September 13, 1999
Volume 5 -- Number 124

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):
 
02 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
03 New Opinion(s) from the Tennessee Court of Appeals
12 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


CAROLYN SUE IVEY
VS.
TRANS GLOBAL GAS & OIL,     
d/b/a BREAD BOX FOOD STORE,
STORE NO. 42

Court:TSC

Attorneys:                          
For the Appellant:                  For the Appellee:

David H. Dunaway                    Imogene A. King
Dunaway & Associates                Frantz, McConnell & Seymour, LLP
LaFollette, Tennessee               Knoxville, Tennessee

Judge:BARKER

First Paragraph:

In this workers' compensation action, the employee, Carolyn Sue Ivey
(plaintiff), filed a claim for relief based upon a chronic mental
disorder that arose after she was robbed at gunpoint while working at a
convenience store.  The trial court found that the plaintiff is
permanently and totally disabled, as defined in Tenn. Code Ann. S 50-6-
207(4)(B) (Supp. 1998), and awarded benefits to be paid until the
plaintiff reaches the age of sixty-five.

http://www.tba.org/tba_files/TSC/Iveycs_opn.WP6






JAMES E. STEPHENS
VS.
HENLEY'S SUPPLY AND INDUSTRY, INC.
and TRAVELERS INSURANCE COMPANY

Court:TSC

Attorneys:                          
For Appellants:                 For Appellee:

ROBERT J. UHORCHUK              BARBARA G. FARIS
Chattanooga, TN                 Decherd, TN

Judge:BIRCH

First Paragraph:

The Chancery Court of Franklin County found the plaintiff, James E.
Stephens, to be permanently and partially disabled and entitled to
future medical care at the employer's expense.  The Special Workers'
Compensation Appeals Panel, upon reference for findings of fact and
conclusions of law pursuant to Tenn. Code Ann. S 50-6-225(e)(5)(Supp.
1998), found that Stephens failed to prove that he had suffered any
permanent vocational disability due to his injury.  The Panel dismissed
his appeal, effectively foreclosing Stephens' entitlement to future
medical expenses.

http://www.tba.org/tba_files/TSC/STEPHENS_OPN.WP6






RETA J. BEST
VS.
DISTRIBUTION & AUTO SERVICES,   
INC.

Court:TCA

Attorneys:                          
William Kennerly Burger, Murfreesboro, Tennessee
Attorney for Plaintiff/Appellant.


Larry G. Trail,
Diana C. Benson, 
TRAIL & TRAIL, Murfreesboro, Tennessee
Attorneys for Defendant/Appellee.

Judge:FARMER

First Paragraph:

In this employment discrimination action, Plaintiff Reta J. Best appeals
the trial court's judgment granting the motion for summary judgment
filed by Defendant/Appellee Distribution & Auto Services, Inc. (DAS). 
We affirm the trial court's judgment based upon our conclusion that,
even when viewed in the light most favorable to Best, the evidence fails
to support Best's claim that DAS discriminated against her on the basis
of her pregnancy.

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






JWT, L.P.
VS.
PRINTERS PRESS, INCORPORATED    
and BRITAINS, INC.

Court:TCA

Attorneys:                          
DAVID S. ZINN,
Suite 102
2000 Glen Echo Road
Nashville, Tennessee 37215-2857
    Attorney for Appellee

MICHAEL K. RADFORD
FLYNN & RADFORD, P.C.
214 Centerview Drive
Suite 233, Shiloh Building
Brentwood, Tennessee 37027
    Attorney for Appellant

Judge:FRANKS

First Paragraph:

In this declaratory action over the validity of an easement, the Trial
Judge ruled in plaintiff's favor, and counter-plaintiff has appealed.
Frank and Louise Becker owned property in Davidson County, which Louise
had inherited from her brother, Frank Niederhauser.  In 1969, Louise and
Frank executed a power of attorney appointing their son Thomas Becker as
their attorney-in-fact.  Frank died in January of 1970, and Louise
became the sole owner of the property.

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






EDWARD CARL KNITTEL
VS.
STATE OF TENNESSEE
DEPARTMENT OF SAFETY

Court:TCA

Attorneys:                          
Paul G. Summers, Attorney Genreal & Reporter
Michael E. Moore, Solicitor General
William C. Bright, Assistant Attorney General
For Appellee

Judge:CRAWFORD

First Paragraph:

This appeal involves the review of a Tennessee Department of Safety
administrative hearing.  Edward Carl Knittel (Knittel),
petitioner/appellant, appeals the order of trial court affirming the
decision of the Tennessee Department of Safety suspending petitioner's
driving privileges for failure to pay traffic fines.

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






STATE OF TENNESSEE
VS.
COREY LAMAR CAMPBELL

Court:TCCA

Attorneys:                          
For the Appellant:                  For the Appellee:

Dale M. Quillen                     Paul G. Summers
95 White Bridge Road, Suite 208     Attorney General of Tennessee
Nashville, TN 37205                     and
                                    Marvin E. Clements, Jr.                             
                                    Asst Attorney General of Tennessee                      
                                    425 Fifth Avenue North                              
                                    Nashville, TN 37243
                    
                                    Victor S. Johnson, III
                                    District Attorney General
                                        and
                                    James Milam
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 2nd Avenue North
                                    Nashville, TN 37201-1649
                    
Judge:TIPTON

First Paragraph:

The defendant, Corey Lamar Campbell, appeals as of right from his
conviction by a jury in the Davidson County Criminal Court for second
degree murder, a Class A felony. He was sentenced to twenty years
confinement in the Department of Correction.  On appeal, the defendant
contends that (1) the evidence is insufficient to support the
conviction, and (2) the trial court erred by not charging the jury with
the lesser offense of voluntary manslaughter. Because the trial court
failed to instruct the jury on voluntary manslaughter, we must reverse
the conviction and remand the case to the trial court for a new trial.

http://www.tba.org/tba_files/TCCA/CAMPBELL_wpd.WP6






RANDALL ALLEN CANTRELL
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          
For the Appellant:              For the Appellee:

Randall Allen Cantrell,         Paul G. Summers
Pro Se                          Attorney General and Reporter
Reg. #14900-075                 
F.C.I. Manchester   
P. O. Box 4000                  Elizabeth B. Marney
Manchester, KY  40962           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, Randall Allen Cantrell, appeals the order of the Sumner
County Criminal Court dismissing his pro se petition for post-conviction
relief.  In this appeal, the appellant raises multiple issues which
collectively challenge the trial court's summary dismissal of the
petition as being time-barred.

http://www.tba.org/tba_files/TCCA/CANTRA_wpd.WP6






STATE OF TENNESSEE
VS.
SHAWN ROBERT COTTON

Court:TCCA

Attorneys:                          

For the Appellant:              For the Appellee:

Robert P. Ballinger             Paul G. Summers     
601 Woodland Street             Attorney General of Tennessee
Nashville, TN 37206             and
(AT TRIAL AND ON APPEAL)        Daryl J. Brand
                                Asst Attorney General of Tennessee                      
                                450 James Robertson Parkway     
John G. Oliva                   Nashville, TN 37243-0493
601 Woodland Street
Nashville, TN 37206             Victor S. Johnson, III
(ON APPEAL)                     District Attorney General
                                    and
                                Bernie McEvoy
                                Assistant District Attorney General
                                Washington Square, Suite 500
                                222 2nd Avenue North
                                Nashville, TN 37201-1649
                    
Judge:TIPTON

First Paragraph:

The defendant, Shawn Robert Cotton, appeals as of right his conviction
by a jury in the Davidson County Criminal Court for vehicular homicide
by intoxication, a Class B felony.  The trial court sentenced the
defendant to serve twelve years in the Department of Correction as a
Range I, standard offender.  The defendant contends that: (1) the
evidence is insufficient to support the conviction,

(2) the trial court erred during voir dire by impliedly threatening to
hold the jurors in contempt for perjury if they failed to return a
verdict,

(3) the state improperly struck African-American female jurors from the
panel based upon their race and gender,

(4) the state improperly commented upon the defendant's silence and
improperly appealed to the jury's sympathy during argument, and

(5) the cumulative effect of the errors violates the defendant's right
to a fair trial.

We affirm the trial court's judgment of conviction.

http://www.tba.org/tba_files/TCCA/cottonsr_opn.WP6






STATE OF TENNESSEE
VS.
JIMMY FERGUSON

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:                  FOR THE APPELLEE:

PAUL G. SUMMERS                     JERRED A. CREASY
Attorney General & Reporter         176 Second Avenue North, Ste 500
                                    Nashville, TN  37201
ELIZABETH B. MARNEY
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN  37243-0493

VICTOR S. JOHNSON, III
District Attorney General

EDWARD S. RYAN
Assistant District Attorney General
222 Second Avenue North, Suite 500
Nashville, TN  37201-1649

Judge:GLENN

First Paragraph:

On July 6, 1994, the defendant, Jimmy Ferguson, was involved in a
one-car accident.  Warrants were issued that day, charging the defendant
with driving under the influence and driving on a revoked license.  He
was indicted for these charges on March 30, 1998.  There is no
indication in the record that the state attempted to serve these
warrants until March 30, 1998, when the defendant was arrested on other
charges.  The defendant was arraigned and pleaded not guilty on May 14,
1998.  The trial court held a hearing on July 30, 1998, upon the
defendant's motion to dismiss the two-count indictment on the grounds
his right to a speedy trial and to due process of the law had been
violated and the delay between issuing the warrants and serving the
warrants constituted unjustifiable delay by the state.  At the
conclusion of the hearing, the trial court dismissed the indictment, and
the state appealed.  Based upon our review of the record and of
applicable law, we reverse the decision of the trial court and reinstate
the indictment.

http://www.tba.org/tba_files/TCCA/FERGUSNJ_wpd.WP6






STATE OF TENNESSEE
VS.
ERIC BERNARD HOWARD

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:      FOR THE APPELLEE:

THOMAS H. POTTER        PAUL G. SUMMERS
100 Thompson Lane       Attorney General & Reporter
Nashville, TN  37211
                        LUCIAN D. GEISE
                        Assistant Attorney General
                        425 Fifth Avenue North
                        Nashville, TN  37243

                        VICTOR S. JOHNSON
                        District Attorney General

                        JOHN ZIMMERMANN
                        Assistant District Attorney
                        Washington Sq., Ste. 500
                        Nashville, TN  37201

Judge:SMITH

First Paragraph:

On October 26, 1995, the Davidson County Grand Jury indicted Appellant
Eric B. Howard for two counts of aggravated robbery.  After a jury trial
on November 17-18, 1997, Appellant was convicted of two counts of
aggravated robbery.  After a sentencing hearing on December 17, 1997,
the trial court sentenced Appellant as a Range II multiple offender to
consecutive terms of seventeen years for each conviction.  Appellant
challenges his convictions, raising the following issues: 
1) whether the trial court erred when it ruled that certain evidence was
irrelevant and inadmissible; 
2) whether the evidence was sufficient to support one of the aggravated
robbery convictions; and 
3) whether incompetency by reason of addiction to a narcotic drug is a
defense to aggravated robbery.

After a review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/Howarder_opn.WP6






JAMES PHILLIP HUNTER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:      FOR THE APPELLEE:

THOMAS F. BLOOM         PAUL G. SUMMERS
500 Church Street       Attorney General & Reporter
5th Floor
Nashville, TN  37219    CLINTON J. MORGAN
                        Counsel for the State
                        425 Fifth Avenue North
                        Nashville, TN  37243

                        VICTOR S. JOHNSON
                        District Attorney General

                        KYMBERLY HAAS
                        Assistant District Attorney
                        Washington Square, Ste. 500
                        Nashville, TN  37201-1649
                        
Judge:SMITH

First Paragraph:

The petitioner, James Phillip Hunter, appeals the order of the Davidson
County Criminal Court denying his petition for post-conviction relief. 
The petitioner is presently serving a life sentence as a result of his
conviction for premeditated first degree murder in 1993.  In 1997, the
petitioner filed a post-conviction petition alleging, inter alia,
ineffective assistance of trial counsel.  The trial court found no merit
to any of the petitioner's claims and accordingly denied the petition. 
On appeal, the petitioner claims that he received ineffective assistance
of counsel at trial and on appeal.  After a thorough review of the
record before this Court, we affirm the trial court's judgment.

http://www.tba.org/tba_files/TCCA/Huntephi_opn.WP6






JERMAINE LEJUANE HUNTER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          
For the Appellant:              For the Appellee:

Jefre S. Goldtrap               Paul G. Summers
Attorney                        Attorney General and Reporter
207 Third Avenue, North 
Post Office Box 190599          Elizabeth T. Ryan
Nashville, TN  37219-0599       Assistant Attorney General                              
                                Criminal Justice Division
                                425 Fifth Avenue North
                                2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493                
                        
                                Victor S. (Torry) Johnson III
                                District Attorney General

                                Katy N. Miller and Nick Bailey
                                Asst. District Attorneys General
                                Washington Square, Suite 500
                                222 Second Avenue South
                                Nashville, TN  37201
                        
Judge: HAYES

First Paragraph:

The appellant, Jermaine LeJuane Hunter,  appeals the Davidson County
Criminal Court's dismissal of his petition for post-conviction relief. 
On January 11, 1995, the appellant was found guilty by a jury of first
degree murder and received a life sentence in the Tennessee Department
of Correction.  His conviction and sentence were affirmed by this court
on direct appeal.  See  State v. Jermaine Hunter, No.
01C01-9506-CR-00176 (Tenn. Crim. App. at Nashville, Aug. 22, 1996),
perm. to appeal denied, (Tenn. Feb. 3, 1997).  The appellant
collaterally attacks his conviction for first degree murder upon grounds
of ineffective assistance of counsel.  Specifically, he contends that
trial counsel was deficient for (1) failing to adequately prepare for
trial and meet with the appellant; (2) failing to fully communicate with
the appellant his vulnerability regarding sentencing; and (3) failing to
investigate and utilize all possible alibi witnesses.

After review of the record, we affirm the lower court's denial of
post-conviction relief.

http://www.tba.org/tba_files/TCCA/HUNTERJL_wpd.WP6






STATE OF TENNESSEE
VS.
JAMES E. JACKSON

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:          FOR THE APPELLEE:
MARTIN G. SZEIGIS           PAUL G. SUMMERS
Attorney at Law             Attorney General & Reporter
213 Third Ave. North
Nashville, TN  37201        KIM R. HELPER
                            Asst. Attorney General
                            425 Fifth Ave. North
                            2d Floor, Cordell Hull Bldg.
                            Nashville, TN  37243-0493

                            VICTOR S. JOHNSON, III
                            District Attorney General

                            JON SEABORG
                            BERNIE McEVOY
                            Asst. District Attorneys General
                            Washington Square, Ste. 500
                            222 Second Ave. North
                            Nashville, TN  37201
                            
Judge:WITT

First Paragraph:

The defendant, James E. Jackson, was convicted in the Davidson County
Criminal Court of the first degree murder of Michael Kennedy.  He is
presently serving a life sentence in the Department of Correction for
his crime.  In this direct appeal, Jackson claims that the evidence is
legally insufficient to sustain his conviction.  Upon review of the
record, the briefs and oral arguments of the parties, and the law, we
affirm.

http://www.tba.org/tba_files/TCCA/Jacksonj_opn.WP6






STATE OF TENNESSEE
VS.
KENNETH LEE KENDRICK

Court:TCCA

Attorneys:                          
For Appellant:                  For Appellee:

Terry L. Jordan                 Paul G. Summers 
Assistant Public Defender       Attorney General and Reporter
P.O. Box 839            
Blountville, TN  37617          Clinton J. Morgan   
                                Counsel for the State 
                                425 Fifth Avenue North 
                                Nashville, TN  37243-0493

                                Joseph Eugene Perrin 
                                Asst District Attorney General
                                P.O. Box 526 
                                Blountville, TN  37617 
                        
Judge:WADE

First Paragraph:

The defendant, Kenneth Lee Kendrick, was convicted in a bench trial of
knowingly taking marijuana into a penal institution.  Tenn. Code Ann. S
39-16-201.  The trial court imposed a Range I sentence of four years.

http://www.tba.org/tba_files/TCCA/Kndrckkl_opn.WP6






STATE OF TENNESSEE
VS.
BRYAN A. MILAM

Court:TCCA

Attorneys:                          
For the Appellant:              For the Appellee:

Lionel R. Barrett, Jr.          Paul G. Summers
Washington Square Two, Ste 418  Attorney General of Tennessee
222 Second Avenue North         and
Nashville, TN 37206             Daryl J. Brand
(AT TRIAL AND ON APPEAL)        Associate Solicitor General                             
                                Criminal Justice Center
David L. Raybin                 425 Fifth Avenue North
424 Church Street, Suite 2210   Nashville, TN 37243     
Nashville, Tennessee 37219                  
(ON APPEAL) 
                                T. Michael Bottoms
                                District Attorney General
                                Post Office Box 459
                                Lawrenceburg, TN 38464-0459 
                    
Judge:TIPTON

First Paragraph:

The defendant, Bryan A. Milam, appeals as of right from his convictions
by a jury in the Wayne County Circuit Court for two counts of first
degree murder.  He was sentenced to life imprisonment for each count, to
be served concurrently in the Department of Correction.  The defendant
contends that (1) the evidence is insufficient to support his
convictions, and (2) that the trial court erred in its instruction to
the jury on release eligibility dates.  We reverse the convictions and
remand the case for a new trial because of the improper instruction to
the jury on the defendant's release eligibility date.

At trial, Jaye McWilliams testified that between 7:00 p.m. and 7:18 p.m.
on May 15, 1996, he heard a shot come from the residence of the
defendant and the victim.  He testified that after hearing the shot, a
girl came running to his house and said, "Call 911.  My brother has shot
his wife."  Mr. McWilliams testified that the Waynesboro Police Chief
arrived after the child came over to his house.  He said he saw the
defendant carry his wife out of the house and ask for an ambulance.

http://www.tba.org/tba_files/TCCA/MILAMB_wpd.WP6






STATE OF TENNESSEE
VS.
BETTY W. NORMAN

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:              FOR THE APPELLEE:

CLIFTON N. MILLER               PAUL G. SUMMERS
Henry, McCord, Bean & Miller    Attorney General and Reporter
300 North Jackson Street
Tullahoma, TN  37388            KIM R. HELPER
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN  37243-0493

                                MIKE MCCOWEN
                                District Attorney General

                                CHARLES CRAWFORD
                                Assistant District Attorney
                                P. O. Box 878
                                Fayetteville, TN  37334
                        
Judge:SMITH

First Paragraph:

The appellant, Betty W. Norman, was convicted by a Moore County jury of
two (2) counts of reckless endangerment, a Class E felony, and one (1)
count of harassment, a Class A misdemeanor.  The trial court sentenced
the appellant as a Range I offender to consecutive terms of one (1) year
and three (3) months and one (1) year and two (2) months for the
reckless endangerment convictions.  The appellant received a concurrent
sentence of six (6) months for her conviction for harassment.  The trial
court ordered that the appellant serve her sentences in confinement.

http://www.tba.org/tba_files/TCCA/NORMANBE_wpd.WP6






BRETT ALLEN PATTERSON
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:              FOR THE APPELLEE:

JOHN J. HOLLINS, JR.            PAUL G. SUMMERS
Hollins, Wagster & Yarbrough    Attorney General & Reporter
424 Church Street
2210 SunTrust Center            KIM R. HELPER
Nashville, TN  37219            Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN  37243-0493

                                JOHN CARNEY
                                District Attorney General

                                ARTHUR BIEBER
                                Assistant District Attorney
                                204 Franklin St., Suite 200
                                Clarksville, TN  37040
                        
Judge:SMITH

First Paragraph:

On February 23, 1988, Petitioner Brett Allen Patterson was convicted of
two counts of first degree murder, one count of first degree burglary,
and one count of aggravated rape.  On March 18, 1988, Petitioner
received consecutive sentences of life, life, and forty years for the
two first degree murder convictions and the aggravated rape conviction. 
Petitioner also received a concurrent ten year sentence for his first
degree burglary conviction.  Petitioner's convictions and sentences were
upheld by this Court on December 8, 1989.  Petitioner filed a petition
for post-conviction relief on October 29, 1992; a first amended petition
for post-conviction relief on November 5, 1993;  a second amended
petition for post-conviction relief on December 4, 1995; and a third
amended petition for post-conviction relief on September 13, 1996. 
After a two day hearing on December 9, 1996, and April 4, 1997, the
post-conviction court dismissed the petition.

http://www.tba.org/tba_files/TCCA/PATTERBR_wpd.WP6

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