Merit Selection Falls to Squabble, Legislature Adjourns for Year

Merit selection, considered by many to be the key feature of the successful Tennessee Plan, was eliminated from the process today when lawmakers could not, at the last minute, reach an accommodation on an unrelated squabble.

Three attempts to pass a bill to extend the life of the Judicial Nominating Commission in the House were stymied during the last day of the session. Since the constitutional power to fill vacancies is vested in the legislature, there will be no mechanism to appoint trial or appellate judges to replace jurists who die, retire or are removed.

Appellate judges will be evaluated by the present Judicial Performance Evaluation Commission before standing for election in August 2014. No changes in the composition or membership of that commission will come as a result of the inaction.

Some observers also saw developments early in the day on judicial redistricting (see related story) as part of the overall spat.

The legislature adjourned for the year this afternoon.

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
02 - TN Court of Appeals
02 - 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. DAVID HOOPER CLIMER, JR.

Court: TN Supreme Court

Attorneys:

C. Mark Donahoe and Andrea D. Sipes, Jackson, Tennessee, for the appellant, David Hooper Climer, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; J. Ross Dyer, Senior Counsel; Clarence E. Lutz, Assistant Attorney General; Garry G. Brown, District Attorney General, Larry Hardister and Stephanie J. Hale, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: CLARK

We granted this appeal to determine whether the trial court erred by denying the defendant’s motion to suppress his statements to the police on the grounds that they were elicited in violation of his constitutional right to counsel and were involuntary. We have determined that the defendant did not unequivocally request counsel and therefore did not invoke his constitutional right to counsel. Nevertheless, we have also determined that the State failed to prove by a preponderance of the evidence that the defendant waived the rights enumerated in Miranda v. Arizona, 384 U.S. 436 (1966). Thus, we hold that the defendant’s statements were erroneously admitted into evidence, but the physical evidence discovered as a result of his statements was properly admitted because the totality of the circumstances shows that the defendant’s statements were voluntary and not coerced. We also hold that the State failed to establish that the erroneous admission of the defendant’s statements was harmless beyond a reasonable doubt. Accordingly, the defendant’s convictions of second degree murder and abuse of a corpse are vacated, and this case is remanded for further proceedings.


STATE OF TENNESSEE v. NICKOLUS L. JOHNSON

Court: TN Supreme Court

Attorneys:

James Thomas Bowman, Johnson City, Tennessee, and Stacy L. Street, Elizabethton, Tennessee, for the appellant, Nickolus L. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: LEE

A jury convicted the defendant of premeditated first degree murder for shooting and killing a police officer. As the penalty phase of the trial began, the defendant refused to allow his lawyers to present mental health mitigation evidence. After questioning the defendant about his decision, the trial court directed two mental health experts to evaluate the defendant’s mental competency. After the evaluation, the mental health experts testified that they could not render an opinion as to the defendant’s competency because the defendant had refused to cooperate. The trial court ruled that the defendant had failed to overcome the presumption of competency and was therefore competent to waive the presentation of expert mental health testimony. The State proved the existence of two aggravating circumstances pursuant to Tennessee Code Annotated sections 39-13-204 (i)(2) and (9) (2006). The defendant presented testimony from family and friends. The jury sentenced the defendant to death. The Court of Criminal Appeals affirmed the defendant’s conviction and sentence. State v. Johnson, No. E2010-00172-CCA-R3-DD, 2012 WL 690218 (Tenn. Crim. App. Mar. 5, 2012). We hold that a mentally competent defendant may waive the presentation of mitigation evidence during the penalty phase of a capital trial. We further hold that (1) the evidence does not preponderate against the trial court’s ruling that the defendant was mentally competent to waive the presentation of mitigation evidence; (2) the trial court did not err in overruling the defendant’s motion for a mistrial based on the State’s improper reference to abortion during its closing argument; (3) the defendant’s challenge to the constitutionality of Tennessee’s death penalty is without merit; and (4) based on our review of the death sentence, as required by Tennessee Code Annotated section 39-13-206(c) (2010), the death sentence was not imposed in an arbitrary fashion; the evidence supports the jury’s finding of statutory aggravating circumstances; the evidence supports the jury’s finding that the aggravating circumstances outweigh any mitigating circumstances; and the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. We affirm the defendant’s first degree murder conviction and sentence of death.


STATE OF TENNESSEE v. BOBBY LEE ROBINSON ET AL.

Court: TN Supreme Court

Attorneys:

L. Willis Jones, Nashville, Tennessee, for the appellant, Bobby Lee Robinson.

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

Judge: HOLDER

Police utilized a confidential informant to arrange a drug buy from a co-defendant. At the scheduled time and location, the co-defendant arrived in his truck with the defendant and another passenger. A police takedown resulted in the arrest of the three men. A consensual search of the truck yielded approximately 153 grams of cocaine and 8.6 grams of marijuana in close proximity to where the defendant had been seated. A subsequent consensual search of the co-defendant’s residence, located several miles away, yielded an additional 293.5 grams of cocaine and various items of drug paraphernalia. The State consolidated the weight of the cocaine and charged the defendant with possession with intent to sell 300 grams or more of cocaine, a Class A felony; possession of marijuana; and possession of drug paraphernalia. The jury convicted the defendant of possession with intent to sell 300 grams or more of cocaine and possession of drug paraphernalia. We hold that although the evidence was sufficient to support a finding that the defendant constructively possessed the cocaine in the co-defendant’s truck, the evidence was insufficient to support a finding that he constructively possessed either the cocaine or the drug paraphernalia in the co-defendant’s residence. Accordingly, we reduce the conviction for possession with intent to sell 300 grams or more of cocaine to possession with intent to sell 26 to 299 grams of cocaine, a Class B felony, and we vacate the conviction for possession of drug paraphernalia. The case is remanded to the trial court for re-sentencing on the reduced offense.


TN Court of Appeals

TYRIN ROSS PRICE v. SANDRA ELLEN PRICE

Court: TN Court of Appeals

Attorneys:

Bradley C. Ball, Lakeland, Tennessee for Defendant/Appellant, Sandra Ellen Price

Charles Rich, Memphis, Tennessee for Plaintiff/Appellee, Tyrin Ross Price

Judge: KIRBY

This appeal involves the child support obligation of a man who is not the biological father of the children at issue. The wife gave birth to two children during the parties’ marriage. The husband filed for divorce, and subsequent DNA tests confirmed that the husband was not the father of either child. The trial court held that the husband had no legal obligation to pay child support. The wife now appeals, arguing that the husband should be required to pay child support because he is the children’s “legal father.” Discerning no error, we affirm.


JAMES C. WILLIAMS, Individually and on behalf of the heirs at law of GAYLE ANN WILLIAMS, DECEASED, for the use and benefit of the heirs at law of GAYLE ANN WILLIAMS, DECEASED, and on behalf of GAYLE ANN WILLIAMS, DECEASED v.
SMZ SPECIALISTS, P.C., SYED H. SHIRAZEE, M.D., P.C., SYED H. SHIRAZEE, M.D., SAID ELIAS, M.D., P.C., SAID ELIAS, M.D., MEMPHIS EMERGENCY ROOM GROUP, PLLC, STEVEN G. BENTLEY, M.D., P.C., STEVEN G. BENTLEY, M.D., TENENT HEALTHSYSTEMS BARTLETT, INC., ST. FRANCIS HOSPITAL BARTLETT, AND JOHN and/or JANE DOE, v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Darrell E. Baker, Jr., Deborah Whitt, and M. Jason Martin, Memphis, Tennessee for Defendant/Appellant, Said Elias, M.D.

Michael L. Robb, Margaret F. Cooper, and Samantha E. Bennett, Memphis, Tennessee for Defendant/Appellant, Steven G. Bentley, M.D.

Robert E. Cooper, Jr., William E. Young, and Stephanie A. Bergmeyer, Nashville, Tennessee for Defendant/Intervenor/Appellant, the State of Tennessee

Louis P. Chiozza Jr., Memphis Tennessee and Steven R. Walker, Oakland, Tennessee for Plaintiff/Appellee, James C. Williams, Individually and on behalf of the heirs at law of Gayle Ann Williams, Deceased.

Judge: KIRBY

This appeal involves a constitutional challenge to T.C.A. § 29-26-121, which requires notice to defendants prior to the commencement of a health care liability lawsuit. The plaintiff filed a lawsuit asserting health care liability against the defendant health care providers within the applicable statute of limitations, but without providing the defendants with prior notice as required under Section 29-26-121. In ruling on the defendants’ motion for summary judgment, the trial court held that Section 29-26-121 conflicted with Rule 3 of the Tennessee Rules of Civil Procedure. On this basis, it held that the statute infringed upon the authority of the judicial branch to enact rules governing the procedures for commencing a lawsuit, and thus violated the separation of powers clause of the Tennessee Constitution. The defendant health care providers were granted permission for this interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. We reverse, holding that pre-lawsuit notice requirement in Section 29-26-121 does not contravene the separation of powers clause of the Tennessee Constitution.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. HENRY LEE JONES
With dissenting opinion.

Court: TN Court of Criminal Appeals

Attorneys:

Robert L. Parris and Jake Erwin, Memphis, Tennessee, for the appellant, Henry Lee Jones.

Robert E. Cooper, Jr. Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell and Thomas Henderson, Assistant District Attorney Generals, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Henry Lee Jones, appeals from his convictions of two counts of premeditated first degree murder and two counts of felony murder and his sentences of death resulting from the August 2003 deaths of Clarence and Lillian James. At the conclusion of the penalty phase, the jury unanimously found the presence of four statutory aggravating circumstances relating to the murder of Mrs. James: (1) Appellant was previously convicted of two or more felonies involving the use of violence; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of Appellant or another; and (4) the murder was knowingly committed while Appellant had a substantial role in committing any robbery. See T.C.A. § 39-13-204(i)(2), (5), (6), (7). The jury unanimously found the presence of the same four statutory aggravating circumstances with regard to the murder of Mr. James, as well as an additional statutory aggravating circumstance, that the victim was 70 years of age or older. See id. at (i)(14). The jury determined that these aggravating circumstances outweighed any mitigating circumstances and imposed sentences of death. On appeal, the following issues are presented for our review: (1) whether the trial court erred in admitting evidence of a subsequent murder; (2) whether the evidence is sufficient to support the convictions; (3) whether the trial court erred in admitting photographs of the victims; and (4) whether Tennessee’s sentencing statute for first degree murder is unconstitutional. After a review of the record and the applicable law, we affirm Appellant’s convictions and sentences of death and remand this matter to the trial court for entry of a single judgment of conviction for first degree murder with regard to each victim.


VINCENT LANIER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Zipporah C. Williams, Memphis, Tennessee, for the Petitioner-Appellant, Vincent Lanier.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Susanna M. Shea, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Vincent Lanier, appeals the Shelby County Criminal Court’s denial of his petition for writ of habeas corpus. The Petitioner was indicted for rape but entered a guilty plea to statutory rape. On appeal, the Petitioner argues that his judgment is void because (1) he entered a guilty plea to statutory rape, which is not a lesser included offense of the charged offense of rape, and his indictment was never amended from rape to statutory rape, and (2) trial counsel and the trial court failed to advise him that he would have to comply with the registration requirements of Tennessee’s sexual offender registration act because of his guilty plea to statutory rape. See T.C.A. § 39-13-506(d)(2)(B) (stating that “[i]n addition to the punishment provided for a person who commits statutory rape for the first time, the trial judge may order, after taking into account the facts and circumstances surrounding the offense, including the offense for which the person was originally charged and whether the conviction was the result of a plea bargain agreement, that the person be required to register as a sexual offender pursuant to title 40, chapter 39, part 2”). Upon review, we affirm the habeas corpus court’s summary dismissal of the petition.


Conservatorship Overhaul on Way to Governor’s Desk

The state Senate today gave final unanimous approval to the bill (SB 555/HB 692) sponsored by lawyer legislators Sen. Doug Overbey, R-Maryville, and Rep. Andy Farmer, R-Sevierville, making changes to governing conservatorships after hearing a report from the Tennessee Bar Association. Among the proposed changes, the recommendation establishes a uniform emergency placement process, clarifies the role of guardians ad litem, requires court orders to specify rights being taken away, and calls for more frequent financial reports. The recommendations follow a series of hearings held across the state at which members of the TBA Special Committee on Conservatorship Practice and Procedure, chaired by Jackson lawyer Pam Wright, heard from witnesses who lost all of their assets as victims of conservatorships. The legislation will be one of the topics in the Legislative Update CLE at the TBA Convention in Nashville in June. The Tennessean has more.


House Rejects Judicial Redistricting Plan

The state House today failed to pass a plan pushed by Senate Speaker Ron Ramsey to enact the first judicial redistricting in the state since 1984. Richard Locker, Nashville bureau chief for The Commercial Appeal, writes today that opponents of the bill moved to kill it for the session but House Speaker Beth Harwell ruled that a motion to reject must wait one day. House members whose districts were directly affected by the plan persuasively argued against it and convinced a majority of their colleagues to join them on a 28-66 vote to oppose the bill. One lawmaker also expressed a common sentiment that the bill was "crammed down" their throats by the Senate, which had approved it 27-4 on Tuesday.


Haslam Signs Public Notice Legislation

Gov. Bill Haslam has signed legislation proposed by the Tennessee Press Association (TPA) that requires all public notices printed in newspapers to also be published on websites as well as a statewide aggregate website maintained by TPA. According to supporters, the law is designed to increase transparency and openness in government, the Leaf Chronicle reports.


Court Issues 2nd Proposal for Changes to Disciplinary Rules

The Tennessee Supreme Court yesterday issued an order seeking comments on proposed changes to Rule 9 amendments that it originally proposed on Aug. 8, 2012. The court reports that the new changes are based on comments, including extensive comments by the TBA, it received after proposing the 2012 amendments. Yesterday's order sets June 14 as the deadline for new comments and includes a redline version of the amendment showing changes the court has made to the 2012 version. The TBA Ethics and Professional Responsibility Committee will review and make recommendations on the latest revisions.


Court Grants Review to 1 Civil, 3 Criminal Cases

The Tennessee Supreme Court has granted review in three criminal cases and a single civil matter. The criminal issues include (1) whether a trial attorney is ineffective for telling a defendant only that he “may or may not be deported” as part of a plea bargain; (2) whether a prosecutor’s closing argument that the defendant should “Just tell us where you were” constituted an improper comment on the defendant’s post-arrest silence; and (3) whether a defendant committed burglary when he obtained permission to enter a habitation through deception. The civil case addresses a jail’s liability to an inmate who was injured by another inmate after he was erroneously left in jail following a court order for his release. The Raybin-Perky Hot List discusses these cases and predicts possible results.


Street Sworn in Before Overflow Crowd

Judge Stacy Street was sworn in as First Judicial District Criminal Court judge yesterday in Elizabethton by fellow Criminal Court Judge Robert Cupp. Before a crowd of well wishers, Street thanked many people, and reflected that he is now sitting on a bench that has been occupied by only three men in the past 40 years: Arden Hill, Cupp and Lynn Brown, who he succeeds. He said all three had a drive “to be fair and to do the right thing” and that his dream is that “When my time is up that you can say the same thing about me.” See photos in the Johnson City Press and Elizabethton Star.


FBI Releases Details on Pilot Raid

Three days after federal agents raided the Knoxville headquarters of Pilot Flying J, the government released documents alleging that the company preyed on trucking customers that bought diesel fuel from it, withholding millions of dollars in rebates. Based on unnamed informants, the FBI said there is probable cause to believe Pilot employees conspired and schemed to engage in rebate fraud for years, targeting customers who were deemed too unsophisticated to notice their discount was being changed. One confidential source also alleged that the fraud occurred with the knowledge of Pilot CEO Jimmy Haslam and president Mark Hazelwood, Knoxnews reports. Company leadership continues to deny any wrongdoing.


Social Security Judges File Suit Over Caseload

Social Security administrative law judges have filed suit against the agency claiming they are so overwhelmed by disability claims that they sometimes award benefits they might otherwise deny just to keep up with the workload. The Social Security Administration says it has set a “productivity goal” for each judge to handle 500 to 700 cases a year. The judges, however, claim that is an illegal quota that violates their independence and denies due process rights to applicants. The Associated Press suggests that the suit “raises serious questions about the integrity of the disability hearing process” and comes as the disability program faces serious financial problems. WRCB-TV in Chattanooga has the AP story.


Commissioner Questions Quick Appointment of Juvenile Judge

After last week’s appointment of Rob Philyaw as the next Hamilton County Juvenile Court judge, one commissioner is crying foul, the Times Free Press reports. On April 11, commissioners appointed Philyaw over two other finalists -- Juvenile Magistrate Troy McDougal and attorney Curtis Bowe -- to replace Suzanne Bailey, who is retiring. Greg Beck, one of three commissioners who supported Bowe, said the ease with which Philyaw was appointed suggests politics were at play, even raising questions, he said, about Philyaw’s experience and motivation for seeking the appointment.


Long-Time Chancery Court Employee Dies

Catherine Marie "Kaky" Joyce, 81, died April 10 at the Ave Maria Home in Bartlett. A graduate of St. Agnes Academy and the University of Tennessee at Knoxville, Joyce worked for more than 30 years in the Shelby County Chancery Court in various positions. Her favorite assignment was working with families going through the adoption process, according to her obituary. Funeral services were held April 13 at St. Louis Catholic Church. In lieu of customary remembrances, contributions may be made to St. Louis Catholic Church, 203 S. White Station Rd., Memphis, TN 38117; Monastery of St. Clare, 1310 Dellwood Ave. Memphis, TN 38127; Ave Maria Home, 2805 Charles Bryan Rd., Bartlett, TN 38134; or the organization of the donor's choice.


Nashville Lawyer Suspended, Allowed to Serve Time on Probation

Nashville lawyer Ashley Denise Preston was suspended on April 17 for one year, but the Tennessee Supreme Court allowed her to serve the entire suspension on probation so long as she meets several conditions, including engaging a practice monitor and participating with the Tennessee Lawyers Assistance Program. She also may continue practicing law during the probationary period. The discipline was taken in response to complaints alleging that Preston neglected clients’ cases, failed to communicate with clients and the Board of Professional Responsibility, and failed to respond to court orders after failing to file a brief in a criminal case. Download the BPR notice


Race Raises Awareness of Crime Victims’ Rights

The First Judicial District Attorney’s Office and the Washington County Sheriff's Office, in association with Safe Passage domestic abuse shelter in Johnson City, will hold the Justice in Motion 5K run/walk April 27 during National Crime Victims' Rights Week. The event is designed to raise awareness of victims’ rights and will benefit the work of Safe Passage. Local domestic abuse shelters, sexual assault centers, victims groups and law enforcement agencies are invited to attend the race and set up booths with literature about their services. Learn more in this article in the Kingsport Times News or register online.


 
 

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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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