Early Voting Ends Saturday; Cast Your Vote

Early voting ends Saturday across Tennessee, and 389,889 people have already voted -- 231,666 as Republicans and 104,679 as Democrats. The Secretary of State’s office shows the largest number coming from Shelby County, with 50,779 votes cast through today, followed by Knox County with 22,283, Hamilton County with 14,199 and Davidson County with 13,796. Many are voting early to avoid lines that might develop on election day because of the long ballots. Learn more about early voting locations and the upcoming elections.

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
07 - TN Court of Appeals
17 - 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

CIRCLE C CONSTRUCTION, LLC v. D. SEAN NILSEN, ET AL.

Court: TN Court of Appeals

Attorneys:

Timothy W. Burrow, Nashville, Tennessee, for the appellant, Circle C Construction.

Darrell G. Townsend, Nashville, Tennessee, for the appellees, D. Sean Nilsen, et al.

Judge: BENNETT

The issue in this case is whether a tolling agreement between the parties precludes the application of the savings statute set forth in Tenn. Code Ann. § 28-1-105(a). We agree with the trial court that the tolling agreement does preclude application of the savings statute and that the plaintiff’s legal malpractice action is barred by the termination date established in the agreement.


DAVID M. DULANEY, ET AL. v. DON WALKER CONSTRUCTION, ET AL.

Court: TN Court of Appeals

Attorneys:

Whitney Durand, Chattanooga, Tennessee, for the appellants, David M. Dulaney and Traci L. Dulaney.

David L. Franklin, Chattanooga, Tennessee, for the appellees, Don Walker Construction and Rhonda P. Walker.

Judge: SWINEY

David M. Dulaney and Traci L. Dulaney (“Plaintiffs”) sued Don Walker Construction (“Walker Construction”) and Rhonda P. Walker (collectively “Defendants”) with regard to real property and a house constructed and sold by Defendants to Plaintiffs. After a trial, the Circuit Court for Hamilton County (“the Trial Court”) entered its judgment finding and holding, inter alia, that Plaintiffs had failed to prove negligent construction and had failed to prove misrepresentation and violations of the Tennessee Consumer Protection Act. Plaintiffs appeal. We find and hold that the evidence does not preponderate against the Trial Court’s findings, and we affirm.


RICHARD JEREMIAH GARRETT, JR. v. RENEE MICHELLE ELMORE

Court: TN Court of Appeals

Attorneys:

Amy J. Farrar, Murfreesboro, Tennessee, for the appellant, Richard Jeremiah Garrett, Jr.

Sharon T. Massey, Clarksville, Tennessee, for the appellee, Renee Michelle Elmore.

Judge: CLEMENT

The father of the parties’ four-year-old child appeals the permanent parenting plan established by the juvenile court judge; specifically, he challenges the designation of Mother as the primary residential parent, the parenting schedule, the income imputed to each parent, and child support he is ordered to pay. He also contends Mother waived her right to a de novo rehearing of an earlier “order” by the magistrate, which favored Father, as she did not file a timely request for a de novo hearing; therefore, the juvenile court judge was without authority to conduct a de novo hearing or to enter judgment contrary to the magistrate’s order. We have determined the magistrate’s “order” was not a final judgment because the magistrate never prepared “findings and recommendations in writing,” which are to be provided to the juvenile court judge, as is expressly required by Tenn. Code Ann. § 37-1-107(d). Following the de novo hearing before the juvenile court judge, Mother was named the primary residential parent and she was awarded 218 days of parenting time; Father was awarded 147 days. In calculating child support, the trial court found that Mother was attending college part-time but that she was voluntarily unemployed and imputed income to her based on federal minimum wage. The court found that Father’s evidence concerning his modest income was unreliable and imputed income to Father pursuant to Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv). The court additionally afforded Mother a day care credit of $516 per month and set child support pursuant to the guidelines based upon the above findings. Father appeals. Finding no error, we affirm.


PHILLIP DEAN PATRICK v. NELSON GLOBAL PRODUCTS, INC.

Court: TN Court of Appeals

Attorneys:

Curt W. Isabell, Clinton, Tennessee, for the appellant, Phillip Dean Patrick.

James A. Burns, Jr. and Hannah L. Sorcic, Chicago, Illinois, and Timothy B. McConnell and Latisha J. Stubblefield, Knoxville, Tennessee, for the appellee, Nelson Global Products, Inc.

Judge: SUSANO

This is a retaliatory discharge action filed by Phillip Dean Patrick (“Plaintiff”), a former employee of Nelson Global Products, Inc. (“the Employer”). Plaintiff alleged that, on a day during his employment, he was standing nearby when a co-worker sustained a work-related injury. Plaintiff alleged that he was unlawfully terminated after the injured co-worker filed a claim for workers’ compensation benefits. According to Plaintiff, the co-worker’s filing was a “substantial factor” in the Employer’s decision to discharge him. The trial court granted the Employer’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff appeals. We affirm.


DONALD E. PRICE v. OXFORD GRADUATE SCHOOL, INC.

Court: TN Court of Appeals

Attorneys:

J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, Oxford Graduate School, Inc.

Stephen T. Greer, Dunlap, Tennessee, for the appellee, Donald E. Price, D.Th.

Judge: MCCLARTY

This is a breach of contract case in which an administrator filed suit against a school for unpaid severance pay. The school claimed that the administrator did not provide the requisite 30-day notice for severance pay pursuant to the terms of his contract. The trial court found that the administrator satisfied the notice requirement under the term of his contract and awarded him damages. The school appeals. We affirm the decision of the trial court.


JAMIA RENTZ v. MICHAEL RENTZ

Court: TN Court of Appeals

Attorneys:

K.O. Herston and John F. Weaver, Jr., Knoxville, Tennessee, for the appellant, Michael Rentz.

Judith Fain, Johnson City, Tennessee, for the appellee, Jamia Rentz.

Judge: MCCLARTY

This appeal arises from the Parties’ numerous post-divorce issues. As relevant to this appeal, Father filed a petition to correct his child support obligation, alleging that his alimony payments to Mother should have been considered as income in setting his support obligation. Father also sought to modify his support obligation in recognition of the birth of his new son and his payment of health insurance. Following numerous hearings, the trial court declined to consider Father’s alimony payments in setting the support obligation but modified the obligation to reflect the birth of Father’s son and the payment of health insurance. The court awarded Mother attorney fees. Father appeals. We affirm the decision of the trial court.


JOSHUA WAYNE TAYLOR v. MARY KATHERINE TAYLOR

Court: TN Court of Appeals

Attorneys:

Jennifer K. Peck, Chattanooga, Tennessee, for the appellant, Joshua Wayne Taylor.

Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Mary Katherine Taylor.

Judge: SUSANO

This is a post-divorce case stemming from the parties’ competing pleadings, both of which sought (1) a modification of their earlier-filed agreed permanent parenting plan as well as (2) other relief. Within a few months of their divorce, Mary Katherine Taylor (“Mother”) had filed a petition to modify the residential parenting schedule. Joshua Wayne Taylor (“Father”) filed a counterclaim also seeking a modified residential schedule and, furthermore, a change in the custody designation. Following a bench trial, the court found that there was no material change in circumstances warranting a change in the identity of the primary residential parent, but that there was a material change supporting a modification of the residential schedule. The court ordered a new schedule that substantially increased Mother’s parenting time and provided Father with only standard visitation. The court dismissed each party’s attempt to find the other in contempt. Father appeals. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. MICHAEL JARROD BRADY

Court: TN Court of Criminal Appeals

Attorneys:

George Morton Googe, District Public Defender; and Jeremy B. Epperson, Assistant District Public Defender, for the appellant, Michael Jarrod Brady.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

A jury convicted the defendant, Michael Jarrod Brady, of aggravated robbery, a Class B felony. The defendant’s sole issue on appeal is a challenge to the sufficiency of the evidence. Because we find that the evidence is sufficient to sustain the verdict, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. NORMAN BRANCH

Court: TN Court of Criminal Appeals

Attorneys:

Stephen Bush, Shelby County Public Defender, Phyllis Aluko (on appeal) and Jennifer Case (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Norman Branch.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Katie Ratton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

A jury convicted the Defendant, Norman Branch, of theft of $500 or less and intentionally evading arrest in a motor vehicle. After a hearing, the trial court imposed an effective sentence of six years, eleven months, and twenty-nine days, to be served in the workhouse. In this direct appeal, the Defendant contends the following: (1) the trial court erred in allowing him to be impeached with twelve prior convictions; (2) the trial court erred in excluding certain of his testimony as inadmissible hearsay; (3) the evidence was not sufficient to support his evading arrest conviction; (4) the trial court provided an improper jury instruction on the evading arrest charge; (5) the trial court erred in sentencing him as a career offender; and (6) cumulative error entitles him to a new trial. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.


STATE OF TENNESSEE v. DEMONTRE CHAVEZ BROWN

Court: TN Court of Criminal Appeals

Attorneys:

Emeterio Ramos Hernando, Lewisburg, Tennessee, for the appellant, Demontre Chavez Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Robert Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In this appeal, the Defendant, Demontre Chavez Brown, challenges his conviction for aggravated robbery, a Class B felony, and subsequent sentence of twelve years’ incarceration. Specifically, he alleges that (1) the evidence was insufficient to support his conviction because the witnesses’ testimonies had material inconsistencies and his co-defendant’s testimony was inadequately corroborated; (2) the trial court improperly allowed his codefendant to testify because the State did not provide him with sufficient notice of such; and (3) the trial court’s imposition of the maximum sentence was excessive because the Defendant’s record contained mostly petty juvenile offenses. Upon consideration of the record and relevant case law, we affirm the judgment of the trial court.


STATE OF TENNESSEE V. DENNIS BUTLER

Court: TN Court of Criminal Appeals

Attorneys:

Joseph S. Ozment, Memphis, Tennessee, for the appellant, Dennis Butler.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Dennis Butler (“the Defendant”) pleaded guilty to one count of sale of cocaine. Pursuant to the plea agreement, the Defendant was sentenced to four years suspended to probation. Upon the filing of a probation revocation warrant, the Defendant was taken into custody, and a revocation hearing was held. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve his original sentence in confinement. The Defendant timely appealed the trial court’s ruling. Upon a thorough review of the record, we affirm the trial court’s judgment.


CHRISTOPHER SCOTT CHAPMAN v. HENRY STEWARD, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

James E. Lanier, District Public Defender; Patrick Ross McGill and Sean P. Day, Assistant Public Defenders, for the appellant, Christopher Scott Chapman.

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

Judge: THOMAS

The Petitioner, Christopher Scott Chapman, appeals as of right from the Lake County Circuit Court’s dismissal of his petition for a writ of habeas corpus. The Petitioner contends that he was denied pretrial jail credits. Discerning no error, we affirm the judgment of the habeas corpus court.


STATE OF TENNESSEE v. ANTHONY ANTONIO COLE

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Anthony Antonio Cole.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; James G. Woodall, District Attorney General; and Chris Post, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Anthony Antonio Cole (“the Defendant”) was convicted by a jury of driving under the influence, driving without a license, violation of the financial responsibility law, violation of the registration law, and failure to yield the right of way. Following a sentencing hearing, the trial court ordered the Defendant to serve a total effective sentence of twelve months and twenty-nine days in confinement. In this direct appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions for driving under the influence, driving without a license, and failure to yield the right of way. Upon our thorough review of the record and applicable law, we affirm the judgments of the trial court.


TIFFANY DAVIS v. BRENDA JONES, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Tiffany Davis, Memphis, Tennessee, pro se.

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

Judge: WITT

The petitioner, Tiffany Davis, appeals the Marshall County Circuit Court’s dismissal of her petition for writ of habeas corpus. In the petition, she challenged her Marshall County drug convictions, which had resulted in an effective sentence of 30 years in the Department of Correction. Because we agree with the habeas corpus court that the petitioner’s claims of double jeopardy violations and ineffective assistance of counsel do not render her convictions void, we affirm that court’s dismissal of the petition.


CEDRIC DICKERSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Eric Mark Mogy, Memphis, Tennessee, for the appellant, Cedric Dickerson.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Cedric Dickerson (“the Petitioner”) was convicted by a jury of first degree felony murder and aggravated robbery. The trial court sentenced the Petitioner to life without the possibility of parole for his first degree felony murder conviction and eleven years for his aggravated robbery conviction and ordered the sentences to run concurrently. On direct appeal, this Court affirmed the trial court’s judgments. See State v. Cedric Dickerson, No. 02C01-9802- CR-00051, 1999 WL 74213, at *4 (Tenn. Crim. App. Feb. 17, 1999). The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following a post-conviction hearing. The Petitioner now appeals, arguing that “the Eighth Amendment should prohibit life without parole sentences for juvenile offenders.” Upon our thorough review of the record and the applicable law, we affirm the post-conviction court’s decision denying relief.


JONATHAN EVERETT v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Lance R. Chism, Memphis, Tennessee, for appellant, Jonathan Everett.

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

Judge: SMITH

A Shelby County jury convicted Petitioner, Jonathan Everett, of one count of second degree murder, one count of attempted voluntary manslaughter, and one count of reckless endangerment. He received an effective sentence of twenty-nine years, eleven months, and twenty-nine days for those offenses. This court affirmed the verdict and sentence on direct appeal. See State v. Jonathan Everett, W2008-01578-CCA-R3-CD, 2011 WL 1304893 (Tenn. Crim. App. at Jackson, Apr. 4, 2011). Petitioner subsequently filed a petition for post-conviction relief, alleging ineffective assistance of counsel at trial and on direct appeal. The Post-Conviction Court denied his petition. We affirm the decision of the Post- Conviction Court.


STATE OF TENNESSEE v. BOBBY CHARLES FARLEY, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Bobby Charles Farley, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Jerry Woodall, District Attorney General; and Matthew Floyd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

A jury convicted the Defendant, Bobby Charles Farley, Jr., of driving under the influence (“DUI”); unlawful carrying of a weapon; violating the financial responsibility law; and violating the seatbelt law. After a hearing, the trial court imposed an effective sentence of eleven months, twenty-nine days, to be served in the county jail. In this direct appeal, the Defendant challenges the sufficiency of the evidence underlying his DUI offense and the trial court’s instructions to the jury. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.


STATE OF TENNESSEE v. JONATHAN L. HENDERSON

Court: TN Court of Criminal Appeals

Attorneys:

A. Russell Larson, Jackson, Tennessee, for the appellant, Jonathan L. Henderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

A Madison County Jury convicted Defendant, Jonathan Henderson, of rape of a child and aggravated sexual battery. He received concurrent sentences of twenty-five years for the rape conviction and ten years for aggravated sexual battery. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the proof at trial did not establish venue; and (3) that his sentence was excessive. After a thorough review, we affirm the judgments of the trial court.


EUGENE MARK HOGBIN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Crystal Morgan, Ashland City, Tennessee, for the appellant, Eugene Mark Hogbin.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; and Robert S. Wilson, Deputy District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Eugene Mark Hogbin, was convicted of two counts of aggravated sexual battery and sentenced to an effective sentence of twenty years. Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief. On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel told petitioner that she would win his case at trial. After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. JEDARRIUS ISABELL

Court: TN Court of Criminal Appeals

Attorneys:

Lance R. Chism (on appeal); Jahari Dowdy and Jennifer Fitzgerald (at trial), Memphis, Tennessee, for the appellant, Jedarrius Isabell.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Katherine B. Ratton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Jedarrius Isabell, was convicted by a Shelby County Criminal Court jury of attempted first degree murder, a Class A felony; aggravated assault, a Class C felony; three counts of reckless endangerment with a deadly weapon, Class E felonies; and employment of a firearm during the commission of a dangerous felony, a Class C felony, and was sentenced to an effective term of twenty-six years in the Department of Correction. On appeal, he argues that: (1) the jury was exposed to extraneous prejudicial information and outside influence; (2) the trial court improperly communicated with a deliberating jury outside the presence of the defendant and counsel; (3) the failure to name the predicate felony in the indictment for employment of a firearm during the commission of a dangerous felony voids the conviction; (4) felony reckless endangerment is not a lesser-included offense of aggravated assault as charged in Counts 3 and 4 of the indictment; (5) double jeopardy bars his convictions for felony reckless endangerment in Counts 3, 4, and 5; (6) the trial court erred in failing to define “recklessly” in its jury instructions; and (7) the evidence is insufficient to sustain his convictions. After review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. LAVELLE MANGRUM

Court: TN Court of Criminal Appeals

Attorneys:

Brad Eiseman and Eric Mogy, Memphis, Tennessee, for the appellant, Lavelle Mangrum.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Tracy Jones and Colin Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: BIVINS

Lavelle Mangrum (“the Defendant”) was convicted by a jury of second degree murder. Following a sentencing hearing, the trial court sentenced the Defendant to twenty-four years’ incarceration. In this direct appeal, the Defendant contends that the evidence was insufficient to support his convictions, that the trial court erred in allowing testimony that the Defendant was gang affiliated, and that the trial court erred in allowing testimony that a witness was attacked shortly after giving a statement to police. Upon our thorough review of the record and applicable law, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. CHARLES SHARP

Court: TN Court of Criminal Appeals

Attorneys:

R. Todd Mosley, Memphis, Tennessee, (on appeal); Kim Sims and Larry Sims, Memphis, Tennessee, (at trial), for the appellant, Charles Sharp.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; Kirby May and Jennifer Nichols, Assistant District Attorneys General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Charles Sharp, was originally indicted for one count of especially aggravated sexual exploitation of a minor, four counts of rape, one count of sexual battery by an authority figure, one count of statutory rape, and one count of vandalism under $500. Defendant was acquitted of all charges except especially aggravated sexual exploitation of a minor, on which the jury was hung. See State v. Sharp, 327 S.W.3d 704, 708 (Tenn. Crim. App. 2010). Defendant was tried again on the charge of especially aggravated sexual exploitation of a minor and convicted. Id. This court reversed Defendant’s conviction and remanded for a new trial based on the State’s having read a witness’s testimony from a prior trial into evidence without having shown the witness’s unavailability. Id. at 709-712. Defendant was tried twice more on the charge of especially aggravated sexual exploitation of a minor, and the juries were unable to reach a verdict. In the case sub judice, Defendant was tried and convicted again on the same charge and sentenced to 12 years of incarceration. Defendant now appeals his conviction and sentence and asserts the following: 1) the trial court erred by not dismissing the indictment pursuant to our supreme court’s holding in State v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978); 2) the trial court erred by allowing into evidence testimony of prior bad acts; and 3) the trial court’s imposition of a 12-year sentence was presumptively vindictive. After a careful review of the record and the briefs of the parties, we affirm Defendant’s conviction; however, we conclude that Defendant’s sentence violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and therefore, we modify Defendant’s sentence from twelve years to nine years.


STATE OF TENNESSEE v. DAVARIUS DATRON SMITH

Court: TN Court of Criminal Appeals

Attorneys:

Lyle Jones, Covington, Tennessee (on appeal); and Robert M. Brannon, Jr., Memphis, Tennessee (at trial), for the appellant, Davarius Datron Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Davarius Datron Smith, was convicted of two counts of attempted second degree murder, a Class B felony; employment of a firearm during the commission of a dangerous felony, a Class C felony; and reckless endangerment, a Class E felony. He was sentenced by the trial court to an effective eighteen-year sentence. On appeal, the defendant argues that he was entitled to a mistrial because the State failed to produce notes taken by an investigator, made improper closing arguments, and asked leading questions of its witnesses; the trial court failed to instruct the jury regarding the State’s duty to preserve evidence and of a lesser-included offense of the indicted charges; and the evidence was insufficient to sustain his convictions. After review, we affirm the judgments of the trial court.


CYRUS DEVILLE WILSON V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Patrick T. McNally, Nashville, Tennessee, for the appellant, Cyrus Deville Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Dan H. Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Cyrus Deville Wilson, appeals the denial of his petition for the writ of error coram nobis. The petitioner is currently serving a life sentence following his conviction for first degree murder. In his petition, the petitioner contended that he was entitled to relief because of recently recanted testimony by an eyewitness to the murder. The error coram nobis court concluded that the recantation was not credible and denied relief. On appeal, the petitioner contends that the court erred in denying relief because it improperly assessed the evidence presented and applied an incorrect legal standard. After a review of the record, we affirm.


Today's News

Jackson-Madison County Lawyers Back Retention

A membership survey of the Jackson-Madison County Bar Association showed almost 7 of 10 recommend or highly recommend the retention of Tennessee Supreme Court Justices Gary Wade, Cornelia Clark and Sharon Lee. Results of the survey also show that most members support Amendment 2, which would amend the Tennessee Constitution so that the governor would appoint Tennessee appellate court judges, subject to legislative confirmation, followed by retention elections.


Conservative Group Backing Wade, Announces Support for Clark and Lee

The Tennessee Conservative Union yesterday announced its support for Tennessee Supreme Court Justices Gary Wade, Sharon Lee and Cornelia Clark in the upcoming retention election. TCU Chairman Lloyd Daugherty and Executive Director Kelvin Moxley cited the justices’ fidelity to the state and federal constitutions as sufficient reason to retain the three members of Tennessee’s highest court. Last week, the group announced its support for Chief Justice Wade but the statement said nothing about Justices Clark and Lee.


Opinion: Judging Judges Difficult for Poorly Informed Public

Even the most diligent voters can’t be expected to be fully informed about all of the candidates in the upcoming Aug. 7 state primary and county general election, David Waters of the Commercial Appeal writes. In Shelby County, there are 81 judicial candidates and an overstuffed ballot containing 259 names in a variety of federal, state and local contests. Instead of voting based of word of mouth or who has the most attractive yard sign, Waters advocates for merit selection in which a bipartisan panel of attorneys, judges, elected officials and citizens vet potential judges and give the governor a list of qualified candidates. Thirty-four states use merit selection to choose their local judges and it is how Tennessee chooses appellate and supreme court judges. “It doesn’t remove politics from the process,” Water concludes. “It does remove the court from the court of poorly informed public opinion.”


New Group Says 'No' Vote Would Send a Message

A new organization opposed to retention of all appellate judges has sprouted in Smithville. In its roundup of campaign activity, Knoxblogs reports  that the Coalition to Let Voters Decide is urging a negative vote on retention of all 23 appellate court judges on the Aug. 7 ballot to “send a message to politicians” that the state should return to contested elections for all judges.


Contentious DA Race Heats Up at Political Forum

Incumbent Democrat District Attorney Mickey Layne and Republican challenger Craig Northcott sparred over the issues and Layne's record during a recent debate at the Manchester-Coffee County Conference Center. The Tullahoma News has more from the 14th Judicial District event.


'Barmageddon:' Bar Exam Takers Can’t Upload Tests, Deadlines Extended

Bar exam takers in multiple states experienced delays and failures Tuesday when trying to upload their completed exams using ExamSoft software. Test takers reported staying up late trying to upload their exams multiple times, even as they faced a second day of exams today. One student even dubbed the situation “Barmageddon.” The software provider, ExamSoft Worldwide Inc., says delays were caused by a “processing issue.” State bars in all the affected states have extended their deadlines, the ABA Journal reports.


Domestic Abusers Asked to ‘Check-in’

Davidson County court officers appear to be misapplying a new state law that was intended to cut down on frivolous arrest warrants by issuing summonses instead of warrants for domestic abuse suspects, a Tennessean editorial suggests. Domestic abusers are among criminals most likely to reoffend in a short amount of time, because of the level of anger involved, and the episodes only grow more violent and more deadly. Switching to summonses, for which there are no consequences if you choose to ignore them, may be the worst turn of events yet, the publication says.


Veteran Attorneys Form Immigration Practice

Nashville-based immigration attorneys Milen Saev and Rose Hernandez have announced the opening of Saev Hernandez Immigration Practice PLLC, the Nashville Post reports. The two partners, who previously practiced immigration law at Rose Immigration Law Firm, focus on employment-based, family-based and humanitarian immigration law.


New Vanderbilt Program Offers Joint JD and Master’s in Finance

Students can now earn a law degree concurrently with master's in finance degree through a new program offered this fall by Vanderbilt Law School and the Owen Graduate School of Management at Vanderbilt University. “For lawyers heading to Wall Street, understanding markets is critical to building a successful career in financial service,” said M. Eric Johnson, the Ralph Owen Dean of Vanderbilt University’s Owen Graduate School of Management. Prospective students should apply for admission to the J.D. and M.S.F. programs simultaneously. Spaces in this three-year joint degree program are limited.


Advocates Outline Advantages of Mental Health Court in Chattanooga

Advocates held the first in an expected series of public forums about starting a mental health court in Chattanooga Monday, the Chattanooga Times Free Press reports. G.A. Bennett, director of support services with the Hamilton County Sheriff's Office, told the gathering that a mental health court would save Hamilton County money, reduce rates of recidivism and show caring accountability toward people with mental illness. Nashville's mental health court reports a reduced recidivism rate, a cost saving of a $250,000 and 83 percent reduction in the number of jail days for people with mental health issues.


League of Women Voters Recognizes Nashville Lawyer

The Nashville League of Women Voters has awarded this year’s Molly Todd Award to lawyer Diane Di Ianni, who has practiced for two decades in the areas of civil rights litigation, public sector law and government relations, and teaches at Vanderbilt University Law School. Di Ianni, who has been active with the league for many years, has been involved in the group's promotion of the Informed Voters–Fair Judges project this year. Prior to relocating to Tennessee, she served as general counsel to the Boston Public Schools during a time of historic litigation involving the use of race in school assignments.


 
 

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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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