November 5, 1999
Volume 5 -- Number 152

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
13 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

						
JOHNNY MOFFITT
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

For the Appellant:          For the Appellee:

Lloyd R. Tatum              Paul G. Summers
Tatum & Weinman             Attorney General and Reporter
124 E. Main Street  
P. O. Box 293               J. Ross Dyer
Henderson, TN  38340        Assistant Attorney General
                            Criminal Justice Division
                            425 Fifth Avenue North
                            2d Floor, Cordell Hull Building
                            Nashville, TN 37243-0493                
                        
                            James G. (Jerry) Woodall
                            District Attorney General

                            Al Earls
                            Asst. District Attorney General
                            Lowell Thomas State Office Building
                            Jackson, TN  38302-2825                       

Judge: HAYES

First Paragraph:

This appeal presents the post-conviction claim of ineffective
assistance of counsel.  In 1989, a Henderson County jury found the
appellant, Johnny Moffitt, guilty of first degree murder and shooting
into a dwelling.  His convictions and sentences were affirmed by this
court on direct appeal.  In 1993, the appellant filed the instant
post-conviction petition alleging that "the failure of the trial court
to instruct on the defense of alibi constituted a denial of federal
and state due process and was the result of ineffective assistance of
counsel."  The post-conviction court denied relief.  On appeal, a
panel of this court found trial counsel's performance deficient and
remanded to the post-conviction court for a determination of
prejudice.  On remand, the post-conviction court found no prejudice. 
This appeal presents the limited issue of whether the appellant was
prejudiced by trial counsel's deficient performance.

http://www.tba.org/tba_files/TCCA/Moffittj.wpd



STATE OF TENNESSEE VS. LORENZO N. PERRY Court:TCCA Attorneys: FOR THE APPELLANT: A.C. WHARTON Shelby County Public Defender WALKER GWINN Assistant Public Defender 201 Poplar Avenue, Suite 201 Memphis, TN 38103-1947 (On Appeal) CHARLES WALDMAN 147 Jefferson Avenue Suite 1102 Memphis, TN 38103-2218 (At Trial) FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter PETER M. COUGHLAN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General SCOTT D. GORDON Assistant District Attorney General 201 Poplar Ave., Suite 301 Memphis, TN 38103-1947 Judge: RILEY First Paragraph: A Shelby County jury found defendant guilty of possession of .5 grams or more of cocaine with intent to deliver. In this appeal as of right, defendant claims the evidence was insufficient to sustain the conviction. We find the evidence is sufficient to support the verdict and AFFIRM the judgment below. http://www.tba.org/tba_files/TCCA/PERRYL.wpd
STATE OF TENNESSEE VS. KENNETH PICKENS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TERESA JONES PAUL G. SUMMERS Assistant Public Defender Attorney General & Reporter 201 Poplar Avenue Second Floor CLINTON J. MORGAN Memphis, TN 38103 Counsel for the State 425 Fifth Avenue North TONY N. BRAYTON Nashville, TN 37243-0493 Assistant Public Defender 201 Poplar Avenue, Suite 2-01 WILLIAM L. GIBBONS Memphis, TN 38103 District Attorney General LEE COFFEE Assistant District Attorney General 201 Poplar Avenue Third Floor Memphis, TN 38103 Judge: WITT First Paragraph: The defendant, Kenneth Pickens, appeals from the sentencing determination of the Shelby County Criminal Court. The defendant pleaded guilty to the Class C felony of voluntary manslaughter and agreed to accept a three-year, Range I sentence, with the manner of service to be determined by the court following the completion of the presentence report and a sentencing hearing. After the hearing, the trial court ordered the defendant to serve his three-year sentence in incarceration. On appeal, the defendant argues that he should have been awarded an alternative sentence in lieu of straight incarceration. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/PICKENSK.wpd
STATE OF TENNESSEE VS. CARLOS R. PORTO-SAES Court:TCCA Attorneys: For the Appellant: For the Appellee: Kevin E. Childress Paul G. Summers Attorney for Appellant Attorney General and Reporter 301 Washington Ave., Suite 201 Memphis, TN 38103 Patricia C. Kussmann Assistant Attorney General (ON APPEAL) Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Ms. Patricia Odell Attorney at Law 50 North Front Street William L. Gibbons Memphis, TN 38103 District Attorney General (AT TRIAL) Glen C. Baity Asst. District Attorney General Criminal Justice Center - Third Floor 201 Poplar Avenue Memphis, TN 38103 Judge: HAYES First Paragraph: The appellant, Carlos R. Porto-Saes, was convicted by a Shelby County jury of one count of aggravated robbery and two counts of aggravated assault. For these convictions, he received sentences of ten years incarceration for aggravated robbery and three years for each aggravated assault conviction. The sentences were ordered to be served concurrently. In this appeal as of right, the appellant presents only one issue for our review: "Whether the evidence is sufficient to support his convictions for aggravated robbery and aggravated assault beyond a reasonable doubt?" http://www.tba.org/tba_files/TCCA/PORTOSAESCR.wpd
STATE OF TENNESSEE VS. BEN PHILLIP RAY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: (On Appeal) PAUL G. SUMMERS Attorney General & Reporter W. JEFFERY FAGAN Asst District Public Defender PETER M. COUGHLAN 117 Forrest Avenue North Assistant Attorney General Camden, TN 38320 425 Fifth Avenue North Nashville, TN 37243 GUY T. WILKINSON District Public Defender ROBERT 'GUS' RADFORD District Attorney General STEVEN L. GARRETT Assistant District Attorney General P.O. Box 94 Paris, TN 38242 Judge: WILLIAMS First Paragraph: In this unusual appeal from Henry County, the defendant, Ben Phillip Ray, claims he should have received more jail time than he was actually given by the trial judge. The defendant wants to serve his time in the state penitentiary instead of in the Henry County jail. After review of the record, we conclude that the wishes of this defendant should not be granted. A defendant does not have the right to refuse a minimum sentence. Therefore, the trial court's sentence is AFFIRMED, and we decline the defendant's opportunity to sentence him to a greater sentence. http://www.tba.org/tba_files/TCCA/RAYBENP.wpd
ERIC DEWAYNE SHAW VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: John W. Palmer Paul G. Summers 116 W. Court Street Attorney General and Reporter Post Office Box 746 Dyersburg, TN 38025-0746 Patricia C. Kussmann Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P. O. Box E Dyersburg, TN 38024 Judge: HAYES First Paragraph: The appellant, Eric Dewayne Shaw, appeals from the denial of his petition for post-conviction relief. On appeal, he collaterally challenges his convictions upon grounds (1) that his pleas were involuntarily entered and (2) that he received ineffective assistance of counsel. http://www.tba.org/tba_files/TCCA/SHAWED.wpd
STATE OF TENNESSEE VS. MAURICE SHAW Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JASON G. WHITWORTH PAUL G. SUMMERS Hotel Lindo Building, Ste 201 Attorney General & Reporter 114 W. Liberty Avenue P.O. Box 846 PATRICIA C. KUSSMANN Covington, TN 38019-0846 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 ELIZABETH T. RICE District Attorney General JAMES W. FREELAND, JR. Assistant District Attorney General 302 Market Street Somerville, TN 38068 Judge: WOODALL First Paragraph: On July 7, 1997, the Tipton County Grand Jury indicted Appellant Maurice Shaw for one count of possession of cocaine and one count of possession of .5 or more grams of cocaine with intent to deliver. After a jury trial on March 10, 1998, Appellant was convicted of possession of .5 or more grams of cocaine with intent to deliver. On May 11, 1998, the trial court sentenced Appellant as a Range I standard offender to a term of nine years in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/shawm.wpd
STATE OF TENNESSEE VS. MARSHALL A. SIMON Court:TCCA Attorneys: FOR THE APPELLANT: JEANNIE KAESS 520 Ridgeway Drive Bolivar, TN 38008 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter J. ROSS DYER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General JAMES W. FREELAND Assistant District Attorney General 302 Market Street Somerville, TN 38068 Judge: RILEY First Paragraph: Defendant, Marshall A. Simon, pled guilty to aggravated burglary and felony evading arrest. After a sentencing hearing, the trial court sentenced the defendant to consecutive terms of five years for aggravated burglary and two years for felony evading arrest. http://www.tba.org/tba_files/TCCA/SIMONMA.wpd
FRED E. SMITH VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Fred E. Smith, Pro Se Paul G. Summers NWCX, Site 2 Annex Attorney General and Reporter Route 1, Box 660 Tiptonville, TN 38079 J. Ross Dyer Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P. O. Drawer E Dyersburg, TN 38024 Judge: HAYES First Paragraph: The appellant, Fred E. Smith, appeals the Lake County Circuit Court's dismissal of his pro se petition for writ of habeas corpus. On March 2, 1989, the appellant pled guilty in the Macon County Criminal Court to second degree murder and received a fifty year determinate sentence as a range one standard offender under the 1982 Sentencing Act. He is currently confined at Northwest Correctional Complex in Lake County. The instant petition was filed on April 30, 1999. http://www.tba.org/tba_files/TCCA/SMITHFE.wpd
STATE OF TENNESSEE VS. TINA M. YEOMANS and DAVID McCLUSTER WADE, JR. Court:TCCA Attorneys: FOR THE APPELLANT: VICTORIA L. DiBONAVENTURA 104 West Washington Street, Ste. A Paris, TN 38242 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter J. ROSS DYER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ROBERT "GUS" RADFORD District Attorney General STEVEN L. GARRETT Assistant District Attorney General P. O. Box 94 Paris, TN 38242-0094 Judge: RILEY First Paragraph: Defendants were convicted by a Henry County jury of simple possession of marijuana. In this appeal as of right, defendants contend the search warrant affidavit was insufficient to establish probable cause. After a review of the record, we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/WADETMDM.wpd
STATE OF TENNESSEE VS. RICHARD WALKER Court:TCCA Attorneys: For the Appellant: For the Appellee: Leslie I. Ballin and Paul G. Summers Mark A. Mesler Attorney General and Reporter Ballin, Ballin & Fishman, P.C. 200 Jefferson Ave, Ste 1250 R. Stephen Jobe Memphis, TN 38103 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 William L. Gibbons District Attorney General Ms. Rosemary Andrews Asst. District Attorney General 201 Poplar Avenue - Third Floor Memphis, TN 38103 Judge: HAYES First Paragraph: The appellant, Richard Walker, appeals the sentence imposed by the Shelby County Criminal Court following the entry of guilty pleas to two counts of vehicular assault. Pursuant to the negotiated plea, the appellant received concurrent two year sentences on each count. The manner of service was submitted to the trial court for determination. Following a sentencing hearing, the trial court suspended all but one hundred and twenty days of the appellant's sentences. Additionally, the appellant was placed on probation for a period of four years and was ordered to perform one hundred hours of community service during this period. In this appeal, the appellant contends that the trial court improperly denied his request for total probation. http://www.tba.org/tba_files/TCCA/WALKERR.wpd
CURTIS WATKINS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DANIEL SEWARD PAUL G. SUMMERS 200 Jefferson Ave, Ste 210 Attorney General and Reporter Memphis, TN 38103 PATRICIA C. KUSSMANN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM GIBBONS District Attorney General JANET SHIPMAN Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge: SMITH First Paragraph: The Petitioner, Curtis Watkins, appeals the order of the Shelby County Criminal Court denying his petition for post-conviction relief. The Petitioner pled guilty to aggravated rape in 1981 and received a sentence of twenty (20) years. In 1992, he filed the present petition alleging that, (1) his guilty plea was involuntary because he was not advised of his right against self-incrimination, and (2) that he received ineffective assistance of counsel. The trial court denied the petition after an evidentiary hearing. After a thorough review of the record before this Court, we affirm the trial court's judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/watkinc_ord.wpd
BRIAN ORLANDUS WILLIAMSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Jeffrey S. Glatstein Paul G. Summers 200 Jefferson Avenue Attorney General and Reporter Suite 202 Memphis, TN 38103 R. Stephen Jobe Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 William L. Gibbons District Attorney General Rosemary S. Andrews Asst. District Attorney General 201 Poplar Avenue, Third Floor Memphis, TN 38103 Judge: HAYES First Paragraph: The appellant, Brian Orlandus Williamson, appeals from the denial of his petition for post-conviction relief by the Shelby County Criminal Court. On January 15, 1997, pursuant to a negotiated plea agreement, the appellant entered guilty pleas to thirteen offenses resulting in an effective sentence of twenty years. On appeal, the appellant collaterally challenges his convictions upon grounds (1) that his pleas were involuntarily entered and (2) that he received the ineffective assistance of counsel. http://www.tba.org/tba_files/TCCA/williambo.wpd

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