Friday, March 9, 2012

 
 

Court Changes Rules for Convictions of Multiple Crimes

In three unanimous decisions issued today, the Tennessee Supreme Court significantly changed the tests and procedures for determining when multiple convictions are permissible under the state and federal constitutions. State v. Watkins and State v. Cross confronted the issue of whether multiple convictions under different statutes violate the state constitutional prohibition against double jeopardy. In State v. White, the court announced changes in cases involving charges of kidnapping and an accompanying felony. The court concluded that a separate due process test is no longer necessary for determining whether convictions for kidnapping and an accompanying felony may be upheld. In today’s decision, the court set out temporary jury instructions and invited the Tennessee Pattern Jury Instruction Committee to develop permanent guidelines for future cases. The court also pointed out that its decision does not create a new rule of constitutional law and, therefore, does not require retroactive application. Learn more from the Administrative Office of the Courts.

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.

03 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
05 - 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

STATE OF TENNESSEE v. LONNIE CROSS

Court: TN Supreme Court

Attorneys:

Robert E. Cooper, Attorney General and Reporter; William E. Young, Solicitor General; Gordon W. Smith and Joseph F. Whalen, Associate Solicitors General; John H. Bledsoe, Senior Counsel; and Matthew Bryant Haskell, Assistant Attorney General; Steven Bebb, District Attorney General; and Brooklyn Martin, Assistant District Attorney General, for the State of Tennessee.

Larry D. Wright, Cleveland, Tennessee, for Lonnie Cross. Kathy Morante, Assistant District Attorney; William Crabtree, Assistant District Attorney; and Garland Erguden, Assistant District Attorney, for the Amicus Curiae Tennessee District Attorneys General Conference. Stephen Ross Johnson and Wade V. Davies, Knoxville, Tennessee; Ann C. Short, Knoxville, Tennessee; and Aimee D. Solway, Nashville, Tennessee, for the Amicus Curiae Tennessee Association of Criminal Defense Lawyers.

Judge: KOCH

This appeal presents, among other issues, an issue regarding the application of the federal and state constitutional double jeopardy protections to a single prosecution for multiple offenses arising out of a high speed chase involving a motorist who was attempting to avoid arrest for driving on a revoked license. A Bradley County grand jury returned a seven-count indictment against the motorist. Following a jury trial, the motorist was convicted of five of the offenses and received an effective sentence of eight years. On appeal, the Court of Criminal Appeals upheld four of the motorist’s convictions but, on its own motion, vacated the remaining conviction after determining that it violated the double jeopardy protections in the federal and state constitutions. State v. Cross, No. E2008-02792-CCA-R3-CD, 2010 WL 2432022, at *12 (Tenn. Crim. App. June 17, 2010). We granted both the State’s and the motorist’s applications for permission to appeal. In accordance with our opinion in State v. Watkins, ___ S.W.3d ___ (Tenn. 2012), released contemporaneously with this opinion, we find that the defendant’s convictions do not run afoul of the double jeopardy protections in the federal and state constitutions. We also find that the motorist’s conviction under count one of the indictment must be vacated because the trial court committed plain error in its instruction regarding the lesser-included offenses of that charge. With regard to the remaining convictions, we find that the evidence supports the motorist’s convictions and that the sentences imposed by the trial court are not excessive. Accordingly, we remand the case to the trial court for further proceedings consistent with this opinion.


STATE OF TENNESSEE v. NIGEL KAVIC WATKINS

Court: TN Supreme Court

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price and Angele Gregory, Assistant Attorneys General; Tom P. Thompson, Jr., District Attorney; David Earl Durham, Jason Lawson, and Brian W. Fuller, Assistant District Attorneys General, for the appellant, State of Tennessee.

Shawn P. Sirgo, Nashville, Tennessee (on appeal); Comer L. Donnell, District Public Defender; Tillman W. Payne III, William Cather, and Tom Bilbrey, Assistant Public Defenders (at trial), for the appellee, Nigel Kavic Watkins. Stephen Ross Johnson; Wade V. Davies, and Ann C. Short, Knoxville, Tennessee; Aimee D. Solway, Nashville, Tennessee, for the Amicus Curiae, The Tennessee Association of Criminal Defense Lawyers. Kathy Morante, Nashville, Tennessee; William Crabtree, Knoxville, Tennessee; and Garland Erguden, Memphis, Tennessee, for the Amicus Curiae, Tennessee District Attorneys General Conference.

Judge: CLARK

We granted the State permission to appeal to determine whether the defendant’s dual convictions for reckless homicide and aggravated child abuse violate either the federal or state constitutional prohibition against double jeopardy. Following briefing, oral argument, and a careful study of Tennessee law governing the issue presented, we ordered the parties in this appeal, and two other pending appeals involving related issues, to submit additional briefs addressing certain specific questions concerning the analyses that Tennessee courts apply in single prosecution cases when determining whether separate convictions under different statutes constitute the same offense for purposes of the double jeopardy protection against multiple punishments. We also scheduled consolidated reargument of these three appeals and invited certain prosecutorial and defense organizations to submit amicus curiae briefs. Having thoroughly reviewed relevant federal and state precedent and carefully considered the briefs provided by the parties and by the amici curiae, we have concluded that the four-factor test set forth in State v. Denton, 938 S.W.2d 373 (Tenn. 1996) should be abandoned. Furthermore, we have not found, nor have we been provided with, any textual reason or historical basis for interpreting the Double Jeopardy Clause of the Tennessee Constitution differently from the Double Jeopardy Clause of the United States Constitution. Accordingly, we adopt the same elements test enunciated in Blockburger v. United States, 284 U.S. 299, 304 (1932) as the test for determining whether multiple convictions under different statutes constitute the same offense for purposes of the Double Jeopardy Clause of the Tennessee Constitution. Applying this test, we conclude that reckless homicide and aggravated child abuse are not the same offense because their elements differ. Thus, the defendant’s dual convictions do not violate either the federal or the state constitutional double jeopardy prohibition. Accordingly, we reverse that portion of the Court of Criminal Appeals’ judgment merging the reckless homicide conviction into the aggravated child abuse conviction, and we reinstate the reckless homicide conviction. However, we affirm that portion of the Court of Criminal Appeals’ judgment remanding this matter to the trial court for resentencing.


STATE OF TENNESSEE v. JASON LEE WHITE

Court: TN Supreme Court

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith and Joseph F. Whalen, Associate Solicitors General; Rachel E. Willis, Assistant Attorney General; John W. Carney, District Attorney General; and Robert Nash, Assistant District Attorney General, for the appellant, State of Tennessee.

R. Lance Miller, Clarksville, Tennessee, for the appellee, Jason Lee White. Kathy Morante, James E. Lanier, and Jeffrey S. Henry, Nashville, Tennessee; William Crabtree, Knoxville, Tennessee; Garland Erguden, Memphis, Tennessee, for the Amicus Curiae, Tennessee District Attorneys General Conference. Steven Ross Johnson, Ann C. Short, and Wade V. Davies, Knoxville, Tennessee, and Aimee D. Solway, Nashville, Tennessee, for the Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.

Judge: WADE

After robbing a Clarksville restaurant, the defendant was indicted for burglary, aggravated robbery, and especially aggravated kidnapping. A jury convicted the defendant on all three counts, after which he filed a motion to set aside the conviction for especially aggravated kidnapping as violative of due process, relying on State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). The trial court denied the motion and sentenced the defendant to an effective twentyfive year term. The Court of Criminal Appeals reversed and dismissed the conviction for especially aggravated kidnapping on due process grounds. This Court granted the State’s application for permission to appeal. Following briefing and oral argument, we ordered additional briefing and argument addressing the application of due process principles to dual convictions for kidnapping and an accompanying felony, such as rape or robbery. We hold that the legislature did not intend for the kidnapping statutes to apply to the removal or confinement of a victim that is essentially incidental to an accompanying felony, such as rape or robbery. This inquiry, however, is a question for the jury after appropriate instructions, which appellate courts review under the sufficiency of the evidence standard as the due process safeguard. Because the defendant is entitled to a new trial with specific instructions as to the especially aggravated kidnapping charge, the cause is remanded to the trial court for further proceedings in accordance with this opinion.


TN Court of Appeals

MICHAEL BRANDON ADAMS, v. MORGAN COUNTY CORRECTIONAL COMPLEX, et al.

Court: TN Court of Appeals

Attorneys:

Michael Brandon Adams, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor General, and Lee Pope, Assistant Attorney General, Nashville, Tennessee, for the appellees.

Judge: FRANKS

Petitioner, who is incarcerated, was charged with possession of a cell phone and pled guilty. He filed a Writ of Certiorari after punishment was levied against him, contending that he understood his punishment would be five days of punitive segregation and a $5 fine, but the punishment meted out was suspension of visitation privileges for six months. The Trial Judge upheld the suspension and dismissed the Petition, finding that petitioner pled guilty and waived his right to appeal, and the writ was filed after the sixty day time frame had elapsed. We affirm the Judgment of the Trial Court and remand.


CHARLES B. CHAPPELLE ET AL. v. EDWARD LEE BURCH ET AL

Court: TN Court of Appeals

Attorneys:

John A. Beam, III, and Andrew Cameron, Nashville, Tennessee, for the appellants, Charles B. Chappelle and wife, Kathleen R. Chappelle.

Howard L. Upchurch, Pikeville, Tennessee, for the appellees, Edward Lee Burch and wife, Elizabeth Hope Burch.

Judge: CLEMENT

Plaintiffs appeal from trial court’s finding that their neighbors, the defendants, were not in violation of an Agreed Order, which stated that the neighbors’ land could be used only for residential purposes or for commercial use as a stable and for pasturing of horses, but for no other purpose. Plaintiffs contend that horse shows conducted on the property violated the terms of the Agreed Order. The trial court found that horse shows were an aspect of the commercial stabling business in Sequatchie County and, therefore, did not violate the terms of the Agreed Order. We affirm.


GLENN DAVIS, ET AL. v. CHARLES BOWERS, ET AL.

Court: TN Court of Appeals

Attorneys:

Mark D. Edmonds, Jonesborough, Tennessee, for the appellants, Charles Bowers and Wilda Bowers.

Edward Kershaw, Greeneville, Tennessee, for the appellees, Glenn Davis and Lisa Davis.

Judge: SWINEY

Glenn Davis and Lisa Davis (“Plaintiffs”) sued Charles Bowers and Wilda Bowers (“Defendants”) and Greene County, Tennessee (“Greene County”) seeking, inter alia, a declaratory judgment with regard to whether a passageway of approximately 198 feet in length on the north end of Duncan Lane was a private driveway or a public road. After a trial, the Trial Court entered an order finding and holding, inter alia, that the 198 foot section was not part of the public road. Defendants appeal raising issues regarding the purported dedication of the 198 feet, and the admission of evidence at trial. We affirm.


COLE BRYAN HOWELL, III, ET AL. v. CHERYL RYERKERK, ET AL.

Court: TN Court of Appeals

Attorneys:

W. Tyler Chastain, Margo J. Maxwell, and Hugh B. Ward, Jr., Knoxville, Tennessee, for the appellants, Cole Bryan Howell, III, individually and by derivative on behalf of Howell Nurseries, Inc.

John M. Norris, Strawberry Plains, Tennessee, for the appellee(s), Cheryl Ryerkerk, The Estate of Florence Howell Wallis, Carl Wallis, Margaret Ann Gehring, and Howell Nurseries.

Judge: STAFFORD

The issue appealed in this case is the failure of the trial court to grant a continuance requested by the Appellant. After two prior continuances were granted, the Appellant again moved for a continuance, supporting the request with documentation indicating that the Appellant was undergoing diagnostic testing the day before the scheduled trial date. The trial court denied the continuance. When the Appellant failed to proceed with the trial the following day, the trial court dismissed for failure to prosecute. We affirm.


SARAH C. JANNERBO v. E. MATTIAS JANNERBO

Court: TN Court of Appeals

Attorneys:

Steven M. Jacoway and McKinley S. Lundy, Jr., Chattanooga, Tennessee, for the appellant, E. Mattias Jannerbo.

John P. Konvalinka and Jillyn M. O’Shaughnessy, Chattanooga, Tennessee, for the appellee, Sarah C. Jannerbo.

Judge: SWINEY

This appeal arises from the divorce of Sarah C. Jannerbo (“Wife”) and E. Mattias Jannerbo (“Husband”). Wife sued Husband for divorce in the Circuit Court for Hamilton County (“the Trial Court”). The Trial Court granted the parties a divorce. Following a trial, the Trial Court, inter alia, divided the marital estate and awarded Wife periodic alimony. Husband appeals, arguing that the Trial Court erred in awarding both the type and amount of alimony that it did. Husband also argues that the Trial Court erred in its classification and division of the marital estate. Wife raises her own issue of whether she should have been awarded her attorney’s fees. We find that the Trial Court erred in awarding Wife periodic alimony. We instead find that Wife should be awarded rehabilitative alimony in an amount lower than that awarded by the Trial Court. We find that the Trial Court did not err in its classification or division of the marital estate. We further find that the Trial Court did not err in declining to award Wife her attorney’s fees. We affirm the judgment of the Trial Court as modified.


MARY ANNE OSESEK v. MICHAEL W. OSESEK
CORRECTION: On page 7, within line 6, there was an extra space between the word "assets" and the period at end of sentence.

Court: TN Court of Appeals

Attorneys:

Stanley A. Kweller and Robert L. Jackson, Nashville, Tennessee, for the Appellant, Michael W. Osesek.

Mary Arline Evans and Charles R. Niewold, Nashville, Tennessee, for the Appellee, Mary Anne Osesek.

Judge: DINKINS

Husband filed a petition to terminate or modify the amount of alimony in futuro he was obligated to pay, asserting that a post-divorce decrease in his income as well as the fact that Wife secured employment after the divorce constituted substantial and material changes in their circumstances which warranted the elimination of or a reduction in the amount of alimony. The trial court held that, while the loss of Husband’s job was not anticipated, there was not a substantial and material change of circumstances because Husband had other assets from which to continue to make the alimony payments; the court accordingly dismissed the petition and awarded Wife her counsel fees. Husband appeals the dismissal of the petition and award of attorney fees to Wife. We affirm the holding that Husband’s assets are available to satisfy his alimony obligation and the award of attorney fees to Wife. We vacate the dismissal of the petition and remand for further consideration.


TN Court of Criminal Appeals

TYRONE E. MONTGOMERY v. RICKY BELL, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Tyrone E. Montgomery, 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 Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Tyrone E. Montgomery, appeals the Davidson County Criminal Court’s summary dismissal of his pro se petition for the writ of habeas corpus seeking relief from his first degree murder conviction and life sentence. On appeal, the petitioner contends that the trial court erred and that his conviction is void because: (1) the indictments did not allege the “knowingly” and “intentionally” mental states; (2) the trial court improperly instructed the jury on premeditation and felony murder; (3) he was charged with “Murder By Use of A Firearm” but convicted of first degree felony murder, a crime for which he did not have proper notice from the indictment; and (4) his judgment of conviction is facially invalid and void. Following review of the record, we conclude that the trial court properly dismissed the petition and affirm the judgment.


STATE OF TENNESSEE V. JOSHUA CALEB MORRIS

Court: TN Court of Criminal Appeals

Attorneys:

Mark E. Stephens, District Public Defender; Christy Murray, Assistant District Public Defender, Knoxville, Tennessee, for the appellant, Joshua Caleb Morris.

Mark E. Stephens, District Public Defender; Christy Murray, Assistant District Public Defender, Knoxville, Tennessee, for the appellant, Joshua Caleb Morris.

Judge: BIVINS

Joshua Caleb Morris (“the Defendant”) pled guilty to two counts of aggravated burglary, three counts of theft, and one count of possession of drug paraphernalia. The trial court sentenced the Defendant as a Range I standard offender to a total effective sentence of six years, to be suspended on twelve years probation under the supervision of the Community Alternative to Prison Program. Upon the filing of a revocation warrant, the Defendant was taken into custody and a probation revocation hearing was held. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve the remainder of his sentence in confinement. The Defendant has appealed the trial court’s ruling. Upon our review of the record, we affirm the trial court’s judgment.


STATE OF TENNESSEE v. BENJAMIN WILLIAM RIFFEY, ALIAS

Court: TN Court of Criminal Appeals

Attorneys:

Cameron D. Bell, Knoxville, Tennessee, for the appellant, Benjamin William Riffey, alias.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In February 2005, the Defendant, Benjamin William Riffey, alias, pled guilty to facilitation to commit aggravated robbery. He was sentenced as a Range I, standard offender to six years and was placed on probation. Subsequently, the Defendant was transferred to enhanced probation. On February 22, 2011, a violation of probation warrant was filed, the third against the Defendant. Following a hearing, the trial court revoked the Defendant’s sentence of probation and ordered that he serve the remainder of his six-year sentence in the Department of Correction. In this appeal, the Defendant contends that the trial court erred by revoking his probation. After a review of the record, we conclude that the trial court did not abuse its discretion and affirm the judgment of the trial court.


STATE OF TENNESSEE v. LARRY WAYNE WEBB

Court: TN Court of Criminal Appeals

Attorneys:

James O. Martin, III, Nashville, Tennessee, for the appellant, Larry Wayne Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Stacy L. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury found the Defendant, Larry Wayne Webb, guilty of forgery in an amount over one thousand dollars and identity theft, and the trial court sentenced him to an effective sentence of twelve years in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions; (2) the trial court improperly admitted a vehicle certificate of title into evidence at trial; and (3) his convictions for forgery and identity theft should merge. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.


STATE OF TENNESSEE v. BRANDON TREVON WILLIAMS

Court: TN Court of Criminal Appeals

Attorneys:

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee (on appeal) and Mary Ann Green (at revocation), Assistant District Public Defenders, Chattanooga, Tennessee, for the appellant, Brandon Trevon Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William H. Cox III, District Attorney General; David Schmidt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

The appellant, Brandon Trevon Williams, appeals the revocation of his probation claiming that the trial court abused its discretion by revoking his probation and ordering execution of the original sentence. Finding no error, we affirm the order of the trial court.


More Gains Made in Legal Jobs

Hiring in the legal industry rose for the second straight month in February, with 800 new jobs added, according to the preliminary employment report released Friday by the U.S. Bureau of Labor Statistics. The AmLaw Daily has more.


Blackwood: No Authority to Open TBI Files

Special Judge John Kerry Blackwood said at a specially-called hearing in Knox County Criminal Court that he has no authority to make public the Tennessee Bureau of Investigation's file on former judge Richard Baumgartner. Blackwood said the portions of the file not made public contain phone records and recorded conversations in which Baumgartner discusses sex with two women and makes "crude remarks" about people. "What you're not going to find (in the TBI file) is a great big conspiracy among officials to protect Richard Baumgartner," he said. The News Sentinel reports.


Protesters Adjust to, Defy Camping Ban

Protesters with Occupy Murfreesboro are one step closer to trial after a judge ruled Thursday that the city’s ordinance prohibiting camping on Civic Plaza is constitutional. Murfreesboro City Court Judge Ewing Sellers denied a request to dismiss citations against Occupy Murfreesboro protesters based on their contention that the law violated their First Amendment rights. The Daily News Journal has the story. On Nashville's Legislative Plaza last night, protesters packed up their tents and cleaned up, and by about 2 a.m. the tents were gone except for one. Gov. Bill Haslam signed a bill last week banning unauthorized camping on public grounds, giving the protesters a week to move their tents. The remaining tent was occupied by Christopher Humphrey, who said he has been at the campsite since the beginning of the Occupy Nashville protest and has decided to stay to test the law. The Tennessessean has more.


Officials Warn of Fraud in Storm Aftermath

The Department of Justice, the FBI and the National Center for Disaster Fraud (NCDF) remind the public there is a potential for fraud in the aftermath of a natural disaster. Suspected fraudulent activity pertaining to relief efforts associated with the recent series of tornadoes in the Midwest and South should be reported to the NCDF hotline at 866-720-5721. 
Read more in the Macon County Times.


Paralegal Group Gives Waller High Marks

The Middle Tennessee Paralegal Association (MTPA) honored Waller Lansden Dortch & Davis with its 2011 Employer of the Year award last week. The award is given annually to the firm that best demonstrates its commitment and support of the MTPA and the larger paralegal profession. Learn more from the firm.


Taft’s Low Recidivism Rate Cited by Supporters

Since state officials proposed cutting the Department of Children’s Services budget by closing Taft Youth Development Center, many have urged it remain open, saying that Taft works. Juvenile judges Howard Upchurch in Bledsoe County, Suzanne Bailey in Hamilton County, Jim McKenzie in Rhea County, Tommy Austin in Sequatchie County  and Sam Benningfield in Van Buren County all point to Taft’s low recidivism rate — 3 percent, compared to an average of 11 percent for the state’s other youth centers — and its successful GED program. Jim Cobb, R-Spring City, says he hopes next week to introduce an amendment to Haslam’s TEAM bill — the Tennessee Excellence, Accountability, and Management Act of 2012 — to require DCS to maintain a youth development center in the state’s Eastern grand division. “Closing Taft is the wrong thing at the wrong time,” Cobb said. The Times Free Press has more.


Former Public Defender Joins AG's Office

Colin Johnson, a long-time attorney from Dresden, has joined the staff of the 27th Judicial District Attorney General’s office as a full-time assistant district attorney general. Johnson, a graduate of Cecil C. Humphreys School of Law at Memphis State University, had served as the 27th Judicial District’s assistant public defender since 1998. NorthWest Tennessee Today has more.


Knoxville Bar Association Adds New LRIS Coordinator

Andrea Pappas is the Knoxville Bar Association's new coordinator of its Lawyer Referral & Information Service (LRIS), with duties that include administration of referral panels, attorney membership, referral of clients to panel attorneys and other available resources. She also coordinates the LRIS speakers' bureau and assists in long-range planning and program development.


6 Lawyers Reinstated After Administrative Suspension

Six Tennessee lawyers have been reinstated after being administratively suspended for CLE noncompliance in 20102009 and 2007, and failure to pay the annual BPR registration fee in 2010 and 2009. See updated lists at the links above.


 
 

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