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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