Elect ________ Attorney General and Reporter?
Legislation to set up the statewide election for an office to be called "solicitor general" slipped out of the Judicial Administration Subcommittee of the House Judiciary Committee early this afternoon. The new office would have all of the powers of the present constitutional office of Attorney General and Reporter except that the AG's office would continue to act as reporter. Among the additional duties of the SG would be the exclusive jurisdiction to prosecute state employee and lawmaker wrongdoing. Download the bill at http://www.tba2.org/tbatoday/news/2006/sb3242.pdf Read a history of the office in the Tennessee Bar Journal
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.
01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
10 - TN Court of Criminal Appeals
00 - 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
| STATE OF TENNESSEE v. STEPHEN LYNN HUGUELEY
With Dissenting Opinion and Appendix
F. Michie Gibson, Jr. and T. J. Cross-Jones, Nashville, Tennessee, for the appellant, Stephen Lynn
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle
Chapman McIntyre and Michael Markham, Assistant Attorneys General; Elizabeth T. Rice, District
Attorney General; Terry D. Dycus and Colin Campbell, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Defendant, Stephen Lynn Hugueley, was convicted by a jury of one count of first degree
premeditated murder. During the penalty phase of the trial, the jury found four aggravating
circumstances: (1) Defendant was previously convicted of one or more felonies whose statutory
elements involved the use of violence to the person; (2) the murder was especially heinous,
atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to
produce death; (3) Defendant committed the murder while he was in a place of lawful confinement;
and (4) the victim was a corrections employee. See Tenn. Code Ann. Sec. 39-13-204(i)(2), (5), (8), (9)
(Supp. 1999). Additionally, the jury determined that the evidence of these aggravating circumstances
outweighed the evidence of mitigating circumstances beyond a reasonable doubt. Id. at (g)(1). The
jury thereupon sentenced Defendant to death. The Court of Criminal Appeals affirmed the
conviction and the death sentence.
After the case was docketed in this Court, we entered an order identifying several issues for
oral argument. We now hold as follows: (1) the trial court did not commit reversible error in
concluding that Defendant failed to establish purposeful discrimination by the prosecution in its
exercise of peremptory challenges in violation of Batson v. Kentucky and J.E.B. v. Alabama ex rel.
T.B.; (2) the trial court did not commit reversible error in refusing to dismiss prospective juror
Watkins for cause; and (3) the death sentence is valid under this Court's mandatory review pursuant
to Tennessee Code Annotated Section 39-13-206(c)(1) (2003). We agree with the Court of Criminal
Appeals' conclusions with respect to the remaining issues, the relevant portions of which are
included in the appendix to this opinion. Accordingly, the Court of Criminal Appeals' judgment is
Birch Dissenting in Part
Appendix (excerpts from the Court of Criminal Appeals' decision)
DEBORAH BELL v. BILLY DEAN GOFORTH ET AL.
Larry L. Crain, Brentwood, Tennessee, for the appellant, Deborah Bell.
Wm. Robert Pope, Mary Taylor Gallagher, and Mary Beth Hagan, Nashville, Tennessee, for the appellee, Billy Dean Goforth.
This appeal involves a former employee's efforts to collect a judgment against two defunct
corporations. The employee filed a Title VII complaint against the two corporations in the United
States District Court for the Middle District of Tennessee and obtained a default judgment against
them. A federal jury thereafter awarded the employee a $928,556 judgment against the two
corporations. Three years later, the employee sued one of the corporations and two of its officers
in the Chancery Court for Davidson County alleging that they had fraudulently transferred corporate
assets to place them beyond her reach. One of the officers filed a motion for summary judgment
based on the three-year statute of limitations in Tenn. Code Ann. Sec. 28-3-105 (2000). The trial court
granted the motion, and the employee appealed. We have determined that the claims against the
corporate officer should have been dismissed, not because of the statute of limitations, but because
the undisputed facts demonstrate that the officer played no role in the disposal of the corporate
PHILLIP B. FLOWERS, SR., ET AL. v. HCA HEALTH SERVICES OF TENNESSEE, INC., d/b/a SOUTHERN HILLS MEDICAL CENTER
Daniel L. Clayton, Nashville, Tennessee; and Steven R. Walker, Memphis, Tennessee, for the
appellants, Phillip B. Flowers, Sr., Amy Flowers Smith, Phillip B. Flowers, Jr. and Christopher
C. J. Gideon, Jr., Brian Cummings and Kenneth P. Flood, Nashville, Tennessee, for the appellee,
HCA Health Services of Tennessee, Inc., d/b/a Southern Hills Medical Center.
This is an interlocutory appeal arising out of a medical negligence action filed by Phillip Flowers and
his children against HCA Health Services of Tennessee. Flowers and his children brought an action
for medical negligence against HCA for the death of Edith Flowers, wife and mother, who died due
to a morphine overdose while under the care of HCA's employees at Southern Hills Medical Center.
Plaintiffs' negligence action was based in part on the doctrine of res ipsa loquitur. HCA filed a
motion to summarily dismiss the res ipsa loquitur claim, contending Plaintiffs could not prevail on
that claim due to their concession the morphine pump was not defective. The trial court granted
HCA’s motion for summary judgment as to that issue. We now reverse.
HARDING ACADEMY v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, acting by and through the BOARD OF FIRE AND BUILDING CODE APPEALS
J. Brooks Fox, John Kennedy, Nashville, TN, for Appellant.
Robert J. Walker, John C. Hayworth, John L. Farringer, IV, Nashville, TN, for Appellee.
Harding Academy, a private elementary and middle school located in Nashville, Tennessee, acquired
neighboring real property with the intention of constructing athletic fields for use by its student body.
The local neighborhood association began to voice its disagreement with the planned use of the
property. On April 10, 2003, the councilwoman representing the district filed an application with
the planning commission seeking to have a historic conservation overlay imposed on the area. On
May 6, 2003, Harding Academy received nine permits to demolish the houses occupying the property
it acquired. On May 8, 2003, the Metropolitan Government of Nashville and Davidson County,
through its codes department, informed Harding Academy that its permits were being revoked. In
revoking the permits, the local government relied on the "pending ordinance doctrine," citing the
councilwoman's pending application. Harding Academy appealed to the Board of Fire and Building
Code Appeals, which affirmed the revocation. Thereafter, Harding Academy filed for a writ of
common law certiorari in the Chancery Court of Davidson County. The chancellor reversed the
board's decision, holding that the local government could not rely on the "pending ordinance
doctrine" to revoke the permits because the historic conservation overlay was not sufficiently
"pending" at the time of the revocation. Accordingly, the chancellor ordered the codes department
to re-issue the permits. The local government appealed the chancellor's decision to this Court. We
affirm the chancellor's ruling, but for reasons different from those set forth by the chancery court.
WILLIAM HOWELL STEELE, ET AL. v. RICHARD A. BERKMAN, M.D.
E. Reynolds Davies, Jr. and John T. Reese, Nashville, Tennessee, for the appellant, Richard A.
Al H. Thomas and Joshua David Thomas, Memphis, Tennessee, for the appellee, Julia Steele.
Al H. Thomas, Memphis, Tennessee, for the appellee, William Howell Steele.
This application for an interlocutory appeal concerns the waiver of Tennessee Code Annotated
Section 29-26-115(b)'s requirement that an expert witness in a medical malpractice case have
practiced in a contiguous bordering state within the year preceding the date that the alleged injury
or wrongful act occurred. The Circuit Court for Davidson County determined that the plaintiffs'
expert had not practiced in a contiguous bordering state within the year preceding the injury, but
granted the plaintiffs a waiver of the requirement. The Circuit Court subsequently granted the
defendant permission to appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 9.
We concur with the Circuit Court that this is an appropriate case for an interlocutory appeal.
Because the plaintiffs failed to demonstrate that the appropriate witnesses would not otherwise be
available as required by Tennessee Code Annotated Section 29-26-115(b), we reverse the Circuit
Court's order denying the defendant's motion to strike the plaintiffs' expert.
STATE OF TENNESSEE v. JOHNNY M. BURROUGHS
James L. Baum, Burns, Tennessee, for the appellant, Johnny M. Burroughs.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee.
The appellant, Johnny M. Burroughs, was indicted in July of 2003 by the Dickson County Grand Jury along with two other co-defendants on charges of first degree murder, conspiracy to commit first degree murder, especially aggravated robbery, conspiracy to commit especially aggravatedrobbery, theft of property over one thousand dollars and conspiracy to commit theft of property. At the conclusion of the State's proof, the State elected not to proceed on the charges of conspiracy to commit especially aggravated robbery and conspiracy to commit theft. As a result, the trial court granted a motion for judgment of acquittal on those charges. The jury subsequently returned a verdict of guilt for felony murder, especially aggravated robbery and theft of property over one thousand dollars. The jury sentenced the appellant to life in prison for the felony murder. The trial court sentenced the appellant to twenty years for the especially aggravated robbery conviction and two years for the theft of property conviction, to be served concurrently to the appellant's life sentence. The appellant filed a motion for new trial, which the trial court denied. On appeal, the appellant argues that the evidence was insufficient to support the felony murder and especially aggravated robbery convictions and that double jeopardy prohibits the appellant's conviction for especially aggravated robbery after the trial court granted the judgment of acquittal on the charge of conspiracy to commit especially aggravated robbery. For the following reasons, we affirm the judgment of the trial court.
STATE OF TENNESSEE v. ALBERT FREEMAN COX
A. Philip Lomonaco, Knoxville, Tennessee, for the Appellant, Albert Freeman Cox.
Paul G. Summers, Attorney General & Reporter; David E. Coenen, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and John Halstead and Andrea A. Kline, Assistant
District Attorneys General, for the Appellee, State of Tennessee.
The defendant, Albert Freeman Cox, appeals from the Knox County Criminal Court's order
affirming the Knox County General Sessions Court's revocation of his 2004 probation for
driving under the influence (DUI). The record supports the order of revocation, and we affirm
the criminal court's order.
Corrected Case; case originally filed 3/8/2006
THADDEUS DANIEL V. STATE OF TENNESSEE, WAYNE BRANDON, WARDEN
Thaddeus Daniel, Pro Se, Only, Tennessee.
Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General, for the appellee, State of Tennessee.
This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition, the petitioner alleges that Tennessee's habeas corpus statute and certain provisions of the Tennessee Constitution violate the ex post facto prohibition of the United States Constitution. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition without a hearing andthat this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.
WILLIAM RHEA JACKSON v. STATE OF TENNESSEE
Charles E. Walker, Nashville, Tennessee, for the Appellant, William Rhea Jackson.
Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Amy H. Eisenbeck, Assistant District Attorney General, for the Appellee, State of Tennessee.
A Davidson County jury convicted the Petitioner, William Rhea Jackson, of robbery, rape, aggravated burglary, attempted rape, aggravated kidnapping, and misdemeanor theft. This Court affirmed the convictions on direct appeal, and the Tennessee Supreme Court denied review. The Petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed after a hearing. The Petitioner appeals, contending that his trial counsel rendered ineffective assistance of counsel. After thoroughly reviewing the record and the applicable law, we conclude that there exists no reversible error. Accordingly, we affirm the judgment of the post-conviction court.
GERALD E. JOHNSON v. STATE OF TENNESSEE
Charles E. Walker, Nashville, Tennessee, for the Petitioner, Gerald E. Johnson.
Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.
Pursuant to a plea agreement, the Petitioner, Gerald E. Johnson, pled guilty to one count of possession with intent to sell or deliver under 0.5 grams of cocaine. The trial court sentenced the Petitioner to seven years as a Range II, multiple offender. The Petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed after a hearing. The Petitioner appeals, contending that his trial counsel rendered ineffective assistance of counsel. After thoroughly reviewing the record and the applicable law, we conclude that there exists no reversible error. Accordingly, we affirm the judgment of the post-conviction court.
STATE OF TENNESSEE v. DALE RAY MILLS
Amber D. Haas, Sevierville, Tennessee, for the appellant, Dale Ray Mills.
Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.
Following a jury trial, Defendant, Dale Ray Mills, was convicted of simple possession of marijuana,
a Class A misdemeanor. The trial court sentenced him to eleven months, twenty-nine days but
suspended all but 150 days of Defendant's sentence and placed him on probation. On appeal,
Defendant argues (1) that the evidence is insufficient to support the conviction and (2) that the trial
court erred by considering inappropriate sentencing enhancement factors and by denying Defendant's
request for full probation. After a review of the record, we affirm the judgment of the trial court.
STATE OF TENNESSEE v. MATHEW SCOTT PURVIANCE
Patricia A. Rust, Clarksville, Tennessee, for the appellant, Mathew Scott Purviance.
Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.
The defendant, Mathew Scott Purviance, was tried and convicted by a Montgomery County jury of two counts of attempted robbery (a Class D felony); two counts of reckless endangerment (a Class A misdemeanor); joyriding (a Class A misdemeanor); and criminal attempt to commit aggravated criminal trespassing (a Class B misdemeanor). He received a total effective sentence of three years and six months, to be served on probation. Additionally, the trial court denied the defendant's request for judicial diversion and imposed fines totaling $18,000, the maximum for each of the six conviction offenses. On direct appeal to this court, the defendant challenges the denial of judicial diversion; the application of enhancement factor (4) to his convictions for attempted robbery and reckless endangerment; and the trial court's imposition of fines. Upon thorough review, we conclude that the enhancement factor was applied in error and that the trial court failed to articulate its reasoning for the imposed fines and the denial of judicial diversion on the record. Therefore, we modify the defendant's sentences on Counts Two and Three to the presumptive minimums and remand the matter to the trial court for further proceedings consistent with this opinion.
REESE L. SMITH v. STATE OF TENNESSEE
Reese L. Smith, Pro Se.
Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.
This is an appeal as of right from denial of post-conviction relief. Upon entry of a guilty plea, the Petitioner, Reese L. Smith, was convicted of one count of impersonating a licenced professional, to wit: an attorney. See Tenn. Code Ann. Sec. 39-16-302. Pursuant to a plea agreement, the Petitioner was sentenced to a term of eighteen months to be served on probation. The Petitioner filed a petition for post-conviction relief. Following an evidentiary hearing, he was denied relief. The Petitioner now appeals the denial of post-conviction relief, arguing several issues, all of which we are unable to address because the claims are either not proper issues for a post-conviction proceeding, not properly preserved for review, or not reviewable due to an inadequate record. We affirm the judgment of the trial court.
STATE OF TENNESSEE v. CLAY B. SULLIVAN
Charles E. Walker, Nashville, Tennessee, for the appellant, Clay B. Sullivan.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and James H. Todd, Assistant District Attorney General, for the appellee, State of Tennessee.
The defendant, Clay B. Sullivan, was convicted by a Davidson County jury of especially aggravated robbery (a Class A felony); attempted second degree murder (a Class B felony); and facilitation of attempted voluntary manslaughter (a Class E felony). He received concurrent sentences of twenty-two years, ten years, and two years for the offenses, respectively, for a total effective sentence of twenty-two years. Upon subsequent motion, the defendant's twenty-two-year sentence was reduced to twenty years, based upon the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The defendant now appeals to this court, challenging the sufficiency of the evidence, the trial court's denial of the motion for acquittal, and its failure to apply mitigating factors in sentencing. Additionally, the State requests that the original sentence be reinstated pursuant to our supreme court's holding in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005). Upon thorough review, we affirm the convictions and reinstate the original sentence imposed for especially aggravated robbery.
STATE OF TENNESSEE v. SHARFYNE L'NELL WHITE
Roger E. Nell, District Public Defender, Clarksville, Tennessee, for the appellant, Sharfyne L'Nell White.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; John Carney, District Attorney General; and Helen Young and Angie Dalton, Assistant District Attorneys General, for the appellee, State of Tennessee.
The defendant pled guilty to four counts of aggravated robbery and two counts of vehicular homicide by creating a substantial risk of death or serious bodily injury. The trial court sentenced the defendant to an effective sentence of thirty-three years as a Range I offender. Case numbers 549 and 5501 involved two aggravated robbery convictions with sentences of nine years and six months to be served concurrently. Case number 541 involved one conviction of aggravated robbery with a sentence of nine years and six months. Case number 543 involved one conviction for aggravated robbery, Count 1, with a sentence of nine years and six months and two convictions for vehicular homicide, Counts 6 and 7, with sentences of four years and six months to be served concurrently. Case numbers 549 and 550 were ordered served concurrently, as were Counts 6 and 7 of 543, because this was part of the defendant's plea agreement. The trial court ordered Case number 541 to be served consecutively to the concurrent sentences in Case numbers 549 and 550. Then the trial court ordered Count 1 of Case number 543 to be served consecutively to Case number 541. Finally, the trial court ordered Counts 6 and 7, which were being served concurrently, to be served consecutively to Count 1 of Case number 543. The defendant appeals the trial court's judgments arguing that the trial court erred in setting the length of sentence and in ordering the consecutive service of the sentences. We affirm the judgments of the trial court.
| Legal News
TennBarU CLE Programs
|Third candidate in running for Supreme Court post
|Court of Criminal Appeals Judge J.C. McLin of Memphis has added his name to the list of candidates hoping to fill one of the two openings on the Tennessee Supreme Court. A University of Tennessee law grad, McLin has been an appellate court judge since his 2004. Court of Criminal Appeals Judge Gary R. Wade of Sevierville and J. Houston Gordon of Covington have already applied for consideration.
|Judge OK's release of juror names
|A federal judge agreed Tuesday to release the names of jurors who reached a verdict on some charges and deadlocked on others against two Newport lawmen accused of shaking down Hispanic motorists for cash.
|Read the News Sentinel's account
|Register online now for 125th Annual TBA Convention
|Join your colleagues from the Tennessee legal community at the state's largest and longest running gathering: the annual Tennessee Bar Association convention. This year's event will be in Memphis, June 14-17 at the Peabody Hotel. The event will again be held in conjunction with gatherings of the Tennessee Judicial Conference, the Tennessee Trial Lawyers Association and the Tennessee Lawyers' Association for Women.
|Register or find out more now
|Former Memphian in line for Ag. counsel post
|Former Memphian Marc L. Kesselman is expected to go before the full Senate later this week to be confirmed as general counsel for the U.S. Department of Agriculture.
|Read the Commercial Appeal story
|Rule changes go into effect July 1
|The General Assembly has now ratified amendments and revisions to Tennessee Rules of Civil Procedure, Rules of Appellate Procedure, Rules of Evidence, Rules of Criminal Procedure and Rules of Juvenile Procedure. The changes take effect July 1.
|Review all of the changes here
|Bill would let FBI do firearm background checks
|Background checks on firearm purchases in Tennessee would be performed by the FBI instead of the Tennessee Bureau of Investigation under legislation headed for a vote in the state Senate. Sponsors say the bill could save the state $2.1 million, but a TBI official says her agency conducts more thorough searches.
|Read the Tennessean's story
|Track legislation of interest to Tennessee attorneys
|The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
|TBA Bill Tracking Service
|Attorneys reinstated following administrative suspension
|The law licenses of Craig J. Donaldson and Kimberly Dawn Rhoton have been reinstated. To view a list of all attorneys suspended and reinstated for failing to pay annual registration fees
|TennBarU CLE Programs
|What every lawyer needs to know about immigration law
|Lawyers in nearly all types of practices can face immigration issues in today's climate. A new course from TennBarU® offers basic information on immigration issues as they apply to domestic relations, criminal law, civil rights isues, employment and more. Coming March 31 to Memphis and May 3 to Knoxville.
|Register or find out more