December 3, 1999
Volume 5 -- Number 165

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
10 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

						
STATE OF TENNESSEE 
VS. 
CECIL U. COBB, JR.

Court:TCCA

Attorneys:


For the Appellant:              For the Appellee:

Gerald L. Gulley, Jr.           Paul G. Summers
Contract Appellate Defender     Attorney General and Reporter
P. O. Box 1708  
Knoxville, TN  37901-1708       Marvin S. Blair, Jr.
                                Assistant Attorney General             
    (APPEAL ONLY)               Criminal Justice Division
                                425 Fifth Avenue North
and                             2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493            
Leslie S. Hale  
Office of the Public Defender                       
P. O. Box 839                   H. Greeley Wells, Jr.       
Blountville, TN  37617          District Attorney General

                                Robert H. Montgomery
                                Asst. District Attorney General
Thomas McKinney                 Blountville, TN  37617
Attorney at Law                     
222 E. Center Street
Kingsport, Tn  37660

Judge: HAYES

First Paragraph:

The appellant, Cecil U. Cobb, Jr., was convicted by a Sullivan County
jury of the misdemeanor offenses of possession of Dihydrocodeinone, a
Schedule III controlled substance; simple possession of marijuana;
failure to obey a traffic signal; and driving under the influence of
an intoxicant.  The trial court imposed an effective sentence of
twenty-three months, twenty-eight days.  On appeal, the appellant
challenges the sufficiency of the evidence for each of his four
convictions and the chain of custody related to the possession of the
marijuana and Schedule III drugs.

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





STATE OF TENNESSEE 
VS. 
JIMMY J. DAVIS

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

MARK E. STEPHENS            PAUL G. SUMMERS
District Public Defender    Attorney General & Reporter

PAULA R. VOSS               ELLEN H. POLLACK
JOHN HALSTEAD               Assistant Attorney General
Assistant Public Defenders  425 Fifth Avenue North
1209 Euclid Avenue          Nashville, TN 37243
Knoxville, TN 37921
                            RANDALL E. NICHOLS
                            District Attorney General

                            ROBERT L. JOLLEY
                            Assistant District Attorney
                            City-Courty Building
                            Knoxville, TN 37902

Judge: SMITH

First Paragraph:

The appellant, Jimmy J. Davis, was convicted by a Knox County jury of
one (1) count of misdemeanor assault, and the trial court sentenced
him to eleven (11) months and twenty-nine (29) days in the county
jail.  On appeal, the appellant challenges the sufficiency of the
evidence for his conviction for misdemeanor assault.  After thoroughly
reviewing the record before this Court, we affirm the trial court's
judgment.

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





STATE OF TENNESSEE 
VS. 
MICHAEL E. DEAN

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

WILLIAM DOBSON (At trial)       PAUL G. SUMMERS 
Assistant Public Defender       Attorney General and Reporter

KEITH A. BLACK (On appeal)      ELIZABETH B. MARNEY 
424 Georgia Avenue              Assistant Attorney General 
Chattanooga, TN 37402           425 Fifth Avenue North 
                                Nashville, TN 37243

                                BILL COX 
                                District Attorney General

                                JOSEPH REHYANSKI 
                                Assistant District Attorney 
                                General Courts Building -
                                600 Market Street 
                                Chattanooga, TN 37402

Judge: WELLES

First Paragraph:

The Defendant, Michael E. Dean, was indicted for the robbery of
Margaret Jackson and the assault of Eric Carter, arising out of events
occurring on December 6, 1996.  A Hamilton County jury found the
Defendant guilty of the robbery but acquitted him of the assault.  He
now appeals his robbery conviction alleging insufficiency of the
evidence and prosecutorial misconduct.  We affirm the judgment of the
trial court.

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





STATE OF TENNESSEE
VS.
TINA EARLS

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Shawn Graham                    Paul G. Summers 
Office of the Public Defender   Attorney General of Tennessee 
419 High Street                 and 
Maryville, Tennessee 37804      Clinton J. Morgan 
(AT TRIAL)                      Assistant Attorney General of Tennessee
                                425 Fifth Avenue North 
                                Nashville, TN 37243 
                                
Gerald L. Gulley, Jr.           Michael L. Flynn 
Post Office Box 1708            District Attorney General
Knoxville, TN   37901-1708          
                        
(ON APPEAL)                     and Kirk E. Andrews 
                                Assistant District Attorney General 
                                363 Court Street
                                Maryville, TN 37804

Judge: TIPTON

First Paragraph:

The defendant, Tina Earls, appeals as of right from her conviction
following a guilty plea in the Blount County Criminal Court for theft
of property valued under five-hundred dollars, a Class A misdemeanor.
The trial court sentenced the defendant to eleven months and
twenty-nine days in the Blount County Jail, with probation eligibility
after serving fifty percent of the sentence.  The defendant contends
that the trial court should have been sentenced her to full probation
or to community corrections.  We affirm the judgment of the trial
court.

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





STATE OF TENNESSEE
VS.
MICHELLE FRANZE

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

John E. Herbison                Paul G. Summers 
Attorney for Appellant          Attorney General and Reporter 
2016 Eighth Avenue
South Nashville, TN  37204      Erik W. Daab Assistant Attorney
                                General Criminal Justice Division 
(ON APPEAL)                     425 Fifth Avenue North 
                                2d Floor, Cordell Hull Building 
                                Nashville, TN 37243-0493
Mack Garner 
District Public Defender 
419 High Street                 Michael L. Flynn 
Maryville, TN  37804            District Attorney General

(AT TRIAL)                      Edward P. Bailey, Jr. 
                                Asst. District Attorney General 
                                363 Court Street 
                                Maryville, TN  37804

Judge: HAYES

First Paragraph:

The appellant, Michelle Franze, was found guilty by a jury of theft of
property over $10,000.  The Blount County Criminal Court imposed a
split confinement sentence of three years with 210 days confinement
followed by two years, 5 months supervised probation.  At trial, the
appellant defended upon the affirmative defense of "claim of right."
On appeal, she contends that "the trial court's failure to instruct
the jury on the meaning of the phrase 'claim of right' constitutes
plain and prejudicial error."

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





DONALD HIGBEE and KIMBERLY HIGBEE
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANTS:
LEWIS A. HOLD (for Donald Higbee)
Public Defender
P.O. Box 38
Jonesborough, TN 37659

MITZI PRIVETTE (for Kimberly Higbee)
Attorney at Law
142 E. Market Street
Johnson City, TN 37601

GERALD L. GULLEY, JR. 
(on appeal for both)
Appellate Defender
P.O. Box 1708
Knoxville, TN 37901-1708

FOR THE APPELLEE:
PAUL G. SUMMERS
Attorney General & Reporter

MICHAEL J. FAHEY, II
Asst. Attorney General
425 Fifth Ave. North
2d Floor, Cordell Hull Bldg.
Nashville, TN  37243-0493

JOE C. CRUMLEY, JR.
District Attorney General

ANTHONY CLARK
Asst. District Attorney General
101 E. Market Street
Johnson City, TN 37605

LISA RICE
Asst. District Attorney General
P.O. Box 38
Jonesborough, TN 37659


Judge:  WITT

First Paragraph:

The defendants, Donald Higbee and Kimberly Higbee, appeal the
Washington County Criminal Court's imposition of confinement for their
conviction of child neglect, a Class D felony.  The defendants pleaded
guilty to child neglect and agreed to a sentence outside the range for
the offense, but the manner of service was left for determination by
the trial court.  At the sentencing hearing, the trial court sentenced
the defendants to serve seven years in the Tennessee Department of
Correction.  In this appeal the defendants claim that they should have
received an alternative sentence.  After a review of the record, the
briefs of the parties, and the applicable law, we affirm the sentence.

http://www.tba.org/tba_files/TCCA/HigbeeD&K.wpd




STATE OF TENNESSEE
VS.
JIMMY D. LACKEY

Court:TCCA

Attorneys:
FOR THE APPELLEE:       FOR THE APPELLANT:

GREGORY D. SMITH        PAUL G. SUMMERS
One Public Square       Attorney General & Reporter
Clarksville, TN 37040           
                        ELLEN H. POLLACK
                        Assistant Attorney General
                        425 Fifth Avenue North
                        Nashville, TN 37243

                        WILLIAM PAUL PHILLIPS
                        District Attorney General

                        CLIFTON SEXTON
                        Assistant District Attorney
                        Scott Co. Courthouse
                        Huntsville, TN 37756

Judge:  SMITH

First Paragraph:

The appellant, Jimmy Dewayne Lackey, was convicted of one (1) count of
voluntary manslaughter upon a bench trial in Scott County.  The trial
court sentenced him as a Range I, Standard Offender, to six (6) years
in community corrections.  On appeal, the appellant claims that the
trial court erred in denying his request for judicial diversion
pursuant to Tenn. Code Ann. S 40-35-313.  After reviewing the record
before this Court, we conclude that the trial court erred in failing
to state on the record its reasons for denying judicial diversion;
thus, we reverse the judgment of the trial court and remand for
further proceedings.

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





STATE OF TENNESSEE
VS.
MACARTHUR COFFEY    

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

JULIE A. RICE               PAUL G. SUMMERS
P.O. Box 426                Attorney General & Reporter
Knoxville, Tennessee 37901
                            CLINTON J. MORGAN
CHARLES HERMAN              425 Fifth Avenue North
P.O. Box 337                Nashville, Tennessee 37243
Jacksboro, Tennessee 37757
                            MIKE RIPLEY
                            Assistant District Attorney
                            P.O. Box 326 
                            Jacksboro, Tennessee 37757

Judge:  WALKER

First Paragraph:

Appellant appeals the judgment of the trial court with regard to the
manner of service of sentence.

Appellant entered a plea of guilty to three counts of burglary of a
vehicle, and one count of theft of over $1,000.00, with agreed
sentences of two years as a Range I offender for each of the three
auto-burglary charges, and four years as a Range I offender for the D
felony of theft, with the further agreement that the sentences would
run concurrently.   The trial court determined the manner of service
of his sentences.

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





STATE OF TENNESSEE
VS.
JOHNNY WADE MEEKS

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:
JERRY S. SLOAN              PAUL G. SUMMERS
Attorney at Law             Attorney General & Reporter
730 Cherry St., Ste. C
Chattanooga, TN 37402       MARVIN S. BLAIR, JR.
                            Assistant Attorney General
                            425 Fifth Ave. North
                            2d Floor, Cordell Hull Bldg.
                            Nashville, TN  37243-0493

                            WILLIAM H. COX, III
                            District Attorney General
                            
                            YOLANDA MITCHELL    
                            Asst. District Attorney General
                            600 Market St., Ste. 310
                            Chattanooga, TN 37402

Judge:  WITT

First Paragraph:

The defendant, Johnny Wade Meeks, appeals from his conviction of
driving under the influence.  Meeks received his conviction in the
Hamilton County Criminal Court at the conclusion of a jury trial.  The
trial court sentenced him to serve 48 hours in the county jail, with
the balance of the eleven-month, 29 day sentence to be served on
probation.
http://www.tba.org/tba_files/TCCA/meeksjw.wpd





TRAY D. TURNER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

HEIDI A. BARCUS                 PAUL G. SUMMERS
LONDON & AMBURN, P.C.           Attorney General & Reporter
1716 Clinch Avenue
Knoxville, Tennessee 37916      ELLEN H. POLLACK
                                Assistant Attorney General
                                425 Fifth Avenue North
TRAY D. TURNER                  Nashville, Tennessee 37243
pro se
                                RANDALL E. NICHOLS
                                District Attorney General
                                City-County Building
                                Knoxville, Tennessee 37902

Judge:  WALKER

First Paragraph:

The appellant appeals as of right from the denial of his request for
re-calculation of his jail credit.  The trial court found that
appellant received the correct amount of jail credit and dismissed the
petition. 

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

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