraph:

The appellant, Mark Griffis, appeals the judgments of the Criminal
Courts of Roane and Morgan Counties revoking his placement in the
local Community Corrections program.  Prior to his revocation, the
appellant was serving an eight year Community Corrections sentence
from Roane County and a three year Community Corrections sentence from
Morgan County.  The appellant argues, on appeal, that the conditions,
which he does not deny violating, were merely technical in nature,
thus, the trial court's revocation of his Community Corrections
sentences constituted an abuse of discretion.

After review, we affirm.

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

CHRISTOPHER HENDERSON
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:    

FOR THE APPELLANT:          FOR THE APPELLEE:

JAMES ROBIN MCKINNEY, JR.   JOHN KNOX WALKUP
One Washington Square       Attorney General and Reporter
Suite 103
214 Second Avenue North     DARYL J. BRAND
Nashville, TN  37201        Senior Counsel

                            KIM R. HELPER
                            Legal Assistant
                            425 Fifth Avenue North
                            Nashville, TN  37243-0493
    
                            VICTOR S. JOHNSON
                            District Attorney General
    
                            ROGER MOORE
                            Assistant District Attorney
                            500 Washington Square
                            222 Second Avenue North
                            Nashville, TN  37201                      

Judge:SMITH

First Paragraph:

On May 6, 1994, Appellant, Christopher Henderson, pled guilty to
especially aggravated robbery and aggravated assault. The Davidson
County trial court sentenced Appellant to twenty-five years on the
especially aggravated robbery conviction and six years on the
aggravated assault conviction. The trial court ordered that the
sentences served concurrently with each other but consecutively to a
ten-year sentence Appellant was serving in Wisconsin. Appellant filed
a pro se  Petition for Post-Conviction Relief on July 8, 1996; counsel
was appointed, and an amended petition was filed on November 27, 1996
which stated that Appellant's rights were violated by trial counsel's
failure to adequately investigate Appellant's case, as well as by
misinformation supplied to Appellant by counsel regarding his release
eligibility date. Appellant appeals from the trial court's dismissal
of his petition.

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

REGINALD HENDRIX
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:


JOHN B. BLAIR, III          JOHN KNOX WALKUP
211 Union St., Suite 915    Attorney General & Reporter
Nashville, TN 37201
                            LISA A. NAYLOR
                            Asst. Attorney General
                            John Sevier Bldg.
                            425 Fifth Ave., North           
                            Nashville, TN  37243-0493
        
                            VICTOR S. JOHNSON, III
                            District Attorney General

                            MARY HAUSMAN
                            Asst. District Attorney General
                            222 Second Ave., North, Suite 500
                            Nashville, TN 37201-1649                          

Judge:PEAY

First Paragraph:

The petitioner filed a petition for post-conviction relief, arguing
that but for his attorney's failure to advise him of his right to
appeal after the sentencing hearing, he would have appealed from the
sentence imposed and likely succeeded.  Following a hearing, the trial
court denied the petition, and the petitioner now appeals.  After a
review of the record, we agree with the petitioner and reverse the
action of the trial court.

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

STATE OF TENNESSEE
VS.
GEORGE BLAKE KELLY

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

DAVID L. RAYBIN (on appeal)     JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
2210 SunTrust Center                
424 Church St.                  KAREN YACUZZO
Nashville, TN  37219            Asst. Attorney General
                                425 Fifth Ave. North
BERNARD K. SMITH (at trial)     2d Floor, Cordell Hull Bldg.
Attorney at Law                 Nashville, TN  37243-0493
P.O. Box 490
McMinnville, TN  37110          WILLIAM M. LOCKE
                                District Attorney General
JOHN MELTON (at trial)              
Attorney at Law                 LARRY ROSS
P.O. Box 446                    ROBERT W. BOYD, JR.
Woodbury, TN  37190-0160        Asst. District Attorneys General
                                Professional Building
                                McMinnville, TN  37110                        

Judge:WITT

First Paragraph:

The defendant, George Blake Kelly, appeals from his convictions of
second-degree murder, vehicular assault, reckless driving,
third-offense driving under the influence, and driving on a revoked
license.  Following a trial by jury, Kelly was found guilty of
second-degree murder, vehicular homicide by intoxication, vehicular
homicide by recklessness, vehicular assault by intoxication, reckless
driving and third-offense DUI.  He pleaded guilty to driving on a
revoked license before the issue was submitted to the jury.  The court
imposed judgments of conviction for second-degree murder, vehicular
assault, reckless driving, third- offense DUI and driving on a revoked
license.  Kelly is presently serving a sentence of 30 years, 11 months
and 29 days, which consists of the maximum sentences for each of his
offenses stacked consecutively to each other.  In this direct appeal,
he raises ten issues for our consideration:

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

DANNY R. KING
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:      For the Appellee:

Dwight E. Scott         John Knox Walkup
4024 Colorado Avenue    Attorney General and Reporter
Nashville, TN  37209    
                        Lisa A. Naylor
                        Assistant Attorney General          
                        Criminal Justice Division
                        425 Fifth Avenue North
                        2d Floor, Cordell Hull Building
                        Nashville, TN 37243-0493                                 

Judge:HAYES

First Paragraph:

The appellant, Danny R. King, appeals the Davidson County Criminal
Court's dismissal of his petition for writ of habeas corpus.  The
appellant was originally indicted by the Williamson County Grand Jury
for aggravated rape and aggravated kidnapping.  On December 20, 1982,
he was convicted of both counts and received two concurrent life
sentences.  He filed a pro se petition for writ of habeas corpus in
January 1997, which was subsequently amended after counsel was
appointed.  Thereafter, appellant's counsel filed a second amended
petition.  The trial court dismissed the appellant's petition finding
the challenges to the indictment were waived under Tenn. R. Crim. P.
12(b)(2) and (f) and pre-1989 offenses were not determined according
to State v. Hill, 954 S.W.2d 725 (Tenn. 1997).  The trial court also
found the jury instruction was still valid law in Tennessee.  The
appellant presents four issues for our review:

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

STATE OF TENNESSEE
VS.
SHARON LEMING

Court:TCCA

Attorneys: 

For the Appellant:          For the Appellee:

Lionel R. Barrett, Jr.      John Knox Walkup 
Washington Square Two       Attorney General of Tennessee
222 2nd Avenue, North               and
Nashville, TN 37201         Ellen H. Pollack
                            Assistant Attorney General of Tennessee
                            450 James Robertson Parkway     
                            Nashville, TN 37243-0493

                            Dan Mitchum Alsobrooks
                            District Attorney General
                            Court Square, P.O. Box 869
                            Charlotte, TN 37036
                                and
                            George C. Sexton
                            Assistant District Attorney General
                            Humphreys County Courthouse
                            Waverly, TN 37185                         

Judge:TIPTON

First Paragraph:

The defendant, Sharon Leming, was convicted by a jury in the Humphreys
County Circuit Court of first degree murder.  The defendant received a
sentence of life imprisonment in the custody of the Department of
Correction.  In this appeal as of right, the defendant presents the
following issues for our review:

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

STATE OF TENNESSEE
VS.
CARLOS LAMONT MARTIN

Court:TCCA

Attorneys:   

For the Appellant:              For the Appellee:

D. Clifton Barnes               John Knox Walkup
Asst District Public Defender   Attorney General and Reporter
Third Judicial District 
1609 College Park Dr, Box 11    Michael J. Fahey, II
Morristown, TN  37813           Assistant Attorney General       
                                Criminal Justice Division
                                425 Fifth Avenue North
Greg W. Eichelman               2d Floor, Cordell Hull Building
District Public Defender        Nashville, TN 37243-0493                
                        
                                C. Berkeley Bell, Jr.
                                District Attorney General

                                Eric D. Christiansen
                                Asst. District Attorney General
                                109 South Main Street
                                Greeneville, TN  37743                       

Judge:HAYES

First Paragraph:

The appellant, Carlos Lamont Martin, appeals as of right his
conviction for possession of a schedule II controlled substance, a
class A misdemeanor.  Following a jury trial, the Greene County
Criminal Court sentenced the appellant to eleven months and
twenty-nine days with a release eligibility of seventy-five percent. 
In this appeal, the appellant contends that the evidence is
insufficient to support his conviction and that the sentence imposed
by the trial court is excessive.

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

STATE OF TENNESSEE
VS.
SARA LEIGHANE WISDOM

WITH DISSENTING OPINION

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:


VICKI H. HOOVER             JOHN KNOX WALKUP
123 N. Poplar St., Ste A    Attorney General & Reporter
Paris, TN  39242
                            MARVIN E. CLEMENTS
                            Asst. Attorney General
                            John Sevier Bldg.
                            425 Fifth Ave., North
                            Nashville, TN  37243-0493
        
                            ROBERT "GUS" RADFORD
                            District Attorney General

                            TODD A. ROSE
                            Asst. District Attorney General
                            P.O. Box 686
                            Huntingdon, TN  38344                         

Judge:PEAY

First Paragraph:

Following a jury trial in March 1997, the defendant was convicted of
one count of aggravated burglary, which is a Class C felony, and one
count of theft of property over one thousand dollars ($1,000), which
is a Class D felony.  The jury assessed a fine of five thousand
dollars ($5,000) for the burglary conviction and a fine of three
thousand dollars ($3,000) for the theft conviction. The trial court
sentenced the defendant to three years for the aggravated burglary
conviction, one year in confinement and the balance on Community
Corrections.  For the theft conviction, the defendant was sentenced to
two years, one year in continuous confinement and the balance on
Community Corrections.  The sentences were ordered to run concurrently
with one another.

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

DISSENT:
URL:http://www.tba.org/tba_files/TCCA/wisdomsl_con.WP6


Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1996-1997 Tennessee Bar Association