Awards Recognize Public Service by Lawyers

Nominations are now being accepted for the Tennessee Bar Association's annual Public Service Awards. Lawyers may be nominated for any of three awards: the Ashley T. Wiltshire Public Service Attorney of the Year, the Harris Gilbert Pro Bono Volunteer of the Year Award and the Law Student Volunteer Award. Nominations are due by Sept. 4. Award winners will be honored at the TBA's Public Service Luncheon Jan. 19 in Nashville.

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

GREGORY L. SMITH v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Whitehouse, Assistant Attorney General; William E. Young, Solicitor General; Lyndsay F. Sanders, Senior Counsel, for appellant, State of Tennessee.

Gregory L. Smith, Westmoreland, Tennessee, Pro Se.

Judge: STAFFORD

This case involves the denial of a handgun carry permit by the Department of Safety to an individual who had previously been convicted of a felony and sentenced to two years in the Department of Correction. The applicant appealed to the General Sessions Court, which reversed the decision of the Department of Safety. The Department of Safety then appealed to Circuit Court, which affirmed the General Sessions Court and held that the applicant was entitled to obtain a handgun carry permit because his full civil rights had been restored upon the issuance of a Certificate of Restoration of Voting Rights. We hold that the applicant is not entitled to obtain a handgun carry permit pursuant to Tennessee law because the applicant’s right to seek and hold public office has not been restored by a court of competent jurisdiction. Reversed and remanded.


TN Court of Criminal Appeals

VIVIAN YVONNE ARMSTRONG v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Vivian Yvonne Armstrong.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; Kathy Morante, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Vivian Armstrong, appeals the dismissal of her petition for post-conviction relief in which she alleged that her guilty plea was unknowingly and involuntarily entered due to the ineffective assistance of trial counsel. More specifically she contends that (1) trial counsel “scared” her into pleading guilty; (2) counsel failed to adequately meet with her and was unprepared to go to trial; and (3) counsel used the “safety valve” as an incentive to induce her into pleading guilty. After a thorough review of the record, we conclude that Petitioner has failed to show that her trial counsel rendered ineffective assistance of counsel, and we accordingly affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. JEROME SIDNEY BARRETT

Court: TN Court of Criminal Appeals

Attorneys:

Patrick G. Frogge (on appeal), Nashville, Tennessee; Marjorie A. Bristol (at motion for new trial and on appeal), Hendersonville, Tennessee; and G. Kerry Haymaker and David R. Heroux (at trial), Nashville, Tennessee, for the appellant, Jerome Sidney Barrett.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; Tom Thurman, Leticia Alexander, and Rachel Sobrero, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Jerome Sidney Barrett, was found guilty by a Davidson County Criminal Court jury of first degree murder for the 1975 homicide of S.D. See T.C.A. § 39-2402 (1975) (amended 1977, 1979, 1988) (renumbered at § 39-2-202) (repealed 1989). He was sentenced to life in prison. On appeal, he contends that: (1) the evidence was not sufficient to support the conviction; (2) the trial court erred in denying his motion to suppress evidence; (3) the trial court erred in denying the motion to dismiss the indictment pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and alternatively, in failing to instruct the jury regarding the lack of an autopsy report; (4) the trial court erred in admitting evidence for which the chain of custody was not sufficiently shown; (5) the trial court erred in admitting an inmate’s testimony about the Defendant’s prior statements and improperly redacting the statements; (6) the trial court erred in admitting altered photographs; (7) the trial court limited the Defendant’s ability to present a defense by failing to rule definitively that evidence of the Defendant’s other crimes was inadmissible; (8) the trial court erred in denying the defense motion for expert services to assist in the motion for new trial; and (9) the Defendant’s due process rights were violated by the cumulative effect of the errors. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. JOHN ADRIAN DAY

Court: TN Court of Criminal Appeals

Attorneys:

John Adrian Day, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Scott McCluen, District Attorney General, and Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant was indicted on numerous charges stemming from his involvement in a domestic dispute over goldfish that occurred on October 22, 2002. After a trial by jury in which the defendant was represented by counsel, the defendant was found guilty of domestic assault, a Class A misdemeanor, resisting arrest, a Class B misdemeanor, and assault, a Class B misdemeanor. He was sentenced to six months probation on each count, with these sentences to be served concurrently. After his conviction, the defendant dismissed his trial counsel, proceeded pro se, and filed pleadings in the trial court that were construed as a motion for new trial. The trial court dismissed the motion, and the defendant now raises numerous challenges to his convictions, including claims that we liberally construe as a challenges to the sufficiency of the convicting evidence, challenges to the trial court’s decisions concerning the admissibility and inadmissability of certain evidence, a challenge to the trial court’s failure to provide certain jury instructions, and claims that his due process and speedy trial rights were violated. After carefully reviewing the record and the arguments of the parties, we hold that the evidence presented at trial was sufficient to support the defendant’s convictions, and we hold that the majority of the defendant’s remaining claims have been waived. We also hold that the defendant’s due process rights were not violated by the trial court. Consequently, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. KEITH HOWARD

Court: TN Court of Criminal Appeals

Attorneys:

Drew Justice, Franklin, Tennessee, (on appeal), and David Wicker, Nashville, Tennessee, (at trial), for the appellant, Keith Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; Shannon Poindexter, Assistant District Attorney General; Jeff Burks, Assistant District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Keith Howard, appeals the trial court’s revocation of his probation sentence. Defendant pled guilty to selling more than .5 grams of cocaine with an agreed ten-year sentence, which was suspended except for ninety days, with credit for time served. The remainder of the ninety days was to be served on weekends. Subsequently, a probation violation warrant was filed, which alleged that Defendant had failed to follow his probation officer’s instruction that he submit to a drug test and that he absconded during his drug screen. Following the hearing the trial court revoked Defendant’s probation and entered a judgment placing Defendant’s original sentence into effect. We conclude that the evidence does not preponderate against the trial court’s finding of a violation, and that the trial court did not err by placing the original sentence into effect by ordering service in confinement. We therefore affirm the judgment of the trial court.


STATE OF TENNESSEE v. MICHAEL W. HUNTER

Court: TN Court of Criminal Appeals

Attorneys:

James L. Baum, Burns, Tennessee, for the appellant, Michael W. Hunter.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Dan Mitcham Also brooks, District Attorney General; and W. Ray Crouch, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Michael W. Hunter, was indicted by the Dickson County Grand Jury for aggravated robbery. Following a jury trial, Defendant was convicted as charged and sentenced by the trial court to 10 years’ incarceration. Defendant appeals his conviction and assigns the following errors: 1) the trial court abused its discretion by admitting into evidence a garbage bag found in Defendant’s vehicle after the robbery; and 2) the prosecutor committed prosecutorial misconduct during closing arguments by improperly arguing facts not in evidence. Finding no error, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. MARTY JOE KELLEY

Court: TN Court of Criminal Appeals

Attorneys:

G. Jeff Cherry and David Veile, Lebanon, Tennessee, for the appellant, Marty Joe Kelley.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; William Whitesell, District Attorney General, and Laural A. Nutt Hemminway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Marty Joe Kelley, appeals after a lengthy jury trial during which a Rutherford County Jury convicted him of six counts of rape of a child, three counts of aggravated sexual battery, nine counts of rape without consent, twenty-five counts of especially aggravated sexual exploitation of a minor, and one count of sexual exploitation of a minor. Appellant was sentenced to an effective thirty-nine year sentence, to be served at 100%. On appeal, Appellant argues: (1) the trial court improperly allowed the State to refer to the victim as “the victim” throughout the trial; (2) the State committed prosecutorial misconduct by referring to the victim as “the victim” throughout the trial; (3) the trial court improperly restricted defense counsel’s opening statement; (4) the trial court improperly allowed a State’s witness to remain unsequestered during trial; (5) the trial court erred by denying a mistrial; (6) the trial court improperly allowed the State’s witness to display and explain a speculum during testimony about the physical examination of the victim; (7) the trial court erred by “repeatedly” allowing the State to introduce hearsay; (8) the trial court improperly charged the jury regarding the offenses of rape of a child and aggravated sexual battery; (9) the evidence was insufficient to support the convictions; (10) the trial court improperly enhanced Appellant’s sentences; and (11) the trial court erred by imposing consecutive sentences. After a thorough and complete review of the record and applicable authorities, we conclude: (1) Appellant waived any issue with regard to references to “the victim” during trial by failure to object; (2) the trial court did not abuse its discretion by prohibiting Appellant from reading a letter written by the victim to Appellant during opening statements where there was some confusion as to whether the State received the letter during discovery; (3) Appellant failed to show that the alleged prosecutorial misconduct alleged affected the verdict to the prejudice of Appellant; (4) Appellant waived any issue with respect to Detective Duke’s remaining in the courtroom for failure to object, and, any error is harmless; (5) Appellant waived any review of whether the trial court should have granted a mistrial because he failed to seek a mistrial; (6) Appellant waived any complaint with respect to Hollye Gallion’s testimony at trial for failure to object to the use of the speculum as demonstrative evidence, and, in the alternative, the trial court did not abuse its discretion; (7) Appellant waived most of the hearsay issues for failure to object at trial; (8) the trial court did not err in admitting the testimony of Mr. Perry that the victim never told him about the abuse; (9) Appellant’s sentences for rape of a child were improperly enhanced to twenty-three years because the trial court applied enhancement factors that were neither found by the jury nor admitted by Appellant; (10) the trial court properly ordered consecutive sentencing where Appellant was convicted of two of more offenses involving sexual abuse of a minor; (11) Appellant is not entitled to plain error review of the jury instructions; and (12) the State improperly elected facts for Count Five. Consequently, Appellant’s conviction in Count Five for rape of a child is reversed and remanded for a new trial. Appellant’s remaining sentences for rape of a child in Counts One, Two, Three, Four, and Six, are hereby modified to twenty years. Additionally, the trial court should enter a corrected judgment in Count Fifty and Fifty-eight to reflect Appellant’s conviction as soliciting sexual exploitation of a minor. Accordingly, the judgments of the trial court are affirmed in part, reversed in part, modified in part, and remanded.


STATE OF TENNESSEE v. MARCUS DEANGELO LEE a/k/a MARCUS DEANGELO JONES

Court: TN Court of Criminal Appeals

Attorneys:

Marcus Deangelo Lee a/k/a Marcus Deangelo Jones, Memphis, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Amy P. Weirich, District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

In 1995, the Defendant, Marcus Deangelo Lee a/k/a Marcus Deangelo Jones, pled guilty to possession of cocaine with intent to sell, unlawful possession of a deadly weapon with intent to commit a crime, and sale of cocaine, and the trial court sentenced him to three years in the county workhouse. Between 2006 and present, the Petitioner has filed several pleadings challenging his convictions, including a petition for a writ of error coram nobis, a postconviction petition, a motion for delayed appeal, and a motion to reopen his post-conviction proceedings. All of these motions were denied or dismissed, and this Court affirmed their denial or dismissal. In 2011, the Petitioner filed a “Motion For Clarification and Correction of Clerical Error in Judgment . . . [,]” alleging that the 1995 handwritten judgments were obscured and illegible. The trial court reviewed the judgments, found them legible and without error, and denied the Defendant’s motion. It is from this judgment that the Defendant now appeals. Finding that the Defendant has no right of appeal from the denial of a Motion to Correct a Clerical Error, the Defendant’s appeal is dismissed.


TAURUS MERRIWEATHER V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Robert Amann, Memphis, Tennessee, for the appellant, Taurus Merriweather.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Amy P. Weirich, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Taurus Merriweather, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction for second degree murder and effective twenty-five-year sentence. On appeal, he contends that the trial court erred by finding that counsel provided the effective assistance of counsel. We affirm the judgment of the trial court.


Judge Allows Access to Mosque, U.S. Sues for Occupancy Permit

A federal judge in Nashville ruled this afternoon that a Murfreesboro mosque may open in time for Ramadan, though he said the building must go through the normal inspection process. Attorneys for the Islamic Center of Murfreesboro argued in court today that they were being held to a higher standard than other religious groups in seeking a construction permit for their building. Also today, the U.S. Department of Justice filed suit against Rutherford County, claiming violations of a federal law that prohibits religious discrimination in land use and zoning decisions. The suit asks the court to force the county to issue a certificate of occupancy for the mosque. The county has refused to issue the certificate following a chancery court ruling that proper notice was not given for the mosque’s building permit. The Tennessean has the latest


Former Rep. Named to Judicial Evaluation Panel

Former state Rep. Chris Clem, a Chattanooga attorney, has been appointed to the Judicial Performance Evaluation Commission, according to a news release from Lt. Gov. Ron Ramsey. “Chris has spent a career both in and out of the legislature highly engaged in judicial issues. I can think of no one more qualified to evaluate the judiciary...” Ramsey said in the news release. Clem represented House District 27 from 2000 to 2006. The Times Free Press has more


Opinion: Modest Means Initiative Needs Cash

In one of several stories about the increased need for pro bono services, the Nashville Ledger argues that one particular program in the state needs immediate attention. That program is the Modest Means Initiative, funded largely by the Nashville Bar Association during its pilot phase. Now that the program is fully established, the association is looking for a new sponsoring agency and/or funding of $10,000 to $15,000 to continue the service. The program, designed to serve the working poor, charges a fee of $25 for a legal referral and caps lawyers’ fees at $75 per hour. Program founder and Nashville lawyer Jonathan Cole says there has been a “huge uptick in requests for these kind of services” but that the association cannot continue to fund it alone.


Texas' First Single Drug Execution Set for Tonight

Texas inmate Yokamon Hearn is scheduled to be executed today, and though he will be the state’s sixth prisoner executed this year, he will be the first to be administered a new single-drug injection. Texas announced last week it would start using a single dose of pentobarbital, instead of using the sedative in combination with two other drugs. Other states have made the change and a number of courts have upheld the practice, despite death penalty opponents' claims that the single dose causes prisoners to take longer to die than the three-drug combination. The Commercial Appeal has more.

In related news, officials in Georgia announced yesterday that they too were switching to single-drug executions. In that state, death row inmate Warren Lee Hill is set to be executed on Monday. His attorney says the state’s decision to change the drug so close to the execution date is troubling. WTVC News Channel 9 has more


Immigration Law Opponents File New Offensive

Opponents of Arizona's controversial immigration law launched a new effort Tuesday to thwart the U.S. Supreme Court’s ruling upholding the so-called “show me your papers" provision. A suit filed in federal district court argues that the law – which requires police to check the immigration status of people they stop for other reasons – would subject minorities to systematic racial profiling and unreasonably long detentions. It asks the court to issue an order prohibiting authorities from enforcing the rule. Chattanooga’s WRCB News 3 reports


Judge Tosses Contraception Suit

A federal judge in Nebraska yesterday dismissed a suit brought by seven state attorneys general and several Catholic nonprofits challenging a contraception requirement in the nation's new health care law. The suit claimed that the contraceptive coverage requirements violat their right to freedom of speech and religion. The states also claimed that the requirement would increase their Medicaid budgets as religious employers stopped providing health insurance. The judge ruled that the plaintiffs could show no direct injury and no threat of immediate harm. Learn more in the ABA Journal.


Bailey Law Firm Celebrates 16th Anniversary

As the Bailey Law Firm of Memphis celebrates its 16th anniversary this year, firm founder Olen “Mac” Bailey Jr. reflects on his core goal of being a leading estate planning law firm in the area while contemplating additional growth. “I think we’re probably in the market right now for a couple of either lateral hires or acquiring some retiring estate planning or probate attorneys’ practices,” said Bailey, in an interview with the Memphis Daily News. The firm announced that it also recently added a new veterans’ affairs practice group geared toward helping veterans obtain long-term care benefits. Read more


Tennessean Endorses Judicial Candidates

In an editorial today, The Tennessean encourages voters to “be more attentive than ever” to state and county judicial elections. The paper then recommends a vote of “retain” for Jeffrey S. Bivins and Roger A. Page, two appellate judges on the ballot this year. The paper also offers endorsements in Davidson County judicial races.


Equal Justice University on Tap for September

Mark your calendar for this year's Equal Justice University – the annual conference that provides training and networking opportunities for members of the state’s access to justice community. The event will take place Sept. 26 – 28 at Paris Landing State Park. For more information contact Samantha Sanchez with the Tennessee Alliance for Legal Services, (615) 627-0956 ext. 21.


Memphis Lawyer Suspended

Memphis lawyer Joseph T. Kirkland Jr. was suspended by the Tennessee Supreme Court for one year, but allowed to serve all but 90 days on probation. Kirkland voluntarily reported to the Board of Professional Responsibility that he used previously disbursed and unclaimed funds in his trust account to pay for law firm operating expenses. All funds ultimately were replaced and properly disbursed, resulting in no financial loss to third parties. In addition to the suspension, the court ordered Kirkland to engage a practice monitor during the probationary period. Download the BPR notice


Lawyer’s City Affiliation Was Wrong

A story in yesterday’s issue of TBA Today incorrectly identified the hometown of Tennessee lawyer Gary Vandever. He practices in Lebanon.


 
 

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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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