August 18, 1999
Volume 5 -- Number 112

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
14 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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

 

JESSE L. DABBS
VS.
STATE OF TENNESSE
Court:TCCA
Attorneys:                          
For Appellant:              For Appellee:
Jesse L. Dabbs, pro se      John Knox Walkup
BMCX, Box 2000              Attorney General and Reporter
Wartburg, TN  37887     
                            Ellen H. Pollack        
                            Assistant Attorney General
                            Criminal Justice Division
                            425 Fifth Avenue North 
                            Nashville, TN  37243

                            Frank A. Harvey 
                            Assistant District Attorney General
                            P.O. Box 703
                            Kingston, TN  37763

Judge:WADE

First Paragraph:

The petitioner, Jesse L. Dabbs, appeals the trial court's dismissal of
his petition for writ of habeas corpus.  In this appeal of right, the
single issue presented for review is whether the petition was properly
dismissed without the appointment of counsel and without an evidentiary
hearing.  We affirm the judgment of the trial court.

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



DARRELL FRITTS VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: L. Darren Gibson John Knox Walkup Attorney for Appellant Attorney General and Reporter 735 Broad Street, Suite 700 450 James Robertson Parkway Chattanooga, TN 37402 Nashville, TN 37243-0493 Michael J. Fahey, II Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North, 2nd Floor Nashville, TN 37243 Jerry N. Estes District Attorney General 203 E. Madison Ave. Athens, TN 37303 Judge:OGLE First Paragraph: On May 27, 1994, the petitioner, Darrell Fritts, filed his second petition for post-conviction relief in the Criminal Court of Monroe County. The trial court appointed counsel and conducted a hearing on March 12, 1997. On September 25, 1997, the trial court entered an order denying the petition for post-conviction relief. On appeal, the petitioner contends that his sentence violates the Ex Post Facto clauses of the United States and Tennessee Constitutions. Moreover, the petitioner argues that he should be granted a new sentencing hearing pursuant to our supreme court's decision in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993). Following a review of the record, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/Frittsd_opn.WP6
EDDIE DEAN HALL VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: J. Russell Pryor, Attorney John Knox Walkup 128 South Main Street Attorney General and Reporter Suite 101 Greeneville, TN 37743 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 Eric D. Christiansen Assistant District Attorney General 109 South Main Street Greeneville, TN 37743 Judge:WADE First Paragraph: The petitioner, Eddie Dean Hall, appeals the trial court's denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Halled_opn.WP6
STATE OF TENNESSEE VS. STEVE EUGENE HILL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JULIE A. MARTIN JOHN KNOX WALKUP Contract Appellate Defender Attorney General and Reporter P. O. Box 426 Knoxville, TN 37901-0426 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 MIKE FLYNN District Attorney General EDWARD P. BAILEY, JR. Assistant District Attorney 363 Court Street Maryville, TN 37804 Judge:SMITH First Paragraph: The appellant, Steve Eugene Hill, pled guilty in the Blount County Criminal Court to one (1) count of evading arrest, a Class E felony, and one (1) count of reckless driving, a Class B misdemeanor. The trial court sentenced him to concurrent terms of one (1) year for evading arrest and six (6) months for reckless driving. The trial court further ordered that the appellant be placed on supervised probation upon his service of fifteen (15) days in jail. On appeal, the appellant contends that the trial court erred in requiring him to serve fifteen (15) days in jail before being placed on probation. After a thorough review of the record before this Court, we conclude that there is no reversible error and affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/Hillstev_opn.WP6
STATE OF TENNESSEE VS. JERMAIN HURST Court:TCCA Attorneys: For Appellant For Appellee J. Liddell Kirk John Knox Walkup 706 Walnut Street, Suite 902 Attorney General and Reporter Knoxville, TN 37902 425 Fifth Avenue North Nashville, TN 37243-0493 Ellen H. Pollack Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Paula Gentry Asst District Attorney General Office of the District Attorney General City-County Building Knoxville, TN 37902 Leon Franks Asst District Attorney General Office of the District Attorney General City-County Building Knoxville, TN 37902 Judge:OGLE First Paragraph: The appellant, Jermain Hurst, appeals his conviction in the Knox County Criminal Court of possession of more than .5 grams of cocaine with the intent to sell, a class B felony, and possession of marijuana, a class A misdemeanor. The trial court imposed, respectively, concurrent sentences of ten years incarceration in the Tennessee Department of Correction and eleven months and twenty-nine days incarceration in the Knox County Jail. On appeal, the appellant presents only one issue for our consideration: Whether the trial court erroneously denied his motion to suppress the State's use at trial of money, cocaine, and marijuana seized by the police. 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/Hurstje_opn.WP6
DAVID LEE McNISH VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PAUL N. BUCHANAN, JOHN KNOX WALKUP Post-Conviction Defender Attorney General and Reporter Staff Attorney 500 Deaderick Street MICHAEL E. MOORE Nashville, TN 37243 Solicitor General MARK SLAGLE PETER M. COUGHLAN 302 Sunset Drive Assistant Attorney General Johnson City, TN 37604 425 Fifth Avenue North Nashville, TN 37243 DAVID CROCKETT District Attorney General H. GREELEY WELLS, JR. Asst District Attorney General P.O. Box 526 Blountville, TN 37617 Judge:WELLES First Paragraph: The Defendant, David Lee McNish, appeals the decision of the trial court denying him post-conviction relief from his sentence of death for the premeditated first degree murder of the seventy-year-old victim, Gladys Smith. The facts presented at trial are reproduced below from the decision of the Tennessee Supreme Court on direct appeal affirming Defendant's conviction and sentence in State v. McNish, 727 S.W.2d 490 (Tenn. 1987). For the reasons set forth in this opinion, we affirm the trial court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/Mcnishdl_opn.WP6
STATE OF TENNESSEE VS. ANDREW LEE MOATS, JR., A.K.A, BUTCH MOATS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: M. JEFFREY WHITT (at trial and PAUL G. SUMMERS Attorney at Law on appeal) Attorney General & Reporter 706 Walnut Street, Suite 902 Knoxville, TN 37902 MARVIN S. BLAIR, JR. Assistant Attorney General RICHARD W. CLARK, III (at trial) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 706 Walnut Street, Suite 903 Knoxville, TN 37902 WILLIAM E. DOSSETT District Attorney General FRED BRIGHT Asst District Attorney General 400 Main, P.O. Box 1468 Knoxville, TN 37901-1468 Judge:WITT First Paragraph: The defendant, Andrew Lee Moats, Jr., appeals from his jury conviction for first degree murder in the Knox County Criminal Court. The trial court imposed a life sentence in the Tennessee Department of Correction. In this direct appeal, the defendant challenges the sufficiency of the evidence and contends there is inadequate proof of intent, deliberation and premeditation to support his conviction for first degree murder. After a review of the record, the briefs of the parties, and the applicable law, we affirm. http://www.tba.org/tba_files/TCCA/Moatsal_opn.WP6
WILLIE E. PAYNE VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Reporter DONNA ROBINSON MILLER MARVIN S. BLAIR, JR. Asst District Public Defender Assistant Attorney General Suite 300, 701 Cherry Street 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493 WILLIAM H. COX III District Attorney General Suite 300, 600 Market Street Chattanooga, TN 37402 Judge:WILLIAMS First Paragraph: The petitioner, Willie E. Payne, appeals the trial court's dismissal of his post-conviction relief petition. The petitioner was convicted by a jury of having raped a female under twelve years of age. The trial court sentenced him to death, and the Court of Appeal affirmed his sentence in 1978. Later, Governor Ray Blanton commuted his sentence to life imprisonment. On April 14, 1997, the petitioner filed a "Petition for Writ of Habeas Corpus," which was properly treated by the trial court as a motion for post-conviction relief. The petitioner claims that the indictment in his case was constitutionally defective because it did not allege a specific mens rea; i.e., it did not use the language "intentionally, knowingly, or recklessly." After review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Paynewe_opn.WP6
STATE OF TENNESSEE VS. JERRY C. PENDERGRASS and BROAD STREET VIDEO Court:TCCA Attorneys: FOR THE APPELLANT FOR THE APPELLEE: JERRY C. PENDERGRASS: JOHN KNOX WALKUP H. LOUIS SIRKIN Attorney General & Reporter Attorney at Law 105 W. Fourth St., Ste. 920 ELLEN H. POLLACK Cincinnati, OH 45202 Asst. Attorney General 425 Fifth Ave. North JOHN E. HERBISON 2d Floor, Cordell Hull Bldg. Attorney at Law Nashville, TN 37243-0493 2016 Eighth Ave. S. Nashville, TN 37204 VICTOR S. JOHNSON, III District Attorney General FOR THE APPELLANT BROAD STREET VIDEO: BARRY STEELEMAN Asst. District Attorney General ARVIN H. REINGOLD 600 Market St., Courts Bldg. Attorney at Law Chattanooga, TN 37402 1010 Market St. Chattanooga, TN 37402 Judge:WITT First Paragraph: The defendants, Jerry C. Pendergrass and Broad Street Video, were convicted of obscenity-related crimes at the conclusion of a jury trial in the Hamilton County Criminal Court. Both defendants were convicted of distribution of obscene matter, a Class A misdemeanor. See Tenn. Code Ann. S 39-17-902(a), (c)(1) (1997). Pendergrass was also convicted of possession with intent to distribute obscene matter, a Class A misdemeanor. See Tenn. Code Ann. S 39-17-902(a), (c)(1) (1997). Pendergrass received an eleven month, 29 day sentence, 75 percent of which was to be served in the county workhouse. Broad Street Video was fined $31,000. http://www.tba.org/tba_files/TCCA/Pendergr_opn.WP6
STATE OF TENNESSEE VS. ARNOLD LEE POTTER Court:TCCA Attorneys: FOR THE APPELLANT: RAYMOND MACK GARNER District Public Defender SHAWN G. GRAHAM (At Trial) Assistant District Public Defender 419 High Street Maryville, TN 37804 JULIE A. RICE (On Appeal) P. O. Box 426 Knoxville, TN 37901-0426 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter CLINTON J. MORGAN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 MICHAEL L. FLYNN District Attorney General WILLIAM R. REED LISA B. McKENZIE Asst. District Attorneys General 363 Court Street Maryville, TN 37804-5906 Judge:RILEY First Paragraph: The sole issue in this appeal is whether the trial court erred in sentencing the defendant for simple assault to the maximum sentence of 11 months and 29 days and denying alternative sentencing. We AFFIRM the judgment of the trial court pursuant to Rule 20, Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/Potteral_opn.WP6
STATE OF TENNESSEE VS. DONALD SCHWEITZER Court:TCCA Attorneys: FOR THE APPELLANT: CHARLES B. HILL II P. O. Box 852 Kingston, TN 37763 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter MARVIN S. BLAIR, JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 CHARLES E. HAWK District Attorney General DENNIS W. HUMPHREY Assistant District Attorney General P. O. Box 703 Kingston, TN 37763-0703 Judge:RILEY First Paragraph: Defendant, Donald Schweitzer, was convicted by a Roane County jury of the offense of filing a fraudulent insurance claim under $500 in value, a Class A misdemeanor. In this appeal as of right, the sole issue is whether the evidence was sufficient to support the verdict. We AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Shwetzrd_opn.WP6
BILLY JOE SISK VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: SUSANNA LAWS-THOMAS PAUL G. SUMMERS Assistant Public Defender Attorney General & Reporter 102 Mims Avenue Newport, TN 37821-3614 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 AL C. SCHMUTZER, JR. District Attorney General JAMES BRUCE DUNN Assistant District Attorney General 339-A East Main Street Newport, TN 37821 Judge:WILLIAMS First Paragraph: Billy Joe Sisk appeals from a judgment of the Circuit Court of Cocke County dismissing his petition for post-conviction relief. The petitioner was convicted of aggravated assault and second degree murder and was sentenced to concurrent terms of three and eighteen years respectively. This Court affirmed his convictions and sentences on direct appeal. See State v. Billy Joe Sisk, Cocke County, No. 03C01-9410-CR-00367 (Tenn. Crim. App. filed January 17, 1997, at Knoxville). http://www.tba.org/tba_files/TCCA/Siskbj_opn.WP6
STATE OF TENNESSEE VS. TIMOTHY W. TIPTON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General & Reporter PAULA R. VOSS R. STEPHEN JOBE Asst District Public Defender Assistant Attorney General 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37921 Nashville, TN 37243 JAMES R. OWEN RANDALL E. NICHOLS Asst District Public Defender District Attorney General 1209 Euclid Avenue City-County Building Knoxville, TN 37921 Knoxville, TN 37902 WILLIE R. HARPER Asst District Attorney General City-County Building Knoxville, TN 37902 Judge:GLENN First Paragraph: The defendant, Timothy Wayne Tipton, has appealed as of right the action of the Knox County Criminal Court, denying his motion to vacate a judgment of the Knox County General Sessions Court because the judgment, although signed by the judge, was undated. The judgment was later the basis for a revocation proceeding, which precipitated this appeal. Based upon our review of the record and the applicable law, we affirm the order of the trial court denying the defendant's motion. http://www.tba.org/tba_files/TCCA/Tiptontw_opn.WP6
ALONZO C. WILLIAMS VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Alonzo C. Williams, pro se John Knox Walkup c/o B.M.C.X. Attorney General and Reporter P.O. Box 2000 Wartburg, TN 37887 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 Randall E. Nichols District Attorney General City-County Building Knoxville, TN 37902 Judge:WADE First Paragraph: The petitioner, Alonzo C. Williams, appeals the trial court's dismissal of his petition for post-conviction relief, his third in the last fourteen years. In this appeal of right, the single issue presented for review is whether the petition was barred by the statute of limitations. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/Willmsac_opn.WP6
Judicial Ethics Opinion Judge: WAGGONER First Paragraph: A request has been made for an advisory ethical opinion based upon the following factual information: A complaint for absolute divorce was filed by plaintiff husband in the appropriate court after a bed and board divorce was entered in the same court several years earlier. Proof was heard and the attorneys requested closing arguments be presented to the Court subsequent to the Court having the opportunity to review the transcript from the bed and board divorce. That transcript was reviewed and counsels were notified the Court was prepared to receive closing arguments. A significant period of time passed without counsels scheduling closing argument although they were reminded of the Court's preparation to hear closing arguments on several occasions. A complaint was filed with the Court of the Judiciary by the plaintiff husband alleging that the presiding judge in the case took the case under advisement on January 24, 1997, and the judge refuses to render a decision. Since the complaint with the Court of the Judiciary has been filed, complainant/plaintiff husband's attorney has now filed a written closing statement and certain motions are pending before the Court. The judge now inquires: (1) whether or not the Court should recuse itself from ruling on the pending divorce petition for ethical reasons; (2) whether or not a waiver by the parties can cure any ethical disqualification of the judge; and (3) whether or not the Court can disclose the contents of the complaint filed with the Court of the Judiciary to all parties and counsel upon request so a waiver of the judge's disqualification can be considered. http://www.tba.org/tba_files/TSC_Rules/99-3_opn.WP6

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