TBALink Opinion-Flash

May 20, 1997 -- Volume #3 -- Number #055

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.

This Issue IN THIS ORDER:
03-New Opinions From TSC
01-New Opinions From TSC-Rules
08-New Opinions From TSC-Workers Comp Panel
03-New Opinions From TCA
23-New Opinions From TCCA

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE
vs. 
HENRY EUGENE HODGES

Court:TSC

First Paragraph:

A petition for rehearing has been filed on behalf of appellant, Henry
Eugene Hodges.  After consideration of the same, the Court is of the
opinion that the petition should be and the same hereby is denied at
the cost of appellant. The members of the Court adhere to the
positions stated in the original opinions filed in this cause.

URL:http://www.tba.org/tba_files/TSC/HODGES_ORD.WP6
Opinion-Flash

KAREN ELAINE WHITE KITE
vs.
ARLIN JAY KITE

Court:TSC

Attorneys:    

FOR APPELLANT:                      FOR APPELLEE:

Robert R. Simpson                   William C. Cremins
Eshbaugh, Simpson and Varner        Knoxville, Tennessee
Knoxville, Tennessee
                                    Laura Rule Hendricks
                                    Eldridge, Irvine & Hendricks
                                    Knoxville, Tennessee

FOR AMICI CURIAE:

Theodore R. Kern
Knoxville Legal Aid Society
Knoxville, Tennessee                      


Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether a trial court retains
jurisdiction under Tenn. Code Ann. S 36-3-605 (1990 Repl.) after
failing to conduct a hearing within ten (10) days of service of an ex
parte protective order.  The intermediate appellate court has answered
this question in the negative.  We have reviewed the statutory scheme
and resolved this issue pursuant to the applicable rules of statutory
construction.  We find that the ten-day hearing requirement is merely
a limitation on the duration of the ex parte order and not a
limitation on jurisdiction.  The Court of Appeals' judgment affirming
the trial court's dismissal is reversed.  The case is remanded for
proceedings consistent with this opinion. COURT OF APPEALS REVERSED.

URL:http://www.tba.org/tba_files/TSC/KITEKW_OPN.WP6
Opinion-Flash

EVELENE N. STEIN
vs.
DAVIDSON HOTEL COMPANY

Court:TSC

Attorneys:   

FOR PLAINTIFF/APPELLANT             FOR DEFENDANT/APPELLEE:
Patricia A. Montgomery              John S. Hicks,
WESTLAKE & MARSDEN, P.C.            Stephen H. Biller
Nashville, Tennessee                Katherine A. Brown
                                    BAKER, DONELSON, BEARMAN & 
                                        CALDWELL
                                    Nashville, Tennessee                        
                       

Judge: DROWOTA

First Paragraph:

The plaintiff, Evelene N. Stein, a private employee, was terminated
from her position of banquet captain at the Holiday Inn Crown Plaza
which is owned by defendant, Davidson Hotel Company, a private
employer, because she tested positive on a random drug test.  Stein
brought suit against Davidson alleging seven grounds for relief. 
Davidson filed a motion to dismiss for failure to state a claim and
the trial court granted the motion with respect to five of the seven
claims alleged by Stein.  The Court of Appeals affirmed the trial
court's judgment. TRIAL COURT AND COURT OF APPEALS AFFIRMED.

URL:http://www.tba.org/tba_files/TSC/STEINEN_OPN.WP6
Opinion-Flash

IN RE: JUDICIAL EVALUATION COMMISSION

Court:TSC - Rules

First Paragraph:

Rule 27, Section 5.06, Rules of the Tennessee Supreme Court, is hereby
amended by deleting Section 5.06 and substituting in its place the
following: 5.06  The Judicial Evaluation Commission, or a panel
thereof, shall conduct a public interview with each appellate judge
seeking election or re-election to a full eight (8) year term.  The
Judicial Evaluation Commission's meetings and deliberations shall be
public.

URL:http://www.tba.org/tba_files/TSC_Rules/RULE27_AMD.WP6
Opinion-Flash

EARL EVANS BARRETT
vs.
CITY OF LEBANON and TML RISK
MANAGEMENT POOL, INC.

Court:TSC - Workers Comp Panel

Attorneys:    

For the Appellants:                 For the Appellee:

J. Russell Farrar                   Hugh Green
Christina Douglas                   100 Public Sq.
Farrar & Bates                      Lebanon, TN  37087
211 Seventh St. N., Ste. 320
Nashville, TN  37219                      

Judge: INMAN

First Paragraph:

The plaintiff is a 40-year-old man whose work experience has
essentially been limited to manual labor.  On August 2, 1994, during
the course and scope of his employment by the City of Lebanon and
while using a jackhammer, he sprained a neck muscle while attempting
to dislodge the implement. MODIFIED.

URL:http://www.tba.org/tba_files/TSC_WCP/BARRETEE_OPN.WP6
Opinion-Flash

EDDIE BRYANT
vs.
OPRYLAND U.S.A. INC. and
CONTINENTAL INSURANCE COMPANY   

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellants:                 For the Appellee:

J. Russell Farrar                   Hugh Green
Christina Douglas                   100 Public Sq.
Farrar & Bates                      Lebanon, TN  37087
211 Seventh St. N., Ste. 320
Nashville, TN  37219

Judge: DROWOTA

First Paragraph:

The defendants in this appeal contend that the Chancellor's award of
benefits to the plaintiff on the basis of a percentage to the body as
a whole was error in light of the proof which established injuries
only to both of plaintiff's arms which are scheduled members.  The
panel concludes that the award of benefits on the basis of sixty
percent to the body as a whole should be modified to provide for an
award of sixty percent to both arms.  Tenn. Code Ann. S
50-6-207(3)(A)(ii)(w) (1996 Supp.) The judgment of the trial court is
therefore affirmed as modified. AFFIRMED AS MODIFIED.

URL:http://www.tba.org/tba_files/TSC_WCP/BRYANTE_OPN.WP6
Opinion-Flash

HERBERT EARL CARTER
vs.   
ITT HARTFORD INSURANCE COMPANY
and
SUE ANN HEAD, etc. (SECOND INJURY FUND)

Court:TSC - Workers Comp Panel

Attorneys:

FOR THE APPELLANTS:                    FOR THE APPELLEE:

ROBERT R. DAVIES                       MICHAEL A. WALKER     
P. O. Box 2644                         P. O. Box 1780        
Knoxville, TN 37901                    Jamestown, TN 38556
(FOR ITT HARTFORD)                                          

CHARLES W. BURSON
Attorney General & Reporter
DIANNE STAMEY DYCUS
Senior Counsel, Attorney General's Office
1510 Parkway Towers
404 James Robertson Parkway
Nashville, TN 37243-0499
(FOR SECOND INJURY FUND)                          

Judge: RUSSELL

First Paragraph:

The appellee/employee was working as a truck driver on January 27,
1994, when he was injured in a head-on collision with another truck. 
What complicates this case is that the injured employee had suffered
two serious prior injuries of the same general nature of those
suffered in this accident.  In a 1990 accident he suffered a ruptured
disc and a fractured coccyx.  This was a workers' compensation case,
but the employer was self insured and filed for bankruptcy before a
settlement was made.  Medical records for that injury reflect a 5%
anatomical impairment.  Another back injury at work in 1991 resulted
in a workers' compensation settlement based upon a 20% vocational
disability to the whole body. MODIFIED AND REMANDED.

URL:http://www.tba.org/tba_files/TSC_WCP/CARTERHE_OPN.WP6
Opinion-Flash

NAOMI GENTRY
vs.
LUMBERMENS MUTUAL CASUALTY  
and JACKSON COUNTY HOSPITAL

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                      For the Appellee:

D. Randall Mantooth                     E. Guy Holliman
James Lee Deckard                       William Joseph Butler
Leitner, Moffitt, Williams, Dooley      Farrar & Holliman
    & Napolitan, PLLC                   102 Scottsville Hwy.
2300 First American Center              P. O. Box 280
Nashville, TN 37238                     Lafayette, TN 37083
                         

Judge: INMAN

First Paragraph:

This action was filed January 18, 1995 seeking benefits for a back
injury sustained on April 6, 1994 while employed by the defendant
hospital.  The allegations of the complaint were generally denied,
thus requiring the plaintiff to prove every element of her case by a
preponderance of the evidence, except when relying upon Tenn. Code
Ann. S 50-6-242 which requires clear and convincing evidence as a
predicate. AFFIRMED as MODIFIED.

URL:http://www.tba.org/tba_files/TSC_WCP/GENTRYN_OPN.WP6
Opinion-Flash

DONALD GROTON, by next friend 
and wife, LINDA GROTON, and 
LINDA GROTON for KRISTINA
LYNN GROTON, a minor
vs.      
THE TRAVELERS INSURANCE 
COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee:

Wm. Ritchie Pigue                   William L. Underhill
William G. McCaskill, Jr.           Andrew J. Blackwell, III
TAYLOR, PHILBIN, PIGUE,             Madison, Tennessee
    MARCHETTI & BENNETT
Nashville, Tennessee                          

Judge: Brandt

First Paragraph:

This Court is once again called upon to decide wither an injury
sustained en route to work is compensable. We conclude that it is not
and reverse the trial court's finding that it is. REVERSED.

URL:http://www.tba.org/tba_files/TSC_WCP/GROTON_OPN.WP6
Opinion-Flash

FRANKLIN HARTSELL
vs.
DALLAS & MAVIS FORWARDING   
COMPANY, JUPITER CORPORATION
TRANSPORTATION SYSTEMS and
CIGNA PROPERTY & CASUALTY
INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellants:                 For the Appellee:

Patrick A. Ruth                     Charles R. Niewold
Julia J. Tate                       214 Third Ave. N.
150 Second Ave. N., Ste. 201        Nashville, TN  37201
Nashville, TN  37201                       

Judge: INMAN

First Paragraph:

The plaintiff, age 54, suffered a job-related myocardial infarction on
March 1, 1994.  A coronary arteriogram revealed an 80% blockage of his
left anterior descending artery which was alleviated by an angioplasty
procedure which reduced the blockage to less than 15%.  Conservative
treatment followed, and he was released to return to full employment
on January 1, 1994.  From that day forward, the plaintiff has worked
steadily and without incident. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/HARTSELF_OPN.WP6
Opinion-Flash

MARGARET ANN SCRUGGS
vs.
NATIONAL HEALTHCORP, L.P.,
d/b/a MERIHIL HEALTH CARE
CENTER, INC.

Court:TSC - Workers Comp Panel

Attorneys:    

For the Appellant:                  For the Appellee:

Barbara G. Medley                   Randal T. Wilson
Bussart & Medley                    Shelbyville, Tennessee
Lewisburg, Tennessee                      

Judge: MADDUX

First Paragraph:

The plaintiff, Margaret Ann Scruggs, injured her neck on December 25,
1991, while employed as a nurse's aid by the defendant, National
Healthcorp, L.P., d/b/a/ Merihil Health Care Center, Inc.  The
plaintiff, was 52 years old at the time of trial.  She did not finish
the seventh grade.  Her employment history consists of working as a
private sitter and in various restaurants and factories.  She has had
training as a nurse's aide. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/SCRUGGSM_OPN.WP6
Opinion-Flash

MICHAEL SINIARD
vs. 
SATURN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:                  For the Appellee:

J. Anthony Arena                    Thomas H. Peebles, IV
Schulman, LeRoy & Bennett, P.C.     Brian A. Lapps, Jr.
501 Union Building, 7th Floor       Waller Landsen Dortch & Davis
P. O. Box 190676                    809 South Main Street, Suite 300
Nashville, TN 37219-0676            Post Office Box 1035
                                    Columbia, TN 38402-1035                        

Judge: INMAN

First Paragraph:

The plaintiff, age 43, remains employed by Saturn Corporation, where
he began in 1990.  He developed carpal tunnel syndrome in both wrists
in 1994 and was provided with splints, medication, and access to
physical therapy. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/SINIARDM_OPN.WP6
Opinion-Flash

KENNETH R. DOWNING and wife,
BERTIE DOWNING
vs.
CITY OF MEMPHIS

Court:TCA

Attorneys:

Monice Moore Hagler, City Attorney
Alicia A. Howard, Assistant City Attorney
for Defendant/Appellant.

R. Layne Holley, BOURLAND, HEFLIN, ALVAREZ, HOLLEY & MINOR, PLC
Memphis, Tennessee, for Plaintiffs/Appellees.

Judge: Farmer

First Paragraph:

Kenneth R. Downing and Bertie Downing sued the City of Memphis for
injuries and damages sustained by Mr. Downing and Mrs. Downing's loss
of consortium as a result of a vehicular accident at the intersection
of Lamar and Winchester in Memphis.  The automobile driven by Mr.
Downing collided with a police car driven by Officer Lezley Johnson of
the Memphis Police Department. AFFIRMED & REMANDED.

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

NANCY WHITELEY OLIVIERI
vs.
PAUL ANTHONY OLIVIERI

Court:TCA

Attorneys:   

AMY J. AMUNDSEN, Memphis, Attorney for Plaintiff.
DEBORAH L. PAGAN, Memphis, Attorney for Defendant.
                       
Judge: TOMLIN

First Paragraph:

This is a domestic relations case emanating from the Circuit Court of
Shelby County.  Wife, Nancy Whiteley Olivieri, was awarded a divorce
on the grounds of inappropriate marital conduct.  The trial court
divided the marital property, marital debt and ordered Husband, Paul
Anthony Olivieri, to pay Wife's attorney fees.  Husband has appealed.
AFFIRMED AND REMANDED.

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

VOWELL VENTURES
vs.
CITY OF MARTIN

Court:TCA

Attorneys:  

H. MAX SPEIGHT, Martin, Attorney for Plaintiff.
MARK G. GALLIEN, Martin, Attorney for Defendant.
                        
Judge: TOMLIN

First Paragraph:

Vowell Ventures, a partnership (hereafter "Vowell" or "Morris Vowell")
filed suit in the Chancery Court of Weakley County against the City of
Martin ("City") by a pleading which was appropriately treated by the
trial court as a Petition for a Writ of Certiorari, seeking an order
from that court directing City to issue Vowell a building permit to
erect an office building on a parcel of land owned by Vowell.  City
had previously denied the permit for the reason that the proposed
building was to be constructed over an existing sanitary sewer line
and a storm drain.  Vowell presents one issue for this court to
consider on appeal--whether the trial court erred in denying its
application for a building permit.  For the reasons hereinafter
stated, we affirm the trial court.  We also hold that this appeal is
frivolous. AFFIRMED.

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

STATE OF TENNESSEE
vs.
MARSHA COLLEEN BEELER

Court:TCCA

Attorneys:  

For Appellee:                       For Appellant:
Burkett C. McInturff, Attorney      Charles W. Burson
131 Broad Street                    Attorney General & Reporter
P.O. Box 583
Blountville, TN  37662              Sandy R. Copous
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493           
                                    Edward E. Wilson 
                                    Asst. District Attorney General
                                    Blountville, TN  37617                        

Judge: WADE

First Paragraph:

This is an appeal of right by the State of Tennessee from an order
restoring Marsha Colleen Beeler's driving privileges.  The defendant
had been previously declared a habitual motor vehicle offender.  See
Tenn. Code Ann. SS 55-10-601 to -617.  REVERSED AND REMANDED.

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

STATE OF TENNESSEE
vs.     
THOMAS BOOKER, JR.
and
THOMAS WAYNE MCDANIELS

Court:TCCA

Attorneys: 

FOR THE APPELLANTS                  FOR THE APPELLEE

Gregory D. Smith                    John Knox Walkup
One Public Square, Ste. 321         Attorney General and Reporter
Clarksvillle, Tennessee 37040       450 James Robertson Parkway
                                    Nashville, Tennessee 37243-0493
Dennis Hughes
211 Third Avenue, North             Christina S. Shevalier
Nashville, Tennessee 37201          Assistant Attorney General
                                    450 James Robertson Parkway
    for Thomas Booker, Jr.          Nashville, Tennessee 37243-0493
                                    
George Duzane                       Victor S. Johnson, III
1 Church Street                     District Attorney General
Nashville, Tennessee 37201          Washington Square, Ste. 500                             
                                    222 Second Avenue, South
    for Thomas Wayne McDaniels      Nashvillle, Tennessee 37201

                                    Katrin Novak Miller
                                    Jan Bossing
                                    Asst District Attorneys General
                                    Washington Square, Ste. 500                             
                                    222 Second Avenue, South
                                    Nashvillle, Tennessee 37201                         

Judge: Barker

First Paragraph:

The Appellants, Thomas Booker, Jr. and Thomas Wayne McDaniels, appeal
as of right their convictions and sentences entered in the Davidson
County Criminal Court.  Booker was found guilty of possession with
intent to deliver or sell 300 grams, or more, of a substance
containing cocaine, possession with intent to deliver or sell not less
than one-half ounce nor more than ten pounds of marijuana, and
possession with intent to use drug paraphernalia and was sentenced to
twenty years imprisonment.  McDaniels was found guilty of possession
with intent to deliver or sell 300 grams, or more, of a substance
containing cocaine and sentenced to twenty years imprisonment.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
JOHN M. CHILDRESS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:   

John M. Childress, Pro Se           John Knox Walkup
South Central Correctional Center   Attorney General & Reporter
P.O. Box 279                        500 Charlotte Avenue
Clifton, TN 38425                   Nashville, TN 37243-0497
(Appeal Only)
                                    Deborah A. Tullis
Gary Antrican                       Assistant Attorney General
District Public Defender            450 James Robertson Parkway
P.O. Box 700                        Nashville, TN 37243-0493
Somerville, TN 38068
                                    Elizabeth T. Rice
                                    District Attorney General
                                    302 Market Street
                                    Somerville, TN 38068                         

Judge: Jones

First Paragraph:

The issue presented for review by this appeal is the right of the
appellant, John M. Childress, to have five counts of an indictment
dismissed as part of a plea bargain agreement expunged.  The trial
court refused to expunge these counts of the indictment.  In this
Court, the State of Tennessee confesses error, and agrees this case
must be remanded to the trial court for the expungement of these
counts of the indictment.  After a thorough review of the record, the
briefs submitted by the parties, and the law governing the issue
presented for review, it is the opinion of this Court the judgment of
the trial court should be reversed and this cause remanded for the
entry of an order expunging the five counts of the indictment.
REVERSED AND REMANDED.

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

LESLIE L. COLEMAN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:
Roger K. Smith                      Charles W. Burson
Suite 115                           Attorney General & Reporter
104 Woodmont Boulevard 
Nashville, TN  37205                Daryl J. Brand
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493           
                                    Katrin N. Miller 
                                    Asst. District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue
                                    Nashville, TN  37201-1649                          


First Paragraph:

The petitioner, Leslie L. Coleman, appeals the trial court's denial of
his petition for post-conviction relief.  The issue presented for
review is whether the trial court correctly dismissed the petition
without an evidentiary hearing on the basis that it was barred by the
statute of limitations.  We affirm the judgment of the trial court.
AFFIRMED.

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

JAMES T. FITE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

JAMES T. FITE                       CHARLES W. BURSON
Pro Se                              Attorney General & Reporter
CCA, P.O. Box 279
Clifton, Tennessee  38425-0279      PETER COUGHLAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243-0493

                                    WILLIAM E. GIBSON
                                    District Attorney General
            
                                    ANTHONY CRAIGHEAD
                                    Assistant Attorney General
                                    145 South Jefferson
                                    Cookeville, Tennessee   38501                        

Judge: RILEY

First Paragraph:

Pro se petitioner, James T. Fite, appeals the denial of his "motion to
correct the judgment before the court to an illegal sentence."  In
1988, Fite pled guilty to vehicular homicide, aggravated assault, and
felony bail jumping.  He was sentenced to serve eleven, three, and
three years, respectively.  The sentences were to run consecutively. 
Apparently, Fite challenges the legality of the consecutive sentences
and requests additional pre-trial jail credits.  The reviewing trial
court overruled his motion.  The judgment of the trial court is
AFFIRMED pursuant to Rule 20 of this Court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
THOMAS WAYNE JOHNSON

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

Joe H. Walker                   Charles W. Burson
District Public Defender        Attorney General & Reporter 
        
Alfred Lee Hathcock, Jr.        Sandy R. Copous
Assistant Public Defender       Assistant Attorney General
119 days in jail and was ordered to participate in the
community corrections program.  In conjunction with his community
corrections sentence, the appellant was ordered to make restitution to
the victim of his vehicular assault, Curtis Wayne Jackson. REVERSED
AND REMANDED.

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

STATE OF TENNESSEE
vs. 
BOBBY GENE KECK

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

LARRY D. WILKS                      CHARLES W. BURSON
509 West Court Square               Attorney General and Reporter
Springfield, TN 37172
                                    CECIL H. ROSS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    PATRICK H. MCCUTCHEN 
                                    District Attorney General

                                    DENT MORRISS
                                    Assistant District Attorney General
                                    19th Judicial District
                                    507 Public Square
                                    Springfield, TN 37172                     

First Paragraph:

The Defendant appeals to this Court as of right from a judgment
entered on a Robertson County jury verdict convicting him of one count
of fabricating evidence, three counts of official misconduct, and two
counts of private use of county road materials and equipment.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
KEITH LEEGAN

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Lyman Ingram                        Charles W. Burson
P.O. Box 959                        Attorney General of Tennessee
Dyersburg, TN 38025-0959                and             
     and                            Christina S. Shevalier
John H. Henderson                   Asst Attorney General of Tennessee 
District Public Defender            450 James Robertson Parkway     
407-C Main Street, P.O. Box 68      Nashville, TN 37243-0493
Franklin, TN 37065-0068
(AT TRIAL)                          Joseph D. Baugh, Jr.
                                    District Attorney General
John H. Henderson                       and
District Public Defender            Don Schwendimann
     and                            Asst District Attorney General
C. Diane Crosier                    Williamson County Courthouse
Larry D. Drolsum                    P.O. Box 937
Assistant Public Defenders          Franklin, TN 37065-0937
407-C Main Street, P.O. Box 68
Franklin, TN 37065-0068
(ON APPEAL)                         

First Paragraph:

The defendant, Keith Leegan, was convicted in a jury trial in the
Perry County Circuit Court of second degree murder, a Class A felony,
and theft of property valued under $500.00, a Class A misdemeanor.  As
a Range I, standard offender, he received a twenty-year sentence for
the second degree murder conviction and a concurrent eleven months and
twenty-nine days sentence for the theft conviction.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
RICHARD DOUGLAS LOWERY

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

EDWARD C. MILLER                CHARLES W. BURSON
Public Defender                 Attorney General & Reporter
Fourth Judicial District
P.O. Box 416                    CLINT T. MORGAN
Dandridge, TN 37725             Counsel for the State
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493    

                                AL C. SCHMUTZER, JR. 
                                District Attorney General

                                JAMES L. GASS 
                                Assistant District Attorney General
                                Fourth Judicial District
                                301 East Courthouse
                                125 Court Avenue
                                Sevierville, TN 37862                          

Judge: WITT

First Paragraph:

The appellant, Richard Douglas Lowery, appeals from the sentence
imposed by the Jefferson County Circuit Court.  A jury convicted him
of forgery, aggravated assault, and two related misdemeanors.  The
trial court determined the appellant to be a Range III persistent
offender and imposed sentences of four years for forgery and two
sentences of eleven months and twenty-nine days each for the
misdemeanors, set to run concurrently with a ten year sentence for the
aggravated assault.  AFFIRMED.

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

JAMES MARION
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:      

FOR THE APPELLANT:                  FOR THE APPELLEE:

C. Anne Tipton                      John Knox Walkup
Attorney at Law                     Attorney General & Reporter
140 North Third Street              500 Charlotte Avenue
Memphis, TN 38103                   Nashville, TN 37243-0497

                                    Ellen H. Pollack
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    William L. Gibbons
                                    District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

                                    James M. Lammey
                                    Assistant District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103                    

Judge:  Jones

First Paragraph:

The appellant, James Marion (petitioner), appeals as of right from a
judgment of the trial court denying his suit for post-conviction
relief following an evidentiary hearing.  In this Court, he contends
the evidence establishes he was denied his constitutional right to the
effective assistance of counsel. AFFIRMED IN PART AND REVERSED IN
PART; JUDGMENT VACATED AND REINSTATED.

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

CHARLES MASSENGILL
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:      

For the Appellant:              For the Appellee:

DEANNA C. BELL                  CHARLES W. BURSON
211 Third Avenue, North         Attorney General and Reporter
Nashville, TN  37201    
                                DARYL J. BRAND
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                VICTOR S. (TORRY) JOHNSON III
                                District Attorney General

                                JON SEABORG
                                Asst. District Attorney General
                                Washington Square, Suite 500
                                222-2nd Avenue, North
                                Nashville, TN  37201-1649                    

Judge: Hayes

First Paragraph:

The appellant, Charles Massengill, appeals the order of the Davidson
County Criminal Court dismissing his petition for writ of habeas
corpus.  On December 12, 1982, the appellant pled guilty in the
Sullivan County Criminal Court to one count of second degree murder
and one count of grand larceny.  On July 22, 1983, the trial court
imposed sentences of thirty-five years for the murder conviction and
ten years for the grand larceny conviction, to run consecutively.  The
appellant is presently confined at the Riverbend Maximum Security
Institution in Davidson County where he is serving an effective
sentence of forty-five years for these convictions.  In August, 1995,
the appellant filed a pro se petition for writ of habeas corpus.  On
October 16, 1995, with the aid of appointed counsel, the appellant
filed an amended petition.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
ROY DANNY MAYO

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

SHIPP R. WEEMS                      CHARLES W. BURSON
District Public Defender            Attorney General anfd Reporter

CAREY J. THOMPSON                   KAREN M. YACUZZO
STEVE STACK                         CLINTON J. MORGAN
P. O. Box 160                       450 James Robertson Parkway
Charlotte, TN  37036                Nashville, TN  37243

                                    DAN ALSOBROOKS
                                    District Attorney General

                                    JAMES W. KIRBY
                                    Assistant District Attorney
                                    111 Sycamore Street
                                    Ashland City,  TN  37015                     

Judge: SMITH

First Paragraph:

Appellant Roy Danny Mayo pled guilty in the Cheatham County Circuit
Court to assault with intent to commit first degree murder, especially
aggravated burglary, aggravated assault, and aggravated burglary.  As
a Range I standard offender, he received respective sentences of
twenty years, ten years, five years, and five years.  The trial court
ordered the first two sentences served consecutively to each other but
concurrently with the remaining two sentences, for an effective
sentence of thirty years in the Tennessee Department of Correction.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
JOHN MILLER, JR. 

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:

LAURA RULE HENDRICKS                JOHN KNOX WALKUP
Eldridge, Irvine & Hendricks        Attorney General & Reporter
606 W. Main Street, Suite 350
P.O. Box 84                         MICHAEL J. FAHEY, II
Knoxville, TN  37901-0084           Assistant Attorney General
(On Appeal Only)                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

STEPHEN M. WALLACE                  GREELEY WELLS
District Public Defender            District Attorney General

TERRY L. JORDAN                     I.T. COLLINS, JR.
Assistant Public Defender           Assistant District Attorney General
P.O.  Box 839                       P.O. Box 526
Blountville, TN  37617-0839         Blountville, TN  37615-0526
(At Trial and On Appeal)                       

Judge: WOODALL

First Paragraph:

The Defendant, John Miller, Jr., appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure from the trial court's
order denying his "Motion for Relief from Fine and Court Costs".  We
affirm the judgment of the trial court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
RONNIE W. NAIL

Court:TCCA

Attorneys:   

For the Appellant:                  For the Appellee:

Howard L. Upchurch                  Charles W. Burson
P.O. Box 381                        Attorney General of Tennessee
Pikeville, TN 37367                     and
                                    Clinton J. Morgan
                                    Counsel for the State        
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    James Michael Taylor
                                    District Attorney General
                                        and
                                    Will Dunn
                                    Assistant District Attorney General
                                    265 3rd Avenue, Suite 300                           
                                    Dayton, TN 37321                       

Judge: Tipton

First Paragraph:

The defendant, Ronnie W. Nail, was convicted in a jury trial in the
Circuit Court for Rhea County of driving while under the influence of
an intoxicant (DUI) and leaving the scene of an accident, both
offenses being misdemeanors.  He was sentenced to the minimum sentence
available for a first offense DUI and fined two dollars for leaving
the scene.  He appeals as of right and claims that he was entitled to
a new trial because an adequate record of the trial proceedings could
not be prepared so as to allow the successor judge to rule on his
motion for new trial.  This case has traveled a tortuous route since
the defendant's arrest in 1985 -- a route that we need not fully
recount here.  Unfortunately, the journey does not end here, because
we must vacate the judgments of conviction and remand the case for
further proceedings. JUDGMENTS VACATED AND CASE REMANDED.

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

STATE OF TENNESSEE
vs.
FRED NICHOLS

Court:TCCA

Attorneys: 

FOR THE APPELLANT                   FOR THE APPELLEE

Shipp R. Weems                      John Knox Walkup
District Public Defender            Attorney General and Reporter
P.O. Box 160                        450 James Robertson Parkway
Charlotte, Tennessee 37036          Nashville, Tennessee 37243-0493
                    
Carey J. Thompson                   Lisa A. Naylor          
Assistant Public Defender           Assistant Attorney General
P.O. Box 160                        450 James Robertson Parkway
Charlotte, Tennessee 37036          Nashville, Tennessee 37243-0493

Steve Stuart                        Dan Mitchum Alsobrooks
880 Highway 70, West                District Attorney General
Dickson, Tennessee 37055            P.O. Box 580
                                    Charlotte, Tennessee 37036

                                    Robert S. Wilson
                                    Assistant District Attorney General
                                    P.O. Box 580
                                    Charlotte, Tennessee 37036                         

Judge: Barker

First Paragraph:

The appellant, Fred Nichols, appeals as of right his conviction of
rape.  He argues on appeal that the evidence introduced at trial was
insufficient to prove beyond a reasonable doubt that he committed
rape, and that the trial court erred when it excluded evidence of the
victim's prior sexual activity.  We have carefully reviewed the record
on appeal and we find that the appellant's arguments have no merit. 
Therefore, we affirm the trial court's judgment. AFFIRMED.

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

BETSY JANE PENDERGRAST
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

JIM WISEMAN                         CHARLES W. BURSON
SALLY SCHNEIDER                     Attorney General and Reporter
131 North Church Street
Murfreesboro, TN 37130              LISA A. NAYLOR
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    WILLIAM C. WHITESELL, JR.
                                    District Attorney General
                                    Third Floor, Judicial Building
                                    Murfreesboro, TN 37130                         

Judge: WELLES

First Paragraph:

The Defendant, Betsy Jane Pendergrast, appeals the trial court's
dismissal of her petition for post-conviction relief.  The single
issue presented for our review is whether the trial court erred in its
determination that the petition was barred by the statute of
limitations.  On appeal, the State concedes that consideration of the
petition was not barred by the statute of limitations and thus the
State agrees with the Defendant that this case should be remanded to
the trial court so that the petition may be considered on its merits. 
We agree that the judgment of the trial court must be reversed and
this case must be remanded. REVERSED AND REMANDED.

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

STATE OF TENNESSEE
vs.
DANNY L. PHILLIPS

Court:TCCA

Attorneys:     

For Appellant:                      For Appellee:
Comer L. Donnell                    Charles W. Burson
District Public Defender            Attorney General & Reporter
        
Howard L. Chambers                  Ruth Thompson
Assistant Public Defender           Assistant Attorney General
213 North Cumberland Street         Criminal Justice Division
P.O. Box 888                        450 James Robertson Parkway
Lebanon, TN  37087                  Nashville, TN  37243-0493
            
                                    David Durham and Doug Hall
                                    Assistant District Attorneys General
                                    111 Cherry Street
                                    Lebanon, TN  37087                     

Judge: WADE

First Paragraph:

The defendant, Danny L. Phillips, pled guilty to one count of
burglary.  The trial court imposed a three-year sentence to be served
on probation.  A few months later, at the conclusion of a revocation
proceeding, the trial judge ordered the defendant to serve one year of
split confinement in jail, with the remainder of the sentence to be
served on probation.  The defendant concedes that he violated the
terms of his probation.  His sole issue on appeal is whether the trial
court erred by imposing the jail term rather than the sentence of
three years in the Department of Correction.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
CHRISTOPHER A. PRENTISS

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:

Terry D. Smart                      John Knox Walkup
Attorney at Law                     Attorney General & Reporter
371 Carroll Avenue                  500 Charlotte Avenue
Memphis, TN 38105                   Nashville, TN 37243-0497

                                    Clinton J. Morgan
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    William L. Gibbons
                                    District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

                                    John W. Campbell
                                    Assistant District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103                       

Judge: Jones

First Paragraph:

The appellant, Christopher A. Prentiss, (defendant), was convicted of
vehicular homicide, a Class C felony, leaving the scene of an accident
involving death, a Class E felony, and driving a motor vehicle after
revocation of license, following his pleas of guilty to these
offenses.  The trial court imposed the following sentences pursuant to
the plea bargain agreement between the State of Tennessee and the
defendant:  a fine of $500 and confinement for three (3) years in the
Shelby County Correctional Center for vehicular homicide;  confinement
for one (1) year in the Shelby County Correctional Center for leaving
the scene of an accident involving death;  and a fine of $150 for
driving after the revocation of driver's license.  The sentences are
to be served concurrently. AFFIRMED.

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

HOBERT REECE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Hobert Reece, 125773, Pro Se        Charles W. Burson
Northeast Correctional Center       Attorney General of Tennessee
Mountain City, TN 37683-5000            and             
                                    Clinton J. Morgan
                                    Counsel for the State of Tennessee                      
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    Alfred C. Schmutzer, Jr.
                                    District Attorney General
                                    301 Sevier County Courthouse
                                    Sevierville, TN 37862
                                        and
                                    James B. Dunn
                                    Assistant District Attorney General
                                    339A East Main Street
                                    Newport, TN 37821                         

Judge: Tipton

First Paragraph:

The petitioner, Hobert Reece, appeals as of right from the Cocke
County Circuit Court's summary dismissal of his second petition for
post-conviction relief.   Pursuant to a negotiated plea agreement, the
petitioner pled guilty to aggravated rape on January 14, 1989, and was
sentenced to twenty-five years as a Range I, standard offender.  The
trial court denied the petitioner's first petition for post-conviction
relief on August 1, 1991, holding that the defendant received the
effective assistance of counsel and entered a knowing and voluntary
plea.  In his second petition, the petitioner raised these same
grounds for relief and alleged that his attorney and the trial court
committed various errors during the first post-conviction proceeding. 
The second petition was filed on October 23, 1995.  The trial court
held that all the grounds raised in the petition had been previously
determined, noting as well that the statute of limitations had run. 
The petitioner contends that his claims have not been waived or
previously determined and that he was entitled to an evidentiary
hearing.  We affirm the judgment of the trial court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
TONY G. SMITH

Court:TCCA

Attorneys:   

FOR THE APPELLANT:              FOR THE APPELLEE:

DAVID L. VINCENT                CHARLES W. BURSON
TSCRN # 3935                    Attorney General and Reporter
906 Stahlman Building
Nashville, TN  37201-1505       M. ALLISON THOMPSON
                                Assistant Attorney General
ROBERT N. SKINNER, JR.          450 James Robertson Parkway
TSCRN # 3576                    Nashville, TN  37243
311 Church Street
316 Exchange Building           VICTOR S. JOHNSON
Nashville, TN  37201            District Attorney General
        
                                MARY HAUSMAN
                                JAMES SLEDGE
                                Assistant District Attorneys
                                Washington Square Building
                                222 2nd Avenue, No.
                                Nashville, TN  37201                       

Judge: SMITH

First Paragraph:

On May 16, 1995 Davidson County Criminal Court jury found Appellant
Tony Smith guilty of stalking in violation of Tennessee Code Annotated
Section 39-17-315 (Supp. 1996) and attempted first-degree murder in
violation of Tennessee Code Annotated Section 39-12-101 (1991).  He
was sentenced to eleven months and twenty-nine days for stalking and
twenty-eight years for attempted murder.  His sentences were ordered
to run consecutively.  On appeal, he raises two issues: 1) whether the
evidence is sufficient, as a matter of law, to sustain his convictions
for attempted first-degree murder and stalking, and 2) whether the
trial court committed reversible error by allowing the jury to
separate without his permission. AFFIRMED.

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

STATE OF TENNESSEE
vs.
TWIKA TEAGUE

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

DAVID L. VINCENT                    CHARLES W. BURSON
TSCRN # 3935                        Attorney General and Reporter
906 Stahlman Building
Nashville, TN  37201-1505           M. ALLISON THOMPSON
                                    Assistant Attorney General
ROBERT N. SKINNER, JR.              450 James Robertson Parkway
TSCRN # 3576                        Nashville, TN  37243
311 Church Street
316 Exchange Building               VICTOR S. JOHNSON
Nashville, TN  37201                District Attorney General
        
                                    MARY HAUSMAN
                                    JAMES SLEDGE
                                    Assistant District Attorneys
                                    Washington Square Building
                                    222 2nd Avenue, No.
                                    Nashville, TN  37201                     

Judge: Barker

First Paragraph:

The appellant, Twika Teague, appeals as of right the sentence imposed
by the Blount County Circuit Court after the revocation of her
placement in community corrections.  Appellant was serving a four year
sentence for the offense of robbery, a Class C felony.  After revoking
her community corrections sentence, the trial court increased her
sentence to five years and ordered that it be served in the Department
of Correction.  Appellant contends that the trial court erred in
enhancing her original sentence.  We affirm the increased sentence. 
AFFIRMED.

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

STATE OF TENNESSEE
vs.
JACK DEWAYNE WILLIAMS

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Stephen M. Wallace                  Charles W. Burson
Office of the Public Defender       Attorney General of Tennessee
P.O. Box 839                        and
Blountville, TN 37617               Merrilyn Feirman 
  (ON APPEAL & AT TRIAL)            Asst Attorney General of Tennessee
                                    450 James Robertson Parkway
Keith Hopson                        Nashville, TN 37243-0493
Office of the Public Defender
P.O. Box 839                        H. Greeley Wells, Jr.  
Blountville, TN 37617               District Attorney General   
  (AT TRIAL)                        P.O. Box 526
                                    Blountville, TN 37617-0526                         

Judge: Tipton

First Paragraph:

The defendant, Jack DeWayne Williams, was convicted by a jury in the
Sullivan County Criminal Court of theft of property valued between
five hundred dollars and one thousand dollars, a Class E felony.  He
was sentenced as a Range III, persistent offender to five years in the
custody of the Department of Correction and fined fifteen hundred
dollars. AFFIRMED.

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

STATE OF TENNESSEE
vs.
CHERI ANN WILLIAMS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

LIONEL R. BARRETT, JR.              CHARLES W. BURSON
Washington Square Two, Ste. 417     Attorney General & Reporter
222 Second Avenue, North
Nashville, TN   37201               KAREN YACUZZO
                                    Assistant Attorney General
ANTHONY A. ADGENT                   450 James Robertson Pkwy.
Washington Square Two, Ste. 417     Nashville, TN   37243-0493  
222 Second Avenue, North
Nashville, TN   37201                                   
                                    VICTOR S. JOHNSON III
                                    District Attorney General

                                    PAMELA ANDERSON
                                    Asst District Attorney General
                                    Washington Square, Ste. 500
                                    222 Second Ave. North
                                    Nashville, TN   37201-1649                         

Judge: RILEY

First Paragraph:

Williams appeals as of right from a jury verdict of guilty of driving
under the influence of an intoxicant, marijuana or narcotic drug
(DUI).  Tenn. Code  Ann. S 55 10-401.  She was fined $500 and
sentenced to eleven months, twenty-nine days with all but three days
suspended.  Williams presents two issues for our review: 1) whether
the evidence was sufficient to sustain the DUI conviction; and 2)
whether the trial judge erred in allowing a registered nurse to
testify as an expert on the effects of certain drugs.  The judgment of
the trial court is affirmed. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/WILLIAMS2_OPN.WP6

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