Judicial Selection Plan to Go Before Voters

With House passage this week, the proposed constitutional amendment that would change how appellate court judges are selected will now go before voters in 2014. The proposal (SJR 2) would replace Tennessee’s current plan of merit selection and retention elections with a system allowing for the governor to appoint appellate judges, subject to legislative confirmation, followed by retention elections. The House passed the proposal 78-14 on Monday, the City Paper reports, while the Senate had earlier given its OK on a 29-2 vote.

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

IN RE: THE ADOPTION OF ANGELA E. ET AL.

Court: TN Supreme Court

Attorneys:

Bede Anyanwu, Jackson, Tennessee, for the appellant, Ifeatu E.

Michael A. Carter, Milan, Tennessee, for the appellees, Siegfried T. and Vernessa T.

Judge: HOLDER

In a prior appeal in this case, we reversed the termination of Father’s parental rights and remanded to the trial court for a new hearing on Mother and Stepfather’s amended petition. Following the hearing on remand, the trial court declined to terminate Father’s parental rights, finding that Mother and Stepfather had not proven either proffered ground for abandonment by clear and convincing evidence. Mother and Stepfather appealed. In a divided opinion, a majority of the Court of Appeals concluded that the evidence clearly and convincingly established abandonment by both willful failure to visit and willful failure to support. We hold that Mother and Stepfather established by clear and convincing evidence abandonment by willful failure to visit but failed to establish willful failure to support. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals. Because Mother and Stepfather have demonstrated one ground for termination of Father’s parental rights, we remand the case to the trial court to consider whether termination is in the best interests of the children.


TN Workers Comp Appeals

TINA SHANNON v. ROANE MEDICAL CENTER

Court: TN Workers Comp Appeals

Attorneys:

Patrick C. Cooley, Kingston, Tennessee, for the appellant, Tina Shannon.

R. Kim Burnette, Knoxville, Tennessee, for the appellee, Roane Medical Center.

Judge: WADE

The employee, a surgical technician, worked full-time for the employer at a hospital. In addition to her regular hours, the employee worked on-call shifts on a rotating basis subject to specific rules and restrictions. During an on-call shift, the employee was required to return to the hospital during the early morning hours for emergency surgery. After leaving the hospital to drive home but while still subject to call, the employee was seriously injured in an automobile accident. The employee filed suit for workers’ compensation benefits. The trial court denied recovery, and the employee appealed. In accordance with Tennessee Supreme Court Rule 51, the appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Because the evidence establishes that the employee falls within an exception to the “coming and going rule,” the judgment of the trial court is reversed and the case is remanded for an award of benefits.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. RASHII BRISBON

Court: TN Court of Criminal Appeals

Attorneys:

Dicken E. Kidwell and John Taylor, Murfreesboro, Tennessee, for the appellant, Rashii Brisbon.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; William Whitesell, District Attorney General; and Laural Hemenway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Rashii Brisbon, was charged with aggravated child abuse and first degree (felony) murder after the death of a toddler in his care. A jury convicted him of aggravated child abuse, a Class A felony, but was unable to reach a verdict on the felony murder charge. The trial court sentenced the defendant to serve twenty years in prison. The defendant appeals, asserting that the State did not present evidence sufficient to support the verdict, particularly the mens rea element, and that the trial court relied on inapplicable enhancement factors during sentencing. After a thorough review of the record, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. ADRIAN CHANEY

Court: TN Court of Criminal Appeals

Attorneys:

Jake Erwin, Memphis, Tennessee, for the appellant, Adrian Chaney.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel Harmon, Assistant Attorney General; Amy P. Weirich, District Attorney General, and Stacey McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Adrian Chaney, was indicted by the Shelby County Grand Jury in September of 2009 for one count of aggravated robbery and one count of attempted aggravated robbery.1 After a jury trial, Appellant was convicted of the offenses as charged in the indictment. The trial court sentenced Appellant as a Range I, standard offender to twelve years for the conviction for aggravated robbery, and as a Range II, multiple offender to ten years for attempted aggravated robbery. The trial court ordered the sentences to run consecutively, for a total effective sentence of twenty-two years. Appellant did not file a motion for new trial.2 On appeal, he contends: (1) that the evidence was insufficient; (2) the trial court made several errors with regard to the admission of evidence; and (3) that his sentence is illegal and excessive. After a review of the record, we determine that Appellant waived the consideration of any issues with exception of sufficiency of the evidence and sentencing by failing to file a motion for new trial or show plain error on the part of the trial court. Additionally, we determine that the evidence was sufficient to establish Appellant’s identity as the perpetrator of the crimes and Appellant failed to provide this Court with an adequate record to review the trial court’s determination of his status as a Range II, Multiple Offender with regard to the conviction in Count II. Accordingly, the judgments of the trial court are affirmed.


STATE OF TENNESSEE v. CHRISTOPHER SCOTT CHAPMAN

Court: TN Court of Criminal Appeals

Attorneys:

Russell E. Edwards, Hendersonville, Tennessee, (on appeal), David R. Howard and David Michael Carter, Gallatin, Tennessee, (at trial), for the appellee, Christopher Scott Chapman.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; Tara Wyllie, Assistant District Attorney; C. Wayne Hyatt, Assistant District Attorney General; and Lytle Anthony James, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Christopher Scott Chapman, was indicted by the Sumner County Grand Jury for attempted first degree murder and possession of a firearm during the commission of a dangerous felony. Following a jury trial, Defendant was convicted of aggravated assault, charged to the jury as a lesser included offense of attempted first degree murder, and the second count of the indictment was dismissed by the trial court. Defendant was sentenced by the trial court to serve six years in the Tennessee Department of Correction. Defendant appeals his conviction and sentence and asserts: 1) that the trial court erred by instructing the jury as to the offense of aggravated assault as a lesser included offense of attempted first degree murder; 2) that the trial court erred by not recusing itself; 3) that the trial court erred by sentencing Defendant to the maximum sentence within the range; and 4) that the trial court erred by ordering Defendant’s sentence to run consecutively to a prior sentence for aggravated assault for which Defendant was on probation at the time he committed the offense in this case. After a careful review of the record, we find no error and affirm the judgment of the trial court.


STATE OF TENNESSEE v. BRANDON LEE LAFERTY

Court: TN Court of Criminal Appeals

Attorneys:

Stephen M. Wallace, District Public Defender; and Steven D. Bagby, Assistant Public Defender, for the appellant, Brandon Lee Laferty.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Barry Staubus, District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Brandon Lee Laferty, appeals the Sullivan County Criminal Court’s revoking his probation for solicitation of aggravated sexual battery, a Class D felony, and ordering his ten-year sentence into execution. On appeal, the Defendant contends that the trial court erred in revoking his probation and ordering him to serve his sentence. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. MICHAEL LOVE

Court: TN Court of Criminal Appeals

Attorneys:

Michael R. Working, Memphis, Tennessee, for the appellant, Michael Love.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Greg Gilbert and Susanna Shea, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Defendant, Michael Love, of aggravated rape, aggravated robbery, aggravated burglary, and employing a firearm with intent to commit a felony. The trial court sentenced the Defendant to an effective sentence of twenty-four1 years in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the trial court erred when it failed to suppress a photographic lineup of the Defendant, which he asserts was unnecessarily suggestive; and (2) the trial court erred when it enhanced the Defendant’s sentence. After a thorough review of the record and applicable authorities, we affirm the Defendant’s convictions and sentence. Having noticed, however, that there are clerical errors in the judgments of conviction for the aggravated rape, aggravated robbery, and employing a firearm with intent to commit a felony convictions, we remand this case to the trial court for entry of corrected judgments.


DONALD MICKENS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Paul K. Guibao, Memphis, Tennessee, for the appellant, Donald Mickens.

Robert E. Cooper, Jr., Attorney General and Reporter, Benjamin A. Ball, Assistant Attorney General; Amy P. Weirich, District Attorney General, and Alycia Carter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Donald Mickens, appeals the denial of post-conviction relief. Petitioner was convicted of multiple drug offenses. As a result of the convictions, Petitioner was sentenced to an effective sentence of twenty-five years. The convictions and sentence were affirmed on appeal. See State v. Donald Mickens, No. W2009-00586-CCA-R3-CD, 2010 WL 2697164 (Tenn. Crim. App., at Jackson, Jul. 8, 2010). Petitioner sought pro se postconviction relief on the basis of ineffective assistance of counsel. Counsel was appointed and an amended petition was filed. After a hearing, the post-conviction court denied relief. Petitioner initiated this appeal. After a review, we determine the evidence does not preponderate against the judgment of the post-conviction court. Petitioner failed to show that he received ineffective assistance of counsel or that the performance of counsel was prejudicial. Accordingly, the judgment of the post-conviction court is affirmed.


MARCUS NORWOOD v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the appellant, Marcus Norwood.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel E. Willis, Assistant Attorney General; Amy P. Weirich, District Attorney General, and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Marcus Norwood, entered an Alford plea to second degree murder in Shelby County in October of 2010, with an agreed sentence of twenty-five years. Subsequently, Petitioner filed a petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel which adversely affected his decision to enter a guilty plea. The post-conviction court denied relief. Petitioner appealed. After a review of the evidence, we conclude that Petitioner has failed to establish that counsel’s performance was deficient or that the voluntariness of the guilty plea was affected by the actions of counsel. Accordingly, the judgment of the post-conviction court is affirmed.


STATE OF TENNESSEE v. JERECO TYNES

Court: TN Court of Criminal Appeals

Attorneys:

Lance R. Chism (on appeal) and Gregg Carman (at trial), Memphis, Tennessee, for the appellant, Jereco Tynes.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy Weirich, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Jereco Tynes (“the Defendant”) was convicted by a jury of one count of first degree felony murder; one count of attempted aggravated robbery; one count of aggravated robbery; and one count of theft of property between $10,000 and $60,000. The trial court sentenced the Defendant to life imprisonment for the murder and, after a hearing, to a consecutive term of five years for the attempted aggravated robbery; a consecutive term of eight years for the aggravated robbery; and a concurrent term of four years for the theft, for an effective sentence of life plus thirteen years. In this direct appeal, the Defendant contends that the trial court erred by (1) admitting into evidence proof that the Defendant had been in a homosexual relationship; (2) prohibiting defense counsel from cross-examining two co-defendants about their sentence exposure; (3) instructing the jury that evidence of a confession had been admitted; (4) failing to instruct the jury as to certain lesser-included offenses; and (5) imposing consecutive sentences. The Defendant also challenges the sufficiency of the evidence as to all of his convictions. We have determined that the trial court committed reversible error by failing to instruct the jury on a lesser-included offense of theft of property over $10,000. Accordingly, we must reverse the Defendant’s conviction of theft over $10,000 and remand that charge for a new trial. As to the Defendant’s remaining issues, we find no reversible error. Accordingly, the trial court’s judgments are otherwise affirmed.


Still Time to Enter TBA Video Contest

Students can explore the idea that the judiciary is, as Alexander Hamilton wrote, "the least dangerous” branch of government in the Tennessee Bar Association’s Third Annual YouTube Video Contest. Middle school and high school students can win up to $500 in the contest by producing a three-minute video that explores this topic and addresses questions such as: (1) why is it important to have a judiciary that is independent of the legislative and executive branches; (2) how does this structure strengthen the doctrine of separation of powers; (3) how high should the walls between the branches be; (4) what happens when judges aren’t fair or impartial; or (5) considering the powers granted to the three branches and the checks and balances each has over the others, do you agree that the judiciary is the least dangerous branch? The deadline for middle school entries is Friday. High school students have until March 29. Questions? Contact Liz Todaro at the TBA.


TRA Director to Leave Post

Memphis attorney Sara Kyle -- the last woman popularly elected to a statewide office in Tennessee – today resigned her position as a director of the Tennessee Regulatory Authority. Kyle, who had been elected to the TRA’s predecessor agency, the Tennessee Public Service Commission, in 1994 said she was leaving the post because a reorganization had made it a part-time job, the Commercial Appeal reports.


Spotlight on Judge Handling Memphis School Merger Case

As the deadline nears for unifying the majority-black Memphis City Schools and the majority-white Shelby County School system, the Memphis Flyer looks at the man working to get the two sides together, U.S. District Judge Samuel H. Mays Jr. A graduate of Memphis’ White Station High School, Mays is called an intellectual by some, and politically astute by others. "I don't think I've ever seen a judge with so much sense of what the common citizen goes through every day,” former federal prosecutor Tim DiScenza told the Flyer. “He brings common sense to very complicated matters."


Survey of Tennessee Lawyers Closes Friday

Friday is the final day of the 2013 Tennessee Lawyer Survey. The survey has been emailed to you. Please take about 10 minutes and complete it. If you have misplaced the email and would like the survey sent to you again, contact Kelly Stosik at the Tennessee Bar Association or Will Hampton at Yacoubian Research, or you can call Yacoubian Research at (877) 250-7890.


The 6th Circuit's Take on Student Loan Debt

It's payback time! Third-year Memphis law student Chandler Harris examines the dischargeability of student loan debt in the 6th Circuit. Read his article in the March Tennessee Bar Journal.


Students Play Key Role in Human Rights Battle, Prof Says

Former University of Tennessee College of Law professor Ndiva Kofele-Kale urged students to get involved in human rights issues during a kickoff address at the third annual Human Rights Awareness Week, hosted by the UT Amnesty International Chapter. "As students you all are the repository of ideas," The Daily Beacon reported Kofele-Kale said. "You, more so than the adults, understand what I mean when I say, 'We all share a common humanity.' If one person's human rights are being assaulted, then yours and mine are also under attack."


Bills Take on Drug Addiction and Pregnancy

A proposal that would put pregnant women at the front of the line for drug treatment programs passed a state House subcommittee Tuesday. The “Safe Harbor Act” also would prevent newborns from being taken from families by the Department of Children’s Services solely because of drug use during pregnancy. It is one of four proposals concerning babies born addicted to prescription drugs working their way through the General Assembly, the Tennessean reports. The bill now moves to the Health Committee.


Legal Clinic to Help Magdalene House Residents

Nashville area attorneys or law students interested in helping Magdalene House residents with legal issues can take part in an orientation session from 8 to 9 a.m. on Friday at Waller Lansden Dortch & Davis LLP. The volunteers will then work at a clinic from 4 to 7 p.m. on April 4 at Magdalene House, which is a residential program in Nashville for women who have survived prostitution, trafficking, addiction and life on the streets. The clinic is sponsored by the Belmont College of Law Legal Aid Society and the Tennessee Bar Association Access to Justice Committee. To learn more, contact Katie Blankenship or Emily Cole.


 
 

Questions, comments: Email us at TBAToday@tnbar.org

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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