Thursday, March 1st, 2012

 
 

Commission Recommends 2 for Retention

The Judicial Performance Evaluation Commission released its formal evaluations today for Tennessee Court of Criminal Appeals Judges Jeffrey S. Bivins and Roger A. Page, who stand for election in August. The commission unanimously voted to recommend both for retention. In addition to posting its recommendations online, the commission will publish its full report in Tennessee newspapers prior to the August election.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
08 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.


TN Court of Appeals

CITY OF KNOXVILLE v. BOYCE MCCALL

Court: TN Court of Appeals

Attorneys:

Boyce McCall, for appellant, pro se.

Lisa Belle Hatfield, Knoxville, Tennessee, for the appellee, City of Knoxville.

Judge: STAFFORD

This is a case involving a prescriptive easement. The City of Knoxville filed a petition for an injunction against the Appellant, alleging that he was obstructing a public alley that was created by a valid prescriptive easement on his property. The Appellant answered, denying that the City of Knoxville had any right to use his property as an alley and asserting a counterclaim for damages and attorney fees. The trial court found a valid prescriptive easement, and enjoined the Appellant from blocking the alley. The Appellant appeals. Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.


TN Court of Criminal Appeals

DAVID HEARING v. DAVID MILLS, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

David Hearing, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, David Hearing, filed a petition for a writ of habeas corpus, seeking relief from his two convictions of felony murder and the accompanying life sentences. The habeas corpus court denied relief, and the petitioner appeals. Upon review, we affirm the judgment of the habeas corpus court.


STATE OF TENNESSEE v. HERMAN S. HESTER, JR. (a/k/a “SONNY”)

Court: TN Court of Criminal Appeals

Attorneys:

Mark E. Stephens and John Halstead, Knoxville, Tennessee, for the appellant, Herman S. Hester, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Randall E. Nichols, District Attorney General; Debbie Malone, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Herman S. Hester, Jr., pled guilty to four counts of selling over 0.5 grams of cocaine. The trial court imposed the ten-year effective sentenced agreed to in the plea agreement and granted the Defendant’s request for an alterative sentence, placing him in the Community Alternatives to Prison Program (“CAPP”). The Defendant’s alternative sentence supervisor filed a warrant alleging that he had violated the terms of the program. After a hearing, the trial court returned the Defendant to CAPP. The Defendant’s supervisor filed a second warrant, and, after a hearing, the trial court revoked the Defendant’s alternative sentence and ordered him to serve the balance of his sentence in the Tennessee Department of Correction. On appeal, the Defendant contends the trial court erred when it revoked his probation. After reviewing the record, we affirm the trial court’s judgment.


ROGER T. JOHNSON v. RICKY BELL, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Roger T. Johnson, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Roger T. Johnson, appeals the Davidson County Criminal Court’s summary dismissal of his pro se petition for the writ of habeas corpus. In 1994, the petitioner pled guilty to first degree murder and second degree murder, and the trial court sentenced him to the agreed sentence of consecutive terms of life plus thirty years in the Department of Correction. In the instant petition for habeas corpus relief, the petitioner alleges that his convictions are void because the trial court illegally altered the terms contained in his judgment of conviction for second degree murder. This alteration, he asserts, includes an illegal sentence. He further contends the trial court erred when it summarily dismissed his petition. Following review of the record, we find no error and affirm.


STATE OF TENNESSEE v. JEFFERY WADE OSBORNE

Court: TN Court of Criminal Appeals

Attorneys:

William P. Holloway (on appeal) and Sandra Wells (at trial), Franklin, Tennessee for the appellant, Jeffery Wade Osborne.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Kim R. Helper, District Attorney General, and Kate Yeager and Rachel Stutts, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

A Williamson County jury convicted the defendant, Jeffery Wade Osborne, of aggravated assault. Following his conviction, the trial court sentenced the defendant to thirteen years as a Range III, persistent offender. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction. The State concedes that the evidence is insufficient to support the defendant’s conviction. Upon review, we conclude that the evidence is insufficient to support a conviction for aggravated assault but is sufficient to support a conviction for the lesser included offense of assault. Therefore, we modify the conviction to assault and remand for a new sentencing hearing.


JAMES K. ROBBINS v. DAVID D. MILLS, WARDEN AND STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Robert L. Vogel, Knoxville, Tennessee, for the Petitioner-Appellant, James K. Robbins.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; and Russell Johnson, District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, James K. Robbins, appeals as of right from the Morgan County Criminal Court’s dismissal of his fourth petition for writ of habeas corpus. He contends that the judgment of conviction is void because he was sentenced illegally. Upon review, we affirm the habeas corpus court’s judgment.


STATE OF TENNESSEE v. GREGORY A. SHAVER

Court: TN Court of Criminal Appeals

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Gregory A. Shaver.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Kim R. Helper, District Attorney General; and Sean B. Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Gregory A. Shaver, pled guilty to initiation of a process intended to result in the manufacture of methamphetamine, a Class B felony. After a sentencing hearing, the trial court sentenced the defendant to eleven years in the Tennessee Department of Correction. On appeal, the defendant contends that the length of the sentence is excessive. Following review of the record, we affirm the sentence.


STATE OF TENNESSEE v. BRYAN K. WATKINS

Court: TN Court of Criminal Appeals

Attorneys:

James E. Lanier, District Public Defender; and Cristy C. Cooper, Assistant Public Defender, for the appellant, Bryan K. Watkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Karen W. Burns, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Bryan K. Watkins, appeals the revocation of his probation, arguing that the trial court abused its discretion by basing its revocation decision on his failure to pay court costs and supervision fees without also making a determination that the nonpayment was willful. Following our review, we affirm the judgment of the trial court revoking the defendant’s probation and ordering that he serve the balance of his sentence in confinement.


STATE OF TENNESSEE v. L.V. WILLIAMSON

Court: TN Court of Criminal Appeals

Attorneys:

Paul E. Meyers, Assistant Public Defender, for the appellant, L.V. Williamson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, L.V. Williamson, appeals the judgment of the trial court revoking his probation and ordering that he serve the balance of his sentence in confinement, arguing that his youth and candor before the court should have resulted in less than the full revocation of his probation. Following our review, we affirm the judgment of the trial court.


Norton to Fill General Sessions Post

The Hamilton County Commission voted 7-1 today to name assistant county attorney David Norton as General Sessions Court judge to fill the seat caused by the death of Judge Bob Moon. Norton, who has been judge for the city of Soddy Daisy for 28 years, will be sworn in on Tuesday. He will serve until the Aug. 2 election. Chattanoogan.com has the news


Rosenberg Suspends Circuit Court Campaign

Davidson County Juvenile Court Magistrate W. Scott Rosenberg announced today that he is suspending his campaign for a seat on the Davidson County Circuit Court and endorsing Nashville family lawyer Phillip Robinson, who was appointed last week to fill the seat until the August general election. Read Rosenberg’s statement in The Tennessean


Judge Who Pulled Gun in Court Steps Down

A North Georgia judge who brandished a gun in court last week has decided to step down from the bench. In a letter sent yesterday, Chief Superior Court Judge David E. Barrett of the Enotah Judicial Circuit said he would retire today. The move stems from an incident that happened last week when Barrett pulled out his handgun to make a point to a witness who was testifying. The judge told her she was killing her case and “might as well shoot your lawyer” as he pretended to offer her his gun. A district attorney in the courtroom at the time approached the bench and told the judge to put the weapon away. The Atlanta Journal-Constitution has more


Two Granted Pro Bono Emeritus Status

The Tennessee Supreme Court has approved the petitions of two attorneys to receive pro bono emeritus status. They are Susan Carolyn Howard of Memphis and Charles E. Racine of Gallatin. Through the court’s pro bono emeritus program, retired attorneys may continue providing pro bono services through organizations that offer free legal assistance. Those interested in participating should file an application with the appellate court clerk’s office. Read more from the court


Judicial Candidate Fails to Disclose Cases

General Sessions Court candidate Rachel Bell failed to disclose some 16 cases she has been a party to in a questionnaire administered by the Metro Nashville Council, The Nashville City Paper reports. Bell, who chalked up the omissions to a misinterpretation of the question, had included details about one case in which she was a defendant, but did not list the others, which involved suits against former clients who had not paid for her legal services.


Immigration, Traffic Stops, Tax Liabilities in the March TBJ

Some immigration issues can be handled by the general practitioner, while others need more specialized help. The stakes are high, so you need to the know the difference. Bruce E. Buchanan tells you how, in the March issue of the Tennessee Bar Journal. TBA President Danny Van Horn reminds us of the unique role and responsibility that lawyers play in our political process, while Wade Davies writes about the ins and outs of criminal investigation during a traffic stop.


CBA to Hold Memorial Service Monday

The Chattanooga Bar Association will hold its annual memorial service to honor those who have died during the past year Monday at 11 a.m. in the County Commission Room of the Hamilton County Courthouse. Among those remembered will be Hon. Joseph V. Barker, Mitchell Aaron Byrd, William Crutchfield Jr., Wallace McRoy Davies, Richard C. Kennedy, George Bowman "Bo" LeNoir, Chamberlain McAllester, Hon. Robert L. Moon Jr., LeRoy Phillips Jr. and Silas Williams Jr. View the announcement on the CBA website


Former MBA President Dies

Former Memphis Bar Association president Edward Preston Acker Smith died Tuesday at the age of 86. A 1949 graduate of Vanderbilt University Law School, he practiced law in Memphis for more than 50 years, and was a member of the American Bar Association and a fellow in the American College of Trial Lawyers. At the age of 29, he was elected to the Tennessee Senate, but it was later determined that he did not meet the age requirements, and he did not serve. Visitation is today from 4:30 to 6:30 p.m. at Memorial Park Funeral Home. Services are Friday at 12:30 p.m. in the chapel at Second Presbyterian Church. The family requests that donations be made to the Salvation Army, Memphis Humane Society or the Second Presbyterian Chapel Class. The Commercial Appeal reports


Memphis Lawyer Dies

Memphis lawyer James W. Hodges Jr. died Feb. 25 at the age of 58. He earned his law degree from the Nashville School of Law in 1982 and joined his father's firm in Memphis, where he practiced with an emphasis in criminal law for many years. A memorial service will be held in the chapel of Central Church, 205 Winchester, Collierville, on Saturday at 11 a.m. Memorial contributions may be sent to the Kidney Foundation or the American Heart Society in his name. Read more from the Commercial Appeal


Bill Would Add Pimps to Sex Offender List

Pimps would join child molesters and rapists on Tennessee's sexual offender registries under a bill moving through the state legislature. The state House voted 90-0 today to pass HB 2853. First offenders would see their names on the list for 10 years, while second offenders would be on the list for life. Despite the unanimous vote, the bill drew quite a bit of discussion, as lawmakers questioned exactly what is meant by "promoting" prostitution. The Tennessean's In Politics blog looks at the issue


 
 

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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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