Commission Picks 2 Panels for Court Vacancy

The Judicial Nominating Commission yesterday selected two panels of candidates to be considered for the upcoming Court of Criminal Appeals vacancy in the Eastern Grand Division. The opening was created by Judge Joseph Tipton’s announcement that he will not seek retention in the 2014 election. The commission named two panels because the governor has the option of rejecting the first panel of names and requesting a second panel from the JNC. Since the commission will go out of existence at the end of June, it named a second panel to be used if necessary. The first panel included Criminal Court Judge Robert H. Montgomery Jr. of Blountville, Assistant D.A. Boyd M. Patterson Jr. of Chattanooga, and Circuit Court Judge Thomas J. Wright of Greeneville. The second panel consists of Assistant U.S. Attorney Charles Edward Atchley Jr. of Knoxville, and attorneys William Jackson Brown of Cleveland and Samuel K. Lee of Clinton.

Today's Opinions

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TN Supreme Court

EDDIE C. PRATCHER, JR. v. METHODIST HEALTHCARE MEMPHIS HOSPITALS ET AL.
With dissenting opinion.

Court: TN Supreme Court

Attorneys:

Robert A. Talley, Kenneth Shuttleworth, and Jessica M. Hackett, Memphis, Tennessee, for the appellant, Consultants in Anesthesia, Inc.

Randall L. Kinnard and Daniel L. Clayton, Nashville, Tennessee; Steven R. Walker, Oakland, Tennessee, for the appellee, Eddie C. Pratcher, Jr.

Judge: LEE

The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict for all defendants, the trial court set aside the verdict based on an error in the verdict form and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial as to all parties, Defendant moved to dismiss the case based on the statute of repose and to amend its answer to assert a statute of repose defense. The trial court ruled that Defendant had waived the statute of repose defense and denied the motions. We hold that (1) the running of the statute of repose does not deprive the trial court of subject matter jurisdiction; and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative defense. Defendant failed to timely raise the statute of repose as an affirmative defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s posttrial motion to amend its answer to assert the statute of repose as a defense. The judgment of the trial court is affirmed.


TN Court of Appeals

LISA GAIL HAYES v. MARK C. PIERRET

Court: TN Court of Appeals

Attorneys:

Dana C. McLendon, III, Franklin, Tennessee, for the appellant, Mark C. Pierret.

Stephen Walker Pate, Murfreesboro, Tennessee, for the appellee, Lisa Gail Hayes.

Judge: CLEMENT

In these acrimonious post-divorce proceedings, the father of two minor children filed a petition seeking, inter alia, to be given sole decision-making authority over the children’s educations, non-emergency health care, religion, and extracurricular activities, and to be designated the primary residential parent or alternatively to receive more parenting time. The trial court found a material change of circumstances had occurred due to the parties’ total inability to cooperatively co-parent and that it was in the children’s best interest to spend more quality time with their father. However, the court found it was in the children’s best interest for the mother to remain the primary residential parent and to have final authority over the children’s non-emergency medical care after consultation with the father. The court found that the other major decisions concerning the children should be made jointly. Each party was ordered to pay his or her own attorney’s fees. We affirm the foregoing decisions; however, we have determined the father may be entitled to a modification of his child support obligation, which was not addressed in the trial court’s final order, and we remand this issue for further proceedings.


DON MABEE v. GAYLE MABEE

Court: TN Court of Appeals

Attorneys:

Michael D. Hall, Winchester, Tennessee, for the appellant, Don Mabee.

Gayle Mabee, Tullahoma, Tennessee, Pro Se.

Judge: CLEMENT

The ex-husband of the defendant filed a petition to terminate alimony. The parties’ 2010 marital dissolution agreement provides that the petitioner shall pay alimony to his ex-wife for a specified period or upon her cohabitating with another man, and petitioner alleges that the defendant has been cohabitating with another man. The trial court made findings that, although the defendant had an intimate relationship with another man, she was not cohabitating as that term is defined; thus, the trial court denied the petition and awarded the defendant an arrearage judgment for alimony the petitioner failed to pay. Finding the trial court applied the correct legal standard and the evidence does not preponderate against the trial court’s findings, we affirm.


RALEIGH COMMONS, INC. v. SWH, LLC, ET AL.

Court: TN Court of Appeals

Attorneys:

John J. Heflin, III and Kenneth P. Jones, Memphis, Tennessee, for the appellant, Stevan Himmelstein, M.D.

Saul C. Belz and Michael David Tauer, Memphis, Tennessee, for the appellee, Joseph Weinstein, M.D.

Robertson Morrow Leatherman, Memphis, Tennessee, for the appellee, Whitney Slade, M.D.

Judge: FARMER

This appeal arises from a prolonged dispute among business associates which they have come to refer to as a “business divorce.” The parties in this matter, each doctors, formed a limited liability company for the purpose of acquiring property and constructing a medical office building on the property. In order to acquire the property from the current owner, the doctors executed an assumption and modification agreement whereby the LLC and the doctors each individually agreed to be jointly and severally liable to the current owner for its obligations on a promissory note. Subsequently, one of the doctors, the Appellee, withdrew membership from the LLC and executed an indemnity agreement with the remaining LLC members whereby the Appellee would be held harmless from any liability of the LLC, including the note. Thereafter, the LLC and its remaining members defaulted on the note, and the holder of the note filed a complaint against the Appellee, the LLC, and the individual LLC members, seeking to collect the balance due under the note. In order to avoid having a judgment entered against him, the Appellee purchased the note and pursued a claim against the LLC and its individual members for indemnification and breach of the note. Ultimately, the trial court granted the Appellee’s motion for summary judgment on his indemnification claim, awarded him attorney’s fees, costs, and prejudgment interest, and dismissed the Appellant’s cross-claims against the Appellee. After thoroughly reviewing the record, we affirm in part, reverse in part, vacate in part, and remand for further proceedings.


IN RE ESTATE OF JANE KATHRYN ROSS

Court: TN Court of Appeals

Attorneys:

James G. Stranch and Michael J. Wall, Nashville, Tennessee, for the appellant, Paul T. Sorace.

Eugene N. Bulso, Jr. and Steven A. Nieters, Nashville, Tennessee for the appellee, the Estate of Jane Kathryn Ross.

Judge: BENNETT

The trial court decreed a resulting trust in a house paid for by the decedent on property owned by her son. We have concluded that the trial court erred.


KITTY FERN (DARDEN) SARTAIN v. MITCHELL CARL SARTAIN

Court: TN Court of Appeals

Attorneys:

Justin Sensing, Clarksville, Tennessee, for the appellant, Mitchell Carl Sartain.

Larry B. Watson, Clarksville, Tennessee, for the appellee, Kitty Fern (Darden) Sartain.

Judge: COTTRELL

This appeal arises from the second divorce between these parties. Husband and Wife were married for nineteen years, divorced in 1997, and then married again for thirteen additional years. In this second divorce, the trial court awarded Wife alimony in futuro and alimony in solido in addition to 45% of Husband’s military retirement pay. As part of the first divorce the trial court had awarded Wife 36% of Husband’s military retirement pay. Although Husband retired in 2006, Wife had not received any portion of his retirement pay. Wife requested the court in this second divorce award her the money she should have been paid from the date of Husband’s retirement to the date of the second divorce. The trial court declined to make that award. On appeal we affirm the trial court’s judgment awarding Wife alimony in futuro and alimony in solido. We reverse the court’s judgment denying Wife the portion of Husband’s retirement pay she had been awarded in the first divorce, and we remand the case for a hearing on the issues surrounding the Survivor Benefit Plan.


CITY OF SOUTH PITTSBURG, TENNESSEE v. JAMES C. HAILEY AND COMPANY, ET AL.

Court: TN Court of Appeals

Attorneys:

Tracy C. Wooden, Chattanooga, Tennessee, for the appellant, City of South Pittsburg, Tennessee.

Paul R. Leitner and Amanda E. Kelley, Chattanooga, Tennessee for the appellee, James C. Hailey and Company.

Parks T. Chastain and Gordon C. Aulgur, Nashville, Tennessee, for the appellee, Bituminous Casualty Corporation.

Judge: DINKINS

In April 2008 the City of South Pittsburg hired a contractor to enlarge its sewage treatment plant. During construction of the project several sinkholes developed, the last of which occurred in February of 2009 and caused the plant’s lagoon to collapse. The City made claim on the contractor’s builders’ risk insurance policy; the insurer denied the claim, contending that construction of the project was complete at the time of the collapse. The City, which had filed suit against the contractor, amended the complaint, adding the insurer as a party and asserting a claim for breach of contract against the company; the City also requested that the court issue a declaratory judgment that the losses sustained by the city were covered by the policy. The court subsequently granted the insurance company’s motion for summary judgment and denied the city’s motion for partial summary judgment. The city and the engineering firm engaged by the City to plan the project appeal the grant of summary judgment to the insurer and the denial of the city’s motion. We have determined that the court erred in granting the insurer’s motion and denying the City’s; consequently, we reverse both judgments.


TN Court of Criminal Appeals

WILLIAM T. BRYANT v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

William T. Bryant, Pikeville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, William T. Bryant, filed a petition to test DNA evidence pursuant to the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. RODNEY DEWAYNE BURTON

Court: TN Court of Criminal Appeals

Attorneys:

Roger Eric Nell, District Public Defender; and Charles S. Bloodworth, Assistant District Public Defender, Clarksville, Tennessee, for the appellant, Rodney Dewayne Burton.

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

Judge: PAGE

Pursuant to a plea agreement, appellant, Rodney Dewayne Burton, entered a “no contest” plea for criminally negligent homicide, a Class E felony, with sentencing to be determined by the trial court. Following a sentencing hearing, the trial court sentenced appellant to two years, suspended the sentence, and placed appellant on probation. On appeal, appellant contends that the trial court misapplied an enhancement factor when determining his sentence and asks that this court reduce his sentence to a one-year suspended sentence. Following our review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. BEAU CLAYTON EPPERSON
With concurring opinion.

Court: TN Court of Criminal Appeals

Attorneys:

Bryce W. McKenzie, Sevierville, Tennessee, (on appeal), and Dennis Campbell, Sevierville, Tennessee, (at trial), for the appellant, Beau Clayton Epperson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; James B. (Jimmy) Dunn, District Attorney General; Ashley D. McDermott, Assistant District Attorney General; and George Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Beau Clayton Epperson, entered a “best interest” guilty plea in the Circuit Court of Sevier County to the offense of domestic assault, a Class A misdemeanor. There was no negotiated plea agreement as to the length or manner of service of the sentence. Following a sentencing hearing, the trial court announced the following sentence: eleven (11) months, twenty-nine (29) days in the county jail, specifying that under the “sentencing structure” the sentence was to be “one hundred percent of seventy-five percent of eleven months and twenty-nine days.” The trial court declined to grant a fully suspended sentence, but imposed a sentence of split confinement, with ninety (90) days to be served by incarceration, with the balance of the sentence suspended, to be served on supervised probation. Pursuant to Tennessee Code Annotated section 40-35-303(c)(2)(B), the trial court ordered the probationary period to be two (2) years. Defendant has raised two issues on appeal. First, he asserts that the trial court imposed an illegal sentence which exceeded the maximum statutory allowable sentence. Second, he argues the trial court erroneously ordered a twoyear probationary period when it failed to make mandatory findings of fact. After a thorough review we affirm the judgment of the trial court.


JERRY LOUIS FITZGERALD, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jennifer A. Deen, Trenton, Tennessee, for the appellant, Jerry Louis Fitzgerald, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and Garry Brown, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Jerry Louis Fitzgerald, Jr., was indicted in March of 2008 by the Gibson County Grand Jury for possession of more than .5 grams of cocaine with the intent to sell or deliver, unlawful sale of over .5 grams of cocaine, and unlawful delivery of over .5 grams of cocaine. Petitioner ultimately entered guilty pleas to three counts of selling over .5 grams of cocaine. As a result of the guilty pleas, he was sentenced to twenty years for each count, to be served concurrently, for a total effective sentence of twenty years. Following the entry of judgment, Petitioner filed a pro se motion to withdraw his guilty plea, which the trial court denied without a hearing. Petitioner appealed. See State v. Louis Fitzgerald, Jr., No. W2009- 02520-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 703, at *1-2 (Tenn. Crim. App., at Jackson, Aug. 20, 2010). This Court remanded the case for a hearing on the motion to withdraw the guilty plea. On remand, the trial court held a hearing and again denied the motion. There was no direct appeal from this denial. Petitioner filed a petition for postconviction relief in November of 2011, seeking a delayed appeal from the denial of the motion to withdraw the guilty pleas. In June of 2012, a consent order was entered allowing a delayed appeal from the denial of the motion to withdraw the guilty pleas. On appeal, Petitioner challenges the trial court’s denial of the motion to withdraw his guilty pleas because the trial court failed to determine: (1) whether Petitioner was denied effective counsel; (2) whether the plea was knowingly and involuntarily made; and (3) whether manifest injustice exists as a ground for withdrawal of the pleas. After a review of the record, we determine that the trial court did not abuse its discretion in denying the motion to withdraw the guilty pleas where there was substantial evidence in the record to support the trial court’s conclusion. Consequently, the judgments of the trial court are affirmed.


RAYMOND HAYDEN v. WAYNE CARPENTER, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Raymond Hayden, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Raymond Hayden, appeals the Lake County Circuit Court’s dismissal of his 2012 petition for writ of habeas corpus in which he sought to challenge his 2009 Putnam County, guilty-pleaded conviction of the sale of cocaine. Following our review, we affirm the order of the circuit court.


STATE OF TENNESSEE v. WARREN HILDRED

Court: TN Court of Criminal Appeals

Attorneys:

Eric Mogy (on appeal); and Juni S. Ganguli (at trial), Memphis, Tennessee, for the appellant, Warren Hildred.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Christopher L. West and Douglas Carriker, Assistant District Attorneys General; for the appellee, State of Tennessee.

Judge: WITT

The defendant, Warren Hildred, appeals his Shelby County Criminal Court jury conviction of second degree murder, challenging both the exclusion of certain evidence and the sufficiency of the convicting evidence. Discerning no error, we affirm.


STATE OF TENNESSEE v. CURTIS KELLER

Court: TN Court of Criminal Appeals

Attorneys:

R. Todd Mosley, Memphis, Tennessee (on appeal), and Rebecca Coffee, Memphis, Tennessee (at trial), for the appellant, Curtis Keller.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Eric Christiansen and Rob Ratton, Assistant District Attorneys General; for the appellee, State of Tennessee.

Judge: WILLIAMS

After a trial by jury the defendant, Curtis Keller, was convicted of two counts of especially aggravated kidnapping (against Tamika Jones and M.B.), Class A felonies; one count of attempted especially aggravated robbery (against Andrew Morrow), a Class B felony; one count of especially aggravated burglary, a Class B felony; three counts of aggravated assault (against Andrew Morrow, Tamika Jones, and M.B.), Class C felonies; and one count of employing a firearm during the commission of a “dangerous felony,” a Class C felony. The trial court sentenced the defendant to a total effective sentence of two hundred and forty years. On appeal, the defendant claims that: (1) the jury instructions concerning the especially aggravated kidnapping charges were inadequate in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous, and (3) his eight separate convictions violate the Double Jeopardy Clause because his crime spree “was one continuous act.” After careful review, we conclude that: (1) the jury instructions were inadequate in light of White, but harmless beyond a reasonable doubt, and (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous because they did not foreclose the possibility that the jury used one of the especially aggravated kidnappings—which, as stated in the indictment, were based on the defendant’s use of a firearm—as predicate felonies. As the State concedes, the statute prohibiting an individual’s use of a firearm during the commission of a “dangerous felony” expressly forbids charging a defendant for a violation of that statute “if possessing or employing a firearm is an essential element of the underlying dangerous felony as charged.” T.C.A. § 39-17-1324(c). Accordingly, the defendant’s conviction for employing a firearm during the commission of a dangerous felony is reversed. In addition, it was plain error for the defendant to be convicted of both especially aggravated burglary and attempted especially aggravated robbery based on the same act of causing serious bodily injury to victim Andrew Morrow. The defendant’s conviction for especially aggravated burglary is reduced to a conviction of aggravated burglary, and a new sentence of fifteen years is imposed on this count. With respect to his other claims, the defendant has failed to establish any entitlement to relief, and his convictions of two counts of especially aggravated kidnapping, one count of attempted especially aggravated robbery, and three counts of aggravated assault are affirmed.


STATE OF TENNESSEE v. CHARLES EWING KENNEDY

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon and Kyle Hixson, Assistant Attorneys General; T. Michel Bottoms, District Attorney General; and M. Caleb Bayless, Assistant District Attorney General, for the appellant, State of Tennessee.

William C. Barnes, Jr., Columbia, Tennessee, for the appellee, Charles Ewing Kennedy.

Judge: PAGE

Appellee, Charles Ewing Kennedy, was indicted by the Maury County Grand Jury for driving under the influence, second offense; speeding; and violation of the implied consent law. Appellee moved to suppress the evidence against him regarding the driving under the influence count. The trial court granted his motion to suppress. This court granted the State’s application for permission to appeal. On appeal, the State argues that the trial court incorrectly applied a sufficiency of the evidence standard when granting appellee’s motion to suppress rather than making a probable cause determination. The State urges this court to reverse the trial court’s ruling and to conclude that the police had probable cause to arrest appellee for driving under the influence. Following our review, we reverse the ruling of the trial court and remand for further proceedings consistent with this opinion.


DAMEION NOLAN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Dameion Nolan.

Robert E. Cooper, Jr., Attorney General and Reporter, Deshae Dulany Faughn, Assistant Attorney General; Randall E. Nichols, District Attorney General, and Phil Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Dameion Nolan, filed in the Knox County Criminal Court a petition for postconviction relief, alleging that his trial counsel was ineffective by failing to explain that he would be required to remain on the sexual offender registry for life as a result of his guilty pleas to five counts of especially aggravated kidnapping, three counts of aggravated rape, two counts of aggravated robbery, and one count of aggravated burglary and the resulting effective twenty-five-year sentence. The petitioner also contended that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner timely appealed. In addition to his ineffective assistance claim, the petitioner maintains that the post-conviction court erred by allowing trial counsel to remain in the courtroom during the proceedings. Upon review, we affirm the judgment of the postconviction court.


STATE OF TENNESSEE v. ALBERT C. SCOTT

Court: TN Court of Criminal Appeals

Attorneys:

Eugenia R. Grayer, Nashville, Tennessee, for the appellant, Albert C. Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Albert C. Scott, of two counts of rape. The trial court merged the convictions and sentenced the Defendant to serve twelve months of incarceration, followed by nine years of probation. On appeal, the Defendant challenges the State’s evidence against him, asserting that the State failed to prove the Defendant possessed the requisite mens rea for the crime. After a thorough review of the record and applicable law, we conclude there exists no error. We, therefore, affirm the trial court’s judgment.


STATE OF TENNESSEE v. GREGORY TODD WHITAKER and DAVID PAUL COFFEY

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; Richie Dale Collins and Cecil Clayton Mills, Jr., Assistant District Attorneys General, for the appellant, State of Tennessee.

William Louis Ricker, Greenville, Tennessee, for the appellee, Gregory Todd Whitaker.

J. Bradley Mercer, Greenville, Tennessee, for the appellee, David Paul Coffey.

Judge: THOMAS

The Defendants, Gregory Todd Whitaker and David Paul Coffey, were both indicted for manufacturing twenty or more, but less than 100, marijuana plants, a Class C felony; and possession of drug paraphernalia, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-17- 417(g)(3), -425(a)(1). The Defendants both filed motions to suppress the evidence recovered during a search of Defendant Whitaker’s trailer home. The trial court granted the Defendants’ motions and dismissed the indictments. In this appeal as of right, the State contends that the trial court erred by granting the Defendants’ suppression motions. Following our review, we reverse the judgments of the trial court and remand the cases for further proceedings consistent with this opinion.


STATE OF TENNESSEE v. LORENZOE LANDELL WILSON

Court: TN Court of Criminal Appeals

Attorneys:

Roger E. Nell, District Public Defender; Timothy J. Richter, Assistant Public Defender, for the Defendant-Appellant, Lorenzoe Landell Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel W. Harmon, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Jason C. White, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Lorenzoe Landell Wilson, appeals the Robertson County Circuit Court’s imposition of consecutive sentences of eleven months and twenty-nine days in confinement for his vandalism conviction in case number 117014 and eleven months and twenty-nine days, with 180 days to be served in confinement and the balance of the sentence to be served on probation, for his assault conviction in case number 118034. These sentences were imposed by the circuit court after it revoked Wilson’s probation in these cases. Wilson also appeals the Robertson County Circuit Court’s imposition of a suspended sentence of eleven months and twenty-nine days for his second assault conviction in case number 118603, which the court ordered to be served consecutively to the aforementioned sentences. On appeal, Wilson argues: (1) the circuit court wholly departed from the sentencing act when sentencing him for the second assault conviction, and (2) the circuit court, in revoking his probation, erred in failing to restart his probation anew, given his ability to comply with the terms of probation. Upon review, we affirm the judgment of the circuit court but remand the case for entry of a corrected judgment showing that the percentage of service for the sentences in case numbers 118034 and 118603 is zero percent.


STATE OF TENNESSEE v. MALCOLM WITHEROW

Court: TN Court of Criminal Appeals

Attorneys:

Justin Woodard, (at trial); David C. Veazey, (on appeal) Chattanooga, Tennessee, for the Defendant-Appellant, Malcolm Witherow.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; William H. Cox, III, District Attorney General; M. Neal Pinkston and Brian S. Finlay, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Hamilton County jury convicted the Defendant-Appellant, Malcolm Witherow, of first degree murder for which he received a sentence of life imprisonment. On appeal, Witherow argues the evidence was insufficient to support his conviction, the trial court erred in not allowing prior inconsistent recorded statements by a witness to be admitted as substantive evidence under Tennessee Rule of Evidence 803(26), and the trial court erred in denying his motion for mistrial based upon statements the prosecutor made in closing argument. Discerning no reversible error, we affirm the judgment of the trial court.


LEONARD JASPER YOUNG v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joseph S. Ozment and Paul Kellison Guibao, Memphis, Tennessee, for the appellant, Leonard Jasper Young.

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

Judge: OGLE

The Petitioner, Leonard Jasper Young, appeals from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief as it relates to the guilt phase of his trial. The post-conviction court granted the Petitioner relief as to the sentencing phase, and the State did not appeal this ruling. A Shelby County jury convicted the Petitioner of premeditated first degree murder, especially aggravated kidnapping, and theft over $1,000. He received an effective sentence of death plus seventy-two years. On appeal, the Petitioner asserts that trial counsel were ineffective during the guilt phase of his trial. We affirm the judgment of the post-conviction court denying the Petitioner post-conviction relief.


New Judge Named to Fill 30th District Criminal Court Position

Glenn I. Wright has been appointed as criminal court judge in the 30th judicial district by Gov. Bill Haslam, the governor’s website reports. Wright fills the vacancy created by the death of Judge W. Otis Higgs in February. Glenn has a distinguished career with 30 years of experience in Shelby County, and I know he will make an outstanding judge,” Haslam said. “I am grateful for his willingness to serve the people of the 30th Judicial District.”


Faulk Named to Fill 3rd District Circuit Court Post

Gov. Bill Haslam today appointed Mike Faulk as circuit court judge for the third judicial district, the Administrative Office of the Courts reports. Faulk is replacing Judge Kindall T. Lawson, who retired effective June 1. “Mike will bring vast experience to the bench,” Haslam said. “He has served his state well in the past, and I know he will serve the citizens of the Third Judicial District well in this new role.”


Judge: Convicted Killer Deserves New Trial Due to Lawyer’s Error

Tennessee Court of Appeals Judge Jeffrey Bivins ruled Thursday that Edward Thomas Kendrick II, who was convicted of murdering his wife 19 years ago, deserves a new trial, the Chattanooga Times Free Press reports. Judge Bivins said Kendrick may not have received such a harsh punishment --  first-degree premeditated murder -- if his lawyer had been better. Kendrick said he shot his wife by accident but his lawyer did not call for an expert witness to talk about the type of rifle used, a Remington Model 7400 30.06. Later, during a post-conviction hearing in 1998, a gunsmith named Henry Belk testified that the rifle could have gone off unintentionally. Belk testified that sometimes the gun fires even if the safety is on and no one grazes the trigger. Judge Bivins reversed the judgment of the post-conviction court and remanded the matter for further proceedings.


Attorneys Busy with Nuances of U.S. Health Care Reform

Attorneys are busy at work on some of the lesser-known aspects of the Affordable Care Act, the Memphis Daily News reports. Beginning in January, businesses that employ 50 or more full-time equivalent employees must provide health care plans that meet minimum essential benefits requirements. But the largest employers – those that have 200 or more employees – also must make sure employees are automatically enrolled in a plan by January, said Craig Cowart, a partner with Fisher & Philips. “I’m confident most insurance carriers are working with employers on that now,” he said. “Employees will be able to opt out, but it’s definitely something employers need to be made aware of.”


Judge Allows Lawsuit Against Labor Department to Continue

Davidson County Chancellor Claudia Bonnyman ruled that former labor employee Annie Hendricks’ discrimination lawsuit against the state Department of Labor can move forward, despite the government’s effort to stop it, the Tennessean reports . Judge Bonnyman said Hendricks proved her job responsibilities were “significantly diminished” last year, which is enough to allow her case to continue. Hendricks, of Nashville, sued the state in November on grounds of racial discrimination, saying her duties were given to two less-experienced black employees. Assistant Attorney General Ashley Carter said the department’s position is that there was no racial discrimination and that Hendricks did not experience a material change in her salary or benefits.


ABA to Honor Hillary Clinton

Hillary Rodham Clinton will receive the highest honor bestowed by the American Bar Association, recognizing the former secretary of state for her legal career and for helping women lawyers advance. The ABA, which represents more than 400,000 lawyers nationwide, will honor Clinton with the ABA Medal at its annual meeting on Aug. 12 in San Francisco. “For Hillary Clinton’s immense accomplishments as a lawyer, the strides she made for women both professionally and civically, and for promoting the interests of the U.S. and human rights abroad, she not only deserves this honor, but also the gratitude of the legal profession and the nation,” ABA president Laurel G. Bellows said in a statement. The Washington Post has the story.


Opinion: Law Lags Behind Technology

Injury lawyer David Peel writes in an opinion piece for the Millington Star that emerging technology is out-pacing the ability of the law to keep up. In particular, Peel discusses the pervasiveness of the Internet, social media and government surveillance. “What is legal and what is not?” he asks. “It is getting harder to say. Law cannot keep up with the changes.”


State NAACP Speaks Against Supreme Court Decision

The Tennessee Conference of the National Association for the Advancement of Colored People (NAACP) spoke out yesterday at City Hall in Jackson against the U.S. Supreme Court decision to do away with Section 4 of the Voting Rights Act. That section required states and localities with a history of discrimination to submit their election laws to the Justice Department for approval. Although Tennessee election laws were not subject to  Justice Department reviews, Tennessee Conference of NAACP President Gloria Sweet-Love said it is important to guard the rights of a few to protect the rights of all. Read more from the Jackson Sun.


Senators Fail to Reach a Student Loan Deal

Student loan interest rates on new subsidized Stafford loans are set to double from 3.4 percent to 6.8 percent Monday unless lawmakers take action. Sen. Tom Harkin, the chairman of the Senate education panel, said none of the proposals circulating among lawmakers could win passage, and he urged lawmakers to extend the current rates for another year when they return from the July 4 recess. The Tennessean has more. 


Judges Speak with NBA Interns

Court of Appeals Judge Richard H. Dinkins spoke recently to a dozen participants in the Nashville Bar Association High School Internship Program. Dinkins hosted a lunch and spoke to students about seizing the many opportunities that students have as they make their way through school and beyond. Supreme Court Justice Cornelia Clark also spoke to the students, and Court of Appeals Judge Andy Bennett gave the students a tour of the Tennessee Judiciary Museum, which is celebrating its inaugural year. The Administrative Office of the Courts has more. 


2014 Ballot Items Affecting Courts

A special edition of Gavel to Gavel reviews the six confirmed states -- including Tennessee -- that will have 2014 ballot items substantially affecting the courts, with six more deemed “possible.” Currently Tennessee has a statutory-based merit selection system for the state’s appellate courts. SJR 2 would specifically put into the state constitution a quasi-federal system: governor appoints, House and Senate confirm, additional terms by retention elections.


 
 

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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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