Online course looks at key 2005 court decisions

What were the major holdings of the Tennessee Supreme Court during 2005 and what do they mean to your and your practice? Find out in Virginia Mayo's latest online course from TennBarU. The editor of M. Lee Smith's Tennessee Attorneys Memo, Mayo offers a detailed look at issues ranging from the liability of a diocese for the conduct of a former priest to the duty of convenience store employees not to sell gas to obviously intoxicated individuals.

http://www.tennbaru.com/

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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. WILLIAM GLENN ROGERS
With an opinion concurring in part and dissenting in part
and an appendix


Court: TSC

Attorneys:

Brock Mehler, Nashville, Tennessee, and Jerome M. Converse, Springfield, Tennessee, for the appellant, William Glenn Rogers.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory and Elizabeth T. Ryan, Assistant Attorneys General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier and Lance A. Baker, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: HOLDER

In this capital case, the defendant, William Glenn Rogers, was convicted of first degree premeditated murder, two counts of first degree felony murder, especially aggravated kidnapping, rape of a child, and two counts of criminal impersonation in connection with the 1996 abduction, rape, and murder of nine-year-old Jacqueline Beard. The trial court merged the felony murder convictions with the premeditated murder conviction. Based on four aggravating circumstances, the jury imposed a sentence of death for the murder. The trial court sentenced Rogers to an effective sentence of forty-eight years for the other convictions. The Court of Criminal Appeals affirmed. On automatic appeal under Tennessee Code Annotated section 39-13-206(a)(1), we designated the following issues for oral argument: (1) whether the trial court erred in failing to suppress Rogers' statements to law enforcement officers; (2) whether the trial court erred in supplementing the appellate record with mental health and social services records pertaining to the victim's brother, Jeremy Beard; (3) whether the trial court violated Rogers' constitutional rights by limiting cross-examination of Jeremy Beard; (4) whether the trial court committed harmful error in its instruction defining "intentionally" (5) whether the evidence is insufficient to support the convictions for first degree murder, kidnapping and rape; (6) whether the evidence is insufficient to support the aggravating circumstances; and (7) whether the sentence of death is disproportionate or invalid under the mandatory review of Tennessee Code Annotated section 39-13-206(c)(1). Having carefully reviewed these issues and the remainder of the issues raised by Rogers, we conclude that they do not warrant relief. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

Majority opinion
http://www.tba2.org/tba_files/TSC/2006/rogersw021706.pdf

Opinion concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2006/rogersw_condiss021706.pdf

Appendix (excerpts from the Court of Criminal Appeals' decision)
http://www.tba2.org/tba_files/TSC/2006/rogersw_app021706.pdf


PAUL BRADEN v. NANCY STRONG v. EDDIE BRADEN

Court: TCA

Attorneys:

Donald Capparella of Nashville, Tennessee for appellant, Nancy Strong.

R. Whitney Stevens, Jr. of Fayetteville, Tennessee for Appellee, Paul Braden.

Ben P. Lynch of Winchester, Tennessee for Appellee, Eddie Braden.

Judge: CRAWFORD

This case involves the dissolution of three partnerships. Appellee partner filed complaint against Appellant partner seeking a dissolution of two partnerships, an accounting of the partnerships to show liability of each partner, and appointment of a receiver to wind up the businesses. Appellant partner filed a counter-claim seeking the dissolution and of a third implied partnership, as well as an accounting and damages for breach of contract and breach of fiduciary duty against the Appellee partner and his brother. The brother was added as a party to the action. The trial court ordered: (1) that the two partnerships be dissolved, (2) that the assets be divided forty-nine percent (49%) to the Appellee partner and fifty-one percent (51%) to the Appellant partner, (3) that the Appellee partner be awarded capital account adjustments, and that capital account adjustments be denied in part, and awarded in part for the Appellant partner, (4) that the construction business was an implied partnership, and (5) that the construction partnership be dissolved and assets divided twenty-five percent (25%) to the Appellee partner, twenty-five percent (25%) to the Appellant partner, and fifty percent (50%) to the third-party brother. The order of the trial court is affirmed as to the finding that the construction business was an implied partnership, that this partnership be dissolved and assets divided twenty-five percent (25%) to the Appellee partner, twenty-five percent (25%) to the Appellant partner, and fifty percent (50%) to the third-party brother, and as to the dissolution of the remaining two partnerships effective January 12, 2004. The order is further affirmed as to the denial of a capital credit to the Appellee partner for forty-nine percent (49%) of the debt rolled into the partnership promissory note. The trial court's order is, in all other aspects, reversed and remanded for consideration of capital account adjustments for the Appellant partner and Appellee partner, for a complete accounting of the construction business, Braden Construction/Braden LLC, and for consideration of the Appellant partner's claims of breach of contract and breach of fiduciary duty for Appellee partner's exclusion of Appellant partner from the Landscaping Concepts partnership.

http://www.tba2.org/tba_files/TCA/2006/bradenp021706.pdf


SHERMAN ALEXANDER HENDERSON v. ROSS BATES, ET AL.

Court: TCA

Attorneys:

Sherman A. Henderson, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solictor General and Bradley W. Flippin, Assistant Attorney General for Appellee, Ross Bates and Paul Barrett.

Judge: CRAWFORD

Appellant is an inmate in the custody of the Tennessee Department of Correction. Appellant filed a Title 42 U.S.C. Sec. 1983 claim against the Appellee/Associate Warden and Appellee/Pre-Release Coordinator alleging a violation of the inmate's civil rights arising from a change in inmate's custody status. The trial court granted the Appellees' Tenn. R. App. P. 12.02 Motion to Dismiss. Inmate appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/hendersons021706.pdf


L.D.N., ET AL. v. R.B.W, ET AL.

Court: TCA

Attorneys:

Keith H. Grant, Pikeville, Tennessee, for the Appellant K.W.

Carol Ann Barron, Dayton, Tennessee, for the Appellees L.D.N. and M.B.N.

Judge: SWINEY

This appeal involves a petition to terminate the parental rights of K.W. (Mother) to her two minor sons. The petition was filed by K.W.'s parents, L.D.N. and M.B.N., who also sought to adopt their two grandsons. Following a trial, the Trial Court found and held that Mother had abandoned her two sons, that her parental rights should be terminated, and that Petitioners should be allowed to adopt the two minor children. Because the state of the record prevents this Court's effective review of the Trial Court's judgment, the judgment of the Trial Court terminating Mother's parental rights and granting the petition for adoption is vacated, and this case is remanded for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2006/ldn021706.pdf


STATE OF TENNESSEE v. PAUL O. DICKENS, SR.

Court: TCCA

Attorneys:

Gerald L. Melton, District Public Defender, and Russell N. Perkins, Assistant Public Defender, for the appellant, Paul O. Dickens, Sr.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch and Thomas S. Santel, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Paul O. Dickens, Sr., was convicted by a Rutherford County jury of attempted voluntary manslaughter (a Class D felony), reckless endangerment (a Class E felony), and two counts of coercion of a witness (a Class D felony). On direct appeal to this court, the defendant contends that: (1) the evidence was insufficient to support the verdict; and (2) his convictions for attempted voluntary manslaughter and reckless endangerment violate the constitutional prohibition against double jeopardy. Upon review of the record, briefs of the parties, and applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/dickens021706.pdf


STATE OF TENNESSEE v. KELVIN JERMAINE DOWELL

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; and David S. Stockton, Assistant District Public Defender, for the Appellant, Kelvin Jermaine Dowell.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the Appellee, State of Tennesse.

Judge: WITT

The defendant, Kelvin Jermaine Dowell, was convicted by jury of first degree murder and abuse of a corpse, see Tenn. Code Ann. Sec. 39-13-202(a)(1), -17-312 (2003), for which he received a life sentence. Aggrieved of his convictions, the defendant brings the instant appeal challenging the sufficiency of the evidence and the trial court's denial of his request for a continuance. After a thorough review of the record and applicable law, we affirm the judgments of the lower court.

http://www.tba2.org/tba_files/TCCA/2006/dowellk021706.pdf


STATE OF TENNESSEE v. JERRY N. ELDRIDGE

Court: TCCA

Attorneys:

Todd Hansrote, Clarksville, Tennessee, for the appellant, Jerry N. Eldridge.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General, and Carey J. Thompson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a revocation hearing, the trial court revoked the probation of Defendant, Jerry Eldridge, and ordered him to serve the remainder of his sentence in confinement. In his appeal, Defendant argues that his trial counsel rendered ineffective assistance during the revocation hearing, and that the trial court erred in finding that he had violated the terms of his probation. After a review of this matter, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/eldridgej021706.pdf


STATE OF TENNESSEE v. CARLOS HARDY and ATLANTA HARDY

Court: TCCA

Attorneys:

Michael A. Colavecchio, for the appellant, Carlos Hardy and Ronald E. Munkeboe, Jr., for the appellant, Atlanta Hardy.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Kathy Morante, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

The appellants, Carlos and Atlanta Hardy, were convicted by a jury of second degree murder. As a result, the trial court sentenced Atlanta Hardy as a career violent offender to sixty years at one hundred percent to be served consecutively to the sentence she was already serving. arlos Hardy was sentenced to twenty-five years at one hundred percent to be served consecutively to the sentence he was already serving for a probation violation. Both appellants filed timely motions for new trial. The trial court denied the motions, and the appellants appealed. On appeal, Carlos Hardy challenges the sufficiency of the evidence, the trial court's failure to declare a mistrial after a State's witness mentioned a lie detector test, the trial court's failure to sever his case from Atlanta Hardy's case, and his sentence. Atlanta Hardy challenges the sufficiency of the evidence and the trial court's failure to declare a mistrial. For the following reasons, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/hardyc021706.pdf


STATE OF TENNESSEE v. DAVID LEE KESTNER

Court: TCCA

Attorneys:

Patrick G. Frogge (on appeal), Nashville, Tennessee, and Kerry Haymaker (at trial), Nashville, Tennessee, for the appellant, David Lee Kestner.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, David Lee Kestner, pled guilty to felony murder, aggravated burglary, and especially aggravated robbery, in exchange for concurrent sentences of life, three years, and fifteen years, respectively. As a condition of his guilty plea, the defendant reserved three certified questions of law concerning the denial of his motions to suppress and dismiss. Upon our review of the record and the parties' briefs, we conclude the questions regarding the denial of the defendant's motion to suppress are not dispositive of the case, and therefore cannot be reviewed by this court. We further conclude that the trial court did not err in denying the defendant's motion to dismiss the indictment. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/kestnerd021706.pdf


STATE OF TENNESSEE v. JOHN MARSHALL MAYES

Court: TCCA

Attorneys:

Andrew Jackson Deering, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, John Marshall Mayes.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Mike McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The defendant pled guilty to driving while under court order not to operate a motor vehicle because he had been declared an habitual motor offender. The trial court sentenced the defendant to six years as a Career Offender. The defendant appeals, arguing that the trial court erred in not granting him probation and in sentencing him as a career offender. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/mayesj021706.pdf


STATE OF TENNESSEE v. DOROTHY PRYOR

Court: TCCA

Attorneys:

Russell Edwards, Hendersonville, Tennessee, for the appellant, Dorothy Pryor.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Russell Edwards, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Dorothy Pryor, appeals the sentencing decision of the Sumner County Criminal Court. The Defendant pled guilty to five counts of burglary and three counts of Class D felony theft. Pursuant to the plea agreement, she received an effective eight-year sentence for the burglary convictions and an effective eight-year sentence for the theft convictions. Following a sentencing hearing, the trial court ordered the burglary and theft sentences to be served consecutively to one another and consecutively to a prior eight-year sentence, for a total sentence of twenty-four years in the Department of Correction as a Range III, persistent offender. On appeal, the Defendant argues that consecutive sentencing was improper. After a review of the record, we affirm the sentencing decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/pryord021706.pdf


JOHNNIE W. REEVES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Johnnie W. Reeves.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner appeals the dismissal of his petition for post-conviction relief in which he contended (1) that trial counsel failed to cross-examine the six-year-old victim as to his competency as a witness prior to the victim's testimony at trial; (2) that trial counsel failed to effectively cross-examine witnesses and make timely objections; (3) that trial counsel failed to effectively investigate the case and subpoena necessary documents and witnesses; and (4) that the trial court failed to instruct the jury on all lesser-included offenses. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel's representation was deficient or that he was prejudiced by his trial counsel's performance. We accordingly affirm the judgment of the post- conviction court.

http://www.tba2.org/tba_files/TCCA/2006/reevesj021706.pdf


STATE OF TENNESSEE v. THOMAS DAVID ROSA

Court: TCCA

Attorneys:

Larry M. Roe, Jr., Columbia, Tennessee, for the Appellant, Thomas David Rosa.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Mike Bottoms, District Attorney General; and Patrick Butler, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Thomas David Rosa, appeals the revocation of his probation by the Giles County Circuit Court. On August 27, 2004, Rosa was granted probation and placed on supervision for the balance of an effective eight-year sentence for burglary and theft of property convictions. Prior to the commencement of the revocation hearing, Rosa was removed from the courtroom based upon the trial court’s finding of unruly behavior. The hearing then proceeded in Rosa’s absence. Following the State’s introduction of proof, the trial court found Rosa in violation of the conditions of his probation based upon his committing new offenses and failing to pay restitution. On appeal, Rosa argues: (1) that his removal from the courtroom violated his fundamental right of due process in that he was precluded from confronting witnesses, presenting proof in his own behalf, and assisting counsel in his defense; and (2) the evidence was insufficient to revoke his probation. Because we conclude that Rosa's due process rights were violated, we reverse the judgment of the trial court and remand for a new revocation hearing.

http://www.tba2.org/tba_files/TCCA/2006/rosat021706.pdf


STATE OF TENNESSEE v. TYLER STOUT SMITH

Court: TCCA

Attorneys:

Edwin G. Sadler, attorney for appellant, Tyler Stout Smith.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; William Edward Gibson, District Attorney General; and David A. Patterson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Tyler Stout Smith, was convicted of vehicular homicide by recklessness. Defendant was ordered to pay a fine of ten thousand ($10,000) dollars and was sentenced to four (4) years in the Department of Correction. On appeal, Defendant argues that (1) the evidence presented was insufficient to establish the element of recklessness beyond a reasonable doubt; (2) Defendant's due process rights were violated when the trial court did not allow him to present evidence that the victim was influenced by an intoxicant which may have influenced her ability to avoid the collision; and (3) the trial court improperly increased the Defendant's sentence from three years to four years. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/smitht021706.pdf


TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
Circuit court races competitive in Nashville
Three candidates have filed to replace Second Circuit Court Judge Marietta Shipley in Nashville, while Judge Carol Soloman is the only incumbent Circuit Court judge to face competition this year.
Read the City Paper's election filings roundup
Complete list of individuals who qualified for the May 2 Democratic Davidson County primary
Shelby County races draw last-minute entrants
A flurry of activity Thursday at the Shelby County Election Commission headquarters ended with 71 candidates filing for 23 county positions, The Commercial Appeal reports.
Read a roundup of who has filed
Coleman joins race for juvenile court post
Former U.S. attorney Veronica Coleman launched her campaign for Juvenile Court judge at a fund-raiser Thursday night, joining state Sen. Curtis Person in the race to replace Judge Kenneth Turner.
Read the Commercial Appeal story
Few judicial races contested in Knox County
Of 13 judicial positions up for election in Knox County, only three are contested.
The Knoxville News Sentinel provides a roundup of filings
Read the News Sentinel's East Tennessee elections roundup
Hamilton County candidates set
In the 11th Judicial District, Barry Steelman and Rodney Strong will square off for the post of criminal court judge (Division I). Rebecca J. Stern (Division II) and Don W. Poole (Division III) are unopposed in their re-election bids.

In circuit court races, Jacqueline Schulten (Division I), L. Marie Williams (Division III) and Neil Thomas III (Division IV) will run unopposed for re-election. Three candidates will face off in Division II to fill the seat vacated by Sam Payne. They are: W. Jeffrey Hollingsworth, Thomas Crutchfield and Steven W. Grant.

Chancellors W. Frank Brown III (Part I) and Howell N. Peoples (Part II) also will be unopposed in their bids for re-election, as will District Attorney William Cox III and Public Defender Ardena Garth.

Ashcroft defends death penalty in Vanderbilt address
Former U.S. Attorney General John Ashcroft called capital punishment "the most important component in the arsenal against crime" during an address this week at Vanderbilt Law School.
Read the story in the Vanderbilt Register
Roane County waits for AG opinion on interim judge
The Roane County Commission has asked the state attorney general to rule whether it has authority to appoint an interim judge to fill the seat of Judge Thomas Austin, who has stepped aside pending resolution of federal criminal charges. Opponents of an appointment argue that state law allows county governments to appoint interim judges only when the sitting judge does not cooperate with authorities. The county's attorney contends that the commission is obligated to proceed with an appointment.
Read more in this article by the Roane County News
Legislative News
Ophelia Ford asks state to pay legal fees
State Senator Ophelia Ford reportedly has asked the state to pay more than $57,000 in legal fees she has incurred to defend her election. State Attorney General Paul Summers responded that the request is premature since the state is appealing the federal court's decision in the case, reports the Associated Press.

Veteran lawmaker will not seek re-election
State Rep. Gene Davidson, D-Adams, says he will not seek re-election this year after serving 32 years in the House of Representatives, The Commercial Appeal reports. First elected in 1974, Davidson, served in a number of leadership positions, including House majority leader in 2001 and 2002.

Track legislation of interest to Tennessee attorneys
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