Monday, March 5th, 2012


New TBA Skills Program Launches Wednesday

The Tennessee Bar Association’s TennBarU is launching a new skills building webcast series this week, kicking off with a one-hour program Wednesday on contract drafting. The series will continue at noon central time on each Wednesday this month: Case Assessment and Management on March 14, Writing Effective Briefs on March 21, and Negotiation Strategies on March 28.

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.

01 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
03 - 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 Supreme Court


Court: TN Supreme Court

TN Court of Appeals


Court: TN Court of Appeals


Michael G. Hatmaker, Jacksboro, Tennessee, for the appellant, Stanley A. Gagne.

John J. Britton, Knoxville, Tennessee, for the appellee, State Farm Fire and Casualty Company.


Plaintiff brought suit against defendant, his insurance company, claiming a burglary loss. Defendant moved for summary judgment on the grounds the statute of limitations had run, but plaintiff argued that under contract law the statute of limitations is six years. The Trial Court enforced the one-year statute of limitations contained in plaintiff's policy of insurance and plaintiff has appealed. On appeal, we affirm the Judgment of the Trial Court which held that the one-year statute of limitations set forth in the policy was applicable to this claim.

TN Court of Criminal Appeals


Court: TN Court of Criminal Appeals


Brad W. Hornsby (at trial and on appeal), James T. Pinson (on appeal), and J. D. Driver (at trial), Murfreesboro, Tennessee, for the appellant, Jimmy Lee Heard.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Jude P. Santana and J. Paul Newman, Assistant District Attorneys General, for the appellee, State of Tennessee.


The Defendant, Jimmy Lee Heard, was convicted of criminal conspiracy to commit aggravated robbery, a Class D felony; aggravated robbery, a Class B felony; and evading arrest, a Class D felony. He pleaded guilty to attempted second degree murder. The trial court sentenced him as a Range II, multiple offender to an effective sentence of twenty-nine years in the Tennessee Department of Correction. On appeal, he argues that the trial court erred by denying his motion for recusal and by imposing consecutive sentences. He further contends that the evidence was insufficient to support his conviction for conspiracy to commit aggravated robbery. Following our review, we affirm the judgments of the trial court.


Court: TN Court of Criminal Appeals


James T. Bowman, Johnson City, Tennessee, and Stacy L. Street, Elizabethton, Tennessee, for the appellant, Nickolus L. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter, and Deshea Dulany Faughn, Assistant Attorney General, for the appellee, State of Tennessee.


A Sullivan County jury convicted the Defendant, Nickolus L. Johnson, of premeditated first degree murder, see Tenn. Code Ann. § 39-13-202(a)(1) (2006), for the shooting death of Officer Mark Vance of the Bristol Police Department. Following penalty phase proceedings, the jury found the presence of the following two aggravating circumstances: (1) that the defendant previously had been convicted of one or more felonies whose statutory elements involved the use of violence to the person; and (2) that the defendant knew or should have known when he committed the murder that the victim was a law enforcement officer engaged in the performance of his official duties. See Tenn. Code Ann. § 39-13-204(i)(2), (9) (2006). After finding that these aggravating circumstances outweighed any mitigating factors presented by the defense, the jury sentenced the Defendant to death. See Tenn. Code Ann. § 39-13-204(g)(1) (2006). In this appeal, the Defendant challenges both his conviction and accompanying death sentence. He raises the following issues for our review: (1) whether the evidence presented during the guilt phase was sufficient to support his conviction; (2) whether Tennessee’s death penalty statute violates article I, section 19 of the Tennessee Constitution; (3) whether the exclusion of jurors from the jury based on their views on the death penalty violates article I, sections 6 and 19 of the Tennessee Constitution; (4) whether the trial court erred in admitting into evidence the videotape of the Defendant taken in Officer Graham’s patrol car immediately following the Defendant’s arrest; (5) whether the trial court erred in failing to require defense counsel to present mental health mitigation evidence despite the Defendant’s objection to the presentation of such evidence; (6) whether individual and cumulative instances of prosecutorial misconduct during closing argument at the penalty phase denied the Defendant his right to a fair trial and should have resulted in the trial court declaring a mistrial; (7) whether the trial court erred in denying defense counsel’s requests for special jury instructions during the penalty phase in response to the prosecutor’s assertion during closing that the Defendant had failed to express remorse; (8) whether the trial court erred in denying the Defendant’s oral motion for a change of venue based on the effect pretrial publicity in the case had on potential jurors; (9) whether the trial court erred in denying defense counsel’s request for authorization of funds with which to hire an expert to support the claim that pretrial publicity in the case required a change of venue in order to protect the Defendant’s right to a fair trial; and (10) whether the trial court erred in denying defense counsel’s request for additional peremptory challenges during jury selection. Following our review of the record, and our mandatory review of the sentence, see Tenn. Code Ann. § 39-13-206(c)(1) (2006), we affirm the judgments including the sentence of death.


Court: TN Court of Criminal Appeals


C. Douglas Fields, Crossville, Tennessee, for the Defendant-Appellant, James Leroy Poston.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Randall A. York, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the Appellee, State of Tennessee.


The Defendant-Appellant, James Leroy Poston, was indicted by the Cumberland County Grand Jury for one count of second degree murder. Poston subsequently entered a guilty plea to reckless homicide in the Cumberland County Criminal Court. Pursuant to his plea agreement, Poston received a sentence of two years as a Range I, standard offender, with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court imposed a sentence of confinement in the Tennessee Department of Correction. On appeal, Poston argues that the trial court erred in denying his request for an alternative sentence. Upon review, we reverse the judgment of the trial court and remand for entry of a judgment sentencing Poston to serve his two-year sentence on supervised probation.

Visiting Judges Assigned to Help Memphis's Congested Courts

Under a special Visiting Judges Program, three federal judges from Michigan have agreed to help ease the backlog in Memphis. So far 30 local criminal and civil cases have been reassigned to the three judges -- Robert Cleland, Stephen Murphy and Arthur Tarnow -- who may be able to handle some of the work by teleconference, but who otherwise will be scheduling court time in Memphis. The goal is to get Memphis out from under the official federal designation of being "a congested court," where the judges dispose of many more cases per year than the national average, but where it also takes much longer to dispose of those cases. Learn more from the Commercial Appeal.

Attorney General's Office Asks Court to Hold Off on New Trials

The Tennessee Attorney General's Office confirmed Friday it will ask the state Court of Criminal Appeals to put on hold new trials already awarded in the wake of revelations of former Knox County Criminal Court Judge Richard Baumgartner's actions. The News Sentinel has details.

Editorial: Take the Deal, Unseal TBI File

In an editorial, the News Sentinel praises a recent deal struck between Knox County District Attorney General Randy Nichols and defense attorney Gregory P. Isaacs saying that it could help with the fallout from Criminal Court Judge Richard Baumgartner's drug abuse. The paper encourages Special Judge Jon Kerry Blackwood to unseal the full Tennessee Bureau of Investigation file into the ex-judge's misdeeds. Read the editorial.

Study: Federal Sentences Vary Widely

A new study by the Associated Press shows that federal judges are handing out widely disparate sentences for similar crimes, 30 years after Congress tried to create more uniform outcomes with the Sentencing Reform Act. The law set up a commission that wrote guidelines for judges to follow as they punished convicts, with similar sentences for offenders with comparable criminal histories convicted of the same crimes. But the law's requirement that judges stick to these sentencing guidelines was struck down by the Supreme Court in 2005. has the AP story.

Former Baptist Missionary's Suit Against SBC Moves to Federal Court

A former Metro Nashville Council member’s $1.5 million lawsuit against the Nashville-based Southern Baptist Convention and its International Mission Board last year has been transferred to federal court, where it is poised to test both the limits on religious institutions’ immunity from employee lawsuits and the breadth of the new Dodd-Frank Wall Street Reform and Consumer Protection Act. Read about it in the Tennessean.

Meaning of ‘Term Limits’ Disputed in Commission Race

A man seeking the Republican nomination for a spot on the Shelby County Commission has objections to Marilyn Loeffel running because of term limits. Loeffel left the commission in 2006, but Steve Basar says term limits should still apply. "I think the spirit of term limits is you get some new faces and new blood and new ideas in office," Basar said. "I view it as public service, somewhat like the president of the Unites States. You get two terms to do what you can do and you should move on and pass the reins to somebody else." The Commercial Appeal has more.

Roberts Court More Unusual Than You Might Think

The Roberts Court is unusual in many ways, this Washington Post columnist writes, including that it is the first Supreme Court with three women and the only one with no Protestant. Four of the five boroughs of New York City are represented, while no state between the East Coast and California can claim a single native son or daughter. And when law professor Benjamin H. Barton loaded into a computer a pile of information about the life experiences of every justice from John Jay to Elena Kagan, the most surprising thing he found about the current court “was the breadth of how unusual they are.” 

Candidates Spending Heavily in 21st District Race

In Williamson County, three candidates are vying for the seat on the bench in the 21st Judicial District -- and one has already spent more on the campaign than  the annual salary for the job. During a six-week period leading up to Tuesday’s election, attorney Michael Binkley spent more than $176,600 in his campaign for the job that comes with an annual salary of not quite $156,800. Judge Derek Smith, who holds the position, spent more than $107,900 over the same six weeks. Judy Oxford has spent substantially less -- $13,700 in campaign expenses during the home stretch. The Tennessean has the story.

'Jimberjawed' Winning Word in Regional Spelling Bee

Thirty-six students -- the winners and the runners-up from 16 county bees -- put their skills to the test last week in the Middle Tennessee Regional Spelling Bee, co-sponsored by Baker, Donelson, Bearman, Caldwell & Berkowitz PC and Belmont University. The winner, Grace Park, will advance to the Scripps National Spelling Bee near Washington, D.C. in late May. Park, a student at Martin Luther King Magnet School,  correctly spelled “jimberjawed” in the 20th round.

Knoxville Lawyer William Searle Dies

Knoxville lawyer William F. Searle III died Feb. 27. He was 76. Mr. Searle was a graduate of the University of Tennessee College of Law and was admitted to practice in 1958. He practiced in Knoxville with the firm of Ambrose, Wilson, Grimm & Durand. There will be a Memorial Service at First Presbyterian Church (620 State Street, Knoxville) on Tuesday at 4 p.m. The family will greet friends following the service in the fellowship hall. In lieu of flowers contributions may be made to Children's Hospital, P.O. Box 15010, Knoxville 37901, or the music fund at First Presbyterian Church, 620 State Street, Knoxville 37902. Read his obituary here.

Track Legislation of Interest to Tennessee Attorneys

The 107th Tennessee General Assembly is now in session and the TBA has a number of tools to help you track the status of legislation. Watch TBA Today for regular news updates and follow the TBA Action List to track bills in the General Assembly that the TBA has a direct interest in -- those it has  initiated, taken a position on, or has a policy on. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community. Find complete TBA legislative resources

Civil Rights Activist Wurzburg to be Honored

A leader in the alternative dispute resolution profession and long-time civil rights activist in Memphis, Jocelyn Wurzburg will be honored by the Tennessee Association of Professional Mediators on Friday for her lasting contributions to the field of mediation. She was the first professional mediator in Memphis and has been active in the civil rights movement for more than 40 years. After Dr. King was assassinated in 1968, she led a women’s march on City Hall demanding that the city and the sanitation workers avert a second strike. Among expected guests are past award recipients, Grayfred Gray and Robert P. Murrian. Download more information and ticket information.


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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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