July 26, 1999
Volume 5 -- Number 104

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

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink


STATE OF TENNESSEE
VS.
VERLIN RALPH DURHAM

Court:TCCA

Attorneys:                          
For Appellant                       For Appellee

Gerald L. Gulley, Jr.               John Knox Walkup
Contract Appellate Defender         Attorney General and Reporter
P.O. Box 1708                       425 Fifth Avenue North
Knoxville, TN  37901-1708           Nashville, TN  37243-0493

David Bautista                      Ellen H. Pollack
District Public Defender            Assistant Attorney General 
P.O. Box 996                        425 Fifth Avenue North
Johnson City, TN  37605             Nashville, TN  37243-0493

Jeffrey C. Kelly                    David Crockett
Offc of the Distr Public Defender   District Attorney General       
P.O. Box 996                        P.O. Box 38
Johnson City, TN  37605             Jonesborough, TN  37659

                                    Lisa Nidiffer Rice
                                    Asst District Attorney General
                                    P.O. Box 38
                                    Jonesborough, TN  37659
                            
Judge:OGLE

First Paragraph:

The appellant, Verlin Ralph Durham, appeals as of right his conviction
by a jury in the Criminal Court for Washington County of premeditated
first degree murder.  The trial court imposed a sentence of life
imprisonment in the Tennessee Department of Correction.  On appeal, the
appellant presents the following issues for our review:

1.  Whether the jury's verdict is supported by sufficient evidence.

2.  Whether the trial court erroneously admitted testimony concerning
a prior threatening statement made by the appellant to the victim,
thereby violating the Tennessee Rules of Evidence and denying the
appellant due process of law under the Fourteenth Amendment to the
United States Constitution and Article I, Section 8 of the Tennessee
Constitution.

3.  Whether the trial court erroneously prohibited the appellant's
daughter from testifying concerning the victim's prior statements
contrary to the rules of evidence and principles of due process.

4.  Whether the prosecutor engaged in misconduct during closing
argument.

5.  Whether the trial court impermissibly advised the jury that a
"good closing argument" should not exceed twenty minutes.

6.  Whether the cumulative effect of the errors denied the appellant
due process of law.

Following a thorough review of the record and the parties' briefs, we
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/Durhamvr_opn.WP6



STATE OF TENNESSEE VS. DONALD MCKINNEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: HOLLIS I. MOORE, JR. PAUL G. SUMMERS Offc of the Metro Public Defender Attorney General & Reporter 1202 Stahlman Building Nashville, TN 37201 MARVIN E. CLEMENTS Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General EDWARD S. RYAN Assistant District Attorney Washington Sq., Ste. 500 Nashville, TN 37201-1649 Judge:SMITH First Paragraph: On January 18, 1998, the Davidson County Grand Jury indicted Appellee Donald McKinney for driving under the influence of an intoxicant, sixth offense. On July 7, 1998, Appellee filed a motion to dismiss the indictment. The trial court granted the motion on July 16, 1998. The State challenges the trial court's dismissal of the indictment, raising the following issue: whether the trial court erred when it determined that the indictment should be dismissed because Appellee's right to a speedy trial had been violated. After a review of the record, we find that neither Appellee's rights to a speedy trial nor his rights to due process of law were violated by the delay in bringing him to trial. The judgment of the trial court must therefore be reversed and the case remanded for trial. http://www.tba.org/tba_files/TCCA/Mickindo_opn.WP6
STATE OF TENNESSEE VS. CEDRIC PHELPS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: STACY A. TURNER JOHN KNOX WALKUP 105 South Third Street Attorney General & Reporter Clarksville, TN 37040 KAREN M. YACUZZO Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JOHN WESLEY CARNEY, JR. District Attorney General DANIEL BROLLIER Assistant District Attorney General 204 Franklin Street, Suite 200 Clarksville, TN 37040 Judge:WILLIAMS First Paragraph: The defendant, Cedric Phelps, was convicted of first degree murder in the perpetration of aggravated child abuse, see Tenn. Code Ann. SS 39-13-202; 39- 15-402, and sentenced to life in prison. He appeals, arguing that the trial court erroneously admitted certain prejudicial testimony and that the evidence at trial was insufficient to support the jury's verdict of guilt. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Phelpsc_opn.WP6
STATE OF TENNESSEE VS. JACK R. ROBERTS Court:TCCA Attorneys: FOR THE APPELLANT: DONALD G. DICKERSON 310-D East Broad Street Cookeville, TN 38501-3304 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter KIM R. HELPER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM EDWARD GIBSON District Attorney General BENJAMIN W. FANN Assistant District Attorney General 145 S. Jefferson Avenue Cookeville, TN 38501-3424 Judge:RILEY First Paragraph: The defendant, Jack R. Roberts, pursuant to a Tenn. R. App. P. 9 interlocutory appeal, challenges the denial of pretrial diversion by the District Attorney General and subsequent denial of relief by the trial court. Defendant was indicted for the Class C felony of aggravated assault and contends the prosecutor abused his discretion in denying pretrial diversion. After our review of the record, we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Rbertsjr_opn.WP6
STATE OF TENNESSEE VS. RICHARD D. REAGAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JULIE A. RICE PAUL G. SUMMERS Contract Appellate Defender Attorney General & Reporter P.O. Box 426 Knoxville, TN 37901-0426 ERIK W. DAAB Assistant Attorney General RAYMOND MACK GARNER 425 Fifth Avenue North District Public Defender Nashville, TN 37243-0493 419 High Street Maryville, TN 37804 MICHAEL L. FLYNN District Attorney General EDWARD P. BAILEY, JR. Asst District Attorney General 363 Court Street Maryville, TN 37804-5906 Judge:WILLIAMS First Paragraph: The defendant, Richard D. Reagan, appeals the revocation of his probation, arguing that he was physically unable to comply with the terms thereof. We AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Reaganrd_opn.WP6
CHARLES SCRUGGS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CHARLES SCRUGGS PAUL G. SUMMERS Pro Se Attorney General & Reporter CCA, P. O. Box 279 Clifton, TN 38425 CLINTON J. MORGAN Counsel for the State 425 Fifth Avenue North Nashville, TN 37243-0493 JOE D. BAUGH, JR. District Attorney General RON DAVIS Assistant District Attorney P. O. Box 937 Franklin, TN 37065-0937 Judge:SMITH First Paragraph: The appellant, Charles Scruggs, appeals the order of the Williamson County Circuit Court denying his "Motion to Correct an Illegal Judgment and Sentence." The appellant is presently serving a life sentence for the homicide of Rosie Lee Hunter committed on January 10, 1982. He claims that he was illegally sentenced to a life sentence for second degree murder under the 1982 Sentencing Act. The trial court denied the appellant's motion, finding that because he was convicted of first degree felony murder, not second degree murder, a sentence of life imprisonment is proper. We affirm pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/Scruggch_ord.WP6

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