January 7, 1999
Volume 5 -- Number 003

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

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
09 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


GREGORY HALE
V.
ATHENS STOVE WORKS
and
SUE ANN HEAD, DIRECTOR OF THE SECOND INJURY FUND
Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:              For the Appellees:

Conrad Finnell                  Donald B. Reid
P.O. Box 1476                   10 West Madison Ave.
Cleveland, Tenn.  37364-1476    P.O. Box 628
                                Athens, Tenn.  37371-0628

                                Kathleen W. Stratton
                                425 Fifth Ave. North
                                2nd Floor, Cordell Hull Bldg.
                                Nashville, Tenn.  37243                         

Judge:THAYER

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 employee, Gregory Hale, has perfected an appeal from a decision of
the trial court which declined to modify and increase an award of 25%
permanent partial disability to the body as a whole. Plaintiff began
working for defendant, Athens Stove Works, in 1987 and sustained an
on-the-job injury during 1988 which resulted in surgery on his back
for a disc problem.  His doctor gave him a 15% medical impairment and
the court awarded 25% disability to the body as a whole, etc.  After
being off from work for about eleven months, he returned to work
performing the same duties.

http://www.tba.org/tba_files/TSC_WCP/Halegreg_wc.WP6



ANDREA D. BRYANT VS. PHILLIP WRIGHT, JR. Court:TCA Attorneys: RENARD A. HIRSCH, SR. SMITH & HIRSCH Nashville, Tennessee Attorney for Appellant DAVID O. HUFF Nashville, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: Defendant Phillip Wright, Jr. ("Wright" or" Appellant") appeals the judgment of the trial court which awarded Plaintiff Andrea D. Bryant ("Bryant" or "Appellee") the sum of $9,919.80 for breach of contract. http://www.tba.org/tba_files/TCA/Bryantad_opn.WP6
RITA JEAN FISHER VS. LENA GREEN and GLORIA SMITH Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: W. Gary Blackburn Kathy A. Leslie Jay C. Ballard Nashville, Tennessee Nashville, Tennessee Judge:LILLARD First Paragraph: This is a nuisance action by one neighbor against another. The plaintiff alleged in her lawsuit that the defendant took action to cause flooding on the plaintiff's property. The trial court found that the defendant had taken actions that resulted in flooding and enjoined further such actions, but found the evidence insufficient to award the plaintiff monetary damages for alleged damage to her home. The plaintiff appeals, and we affirm. http://www.tba.org/tba_files/TCA/Fisherrj_opn.WP6
MILDRED JOHNSON and GARY JOHNSON VS. CHARLES T. CANTRELL and PATRICIA CANTRELL Court:TCA Attorneys: J. Mitchell Grissim, Jr., Harry L. Weddle, III, MITCH GRISSIM & ASSOCIATES, Nashville, Tennessee Attorneys for Plaintiffs/Appellants. Hal D. Hardin, John T. Reese, EVANS, TODD & FLOYD, PLC, Nashville, Tennessee Attorneys for Defendants/Appellees. Judge:FARMER First Paragraph: Plaintiffs Mildred and Gary Johnson appeal an order of the trial court granting summary judgment in favor of Defendants Charles T. and Patricia Cantrell. For the reasons set forth below, we affirm the trial court's ruling. http://www.tba.org/tba_files/TCA/Johnsonm_opn.WP6
VERNON MAULDIN VS. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: VERNON W. MAULDIN #137471 NECX POB 5000 Mountain City, Tennessee 37683 PRO SE JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. MOORE Solicitor General MICHAEL L. HAYNIE Assistant Attorney General Civil Rights and Claims Division Second Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, Tennessee 37243 Judge:COTTRELL First Paragraph: This appeal involves a state prisoner's efforts to obtain judicial review of the length of his incarceration. The prisoner contends that he is entitled to the benefit of the 1989 Sentencing Reform Act's lesser sentence for armed robbery rather than the sentence imposed upon him at the time of his conviction in 1985. He also contends he is entitled, as a matter of law, to certain sentence reduction credits. Finally, he contends that, taken together, the downward adjustments of his sentence on the basis of these two contentions would entitle him to be immediately released from custody. He filed a Petition for Declaratory Order with the Department of Correction, and the Department denied him relief. Thereafter, the prisoner filed a pro se "Petition for Judicial Review and/or Petition for a Declaratory Judgment and/or Petition for Common-law Writ of Certiorari" in the Chancery Court of Davidson County. The trial court granted the Department's motion to dismiss pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. We affirm the dismissal of the prisoner's petition because it fails to state a claim upon which relief can be granted. http://www.tba.org/tba_files/TCA/Mauldin_opn.WP6
STATE OF TENNESSEE VS. YASMOND FENDERSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DONALD A. BOSCH JOHN KNOX WALKUP BEVERLEY S. CORNETT Attorney General and Reporter 2000 1st Tennessee Plaza Knoxville, TN 37929 MICHAEL J. FAHEY, II Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 RANDALL E. NICHOLS District Attorney General FRED BRIGHT Assistant District Attorney General City-County Building Knoxville, TN 37902 Judge:WELLES First Paragraph: The Defendant, Yasmond Fenderson, pursuant to Tennessee Rule of Appellate Procedure 3(b), appeals as of right from his convictions for second degree murder and conspiracy to commit second degree murder. The sole issue for review is the sufficiency of the evidence. We affirm the verdicts of the jury as approved by the trial court. http://www.tba.org/tba_files/TCCA/Fenderya_opn.WP6
JOHNNY WAYNE HARRIS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHNNY WAYNE HARRIS JOHN KNOX WALKUP Pro Se Attorney General and Reporter P.O. Box 5000 Mountain City, TN 37683-5000 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 DAVID CROCKETT District Attorney General KENT GARLAND Assistant District Attorney General Courthouse, Main Street Erwin, TN 37650 Judge:WELLES First Paragraph: The Defendant, Johnny Wayne Harris, appeals as of right from the order of the trial court summarily dismissing his pro se petition for post-conviction relief. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Harrisjw_opn.WP6
STATE OF TENNESSEE VS. TYRIS HARVEY Court:TCCA Attorneys: For Appellant: For Appellee: Mack Garner John Knox Walkup Office of the Public Defender Attorney General and Reporter Fifth Judicial Circuit 450 James Robertson Parkway 421 High Street Nashville, TN 37243-0493 Maryville, TN 37804 Elizabeth B. Marney Gerald L. Gulley, Jr. Assistant Attorney General Contract Appellate Defender 425 Fifth Avenue North P.O. Box 1708 Nashville, TN 37243-0493 Knoxville, TN 37901-1708 Kirk Andrews and Lisa McKenzie Assistant District Attorneys General 363 Court Street Maryville, TN 37804 Judge:WADE First Paragraph: The defendant, Tyris Harvey, was charged with one count of robbery, one count of theft, and five counts of delivery of cocaine of various amounts. After pleading guilty to all charges except the robbery, he was convicted of that offense in a jury trial. The trial court imposed a three year sentence for robbery. The trial court also imposed an eleven month, twenty-nine day sentence for theft of property, four years at Range I for three Class C felony cocaine convictions, and eight years at Range I for two Class B felony cocaine convictions. The sentences for the Class B felony cocaine convictions were consecutive to the sentences for the Class C felony cocaine convictions and the robbery and theft sentences were to be consecutive to the Class B felony sentences. The effective sentence is, therefore, fifteen years. The defendant was fined fourteen thousand five-hundred dollars. http://www.tba.org/tba_files/TCCA/Harveyty_opn.WP6
STATE OF TENNESSEE VS. TIMOTHY HUNLEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: NANCY MEYER JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 101 S. Main St, Ste 450 Clinton, TN 37716 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JAMES N. RAMSEY District Attorney General JAN HICKS Assistant District Attorney General 100 North Main Street, Suite 127 Clinton, TN 37716 Judge:WELLES First Paragraph: The Defendant, Timothy Hunley, appeals as of right pursuant to Tennessee Rule of Appellate Procedure 3(b). Defendant appeals the sentence imposed for his conviction upon guilty plea to theft of property valued more than $1,000, a Class D felony. By the terms of his plea, Defendant agreed to a sentence of two years as a Range I standard offender, with the manner of service of the sentence to be determined by the trial judge. Defendant contends that the trial court erred by denying him probation or other alternative sentence, requiring him instead to serve his sentence in confinement. We find no abuse of the trial court's discretion and affirm Defendant's sentence. http://www.tba.org/tba_files/TCCA/Hunleyti_opn.WP6
STATE OF TENNESSEE VS. WANDA KILLIAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Gregory D. Smith John Knox Walkup One Public Square Attorney General & Reporter Suite 321 425 Fifth Avenue, North Clarksville, TN 37040 Nashville, TN 37243-0493 (On Appeal) Ellen H. Pollack Raymond M. Garner Assistant Attorney General District Public Defender 425 Fifth Avenue, North 419 High Street Nashville, TN 37243-0493 Maryville, TN 37804-4912 (At Trial and On Appeal) Michael L. Flynn District Attorney General 363 Court Street Maryville, TN 37804-5906 Philip H. Morton Assistant District Attorney General 363 Court Street Maryville, TN 37804-5906 Judge:LAFFERTY First Paragraph: The appellant, Wanda Killian, hereinafter referred to as the defendant, appeals as of right from the judgment of the Blount County Criminal Court denying post-trial diversion. The defendant entered an open plea of guilty to delivery of Clonazepam, a Schedule IV controlled substance, a Class D felony. At the conclusion of the sentencing hearing, the trial court imposed a fine of $2,000, a suspended sentence of two years, and two years of immediate intensive probation. The defendant presents one appellate issue: whether the trial court erred in denying the defendant post-trial diversion pursuant to Tenn. Code Ann. S 40-35-313. http://www.tba.org/tba_files/TCCA/Killianw_opn.WP6
STATE OF TENNESSEE VS. JOANNA GAIL ROSA Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: M. JEFFREY WHITT JOHN KNOX WALKUP 706 Walnut St., Suite 902 Attorney General & Reporter Knoxville, TN 37902 ELIZABETH B. MARNEY Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General GREGORY H. HARRISON -and- S. JO HELM Asst. District Attorneys General P.O. Box 1468 Knoxville, TN 37901-1468 Judge:PEAY First Paragraph: A jury found the defendant guilty of the first-degree premeditated murder of James Dalton and sentenced her to life imprisonment. The defendant now appeals, presenting the following issues for review: I. Whether the evidence was sufficient to prove premeditation and deliberation; II. Whether the trial court should have suppressed the defendant's confession on the theory it was involuntarily given; III. Whether the trial court committed reversible error by not allowing the defendant to call her co-defendant to the witness stand, when the co-defendant would have merely invoked his Fifth Amendment privilege against self-incrimination; and IV. Whether the trial court properly charged the jury with range of punishment, when the State failed to request such an instruction until after the conclusion of the proof. Finding no merit to the defendant's arguments, we affirm. http://www.tba.org/tba_files/TCCA/Rosajg_opn.WP6
JOHN PAUL SEALS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN PAUL SEALS JOHN KNOX WALKUP Pro Se Attorney General & Reporter RMSI, Unit 4, B-108 7475 Cockrill Bend Ind. Rd. ELLEN H. POLLACK Nashville, TN 37209-1010 Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 C. BERKELEY BELL, JR. District Attorney General 109 S. Main St., Ste. 501 Greeneville, TN 37743 Judge:WITT First Paragraph: The petitioner, John Paul Seals, appeals the Hamblen County Criminal Court's summary dismissal of his petition for post-conviction relief. Seals pleaded guilty to first degree murder on December 12, 1988, thereby avoiding the death penalty and gaining a life sentence. On February 25, 1994, he filed a pro se petition for writ of habeas corpus, or in the alternative, post-conviction relief. http://www.tba.org/tba_files/TCCA/Sealsjp_opn.WP6
JAMES R. TWITTY VS. HOWARD CARLTON, Warden, and STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JAMES R. TWITTY, pro se JOHN KNOX WALKUP Northeast Correctional Center Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683-5000 ELIZABETH B. MARNEY Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 Judge:WOODALL First Paragraph: The Petitioner, James R. Twitty, appeals as of right the trial court's dismissal of his petition for writ of habeas corpus. In this pro se appeal, Petitioner presents the following seven (7) issues for review: (1) whether the indictment was defective; (2) whether his plea was coerced; (3) whether he received ineffective assistance of trial counsel; (4) whether he is serving an excessive sentence; (5) whether he is serving a sentence for a non-existent crime; (6) whether the trial court erred in dismissing his petition without appointment of counsel or an evidentiary hearing; and; (7) whether he is being held unconstitutionally because of the defective indictment and the excessive sentence. In this opinion, we will summarize Defendant's seven (7) issues as basically four (4) challenges: a defective indictment, a coerced plea, ineffective assistance of trial counsel, and an excessive sentence for a non-existent crime. After a careful review of the issues, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Twittyjr_opn.WP6
STATE OF TENNESSEE VS. ROSCOE H. WOODS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JERRY SHATTUCK JOHN KNOX WALKUP 101 South Main St. Attorney General & Reporter Clinton, TN 37716 TODD R. KELLEY Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 JAMES N. RAMSEY District Attorney General JAN HICKS Asst. District Attorney General Rm. 127 Anderson County Courthouse Clinton, TN 37716 Judge:PEAY First Paragraph: A jury convicted the defendant of three counts of raping his daughter. Following a sentencing hearing, the defendant was sentenced to concurrent sentences of eight years on counts one and two and ten years on count three. http://www.tba.org/tba_files/TCCA/Woods-2_opn.WP6

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