TBALink Opinion-Flash

December 29, 1998 -- Volume 4 -- Number 184

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
00-New Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Court of Appeals
07-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

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Lucian T. Pera
Editor-in-Chief, TBALink


STATE OF TENNESSEE
vs.
JOHNNY BENARD JONES and 
CLIFTON LAVERN MITCHELL

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                      FOR THE APPELLEE:
ANDREW JOHNSTON                         JOHN KNOX WALKUP
108 East Court Square                   Attorney General & Reporter
Somerville, TN  38068
   (For Defendant Jones)                GEORGIA BLYTHE FELNER
                                        Asst. Attorney General
C. MICHAEL ROBBINS                      John Sevier Bldg.
46 North Third St., Suite 719           425 Fifth Ave., North             
Memphis, TN  38103                      Nashville, TN  37243-0493
   (For Defendant Mitchell on Appeal)
                                        ELIZABETH T. RICE
GARY ANTRICAN                           District Attorney General
District Public Defender                302 Market St.
                                        Somerville, TN  38068
SHANA McCOY-JOHNSON         
Asst. District Public Defender                          
P.O. Box 700
Somerville, TN  38068   
   (For Defendant Mitchell at Trial)                             

Judge:  PEAY

First Paragraph:

A jury found the defendants guilty of possession of cocaine (over 26
grams) with intent to sell and possession of marijuana.  Following a
sentencing hearing, each defendant was sentenced as a Range II
multiple offender to twenty years incarceration on the cocaine offense
and a concurrent term of eleven months, twenty-nine days incarceration
at 75% on the marijuana offense.  The defendants now appeal, arguing
that the evidence is insufficient to establish knowing possession of
the controlled substances.  Defendant Jones raises two additional
arguments for review, i.e., that the trial court erred in denying his
motion to sever and that his sentence is excessive.  Finding no merit
to the defendants' arguments, we affirm.

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

WENDELL LEGGS
vs.
STATE OF TENNESSEE

Court:TCCA

Judge: HAYES

First Paragraph:

This matter is before the Court upon the state's motion, pursuant to
Rule 20, Rules of the Court of Criminal Appeals, to affirm the
judgment of the trial court in this case by order rather than formal
opinion.  The above-captioned case represents an appeal from the trial
court's dismissal of the petitioner's petition for writ of habeas
corpus.  It appears the petitioner is currently serving an effective
sentence of fifty years for several 1986 convictions of aggravated
rape and aggravated kidnapping.  The petitioner contends that his
sentence has expired because the statute under which he was sentenced
no longer exists and the current law imposes a lesser penalty for the
offenses committed.

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

STATE OF TENNESSEE
vs.
ANTONIO L. SAULSBERRY
& FRANKLIN C. HOWARD

with DISSENTING Opinion

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:
STEFFEN G. SCHREINER                JOHN KNOX WALKUP
Attorney for Appellant Saulsberry   Attorney General and Reporter
295 Washington Avenue, Suite 3  
Memphis, TN 38103                   PETER M. COUGHLAN
                                    Assistant Attorney General
JOSEPH S. OZMENT                    425 5th Avenue North
Attorney for Appellant Howard       Nashville, TN 37243
217 Exchange Avenue
Memphis, TN 38103                   WILLIAM L. GIBBONS
                                    District Attorney General
JAMES V. BALL           
Attorney for Appellant Howard       TERRELL L. HARRIS
217 Exchange Avenue                 J. ROBERT CARTER
Memphis, TN 38103                   PHILLIP GERALD HARRIS
                                    Assist District Attorneys General
                                    Criminal Justice Complex, 
                                    Suite 301
                                    201 Poplar Street
                                    Memphis, TN 38103                          

Judge: SUMMERS

First Paragraph:

The Defendants, Antonio L. Saulsberry and Franklin C. Howard, pursuant
to Tennessee Rule of Appellate Procedure 3(b), appeal as of right
their convictions for first degree premeditated murder, especially
aggravated robbery, and conspiracy to commit aggravated robbery.  In
addition, Defendants appeal the trial court's application of
consecutive sentencing.  These convictions arose from the robbery of a
Memphis T.G.I. Friday's restaurant and the murder of its manager, Gene
Frieling.

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

SYLVESTER SMITH
vs.
STATE OF TENNESSEE

with CONCURRING/DISSENTING opinion

Court:TCCA

Attorneys:  

For the Appellant:              For the Appellee:
William P. Redick, Jr.          John Knox Walkup
P. O. Box 137                   Attorney General and Reporter
Whites Creek, TN  37189 
                                Amy L. Tarkington
Peter D. Heil                   Assistant Attorney General                            
P. O. Box 40651                 Criminal Justice Division
Nashville, TN  37204            425 Fifth Avenue North
                                2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493                
                        
                                Thomas Hoover                                       
                                Asst. Attorney General
                                Criminal Justice Complex
                                Suite 301, 201 Poplar Street
                                Memphis, TN  38103                        

Judge: Hayes

First Paragraph:

In this capital case, the appellant, Sylvester Smith, appeals as of
right the judgment of the Criminal Court of Shelby County denying his
petition for post-conviction relief.  In 1991, the appellant was
convicted of felony murder, and, following a separate sentencing
hearing, was sentenced to death by electrocution.  The appellant's
conviction and sentence were affirmed on direct appeal by the
Tennessee Supreme Court.  See  State v. Smith, 893 S.W.2d 908 (Tenn.
1994), reh'g denied, (1995), cert. denied, 516 U.S. 829, 116 S.Ct. 99
(1995).

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

ROBERT LEE TAYLOR
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:
William P. Redick, Jr.              John Knox Walkup
P. O. Box 137                       Attorney General and Reporter
Whites Creek, TN  37189 
                                    Amy L. Tarkington
Peter D. Heil                       Assistant Attorney General                            
P. O. Box 40651                     Criminal Justice Division
Nashville, TN  37204                425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493                
                        
                                    Thomas Hoover                                       
                                    Asst. Attorney General
                                    Criminal Justice Complex
                                    Suite 301, 201 Poplar Street
                                    Memphis, TN  38103                        

Judge: HAYES

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
trial court judgment by order pursuant to Rule 20, Rules of the Court
of Criminal Appeals.  This case represents an appeal from the denial
of the petitioner's petition for writ of habeas corpus.  The
petitioner was convicted of first degree murder in August 1982.  On
July 21, 1998, the petitioner filed a petition for writ of habeas
corpus challenging the sufficiency of the first degree murder
indictment returned in 1981.  This Court recently filed an order
affirming the trial court's denial of a similar petition for writ of
habeas corpus filed by the petitioner attacking the sufficiency of
this very indictment.  Robert Lee Taylor v. State, No.
02C01-9701-CC-00019 (Tenn. Crim. App., November 3, 1997), perm. to
app. denied, (Tenn. November 24, 1997).

URL:http://www.tba.org/tba_files/TCCA/taylo-r2_ord.WP6
Opinion-Flash

EDUARDO E. WELLS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:
JAMES V. BALL                   JOHN KNOX WALKUP
217 Exchange Avenue             Attorney General and Reporter
Memphis, TN 38105
                                DOUGLAS D. HIMES
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN 37243

                                WILLIAM GIBBONS
                                District Attorney General

                                PAUL GOODMAN
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Avenue
                                Memphis, TN 38103                        

Judge: WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Petitioner, Eduardo E. Wells,
appeals from an order of the trial court denying him post-conviction
relief.  The Petitioner presents one issue for our review: whether his
guilty plea was knowingly and voluntarily made with effective
assistance of counsel.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
STACY D. WILLIFORD

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:
ANDREW S. JOHNSTON                  JOHN KNOX WALKUP
108 East Court Square               Attorney General & Reporter
Somerville, TN  38068
                                    PETER M. COUGHLAN
                                    Asst. Attorney General
                                    John Sevier Bldg.
                                    425 Fifth Ave., North
                                    Nashville, TN  37243-0493
    
                                    ELIZABETH T. RICE
                                    District Attorney General
                                    302 Market St.
                                    Somerville, TN  38068   
Judge: PEAY

First Paragraph:

The defendant was convicted by a jury of aggravated vehicular
homicide, vehicular assault, driving under the influence, driving on a
revoked license, and leaving the scene of an accident.  Following a
sentencing hearing, the defendant received an effective sentence of
twenty years.  The defendant now appeals, raising the following issues
for review: I.  Whether the trial court erred in denying the
defendant's motion to suppress statements on the theory the defendant
was in custody but was not read his Miranda warnings? II.  Whether the
defendant's due process rights were violated by T.C.A. S 55-10-401,
which allows an inference that previous DUI offenders are intoxicated
if their blood alcohol content is .08% or higher, whereas it may be
inferred that first-time offenders are intoxicated only when their
blood alcohol content is .10% or higher? III.  Whether the trial court
erred in charging the jury that they could infer intoxication by a
.08% or higher blood alcohol content, since this instruction reveals
to the jury that the defendant has been previously convicted of DUI?
IV.  Whether the evidence is sufficient to sustain the defendant's
convictions for aggravated vehicular homicide, vehicular assault, and
leaving the scene of an accident? Finding no reversible error, we
affirm the trial court's judgments.

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

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