TBALink Opinion-Flash

January 6, 1998 -- Volume #4 -- Number #003

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 01-New Opinons From TSC-Rules 00-New Opinons From TSC-Workers Comp Panel 00-New Opinons From TCA 03-New Opinons From TCCA: 05-New Opinons From TSC; 01-New Opinons From TSC-Rules; 00-New Opinons From TSC-Workers Comp Panel; 00-New Opinons From TCA; 03-New Opinons From TCCA

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE
vs.
MICHAEL JOE BOYD

Court:TSC

Attorneys: 

For Appellant:                      For Appellee:

Paul J. Morrow, Jr.                 John Knox Walkup
Office of the Post-Conviction       Attorney General & Reporter     
   Defender     
Nashville, Tennessee                Michael E. Moore
                                    Solicitor General
Daniel A. Seward
Memphis, Tennessee                  Kathy Morante
                                    Deputy Attorney General
                                    Nashville, Tennessee

                                    At Trial:   
                                    John W. Pierotti
                                    District Attorney General

                                    Terry Harris
                                    Assistant District Attorney
                                    Memphis, Tennessee

                         
Judge:ANDERSON

First Paragraph:

The issue in this post-conviction death penalty appeal is whether the
jury's reliance on an invalid aggravating circumstance was harmless
error, or whether resentencing is required because there is reasonable
doubt that the sentence would have been the same had the jury given no
weight to the invalid aggravating factor.  The jury relied on a valid
aggravating factor, that the defendant had a prior conviction for a
violent felony offense (second-degree murder), and an invalid
aggravating circumstance, that the victim was killed during the
commission of a felony.

URL:http://www.tba.org/tba_files/TSC/boydmj_opn.WP6
URL:http://www.tba.org/tba_files/TSC/boydmj_dis.WP6


MARVIN McCARLEY AND 
ELLYSE McCARLEY
vs.
WEST QUALITY FOOD SERVICE   
d/b/a KENTUCKY FRIED CHICKEN

Court:TSC

Attorneys:

FOR APPELLEE:                       FOR APPELLANTS:

Clinton V. Butler, Jr.              T. Verner Smith
Dale Conder, Jr.                    Jackson
Rainey, Kizer, Butler,
Reviere & Bell
Jackson                         

Judge:HOLDER

First Paragraph:

The plaintiffs, Marvin and Ellyse McCarley, appeal the summary
dismissal of their complaint alleging that Mr. McCarley received food
poisoning after ingesting food improperly prepared by the defendant,
Kentucky Fried Chicken.  The trial court granted the defendant's
motion for summary judgment.  The Court of Appeals affirmed and held
that the plaintiffs' proof was insufficient to establish the element
of causation.  We granted appeal to address:  (1)  the Court of
Appeals' analysis in summary judgment dispositions; and (2)  the
quantum and type of proof plaintiffs must proffer to survive summary
dismissal in negligent food poisoning cases.  Upon review, we reverse
and remand for further proceedings consistent with this opinion.

URL:http://www.tba.org/tba_files/TSC/mccarm&e_opn.WP6


MARVIN McCARLEY AND 
ELLYSE McCARLEY
vs.
WEST QUALITY FOOD SERVICE   
d/b/a KENTUCKY FRIED CHICKEN

Court:TSC
                      
First Paragraph:

It appearing to the Court that its Opinion filed July 14, 1997, in
this cause contained an error.

URL:http://www.tba.org/tba_files/TSC/mccarm&e_ord.WP6


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



                    SUPREME COURT OF TENNESSEE
                STATE LIST FOR PERMISSION TO APPEAL
                         January 5, 1998

Court:TSC - Rules
                        
URL:http://www.tba.org/tba_files/TSC_RULES/statelst16_wpd.WP6


STATE OF TENNESSEE
vs.
RAYMOND CARTWRIGHT

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

C. Richard Hughes, Jr.              John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
P.O. Box 1453                       500 Charlotte Avenue
Cleveland, TN 37364-1453            Nashville, TN 37243-0497

OF COUNSEL:                         Ellen H. Pollack
                                    Assistant Attorney General
Charles M. Corn                     450 James Robertson Parkway
District Public Defender            Nashville, TN 37243-0493
P. O. Box 1453
Cleveland, TN 37364-1453            Jerry M. Estes
                                    District Attorney General
                                    P.O. Box 647
                                    Athens, TN 37371

                                    Carl F. Petty
                                    Asst District Attorney General
                                    P.O. Box 1351
                                    Cleveland, TN 37364-1351
                         
Judge:Jones

First Paragraph:

The appellant, Raymond Cartwright (defendant), was convicted of
evading arrest, a Class A misdemeanor, by a jury of his peers.  The
trial court sentenced the defendant to serve eleven months and
twenty-nine days in the Bradley County Jail.  The defendant presents
one issue for review.  He contends the sentence imposed by the trial
court was excessive.  After a thorough review of the record, the
briefs submitted by the parties, and the law governing the issue
presented for review, it is the opinion of this court that the
judgment of the trial court should be affirmed.

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


FREDDIE KING
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              	FOR THE APPELLEE:

James A. Cohen                  	John Knox Walkup
Attorney at Law                 	Attorney General & Reporter
200 Jefferson Avenue, Suite 925     500 Charlotte Avenue
Memphis, TN 38103               	Nashville, TN 37243-0497

                            		Sarah M. Branch
                           			Assistant Attorney General
                            		450 James Robertson Parkway
                            		Nashville, TN 37243-0493

                            		William L. Gibbons
                            		District Attorney General
                            		201 Poplar Avenue, Suite 3-01
                            		Memphis, TN 38103

                            		Karen Cook
                            		Asst District Atty General
                            		201 Poplar Avenue, Suite 3-01
                            		Memphis, TN 38103
                          

Judge:Jones

First Paragraph:

The appellant, Freddie King (petitioner), appeals as of right from a
judgment of the trial court dismissing his action for post-conviction
relief following an evidentiary hearing.  In this court, the
petitioner contends (a) his guilty pleas were not voluntarily,
intelligently, and understandingly entered and (b) the trial court
failed to advise him of his constitutional right against
self-incrimination before questioning him during the submission
hearing.  After a thorough review of the record, the briefs submitted
by the parties, and the law governing the issues presented for review,
it is the opinion of this court that the judgment of the trial court
should be affirmed.

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


STATE OF TENNESSEE
vs.
GERALD L. WEBSTER

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:

Thomas M. Veteto                    John Knox Walkup
Attorney                            Attorney General and Reporter
100 North Main Street, Ste 1922             
Memphis, TN  38103                  Kenneth W. Rucker 
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    Cordell Hull Bldg, 2nd Fl
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243-0493

                                    Dan Byer
                                    Asst District Atty General
                                    201 Poplar Avenue, Third Floor
                                    Memphis, TN  38103
                          

Judge:WADE

First Paragraph:

The defendant, Gerald L. Webster, was found to be a motor vehicle
habitual offender.  Tenn. Code Ann. S 55-10-603(2)(a).  The trial
court barred the defendant from operating a motor vehicle in the State
of Tennessee.  In this appeal of right, the defendant claims that the
trial court erred in its determination.

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

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