TBALink Opinion-Flash

April 1, 1998 -- Volume #4 -- Number #059

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):
00-New Opinons From TSC
01-New Opinons From TSC-Rules
01-New Opinons From TSC-Workers Comp Panel
04-New Opinons From TCA
26-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

George Dean
TBALink Chief Editor


WALTER LEE AUSTEIN
vs.
RIVERWOOD INTERNATIONAL     
USA, INC.

Court:TSC - Workers Comp Panel

Attorneys:

FOR APPELLANT:              FOR APPELLEE:  
Russell C. Winston          Karen L. Schlesinger
707 Adams Avenue            80 Monroe Avenue
Memphis, TN 38105           Suite 650
Adam O. Knight              Memphis, TN 38103
707 Adams Avenue
Memphis, TN 38105
                          
Judge:CLARK

First Paragraph:

This worker's compensation appeal has been referred to the special
worker's compensation appeals panel of the Supreme Court in accordance
with Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The sole
issue on appeal is whether the one-year statute of limitations under
T.C.A. S50-6-203 ran prior to the filing of the lawsuit.

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

                    SUPREME COURT OF TENNESSEE
                STATE LIST FOR PERMISSION TO APPEAL
                 March 30, 1998, 2:00 P.M. Release                                  
                

Court:TSC - Rules
                       
URL:http://www.tba.org/tba_files/TSC_RULES/statelst24_wpd.WP6
Opinion-Flash

CHARLES E. DORSE II
vs.
MARTIN R. KRIGER

Court:TCA

Attorneys:

Charles E. Dorse II, Pro Se

Martin R. Kriger, Memphis, Tennessee for Defendant/Appellee. 
                          
Judge:Farmer

First Paragraph:

Charles E. Dorse II appeals from the order of the trial court
dismissing his complaint for failure to file within the applicable
statute of limitations.  The complaint alleges that the plaintiff is
an inmate in custody of the Tennessee Department of Correction.  The
defendant, Martin Kriger, is an attorney who was appointed to
represent Plaintiff in a criminal action in Shelby County.

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

In re ESTATE OF BESSIE B. HOLMES,   
DECEASED

JAIME H. MAUPIN
vs.
JOSEPH N. HOLMES,
CO-ADMINISTRATOR

Court:TCA

Attorneys:

LANCELOT L. MINOR, III, Bourland, Heflin, Alvarez & Minor, Memphis, 
Attorney for Plaintiff/Appellant

CLIFFORD D. PIERCE, JR., Wyatt, Tarrant & Combs, Memphis, Attorney for
Defendant/Appellee.
                          
Judge:TOMLIN

First Paragraph:

This appeal comes to this court from the Probate Court of Shelby
County.  Jaime H. Maupin ("claimant") a co-administrator, filed a
claim against the estate of Bessie B. Holmes ("estate"), in the amount
of $7,173.43 to recover funeral expenses paid by her for the burial of
her mother, Bessie B. Holmes ("decedent").  Joseph N. Holmes
("respondent"), claimant's brother, and also a co-administrator of the
estate, filed an exception to this claim, contending that the estate
was not indebted to claimant for any amount.  In addition, respondent
also sought to recover monies in excess of $30,000.00 which claimant
had paid to herself from a joint bank account she had with decedent
with right of survivorship, created at a time when decedent was
mentally incapacitated.  Respondent averred that the amount claimed
for funeral expenses could be deducted from the survivorship account. 
Claimant in turn filed a response to the exception, contending that at
the time the account was created, decedent possessed the required
mental capacity to create the account and that the funds in the joint
account with right of survivorship became hers upon the death of
decedent.

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

H. W. JENKINS CO.
vs.                     
G. T. DESIGNS OF MEMPHIS,       
INC., BRIGHTON BANK 
and             
JOHN T. FALKE and wife, LANA S. 
FALKE, ARNOLD M. WEISS, Trustee,    
and THE PRUDENTIAL HOME     
MORTGAGE COMPANY, INC.

Court:TCA

Attorneys:

R. MARK GLOVER
BAKER, DONELSON, BEARMAN & CALDWELL
Memphis, Tennessee
Attorney for Appellants

JOHN D. HORNE
THE WINCHESTER LAW FIRM
Memphis, Tennessee
Attorney for Appellee
                          
Judge:HIGHERS

First Paragraph:

This appeal involves a suit to enforce a materialmen's lien on a new
home.  Defendants/Appellants, John T. and Lana S. Falke ("Falkes");
Arnold M. Weiss, Trustee; and The Prudential Home Mortgage Company,
Inc. (collectively  "appellants"), appeal from the order of the
chancery court which entered judgment in favor of plaintiff, H.W.
Jenkins Co. ("Jenkins"), allowing the enforcement of a materialmen's
lien for the amount of all the materials invoiced to the Falkes' home,
as well as interest and attorney's fees.  For reasons stated
hereinafter, we affirm the judgment of the chancery court in part and
reverse in part.

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

IN THE MATTER OF:   
JAMIE MURPHY (DOB 7/12/87)  
JANET MURPHY (DOB 4/24/89)  
JHANAID MURPHY (DOB 2/23/91)

Court:TCA

Attorneys: 

Patricia L. Penn, Penn & Associates, Memphis, Tennessee
Attorney for Petitioners/Appellants Jesse and Geneva Murphy.

Karen T. Fleet, Bolivar, Tennessee
Attorney for Respondents/Appellees Edward Bowers, Jr. and Mae Lena
Bowers.
                         
Judge:FARMER

First Paragraph:

This is a child custody case involving three biological children of
James Murphy and Valerie Carter.  They are: Jamie Murphy, born July
12, 1987; Janet Murphy, born April 24, 1989; and Jhanaid Murphy, born
February 23, 1991.  Appellants are their paternal grandfather and
step-grandmother, Jessie and Geneva Murphy.  The appellee, Edward
Bowers, Jr., is a first cousin to James Murphy and Appellee Mae Lena
Bowers is his wife.  Appellants have appealed from an order entered by
the circuit court dismissing their appeal and reinstating the judgment
of the juvenile court which found that no material misrepresentations
were made by the appellees at the July 1995 custody hearing to affect
that court's decision to award temporary custody of Jamie and Janet to
appellants and temporary custody of Jhanaid to the appellees.  For the
reasons set forth below, we affirm.

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

STATE OF TENNESSEE
vs. 
DERRICK T. ALSTON

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

MARVIN E. BALLIN            JOHN KNOX WALKUP
200 Jefferson Ave.          Attorney General & Reporter
Suite 1250
Memphis, TN 38103           ELIZABETH T. RYAN           
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493    

                            WILLIAM L. GIBBONS
                            District Attorney General
                
                            DANIEL R. WOODY
                            AMY P. WEIRICH
                            Asst District Attorney Generals
                            201 Poplar Ave. 
                            Third Floor
                            Memphis, TN 38103
                          

Judge:WITT

First Paragraph:

The defendant, Derrick T. Alston, pleaded guilty in Shelby County
Criminal Court to attempted first degree murder and especially
aggravated robbery, both Class A felonies, and to four counts of
aggravated assault, a Class C felony.  As a Range I, standard
offender, the eighteen-year old defendant received an effective
sentence of forty-two years.    In conjunction with his guilty plea,
the defendant properly preserved a certified question of law in which
he challenges the validity of his convictions for attempted
first-degree murder and especially aggravated robbery of the same
victim on double jeopardy grounds.  The defendant also contends that
the evidence does not support the trial court's finding that he is a
dangerous offender for the purposes of consecutive sentencing.

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

STATE OF TENNESSEE
vs.
BEVELYN BAILEY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

CLIFFORD K.  McGOWN, JR.        JOHN KNOX WALKUP 
113 North Court Square          Attorney General & Reporter
P.O. Box 26 
Waverly, TN  37185              JANIS L.  TURNER 
(ON APPEAL ONLY)                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

GARY F.  ANTRICAN               ELIZABETH T.  RICE 
District Public Defender        District Attorney General 

JEANNIE KAESS                   JERRY W.  NORWOOD
Assistant Public Defender       Assistant District Attorney General
P.O. Box 700                    Hardeman County Courthouse
Somerville, TN  38068           Bolivar, TN  38008
                         
Judge:WOODALL

First Paragraph:

The Defendant, Bevelyn Bailey, appeals as of right the sentence
imposed by the trial court upon his conviction of theft.  Defendant
was indicted by the Hardeman County Grand Jury of burglary, theft and
criminal impersonation.  Defendant pled guilty to theft of property
worth between $1,000 and $10,000 in violation of Tennessee Code
Annotated section 39-14-103.  The trial court sentenced Defendant to
eight (8) years incarceration as a Range II Multiple Offender and
denied Defendant's request for alternative sentencing.  The sentence
was ordered to run consecutively to a prior fifteen (15) year sentence
imposed in Fayette County, for which he was on parole at the time of
the present offense.  In this appeal, Defendant argues that the trial
court erred in sentencing him to eight (8) years incarceration and in
finding that he was not a favorable candidate for alternative
sentencing of split confinement or Community Corrections.  We affirm
the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
LATAVIS DIRAY BAILEY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

JOHN E.  HERBISON               JOHN KNOX WALKUP 
2016 Eighth Avenue South        Attorney General & Reporter
Nashville, TN  37204
                                KENNETH W.  RUCKER
TOM CRIDER                      Assistant Attorney General
District Public Defender        2nd Floor, Cordell Hull Building
107 South Court Square          425 Fifth Avenue North 
Trenton, TN  38382              Nashville, TN  37243

                                CLAYBURN PEEPLES 
                                District Attorney General 

                                TED NEUMANN 
                                Asst District Attorney General

                                LARRY HARDISTER
                                Asst District Attorney General
                            
                                GARRY BROWN     
                                Asst District Attorney General
                                110 College Street, Suite 200
                                Trenton, TN  38382
                         
Judge:WOODALL

First Paragraph:

The Defendant, Latavis Diray Bailey, appeals as of right from his
conviction and sentencing in the Criminal Court of Gibson County. 
Defendant was convicted of second degree murder and was sentenced to
serve twenty-five (25) years in the Tennessee Department of Correction
as a Range I Offender.  On appeal, the Defendant contends the trial
court's instruction to the jury on "flight" from the scene of the
shooting was error and argues the sentence imposed was excessive.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
ROBIN BAKER

Court:TCCA

Attorneys:

FOR THE APPELLANT:

MARVIN G. BALLIN
MARK A. MESLER
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103-2328
FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

DEBORAH A. TULLIS
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

WILLIAM L. GIBBONS
District Attorney General

JOHNNY R. McFARLAND
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947                          

Judge:SMITH

First Paragraph:

The defendant, Robin Baker, appeals from misdemeanor convictions of
one (1) count of reckless endangerment and one (1) count of possession
of explosive components.  He pled guilty and agreed to concurrent
terms of six (6) months and a $500 fine for each conviction.  The sole
issue presented for review is whether the trial court erred in denying
the defendant's petition to suspend his sentence.  The judgment of the
trial court is affirmed.

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

STATE OF TENNESSEE
vs.
CHRISTOPHER CAVNOR

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:
Leslie I. Ballin                John Knox Walkup
Mark A. Mesler                  Attorney General & Reporter
200 Jefferson Ave., Ste 1250        
Memphis, TN  38103              Elizabeth T. Ryan
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN  37243

                                Janet Shipman
                                Asst District Attorney General
                                Criminal Justice Complex, Ste 301
                                201 Poplar Street
                                Memphis, TN  38103
                          
Judge:WADE

First Paragraph:

The defendant, Christopher P. Cavnor, has been indicted for criminally
negligent homicide.  Tenn. Code Ann. S 39-13-212.  The district
attorney general denied the defendant's application for pretrial
diversion.  Thereafter, the trial court denied his petition for a writ
of certiorari.  In this interlocutory appeal made pursuant to Rule 9
of the Tennessee Rules of Appellate Procedure, the defendant insists
that the district attorney general abused his discretion by the denial
of pretrial diversion.

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

ANTHONY CICCHETTO
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

William W. Nowlin           John Knox Walkup
Attorney at Law             Attorney General & Reporter
100 North Main Building     425 Fifth Avenue, North
Suite 3201                  Nashville, TN  37243-0493
Memphis, TN  38103
                            Georgia B. Felner
                            Counsel for the State
                            425 Fifth Avenue, North
                            Nashville, TN  37243-0493

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

                            Rhea Clift
                            Asst District Attorney General
                            201 Poplar Avenue, Suite 3-01
                            Memphis, TN  38103
                          
Judge:Jones

First Paragraph:

The appellant, Anthony Cicchetto (petitioner), appeals as of right
from a judgment of the trial court dismissing his post-conviction
action after an evidentiary hearing.  The trial court found the
petitioner was afforded his constitutional right to the effective
assistance of counsel; and the petitioner's guilty pleas passed
constitutional muster.  In this court, the petitioner contends the
evidence contained in the record preponderates against the trial
court's findings of fact.  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 affirmed pursuant to Rule 20, Tennessee
Court of Criminal Appeals.

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

STATE OF TENNESSEE
vs.
SCOTT E. FAIN

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Raymond C. Conkin, Jr.          Charles W. Burson
Attorney at Law                 Attorney General and Reporter
152 Broad Street, Suite 207 
Kingsport, TN  37660            Clinton J. Morgan
                                Assistant Attorney General                              
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                H. Greeley Wells, Jr.
                                District Attorney General

                                Phyllis Miller and David Overbay
                                Asst. District Attorneys General
                                Blountville, TN  37617
                                                  

First Paragraph:

The appellant, Scott E. Fain, was indicted by the Sullivan County
Grand Jury on one count of especially aggravated robbery, a class A
felony.  The appellant was convicted by a jury of the lesser offense
of robbery, a class C felony, and received a sentence of nine years
confinement as a range II offender. In this appeal as of right, the
appellant challenges (1) the sufficiency of the convicting evidence
and (2) whether the trial court erred by failing to instruct the jury
on the offense of accessory after the fact.

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

STATE OF TENNESSEE
vs.
ANGIE M. HARRIS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

Larry E. Fitzgerald             John Knox Walkup
Attorney at Law                 Attorney General & Reporter
22 North Second St., Ste 410    425 Fifth Avenue, North
Memphis, TN 38103               Nashville, TN 37243-0497

                                Janis L. Turner
                                Counsel for the State
                                425 Fifth Avenue, North
                                Nashville, TN 37243-0493

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

                                Johnny McFarland
                                Asst District Attorney General
                                201 Poplar Avenue, Suite 3-01
                                Memphis, TN 38103
                         
Judge:Jones

First Paragraph:

The appellant, Angie M. Harris (defendant), entered pleas of guilty to
two counts of forgery, a Class E felony.  The trial court, finding the
defendant was a standard offender,  imposed a Range I sentence
consisting of a $500 fine and confinement for one (1) year in the
Shelby County Correctional Center in each count pursuant to a plea
agreement.  The trial court suspended all but thirty days of the
defendant's sentence and placed her on probation for the balance of
the sentence.  The effective sentence imposed were fines totaling
$1,000 and confinement for one (1) year.  In this court, the defendant
contends "the Trial Court erred in not granting the Defendant's
Petition for Suspended Sentence and in failing to grant the Defendant
probation [pursuant] to the Tennessee Criminal Sentencing Reform Act
of 1989."  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 that the judgment of the trial court
should be affirmed.

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

JAMES EDWARD HAYES
vs.
BILLY COMPTON, WARDEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

JAMES EDWARD HAYES          JOHN KNOX WALKUP
Pro Se                      Attorney General and Reporter
TDOC #201739
Lake County Regional        CLINTON J. MORGAN
Correctional Facility       Assistant Attorney General
Route 1, Box 330            450 James Robertson Parkway
Tiptonville, TN 38079       Nashville, TN 37243

                            PHILLIP BIVENS
                            District Attorney General
                            P. O. Drawer E
                            Dyersburg, TN 38024                          

Judge:SMITH

First Paragraph:

Appellant James Edward Hayes was convicted by a jury on February 25,
1993 in the Gibson County Circuit Court of two counts of aggravated
sexual battery.  As a Range I standard offender, Appellant received
two consecutive twelve-year sentences with the Tennessee Department of
Correction.  On August 2, 1996, Appellant filed an application for
writ of habeas corpus in the Lake County Circuit Court.  In his
application, Appellant alleged that he was being illegally restrained
in Lake County on a conviction and sentence based upon a fatally
defective indictment which failed to allege a mens rea.  On August 16,
1996, the trial court denied the writ on the ground that the judgment
is not void on its face  and that Appellant is, therefore, not
entitled to habeas corpus relief.  Appellant presents the following
issue for our consideration in this direct appeal:  whether the trial
court erred in dismissing the petition for writ of habeas corpus.

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

JIMMY DALE HIGH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE

R. Price Harris             John Knox Walkup
Attorney at Law             Attorney General & Reporter
3074 East Street            425 Fifth Avenue, North
Memphis, TN 38128           Nashville, TN 37243-0497
                        
                            Deborah A. Tullis
                            Assistant Attorney General
                            425 Fifth Avenue, North
                            Nashville, TN 37243-0493

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

                            C. Alonda Horne
                            Assistant District Attorney General
                            201 Poplar Avenue, Suite 3-01
                            Memphis, TN 38103
                          
Judge:Jones

First Paragraph:

The appellant, Jimmy Dale High (petitioner), appeals as of right from
a judgment of the trial court dismissing his post-conviction action
after an evidentiary hearing.  Three issues are presented for review. 
The petitioner contends (a) he was denied his constitutional right to
the effective assistance of counsel, (b) certain omissions occurred
during his trial which entitle him to relief, and (c) the trial court
failed to address certain grounds raised during the evidentiary
hearing.  After a thorough review of the record, the briefs submitted
by the parties, and the law governing the issues presented for review,
it is the opinion of this court that the judgment of the trial court
should be affirmed.

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

STATE OF TENNESSEE
vs.
ROGER HOSTETLER

Court:TCCA

Attorneys:

FOR THE APPELLANT:            FOR THE APPELLEE:

MR. MICHAEL W. WHITAKER       MR. JOHN KNOX WALKUP
P.O. Box 1024                 Attorney General & Reporter
Covington, TN 38019
                               MS. ELIZABETH T. RYAN
                               Asst. Attorney General
                               425 Fifth Avenue North
                               Nashville, TN 37243-0493

                               MR. MARK DAVIDSON
                               Asst. District Atty. General
                               Lauderdale County Justice Center
                               675 Highway 51 South
                               Ripley, TN 38063

                               MR. JAMES W. FREELAND
                               Asst. District Atty. General
                               Lauderdale County Justice Center
                               675 Highway 51 South
                               Ripley, TN 38063
                          
Judge:WITT

First Paragraph:

The defendant, Roger Hostetler, was convicted in the Lauderdale County
Circuit Court on October 30, 1996, of criminally negligent homicide. 
The trial court sentenced the defendant to serve one year in the
Department of Correction and imposed a fine of $3,000.

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

STATE OF TENNESSEE
vs.
CTJUAN D. JAMES

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

Joseph S. Ozment            John Knox Walkup
Attorney at Law             Attorney General & Reporter
217 Exchange Avenue         425 Fifth Avenue, North
Memphis, TN  38105          Nashville, TN  37243-0493

                            Deborah A. Tullis
                            Assistant Attorney General
                            425 Fifth Avenue, North
                            Nashville, TN  37243-0493

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

                            Terrell L. Harris
                            Asst District Attorney General
                            201 Poplar Avenue, Suite 3-01
                            Memphis, TN  38103                         

Judge:Jones

First Paragraph:

The appellant, Ctjuan D. James (defendant), was convicted of three
counts of aggravated robbery, a Class B felony, by a jury of his
peers.  The trial court, finding the defendant to be a standard
offender, imposed a Range I sentence consisting of confinement for ten
(10) years in the Department of Correction for each count.  The court
ordered the three sentences to be served concurrently, but consecutive
to a prior sentence of fifteen (15) years for an especially aggravated
robbery conviction.  The defendant presents two issues for review.  He
contends the evidence contained in the record is insufficient, as a
matter of law, to support a finding by a rational trier of fact that
he was guilty of three aggravated offenses beyond a reasonable doubt. 
He also contends the trial court erred by ordering  the sentences in
these three convictions to be served consecutively to the sentence in
the prior conviction.  After a thorough review of the record, the
briefs of the parties, and the law governing the issues presented for
review, it is the opinion of this court that the judgment of the trial
court should be affirmed.

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

CHARLES A. LOVELESS, JR.
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For Appellant:                      For Appellee:

Charles A. Loveless, Jr., Pro Se    John Knox Walkup
NWCC                                Attorney General and Reporter       
Route 1, Box 660    
Tiptonville, TN  38079              Elizabeth T. Ryan 
                                    Assistant Attorney General
                                    425 Fifth Avenue North 
                                    Second Fl., Cordell Hull Bldg 
                                    Nashville, TN  37243-0493

                                    C. Phillip Bivens
                                    District Attorney General
                                    P.O. Drawer E
                                    Dyersburg, TN  38024                         

Judge:WADE

First Paragraph:
    
The petitioner, Charles A. Loveless, Jr., appeals the trial court's
denial of habeas corpus relief.  He contends his sentence has expired
and that he should be released from custody.  We disagree and affirm
the judgment of the trial court.

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

REGINALD S. MABONE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

Brett B. Stein              John Knox Walkup
Attorney at Law             Attorney General & Reporter
236 Adams Avenue            425 Fifth Avenue, North
Memphis, TN 38103           Nashville, TN 37243-0497

                            Elizabeth T. Ryan
                            Assistant Attorney General
                            425 Fifth Avenue, North
                            Nashville, TN 37243-0493

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

                            Rhea Cliff
                            Assistant District Attorney General
                            201 Poplar Avenue, Suite 3-01
                            Memphis, TN 38103
                          
Judge:Jones

First Paragraph:

The appellant, Reginald S. Mabone (petitioner), appeals as of right
from a judgment of the trial court dismissing his post-conviction
action following an evidentiary hearing.  In this court, the
petitioner contends he is entitled to post conviction relief because
(a) the assistant district attorney general read the indictment at the
commencement of his trial, (b) the language contained in the
reasonable doubt instruction given to the jury violated the Sixth and
Fourteenth Amendments, and (c) his sentence was enhanced by
convictions predicated upon guilty pleas which were constitutionally
infirm.  After a thorough review of the record, the briefs submitted
by the parties, and the law governing the issues presented for review,
it is the opinion of this court that the judgment of the trial court
should be affirmed.

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

JOSEPH TROY MANUEL
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

Ronald E. Darby             John Knox Walkup
Attorney at Law             Attorney General & Reporter
P.O. Box 524                425 Fifth Avenue, North
Camden, TN 38320            Nashville, TN 37243-0497

                            Georgia B. Felner
                            Counsel for the State
                            425 Fifth Avenue, North
                            Nashville, TN 37243-0493

                            Robert Gus Radford
                            District Attorney General
                            P.O. Box 686
                            Huntingdon, TN 38344

                            Victoria L. DiBonaventura
                            Assistant District Attorney General
                            P.O. Box 94
                            Paris, TN 38343                          

Judge:Jones

First Paragraph:

The appellant, Joseph Troy Manuel (petitioner), appeals as of right
from a judgment of the trial court dismissing his action for
post-conviction relief.  In this court, the defendant contends "the
reasonable doubt jury instruction given at the guilt phase of the
Defendant's trial violate[d] the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution and the law of the land,
Article I, Section 8, Constitution of the State of Tennessee."  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 that the judgment of the trial court should be
affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals.

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

STATE OF TENNESSEE
vs.
THOMAS L. MATTHEWS

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:

Marvin Ballin                   John Knox Walkup
200 Jefferson Ave., Ste 1250    Attorney General & Reporter
Memphis, TN  38103          
                                Georgia Blythe Felner
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493           
                                Paul Goodman
                                Asst District Attorney General
                                201 Poplar Street, Suite 301
                                Memphis, TN  38103          
                              
Judge:WADE

First Paragraph:

The defendant, Thomas L. Matthews, pled guilty to one count of
unlawful possession of a controlled substance with intent to sell. 
Tenn. Code Ann. S 39-17-417.  The plea agreement included a Range II
sentence of six years with the trial court to determine the manner of
service.  The trial court ordered service of the sentence in the
county workhouse.  In this appeal of right, the defendant claims the
court erred by denying Community Corrections.

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

STATE OF TENNESSEE
vs.
DERRICK McCLURE

Court:TCCA

Attorneys:

For the Appellant:          For the Appellee:

Joseph S. Ozment            John Knox Walkup
Attorney at Law             Attorney General and Reporter
217 Exchange Avenue 
Memphis, TN  38105          Deborah A. Tullis   
                            Assistant Attorney General                              
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493                
                        
                            William Gibbons
                            District Attorney General

                            Thomas Henderson and
                            Glen Baity
                            Asst. District Attorneys General
                            Criminal Justice Complex
                            Suite 301, 201 Poplar Street
                            Memphis, TN  38103
                          
Judge:Hayes

First Paragraph:

The appellant, Derrick McClure, appeals his convictions for first
degree murder, criminal attempt to commit first degree murder, and two
counts of especially aggravated robbery.  Following a jury trial, the
Shelby County Criminal Court sentenced the appellant to an effective
sentence of life plus twenty-five years in the Tennessee Department of
Correction.

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

LARRY MORRIS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

Daniel A. Seward            John Knox Walkup
Attorney at Law             Attorney General & Reporter
P. O. Box 11207             425 Fifth Avenue, North
Memphis, TN  38111-0207     Nashville, TN  37243-0497

                            Georgia B. Felner
                            Counsel for the State
                            425 Fifth Avenue, North
                            Nashville, TN  37243-0497

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

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

Judge:Jones

First Paragraph:

The appellant, Larry Morris (petitioner), appeals as of right from a
judgment of the trial court dismissing his post-conviction action
following an evidentiary hearing.  The trial court found the
petitioner received the effective assistance of counsel guaranteed by
the United States and Tennessee Constitutions.  In this court, the
petitioner presents one issue for review, namely, "[w]hether the trial
court properly dismissed the petition for post-conviction in finding
that the petitioner was afforded the effective assistance of counsel."
 After a thorough review of the record, the briefs submitted by
counsel, and the law governing the issue presented for review, it is
the opinion of this court that the judgment of the trial court should
be affirmed.

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

MARK L. PECK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

RAYMOND C. CONKIN , JR.     JOHN KNOX WALKUP
320 Cherokee St., Ste B     Attorney General and Reporter
Kingsport, TN 37660
                            PETER M. COUGHLAN
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243

                            GREELEY WELLS
                            District Attorney General

                            EDWARD E. WILSON
                            TERESA MURRAY SMITH
                            P. O. Box 526
                            Blountville, TN 37617                          
                            
Judge:SMITH

First Paragraph:

On April 22, 1989, a Sullivan County jury found Petitioner-Appellant,
Mark L. Peck, guilty of first-degree murder, and sentenced him to life
imprisonment. After an unsuccessful direct appeal to this Court, on
January 10, 1995, Appellant filed a pro se petition for habeas corpus
relief. This petition was construed by the court as a petition for
post-conviction relief and counsel was appointed. On July 9, 1995,
after a hearing, the court dismissed Appellant's petition. Appellant
appeals from the denial of his petition, claiming that the trial court
erred in finding that he received effective assistance of counsel at
trial.

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

DEMETRIUS ROBERTSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee:

Russell J. Johnson              John Knox Walkup
Attorney                        Attorney General & Reporter
5100 Poplar Ave., 27th Fl.
Memphis, TN  38137              Marvin E. Clements, Jr. 
                                Assistant Attorney General
                                Criminal Justice Division 
                                Cordell Hull Bldg, Second Fl.
                                425 Fifth Avenue North 
                                Nashville, TN  37243-0493
                        
                                Kevin Rardin 
                                Asst. District Attorney General
                                Criminal Justice Complex 
                                201 Poplar Avenue, Suite 301 
                                Memphis, TN  38103                         
                                
Judge:WADE

First Paragraph:

The defendant, Demetrius Robertson, entered a plea of guilt to
possession of a controlled substance with intent to sell.  The trial
court imposed a sentence of split confinement:  six months in jail
followed by a three-year probationary period.

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

STEPHEN R. STAMPS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Victoria L. DiBonaventura       Charles W. Burson
209 West Wood Street            Attorney General of Tennessee
Paris, TN 38242                 and
                                Deborah A. Tullis
                                Asst Attorney General of TN
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                G. Robert Radford
                                District Attorney General
                                P.O. Box 686
                                Huntingdon, TN 38344-0686
                                and
                                Vicky Snyder
                                Asst District Attorney General
                                P.O. Box 94
                                Paris, TN 38242
                                              
Judge:Tipton

First Paragraph:

The petitioner, Stephen Ray Stamps, appeals as of right from the Henry
County Circuit Court's denial of post-conviction relief.  He was
convicted in 1992 of rape and sentenced as a Range I, standard
offender to twelve years in the Tennessee Department of Correction. 
The conviction was affirmed on direct appeal.  State v. Stephen Ray
Stamps, No. 02C01-9301-CC-00002, Henry County (Tenn. Crim. App. Mar.
2, 1994), app. denied (Tenn. July 18, 1994).  The petitioner asserts
that he received ineffective assistance of trial counsel because of
counsel's (1) failure to object to testimony of the victim's
out-of-court statements and (2) failure to object to the state
presenting this testimony before the victim had testified.  We
disagree.

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

THOMAS HAROLD STIGER
vs.
COMMISSIONER, TENNESSEE     
DEPARTMENT OF CORRECTION

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Thomas Harold Stiger, pro se    John Knox Walkup
P. O. Box 34550                 Attorney General & Reporter
Memphis, TN  38138              425 Fifth Avenue, North
                                Nashville, TN  37243-0493

                                Deborah A. Tullis
                                Assistant Attorney General
                                425 Fifth Avenue, North
                                Nashville, TN  37243-0493

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

                                Karen Cook
                                Asst District Attorney General
                                201 Poplar Avenue, Suite 3-01
                                Memphis, TN  38103
                          
Judge:Jones

First Paragraph:

The appellant, Thomas Harold Stiger (petitioner), appeals as of right
from the summary dismissal of his habeas corpus action.  The trial
court dismissed the action because (a) the petitioner failed to comply
with the requirements of Tenn. Code Ann. SS 29-12-101, et seq. and (b)
the petitioner is a federal prisoner and was confined to a federal
penal institution when the petition was filed.  In this court, the
petitioner contends Tenn. Code Ann. SS 29-21-101 and -102 are
unconstitutionally "vague or indefinite," and the trial court erred by
applying Tenn. Code Ann. SS 29-21-101 and  102 to dismiss his habeas
corpus action.  After a thorough review of the record, the briefs
submitted by the parties, and the law governing the issues presented
for review, it is the opinion of this court that the judgment of the
trial court should be affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals.

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

LARRY DALE TAYLOR
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

J. MICHAEL IVEY                 JOHN KNOX WALKUP 
107 Tennessee Avenue South      Attorney General & Reporter
P.O. Box 127 
Parsons, TN  38363              PETER M. COUGHLAN
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                G. ROBERT RADFORD 
                                District Attorney General 

                                JERRY W. WALLACE 
                                Asst District Attorney General
                                P.O. Box 637 
                                Parsons, TN  38363                          

Judge:WOODALL

First Paragraph:

The Petitioner, Larry Dale Taylor, appeals as of right the trial
court's dismissal of his petition for post-conviction relief.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
JOE TYUS

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

William D. Bowen                Charles W. Burson
Asst. Public Defender           Attorney General and Reporter
107 South Court Square  
Trenton, TN  38382              Deborah A. Tullis
                                Assistant Attorney General                              
                                Criminal Justice Division
Tom W. Crider                   450 James Robertson Parkway
District Public Defender        Nashville, TN 37243-0493                
                        
                                Clayburn L. Peeples
                                District Attorney General
                                109 East First Street
                                Trenton, TN  38382
                                                 
Judge:Hayes

First Paragraph:

The appellant, Joe Tyus, appeals from convictions entered by the
Haywood County Circuit Court for felony possessions of Schedule II and
Schedule VI controlled substances with the intent to sell.

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

STATE OF TENNESSEE
vs.
ALVIN K.  WALKER

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

A.C. WHARTON                    JOHN KNOX WALKUP 
District Public Defender        Attorney General & Reporter

WALKER GWINN                    DEBORAH A.  TULLIS
Assistant Public Defender       Assistant Attorney General
                                2nd Floor, Cordell Hull Building
MICHAEL JOHNSON                 425 Fifth Avenue North 
Assistant Public Defender       Nashville, TN  37243

JUANITA PEYTON                  JOHN W. PIEROTTI 
Assistant Public Defender       District Attorney General 
Criminal Justice Ctr, Ste 201
201 Popler Avenue               JANET L.  SHIPMAN 
Memphis, TN  38103              Asst District Attorney General
                                Criminal Justice Center, Ste 301
                                201 Poplar Avenue 
                                Memphis, TN  38103                         

Judge:WOODALL

First Paragraph:


The Defendant, Alvin K. Walker, appeals as of right from his
conviction for aggravated robbery following a jury trial in the Shelby
County Criminal Court.  The only issue Defendant raises in this appeal
is the sufficiency of the evidence, specifically as to the eyewitness
testimony identifying the Defendant as committing the offense.  We
affirm the judgment of the trial court.

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

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1996-1997 Tennessee Bar Association