|
August 18, 1999
Volume 5 -- Number 112
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 |
| 00 |
New Opinion(s) from the Tennessee Court of Appeals |
| 14 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
| 01 |
New Judicial Ethics Opinion(s) |
| 00 |
New Formal Ethics Opinion(s) from the Board of Professional Responsibility |
-
There are three ways for TBALink members to get the full-text versions of these opinions from the Web:
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 WordPerfect 6.0 version of the opinion.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document.
Lucian T. Pera
Editor-in-Chief, TBALink
JESSE L. DABBS
VS.
STATE OF TENNESSE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Jesse L. Dabbs, pro se John Knox Walkup
BMCX, Box 2000 Attorney General and Reporter
Wartburg, TN 37887
Ellen H. Pollack
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Frank A. Harvey
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763
Judge:WADE
First Paragraph:
The petitioner, Jesse L. Dabbs, appeals the trial court's dismissal of
his petition for writ of habeas corpus. In this appeal of right, the
single issue presented for review is whether the petition was properly
dismissed without the appointment of counsel and without an evidentiary
hearing. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Dabbsjl_opn.WP6
DARRELL FRITTS
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
L. Darren Gibson John Knox Walkup
Attorney for Appellant Attorney General and Reporter
735 Broad Street, Suite 700 450 James Robertson Parkway
Chattanooga, TN 37402 Nashville, TN 37243-0493
Michael J. Fahey, II
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North, 2nd Floor
Nashville, TN 37243
Jerry N. Estes
District Attorney General
203 E. Madison Ave.
Athens, TN 37303
Judge:OGLE
First Paragraph:
On May 27, 1994, the petitioner, Darrell Fritts, filed his second
petition for post-conviction relief in the Criminal Court of Monroe
County. The trial court appointed counsel and conducted a hearing on
March 12, 1997. On September 25, 1997, the trial court entered an order
denying the petition for post-conviction relief. On appeal, the
petitioner contends that his sentence violates the Ex Post Facto clauses
of the United States and Tennessee Constitutions. Moreover, the
petitioner argues that he should be granted a new sentencing hearing
pursuant to our supreme court's decision in State v. Pearson, 858 S.W.2d
879 (Tenn. 1993). Following a review of the record, we affirm the
decision of the trial court.
http://www.tba.org/tba_files/TCCA/Frittsd_opn.WP6
EDDIE DEAN HALL
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
J. Russell Pryor, Attorney John Knox Walkup
128 South Main Street Attorney General and Reporter
Suite 101
Greeneville, TN 37743 Ellen H. Pollack
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Eric D. Christiansen
Assistant District Attorney General
109 South Main Street
Greeneville, TN 37743
Judge:WADE
First Paragraph:
The petitioner, Eddie Dean Hall, appeals the trial court's denial of his
petition for post-conviction relief. The single issue presented for
review is whether the petitioner was denied the effective assistance of
counsel.
We find no error and affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Halled_opn.WP6
STATE OF TENNESSEE
VS.
STEVE EUGENE HILL
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JULIE A. MARTIN JOHN KNOX WALKUP
Contract Appellate Defender Attorney General and Reporter
P. O. Box 426
Knoxville, TN 37901-0426 ELLEN H. POLLACK
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
MIKE FLYNN
District Attorney General
EDWARD P. BAILEY, JR.
Assistant District Attorney
363 Court Street
Maryville, TN 37804
Judge:SMITH
First Paragraph:
The appellant, Steve Eugene Hill, pled guilty in the Blount County
Criminal Court to one (1) count of evading arrest, a Class E felony, and
one (1) count of reckless driving, a Class B misdemeanor. The trial
court sentenced him to concurrent terms of one (1) year for evading
arrest and six (6) months for reckless driving. The trial court further
ordered that the appellant be placed on supervised probation upon his
service of fifteen (15) days in jail. On appeal, the appellant contends
that the trial court erred in requiring him to serve fifteen (15) days
in jail before being placed on probation. After a thorough review of
the record before this Court, we conclude that there is no reversible
error and affirm the trial court's judgment.
http://www.tba.org/tba_files/TCCA/Hillstev_opn.WP6
STATE OF TENNESSEE
VS.
JERMAIN HURST
Court:TCCA
Attorneys:
For Appellant For Appellee
J. Liddell Kirk John Knox Walkup
706 Walnut Street, Suite 902 Attorney General and Reporter
Knoxville, TN 37902 425 Fifth Avenue North
Nashville, TN 37243-0493
Ellen H. Pollack
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Paula Gentry
Asst District Attorney General
Office of the District Attorney
General
City-County Building
Knoxville, TN 37902
Leon Franks
Asst District Attorney General
Office of the District Attorney
General
City-County Building
Knoxville, TN 37902
Judge:OGLE
First Paragraph:
The appellant, Jermain Hurst, appeals his conviction in the Knox County
Criminal Court of possession of more than .5 grams of cocaine with the
intent to sell, a class B felony, and possession of marijuana, a class A
misdemeanor. The trial court imposed, respectively, concurrent
sentences of ten years incarceration in the Tennessee Department of
Correction and eleven months and twenty-nine days incarceration in the
Knox County Jail. On appeal, the appellant presents only one issue for
our consideration: Whether the trial court erroneously denied his motion
to suppress the State's use at trial of money, cocaine, and marijuana
seized by the police. Following a thorough review of the record and the
parties' briefs, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Hurstje_opn.WP6
DAVID LEE McNISH
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
PAUL N. BUCHANAN, JOHN KNOX WALKUP
Post-Conviction Defender Attorney General and Reporter
Staff Attorney
500 Deaderick Street MICHAEL E. MOORE
Nashville, TN 37243 Solicitor General
MARK SLAGLE PETER M. COUGHLAN
302 Sunset Drive Assistant Attorney General
Johnson City, TN 37604 425 Fifth Avenue North
Nashville, TN 37243
DAVID CROCKETT
District Attorney General
H. GREELEY WELLS, JR.
Asst District Attorney General
P.O. Box 526
Blountville, TN 37617
Judge:WELLES
First Paragraph:
The Defendant, David Lee McNish, appeals the decision of the trial court
denying him post-conviction relief from his sentence of death for the
premeditated first degree murder of the seventy-year-old victim, Gladys
Smith. The facts presented at trial are reproduced below from the
decision of the Tennessee Supreme Court on direct appeal affirming
Defendant's conviction and sentence in State v. McNish, 727 S.W.2d 490
(Tenn. 1987). For the reasons set forth in this opinion, we affirm the
trial court's denial of post-conviction relief.
http://www.tba.org/tba_files/TCCA/Mcnishdl_opn.WP6
STATE OF TENNESSEE
VS.
ANDREW LEE MOATS, JR., A.K.A,
BUTCH MOATS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
M. JEFFREY WHITT (at trial and PAUL G. SUMMERS
Attorney at Law on appeal) Attorney General & Reporter
706 Walnut Street, Suite 902
Knoxville, TN 37902 MARVIN S. BLAIR, JR.
Assistant Attorney General
RICHARD W. CLARK, III (at trial) 425 Fifth Ave. N., 2d Floor
Attorney at Law Nashville, TN 37243-0493
706 Walnut Street, Suite 903
Knoxville, TN 37902 WILLIAM E. DOSSETT
District Attorney General
FRED BRIGHT
Asst District Attorney General
400 Main, P.O. Box 1468
Knoxville, TN 37901-1468
Judge:WITT
First Paragraph:
The defendant, Andrew Lee Moats, Jr., appeals from his jury conviction
for first degree murder in the Knox County Criminal Court. The trial
court imposed a life sentence in the Tennessee Department of Correction.
In this direct appeal, the defendant challenges the sufficiency of the
evidence and contends there is inadequate proof of intent, deliberation
and premeditation to support his conviction for first degree murder.
After a review of the record, the briefs of the parties, and the
applicable law, we affirm.
http://www.tba.org/tba_files/TCCA/Moatsal_opn.WP6
WILLIE E. PAYNE
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
DONNA ROBINSON MILLER MARVIN S. BLAIR, JR.
Asst District Public Defender Assistant Attorney General
Suite 300, 701 Cherry Street 425 Fifth Avenue North
Chattanooga, TN 37402 Nashville, TN 37243-0493
WILLIAM H. COX III
District Attorney General
Suite 300, 600 Market Street
Chattanooga, TN 37402
Judge:WILLIAMS
First Paragraph:
The petitioner, Willie E. Payne, appeals the trial court's dismissal of
his post-conviction relief petition. The petitioner was convicted by a
jury of having raped a female under twelve years of age. The trial
court sentenced him to death, and the Court of Appeal affirmed his
sentence in 1978. Later, Governor Ray Blanton commuted his sentence to
life imprisonment. On April 14, 1997, the petitioner filed a "Petition
for Writ of Habeas Corpus," which was properly treated by the trial
court as a motion for post-conviction relief. The petitioner claims
that the indictment in his case was constitutionally defective because
it did not allege a specific mens rea; i.e., it did not use the language
"intentionally, knowingly, or recklessly." After review of the record,
we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Paynewe_opn.WP6
STATE OF TENNESSEE
VS.
JERRY C. PENDERGRASS
and
BROAD STREET VIDEO
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE:
JERRY C. PENDERGRASS:
JOHN KNOX WALKUP
H. LOUIS SIRKIN Attorney General & Reporter
Attorney at Law
105 W. Fourth St., Ste. 920 ELLEN H. POLLACK
Cincinnati, OH 45202 Asst. Attorney General
425 Fifth Ave. North
JOHN E. HERBISON 2d Floor, Cordell Hull Bldg.
Attorney at Law Nashville, TN 37243-0493
2016 Eighth Ave. S.
Nashville, TN 37204 VICTOR S. JOHNSON, III
District Attorney General
FOR THE APPELLANT
BROAD STREET VIDEO: BARRY STEELEMAN
Asst. District Attorney General
ARVIN H. REINGOLD 600 Market St., Courts Bldg.
Attorney at Law Chattanooga, TN 37402
1010 Market St.
Chattanooga, TN 37402
Judge:WITT
First Paragraph:
The defendants, Jerry C. Pendergrass and Broad Street Video, were
convicted of obscenity-related crimes at the conclusion of a jury trial
in the Hamilton County Criminal Court. Both defendants were convicted
of distribution of obscene matter, a Class A misdemeanor. See Tenn.
Code Ann. S 39-17-902(a), (c)(1) (1997). Pendergrass was also convicted
of possession with intent to distribute obscene matter, a Class A
misdemeanor. See Tenn. Code Ann. S 39-17-902(a), (c)(1) (1997).
Pendergrass received an eleven month, 29 day sentence, 75 percent of
which was to be served in the county workhouse. Broad Street Video was
fined $31,000.
http://www.tba.org/tba_files/TCCA/Pendergr_opn.WP6
STATE OF TENNESSEE
VS.
ARNOLD LEE POTTER
Court:TCCA
Attorneys:
FOR THE APPELLANT:
RAYMOND MACK GARNER
District Public Defender
SHAWN G. GRAHAM
(At Trial)
Assistant District Public Defender
419 High Street
Maryville, TN 37804
JULIE A. RICE
(On Appeal)
P. O. Box 426
Knoxville, TN 37901-0426
FOR THE APPELLEE:
PAUL G. SUMMERS
Attorney General and Reporter
CLINTON J. MORGAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
MICHAEL L. FLYNN
District Attorney General
WILLIAM R. REED
LISA B. McKENZIE
Asst. District Attorneys General
363 Court Street
Maryville, TN 37804-5906
Judge:RILEY
First Paragraph:
The sole issue in this appeal is whether the trial court erred in
sentencing the defendant for simple assault to the maximum sentence of
11 months and 29 days and denying alternative sentencing. We AFFIRM the
judgment of the trial court pursuant to Rule 20, Tennessee Court of
Criminal Appeals.
http://www.tba.org/tba_files/TCCA/Potteral_opn.WP6
STATE OF TENNESSEE
VS.
DONALD SCHWEITZER
Court:TCCA
Attorneys:
FOR THE APPELLANT:
CHARLES B. HILL II
P. O. Box 852
Kingston, TN 37763
FOR THE APPELLEE:
PAUL G. SUMMERS
Attorney General and Reporter
MARVIN S. BLAIR, JR.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
CHARLES E. HAWK
District Attorney General
DENNIS W. HUMPHREY
Assistant District Attorney General
P. O. Box 703
Kingston, TN 37763-0703
Judge:RILEY
First Paragraph:
Defendant, Donald Schweitzer, was convicted by a Roane County jury of
the offense of filing a fraudulent insurance claim under $500 in value,
a Class A misdemeanor. In this appeal as of right, the sole issue is
whether the evidence was sufficient to support the verdict. We AFFIRM
the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Shwetzrd_opn.WP6
BILLY JOE SISK
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
SUSANNA LAWS-THOMAS PAUL G. SUMMERS
Assistant Public Defender Attorney General & Reporter
102 Mims Avenue
Newport, TN 37821-3614 TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
AL C. SCHMUTZER, JR.
District Attorney General
JAMES BRUCE DUNN
Assistant District Attorney General
339-A East Main Street
Newport, TN 37821
Judge:WILLIAMS
First Paragraph:
Billy Joe Sisk appeals from a judgment of the Circuit Court of Cocke
County dismissing his petition for post-conviction relief. The
petitioner was convicted of aggravated assault and second degree murder
and was sentenced to concurrent terms of three and eighteen years
respectively. This Court affirmed his convictions and sentences on
direct appeal. See State v. Billy Joe Sisk, Cocke County, No.
03C01-9410-CR-00367 (Tenn. Crim. App. filed January 17, 1997, at
Knoxville).
http://www.tba.org/tba_files/TCCA/Siskbj_opn.WP6
STATE OF TENNESSEE
VS.
TIMOTHY W. TIPTON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
PAULA R. VOSS R. STEPHEN JOBE
Asst District Public Defender Assistant Attorney General
1209 Euclid Avenue 425 Fifth Avenue North
Knoxville, TN 37921 Nashville, TN 37243
JAMES R. OWEN RANDALL E. NICHOLS
Asst District Public Defender District Attorney General
1209 Euclid Avenue City-County Building
Knoxville, TN 37921 Knoxville, TN 37902
WILLIE R. HARPER
Asst District Attorney General
City-County Building
Knoxville, TN 37902
Judge:GLENN
First Paragraph:
The defendant, Timothy Wayne Tipton, has appealed as of right the action
of the Knox County Criminal Court, denying his motion to vacate a
judgment of the Knox County General Sessions Court because the judgment,
although signed by the judge, was undated. The judgment was later the
basis for a revocation proceeding, which precipitated this appeal.
Based upon our review of the record and the applicable law, we affirm
the order of the trial court denying the defendant's motion.
http://www.tba.org/tba_files/TCCA/Tiptontw_opn.WP6
ALONZO C. WILLIAMS
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Alonzo C. Williams, pro se John Knox Walkup
c/o B.M.C.X. Attorney General and Reporter
P.O. Box 2000
Wartburg, TN 37887 Ellen H. Pollack
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Randall E. Nichols
District Attorney General
City-County Building
Knoxville, TN 37902
Judge:WADE
First Paragraph:
The petitioner, Alonzo C. Williams, appeals the trial court's dismissal
of his petition for post-conviction relief, his third in the last
fourteen years. In this appeal of right, the single issue presented for
review is whether the petition was barred by the statute of limitations.
The judgment of the trial court is affirmed.
http://www.tba.org/tba_files/TCCA/Willmsac_opn.WP6
Judicial Ethics Opinion
Judge: WAGGONER
First Paragraph:
A request has been made for an advisory ethical opinion based upon the
following factual information:
A complaint for absolute divorce was filed by plaintiff husband in the
appropriate court after a bed and board divorce was entered in the same
court several years earlier. Proof was heard and the attorneys
requested closing arguments be presented to the Court subsequent to the
Court having the opportunity to review the transcript from the bed and
board divorce. That transcript was reviewed and counsels were notified
the Court was prepared to receive closing arguments. A significant
period of time passed without counsels scheduling closing argument
although they were reminded of the Court's preparation to hear closing
arguments on several occasions. A complaint was filed with the Court of
the Judiciary by the plaintiff husband alleging that the presiding judge
in the case took the case under advisement on January 24, 1997, and the
judge refuses to render a decision. Since the complaint with the Court
of the Judiciary has been filed, complainant/plaintiff husband's
attorney has now filed a written closing statement and certain motions
are pending before the Court.
The judge now inquires: (1) whether or not the Court should recuse
itself from ruling on the pending divorce petition for ethical reasons;
(2) whether or not a waiver by the parties can cure any ethical
disqualification of the judge; and (3) whether or not the Court can
disclose the contents of the complaint filed with the Court of the
Judiciary to all parties and counsel upon request so a waiver of the
judge's disqualification can be considered.
http://www.tba.org/tba_files/TSC_Rules/99-3_opn.WP6
PLEASE FORWARD THIS EMAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.
GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion
Flash.
JOIN TBALink!
While Opinion Flash is a free service of the Tennessee Bar Association,
you must be a subscriber to TBALink, the premier Web site for
Tennessee attorneys, in order to access the full-text of the opinions
or enjoy many other features of TBALink. TBA members may join
TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/
SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion-Flash free each
day by e-mail? Anyone -- whether a TBA member or not is welcome
to subscribe ... it's free!
For the Plain Text Version:
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
For the HTML Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE HTML
3) Leave the body of the message blank
UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
To STOP receiving 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 1999 Tennessee Bar Association
|
