| |
CLE Ski returns to Colorado for Feb. program
Combine daily CLE programming with hours of top flight skiing at the 21st Annual CLE Ski, Feb. 5-11, in beautiful Snowmass Village, Colo. Located in a mountain valley only 10 miles southwest of Aspen, Snowmass is surrounded by 14,000-foot peaks, aspen groves, and wildflower meadows. Learn more or register today.
https://www.tba.org/onsiteinfo/cleski2006.html
|
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. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.
00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
13 - TN Court of Criminal Appeals
03 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
TBA members can get the full-text versions of these opinions three ways detailed below.
All methods require a TBA username and password. If you have forgotten your password or need to obtain a password,
you can look it up on-line at http://www.tba.org/getpassword.mgi
Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then
open them from there. 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. Do a key word search in the Search Link area of TBALink. This option will allow you to view
and save a plain-text version of the opinion. Browse the Opinion List area of TBALink.
This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
|
|
|
|
|
|
BRUCE R. GOODMAN v. JUDY LYNN McMURRAY GOODMAN
Court: TCA
Attorneys:
Alfred H. Knight, Mary Arline Evans, and Alan Dale Johnson, Nashville, Tennessee, for the
appellant, Bruce R. Goodman.
Rose T. Palermo, Nashville, Tennessee, for the appellee, Judy Lynn McMurray Goodman.
Judge: FARMER
Appellant Bruce Goodman (“Husband”) filed for divorce from Appellee Judy Goodman
(“Wife”) after twenty-six years of marriage. The parties entered into a permanent parenting plan
and subsequently went to trial seeking a property settlement and a decree on spousal support.
The trial court awarded each party approximately $1.4 million from the marital estate and also
granted Wife $4,000 per month in alimony in futuro. Husband appeals the alimony award. We
affirm.
http://www.tba2.org/tba_files/TCA/2006/goodmanb11006.pdf
JAY C. HASSLER v. TENNESSEE DEPARTMENT OF SAFETY
Court: TCA
Attorneys:
J. Shannon Garrison, Dayton, Tennessee, for the appellant, Jay C. Hassler.
Paul G. Summers, Attorney General and Reporter; Lizabeth A. Hale, Assistant Attorney General,
for the appellee, Tennessee Department of Safety.
Judge: KOCH
This appeal involves the forfeiture of thirty-three vehicles and $32,150 in cash seized pursuant to
forfeiture warrants obtained by the Fifteenth Judicial District Drug Task Force. A person
claiming ownership of the vehicles and cash filed a petition with the Tennessee Department of
Safety requesting their return. The Department denied the petition following a contested case
hearing, and the claimant filed a petition for review in the Circuit Court for Davidson County.
The trial court thereafter upheld the forfeiture. The claimant asserts on this appeal that Tenn.
Code Ann. § 40-33-204 (2003), the statute authorizing the issuance of forfeiture warrants, is
unconstitutional and that the evidence does not support the hearing officer’s and trial court’s
conclusion that he has no ownership interest in the seized property. We affirm the trial court.
http://www.tba2.org/tba_files/TCA/2006/hasslerj11006.pdf
ELLY K. HOUSTON v. ASIAN IMPORT AND MANUFACTURING GROUP, INC.
Court: TCA
Attorneys:
Richard J. Braun and Patricia E. Crotwell, Nashville, Tennessee, for the appellant, Kelly K.
Houston.
Kurt V. Beasley, Charles G. Blackard, III, and Jonathan Jackson Pledger, Brentwood, Tennessee,
for the appellee, The Asian Import and Manufacturing Group, Inc.
Judge: KOCH
This appeal involves an employment dispute. Following his termination, the employee filed suit
against his former employer in the Circuit Court for Williamson County alleging retaliatory
discharge, breach of contract, and conversion. The trial court directed a verdict for the employer
at the close of the employee’s case-in-chief, and the employee appealed. We have determined
that the trial court’s decision to grant a directed verdict was proper.
http://www.tba2.org/tba_files/TCA/2006/houstonk11006.pdf
JOHN PAUL SUTPHIN v. SALLY ANN OSBORNE SUTPHIN
Court: TCA
Attorneys:
J. Barney Witherington, IV, Covington, TN, for Appellant.
Julie D. Byrd, Memphis, TN, for Appellee.
Judge: HIGHERS
In this appeal, we are asked to determine whether the chancery court erred when it modified the
original custody order between the parties. Appellant contends that there are no material changes
of circumstances to warrant modification of the original custody order. We affirm.
http://www.tba2.org/tba_files/TCA/2006/sutphinj11006.pdf
ROBERT HENRY THYM v. MARY DAVENPORT THYM
Court: TCA
Attorneys:
William B. Bradley, Brentwood, Tennessee, for the Appellant, Robert Henry Thym.
John J. Hollins, Sr. and James L. Weatherly, Jr., Nashville, Tennessee, for the Appellee, Mary
Davenport.
Judge: LEE
In this post-divorce alimony modification case, the primary issue is whether the trial court erred
in applying T.C.A. § 36-5-101(a)(3) (now T.C.A. § 36-5-121(f)(2)(B)), the “cohabitation
statute,” to terminate Robert Henry Thym’s alimony payments. Based on its finding that Mr.
Thym was living with another person, the trial court terminated the $4,000 per month payments
owed under the divorce decree by Mary Davenport, Mr. Thym’s former wife. We hold that the
alimony payments should be suspended rather than terminated, pursuant to the terms of the
statute. We affirm the judgment of the trial court in all other respects.
http://www.tba2.org/tba_files/TCA/2006/thymr11006.pdf
STATE OF TENNESSEE v. FREDDIE EUGENE ASBURY
Court: TCCA
Attorneys:
Stephen M. Wallace, District Public Defender, and William A. Kennedy, Assistant Public Defender,
for the appellant, Freddie Eugene Asbury.
Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: TIPTON
The defendant, Freddie Eugene Asbury, appeals the Sullivan County Criminal Court’s order
revoking his probation. On appeal, the defendant claims that although he violated his probation, the
trial court abused its discretion by revoking his probation and ordering him to serve his sentence in
confinement. We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2006/asburyf11006.pdf
STATE OF TENNESSEE v. CURRIE LEE BYRD
Court: TCCA
Attorneys:
J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Currie Lee Byrd.
Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney
General; Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Currie Lee Byrd, pled guilty to arson and vandalism over $60,000 and was
sentenced to concurrent terms of three years and eight years, respectively, to be served under the
supervision of a community corrections program after serving 140 days in jail. He reserved as a
certified question of law whether the trial court erred in denying his motion to suppress his
statements. Following our review, we concur with the trial court’s determination that the motion
to suppress was without merit.
http://www.tba2.org/tba_files/TCCA/2006/byrdc11006.pdf
LEONARD MAYSONET v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Leonard Maysonet, Clifton, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor
S. (Torry) Johnson, III, District Attorney General; and Amy Hunter Eisenbeck, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The petitioner, Leonard Maysonet, appeals the Davidson County Criminal Court’s summary
dismissal of his petition for post-conviction relief from his convictions for carjacking, a Class B
felony, and kidnapping, a Class C felony, and resulting concurrent sentences of twelve years in the
Department of Correction. He claims the trial court erred in finding his petition was time-barred by
the one-year statute of limitations. He asserts that Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004), announced a new rule of constitutional law requiring retroactive application to his case.
We affirm the trial court’s summary dismissal of the petition.
http://www.tba2.org/tba_files/TCCA/2006/maysonetl11006.pdf
JAMES L. MCCURRY v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Jennifer E. Raby, Rockwood, Tennessee, for the appellant, James L. McCurry.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
J. Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: OGLE
The petitioner appeals the Roane County Criminal Court’s denial of his petition for post-conviction
relief from his conviction for first degree premeditated murder and resulting life sentence. He
contends that he received the ineffective assistance of counsel because his trial attorney (1) failed
to file a motion to suppress his statement to police; (2) failed to schedule a hearing to set bond; (3)
failed to obtain a second psychological evaluation for him; and (4) failed to file a motion for change
of venue. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.
http://www.tba2.org/tba_files/TCCA/2006/mccurryj11006.pdf
MARK MEDLEY v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Richard T. Roney, Murfreesboro, Tennessee, for the appellant, Mark Medley.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney
General; Bill Whitesell, District Attorney General; and David L. Puckett, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
This is an appeal as of right from the denial of post-conviction relief. The Petitioner, Mark
Medley, was convicted of one count of rape of a child pursuant to a guilty plea. He was
sentenced as a Range I, standard offender to fifteen years imprisonment. The Petitioner now
appeals denial of his petition for post-conviction relief raising the single issue of ineffective
assistance of counsel. He argues that his trial counsel’s failure to inform him that the charge to
which he pled guilty may have been time-barred amounted to deficient representation which
resulted in prejudice to him. We reverse the post-conviction court’s conclusions of law
regarding the statute of limitations applicable to this case and remand for further findings of fact
pertaining to the claim of ineffective assistance of counsel.
http://www.tba2.org/tba_files/TCCA/2006/medleym11006.pdf
BEN MILLS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
James E. Thomas, Memphis, Tennessee, for the appellant, Ben Mills.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Nicole Duffin, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
The petitioner, Ben Mills, appeals the denial of his petition for post-conviction relief from his
first degree murder, aggravated robbery, and attempted first degree murder convictions, arguing
that the post-conviction court erred in finding that trial counsel was not ineffective for failing to
request a jury instruction on voluntary intoxication. Having reviewed the record, we conclude
that the petitioner has failed to meet his burden of showing by clear and convincing evidence that
he was prejudiced as a result of any alleged deficiency in counsel’s representation. Accordingly, we affirm the denial of the petition for post-conviction relief.
http://www.tba2.org/tba_files/TCCA/2006/millsb11006.pdf
TOMMY NUNLEY v. STATE OF TENNESSEE
With Concurring Opinion
Court: TCCA
Attorneys:
Scott Hall, Memphis, Tennessee, for the Appellee, Tommy Nunley.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
William L. Gibbons, District Attorney General; Camille McMullen and Emily Campbell,
Assistant District Attorneys General, for the Appellant, State of Tennessee.
Judge: HAYES
The State appeals the Shelby County Criminal Court’s grant of post-conviction relief to the
Petitioner, Tommy Nunley. In February 1998, Nunley was convicted by a Shelby County jury of
aggravated rape and was sentenced to twenty-five years imprisonment. A petition for post-
conviction relief was filed alleging grounds of ineffective assistance of counsel. Nunley’s
principal claim asserts that trial counsel was ineffective for failing to seek state-funded expert
assistance for “DNA testing of specimens collected” by the police. At the conclusion of one of
the several hearings conducted by the post-conviction court, the court, on its own motion,
directed DNA testing of biological specimens shown to be in the custody of the State. The court
was subsequently informed that the specimens had been “misplaced and/or destroyed.” Upon
learning of this fact, the post-conviction court granted Nunley’s petition for post-conviction
relief concluding “that said evidence could and should have been tested at the time of [Nunley’s]
trial, and that because said evidence has been lost and/or destroyed, petitioner’s constitutional
right to a fair trial was violated.” Because we conclude that the proof fails to establish prejudice
under the standards of Strickland v. Washington, the grant of post-conviction relief is reversed,
and the judgment of conviction is reinstated.
Majority Opinion
http://www.tba2.org/tba_files/TCCA/2006/nunleyt11006.pdf
Concurring Opinion
http://www.tba2.org/tba_files/TCCA/2006/nunleytcon11006.pdf
ALLEN OLIVER v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Brett B. Stein (on appeal) and Kamilah E. Turner (at trial), Memphis, Tennessee, for the
appellant, Allen Oliver.
Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; Chris Scruggs, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: OGLE
The petitioner, Allen Oliver, pled guilty in the Shelby County Criminal Court to numerous
offenses and received a total effective sentence of twenty-three years incarceration in the
Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-
conviction relief, alleging that his guilty pleas were not knowingly and voluntarily entered and
that his attorneys were ineffective. The post-conviction court denied the petition, and the
petitioner appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment
of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2006/olivera11006.pdf
STATE OF TENNESSEE v. SARAH LEIGH PANNELL
Court: TCCA
Attorneys:
Ross E. Alderman, District Public Defender; and Andrew Jackson Dearling, III, Assistant District
Public Defender, for the Appellant, Sarah Leigh Pannell.
Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the Appellee, State of Tennessee.
Judge: WITT
The defendant, Sarah Leigh Pannell, appeals from the Marshall County Circuit Court’s denial of
alternative sentencing. The record supports the court’s order, and we affirm.
http://www.tba2.org/tba_files/TCCA/2006/pannells11006.pdf
STATE OF TENNESSEE v. JOE MAC PEARSON
Court: TCCA
Attorneys:
Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Joe Mac Pearson.
Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; W.
Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: OGLE
The appellant, Joe Mac Pearson, was convicted by a jury in the Marshall County Circuit Court of
selling a Schedule II controlled substance, namely oxycodone, and he received a sentence of ten
years in the Tennessee Department of Correction. On appeal, the appellant challenges the
sufficiency of the evidence supporting his conviction and the sentence imposed. Upon our review
of the record and the parties’ briefs, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2006/pearsonj11006.pdf
JOHNNY DEE ROBERTS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Johnny Dee Roberts.
Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Judge: WITT
The petitioner, Johnny Dee Roberts, appeals from the Davidson County Criminal Court’s
dismissal of his petition for post-conviction relief, in which the petitioner had attacked his 2002
convictions of aggravated rape and aggravated sexual battery. The post-conviction court
determined that (1) the petitioner failed to establish either the deficient performance of trial
counsel or that he was prejudiced by the actions of counsel and that (2) the issue of prosecutorial
misconduct had been previously determined on direct appeal. Because the record supports the post-conviction court’s ruling, we affirm the denial of relief.
http://www.tba2.org/tba_files/TCCA/2006/robertsj11006.pdf
STATE OF TENNESSEE v. LAMARIO SUMNER
Court: TCCA
Attorneys:
Mark Mesler, Memphis, Tennessee, for the Appellant, Lamario Sumner.
Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District
Attorney General, for the Appellee, State of Tennessee.
Judge: HAYES
The Appellant, Lamario Sumner, was convicted by a Shelby County jury of two counts of
aggravated robbery and received an effective forty-year sentence. On appeal, Sumner has raised
five issues for our review: (1) whether Sumner’s prior conviction for aggravated robbery was
admissible for impeachment purposes; (2) whether the trial court erred by precluding
examination of the police investigator regarding exculpatory statements made by Sumner; (3)
whether the elements of a prior felony conviction, introduced solely for purposes of
impeachment, may be developed through examination of the witness; (4) whether the trial court
properly responded to a jury question regarding criminal responsibility; and (5) whether the
evidence is sufficient to support the convictions. After review of the record, we find no error and
affirm the convictions.
http://www.tba2.org/tba_files/TCCA/2006/sumnerl11006.pdf
STATE OF TENNESSEE v. FALLON L. TALLENT
Court: TCCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee (on appeal) and David Boyd and Craig Garrett,
Maryville, Tennessee (at trial) for the Appellant, Fallon L. Tallent.
Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General; Robert N. Hibbett, Assistant District
Attorney General, for the Appellee, State of Tennessee.
Judge: WEDEMEYER
The Defendant, Fallon L. Tallent, was convicted by a Wilson County Jury of two counts of first
degree murder. On appeal, the Defendant contends that the trial court erred when it: (1) allowed
Kathleen Griffith, a witness not listed in discovery, to testify; and (2) ordered the Defendant’s
two life sentences to be served consecutively. Finding no reversible error, we affirm the
judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2006/tallentf11006.pdf
Effect of Public Chapter No. 175 of the Acts of 2003 on the Expungement of Records in Multi-Count Criminal Indictments
TN Attorney General Opinions
Date: 2006-01-09
Opinion Number: 06-3
http://www.tba2.org/tba_files/AG/2006/ag_06-3.pdf
Filling of Vacancy in Senate if Election is Declared Void
TN Attorney General Opinions
Date: 2006-01-09
Opinion Number: 06-5
http://www.tba2.org/tba_files/AG/2006/ag_06-5.pdf
Sequential Instructions for Jury Consideration of Lesser-Included Offenses
TN Attorney General Opinions
Date: 2006-01-09
Opinion Number: 06-6
http://www.tba2.org/tba_files/AG/2006/ag_06-6.pdf
|
|
 |
|
| TODAY'S NEWS |
|
Legal News
Online CLE
|
| Legal News |
| Supreme Court considers DNA in Tennessee case |
| The U.S. Supreme Court will hear arguments in a case tomorrow that tests whether prisoners have a constitutional right to use DNA technology to seek new trials. The case is that of convicted killer Paul House, who has been on death row in Tennessee for 20 years. It will be the first time a death row inmate has brought DNA evidence before the high court to prove his innocence, reports the Knoxville News-Sentinel. |
4375272,00.html
|
| State AG files lawsuit against tobacco distributor |
| Tennessee Attorney General Paul G. Summers filed suit today against DWI, LLC of Russell, Ky., for a number of state tobacco law violations. The lawsuit alleges that DWI repeatedly failed to
file wholesale licensed distributor reports required by state law and failed to respond to requests for information from the Department of Revenue and the Attorney General’s
Office. |
|
| Hamilton County commissioner calls magistrates "cancer on the judicial system" |
| Hamilton County Commissioner Curtis Adams said that another recent case of bad judgment from a magistrate is proof that the entire system needs to be disbanded, according to the Chattanoogan.com. |
article_78395.asp
|
| Memphis Bar Foundation poised for growth |
| After recruiting its largest class in history under president George T. "Buck" Lewis, the Memphis Bar Foundation is poised for continued growth, an article in the Memphis Daily News reports. |
StoryFocus.aspx?id=91048
|
| DA quits party to pursue judgeship |
| District Attorney General Jim Ramsey has resigned his membership in the Anderson County Democratic party to run for Seventh Judicial District chancellor, reports the Oak Ridger. |
new_20060109034.shtml
|
| Enter the Warren E. Burger Writing Competition |
| Deadline for submissions is June 15 for the Warren E. Burger Writing Competition, which is sponsored by the American Inns of Court. The award is designed to encourage outstanding scholarship "promoting the ideals of excellence, civility, ethics and professionalism within the legal profession." For submission guidelines, go to |
Content/Default.aspx?Id=309
|
| Online CLE |
| Two new online courses available on TennBarU |
| Many court cases are decided, not at trial, but at pretrial hearings on search and seizure questions. Learn what the latest cases hold in this important area of criminal procedure from this new course. Also new is a course that addresses the effect of the adoption of comparative fault on those common law tort doctrines that you learned in Torts 101. Scenarios and hypotheticals will raise issues and illustrate the problems that can arise when an important change in the law occurs by judicial fiat, leaving other doctrines uncertainly affected or even abrogated. |
index.htm
|
| |
|
