TBALink Opinion-Flash

September 29, 1997 -- Volume #3 -- Number #092

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

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George Dean
TBALink Chief Editor


WILLIAM D. CARROLL
vs.
FRED RANEY, WARDEN

Court:TSC

Attorneys: 

For Appellant:                      For Appellee:
Julie K. Pillow                     John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
Covington, Tennessee
                                    Michael E. Moore
Gary F. Antrican                    Solicitor General
Pubic Defender
Covington, Tennessee                Gordon W. Smith
                                    Associate Solicitor General
                                    Nashville, Tennessee                         

Judge: ANDERSON

First Paragraph:

The defendant filed a writ of habeas corpus seeking his freedom from
prison on the grounds his commuted sentence had expired prior to being
revoked by the Governor.  The trial court found that the commuted
sentence from life to "22 years to life" had expired before the
Governor's revocation and granted the defendant's petition for the
writ of habeas corpus.  The Court of Criminal Appeals reversed,
holding that the Governor's commutation was conditional and that the
Governor had the authority to revoke the commutation at any time
throughout the defendant's life.

URL:http://www.tba.org/tba_files/TSC/carrollw_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JAMES DUBOSE

with DISSENTING OPINION

Court:TSC

Attorneys:

For Plaintiff-Appellee:         For Defendant-Appellant:
Charles W. Burson               Robert H. Plummer, Jr.
Attorney General & Reporter     Franklin
Nashville

Michael E. Moore
Solicitor General
Nashville

Michael W. Catalano
Associate Solicitor General
Nashville

Amy Tarkington
Assistant Attorney General
Nashville

Joseph D. Baugh
District Attorney General
Franklin                         

Judge: REID

First Paragraph:

This case presents for review the decision of the Court of Criminal
Appeals affirming the conviction of James DuBose of first degree
murder by aggravated child abuse.  The defendant was sentenced to
imprisonment for life.  Permission to appeal was granted in order to
review the trial court's ruling allowing the introduction of evidence
of prior injuries suffered by the victim.

URL:http://www.tba.org/tba_files/TSC/dubosej_opn.WP6
URL:http://www.tba.org/tba_files/TSC/dubosej_dis.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
MAURICE GORDON

Court:TSC

Attorneys:

For Appellant:                      For Appellee:
Jeffrey A. DeVasher                 Charles Burson
Senior Assistant Public Defender    Attorney General & Reporter

Joan A. Lawson                      Michael E. Moore
Senior Assistant Public Defender    Solicitor General

Ross Alderman                       Elizabeth T. Ryan
Deputy Public Defender              Assistant Attorney General
Nashville, Tennessee                Nashville, Tennessee

                                    Victor S. Johnson, III
                                    District Attorney General

                                    Renee Erb
                                    Bill Reed
                                    Asst District Attorneys General
                                    Nashville, Tennessee                          

Judge: ANDERSON

First Paragraph:

We granted this appeal to review two familiar exceptions to the rule
which excludes hearsay statements from a trial: statements relating to
a startling event or condition made while under the stress of
excitement from the event or condition; and statements made for the
purpose of medical diagnosis and treatment.

URL:http://www.tba.org/tba_files/TSC/gordonm_opn.WP6
Opinion-Flash

KENNETH McDANIEL
vs.
CSX TRANSPORTATION, INC.

Court:TSC

Attorneys: 

For Appellant:                      For Appellee:
Wayne L. Robbins, Jr.               Van Kirk McCombs, II
Gareth S. Aden                      James H. Wettermark
GULLETT, SANFORD,                   BURGE & WETTERMARK, P.C.
  ROBINSON & MARTIN, PLLC           2300 SouthTrust Tower
Nashville, Tennessee  37219         Birmingham, Alabama  35203-3204

Edward H. Stopher
BOEHL, STOPHER & GRAVES
Suite 2300, Providian Center
400 West Market Street
Louisville, Kentucky  40202-3346
                         
Judge: ANDERSON

First Paragraph:

We granted this interlocutory appeal to clarify the standards for the
admissibility of scientific evidence under Tennessee Rules of Evidence
702 and 703.

URL:http://www.tba.org/tba_files/TSC/mcdanilk_opn.WP6
Opinion-Flash

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
September 29, 1997      

Court:TSC - Rules

URL:http://www.tba.org/tba_files/TSC_Rules/statelst4_wpd.WP6
Opinion-Flash

CHARLEY CLUNAN COMPANY, INC.
vs.
JOYCE JEANETTE MARTIN

Court:TCA

Attorneys: 

Mark J. Grai, THE WINCHESTER LAW FIRM, Memphis, Tennessee
    Attorney for Defendant/Appellant.
Cary R. Califf, Memphis, Tennessee
Linda J. Mathis, Memphis, Tennessee
    Attorney for Plaintiff/Appellee.                         

Judge: FARMER

First Paragraph:

Defendant Joyce Jeanette Martin appeals the trial court's order which
awarded Plaintiff/Appellee Charley Clunan Company, Inc., a judgment of
$35,200 in its action to recover a real estate commission.  We affirm
the judgment because we have determined that the record supports the
trial court's ruling that Martin breached the terms of the parties'
exclusive listing agreement when she sold the property to a third
party without paying the Company a commission.

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

STATE OF TENNESSEE
DEPARTMENT OF HUMAN SERVICES
vs.
REBECCA WALLACE RUSSELL

Court:TCA

Attorneys:

For Appellant                       For Appellee
MARK A. SKELTON                     JOHN KNOX WALKUP
Rogersville, Tennessee              Attorney General and Reporter
                                    Nashville, Tennessee

                                    DOUGLAS EARL DIMOND
                                    Assistant Attorney General
                                    General Civil Division
                                    Nashville, Tennessee                          

Judge: Susano

First Paragraph:

The trial court terminated the parental rights of Rebecca Wallace
Russell ("Mother") in and to her minor child, Kayla Michelle Wallace,
whose date of birth is February 10, 1993.  Mother appealed, arguing
that the evidence preponderates against the trial court's
determination that there is clear and convincing evidence that
termination is in the child's best interest and that one or more of
the conditions set forth in T.C.A. S 37-1 147(d)(1)(A)-(C) (Supp.
1995) exist in this case.  We affirm.

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

IN THE MATTER OF:
MICHAEL LYNN SHIPLEY
BEVERLY ANN SHIPLEY
TIFFANY ALEITHA SHIPLEY
FRANK MICHAEL SHIPLEY,
Children under the age of eighteen years

STATE OF TENNESSEE  
DEPARTMENT OF CHILDREN'S SERVICES,      
GREENE COUNTY JUVENILE COURT
vs.
RALPH MICHAEL SHIPLEY

Court:TCA

Attorneys: 

For Appellant                       For Appellee
T. WOOD SMITH                       JOHN KNOX WALKUP
Greeneville, Tennessee              Attorney General & Reporter
                                    Nashville, Tennessee

                                    DOUGLAS EARL DIMOND
                                    Assistant Attorney General
                                    General Civil Division
                                    Nashville, Tennessee                         

Judge: Susano

First Paragraph:

This is a termination of parental rights case under the new Adoption
Code.  Following a bench trial on July 17, 1996, the court terminated
the parental rights of Ralph Michael Shipley ("Father") with respect
to his minor children, Michael Lynn Shipley (DOB: 9/20/87), Beverly
Ann Shipley (DOB: 10/28/88), Tiffany Aleitha Shipley (DOB: 3/29/90),
and Frank Michael Shipley (DOB: 2/3/91).  Father appealed.  He argues
that the evidence preponderates against the trial court's
determination that multiple grounds existed for the termination of his
parental rights.

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

ROBERT DALE CHRISTOPHER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

Joseph S. Ozment                    Charles W. Burson
217 Exchange Avenue                 Attorney General of Tennessee
Memphis, TN 38105                       and             
                                    Georgia Blythe Felner
                                    Asst Attorney General of Tennessee                  
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    Alfred C. Schmutzer, Sr.
                                    District Attorney General
                                    301 Sevier County Courthouse
                                    Sevierville, TN 37862
                                        and
                                    Richard R. Vance
                                    Asst District Attorney General
                                    339A Main Street
                                    Newport, TN 37821                        

Judge: Tipton

First Paragraph:

The petitioner, Robert Dale Christopher, appeals as of right from the
dismissal of his petition for post-conviction relief by the Circuit
Court for Cocke County as being untimely filed.  He contends that his
petition was timely under the 1995 Post-Conviction Procedure Act as
interpreted in Arnold Carter v. State, No. 03C01-9509-CC-00270, Monroe
County (Tenn. Crim. App. July 11, 1996).  The trial court is affirmed.

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

MICHAEL D. DAVIS
vs. 
STATE OF TENNESSEE

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court in this case by order rather than formal
opinion.  Rule 20, Rules of the Court of Criminal Appeals.  The record
in this appeal was filed on June 25, 1997, and the petitioner has
already filed his brief.

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

STATE OF TENNESSEE
vs.
MIKI EDWARD GOLDEN

Court:TCCA

Attorneys:

For Appellant:                          For Appellee:
Michael W. Ritter                       Charles W. Burson
131 East Tyrone Road                    Attorney General & Reporter
Oak Ridge, TN  37830
                                        Sandy R. Copous
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        450 James Robertson Parkway
                                        Nashville, TN  37243-0493

                                        Jan Hicks
                                        Asst District Attorney General 
                                        127 Anderson County Courthouse
                                        Clinton, TN  37716                          

Judge: WADE

First Paragraph:

The defendant, Miki Edward Golden, appeals from the judgment of the
trial court suspending his driver's license for six months after
finding that he violated the implied consent law defined in Tenn. Code
Ann. S 55-10-406.  The issue is whether the defendant had adequate
notice of the charge.  Because he did not, we must reverse.

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

STATE OF TENNESSEE
vs.
FREDDIE HARRISON

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE
David F. Bautista                   John Knox Walkup
District Public Defender            Attorney General & Reporter

Gerald L. Gulley, Jr.               Michael J. Fahey, II
Contract Appellate Attorney         Assistant Attorney General      
P.O. Box 1708                       450 James Robertson Parkway 
Knoxville, TN  37901-1708           Nashville, TN  37243 0493   
(on appeal)             

David E. Crockett                   Robert Y. Oaks 
                                    District Attorney General       
Assistant Public Defender
Main Courthouse                     Lisa Nidiffer Rice          
Elizabethron, TN  37643-3328        Asst District Attorney General
(at trial)                          Rte. 19 Box 99
                                    Johnson City, TN  37601                          

Judge: WADE

First Paragraph:

The defendant entered a plea of guilty to possession of marijuana in a
state penal institution and was sentenced to serve three years.  The
defendant properly reserved questions of law, and these questions were
certified to this Court. They are: I. The "punitive segregation" and
other sanctions applied to the appellant for possessing contraband
narcotics within a penal institution, and which are described as
"punishments" by the Tennessee Department of Corrections, preclude
subsequent indictment and trial for the same offense on grounds of
double jeopardy. II. The process by which prisoners who violate prison
rules against possession of illegal contraband are selected for
prosecution in state court is a selective enforcement that is devoid
of any rational basis, and therefore a violation of the equal
protection and due process rights of the appellant. We affirm the
judgment of the trial court.

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

SAMMIE NETTERS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:
HOWARD B. MANIS                     JOHN KNOX WALKUP 
200 Jefferson, Suite 1313           Attorney General and Reporter
Memphis, TN 38103     
                                    ELIZABETH T. RYAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    REGINALD HENDERSON
                                    Ass District Attorney General
                                    201 Poplar Ave., Suite 301
                                    Memphis, TN 38103                          

Judge: RILEY

First Paragraph:

This is an appeal from the dismissal of appellant's petition for post
conviction relief.  The sole issue is whether appellant was deprived
of effective assistance of counsel at the time of entry of his prior
guilty plea.  Based upon the factual findings of the trial court, we
conclude that appellant's counsel had a conflict of interest.   Since
this conflict is presumptively prejudicial to appellant, we must set
aside the guilty plea and remand for further proceedings.

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

STATE OF TENNESSEE
vs.
DAVID WILLIAM SMITH

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

LARRY WEDDINGTON                    JOHN KNOX WALKUP 
Attorney at Law                     Attorney General & Reporter
200 Seventh Street 
Bristol, TN  37620                  MARVIN E. CLEMENTS, JR.
                                    Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243-0943

                                    H. GREELEY WELLS, JR.
                                    District Attorney General

                                    JOSEPH EUGENE PERRIN
                                    Asst District Attorney General
                                    P.O. Box 526
                                    Blountville, TN  37617-0526                         

Judge: WOODALL

First Paragraph:

The Defendant, David William Smith, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure.  On August 30,
1994, Defendant entered pleas of guilty to three charges of aggravated
burglary and three charges of theft over $1,000.  Defendant received
four years on each conviction to run concurrently, and a probation
order was entered that same day.  Defendant's probation was revoked on
February 15, 1995, and he was ordered to serve his sentence on
Community Corrections.  On July 14, 1995, an Order was entered
returning Defendant to probationary status subject to the Community
Corrections Supervision Order.   On December 1, 1995, another arrest
warrant was issued for Defendant's violation of probation.  Following
a probation hearing in the Circuit Court of Sullivan County, 
Defendant's probation was revoked and he was ordered to serve the
sentence in confinement.  In his sole issue on appeal, the Defendant
argues that the trial court abused its discretion in revoking
Defendant's probation and ordering him to serve his sentence.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
BOBBY TEASTER

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

EDWARD CANTRELL MILLER              JOHN KNOX WALKUP 
District Public Defender            Attorney General & Reporter

SUSANNA LAWS THOMAS                 CLINTON J. MORGAN 
Assistant Public Defender           Assistant Attorney General
102 Mims Avenue                     2nd Floor, Cordell Hull Building
Newport, TN  37821-3614             425 Fifth Avenue North 
                                    Nashville, TN  37243-0943

                                    ALFRED C. SCHMUTZER, JR.
                                    District Attorney General

                                    G. SCOTT GREEN 
                                    Asst District Attorney General
                                    125 Court Avenue, Room 301-E 
                                    Sevierville, TN  37862 
                          
Judge: WOODALL

First Paragraph:

The Defendant, Bobby Teaster, appeals as of right pursuant to Rule 3
of  the Tennessee Rules of Appellate Procedure.  Following a jury
trial in the Criminal Court of Sevier County, the Defendant was
convicted of driving under the influence, first offense.  The trial
court sentenced Defendant to serve eleven (11) months, twenty-nine
(29) days, with fifty percent (50%) minimum service prior to release. 
The sentence was ordered to run consecutive to a prior  ten (10) year
penitentiary sentence for bribery and subornation of perjury in Case
No. 5675 in Sevier County.  Defendant raises two issues on appeal: (1)
that the evidence was insufficient to sustain a verdict of guilty
beyond a reasonable doubt of first offense DUI, and; (2)  that the
trial court erred by ordering consecutive sentencing.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE
vs.
REGINALD O. WEBB

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
W. Mark Ward                        John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
147 Jefferson, Suite 900            500 Charlotte Avenue
Memphis, TN  38103                  Nashville, TN  37243-0497
(Appeal Only)
                                    Clinton J. Morgan
Loyce D. Lambert                    Assistant Attorney General
Assistant Public Defender           450 James Robertson Parkway
201 Poplar Avenue, Suite 201        Nashville, TN  37243-0493
Memphis, TN  38103-1947
(Trial Only)                        William L. Gibbons
                                    District Attorney General
OF COUNSEL:                         201 Poplar Avenue, Suite 301
A C Wharton, Jr.                    Memphis, TN  38103-1947
Public Defender
201 Poplar Avenue, Suite 201        James M. Lammey, Jr.
Memphis, TN  38103-1947             Asst District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN  38103-1947                         

Judge: Jones

First Paragraph:

The appellant, Reginald O. Webb (defendant), was convicted of murder
in the second degree, a Class A felony, by a jury of his peers.  The
trial court found that the defendant was a standard offender and
imposed a Range I sentence consisting of confinement for twenty (20)
years in the Department of Correction.  In this Court the defendant
contends (a) the evidence was insufficient, as a matter of law, to
support a finding by a rational trier of fact that he was guilty of
murder in the second degree, and (b) the trial court committed error
of prejudicial dimensions by instructing the jury on flight following
the commission of a criminal offense.  After a thorough review of the
record and the briefs submitted by the parties, it is this Court's
opinion the judgment of the trial court should be affirmed.

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

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