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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.
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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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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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© Copyright 1998 Tennessee Bar Association - This Issue (IN THIS ORDER):