TBALink Opinion-Flash

OCTOBER 27, 1998 -- Volume #4 -- Number #154

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

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00-New Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
01-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04-New Opinion(s) from the Tennessee Court of Appeals
07-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Editor-in-Chief, TBALink



SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL

Date: October 26, 1998

URL:http://www.tba.org/tba_files/TSC_Rules/statelst_26.WP6
Opinion-Flash

MARY ALICE (WILLIAMS) GRIFFIN
VS.
LACY FLOYD GRIFFIN

Court:TCA

Attorneys:   

THOMAS R. MEEKS
137 Franklin Street
Clarksville, Tennessee  37040

GREGORY D. SMITH
One Public Square, Suite 321
Clarksville, Tennessee  37040
    ATTORNEYS FOR PLAINTIFF/APPELLEE

FRANK J. RUNYON
P. O. Box 1023
Clarksville, Tennessee  37041
    ATTORNEY FOR DEFENDANT/APPELLANT                       

Judge:CAIN

First Paragraph:

Lacy Floyd Griffin married Mary Alice Williams in November of 1964. 
They had been married for thirty-one years, when Mrs. (Williams)
Griffin filed suit for divorce from the bonds of matrimony on the
grounds of irreconcilable differences and cruel and inhuman treatment.
 The complaint was filed August 29, 1995.  The parties executed a
Marital Dissolution Agreement on August 30, 1995.  Mr. Griffin was not
represented by counsel in the divorce.

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

ANTHONY JAMES NORTON
VS.
DONAL CAMPBELL, COMMISSIONER TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:   

ANTHONY JAMES NORTON, #228858
Northwest Correctional Complex Site 2
Route 1, Box 660
Tiptonville, Tennessee 38079
    Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

JOHN R. MILES
Counsel for the State
Civil Rights and Claims Division
425 5th Avenue North
Nashville, Tennessee 37243-0488
    Attorney for Respondent/Appellee                       

Judge:CANTRELL

First Paragraph:

An inmate in the custody of the Department of Correction petitioned
the Chancery Court of Davidson County for judicial review of the
constitutionality of a statute that rendered him ineligible for early
release from his sentence. The Chancery Court dismissed the petition. 
We affirm.

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

AMY (KELLEY) SMITH
VS.
ALTON WADE KELLEY

Court:TCA

Attorneys:  

J. RUSSELL HELDMAN
Franklin, Tennessee
Attorney for Appellant

JAMES L. CURTIS
Nashville, Tennessee
Attorney for Appellee

Judge:HIGHERS

First Paragraph:

Defendant, Alton Wade Kelley ("Appellant" or "Husband"), appeals the
trial court's order allowing Plainitff, Amy Kelley Smith ("Appellee"
or "Wife"), to relocate to Texas with the parties' minor child, Robert
Wade Kelley, declining to change custody of the minor child to
Husband, declining to award Husband attorneys fees, and declining to
dismiss Wife's motion under 12(b)(6). Wife appeals the portion of the
trial court's judgment which set the new visitation schedule for
Husband.


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

SHANNON RENEE THOMPSON
VS.
BRAD KENT THOMPSON

Court:TCA

Attorneys:  

DENNIS W. POWERS
McClellan, Powers, Ehmling & Dix
116 Public Square
Gallatin, Tennessee  37066
    ATTORNEY FOR PLAINTIFF/APPELLEE


F. DULIN KELLY
ANDY L. ALLMAN
Kelly & Kelly
629 East Main Street
Hendersonville, Tennessee  37075
    ATTORNEYS FOR DEFENDANT/APPELLANT                        

Judge:CAIN

First Paragraph:

The parties are the parents of two minor children whose custody is at
issue in this post-divorce proceeding.  The trial court modified the
joint legal and physical custody arrangement delineated in the
parties' Marital Dissolution Agreement resulting in the Mother being
awarded primary care and control of the children.  The Father now
appeals the court's decision to modify custody as well as its decision
to award the Mother part of her attorney fees.  We reverse the
decision of the court below both with regard to custody and attorney
fees.  Furthermore, we remand to the trial court the issue of whether
the child support paid to the Mother need be increased.


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

STATE OF TENNESSEE
VS.
SALLY J. LANE

Court:TCCA

Attorneys:

For Appellant:              For Appellee:

Eugene J. Honea             John Knox Walkup
Assistant Public Defender   Attorney General & Reporter
407-C Main Street 
P.O. Box 68                 Clinton J. Morgan
Franklin, TN  37065-0068    Counsel for the State 
                            425 Fifth Avenue North
                            Cordell Hull Building, Second Floor
                            Nashville, TN  37243-0493                         

Judge:WADE

First Paragraph:

The defendant, Sally J. Lane, pled guilty to simple possession of
marijuana, a Class A felony.  Tenn. Code Ann. S 39-17-418.  The trial
court imposed a sentence of eleven months, twenty-nine days at
seventy-five percent service and a fine of two hundred fifty dollars. 
The defendant was ordered to serve sixty days, day for day, followed
by supervised probation.  In this appeal of right, the defendant
challenges the trial court's denial of full probation.  We affirm the
judgment of the trial court.


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

STATE OF TENNESSEE
VS.
MITCHELL LEIDERMAN

Court:TCCA

Attorneys: 

For the Appellant:          For the Appellee:

Philip A. Condra            John Knox Walkup
District Public Defender    Attorney General and Reporter
204 Betsy Pack Drive                            
Jasper, TN 37347            Karen M. Yacuzzo        
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243-0493


                            James Michael Taylor
                            District Attorney General

                            Steven H. Strain
                            Assistant District Attorney
                            P.O. Box 130
                            Jasper, TN 37347                        

Judge:BARKER

First Paragraph:

The appellant, Mitchell Leiderman, appeals as of right his conviction
in the Marion County Circuit Court of driving under the influence,
second offense.  Appellant was sentenced to eleven months, twenty-nine
days and ordered to serve 75 days with the remainder to be served on
probation.  He was fined $600 and the trial court granted his request
for work release. On appeal, he contests the sufficiency of the
evidence, the trial court's admission of a hearsay statement as an
excited utterance, and the propriety of his sentence.  After reviewing
the record, we affirm the appellant's conviction, but modify the
sentence imposed.

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

DANNY RAY MEEKS
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:


EDWARD L. BORING            JOHN KNOX WALKUP
P.O. Box 381                Attorney General & Reporter
Pikeville, TN  37367
      (On Appeal)           TIMOTHY F. BEHAN
                            Asst. Attorney General
MARION C. FORDYCE           John Sevier Bldg.
Washington Square, Ste 500  425 Fifth Ave., North
222 Second Ave., North      Nashville, TN  37243-0493
Nashville, TN 37201
      (At Hearing)          J. MICHAEL TAYLOR   
                            District Attorney General

                            THOMAS D. HEMBREE
                                -and-
                            STEVEN BLOUNT
                            Asst. District Attorneys General
                            265 Third Ave., Suite 300
                            Dayton, TN  37321                         

Judge:PEAY

First Paragraph:

In August 1990, a jury convicted the petitioner of aggravated
kidnapping, especially aggravated robbery, aggravated burglary, and
extortion.  The petitioner received an effective sentence of
forty-eight years in the Department of Correction.  The petitioner
appealed, and this Court affirmed the petitioner's convictions and
sentence in August 1993.  See State v. Meeks, 867 S.W.2d 361 (Tenn.
Crim. App. 1993)(permission to appeal denied Nov. 1, 1993).  The
petitioner filed his petition for post-conviction relief on October 6,
1994, alleging thirty-two grounds for relief.  The petitioner twice
amended his petition to allege an additional twenty-five grounds for
relief.  After hearing evidence on the issues raised by the petition,
the trial court filed a memorandum opinion dismissing the petition in
August 1997.  One month later, the trial court filed an addendum to
its opinion.

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

WILLIAM A. RANSOM
VS.

KEVIN MYERS, WARDEN, and STATE OF TENNESSEE

Court:TCCA

Attorneys:

For Appellant:              For Appellees:

William A. Ransom, Pro Se   John Knox Walkup
# 98835, Gemini B-A 110     Attorney General & Reporter
CCA/SCCC 
P.O. Box 279                Lisa A. Naylor 
Clifton, TN  38425-0279     Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN  37243-0493                         

Judge:WADE

First Paragraph:

The petitioner, William A. Ransom, was convicted of robbery and,
because he qualified as a habitual criminal, he received a life
sentence.  This court affirmed the convictions on direct appeal. 
State v. William Ransom, [no number in original] (Tenn. Crim. App., at
Nashville, May 15, 1984).  In this petition for habeas corpus, the
petitioner claims that the indictment for robbery and the declaration
of habitual criminality is void because the indictment failed to
assert the requisite mens rea.  It is the initial contention of the
petitioner that, due to the faulty indictment, the trial court lacked
jurisdiction to enter a conviction or impose a sentence.  Secondly,
the petitioner claims that the trial court erred by failing to appoint
counsel or to conduct an evidentiary hearing.

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

STATE OF TENNESSEE
VS.
JOSEPH MARTIN THURMAN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

HOWARD B. BARNWELL, JR.     JOHN KNOX WALKUP
829 McCallie Avenue         Attorney General and Reporter
Chattanooga, TN  37403  
                            TIMOTHY F. BEHAN
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN  37243

                            J. MICHAEL TAYLOR
                            District Attorney General

                            STEVE STRAIN
                            Assistant District Attorney
                            Jasper, TN                           

Judge:SMITH

First Paragraph:

The appellant, Joseph Martin Thurman, was convicted by a Marion County
jury of one (1) count of premeditated first degree murder and one (1)
count of arson.  He was sentenced to concurrent terms of life
imprisonment for murder and three (3) years for arson.  On appeal, he
presents several issues for this Court's review.  However, because the
record reflects that appellant failed to timely file his motion for
new trial and notice of appeal, all issues presented on appeal are
waived, and this appeal is not properly before this Court.  Therefore,
the judgment of the trial court is affirmed pursuant to Tennessee
Court of Criminal Appeals Rule 20.

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

STATE OF TENNESSEE
VS.
GARY VAUGHN, et al.

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

JOHN E. HERBISON            JOHN KNOX WALKUP
2016 Eighth Avenue South    Attorney General and Reporter
Nashville, TN  37204    
                            DARYL J. BRAND
                            Senior Counsel
                            425 Fifth Avenue North
                            Nashville, TN  37243

                            BILL GIBSON
                            District Attorney General

                            LILLIE ANN SELLS
                            Assistant District Attorney
                            145 South Jefferson Avenue
                            Cookeville, TN  38501                         

Judge:SMITH

First Paragraph:

The appellants, Gary M. Vaughn, Harry D. Stewart, Jo Ann Scarbrough,
Kenneth L. Reagan, William M. Ransom, Julie C. Hileman, Harold H.
Hileman, Geoffrey Mark Greely, Roy Howard Elkins, Kenneth D. Dyer,
Larry K. Dunn and Robert J. Cunningham were convicted by a Putnam
County jury of violation of Tenn. Code Ann. S 55-9-302, the
"motorcycle helmet law."  Each appellant received a fine of $5 as his
or her sentence.  On appeal, appellants claim that Tenn. Code Ann. S
55-9-302 is unconstitutional as it (1) interferes with their
constitutionally protected privacy right, and (2) restricts their
freedom of expression under the First Amendment to the United States
Constitution, and Article I, S 19 of the Tennessee Constitution.  Ten
(10) of the appellants also challenge the sufficiency of the
convicting evidence.  After a thorough review of the record before
this Court, we find no error and affirm the judgment of the trial
court.

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

JEROME WILLIAMS
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

JEROME WILLIAMS             JOHN KNOX WALKUP
Pro Se                      Attorney General & Reporter
CCA/SCCC
P.O. Box 279                GEORGIA BLYTHE FELNER
Clifton, TN  38425          Counsel for the State
                            425 Fifth Ave. N., 2d Floor
                            Nashville, TN  37243-0493

                            VICTOR S. JOHNSON, III
                            District Attorney General

                            KATY NOVAK MILLER
                            Asst. District Attorney General
                            Washington Square, Suite 500
                            222 Second Ave. North
                            Nashville, TN  37201-1649                         

Judge:WITT

First Paragraph:

The petitioner, Jerome Williams, appeals the Davidson County Criminal
Court's summary dismissal of his petition for post-conviction relief. 
The petitioner is currently serving an effective 55 year sentence for
his convictions of armed robbery and aggravated rape.  State v. Jerome
Williams, No. 86-86-III (Tenn. Crim. App., Nashville, Feb. 12, 1987). 
He filed an unsuccessful post-conviction petition challenging his
convictions.  See Jerome Williams v. State, No. 01C01- 9105-CR-00152
(Tenn. Crim. App., Nashville, Nov. 14, 1991), perm. app. denied (Tenn.
1992).  In the present action, he seeks to reopen his previous
post-conviction action by alleging that a jury instruction given at
his trial equating moral certainty with reasonable doubt violated his
constitutional rights.  Following a review of the record and the
briefs of the parties, we affirm the trial court's dismissal of the
defendant's petition.

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


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