TBALink Opinion-Flash

December 22, 1997 -- Volume #3 -- Number #135

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):
05-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
04-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

George Dean
TBALink Chief Editor


WILLIAM E. CUNNINGHAM,              
Administrator of the Estate of  
ROBERT W. CUNNINGHAM, SR., and  
ROBERT W. CUNNINGHAM, JR.
vs.
SHELTON SECURITY SERVICES, INC.,    
and EMPLOYERS INSURANCE OF WAUSAU

Court:TSC

Attorneys:

For Appellants:                 For Appellees:

TERRY R. CLAYTON                H. MICHAEL BENNETT
Nashville, TN                   Nashville, TN
                          
Judge:BIRCH

First Paragraph:

In this worker's compensation case, the trial court granted the
deceased employee's representative ("petitioner") permission to file
an application for interlocutory appeal under  Tenn. R. App. P. 9.  We
granted the application in order to determine whether the trial court
erred in ruling that the remains of the employee be exhumed and
autopsied.  Upon careful review of the record, we find that the
employer, Shelton Security Service, Inc., and its insurance carrier,
Employers Insurance of Wausau ("respondents"), failed to make a timely
request for an autopsy after obtaining reasonable notice of its
necessity.  Thus, they are not entitled to exhume and autopsy the
remains of the deceased employee.

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

WILLIAM A. HALL AND BEEF            
TRANSPORT, INC.
vs.
TENNESSEE DRESSED BEEF CO. AND  
RICHARD N. HALL
and                         
WILLIAM A. HALL, DERIVATIVELY       
ON BEHALF OF TENNESSEE DRESSED  
BEEF CO.
vs.
RICHARD N. HALL

Court:TSC

Attorneys:

For Plaintiffs-
Appellees-Appellant            For Defendants-
                               Appellants Appellees:

Jeffrey A. Greene              John S. Hicks
Alvin L. Harris                Darwin A. Hindman, III
Greene & Greene                Brigid T. Miller
Nashville                      Baker, Donelson, Bearman
                               & Caldwell
                               Nashville                          

Judge:REID

First Paragraph:

This case presents appeals by all parties from the decision of the
Court of Appeals affirming in part and reversing in part the order of
the trial court granting summary judgment in favor of the defendants
on all issues.  The decisions granting summary judgment are reversed
and the case is remanded.

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

STATE OF TENNESSEE
vs.
DAVID WILLARD PHIPPS, JR.

Court:TSC

Attorneys:

FOR STATE OF TENNESSEE          FOR DAVID WILLARD PHIPPS, JR.
John Knox Walkup                Lionel R. Barrett, Jr.
Attorney General & Reporter     Nashville, Tennessee

Michael E. Moore                Jacob M. Dickinson, IV
Solicitor General               Memphis, Tennessee

Kathy Morante,
Deputy Attorney General
Criminal Justice Division 

Lisa A. Naylor,
Assistant Attorney General
Nashville, Tennessee 
  

Robert "Gus" Radford
District Attorney General
Huntingdon, Tennessee
                         
Judge:DROWOTA

First Paragraph:

In this appeal, we must determine whether the State's decision to
pursue the death penalty, following the defendant's successful appeal
of his conviction for which the death penalty originally was not
sought, gives rise to a rebuttable presumption of prosecutorial
vindictiveness.  After carefully considering the relevant legal
principles, we conclude that the rebuttable presumption of
vindictiveness applies in this case.  Because the State had no
opportunity, during the hearing on the motion to strike, to introduce
proof to overcome the presumption, we reverse the decision of the
Court of Criminal Appeals upholding the trial court's order striking
the State's notice of intent to seek the death penalty and remand this
cause to the trial court for a hearing in which the State shall bear
the burden of demonstrating by clear and convincing evidence that the
presumption of vindictiveness has been overcome.  If, after hearing
the proof presented, the trial court is satisfied that the presumption
has been overcome, the State may seek the death penalty in this case.

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

STATE OF TENNESSEE
vs.
DAVID E. WALTON, JR.

Court:TSC

Attorneys:

For Appellant:              For Appellee:

W. MARK WARD                JOHN KNOX WALKUP
Memphis, TN                 Attorney General and Reporter

                            MICHAEL E. MOORE
                            Solicitor General
                            Nashville, TN

                            CLAYBURN L. PEEPLES
                            District Attorney General
                            Trenton, TN
                          
Judge:BIRCH

First Paragraph:

We granted the application for review filed by David E. Walton, Jr.,
the defendant, in order to address issues pertinent to the sentences
imposed.  In our review, however, we notice as plain error the failure
of the State to properly elect offenses, which resulted in violation
of the defendant's right to jury unanimity.  Accordingly, for the
reasons outlined below, we reverse the convictions and vacate the
sentences imposed.  The cause is remanded to the trial court for
further proceedings consistent with this opinion.

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

DAVID ELZEY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:

David Elzey, Pro Se             John Knox Walkup
NECC # 10095                    Attorney General and Reporter       
P.O. Box 5000   
Mountain City, TN  37683        Peter M. Coughlan 
                                Assistant Attorney General
                                425 Fifth Avenue North 
                                Second Floor, Cordell Hull Bldg
                                Nashville, TN  37243-0493

                                David E. Crockett
                                District Attorney General
                                Route 19, Box 99
                                Johnson City, TN  37601 
                          
Judge:WADE

First Paragraph:

The petitioner, David Elzey, filed a petition for habeas corpus relief
which was denied by the trial court.  In this appeal of right, the
petitioner complains that an extension of his release eligibility date
by twenty percent pursuant to the policy 502.02 of the Department of
Correction constituted cruel and unusual punishment contrary to the
state and federal constitutions, a violation of the ex post facto
clause of the state and federal constitutions, and an unauthorized
exercise of administrative authority.

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

RANDY HENSLEY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:

Randy Hensley, Pro Se           John Knox Walkup
# 099477 NECC                   Attorney General and Reporter
P.O. Box 5000   
Mountain City, TN  37683        Michael J. Fahey, II        
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493

                                David E. Crockett 
                                District Attorney General
                                Route 19, Box 99
                                Johnson City, TN  37601
                          
Judge:WADE

First Paragraph:

The petitioner, Randy Hensley, appeals the trial court's denial of his
petition for habeas corpus relief.  The single issue presented for
review is whether his indictments for robbery and assault with intent
to commit murder, both of which led to convictions, were void for the
failure to include all of the essential elements of the crime.  In
particular, the petitioner argues that his indictments failed to
assert the requisite mens rea.  It is the contention of the petitioner
that, due to the faulty indictments, the trial court lacked
jurisdiction to enter a conviction or impose a sentence.

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

OLEN EDWARD HUTCHISON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

CHRISTOPHER VAN RIPER       JOHN KNOX WALKUP 
STUART & VAN RIPER          Attorney General & Reporter
300 Market Street
Clinton, TN  37716          JOHN P. CAULEY 
                            Assistant Attorney General
                            2nd Floor, Cordell Hull Building
                            425 Fifth Avenue North 
                            Nashville, TN  37243-0943

                            WILLIAM PAUL PHILLIPS
                            District Attorney General

                            MICHAEL O. RIPLEY 
                            Assistant District Attorney General
                            P.O. Box 323 
                            Jacksboro, TN  37757 
                          
Judge:WOODALL

First Paragraph:

The Petitioner, Olen Edward Hutchison, appeals as of right from the
trial court's dismissal of his second petition for post-conviction
relief.  The dismissal followed argument by both parties on the
State's motion to dismiss.  The trial court allowed both parties to
argue the merits of the State's motion to dismiss, but no evidence was
submitted by either side at the hearing.  We affirm the judgment of
the trial court.

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

BRUCE C. SLATER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellee:                   For Appellant:

Allen E. Schwartz               John Knox Walkup
603 Main Street                 Attorney General and Reporter
Suite 405   
Knoxville, TN  37902            Marvin E. Clements, Jr.     
                                Assistant Attorney General
Aubrey Davis                    450 James Robertson Parkway
Assistant Public Defender       Nashville, TN  37243-0493
1209 Euclid Avenue
Knoxville, TN  37921            Marsha Selecman 
                                Asst District Attorney General
                                City-County Building, Suite 168
                                400 Main Street
                                Knoxville, TN  37902-2405
                         
Judge:WADE

First Paragraph:

The state appeals from a judgment by the trial court reducing the
sentence of petitioner, Bruce Slater.  In 1987, the petitioner
committed bank robbery.  He was sentenced in 1991.  The petitioner
sought relief from the length of his sentence through the
Post-Conviction Procedure Act.  The primary issue presented for our
review is whether the petitioner should have been sentenced under the
1982 Sentencing Act or the 1989 Sentencing Act.  A secondary issue
relates to procedure and jurisdiction.  We reverse the judgment of the
trial court and remand the cause for a recalculation of the sentence.

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

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1998 Tennessee Bar Association