Tennessee Bar Exam Results Now Available

Tennessee Bar Association President Cindy Wyrick today congratulated those who were successful candidates for the February bar exam, welcoming them to the practice of law and inviting them to join the TBA. The Tennessee Supreme Court will hold a swearing in ceremony in Nashville on June 3 for those who meet the final requirements for licensing. TBA members will be on hand at the event to welcome the new admittees into the practice of law. New lawyers also will be invited to an open house at the bar center that day. See the full list of successful candidates.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

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

LEANN BARNES v. DAVID ELLETT BARNES

Court: TN Court of Appeals

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Leann Barnes

Daryl M. South, Murfreesboro, Tennessee, for the appellee, David Ellett Barnes

Judge: HIGHERS

Following a five-day divorce trial, the trial court valued and divided the parties’ sizeable marital estate, awarded $6,000 per month in alimony in futuro to Wife, and declined to award attorney’s fees to either party. On cross-motions to alter or amend, the trial court altered its division of marital property as to several assets, and it modified the alimony award from $6,000 per month in alimony in futuro to $4,300 per month in rehabilitative alimony for four years. Wife then filed another post-trial motion, pro se, which the trial court denied. Wife appeals. We affirm in part, reverse in part, and remand for such other proceedings as may be necessary.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. WALTER FRANCIS FITZPATRICK, III

Court: TN Court of Criminal Appeals

Attorneys:

Van R. Irion, Knoxville, Tennessee, for the appellant, Walter Francis Firzpatrick, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Steven Bebb, District Attorney General; and Paul D. Rush, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Walter Francis Fitzpatrick, III, was indicted by the Monroe County Grand Jury for one count of tampering with government records. After a jury trial, Appellant was convicted as charged and sentenced to eleven months and twenty-nine days with twenty days to serve in incarceration and the remainder to be served on probation. Appellant appeals his conviction. He argues that his indictment was faulty because the grand jury foreperson was not eligible to serve; that the trial court erred in ruling that Appellant could not testify regarding his proposed defense of necessity; and that the trial court erred in denying Appellant’s request for a jury instruction on the defense of necessity. After a thorough review of the record, we affirm the judgment of the trial court.


BERNARD FRAZIER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Warren P. Campbell, Memphis, Tennessee, for the appellant, Bernard Frazier.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Bernard Frazier, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that his guilty pleas were not knowingly and voluntarily entered. After review, we conclude that the petitioner received effective assistance of counsel but that his guilty pleas were not knowingly and voluntarily entered. As such, we reverse the judgment and remand to the trial court.


JAMES GARRETT v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James P. DeRossitt, IV, Memphis, Tennessee, for the appellant, James Garrett.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Susan Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, James Garrett, appeals the post-conviction court’s denial of his petition for post-conviction relief from his carjacking and employing a firearm during the commission of a dangerous felony convictions. He argues that he is entitled to relief because he received ineffective assistance of counsel, rendering his guilty pleas unknowing and involuntary, and his conviction for employing a firearm during a dangerous felony violates the terms of Tennessee Code Annotated section 39-17-1324(c) and the prohibitions against double jeopardy. After review, we affirm the judgment of the post-conviction court.


RICHARD HERRERA v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Richard Herrera, Tiptonville, Tennessee, pro se.

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

Judge: WITT

The petitioner, Richard Herrera, appeals from the second summary dismissal of his petition for post-conviction relief, alleging that the post-conviction court erred by summarily dismissing the petition after this court remanded the case for an evidentiary hearing. Because the post-conviction court erred by summarily dismissing the petition, we reverse the judgment of the post-conviction court and remand the case to the post-conviction court for the appointment of counsel and an evidentiary hearing on the petitioner’s claim of ineffective assistance of counsel.


BRIAN HERVERY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Allen, Memphis, Tennessee, for the appellant, Brian Hervery.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Brian Hervery, appeals the denial of his petition for post-conviction relief from his convictions for attempted second degree murder, three counts of aggravated assault, and employing a firearm during the commission of a dangerous felony. He argues that he received ineffective assistance of counsel and that his constitutional rights were violated by his being placed on a forty-eight-hour hold. After review, we affirm the denial of the petition.


STATE OF TENNESSEE v. THOMAS LEE HUTCHISON
With concurring opinion.

Court: TN Court of Criminal Appeals

Attorneys:

Robert L. Jolley, Jr., and Megan A. Swain, Knoxville, Tennessee, for the appellant, Thomas Lee Hutchison.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

A Knox County jury convicted appellant of three counts of facilitation of first degree murder and one count of facilitation of especially aggravated robbery. The trial court merged the facilitation of first degree murder convictions and sentenced appellant to seventeen years. The trial court also sentenced appellant to a concurrent sentence of eight years for facilitation of especially aggravated robbery. On appeal, appellant presents thirteen issues for our review: (1) whether the trial court erred in overruling appellant’s motion to suppress evidence seized in an extended warrantless search of his house; (2) whether the trial court erred in allowing the State to introduce video footage of the crime scene; (3) whether the trial court erred in allowing the State to introduce evidence of blood samples taken from appellant without a warrant; (4) whether the trial court erred in admitting prior bad act evidence; (5) whether the trial court erred by allowing testimony regarding evidence that had been destroyed; (6) whether the trial court erred by allowing a medical examiner to testify about an autopsy performed by another medical examiner; (7) whether the trial court erred in denying appellant’s three motions for mistrial based on prosecutorial misconduct; (8) whether the trial court erred when it denied appellant’s request for a continuance in light of the State’s late disclosure of certain evidence; (9) whether the trial court erred by denying appellant’s request to strike a witness’s testimony when the testimony was internally contradictory; (10) whether the trial court erred by allowing the State to introduce graphic photographs of the victim’s injuries; (11) whether the trial court erred in its jury instructions; (12) whether the evidence was sufficient to support appellant’s convictions; and (13) whether appellant is entitled to a new trial due to cumulative error. Based on our thorough review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. BOCCOUS MCGILL, JR. and DARIUS LACY

Court: TN Court of Criminal Appeals

Attorneys:

John S. Colley, III, Columbia, Tennessee, for the appellant, Darius Lacy.

Russell F. Thomas, Nashville, Tennessee, for the appellant, Boccous McGill, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Mike Bottoms, District Attorney General; and Kyle Dodd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Darius Lacy (“Defendant Lacy”) and Boccous McGill, Jr., (“Defendant McGill”) (collectively “the Defendants”) each were charged with one count of rape of a child. Both Defendants were juveniles at the time of the alleged crimes. After a joint hearing, the juvenile court transferred both Defendants to circuit court to be tried as adults. The Defendants each pleaded guilty to one count of facilitation of rape of a child, and each Defendant reserved a certified question of law concerning the propriety of the juvenile court’s order of transfer. This Court consolidated the Defendants’ appeals. Upon our thorough review of the record and applicable law, we reject the Defendants’ challenges to the juvenile court’s orders of transfer and affirm the judgments of the trial court.


SHADEED RASTA A/K/A ROBERT WILLIAMS v. MICHAEL DONAHUE, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Shadeed Rasta, a/k/a Robert Williams, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Shadeed Rasta, also known as Robert Williams, appeals from the denial of his petition for writ of habeas corpus, which challenged his 2009 conviction of felony murder. Discerning no error, we affirm.


KELVIN REED v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Varonica R. Cooper, Memphis, Tennessee, for the appellant, Kelvin Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Stacy M. McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Kelvin Reed, appeals as of right from the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective (1) for failing to obtain an expert witness to testify regarding a 911 recording; and (2) for failing to “effectively address the issue of the lack of blood on the Petitioner’s person and possessions.” Discerning no error, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. ROBERT GENE ROGERS

Court: TN Court of Criminal Appeals

Attorneys:

Keith Roberts, Assistant Public Defender, for the appellant, Robert Gene Rogers.

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

Judge: SMITH

Appellant Robert G. Rogers was on probation for multiple counts of aggravated burglary, theft over $10,000, and theft of $500 or less. His probation officer filed a probation violation warrant as a result of Appellant’s arrest in Bradley Count for extortion. The probation violation warrant was subsequently amended to allege that Appellant had absconded from supervision. At the conclusion of the probation violation hearing, the trial judge revoked Appellant’s probation and ordered him to serve his originally imposed twenty-year sentence. Appellant appeals arguing that the trial court erred in revoking his sentence and that the trial judge should have recused herself. After a review of the record on appeal, we affirm the revocation of Appellant’s probation.


STATE OF TENNESSEE v. KENNETH SPENCER

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, Public Defender and Tony N. Brayton, Assistant Public Defender, (on appeal); Cliff Abeles and William Robilio, Assistant Public Defenders, (at trial), for the appellant, Henry Bates.

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

Judge: SMITH

A Shelby County jury convicted Appellant, Kenneth Spencer, of first degree premeditated murder. The trial court sentenced Appellant to life imprisonment. Appellant appeals his conviction arguing that the evidence was insufficient to prove premeditation and that the trial court erroneously allowed the introduction of weapons and ammunition. On appeal, the State concedes that the trial court erred, however, the error was harmless. After a review of the record on appeal, we conclude that there was sufficient evidence to support the jury’s finding that premeditation existed and that the introduction of the evidence in question was error, but it was harmless error. Therefore, we affirm the judgment of the trial court.


BRYAN WILLIAMS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Neil Umsted, Memphis, Tennessee, for the appellant, Bryan Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Meghan Fowler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Bryan Williams, appeals the denial of his petition for post-conviction relief from his 2009 Shelby County Criminal Court jury convictions of second degree murder, attempted second degree murder, and reckless endangerment, claiming that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.


SEDRICK WILLIAMS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Sedrick Williams, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; and D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Sedrick Williams, appeals the Lauderdale County Circuit Court’s dismissal of his petition for habeas corpus relief from his conviction of first degree premeditated murder and resulting life sentence. On appeal, the Petitioner contends that his judgment of conviction is facially void because it fails to reflect that he is to serve 100% of the sentence. Following our review, we affirm the judgment of the habeas corpus court.


Appalachian Law Among 3 Cutting Faculty, Class Size

The fall-out from the drop in applications continues to impact law schools, with three recently announcing plans to cut enrollment and faculty sizes, the National Jurist reports. Among them is the Appalachian School of Law in Grundy, Va. “[We’re] returning to a smaller school because that’s probably closer to our mission in any event,” Dean Lucy McGough told the Roanoke Times. “We’re a school … principally for the Appalachian region, a six-state region. The choice to keep it the same size would mean you’d have to take applicants of lesser quality. Given our choices, we think it’s better to return to our roots.” In addition to decreasing the number of students, the law school plans to cut back on administrative staff, lower faculty salaries and reduce the number of full-time faculty.


Bone McAllester Norton Opens Drone Practice

Bone McAllester Norton is expanding its emerging law group with a practice focused on the commercial use of drones, the law firm announced Thursday. James Mackler will lead the firm’s drone practice, which will focus on company formation, trademark registration, privacy issues and other areas associated with their usage by private companies. The Nashville-based firm’s first client in this field is Alamo, Tenn.-based Farmspace Systems, the Nashville Business Journal reports.


Judge, Clerk Reflect on Contempt Dust-Up

Hawkins County General Sessions Judge J. Todd Ross and Clerk of Courts Sarah L. Davis give the Rogersville Review their final thoughts on the contempt of court charge that threatened to land Davis in jail and significantly impact the operations of the court. Ross maintains he did the right thing in having Davis arrested after she initially refused to provide a collections clerk for the courtroom. For her part, Davis says she still has a lot of questions but is grateful for the chance to tell her side of the story, which she does in detail in the statement provided to the paper.


TIRCC Names New Interim Directors

The Tennessee Immigrant and Refugee Rights Coalition (TIRRC) has named Operations Director Lindsey Harris and Advocacy Director Stephanie Teatro as interim co-directors while it searches for a new executive director. Longtime director Stephen Fotopulos is leaving Monday after 10 years to run for a seat in the Tennessee House of Representatives. TIRRC is a statewide, immigrant and refugee-led collaboration designed to empower immigrants and refugees to defend their rights and create an atmosphere where they are recognized as positive contributors to the state. Read more about the pair. The group is accepting resumes for the executive director position. Learn more about the duties here.


Chattanooga Lawyer Sues Phone Book for Wrong Listing

Chattanooga attorney Charles Dupree, who has practiced in the city since 1974, has sued YP Southeast Advertising & Publishing LLC and Yellowbook after his name was listed backward -- with Charles being listed as his last name and Dupree being listed as his first name -- in both the white and yellow pages. Dupree said he was contacted last spring by the directory sales staff to confirm his 2014 listing. He advised that the listing should remain the same. In his complaint, Dupree says the mix-up suggests he has gone out of business and that lawyers and clients have remarked about him 'not being in the telephone book.’ The suit seeks $65,000 in damages.


DA Drops Charges Against Clarksville Attorney

Charges have been dropped against Clarksville attorney Fletcher Long after the local district attorney declined to prosecute the case. A former employee had accused Long of harassing her by sending threatening text messages and emails, calling in the middle of the night and driving slowly by her house. An order expunging the charge and dismissing a temporary order of protection was signed by the presiding judge. "The result of a nolle is simply that the State is declining to pursue the charge(s) against the defendant at the present time,” the district attorney said. “Unlike a dismissal with prejudice, a case that has been disposed of via a nolle prosequi may be readdressed in the future. Should any additional evidence be discovered in the near future or should any additional instances arise…the State may choose to revive this matter after careful review."


MALS to Relocate to Falls Building

Memphis Area Legal Services (MALS) has leased the long-vacant top floor of the 11-story Falls Building in downtown Memphis and will relocate to the space on July 1. The 13,473-square-foot space in the historic building was previously occupied by the law firm of Martin Tate Morrow & Marston, but has sat vacant since 2004, the Memphis Business Journal reports. Prior to moving into the new offices, MALS will do some construction, including redesigning the entrance, creating a separate entrance for its fair housing group and adjusting the sizes of some of the individual offices. The construction should take about 10 weeks, said MALS Executive Director and CEO Harrison McIver III.


UT’s McReynolds Mock Trial Team Takes 1st at Nationals

The University of Tennessee College of Law’s McReynolds Mock Trial team placed first in the national competition recently in Washington D.C. Team members are Casey Duhart, Will Lay, Ben Morrell and Kimberly Sterling. The school’s second McReynolds team, comprised of Sarah Jarrard, Matt McDonald, Zach Poteet and Daniel Whitaker took sixth place. The teams are coached by law students Nina Musinovic and Willie Santana, and Knoxville lawyer Katherine Ellis with Legal Aid of East Tennessee.


Former Knox Court Employee Charged with Child Porn

Former Knox County Criminal Court employee Joshua Ryan Fettig, 20, was arrested Wednesday on charges of sexual exploitation of a minor, Knoxnews reports. Investigators began looking at Fettig last December after receiving tips from the National Center for Missing and Exploited Children that someone had attempted to use their email account to send images of child pornography. Fettig worked as a night clerk in the judicial commissioner’s office at the time the probe was initiated. A forensic examination of “confiscated computers” revealed 356 images of child pornography, investigators said. Criminal Court Clerk Joy McCroskey fired Fettig after his work computer was seized in mid-January.


Ninth Circuit Nominee Vote Postponed

Apparently exasperated with the slow progress of federal judicial nominations and other Senate business, U.S. Senate Majority Leader Harry Reid announced Thursday that the Senate would not recess until a confirmation vote had been held for Ninth Circuit Court nominee Michelle T. Friedland. “We’re not punting,” Reid said in response to questions about whether the vote on Friedland would be delayed until after a two-week Easter recess. But in the end, he agreed to let Senators depart, delaying the vote until after the break, Gavel Grab reports. An analysis from the Brennan Center for Justice found that recent changes to Senate rules have not resulted in the progress supporters had hoped for in filling court vacancies.


Law Firm App Wins Marketing Award

National labor and employment law firm Constangy, Brooks & Smith – with offices in Nashville – has won first place in the Legal Marketing Association’s national awards program for a mobile app designed for HR professionals, in-house counsel and members of the media. The firm reports that the app goes beyond lawyer bios and newsletters to provide quick guides and checklists on workplace topics, wage and hour calculators, a glossary of employment law terms and links to workers’ comp calculators. The app’s Work Snips section also provides short, entertaining takes on the latest workplace headlines from outside news sources. The app is available for Apple products. An Android version is set to be released soon.


Knoxville Marks 50th Anniversary of Civil Rights Act

To commemorate the 50th anniversary of the passage of the Civil Rights Act of 1964, the city of Knoxville will host a series of events throughout the year with the theme "Unfinished Business: Then, Now & Going Forward." Events kick off with a presentation by former Alabama Attorney General Bill Baxley and U.S. Attorney Doug Jones, who prosecuted the four men who bombed the 16th Street Baptist Church in Birmingham. They will discuss internal and external barriers they faced. The event is April 25 from 9 a.m. to noon at Mt. Calvary Baptist Church, 1807 Dandridge Ave. The goal of this series is to enhance the public's knowledge and understanding of the Civil Rights Act of 1964 by providing information about the historical context and events surrounding its passage. Contact Joshalyn Hundley, (865) 215-3867 for more information.


April Issue Covers UPL, Postjudgment Interest and Sex Week

"Protecting the legal profession is only our secondary goal," Tennessee Bar Association President Cindy Wyrick writes in her Journal column this month where she takes on the war against unauthorized practice of law. "We are fighting this battle primarily to protect the public."  Also in this issue, the second-to-last column written by the late Don Paine is about postjudgment interest, and Bill Haltom writes what's on many Volunteers' minds about the legislature, Sex Week and free speech at UT.


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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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