January 27, 1999
Volume 5 -- Number 013

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
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
06 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


ROGER H. BOWLIN
VS.
JOHN KNOX WALKUP, 
Attorney General for the State  
of Tennessee; DONAL CAMPBELL,   
Commissioner of Correction for  
the State of Tennessee

Court:TCA

Attorneys:    

ROGER H. BOWLIN, Pro Se
D.S.N.F. Health Center
7575 Cockrill Bend Industrial Road
Nashville, Tennessee  37209-1057


JOHN KNOX WALKUP
Attorney General and Reporter

ELIZABETH B. MARNEY
Assistant Attorney General
425 Fifth Avenue, North
Nashville, Tennessee  37243
    ATTORNEYS FOR RESPONDENTS/APPELLEES                      

Judge:CAIN

First Paragraph:

On January 21, 1998, petitioner, an incarcerated prisoner, filed a
"petition for declaratory judgment" against the Attorney General of
Tennessee and the Tennessee Commissioner of Corrections, seeking to
have Chapter 72, section 1 of the Public Acts of 1955 previously
codified as Tennessee Code Annotated section 39-3901 declared
unconstitutional.

http://www.tba.org/tba_files/TCA/Bowlinro_opn.WP6



JEANETTE NEAL HALL VS. ROY DONALD HALL, Deceased, ANNETTE ELAINE (HALL) DENSON, Administratrix of estate of Roy Donald Hall Court:TCA Attorneys: RANDLE W. HILL Washington Square Suite 310 222 Second Ave. North Nashville, TN 37201 Attorney for Plaintiff/Appellant HOWARD M. SKIPWORTH 3353 Union Hill Road Suite C Post Office Box 489 Joelton, TN 37080 Attorney for Defendant/Appellee Judge:COTTRELL First Paragraph: In this action, the plaintiff seeks to have declared void a 1979 divorce decree which ended her marriage at her request and which was executed by plaintiff and her attorney. The trial court denied plaintiff's motion for relief from judgment, holding that the allegations of technical defects in the 1979 decree that would render that order void were without merit. We affirm the trial court's ruling. http://www.tba.org/tba_files/TCA/Hall3_opn.WP6
RAYMOND O. HAMPTON VS. TENNESSEE TRUCK SALES, INC. and DONALD A. TOMLINSON ORDER Court:TCA Judge:CANTRELL First Paragraph: The appellees have filed a Petition to Rehear asserting that the court overlooked the record from the former case in deciding that the record did not contain evidence on which a judgment of res judicata (or collateral estoppel) could be based. Attached to the petition are copies of the papers filed in the chancery court in the former case with a document called "Joint Notice of Filing" addressed to the Court of Appeals but filed in the chancery court on September 16, 1998. There is no certification by the Clerk and Master and this court's docket does not indicate that the filing was ever forwarded to this court. We do find in this record, however, a motion to consolidate the two records and an order reserving judgment on that motion because the time for filing a Rule 11 application to the Supreme Court had not expired. The order further states that the reservation was without prejudice to the right of the parties to obtain a duplicate record from the trial court for filing in this appeal. Apparently the filing in the chancery court on September 16, 1998 was an effort on the part of the parties to take advantage of this court's suggestion, but the record from the chancery court was never filed in this court. http://www.tba.org/tba_files/TCA/Hamptro_reh.WP6
EDITH CARMER SANNELLA VS. JOSEPH JOHN SANNELLA Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: John J. Hollins, Jr. Stephen W. Pate Hollins Wagster & Yarbrough Murfreesboro, Tennessee Nashville, Tennessee Judge:KOCH First Paragraph: This appeal concerns a husband's efforts to terminate his spousal support obligation following a twenty-year marriage. Shortly after his retirement, the husband filed a petition in the Circuit Court for Davidson County seeking to terminate his spousal support obligation because of the decrease in his income and the post-divorce increase in his former wife's income. The trial court denied the husband's petition after concluding that his retirement did not affect his ability to pay spousal support and that his former wife continued to need support. The husband has appealed. We agree with the trial court that the husband has not shown a substantial, material change in circumstances sufficient to justify terminating his spousal support obligation. Therefore, we affirm the denial of the husband's motion to terminate his spousal support obligation. http://www.tba.org/tba_files/TCA/Sannella_opn.WP6
DANIEL WHITE VS. BRENDA ARMSTRONG Court:TCA Attorneys: For Plaintiff/Appellant: For Defendant/Appellee: Clark Lee Shaw John Knox Walkup Nashville, Tennessee Attorney General and Reporter Cynthia Bohn Sue A. Sheldon Nashville, Tennessee Assistant Attorney General Judge:KOCH First Paragraph: This appeal involves a man's efforts to obtain post-judgment relief from an order requiring him to support a child who is not his own. Over three years after voluntarily legitimating the child, the man filed a motion in the Davidson County Juvenile Court seeking to terminate his responsibility to support the child on the ground that genetic testing had excluded the possibility that he was the child's biological father. The juvenile court declined to relieve the man of his support obligation after concluding that the child's mother had not fraudulently persuaded the man that he was the child's biological father and that the man and the child's mother had perpetrated a fraud on the court in obtaining the original legitimation order. We have determined that the evidence does not support the juvenile court's conclusion that the man willfully perpetrated fraud on the court during the original legitimation proceeding. Accordingly, we find that he is entitled to post-judgment relief because it is no longer equitable that the legitimation order be given prospective application. http://www.tba.org/tba_files/TCA/Whited_opn.WP6
STATE OF TENNESSEE VS. QUINTON CAGE 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 (On Appeal) EUGENE J. HONEA Assistant Attorney General COLLIER GOODLETT, JR. 450 James Robertson Parkway Assistant Public Defender Nashville, TN 37243-0493 109 S. Second Street Clarksville, TN 37040 JOHN CARNEY (At Trial) District Attorney General ARTHUR BEIBER Assistant District Attorney 204 Franklin Street Clarksville, TN 37040 Judge:SMITH First Paragraph: On December 2, 1994, a Montgomery County jury convicted Appellant Quinton Cage of aggravated rape, especially aggravated kidnapping, aggravated robbery, attempted aggravated robbery, and reckless endangerment with a deadly weapon. After a sentencing hearing on January 13, 1995, Appellant received sentences of twenty-five years for aggravated rape, twenty years for especially aggravated kidnapping, eight years for aggravated robbery, three years for attempted aggravated robbery, and two years for reckless endangerment. The sentences for especially aggravated kidnapping, aggravated rape, aggravated robbery, and reckless endangerment were ordered to run consecutively and the sentence for attempted aggravated robbery was ordered to run concurrently with the other sentences. http://www.tba.org/tba_files/TCCA/Cagequin_opn.WP6
STATE OF TENNESSEE VS. THOMAS CUNNINGHAM Court:TCCA Attorneys: For the Appellant: For the Appellee: Lionel R. Barrett, Jr. John Knox Walkup Washington Square Two Attorney General of Tennessee Suite 418 and 222 Second Ave., N. Lisa A. Naylor Nashville, TN 37201 Assistant Attorney General of Tennessee (ON APPEAL) 425 Fifth Avenue North Nashville, TN 37243-0493 John B. Melton, III 120 E. Main St., 3rd Floor William C. Whitesell, Jr. Murfreesboro, TN 37133 District Attorney General (AT TRIAL) and Paul Holcombe Assistant District Attorney General Rutherford County Judicial Bldg. Murfreesboro, TN 37130 Judge:TIPTON First Paragraph: The defendant, Thomas Cunningham, was convicted by a jury in the Rutherford County Circuit Court of illegal possession of commercial fishing gear and illegal possession of game fish, both Class B misdemeanors. The trial court sentenced the defendant to six months in the workhouse at seventy-five percent for each offense, to be served consecutively, suspended after seven days' confinement. Also, the defendant was fined a total of seven hundred fifty dollars, had his fishing license suspended for one year, and was prohibited from entering or going near Percy Priest Lake, the site of the offenses, for one year. Finally, the trial court ordered the defendant's boat, motor, and gill net forfeited. In this appeal as of right, the defendant challenges the imposition of seven days' confinement and the forfeiture. We affirm the sentences, but we vacate the forfeiture and remand the case to the trial court. http://www.tba.org/tba_files/TCCA/Cunningt_opn.WP6
STATE OF TENNESSEE VS. JOHNNY LEE HINES Court:TCCA Attorneys: FOR THE APPELLANT: GREGORY D. SMITH (On Appeal) Contract Appellate Defender One Public Square, Suite 321 Clarksville, TN 37040 MICHAEL D. RANDLES (Trial and Appeal) Assistant District Public Defender 105 South Main Street Fayetteville, TN 37334 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter DARYL J. BRAND Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM MICHAEL MCCOWN District Attorney General CHARLES CRAWFORD HOLLY HEWGLEY Assistant District Attorney General One Public Square, Ste. 100 Shelbyville, TN 37160-3953 Judge:RILEY First Paragraph: Johnny Lee Hines was convicted by a Bedford County jury of fifteen counts of statutory rape, see Tenn. Code Ann. S 39-13-506, and thirteen counts of rape of a child, see Tenn. Code Ann. S 39-13-522. He received an effective sentence of 47_ years. He appeals, arguing that the trial court erred in (1) not granting a mistrial following objectionable testimony by the victim and (2) failing to grant a judgment of acquittal on all counts except those for which the state identified specific incidents of criminal conduct. For the reasons set forth below, we affirm in part, reverse in part, and remand for resentencing. http://www.tba.org/tba_files/TCCA/Hinesjl_opn.WP6
STATE OF TENNESSEE VS. KEITH SLATER Court:TCCA Attorneys: FOR THE APPELLANT: HERSHELL D. KOGER 131 North 1st St. P.O. Box 1148 Pulaski, TN 38478 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter LISA A. NAYLOR Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General RICHARD H. DUNAVANT ROBERT C. SANDERS Asst. District Attorneys General P.O. Box 304 Pulaski, TN 38478-0304 Judge:RILEY First Paragraph: The defendant was convicted of premeditated first degree murder by a Giles County jury and received a sentence of life imprisonment. In this appeal as of right, the defendant challenges: (1) the sufficiency of the evidence; (2) the trial court's refusal to suppress his taped phone conversation with his roommate; and (3) its refusal to suppress his statement to the police. Upon our review of the record, we AFFIRM IN PART, but REMAND for another hearing on the motion to suppress defendant's statement to the police. http://www.tba.org/tba_files/TCCA/Slaterk_opn.WP6
STEVE E. TODD VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Thomas A. Potter John Knox Walkup 100 Thompson Lane Attorney General of Tennessee Nashville, TN 37211 and Lisa A. Naylor Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Lila Statom Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge:TIPTON First Paragraph: The petitioner, Steve E. Todd, appeals as of right from the Davidson County Criminal Court's denial of post-conviction relief. The petitioner was charged with six counts of rape of a child and seven counts of aggravated sexual battery. Pursuant to a plea agreement, he pled guilty to two counts of rape of a child and received a sentence of twenty-three years for each count to be served concurrently in the custody of the Department of Correction. He now contends that (1) his sentence is illegal, (2) his plea was not knowingly, understandingly and voluntarily given, and (3) he received the ineffective assistance of counsel. Because the trial court's order denying the petition for post-conviction relief is incomplete, we remand the case to the trial court for the entry of a new order consistent with this opinion. http://www.tba.org/tba_files/TCCA/Toddse_opn.WP6
STATE OF TENNESSEE VS. LAWRENCE PAUL WEBB Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: EDWIN G. SADLER JOHN KNOX WALKUP 1 South Jefferson Ave. Attorney General & Reporter Cookeville, TN 38501 TIMOTHY BEHAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM E. GIBSON District Attorney General LESLIE ANN SELLS -and- BEN FANN Asst. District Attorneys General 145 South Jefferson Ave. Cookeville, TN 38501 Judge:PEAY First Paragraph: The defendant was charged by indictment with vehicular homicide by intoxication and two counts of vehicular assault. Following a jury trial and sentencing hearing, he was found guilty as charged and sentenced to an effective sentence of eleven years incarceration. The defendant now challenges his sentence, arguing that the trial court erred in failing to apply a mitigating factor, that his sentence was excessive, and that the trial court erred in denying him alternative sentencing. Finding no merit to these complaints, we affirm. http://www.tba.org/tba_files/TCCA/Webblp_opn.WP6

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