Round up of candidates applying for court vacancies

The following attorneys have applied to fill the remaining vacant seat on the Tennessee Supreme Court. The deadline for applications was the close of business today. Applicants are: Circuit Court Judge D'Army Bailey of Memphis, Court of Appeals Judge Frank G. Clement Jr. of Nashville, Stephen A. Cobb of Nashville, David Day of Cookeville, Chancellor Richard Dinkins of Nashville, John T. Fowlkes Jr. of Memphis, J. Houston Gordon of Covington, Court of Appeals Judge William C. Koch Jr. of Nashville, George T. "Buck" Lewis of Memphis and Court of Criminal Appeals Judge J.C. McLin of Memphis. The Judicial Selection Commission will meet July 17 in Nashville to conduct public hearings and private interviews with the candidates.

The commission also received the first application for the Court of Criminal Appeals seat vacated by Judge Gary Wade. The application came from Douglas Trant, a Knoxville attorney. Applications for this position are due July 10.
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

With Dissenting Opinion

Court: TSC


Tony N. Brayton and Garland Erguden (on appeal) and William Johnson and Dianne Thackery (at trial), Shelby County Public Defender's Office, for the appellant, Leonard J. Young.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy Weirich and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: CLARK

Defendant, Leonard J. Young, was convicted by a jury of first degree premeditated murder, especially aggravated kidnapping, and theft over $1,000 but less than $10,000. See Tenn. Code Ann. Section 39-13-202(a)(1) (Supp. 1999), 39-13-305(a)(1) (1997), 39-14-103 (1997). The jury subsequently sentenced Defendant to death for the murder, applying three aggravating circumstances: (a) Defendant was previously convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; (b) the offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of Defendant or another; and (c) the murder was knowingly committed, solicited, directed, or aided by Defendant, while Defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, theft. See id. Section 39-13-204(i)(2), (6), (7) (Supp. 1999). The trial court sentenced Defendant as a career offender to sixty years for the especially aggravated kidnapping conviction and as a career offender to twelve years for the theft conviction. The trial court ordered all sentences to be served consecutively. The Court of Criminal Appeals affirmed the convictions 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 evidence was sufficient to establish venue in Shelby County; (2) the death in the immediate family of the original trial judge constituted an "other disability" under Tennessee Rule of Criminal Procedure 25(a) such that appointment of a substitute judge was proper; (3) the trial court committed harmless error in allowing into evidence several photographs of the victim as a child; (4) the evidence is sufficient to support Defendant's conviction of first degree premeditated murder; (5) the trial court committed harmless error in admitting certain victim impact evidence; (6) the trial court committed harmless error in instructing the jury that Defendant's 1999 Mississippi conviction of kidnapping was an offense, the statutory elements of which involve the use of violence to the person; and (7) 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 and attach as an appendix to this opinion the relevant portions of that court's decision. The judgment of the Court of Criminal Appeals is affirmed.

Dissenting Opinion

Appendix (excerpts from the Court of Criminal Appeals' decision)


Court: TCA


Scott J. Crosby, Memphis, Tennessee, attorney for Appellant, Chinon Developments, LLC.

Robert F. Miller and Nicole Gibson Davison, Memphis Tennessee, attorney for Appellee, Pan Am International Flight Academy, Inc. James R. Newsom III, Memphis, Tennessee, attorney for Appellees, Farmsworth Office Properties, LLC and Farnsworth Investment Company.

Judge: INMAN

This is an action for breach of contract to pay commissions for arranging a lease on commercial property. The brokerage firm insisted that Pam-Am, the tenant, maliciously induced the Landlord, not to pay additional commission. The Chancellor disagreed. We affirm the trial court.


Court: TCA


Ronald S. Range, Jr., Jennifer P. Keller, and David Harvey, Johnson City, Tennessee, for the appellant, NN, Inc. Ball & Roller Division.

D. Bruce Shine and Donald F. Mason, Jr., Kingsport, Tennessee, for the appellee, Edgar A. Rice.


Edgar A. Rice sued his former employer, NN, Inc. Ball & Roller Division, seeking a declaratory judgment that a contract exists between the parties or, in the alternative, that the defendant made a promise to the plaintiff which it is estopped to deny. Prior to his employment with NN, Inc., that company gave the plaintiff a document (the term sheet) that reflected what his starting salary would be and what fringe benefits he would be entitled to in the event he accepted the company's offer of employment. The plaintiff argues that the term sheet includes a promise to pay him a Profit Trust of $165,000 when he reaches the age of 65. The defendant counters that the Profit Trust language in the term sheet is only an estimate, not a contract or a promise to pay the plaintiff a fixed definite amount at age 65. On cross motions for summary judgment, the trial court granted summary judgment to the plaintiff, holding that he was entitled to $165,000 when he reached the age of 65. The defendant appeals. We reverse the grant of summary judgment to the plaintiff; grant summary judgment to the defendant; and dismiss the plaintiff's complaint.


Court: TCA


Joseph F. Della-Rodolfa, Knoxville, Tennessee, for the appellant, S.A.N.

Timothy A. Housholder, Knoxville, Tennessee, for the appellees, L.C. and her husband, K.C.

Paul G. Summers, Attorney General and Reporter, and Amy T. Master, Assistant Attorney General, for the intervenor, State of Tennessee.


The trial court terminated the parental rights of S.A.N. (Father) to his minor child, S.M.N. (DOB: April 21, 2001), upon finding, by clear and convincing evidence, (1) that Father abandoned the child and (2) that termination of Father's parental rights is in the child's best interest. Father appeals, arguing that Tenn. Code Ann. Section 36-1-113(f)(3) is unconstitutional in that it gives trial courts the discretion to determine whether a prisoner is entitled to be physically present in the courtroom during a proceeding involving the termination of the prisoner's parental rights. In addition, Father challenges the sufficiency of the pleadings and whether the evidence establishes abandonment. We affirm.


Court: TCA


Robert L. Trentham, Taylor B. Mayes, Nashville, Tennessee, for the appellant, Wesley Coker, M.D.

Larry D. Ashworth, Richard H. Batson II, Nashville, Tennessee, for the appellees, Gilbert Waters and wife, Hixie Waters.


Plaintiff in medical malpractice action appeals jury verdict alleging that the "dynamite charge" which supplemented the original instruction after the jury was apparently deadlocked violated Kersey v. State and its progeny. We agree and, because we find the instruction affected the result, we reverse.


Court: TCCA


Keith E. Haas, Newport, Tennessee, for the appellant, William Paul Arrowood.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; Timothy Arrants and James B. Dunn, Assistant District Attorneys General, for the appellee, State of Tennessee.


The Defendant was convicted for driving under the influence of an intoxicant (“DUI”), fourth offense, driving after having been declared a habitual motor offender, driving on a revoked license, and violation of the implied consent law. The trial court sentenced the Defendant as a Range I offender to four years in the Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to sustain his DUI conviction. Finding that there exists no reversible error, we affirm the judgments of the trial court.


Court: TCCA


Michael G. Hatmaker, Jacksboro, Tennessee, for the appellant, Fred Johnson.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; William Paul Phillips, District Attorney General; and Scarlett W. Ellis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Fred Johnson, was convicted by a Campbell County jury of five counts of sexual battery, a Class E felony, and five counts of aggravated sexual battery, a Class B felony. He was sentenced to one year for each sexual battery and eight years for each aggravated sexual battery. He received a total effective sentence of twenty-seven years, twenty-four years at 100% as a violent offender for the aggravated sexual battery counts and three years at 30% as a Range I, standard offender for the sexual battery counts. On appeal, he argues: (1) the trial court erred in failing to charge lesser-included offenses; (2) the jury did not understand or follow the charge of the trial court; and (3) the evidence was insufficient to support his convictions for aggravated sexual battery. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments to reflect that Counts 3 and 5 are consecutive to Counts 1 and 2.


Court: TCCA


G. Earl Patton, Crossville, Tennessee, for the appellant, Guadalupe S. Mendez.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William E. Gibson, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee.


The Petitioner, Guadalupe S. Mendez, appeals from the denial of his petition for post-conviction relief. The Petitioner was convicted of aggravated rape and especially aggravated sexual exploitation of a minor. On appeal, the Petitioner argues that he received ineffective assistance of counsel. After a review of the record, we affirm the post-conviction court's denial of post-conviction relief.


Court: TCCA


C. Douglas Field, Crossville, Tennessee for the appellant, Michael Salvatore Morani.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Bill Gibson, District Attorney General; and Thomas Tansil and Gary McKenzie, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: SMITH

The petitioner, Michael Salvatore Morani, was convicted by a jury of attempted first degree murder and theft of property over $10,000 in 2002. Trial counsel filed an untimely motion for new trial that was denied by the trial court after a hearing. The petitioner appealed to this Court. On direct appeal, the petitioner raised challenges to his sentence and the fines imposed by the trial court. The timeliness of the motion for new trial and subsequent notice of appeal were not addressed on appeal. This Court affirmed the judgment of the trial court. State v. Michael Salvatore Morani, No. E2002- 02394-CCA-R3-CD, 2003 WL 21946736 (Tenn. Crim. App., at Knoxville, Aug. 14, 2003), perm. app. denied (Tenn. Dec. 15, 2003). The petitioner subsequently filed a petition for post-conviction relief requesting a delayed appeal in which he alleged ineffective assistance of counsel for failing to file a timely motion for new trial. The post-conviction court granted the delayed appeal. The petitioner presents the following issues for our review: (1) whether the trial court improperly admitted statements made by the petitioner to the victim; (2) whether the trial court improperly allowed Investigator Potter to testify that the petitioner commented he had been “Mirandized before;” (3) whether the trial court improperly denied the petitioner’s request for a continuance; (4) whether the evidence was sufficient to support the verdict; and (5) whether the cumulative effect of the trial court’s errors entitles the petitioner to a new trial. After a review of the record and the issues, we affirm the judgment of the trial court.


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