CLE Ski returns to Colorado for Feb. program

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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.

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03 - TN Attorney General Opinions
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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.
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