Judicial Evaluation Bill Suffers Setback

Legislation to scramble the Judicial Performance Evaluation Commission (JPEC) and the current performance evaluation process suffered a huge setback today when the House sponsor withdrew the bill from consideration and the subcommittee with jurisdiction closed for the year. The bill (SB 1058/HB 1227), as amended by the Senate Judiciary Committee two weeks ago, would have removed all of the present JPEC members, reconstituted the body without any judges as members, allowed the commission to rewrite evaluation criteria, and provided that if an incumbent appellate level judge was evaluated as “for replacement,” that judge could not stand for retention election. The resulting judicial vacancy would then be filled by gubernatorial appointment after a nominating commission recommendation. The TBA fought the measure with TBA President Jackie Dixon saying that action on the bill would amount to “changing the rules, the referees and the scorekeeping after the two-minute warning.” Retention elections are set for August 2014 for all current Supreme Court, Court of Appeals and Court of Criminal Appeals judges.

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
04 - 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

STATE OF TENNESSEE v. KIMBERLY MANGRUM

Court: TN Supreme Court

Attorneys:

William B. Lockert, III, District Public Defender, for the appellant, Kimberly Mangrum.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Rachel Harmon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

A Dickson County grand jury returned an indictment charging the defendant with especially aggravated burglary, especially aggravated kidnapping, first degree premeditated murder, and first degree felony murder. Later the same day, the grand jury returned a superseding indictment re-charging the defendant and her husband with the same offenses, but adding a charge of criminal conspiracy as to each. The prosecution subsequently granted immunity to the defendant’s step-daughter and issued a subpoena for her appearance, and the grand jury reconvened to hear her testimony. The defendant filed a motion to quash the subpoena, arguing that the purpose of the testimony was to improperly acquire evidence to support the pending charges against her. The trial court denied the motion to quash. After the defendant’s step-daughter testified before the grand jury, a second superseding indictment was issued charging all offenses in the first indictment and adding a charge of accessory after the fact against the defendant’s husband. The defendant then filed motions to suppress any testimony by the defendant’s step-daughter at trial and to dismiss all pending indictments. The trial court denied each motion. At the conclusion of the trial, the jury found the defendant guilty of aggravated burglary, especially aggravated kidnapping, attempted first degree premeditated murder, and first degree felony murder. After merging the convictions for attempted premeditated murder and felony murder, the trial court imposed a life sentence for the murder and concurrent sentences of twenty-five and six years, respectively, for the especially aggravated kidnapping and the aggravated burglary. On appeal, the defendant claimed that the trial court should have dismissed the charges because of prosecutorial abuse of the grand jury process. The Court of Criminal Appeals disagreed and affirmed the judgment of the trial court. We affirm the judgment of the Court of Criminal Appeals.


TN Court of Appeals

STANLEY FINNEY v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; William Young, Solicitor General; Pamela S. Lorch, Senior Counsel, Nashville, Tennessee, for the appellants, Tennessee Department of Correction; Commissioner George M. Little; Jim Worthington, Warden, Brushy Mountain Prison; Sgt. Larry Ward, Disciplinary Board Chairman.

Stanley Finney, Mountain City, Tennessee, appellee, pro se.

Judge: SUSANO

This is the second appeal stemming from Stanley Finney’s prisoner disciplinary proceeding. Finney filed a petition seeking a common law writ of certiorari after he was disciplined for a violation of prison rules. Respondents, the Tennessee Department of Correction and its Commissioner (collectively “TDOC”) did not oppose the writ. The trial court granted the writ and TDOC filed a motion for judgment “on the record.” The trial court granted the motion and dismissed Finney’s claim. Finney appealed. In that first appeal, this Court vacated the order of dismissal and remanded for further proceedings. On remand, the trial court summarily granted Finney another disciplinary hearing. TDOC appeals. We vacate the judgment entered on remand and return the case to the trial court for further proceedings.


EARL GREENWOOD v. CHRISTI PURRENHAGE

Court: TN Court of Appeals

Attorneys:

Billy K. Tollison, III, Sparta, Tennessee for the appellant, Earl Greenwood.

Ricky L. Jenkins, Sparta, Tennessee for the appellee, Christi Purrenhage.

Judge: BENNETT

Father seeks additional time with the children, alleging that a failed attempted reconciliation created a material change in circumstances. The trial judge found no material change in circumstances. We affirm.


HARDEMAN COUNTY v. JUDY I. MCINTYRE, ET AL.

Court: TN Court of Appeals

Attorneys:

James I. Pentecost and Melissa K. Van Pelt, Jackson, Tennessee, for the appellants, Hardeman County, Tennessee and Hardeman County Emergency Medical Services.

David A. Stowers and Stephen L. Hale, Bolivar, Tennessee, for the appellees, Judy McIntyre and Billy McIntyre.

Jay G. Bush, Jackson, Tennessee, for the appellee, Judy I. McIntyre.

Judge: STAFFORD

This case concerns the liability for a collision involving a vehicle operated by one of the appellees and an ambulance operated by the appellant county. After a bench trial, the trial court awarded damages to appellee driver against the appellant. After a thorough review of the record, we reverse and remand.


ANGELA K. THOMAS v. JEFFERY K. THOMAS

Court: TN Court of Appeals

Attorneys:

Joseph Paul Weyant, Clarksville, Tennessee, for the appellant, Jeffery K. Thomas.

Kimpi King Kendrick, Murfreesboro, Tennessee, for the appellee, Angela K. Thomas.

Judge: BENNETT

In this post-divorce appeal, Husband appeals the trial court’s imputation of income to him for the purpose of setting his alimony and child support obligations, the determination of parenting time, and the award of a retirement account to Wife. Finding no error, we affirm the trial court.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. DEON MARQUETT BOYKINS

Court: TN Court of Criminal Appeals

Attorneys:

Shana Johnson, Somerville, Tennessee, for the appellant, Deon Marquett Boykins.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Deon Marquett Boykins, pled guilty to two counts of introducing contraband into a penal institution and one count of possessing a Schedule II controlled substance with intent to deliver. He was sentenced as a Range I, standard offender to an effective five years on probation. On appeal, the appellant contends that the trial court erred by denying his request for judicial diversion. Based upon the record and the parties’ briefs, we reverse the judgment of the trial court and remand the case for a new sentencing hearing.


STATE OF TENNESSEE v. JASON ALLEN COBB

Court: TN Court of Criminal Appeals

Attorneys:

Gary F. Antrican, District Public Defender; and Shana Johnson and Parker O. Dixon, Assistant District Public Defenders, Somerville, Tennessee, for the appellant, Jason Allen Cobb.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; D. Michael Dunavant; District Attorney General; and Joe Van Dyke and Katie Walsh, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

A Hardeman County jury convicted appellant, Jason Allen Cobb, of second degree murder. The trial court sentenced him to twenty-three years in the Tennessee Department of Correction. On appeal, appellant contends that (1) the trial court erred in admitting improper character evidence; (2) a witness’s false testimony violated his right to a fair trial; (3) the State engaged in prosecutorial misconduct; (4) the evidence was insufficient to support his conviction; and (5) the trial court erred in ordering him to serve his sentence in this case consecutively to his sentence in another case. Upon review of the record, the parties’ briefs, and applicable law, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. DANNY RAY DUNN

Court: TN Court of Criminal Appeals

Attorneys:

William Maurice Speek (on appeal); Ardena J. Garth, District Public Defender; and David Barrow, Assistant District Public Defender (at trial), Chattanooga, Tennessee, for the appellant, Danny Ray Dunn.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; William H. Cox, III, District Attorney General; and Kate Lavery, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Danny Ray Dunn, entered guilty pleas without recommended sentences to four counts of vehicular assault, one count of reckless aggravated assault, one count of driving under the influence, one count of driving on a revoked license, and one count of violation of the financial responsibility law. Following a sentencing hearing, the trial court sentenced him to an effective twenty-year sentence consisting of five consecutive sentences of four years each for the assaultive offenses; eleven months, twenty-nine days for driving under the influence; six months for driving on a revoked license; and thirty days for violation of the financial responsibility law, to be served in the Tennessee Department of Correction. Appellant challenges the length of his sentences, sentence alignment, denial of a suspended sentence, and denial of his motion to withdraw his guilty plea. Upon our review of the record, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. STEPHEN BARTHOLOMEW GILLARD

Court: TN Court of Criminal Appeals

Attorneys:

Joy S. Kimbrough, Nashville, Tennessee, for the appellant, Stephen Gillard.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Stephen Bartholomew Gillard, of possession of a controlled substance, third offense. On appeal, the Defendant challenges the prior conviction evidence introduced at trial to support the third offense classification for possession of a controlled substance. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.


DERRICK LEMON GOODE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Andrew Jackson Dearing, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Derrick Lemon Goode.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Charles Crawford, District Attorney General, and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Derrick Lemon Goode, was convicted by a Bedford County jury of one count of the sale of .5 grams of cocaine and one count of the delivery of .5 grams or more of cocaine. State v. Derrick Lemon Goode, No. M2009-02259-CCA-R3-CD, 2010 WL 4674298, at *1 (Tenn. Crim. App., at Nashville, Nov. 17, 2010), perm. app. denied (Tenn. Apr. 13, 2011). After the merger of the convictions, Petitioner was sentenced to twelve years. He was unsuccessful on appeal. Id. Petitioner subsequently filed a petition for post-conviction relief alleging that he was afforded ineffective assistance of counsel. After conducting a hearing, the post-conviction court denied the petition. On appeal, Petitioner alleges that he received ineffective assistance of counsel because trial counsel failed to adequately prepare for trial; failed to adequately prepare, interview and call witnesses for trial; and failed to properly investigate his addiction. After a thorough review of the record, we conclude that Petitioner has not proven either that trial counsel’s representation was deficient, or that Petitioner was prejudiced by trial counsel’s representation. Therefore, we affirm the post-conviction court’s denial of the petition.


IRA MINNIFEE, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee for the Petitioner-Appellant, Ira Minnifee, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Ira Minnifee, Jr., appeals the denial of post-conviction relief by the Criminal Court for Knox County. He originally entered guilty pleas to one count of possession of more than one gram of cocaine with the intent to sell within a thousand feet of a school and six counts of half a gram of cocaine or more within a thousand feet of a school, all Class A felonies. Pursuant to the plea agreement, he received an effective sentence of twenty years. In this appeal, the Petitioner contends that he received ineffective assistance of counsel due to counsel’s failure to adequately investigate his case. Consequently, the Petitioner claims he did not enter a knowing and voluntary guilty plea. Upon review, we affirm the judgment of the trial court.


SHAWN SIMMONS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Shawn Simmons.

Robert E. Cooper, Jr. Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

A Lincoln County jury convicted petitioner, Shawn Simmons, of first degree murder. After an unsuccessful direct appeal, petitioner filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel. The post-conviction court denied relief, and petitioner now appeals. Upon review, we discern no error and affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. DUSTIN LEE SWANEY

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk, (on appeal) Knoxville, Tennessee; and Raymond M. Garner, District Public Defender (at guilty plea and sentencing), for the Defendant-Appellant, Dustin Swaney.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Betsy Smith, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Dustin Swaney, entered a plea of guilty to abuse of a child under the age of eight, a Class D felony, with the court to determine the length and manner of service of sentence. After a sentencing hearing, Swaney was sentenced to three years and six months’ confinement. The sole issue presented for our review is whether the trial court abused its discretion in imposing sentence. Upon review, we affirm the judgment of the trial court.


Haslam Says 'No' for Now to Medicaid Expansion

Expressing concern that the federal Medicaid expansion would prove too costly once subsidies run out and would hamper creative approaches to cost savings, Gov. Bill Haslam today said the state will not join the program for now. However, he left the door open for a reversal if federal officials address his concerns, The Tennessean reports. In a speech to state legislators, Haslam also said he wants to pursue a state plan for expanding health care coverage but has not received federal approval for that approach.


Judge Stanley Named to Ethics Committee

The Tennessee Supreme Court has appointed Washington County Circuit Court Judge Jean A. Stanley to the Judicial Ethics Committee. She will fill the seat previously held by former Chancellor Thomas R. “Skip” Frierson, who now serves as a judge on the Tennessee Court of Appeals. Stanley joins Davidson County Criminal Court Judge Cheryl A. Blackburn, Tennessee Court of Criminal Appeals Judge Alan E. Glenn, Shelby County General Sessions Judge Betty Thomas Moore, Lawrenceburg Municipal Judge Paul B. Plant and Shelby County Circuit Court James F. Russell on the committee. The court also announced that it soon will name a replacement for Hamilton County Juvenile Court Judge Suzanne Bailey, who is retiring on April 30.


Nashville Courts to Conduct Caseload Analysis

The Davidson County trial courts are undertaking a study to analyze how cases are assigned in all criminal and civil courts, and how that system affects caseloads. Under the present method, judges are specialists within an area of the law, and cases are assigned accordingly. While this creates efficiencies through specialization, the court administrator reports that it does not address caseload increases in a particular specialty. An alternative under consideration is to cross train judges and staff so that high volume cases (such as domestic cases) can be assigned to other judges who have less demanding dockets. The objective, according to a press release from the court, is to build flexibility and accomplish more with existing resources.


DA Names Domestic Violence Prosecution Team

Addressing a growing need to help victims of domestic violence, the Davidson County District Attorney’s Office will create a special team to handle domestic crime-related cases. District Attorney Torry Johnson said the Domestic Violence Prosecution Team will devote six assistant district attorneys and five victim witness coordinators to the effort. A similar team was disbanded 10 years ago because of budget concerns, WTVF NewsChannel 5 reports, but it has been reconstituted after Mayor Karl Dean recognized the growing need. "The trend has to be to bring these cases into the criminal justice system and break the cycle of violence," Johnson said in announcing the team.


Haslam, Others Reject Georgia Effort to Access Water

Tennessee Gov. Bill Haslam quickly rejected Georgia’s latest effort to move the state border and gain access to water from the Tennessee River, the Chattanooga Times Free Press reports. Haslam, through a spokesman, said he has no interest in going along with Georgia’s latest legislative attempt to access the river. Bill Johnson, the new CEO of the Tennessee Valley Authority, also weighed in saying the TVA board of directors would have considerable input on the issue since federal law gives the agency authority over the river. He also raised the specter of years of environmental litigation over permits. And at least one state lawmaker from Chattanooga indicated his willingness to let Georgia sue. "Well, they've threatened to take us to court, so I guess we'll let the AG's office take care of it and go to court with them," said House Majority Leader Gerald McCormick.


Mayor Names Miller & Martin Attorney to Lead Staff

Chattanooga Mayor-Elect Andy Berke today named Miller & Martin attorney Travis McDonough as his chief of staff and counselor, the Chattanoogan reports. McDonough, who is chair of Miller & Martin's litigation practice, previously served as chair of the TBA's Litigation Section. Berke will be sworn in as mayor on April 15.


Hamilton Commissioners Interview Magistrate Candidates

Hamilton County commissioners heard from eight lawyers Tuesday wishing to fill two magistrate positions, the Chattanooga Times Free Press reports. The seats, now held by Chief Magistrate Randall Russell and Magistrate Sharetta Smith will open April 30 when contracts for the two expire. Russell and Smith, both from Hixson, have applied for reappointment. Also interviewed were Anna Adams, Ooltewah; Lucy Cerpa-Martinez, Cleveland; Micah Gates, Memphis; Robyn Owens, Nashville; Jennifer Wade, Antioch; and Justin Woodward, Chattanooga.


Drug Court Running Low on Funds

The Sumner County Drug Court, which is in its 11th year and annually serves 40 to 60 adults, is running low on funding, with one general sessions judge saying the program could be as much as $35,000 short in the next fiscal year. The program is funded by an annual state grant and fines paid by those convicted of drug or alcohol-related crimes in the county. The 2013 Leadership Sumner class also recently made a three-year financial commitment to the drug court. As one class member observed, “Either we can fund the program…or we can pay for them to stay in the county jail. Either way, we are going to pay for it.” The Tennessean looks at the history of the program, including a number of success stories.


Opinion: Gender Gap Continues to be Problem

Despite a substantial growth in the number of female attorneys, a gender gap continues to exist in the legal profession, Nashville attorney Ann Peldo Cargile of Bradley Arant Boult Cummings writes in today’s Tennessean. Not only are fewer female attorneys reaching partner status, many are leaving the profession entirely, she writes. These trends and ways that firms can develop better practices for hiring, developing and retaining diverse legal talent will be the topic of a program at this year’s Tennessee Bar Association Annual Convention in Nashville. Presented jointly by the TBA and Tennessee Lawyers Association for Women, the session will be part of the CLE lineup during the June 12-15 event.


Court Takes up Defense of Marriage Act

The Supreme Court today heard oral arguments on the federal Defense of Marriage Act (DOMA). Before getting to the merits of the law, though, the justices wrestled with standing and jurisdiction issues now that the government is no longer defending the law and a group of House members is standing in its place. Allowing the House group to defend the law is "very strange" said Justice Sonia Sotomayor, while others said the court should not act when original parties in litigation end up on the same side. The government argued that the court does have jurisdiction because it has continued the appeal to show "respect" for Congress. On the issue of the law’s constitutionality, supporters of the law argued that Congress is entitled to establish uniform rules for federal benefits. Opponents argued the bill discriminates against same-sex couples and inserts the federal government into an issue traditionally reserved for the states. The Blog of Legal Times looks at the issues.


Race Judicata Scheduled for April 6

The Student Bar Association at the University of Memphis School of Law is sponsoring its annual Race Judicata April 6 at 5 p.m. The race will take place at Mississippi River Park, located at 51 North Riverside Dr. The race is open to the public, and runners, walkers and strollers are welcome. There will be food and live music following the race, the proceeds from which benefit Memphis Area Legal Services. For more information, or to sign up as a sponsor visit the event webpage.


Suspensions Vacated for 2 Lawyers

The Tennessee Supreme Court has ordered the Board of Professional Responsibility to vacate suspensions for two lawyers after finding that the board did not provide the required notice. In the first case, the court vacated a suspension imposed on Davidson County lawyer Lora Jackson Manson on June 26, 2012, for failure to file the 2012 annual fee and IOLTA report. In the second case, the court vacated the suspension against Shelby County attorney John Michael Bailey, who had been suspended on Oct. 9, 2012, for failure to file the 2012 IOLTA report. Download the revised orders.


8 Lawyers Reinstated After Administrative Suspension

Eight Tennessee-licensed lawyers have been reinstated after being administratively suspended for failure to complete CLE requirements in 2012, file the annual BPR registration fee and/or the required IOLTA report in 2012, and pay the 2012 professional privilege tax. See the updated lists at the links above.


 
 

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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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