             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                            JULY 1997 SESSION
                                                       December 4, 1997

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
KENNETH LEE PIPKIN,              )     No. 01C01-9608-CC-00328
                                 )
      Appellant                  )
                                 )     STEWART COUNTY
V.                               )
                                 )     HON. ROBERT E. BURCH,
STATE OF TENNESSEE,              )     JUDGE
                                 )
      Appellee.                  )     (Post-Conviction)
                                 )
                                 )


For the Appellant:                     For the Appellee:

Shipp R. Weems                         John Knox Walkup
District Public Defender               Attorney General and Reporter

Robbie T. Beal                         Peter M. Coughlan
Assistant Public Defender              Assistant Attorney General
P.O. Box 160                           450 James Robertson Parkway
Charlotte, TN 37036                    Nashville, TN 37243-0493

                                       Dan Mitchum Alsobrooks
                                       District Attorney General

                                       George Sexton
                                       Assistant District Attorney
                                       Humphrey County Courthouse
                                       Waverly, TN 37185




OPINION FILED: ___________________


AFFIRMED IN PART; REVERSED IN PART
DELAYED APPEAL GRANTED


William M. Barker, Judge
                                         OPINION


       The appellant, Kenneth Lee Pipkin, appeals as of right the denial of his post-

conviction petition by the Stewart County Circuit Court. On appeal, he contends that

his trial counsel was ineffective: (1) for failing to remove a biased juror from the jury

panel; (2) for failing to challenge the qualifications of an expert witness; (3) for failing

to thoroughly cross-examine a witness; (4) for seeking a continuance of the case

which was prejudicial to appellant; and (5) for failing to properly inform appellant about

his right to appeal. We conclude that counsel was ineffective in advising appellant

about pursuing an appeal, thus resulting in a waiver of that right which was not

voluntary or knowing. Therefore, we grant appellant the opportunity to pursue a

delayed appeal. In all other respects, we affirm the trial court.

                                   Factual Background

       Marilyn June Adkins disappeared on December 30, 1990 and law enforcement

officials found physical evidence to indicate that foul play was involved. Authorities

discovered her abandoned car at the end of a deserted road and it appeared that

someone had tried to run it over an embankment. Not too far away, the contents of

Adkins’ purse were found strewn on the side of the road in a logging area. A few

miles away in a pine thicket, they found a pool of blood on the ground and a watch

belonging to Adkins. Near the Paris Landing Bridge in Stewart County, authorities

found a quilt, stained with blood, and a pair of brown jersey work gloves that had been

thrown over an embankment. Despite extensive searches and efforts, they were

unable to locate the victim’s body. In September of 1992, appellant was indicted for

the first degree murder of Adkins. Her body had not been recovered.

       Appellant’s trial was set in August of 1993, but was continued due to defense

counsel’s difficulties in interviewing witnesses. After the continuance, rather

unexpectedly, a commercial fisherman discovered the remains of a body in the

Tennessee River on August 23, 1993. Only the lower portion of a body, from the waist


                                              2
down, was recovered. At appellant’s trial in March of 1994, the State offered proof

that the remains were that of a white female, between the ages of 37 and 42,

approximately 5'5" tall. This was consistent with the physical description of the victim.

Testimony also indicated that based upon the degree of decomposition, the body had

likely been submerged for one to five years. In addition, some of the victim’s family

members identified the pants and shoes that were found on the remains. The cause

of death could not be ascertained due to the incomplete remains.

         In implicating the appellant, testimony reflected that a witness had seen the

victim and appellant together in appellant’s truck at a boat dock several hours before

she disappeared. The State alleged that the two were having an affair. Expert

testimony demonstrated that the blood found on the ground and the quilt was

consistent with that of the victim.1 The State alleged the quilt belonged to the

appellant, introducing testimony that he often covered the seat of his truck with a

patchwork quilt, similar to the one discovered. The brown work gloves found with the

quilt were shown to be of the kind appellant used in operating a chain saw in his

logging work. They smelled of gasoline and similar gloves were also found in a search

of appellant’s home.

         Appellant was convicted by a jury of the second degree murder of Adkins.

Appellant received the minimum fifteen year sentence as a result of his conviction.

On March 25, 1996, he filed a pro se post-conviction petition alleging ineffective

assistance of counsel. The trial court appointed counsel and held an evidentiary

hearing. After accepting proof on the issues, the trial court dismissed appellant’s

petition, ruling that he did receive the effective assistance of counsel.




         1
        A TB I Age nt with expe rtise in sero logy te stified that th e bloo d on t he gr oun d and on th e quilt
were cons isten t with th e victim ’s bloo d and that th e bloo d wa s def initely no t the a ppe llant’s . App aren tly,
DNA testing was also performed by the FBI and the State offered testimony on this issue as well. That
testimony was omitted from the trial transcript submitted in the record before us.

                                                            3
                                         Analysis

       In reviewing the appellant’s Sixth Amendment claim of ineffective assistance of

counsel, this Court must determine whether the advice given or services rendered by

the attorney are within the range of competence demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of

ineffective counsel, an appellant “must show that counsel’s representation fell below

an objective standard of reasonableness” and that this performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052,

2064, 2067-68, 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn.

Crim. App. 1985). The inability to prove either prong results in failure of the claim.

See Strickland, 466 U.S. at 697.

       The most difficult burden on an appellant is demonstrating the prejudice he has

suffered by the alleged error. In order to prevail on that ground, the appellant must

show a reasonable probability that but for counsel’s error the result of the proceeding

would have been different. Id.

       In order to sustain his post-conviction petition, the appellant must prove his

allegations of fact by clear and convincing evidence. Tenn. Code Ann. §40-30-210(f)

(Supp. 1996). On review, this Court cannot re-weigh or re-evaluate the evidence. We

give deference to questions about the credibility of the witnesses, the weight and

value to be given their testimony, and the factual issues raised by the evidence as

they are resolved by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App. 1990). Furthermore, the factual findings of the trial court are conclusive on

appeal unless the evidence preponderates against the judgment. Id. See also Davis

v. State, 912 S.W.2d 689, 697 (Tenn. 1995) (citations omitted); Cooper v. State, 849

S.W.2d 744, 746 (Tenn. 1993) (citation omitted).

       Appellant first claims that his trial counsel was ineffective for failing to challenge

a biased juror during voir dire. Appellant’s testimony at the post-conviction hearing



                                             4
reflected that he had once gone on a date with potential juror Vicki Angel. When

Angel denied knowing the appellant during voir dire, he informed his counsel that he

had dated her, that she might be “against him,” and requested counsel to remove her

from the jury. Appellant’s wife, a native of Stewart County who actively participated in

jury selection, corroborated appellant’s testimony. She also told counsel that Angel

lied when she denied knowing the appellant.

        At trial, appellant was represented by three retained attorneys, James

Sanderson, William Hatton, and Steve Hale. Both Hale and Hatton testified at the

post-conviction hearing. 2 Hale testified that he remembered appellant telling them that

he had dated Angel. He stated that when they asked appellant if she would be a

problem, he replied, “No.” Considering that Angel did not reveal the relationship and

that appellant did not perceive her to be a problem, Hale testified that they believed

she might be helpful. Therefore, they made a tactical decision not to strike her from

the jury panel. Similarly, Hatton recalled that appellant told them that he and Angel

had a pretty good relationship and that she would probably be fair. He did not

remember appellant asking them to remove Angel.

        The trial court found that counsel exercised their best judgment in keeping

Angel on the jury panel. The trial court stated its belief that counsel felt she was

somewhat of a “wildcard” who could be beneficial to appellant. It found that this

tactical decision was not ineffective. We find this conclusion supported by the record

and will not disturb this finding. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App. 1990). Appellant has failed to carry his burden on this issue.

        Next, appellant argues that his counsel was ineffective for failing to challenge

the qualifications of one of the State’s numerous expert witness. He argues that

counsel should have objected to the qualifications of Emily Craig because her

methods were not subjected to the Frye test. See Tenn. R. Evid. 702 Advisory


        2
         Mr. San derson was un able to ap pear an d testify at the e videntiary hea ring due to serious health
problem s. At that tim e, he wa s hosp italized and aw aiting a hea rt transplan t.

                                                      5
Commission Comments. He also questions her status as an expert because she did

not possess a doctoral degree.

       Emily Craig was proffered by the State to testify as an expert on the race of the

human remains recovered from the river. Her preliminary testimony demonstrated

that she was a doctoral student studying under Dr. William Bass at the University of

Tennessee in forensic anthropology. She had a master’s degree from the Medical

College of Georgia and was slated to receive her doctoral degree in approximately five

months. Her specialty in forensic anthropology was in the knee and shoulder, an area

in which she had extensive training from working at the Houston Orthopaedic Clinic for

fifteen years.

       Craig explained that she had spent the last three years researching a method

to determine a person’s race by measuring the end of the femur and the angle in the

knee joint. In addition to being the topic of her dissertation, she had also written an

article on that subject which had been accepted for publication. She stated that this

area was not a new field of study, but rather a new method. Using this method, she

testified that the human remains in this case were of a white or Caucasian person. On

cross-examination, Craig stated that she believed her methods had been generally

accepted by the forensic science community.

       At the evidentiary hearing, counsel Bill Hatton testified that he and Sanderson

discussed all the expert testimony prior to trial and stated that they had notice of

Craig’s qualifications. He recalled that the district attorney questioned her thoroughly

about her qualifications before the jury. He also remembered her background

included authoring a dissertation on the topic and fifteen to twenty years of education

and research in the field. Hatton testified that based on that information, they chose

not to challenge her as an expert witness.

       On this issue, the trial court found that expert witnesses do not necessarily

have to possess a doctoral degree. It acknowledged that Craig’s methods were not

subjected to the Frye test, but found no indication in record that she would not have

                                             6
met this test. More importantly, however, the trial court found that appellant was not

prejudiced by her testimony because it was cumulative.

        We agree with the trial court that appellant suffered no prejudice from the

alleged error. When Craig testified, the State had already presented testimony from

Dr. Charles Harlan, the chief medical examiner for the State of Tennessee. In

testifying about the autopsy he performed on the remains, Dr. Harlan stated that the

remains were of a white female. More significantly, the victim’s family members

identified the clothing on the remains as that of the victim. We agree with the trial

court that testimony from the family members was the most important and persuasive

evidence on this issue. Even if counsel had objected and Craig’s testimony excluded,

we believe the result would have been the same. Thus, appellant has failed to show

prejudice. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

        Appellant also believes his counsel was ineffective for failing to more

thoroughly cross-examine Billy Crane, a key witness for the State. Crane testified that

he was at the Dyer’s Creek Boat Dock on the afternoon of December 30, 1990. While

there, he saw a newer model red pickup truck and a 1970's model blue Thunderbird3

parked side by side. No one was seated in the Thunderbird. However, he noticed a

man and woman sitting in the truck talking. He also testified that as he left the boat

dock and proceeded to the main road, he noticed the blue Thunderbird behind him.

As he pulled onto Highway 79, he also noticed the red truck was following the blue

Thunderbird.

        On cross-examination, Crane was unable to say that the man he saw in the

pickup truck was the appellant. He stated the woman had brown hair, but he did not

know her. Furthermore, Crane was unable to say whether the truck was a Chevrolet

or GMC and he stated there were no distinguishing features about the truck.


        3
       Earlier proof had shown that the victim’s car, discovered by authorities, was a 1979 blue
Thunderbird.

                                                   7
       Proof at trial had demonstrated that appellant was driving a newer model, red,

Chevrolet pickup truck in December of 1990. Appellant argues that counsel should

have used pictures of appellant’s truck in his cross-examination of Crane. According

to appellant, these pictures would have shown that his truck had several distinctive

accessories, such as a black tailpiece, black rails, and a black hood scoop. His truck

also had the word “Chevrolet” in large black letters on the back. According to

appellant, showing these pictures to the jury would have weakened Crane’s testimony

since he testified that the pickup he saw had no distinctive features.

       Hatton testified that Crane was an intelligent and articulate witness and that he

considered his testimony very damaging. In light of this, Hatton testified that his

strategy was to perform a brief cross-examination and try to get Crane to indicate

anything favorable to appellant’s defense. The trial court found that to be sound trial

strategy. It noted that counsel was able to get Crane to admit he did not know

whether it was a GMC or Chevrolet truck. The trial court further remarked that it is

often wise not to press for favorable testimony from witnesses like Crane because

they often offer more damaging information. In the words of the trial court, counsel’s

tactic “was a good piece of work.”

       We agree with the trial court that the method of cross-examination of Crane

was a tactical decision made by counsel. We must give deference to such decisions if

they are informed ones that are the result of adequate preparation. Hellard v. State,

629 S.W.2d 4, 9 (Tenn. 1982) (citations omitted). See also Cooper v. State, 849

S.W.2d 744, 746 (Tenn. 1993). Having taken Crane’s deposition well before the trial,

Hatton was aware of Crane’s testimony and prepared his cross-examination

accordingly. We cannot fault his cross-examination strategy for an articulate and

persuasive witness who possessed damaging information. Moreover, our review of

the record indicates that there was a careful and effective cross-examination of the

witness. Appellant is entitled to no relief on this issue.



                                             8
        Appellant contends that his counsel was ineffective for seeking a continuance

of the trial when the victim’s body had not yet been discovered. He argues that

without a body, the State’s case was considerably weaker and may have resulted in

an acquittal.

        According to testimony at the post-conviction hearing, appellant’s case was set

for trial in August of 1993. On that date, a continuance was sought by the defense4

because counsel had not completed interviewing witnesses and were experiencing

difficulty in contacting many of them. Less than one week after the trial court granted

the continuance, the partial body was discovered.

        The trial court found that defense counsel were not ineffective for seeking the

continuance. The trial judge, who presided at the post-conviction hearing,

remembered that defense counsel were unable to properly prepare the case because

many potential witnesses were unwilling to talk with them. When he learned of this

difficulty on the day of trial, he notified the assistant district attorney and advised him

that he was going to continue the case and order that depositions be taken. The

witnesses were placed under subpoena and their depositions taken the day which had

been scheduled for trial.

        According to the trial court’s findings, the pivotal issue at that juncture of the

case was defense counsel’s preparation for trial. As counsel stated and the trial court

confirmed, no one expected the body to appear more than two years after the

disappearance. Counsel testified that although in retrospect the continuance may

have hurt the appellant, at that time, the risk of going to trial unprepared was more

significant and would have harmed appellant’s case more. We agree. Counsel was

not incompetent for seeking a continuance in a first degree murder trial involving

extensive expert testimony when they had been unable to interview all of the State’s

witnesses. Merely because in hindsight the tactic may have been harmful to appellant


        4
        Counsel Steve Hale testified that he reviewed his records and was unable to find that the
defense made a formal motion for a continuance.

                                                   9
does not make counsel’s assistance ineffective. Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). As the trial court stated, “We demand competence of lawyers. But we

certainly can’t ask clairvoyance.” We concur in the trial court’s decision that counsel

was not ineffective in this respect.

        Finally, appellant alleges that his counsel provided ineffective assistance in

persuading him to waive his right to appeal.5 At the evidentiary hearing, appellant

explained that Mr. Sanderson visited him at the jail the day after he was convicted.

Sanderson advised him not to pursue a hearing on a motion for new trial. He told

appellant that there were no trial errors and he probably could not get a new trial.

However, Sanderson told appellant that even if he did get a new trial, he would be

defending first degree murder charges and could get a life sentence.

        After appellant was sentenced, he testified that he wanted a hearing on a

motion for new trial and an appeal. Both he and his wife tried to contact his counsel in

this regard. However, he stated that counsel never visited him at the jail again.

Instead, he received a waiver of appeal in the mail, which he signed.6

        Appellant’s wife testified that she and appellant were interested in pursuing an

appeal. However, counsel advised her that it was a bad idea because appellant could

face first degree murder charges again. In fact, she stated that counsel told her there

was a very good chance on appeal that appellant would be brought “back in on first

degree murder charges.”7 Counsel also advised Mrs. Pipkin that the State had

considered the possibility of charging her in the crime as well. Mrs. Pipkin further

testified that counsel said it would be best not to appeal and she inferred from his

attitude that he did not want to appeal the case.



        5
         Appellant initially raised this ground in his pro se petition. Proof was taken on this issue at the
evidentiary hearing and summarized in the statement of facts of appellant’s brief. However, we note that
no discussion on this issue appears in the brief. We have chosen to address the issue irrespective of
the omission.

        6
            The waiver of appeal is not included in the record before us.

        7
            No evidence was introduced in contradiction.

                                                      10
      Steve Hale testified that he talked with the appellant on at least two occasions

about his sentence and an appeal. He also testified that it was his opinion that there

was no reversible error in the record. Counsel explained further:

      We had had conversations with [the district attorney’s] office. We had
      an understanding with your office that if Mr. Pipkin did testify truthfully
      about what had happened, that your office would not seek enhancement
      on that point where he would receive the minimum sentence.

      And also there had -- Throughout the course of this, your office had
      occasionally raised the glimmer of possibility that you would be looking
      at someone else to possibly prosecute. And you had given -- Your office
      and, I believe General Alsobrooks, actually -- But your office had given
      us the assurance that, once again, if Mr. Pipkin had testified and testified
      truthfully, that you would not seek to prosecute anyone else for this
      crime.

The assistant district attorney followed this answer by asking:

      Q.     Did you explain to him that by testifying, he was, in fact, waiving or
      giving up his appeal?
      A.     Yes, sir.
      Q.     And did he at some point in time sign an actual written waiver of
      appeal?
      A.     I believe so, yes.

       Mr. Hatton testified similarly. He recalled discussing the sentence and appeal

with appellant. He stated that he advised appellant to testify at the sentencing hearing

and give up the right to appeal. In response to why he gave such advice, Hatton

stated:

               Well, it was due in part to an agreement that we had with your
       office that should Mr. Pipkin take the stand at sentencing and testify
       truthfully, that I didn’t believe there would be any objection, as I
       understood it, to the minimum sentence, at least no enhancement
       factors would be argued.

              Also, as I understood as part of our agreement, there would not
       be further charges sought against any other family member, which had
       been discussed at different times.

               And, thirdly, I recall an agreement between my office and your
       office that if Mr. Pipkin took the stand and testified truthfully that there
       would be no opposition from any law enforcement agencies at any
       parole hearing he might have at any time in the future.

 The assistant district attorney then asked:

       Q.   Based upon those agreements and understandings, did you then
       recommend that he, in fact, testify --

                                             11
        A.       That’s correct.
        Q.       -- and give up his right to appeal?
        A.       Yes, sir.

        The trial court found that counsel’s advice on the waiver of appeal was a

tactical decision. It stated that counsel was unaware at that time of the issue with juror

Vicki Angel, which may have been fertile ground on appeal, and that the other matters

did not appear to have any chance for success. Therefore, the trial court found that

trading the appeal for the minimum sentence was a good tactical decision.

        We believe the record preponderates against the trial court’s judgment on this

issue. Our review of the record does not indicate that the waiver of appeal was part

and parcel of the agreement with the district attorney. As Hatton testified, the

agreement was that if the appellant testified truthfully at the sentencing hearing: (1) no

enhancement factors would be sought; (2) no other family member would be

prosecuted; and (3) no opposition at appellant’s later parole hearings. The agreement

did not include the appellant’s waiver of his appeal. Neither did Hale’s testimony

indicate this was a part of the agreement. Hale merely agreed that he advised

appellant that by testifying he was “in fact waiving or giving up his right to appeal.”

From our review, appellant was advised by counsel that if he testified at the

sentencing hearing, he was waiving his right to appeal. With this we cannot agree.

        While the implication of appellant’s testimony at the sentencing hearing8 was

that he would receive the minimum sentence and, arguably, have no grounds upon

which to appeal the sentence, we do not find that his testimony had any bearing on his

right to appeal errors that occurred during the trial. Therefore, appellant was not

properly informed about the circumstances surrounding his waiver of the right to

appeal.




        8
         It appears that appellant did testify at the sentencing hearing and as a result received the
minim um s entenc e. Howe ver, the tran script of tha t hearing w as not inc luded in the record o n appe al.
We are unaware of the circumstances surrounding the offense about which the appellant testified at that
hearing.

                                                     12
         An even more egregious error, however, was Sanderson’s advice to appellant

during his visit the day after the conviction. It is uncontraverted that Sanderson told

the appellant and his wife that it was unlikely that the appeal would result in a new

trial, but if it did, the appellant would again be facing a first degree murder charge with

a possible life sentence.

         That advice was simply incorrect. When one is convicted of a lesser offense

included in the charge of the original indictment, after a successful appeal he can be

retried only for the convicted offense or a lesser charge, but not on the greater offense

with which he was originally charged. Green v. United States, 355 U.S. 184, 191, 78

S.Ct. 221, 225, 2 L.Ed.2d 199 (1957); Johnson v. State, 397 S.W.2d 170, 173 (Tenn.

1965); King v. State, 391 S.W.2d 637, 639 (Tenn. 1965). To prosecute again on the

greater offense violates principles of double jeopardy. Green, 355 U.S. at 191.

         To illustrate this point, the defendant in Green was indicted for first degree

murder and convicted of second degree murder. The defendant appealed the second

degree murder conviction and received a new trial. At the second trial, the defendant

was tried again for first degree murder and convicted of that crime. The Supreme

Court held that this violated principles of double jeopardy. Green, 355 U.S. at 190-91.

         Appellant’s situation was identical. He was indicted for first degree murder and

convicted by a jury of the lesser charge of second degree murder. In such

circumstances, the jury’s conviction of second degree murder acted as an implicit

acquittal of the greater charge of first degree murder. Id. Had appellant appealed his

conviction of second degree murder and been granted a new trial, the greatest charge

the State could have sought in a retrial would be second degree murder. Hence,

Sanderson’s advice to appellant that he would again face first degree murder charges

was clearly erroneous. Such advice does not fall within the range of competence

demanded of attorneys in criminal cases. W e reverse the trial court’s holding on this

issue.



                                              13
         There is no constitutional right to appeal, but where appellate review is provided

by statute, the proceedings must comport with constitutional standards. State v.

Gillespie, 898 S.W.2d 738, 741 (Tenn. Crim. App. 1994) (citations omitted). Thus,

appellant was entitled to the effective assistance of counsel in pursuing his right of

appeal. See Evitts v. Lucey, 469 U.S. 387, 397-98, 105 S.Ct. 830, 836-37, 83 L.Ed.2d

821 (1985). Without the proper advice about his appeal, we cannot say that appellant

knowingly and voluntarily waived his right to appeal. See Tenn. R. Crim. P. 37(d);

Collins v. State, 670 S.W.2d 219, 221 (Tenn. 1984). Here, counsel’s wrong advice

contributed to appellant’s decision to waive his right to appeal. Had appellant not

been informed that a successful appeal could put him at risk of being again tried on

the charge of first degree murder which implicated a possible life sentence, he may

not have chosen to waive his statutory right to appeal. As a result, appellant has also

demonstrated prejudice from counsel’s error. Consequently, appellant is entitled to

pursue a delayed direct appeal. See State v. John L. Goodwin, No. 01C01-9108-CR-

00242 (Tenn. Crim. App. at Nashville, November 12, 1992) (“Where waiver of the right

to appeal results from legal advice by counsel which was incorrect and not given

within the range of competence demanded of attorneys in criminal cases and a direct

appeal would have been taken but for such misadvice, the waiver of appeal may be

invalidated.”).

         We therefore grant appellant the opportunity to pursue a delayed direct appeal.

Tenn. Code Ann. §40-30-213 (Supp. 1996). Because of the incomplete record 9 of the

trial proceedings before us, we are unable to determine whether a motion for new trial

was filed on behalf of the appellant. If not, the trial court shall permit the appellant to

file such motion within thirty days of the filing of the mandate from this Court. See




         9
          Counsel should ensure that a complete record on appeal is submitted. The record before us
contains an incom plete trial trans cript, no tran script from the sente ncing he aring, no w aiver of the right to
app eal, n or the tech nica l reco rd fro m th e trial.

                                                        14
Tenn. Code Ann. §40-30-213(a)(3) (Supp. 1996). The case is remanded to the trial

court for further proceedings consistent with this opinion.



                                                 _______________________________
                                                 William M. Barker, Judge



____________________________
John H. Peay, Judge



____________________________
Jerry L. Smith, Judge




                                           15
