Seely Takes Office as New Memphis Bar President

Linda Warren Seely of Memphis Area Legal Services today officially took reign as president of the Memphis Bar Association. At the MBA's annual meeting, Kirk A. Caraway and Tommy Parker automatically succeeded to the positions of Vice President and Secretary/Treasurer, respectively. New members of the MBA Board of Directors include David Harris, Jana Davis Lamanna, Emily Landry, Mike Robb, Abby Webb, Shea Wellford, and MBA YLD President Annie Christoff. Dean DeCandia and Clint Hermes are the newly elected section representatives.

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
00 - TN Court of Appeals
06 - 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









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TN Court of Criminal Appeals

STATE OF TENNESSEE v. KACY DEWAYNE CANNON

Court: TN Court of Criminal Appeals

Attorneys:

Ardena J. Garth; District Public Defender; and Richard Kenneth Mabee, Assistant District Public Defender, Chattanooga, Tennessee, for the appellant, Kacy Dewayne Cannon.

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

Judge: WEDEMEYER

A Hamilton County jury convicted the Defendant, Kacy Dewayne Cannon, of aggravated rape, and the trial court sentenced him as a Range II offender to thirty-five years in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the trial court erred when it admitted a TBI report detailing the DNA on substances found on the victim’s pantyhose; (2) the trial court erred when it denied his motion to dismiss the case after the victim died; (3) the trial court erred when it denied his request for a forensic scientist to testify about the procedure for handling evidence and the possibility of evidence contamination; (4) the State failed to establish a sufficient chain of custody for the victim’s pantyhose; (5) the trial court erred when it allowed the State to introduce testimony about the emergency room’s protocol; (6) a State witness, Nurse Ardyce Ridolpho, was not qualified to testify as an expert; (7) the trial court erred when it determined that the State did not commit prosecutorial misconduct during closing arguments; (8) the trial court erred when it allowed a doctor to testify about the victim’s medical records; and (9) he is entitled to relief based upon cumulative error. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.


STATE OF TENNESSEE v. ROBERT FUSCO

Court: TN Court of Criminal Appeals

Attorneys:

Bryan P. Stephenson, Nashville, Tennessee, for the appellant, Robert Fusco.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; Helen O. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a jury trial, the Defendant, Robert Fusco, was convicted of two counts of especially aggravated kidnapping, which were merged, and one count of each of the following offenses: conspiracy to commit aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. See Tenn. Code Ann. §§ 39-12-101, -12-103, -13-202, -13-304, -13-305, -13-402, -13-403, & -14-403. The trial court determined that the Defendant was a Range II, multiple offender for sentencing purposes and imposed an effective 65-year sentence. We first decided this appeal several months ago in February 2012. See State v. Robert Fusco, No. M2010-01724-CCAR3- CD, 2012 WL 368224 (Tenn. Crim. App. Feb. 3, 2012). Our decision was vacated by the Tennessee Supreme Court, and the case was remanded to this court for reconsideration in light of State v. White, 362 S.W.3d 559 (Tenn. 2012). We requested and received supplemental briefing from the parties addressing any White issues. When this case was previously before this court, the Defendant raised the following issues: (1) whether the trial court erred in failing to charge the lesser-included offense of attempted especially aggravated kidnapping; (2) whether the assistant district attorney general committed prosecutorial misconduct during closing argument; (3) whether the evidence is insufficient to support his convictions for especially aggravated kidnapping, conspiracy to commit aggravated robbery, and conspiracy to commit aggravated kidnapping; (4) whether his dual convictions for especially aggravated kidnapping and attempted aggravated robbery violate due process concerns because the restraint of the victim was not beyond that necessary to complete the robbery; (5) whether the trial court erred by not merging his two conspiracy convictions because the offenses were the object of the same agreement; (6) whether the trial court erred by using certain out-of-state convictions to enhance his sentencing range; and (7) whether his sentence was excessive. We reissue our previous opinion as follows with a new section dealing with the White issues. Upon further consideration of the facts and circumstances of this case with those in White, we again affirm the Defendant’s convictions for especially aggravated kidnapping and attempted aggravated robbery. The case is remanded to the Montgomery County Circuit Court for the entry of corrected judgments to reflect merger of the Defendant’s conspiracy convictions. In all other respects, we conclude that there is no reversible error in the judgments of the trial court and affirm.


STATE OF TENNESSEE v. JOSE LUIS GONZALEZ

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, John H. Bledsoe, Assistant Attorney General; Mike Flynn, District Attorney General, and Matthew Dunn, Assistant District Attorney General, for the appellant, State of Tennessee.

Eugene Dixon, Maryville, Tennessee, for the appellee, Jose Luis Gonzalez.

Judge: SMITH

Appellee, Jose Luis Gonzalez, was indicted by the Blount County Grand Jury for possession of cocaine with the intent to sell or deliver and possession of a firearm with intent to go armed in the commission of a felony. Prior to trial, Appellee filed a motion to suppress the evidence based on an illegal traffic stop. The trial court determined that the evidence seized during a traffic stop should be suppressed, granting the motion filed by Appellee. The State sought an interlocutory appeal on the matter, asking this Court to reverse the grant of the motion to suppress. After a review of the record, we determine police had probable cause to stop Appellant’s vehicle for improper brake light operation, or at minimum a reasonable and articulable suspicion the lights violated Tennessee Code Annotated section 55-9-402. As a result, we conclude based on the facts herein that the officer effectuated a lawful traffic stop of Appellee. Consequently, the trial court’s grant of the motion to suppress is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.


STATE OF TENNESSEE v. ANTHONY S. HARDING

Court: TN Court of Criminal Appeals

Attorneys:

Robert Thomas Vaughn (at trial) and Jon J. Tucci (on appeal), Nashville, Tennessee, for the appellant, Anthony S. Harding.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Anthony S. Harding, was convicted by a Sumner County jury of six counts of aggravated statutory rape and one count of attempted aggravated statutory rape. The trial court later dismissed the attempt conviction. Following a sentencing hearing, the trial court ordered the Defendant to serve four years on each count of aggravated statutory rape, with all of these counts to run consecutively, resulting in an effective twenty-four-year sentence. On appeal, the Defendant raises the following issues for our review: (1) whether the indictment was insufficient for failing to provide specific dates for the offenses; (2) whether the evidence was sufficient to sustain the convictions; (3) whether the trial court erred by excluding testimony from an alibi witness; and (4) whether the trial court imposed an excessive sentence. Following our review, we determine that plain error relief is warranted due to the trial court’s exclusion of testimony from an alibi witness. The Defendant’s six convictions for aggravated statutory rape are reversed and vacated. We also remand for the entry of a corrected judgment form to reflect dismissal of Count Seven, the attempt conviction. The case is remanded to the trial court for a new trial on the six remaining counts of aggravated statutory rape.


ALBERT JAMES SAAVEDRA v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Clifford K. McGowan, Jr., Waverly, Tennessee, for the appellant, Albert James Saavedra.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Albert James Saavedra, was ultimately convicted of voluntary manslaughter and attempted second degree murder and, thereafter, received an effective fourteen-year sentence in the Department of Correction. This court affirmed the Petitioner’s convictions and sentence on direct appeal. The Petitioner filed a timely petition for post-conviction relief and, following an evidentiary hearing, the post-conviction court denied relief. On appeal, the Petitioner argues that he received the ineffective assistance of counsel due to trial counsel’s (1) allegedly providing the prosecution with information about the location of the Petitioner’s vehicle and (2) failing to adequately address issues surrounding the video recording of the Petitioner’s statement to authorities. Following our review of the record and the parties’ briefs, we conclude that the Petitioner has not shown that he is entitled to relief. The judgment of the post-conviction court is affirmed.


STATE OF TENNESSEE v. RICKY TRUMAINE SALTERS, SR.

Court: TN Court of Criminal Appeals

Attorneys:

Keith Lowe, Knoxville, Tennessee, for the appellant, Ricky Trumaine Salters, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jennifer Welch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Ricky Trumaine Salters, Sr., entered guilty pleas without recommended sentences to drug offenses stemming from four separate indictments, for which the trial court imposed an effective thirteen-year sentence to be served in the Tennessee Department of Correction. Appellant contends on appeal that the trial court erred by ordering partially consecutive sentences and by refusing alternative sentencing. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.


Accused Christian Newsom Murder Ringleader Requests Delay in Retrial

Attorneys for Lemaricus Davidson, the accused ringleader in the Christian Newsom torture slayings, have filed on his behalf a motion seeking a stay of any retrial hearing or decision by newly appointed Senior Judge Walter Kurtz, the Knoxville News Sentinel reports. Davidson’s defenders requested time to seek a Tennessee Supreme Court review of an order by a lower appellate court ousting from the case Senior Judge Job Kerry Blackwood, who ordered the new trial after it was discovered that disgraced former Knox County Criminal Court Judge Richard Baumgartner was abusing prescription drugs during the original trial.


Tax Prep Firm and Affiliates Face More Legal Action

The U.S. Attorney’s Office in Middle Tennessee filed a civil injunction suit in Nashville against Fields Mo' Money Taxes, making it the latest affiliate of the Memphis-based Mo' Money Taxes tax preparation firm to face legal action. The Justice Department issued a news release stating the suit alleges defendants Toney Fields and Trumekia Shaw “intentionally prepare and file fraudulent federal income tax returns to obtain improper tax refunds for customers.” It says the firm defrauded the federal government of more than $5million in 2011. The Nashville Business Journal has the story.


D.C. Court Skeptical of Judging Recess Appointments

Federal Judge Thomas Griffith expressed skepticism on weighing in on a dispute between Congress and the White House over the constitutionality of President Barack Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau earlier this year. In a hearing yesterday to test the legality of Obama’s appointments, Judge Griffith stated that courts have assiduously refrained from stepping into political spats over recess appointments, and asked “Why drag us into it?”


Bill to Ease Restrictions on Home Music Recording Hits Snag

Language in a bill aimed to simplify the city’s code to accommodate home recording studios has turned into a source of consternation for some Nashville musicians, the Tennessean reports. The legislation would add a new accessory use dubbed “home recoding studio” to the city’s home occupation code. Council members Megan Berry and Ronnie Steine proposed the ordinance in order to authorize a practice many are already doing, even though it technically violates Metro’s codes. However, the bill’s vague language and definitions of aspects such as “home studio” have drawn some concern.


Sherrard & Roe Appoints New Litigation Leadership

Samuel P. Funk has been named head of the litigation practice group at Sherrard & Roe, PLC, the Nashville Ledger reports. The group manages a wide range of commercial disputes in administrative agencies and state and federal courts, as well as all forms of alternative dispute resolution. Funk, a graduate of  Wake Forest University and the University of Maryland School of Law, was also an inaugural member of the Tennessee Bar Association Leadership Law program.


University International Business Advisory Board Appoints Chattanooga Attorney

Shelby R. Grubbs of Chattanooga-based Miller & Martin, PLLC has been appointed to the International Business Advisory Board of the University of Alabama Culverhouse College of Commerce and Business Adinistration, the Hamilton County Herald reports. The Board is comprised of business and campus leaders bound by a commitment to assisting the College of Commerce in furthering its international initiatives.


Wine Legislation to be Considered in 2013

State. Sen. Bill Ketron stated Tuesday that he plans to support a bill allowing the sale of wine in grocery stores during the 2013 General Assembly session. Although past attempts at the legislation never made it out of subcommittees, Ketron says he plans to offer a measure enabling public referendums in the 33 areas that allow liquor by the drink and package stores. Many small business owners oppose the legislation, protesting that they would not be able to compete with large corporations such as Wal-Mart of Kroger that can buy in bulk.


 
 

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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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