TBALink Opinion-Flash

March 31, 1997 -- Volume #3 -- Number #035

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

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08-New Opinions From TCA
21-New Opinions From TCCA

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TBALink Chief Editor


ROCK ABOU-SAKHER
vs.
HUMPHREYS COUNTY, TENNESSEE and 
HUMPHREYS COUNTY AIRPORT AUTHORITY

Court:TCA

Attorneys: 

For the Plaintiff/Appellant:            For the Defendants/Appellees:
    
Calvin P. Turner                        John Lee Williams
Lebanon, Tennessee                      Waverly, Tennessee
                         
Judge: KOCH

First Paragraph:

This appeal involves a dispute between Humphreys County and the former
fixed-base operator of the Humphreys County Airport.  After the county
declined to renew the fixed-base operator's lease and hired a full
time airport manager, the former fixed-base operator filed suit in the
Chancery Court for Humphreys County seeking a declaration that his
lease remained in effect and challenging his termination as part-time
airport manager.  The trial court heard the case without a jury and
found that the fixed-base operator's lease had expired and that the
plaintiff was not entitled to reinstatement as part-time airport
manager.  We affirm the judgment. AFFIRMED.

URL:http://www.tba.org/tba_files/TCA/ABOU-SAK_OPN.WP6
Opinion-Flash

CORNELIA H. BOONE
vs.
CHARLES P. BOONE

Court:TCA

Attorneys:   

JOE M. DUNCAN
BURCH, PORTER & JOHNSON
Memphis, Tennessee
Attorney for Appellant

LEO BEARMAN, JR.
BAKER, DONELSON, BEARMAN & CALDWELL
Memphis, Tennessee
Attorney for Appellee                       

Judge: HIGHERS

First Paragraph:

In this divorce action, Cornelia Boone (the "Plaintiff") was awarded a
divorce from Charles Boone (the "Defendant") on the grounds of
inappropriate marital conduct.  The trial court awarded the parties'
residence at Chambers Chapel to the Plaintiff and ordered the
Defendant to pay the existing mortgage on the property. The defendant
was also ordered to pay $4500.00 per month in alimony for two years
and $3000.00 per month in alimony for the following ten years. The
trial court upheld a prenuptial agreement which was entered into by
the parties two days prior to their marriage.  Pursuant to the terms
of the  prenuptial agreement, the trial court ordered the Defendant to
pay $10,000.00 in cash to the Plaintiff and all reasonable liabilities
and obligations of the Plaintiff which were incurred with the
Defendant's knowledge and consent.  The Defendant was ordered to
convey to the Plaintiff all of his real and personal property owned
jointly with the Plaintiff.  The trial court further ruled that
neither party has any claim to the appreciation in the other's
separate property.  For the reasons stated hereafter, we modify the
trial court's award of alimony to provide for an award of permanent
alimony, but we affirm the trial court's judgment in all other
respects, including the enforcement of the parties' prenuptial
agreement. AFFIRMED IN PART AND MODIFIED IN PART.

URL:http://www.tba.org/tba_files/TCA/BOONEC_OPN.WP6
Opinion-Flash

MELVIN J. FLOWERS
vs.
CHARLES TRAUGHBER, et al

Court:TCA

Attorneys: 

MELVIN J. FLOWERS, pro se
Nashville, Tennessee

CHARLES W. BURSON
Attorney General & Reporter
PATRICIA C. KUSSMANN
Assistant Attorney General
Nashville, Tennessee
Attorneys for Appellees                         

Judge: HIGHERS

First Paragraph:

In this action, Melvin Flowers ("Flowers") filed a petition for writ
of certiorari or, alternatively, a writ of habeas corpus in the
chancery court seeking judicial review of the Parole Board's ("Board")
decision to postpone his parole eligibility hearing until he received
an updated psychological evaluation.  The chancery court denied
Flowers' petition for writ of certiorari and held that the Board did
not act arbitrarily, capriciously or in excess of its jurisdiction in
making its decision to delay Flowers' parole eligibility hearing. 
Flowers has appealed the judgment of the chancery court, arguing that
his constitutional rights were violated by the Board's decision to
defer his parole hearing.   For the reasons stated hereafter, we
affirm the judgment of the chancery court. AFFIRMED.

URL:http://www.tba.org/tba_files/TCA/FLOWERS_OPN.WP6
Opinion-Flash

BESS HARMON
vs.
STEVE DUNN D/B/A BUD DUNN
AND SON STABLE

And 

WILLIAM "TOBY" SCARBROUGH

Court:TCA

Attorneys: 

Alfred H. Knight,
WILLIS & KNIGHT, Nashville, Tennessee
Attorney for Defendant/Appellant William "Toby" Scarbrough.

William S. Fleming, Columbia, Tennessee
Attorney for Plaintiff/Appellee.                         

Judge: FARMER

First Paragraph:

This is a breach of contract case involving the sale of a Tennessee
Walking Horse known as "Phantom Recall."  The appellee, Bess Harmon,
filed suit against the appellant, William A. "Toby" Scarbrough, after
he stopped payment on a check tendered to Harmon for the purchase of
the horse.  Significant here is the fact that within days of the
tender, but prior to Scarbrough's physical receipt of the documents
transferring ownership, the horse became critically ill and died. 
Thus, the issue is raised as to when the risk of loss passed.  There
are also secondary issues as to whether the horse's physical condition
was materially misrepresented prior to the sale or whether the parties
were operating under a mutual mistake of fact.  The trial court
entered a judgment for Harmon after a bench trial.  For reasons
hereinafter stated, we affirm. AFFIRMED AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/HARMONB_OPN.WP6
Opinion-Flash

JAMES L. HOWARD
vs.
J. HOWARD SHANKLE and BOBBIE J. SHANKLE

Court:TCA

Judge: FARMER

First Paragraph:

The appellant has filed a petition to rehear which, after due
consideration, is respectfully denied.

URL:http://www.tba.org/tba_files/TCA/HOWARDJL_ORD.WP6
Opinion-Flash

JOHN RUSSELL OKERSON
vs.
BARBARA BUHR OKERSON

Court:TCA

Attorneys:     

CHARLES A. SEVIER, The Sevier Law Firm, Memphis, Attorney for
Plaintiff/Appellant.

LARRY RICE and KENDRA H. ARMSTRONG, Rice, Rice, Smith, Bursi, Veazey,
& Amundsen, L.L.P.C., Memphis, Attorneys for Defendant/Appellee.

Judge: TOMLIN

First Paragraph:

These two consolidated appeals stem from a divorce action initiated by
John Russell Okerson ("Plaintiff" or "Husband") against Barbara Buhr
Okerson ("Defendant" or "Wife") in the Circuit Court of Shelby County.
 Following an abbreviated bench trial, the trial judge granted Wife a
divorce on the grounds of inappropriate marital conduct, divided the
party's marital property, awarded Wife custody of the two minor
children and awarded temporary child support and alimony.  The case
was continued to a later date.  During the course of that hearing, it
was announced on behalf of the parties that they had reached a
settlement agreement that equally divided the marital property.  In
addition, it was announced that the amount and method of payment of
alimony by Husband to Wife had been finalized, along with the payment
of child support and some attorney fees. MODIFIED IN PART AND AFFIRMED
IN PART.

URL:http://www.tba.org/tba_files/TCA/OKERSON_OPN.WP6
Opinion-Flash

BOWDOIN GRAYSON SMITH
vs.
GINGER LEE MARENCHIN SMITH

Court:TCA

Attorneys:  

MIKE W. BINKLEY
150 Second Avenue North
Suite 300
Nashville, TN 37201
    Attorney for Plaintiff-Appellee.

JOHN J. HOLLINS
HOLLINS, WAGSTER & YARBROUGH, P.C.
Suite 2210, Sun Trust Center
424 Church Street
Nashville, TN 37219
    Attorney for Defendant-Appellant.
                        
Judge: FRANKS

First Paragraph:

In this divorce action, the wife contends the Trial Judge did not
follow the guidelines in awarding child support, and the husband
contends that the Court erred in the division of marital assets, and
in the award of alimony and attorney's fees to the wife. AFFIRMED IN
PART, MODIFIED IN PART, AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/SMITHS_OPN.WP6
Opinion-Flash

GINGER DIANNE GRIGGS TURNER
vs.
ROBERT PHILLIPS TURNER, JR.

Court:TCA

Attorneys:   

For the Plaintiff/Appellee:         For the Defendant/Appellant:

Kathryn G. Brinton                  David S. Zinn
Nashville, Tennessee                Michael D. Dillon
                                    ZINN AND ASSOCIATES
Philip E. Smith                     Nashville, Tennessee
Nashville, Tennessee
                       
Judge: KOCH

First Paragraph:

This appeal involves the dissolution of an eleven-year marriage.  The
wife first filed a complaint for separate maintenance in the Circuit
Court for Davidson County but later amended the complaint to seek a
divorce.  The husband contested the wife's right to the divorce and to
custody of the children and sought an equitable division of the
marital estate.  The trial court awarded the wife a divorce on the
ground of inappropriate marital conduct and granted her custody of the
children.  On this appeal, the husband takes issue with various
aspects of the division of the marital estate, the provisions for
custody and visitation, the awards for spousal and child support, his
conviction for criminal contempt, and the awards for the wife's
attorney's fees and discretionary costs.  We affirm the trial court's
judgments in all particulars except for the constraints placed on the
husband's dealings with his disability insurance carrier, the
disposition of seventy boxes of the husband's personal property, and
the award for the wife's unpaid attorney's fees. AFFIRMED AS MODIFIED
AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/TURNERGD_OPN.WP6
Opinion-Flash

LEWIS BOLERJACK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:

THOMAS T. WOODALL                   CHARLES W. BURSON
203 Murrell St.                     Attorney General & Reporter
P.O. Box 1075
Dickson, TN  37056-1075             SARAH M. BRANCH                 
(On appeal)                         Counsel for the State
                                    450 James Robertson Pkwy.
TOM W. CRIDER                       Nashville, TN  37243-0493
District Public Defender
107 South Court Square              CLAYBURN PEEBLES
Trenton, TN  38382                  District Attorney General
(at trial & of counsel on appeal)   110 S. College St., Suite 200
                                    Trenton, TN  38382                       

Judge: PEAY

First Paragraph:

The petitioner pled guilty in December 1987 to the first-degree murder
of his wife and received a life sentence.  He filed a petition for
post-conviction relief in June of 1990.  The petition was dismissed
without a hearing and the petitioner appealed.  This Court remanded
the cause to the trial court and a hearing was held on August 30,
1995.  The petition was subsequently dismissed and the petitioner now
appeals that dismissal.  He claims that the petition should not have
been dismissed because he received ineffective assistance of counsel
prior to entering his guilty plea.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/BOLERJAC_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
KEVIN D. CASH

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

MARVIN E. BALLIN                    CHARLES W. BURSON
    -and-                           Attorney General & Reporter
MARK A. MESLER
200 Jefferson Ave., Suite 1250      DEBORAH A. TULLIS       
Memphis, TN  38103                  Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    AMY WEIRICH
                                    Asst. District Attorney General
                                    Criminal Justice Complex
                                    Third Floor
                                    201 Poplar  
                                    Memphis, TN  38103                        

Judge: PEAY

First Paragraph:

The defendant was indicted on March 23, 1995, for unlawful possession
of a controlled substance with intent to sell and for unlawful
possession of a controlled substance with intent to deliver.  On
August 29, 1995, he pled guilty to unlawful possession of marijuana in
excess of 14.175 grams with intent to sell, a Class E felony.  He was
sentenced to sixteen months in the Shelby County Correctional Center
and fined two thousand dollars ($2000).  He petitioned the court to
suspend his sentence, but his request was denied.  It is from this
denial that he now appeals.  After a review of the record, we find
that the trial court was not in error, and we affirm the judgment
below. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/CASHREV_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
RICKY C. CONATSER

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN E. APPMAN                      CHARLES W. BURSON
P.O. Box 99                         Attorney General & Reporter
Jamestown, TN   38556
                                    DARYL J. BRAND
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493
                
                                    WILLIAM PAUL PHILLIPS
                                    District Attorney General

                                    JOHN W. GALLOWAY, JR.
                                    Asst. District Attorney General
                                    P.O. Box 99 
                                    Jamestown, TN   38556
                                                        

Judge: PEAY

First Paragraph:

The defendant was indicted for possessing tylox capsules, containing
oxycodone, a schedule II controlled substance, with intent to sell;
possessing methadone, a schedule II controlled substance, with intent
to sell; and possessing approximately 28.7 grams of marijuana with
intent to sell.  He filed a motion to suppress evidence obtained
pursuant to a search of his residence, which the court below denied
after a hearing.  He subsequently pled guilty to felonious possession
of oxycodone, possession of methodone, and possession of marijuana. 
In conjunction with his guilty plea, the defendant properly reserved
certified questions of law regarding the efficacy of the search
warrant upon which the incriminating evidence was seized.  After our
review of the record and analysis of the questions reserved, we affirm
the judgment below. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/CONATSER_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
NORMAN G. COPELAND

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

ONNIE L. WINEBARGER                 CHARLES W. BURSON
Attorney for the Appellant          Attorney General and Reporter

JOHN H. LITTLE                      MICHAEL J. FAHEY, II
Attorney for the Appellant          Assistant Attorney General
P.O. Box 397                        450 James Robertson Parkway
Livingston, TN 38570                Nashville, TN 37243

                                    BILL GIBSON
                                    District Attorney General

                                    OWEN G. BURNETT
                                    Asst District Attorney General
                                    P.O. Box 706
                                    Livingston, TN 38570                        

Judge: WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure.  The Defendant, Norman Copeland, was convicted by
an Overton County jury of possession of more than .5 grams of cocaine
with intent to sell or deliver.  The jury imposed a fine of one
hundred thousand dollars ($100,000.00).  He was sentenced as a Range
II, multiple offender to eighteen years and six months imprisonment in
the Department of Correction.  The Defendant appeals both his
conviction and sentence, raising the following issues:  (1)That the
trial court erred by failing to suppress all the evidence as listed on
a search warrant return; (2) that the trial court erred in not
suppressing evidence seized pursuant to an invalid capias; (3) that
the trial court erred (a) by imposing a sentence of eighteen years and
six months rather than the presumptive minimum of twelve years, and
(b) in finding the Defendant ineligible for community corrections; and
(4) that improper comments made by the prosecution during closing
arguments require a reversal of his conviction.  After carefully
considering the above contentions, we affirm the judgment of the trial
court, but modify the sentence. CONVICTION AFFIRMED; SENTENCE
MODIFIED.

URL:http://www.tba.org/tba_files/TCCA/COPELNDN_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
WILLIAM HANSARD

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

ALAN R. FELTES                      CHARLES W. BURSON
159 West Main St., Suite 1          Attorney General & Reporter
Sevierville, TN 37862           
                                    MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    ALFRED E. SCHMUTZER
                                    District Attorney General
                                    G. SCOTT GREEN
                                    Asst District Attorney General
                                    125 Court Ave., Suite 301
                                    Sevierville, TN 37862                        

Judge: WITT

First Paragraph:

The defendant, William Hansard, was convicted of aggravated assault in
a jury trial in the Circuit Court of Sevier County.  He was sentenced
as a Range I, standard offender to serve three years in the custody of
the Department of Correction. He appeals as of right and contends (1)
that the trial judge erred by ruling as a matter of law that an ex
parte restraining order was in effect at the time of the offense, and
(2) it was error to allow testimony regarding his prior bad acts.
AFFIRMED AS MODIFIED.

URL:http://www.tba.org/tba_files/TCCA/HANSARD_OPN.WP6
Opinion-Flash

GRANT D. HENDERSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Ardena J. Garth                     Charles W. Burson
District Public Defender            Attorney General & Reporter 

Donna Robinson Miller               M. Allison Thompson
Assistant District Public Defender  Counsel for the State
                                    450 James Robertson Parkway
Cynthia A. Lecroy-Schemel           Nashville, TN 37243-0493
Assistant District Public Defender
701 Cherry Street, Suite 300        William H. Cox III
Chattanooga, TN 37402               District Attorney General

                                    Thomas J. Evans
                                    Asst District Attorney General
                                    600 Market Street, Courts Bldg
                                    Chattanooga, TN 37402                         

Judge: SUMMERS

First Paragraph:

On April 17, 1984 the appellant, Grant D. Henderson, pled guilty to
first degree murder and armed robbery.  He received a life sentence
for first degree murder and thirty-five years for armed robbery.  The
sentences were ordered to run consecutively.  On March 9, 1994 the
appellant filed a post conviction relief petition and alternative
habeas corpus petition alleging ineffective assistance of counsel and
that his plea was involuntary.  His petition was dismissed as
untimely. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/HENDERSG_OPN.WP6
Opinion-Flash

LARRY HUNTER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

C. Anne Tipton                      John Knox Walkup
140 North Third Street              Attorney General and Reporter
Memphis, TN 38103                           
                                    Clinton J. Morgan
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    John W. Pierotti
                                    District Attorney General

                                    Amy J. Weirich
                                    Assistant District Attorney
                                    201 Poplar - Third Floor
                                    Criminal Justice Complex
                                    Memphis, TN 38103
                         

Judge: Barker

First Paragraph:

The appellant, Larry Hunter, appeals as of right the denial of his
petition for post-conviction relief by the Shelby County Criminal
Court.  On appeal, appellant contends that the trial court erred in
finding that he did receive the effective assistance of counsel, and
that he entered his guilty plea knowingly and voluntarily.  Finding no
error in the trial court's ruling, we affirm the denial of
post-conviction relief. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/HUNTERL_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JAMES E. IRWIN

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL J. FLANAGAN                 CHARLES W. BURSON
95 White Bridge Rd.                 Attorney General & Reporter
Suite 208
Nashville, Tennessee 37201          EUGENE J. HONEA
                                    Asst. Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493

                                    DAN M. ALSOBROOKS
                                    District Attorney General

                                    SUZANNE LOCKERT 
                                    Asst. District Attorney General
                                    P.O. Box 580
                                    Charlotte, Tennessee 37036
                     

Judge: STAFFORD

First Paragraph:

Defendant Irwin pled guilty to driving under the influence of an
intoxicant (DUI), was fined $350 and received eleven (11) months and
twenty-nine (29) days, all of which was suspended except forty-eight
(48) hours.  With the consent of the state and the trial court, Irwin
explicitly reserved a certified question of law pursuant to Tennessee
Rules of Criminal Procedure 37 (b)(2)(i). The certified question of
law for our review is "whether or not the detention of the defendant
in this case, under the policy of the Dickson County Sheriff's
Department, constitutes punishment so as to preclude further
prosecution on double jeopardy grounds or violates the defendant's due
process rights." The trial court denied Irwin's motion to dismiss.  We
affirm the judgment of the trial court. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/IRWINJE_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JOHN JAMES

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:

THOMAS F. BLOOM                     CHARLES W. BURSON
500 Church Street, 5th Floor        Attorney General and Reporter
Nashville, TN 37219             
                                    MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON, III
                                    District Attorney General
    
                                    WILLIAM R. REED
                                    Asst District Attorney General
                                    Washington Sq., Suite 500
                                    222-2nd Avenue N.
                                    Nashville, TN 37201-1649
Judge: STAFFORD

First Paragraph:

This is a direct appeal as a result of a jury verdict of guilty of one
count of Rape of a Child, six (6) counts of Aggravated Rape, and six
(6) counts of Aggravated Sexual Battery.  Some sentences were run
concurrently and others consecutively resulting in an effective
sentence of seventy (70) years as a Range I, Standard Offender. 
AFFIRMED IN PART, REVERSED IN PART.

URL:http://www.tba.org/tba_files/TCCA/JAMESJHN_OPN.WP6
Opinion-Flash

DONNIE E. JOHNSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

For the Appellant:                  For the Appellee:

James V. Ball                       John Knox Walkup
217 Exchange Avenue                 Attorney General of Tennessee
Memphis, TN 38115                       and
     and                            Kathy Morante
Dwight Duncan                       Asst Attorney General of Tenn.      
5507 Winchester Road                450 James Robertson Parkway     
Memphis, TN 38115                   Nashville, TN 37243-0493
(AT TRIAL)         
                                    John W. Pierotti, Jr.
Paul J. Morrow, Jr.                 District Attorney General
1505 Compton Avenue                     and
Nashville, TN 37212                 Janet Shipman
(ON APPEAL)                         Asst District Attorney General
                                    201 Poplar Avenue
                                    Memphis, TN 38103-1947                       

Judge: Tipton

First Paragraph:

This capital post-conviction case was remanded to us by the Tennessee
Supreme Court for reconsideration in light of its opinion in House v.
State, 911 S.W.2d 705 (Tenn. 1995), defining concepts of waiver and
previous determination in the post conviction context.  The present
case involves the petitioner's second petition for post conviction
relief from both his conviction for first degree murder of his wife
and his resulting death penalty sentence.  The Shelby County Criminal
Court dismissed the petition without an evidentiary hearing,
concluding that all grounds raised had been either waived or
previously determined.  In this court's first opinion, it reversed the
trial court, holding that the concept of waiver of a ground for relief
provided in T.C.A. S 40 30-112(b) allowed the petitioner to rebut the
presumption of waiver by showing that he, personally, did not
knowingly and understandingly forego the assertion of a ground at a
previous post-conviction proceeding.  Donnie Edward Johnson v. State,
No. 02C01-9111-CR-00237, Shelby County (Tenn. Crim. App. Mar. 23,
1994).  After rebriefing and reargument by the parties, we have
concluded that the trial court's dismissal of the second petition was
proper.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/JOHNSON3_OPN.WP6
Opinion-Flash

HORACE JONES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

Horace Jones                        John Knox Walkup
Cold Creek Correctional Facility    Attorney General and Reporter
Route 2, Box 1000                           
Henning, TN 38041                   William David Bridgers                                  
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Mary Anne Queen
                                    Legal Assistant

                                    John W. Pierotti
                                    District Attorney General

                                    Reginald Henderson
                                    Assistant District Attorney
                                    201 Poplar - Third Floor
                                    Criminal Justice Complex
                                    Memphis, TN 38103                        

Judge: Barker

First Paragraph:

The appellant, Horace Jones, appeals the dismissal of his
post-conviction petition filed in the Criminal Court of Shelby County.
 The trial court summarily dismissed appellant's pro se petition
because it was filed outside the applicable statute of limitations. 
Finding no error in the trial court's ruling, we affirm the dismissal
of the petition. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/JONES4_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
CHRISTOPHER CLAY KENNEDY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

ERNEST W. WILLIAMS                  CHARLES W. BURSON
320 Main Street, Suite 101          Attorney General and Reporter
Franklin, TN 37064
                                    MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOSEPH D. BAUGH, JR.
                                    District Attorney General

                                    JEFF BURKS
                                    Asst District Attorney General
                                    P.O. Box 937
                                    Franklin, TN 37064                         

Judge: STAFFORD

First Paragraph:

The appellant, Christopher Clay Kennedy, appeals his convictions from
the Williamson County Circuit Court.  He was convicted by a jury of
two (2) counts of reckless endangerment with a deadly weapon (a Class
E felony) and one (1) count of leaving the scene of an accident.  He
was ordered to serve concurrent sentences of three (3) years for each
count of felony reckless endangerment and 30 days for leaving the
scene of an accident.  On appeal, Kennedy challenges the sufficiency
of the convicting evidence for two counts of reckless endangerment. 
Secondly, he argues that the trial court erred in not "specifically
and separately" charging the jury on both felony reckless endangerment
and misdemeanor reckless endangerment.  He further claims that the
jury verdict form misled and confused the jury by creating an
inference of guilt.  Finally, he contends that his due process rights
have been violated under the Constitutions of the United States and
the State of Tennessee because the statutory definitions of "reckless
endangerment" and "deadly weapon" are vague.  We affirm the judgment
of the trial court. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/KENNDYCC_OPN.WP6
Opinion-Flash

JIMMY LEE KEY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

Thomas G. Slaughter                 Charles W. Burson
Attorney at Law                     Attorney General & Reporter 
602 S. Gay Street, Suite 600
Knoxville, TN 37902                 Sandy R. Copous
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Randall E. Nichols
                                    District Attorney General

                                    C. Leon Franks
                                    Assistant District Attorney 
                                    General City County Building
                                    400 Main, P.O. Box 1468
                                    Knoxville, TN 37901-1468                          

Judge: SUMMERS

First Paragraph:

In 1969, the appellant, Jimmy Lee Key, pled guilty to seven counts of
theft and burglary.  In June 1992, he filed a petition for
post-conviction relief alleging ineffective assistance of counsel. 
The petition was dismissed because the statute of limitations had
expired.  He appeals alleging that his claim of ineffective assistance
of counsel falls within the Burford exception to the statute of
limitations. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/KEYJL_OPN.WP6
Opinion-Flash

MARVIN ANTHONY MATHEWS
vs.
STATE OF TENNESSEE

Court:TCCA

Judge: WOODALL

First Paragraph:

This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules.  Finding that the
appellant has failed to show that he is entitled to habeas corpus
relief or that the chancery court had jurisdiction to consider the
appellant's claims, we affirm the denial of the appellant's petition
for habeas corpus relief.

URL:http://www.tba.org/tba_files/TCCA/MATHEWSM_ORD.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
CASSON MARCEL MCCOY

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:


JOHN H. NORTON, III                 CHARLES W. BURSON
P.O. Drawer 37                      Attorney General & Reporter
Shelbyville, TN   37160
     (At new trial motion 
     and on appeal)                 LISA A. NAYLOR
                                    Asst. Attorney General
THOMAS F. BLOOM                     450 James Robertson Pkwy.      
500 Church St., 5th Fl.             Nashville, TN  37243-0493
Nashville, TN   37219               
     (On appeal)                    MIKE MCCOWN
                                    District Attorney General
DAVID VINCENT
Ste. 906, Stahlman Bldg.            ROBERT G. CRIGLER
211 Union St.                       Asst. District Attorney General
Nashville, TN   37201               Bedford County Courthouse                  
    (At trial)                      Shelbyville, TN 37160       
                       
Judge: PEAY

First Paragraph:

The defendant was indicted for the sale of less than .5 grams of
cocaine. A jury convicted him of this offense.  He subsequently filed
a motion for new trial alleging several grounds in support thereof. 
At the hearing on this motion, however, defense counsel waived all
grounds other than ineffective assistance of counsel.  After an
evidentiary hearing, the trial court denied the motion.  The defendant
now appeals as of right.  We affirm the judgment below. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/MCCOYCM_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
BRIAN M. MINOUX

Court:TCCA

Attorneys:   

FOR THE APPELLANT                   FOR THE APPELLEE

John Pellegrin                      John Knox Walkup
113 West Main Street                Attorney General and Reporter
Gallatin, Tennessee 37066           450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493
                    
                                    William D. Bridgers                                     
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493

                                    Lawrence R. Whitley
                                    District Attorney General
                                    113 West Main Street
                                    Gallatin, Tennessee 37066

                                    Dee D. Gay
                                    Asst District Attorney General
                                    113 West Main Street
                                    Gallatin, Tennessee 37066                       

Judge: Barker

First Paragraph:

The Appellant, Brian M. Minoux, appeals as of right the judgment of
the Sumner County Criminal Court affirming the Sumner County assistant
district attorney's revocation of pretrial diversion.  He presents two
arguments on appeal.  First, he contends that the trial court erred
when it affirmed the revocation of the memorandum of understanding. 
Second, that the November, 1991, memorandum of understanding expired
in November of 1993 and that the charges against him should have been
dismissed.  After a careful review of the record on appeal we affirm
the trial court's findings. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/MINOUX_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
ROBERT EUGENE PFOFF, SR.

Court:TCCA

Attorneys:   

For the Appellant:                  For the Appellee:

PAUL G. WHETSONE                    JOHN KNOX WALKUP
Attorney at Law                     Attorney General and Reporter
502 North Jackson St.   
Morristown, Tn  37814               ELIZABETH T. RYAN
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    C. BERKELEY BELL, JR.
                                    District Attorney General

                                    VICTOR VAUGHN and 
                                    JOHN DUGGER
                                    Asst. District Attorneys General
                                    510 Allison Street
                                    Morristown, TN  37814                       

Judge: Hayes

First Paragraph:

The appellant, Robert Eugene Pfoff, Sr., brings this interlocutory
appeal pursuant to Tenn. R. App. P. 9, contending that the district
attorney general abused his discretion in denying the appellant's
application for pre-trial diversion and that he was denied an adequate
hearing of his petition for writ of certiorari in violation of the due
process provisions of the Tennessee and United States constitutions. 
Following a review of the record, we affirm the judgment of the trial
court. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/PFOFF_OPN.WP6
Opinion-Flash

SEAN RAINER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:


A. C. WHARTON                       CHARLES W. BURSON
Public Defender                     Attorney General & Reporter

WALKER GWINN                        DEBORAH A. TULLIS
Asst. Public Defender               Asst. Attorney General
201 Poplar - Suite. 2-01            450 James Robertson Pkwy.   
Memphis, TN   38103                 Nashville, TN  37243-0493
     (On appeal)                
                                    JOHN W. PIEROTTI
DIANE THACKERY                      District Attorney General
Asst. Public Defender               
201 Poplar - 2nd Fl.                REGINALD HENDERSON
Memphis, TN   38103                 Asst. District Attorney
     (At hearing)                   201 Poplar Ave. - 3rd Fl.
                                    Memphis, TN   38103                         

Judge: PEAY

First Paragraph:

The petitioner was convicted by a jury of second-degree murder and
attempted first-degree murder, from which no appeal was perfected.  He
has filed this petition for post-conviction relief alleging that he
received ineffective assistance of counsel because his lawyer failed
to file an appeal on his behalf.  After a hearing, the court below
denied relief.  After reviewing the record, we affirm the judgment.
AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/RAINERS_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JEFFERY L. VAUGHN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

G. Stephen Davis                    Charles W. Burson
District Public Defender            Attorney General & Reporter 
208 North Mill Avenue
Dyersburg, TN 38024                 Clinton J. Morgan
                                    Counsel for the State
Charles M. Agee, Jr.                450 James Robertson Parkway
Attorney at Law                     Nashville, TN 37243-0493
P.O. Box 264    
Dyersburg, TN 38024                 C. Phillip Bivens
(At Trial Only)                     District Attorney General
    
                                    James E. Lanier 
                                    Asst. Dist. Attorney General
                                    P.O. Box E
                                    Dyersburg, TN 38024                         

Judge: SUMMERS

First Paragraph:

The appellant, Jeffery Vaughn, was convicted by a jury of possession
of cocaine with intent to sell.  He was sentenced to 16 years as a
Range II offender.   He appeals alleging the evidence was insufficient
to convict and that his sentence was excessive.  Upon review, we
affirm the judgment of conviction and sentence.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/VAUGHNJ_OPN.WP6
Opinion-Flash

TERRY WARE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:


J. BLAKE ANDERSON                   CHARLES W. BURSON
Suite 110, Pythian Bldg.            Attorney General & Reporter
200 E. Main St.
P.O. Box 1771                       DEBORAH A. TULLIS       
Jackson, TN  38302-1771             Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493

                                    JERRY WOODALL
                                    District Attorney General

                                    DON ALLEN
                                    Asst. District Attorney General
                                    P.O. Box 2825
                                    Jackson, TN  38302                        

Judge: PEAY

First Paragraph:

The petitioner pled guilty in September 1994 to aggravated burglary
and aggravated rape.  He received an effective sentence of fifteen
years which is to run  consecutively to the remainder of a previous
sentence in which his probation status was revoked.  He filed a
petition for post-conviction relief in October 1994 and counsel was
appointed.  After a hearing, his petition was denied.  It is from this
denial that he now appeals.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/WARE2_OPN.WP6
Opinion-Flash

DAVID WILLIAMS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

David B. Hill                       Charles W. Burson
Attorney at Law                     Attorney General & Reporter 
301 E. Broadway
Newport, TN 37821                   Sandy R. Copous
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Alfred C. Schmutzer, Jr.
                                    District Attorney General

                                    Richard R. Vance    
                                    Asst District Attorney General
                                    339-A E. Main Street
                                    Newport, TN 37821                        

Judge: SUMMERS

First Paragraph:

The appellant, David Williams, pled guilty to six offenses in Cocke
County.  He was sentenced to 12 years as a Range I, standard offender.
 He filed a post-conviction petition alleging that he received
ineffective assistance of counsel.  After a hearing, the trial court
dismissed the petition.  He appeals the dismissal.  Upon review, we
affirm the judgment of the trial court. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/WILLIA1_OPN.WP6

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