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Friday, July 07, 2006

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7 attorneys now seeking Criminal Court seat

There are now seven applicants for the Court of Criminal Appeals Eastern section seat being vacated by Judge Gary Wade, who has been appointed to the Supreme Court. With the deadline for applicants set for July 10, the following attorneys have applied: Douglas Trant of Knoxville; Circuit Court Judge William Neil Thomas of Chattanooga; Circuit Court Judge Dea Kelly Thomas Jr. of Chattanooga; William Louis Ricker of Greenville; Assistant U.S. Attorney for the Eastern District of Tennessee Perry H. Piper of Chattanooga; Hugh J. Moore Jr. of Chattanooga; and Charles Leland "Lee" Davis of Chattanooga.

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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
00 - TN Court of Appeals
06 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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

PEGGY EADS v. GUIDEONE MUTUAL INSURANCE COMPANY, ET AL.

Court: TSC

Attorneys:

C. J. Barnett and Paul C. Peel, Memphis, Tennessee, for the Appellant, GuideOne Mutual Insurance Company.

George R. Garrison, Sevierville, Tennessee, for the Appellee, Peggy Eads.

Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, for the Appellee, Tennessee Department of Labor and Workforce Development, Workers' Compensation Division, Second Injury Fund.

Judge: ANDERSON

We granted review in this workers' compensation case to determine whether the trial court erred in awarding permanent total disability following an injury to the employee's leg where the employee had a pre-existing diabetes-related disability to the same leg. Having considered the record and applicable authority, we affirm the decision of the trial court awarding permanent total disability.

http://www.tba2.org/tba_files/TSC/2006/Eadsp_070706.pdf

KENNETH L. HURST, ET AL. v. LABOR READY

Court: TSC

Attorneys:

Gerald C. Wigger, Nashville, Tennessee, for the Appellant, Labor Ready.

James S. MacDonald, Knoxville, Tennessee, for the Appellee, Kenneth L. Hurst, deceased, by next friend, Crystal E. Cummings, for the use and benefit of decedent's two minor sons.

Judge: ANDERSON

We accepted this appeal prior to its review by the Special Workers' Compensation Appeals Panel to determine whether the evidence preponderates against the trial court's finding that the employee's death arose out of and in the course of his employment. The employee, a day laborer for a temporary labor business, was shot to death outside his employer's office while he was waiting to be paid. After reviewing the record and applicable authority, we conclude that the evidence does not preponderate against the trial court's findings. Accordingly, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TSC/2006/Hurstk_070706.pdf

BRENDA KAY EAGLE v . STATE OF TENNESSEE

Court: TCCA

Attorneys:

John H. Norton, III, Shelbyville, Tennessee, for the appellant, Brenda Kay Eagle.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Dale Potter, District Attorney General; and Tom Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Brenda Kay Eagle, was indicted in 2003 with manufacturing methamphetamine, manufacturing marijuana and possession of methamphetamine. The appellant entered a nolo contendere plea to manufacturing methamphetamine in return for the dismissal of the remaining charges. After a sentencing hearing, the trial court sentenced the appellant to a three-year sentence, ordering her to serve one hundred days of the sentence in the county jail and the remainder of the sentence on probation. The appellant filed a timely notice of appeal, challenging the trial court�s sentencing determination. Because the trial court properly sentenced the appellant, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/eagleb_070706.pdf

JULIUS E. GUNN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kevin D. Balkwill, Memphis, Tennessee, for the appellant, Julius E. Gunn.

Paul G. Summers, Attorney General & Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The petitioner, Julius E. Gunn, appeals the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner received the effective assistance of counsel at trial. The judgment is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/Gunnj_070706.pdf

STATE OF TENNESSEE v. GARY JONES

Court: TCCA

Attorneys:

John H. Henderson, District Public Defender, Franklin, Tennessee, for the appellant, Gary Jones.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General, Ronald L. Davis, District Attorney General; and Christina Goodson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Gary Jones, was found guilty of the delivery of more than 0.5 grams of cocaine, a Class B felony. Relying on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the trial court conducted a bifurcated sentencing hearing in which enhancement factors were submitted to the jury. The jury found that enhancement factor (3), Defendant was a leader in the commission of the offense, and enhancement factor (17), the offense was committed under circumstances under which the potential for bodily injury to a victim was great, were applicable. The trial court, in a separate proceeding outside the presence of the jury, found that enhancement factor (2), Defendant has a prior history of criminal convictions in addition to those necessary to establish the appropriate range, and enhancement factor (9), Defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community were appropriate considerations. Based upon the presence of four enhancement factors, the trial court sentenced Defendant to twelve years. In his appeal, Defendant argues that (1) the evidence is insufficient to support his conviction; (2) the trial court�s comments during Defendant's closing argument deprived Defendant of his right to a fair trial; (3) the fine assessed against Defendant was excessive; (4) the trial court erred in conducting a bifurcated sentencing hearing; and (5) the trial court erred in considering certain enhancement factors in determining the length of Defendant's sentence. After review, we affirm Defendant's conviction of the delivery of more than 0.5 grams of cocaine. Although the trial court erred in conducting a bifurcated sentencing hearing, we conclude that such error was harmless error, and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/Jonesg_070706.pdf

FRANKLIN LEDBETTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John H. Cameron, Jr.; Jasper, Tennessee, (on appeal); Philip Condra, District Public Defender; and Jeffrey Harmon, Assistant Public Defender, for the appellant, Franklin Ledbetter.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; James Michael Taylor, District Attorney General; Sherry Gouger; Assistant District Attorney; and Julia Oliver, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Petitioner, Franklin Ledbetter, was convicted of incest and rape of a child. For the rape of a child conviction, Petitioner was sentenced as a Range I offender and ordered to serve twenty-three years at one hundred percent. For the incest conviction, Petitioner was sentenced to eight years as a Range II, multiple offender. The sentences were ordered to be served concurrently, for an effective twenty-three year sentence. Petitioner was also fined fifty thousand ($50,000) dollars for the rape of a child conviction and ten thousand ($10,000) dollars for the incest conviction. On direct appeal, this Court affirmed those convictions. Petitioner then filed a petition for post-conviction relief which the trial court subsequently denied. In this appeal, Petitioner challenges the trial court�s denial of his petition for post-conviction relief arguing that his trial counsel provided ineffective assistance of counsel in that he (1) failed to properly prepare for trial, including failing to call witnesses, (2) failed to challenge the victim's credibility, and (3) failed to properly challenge the medical proof introduced at trial. The judgment is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/Ledbetterf_070706.pdf

LYNDA SUE LICHTGARN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lynda Sue Lichtgarn, Memphis, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; and Renee W. Turner, Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Lynda Sue Lichtgarn, pled guilty, on January 9, 1990, to two counts of premeditated first degree murder. She received two concurrent sentences of life imprisonment. The indictments and the judgments reflect that the offenses occurred on October 5, 1986. On January 8, 1993, Petitioner filed a petition for post-conviction relief and had the assistance of retained counsel. Following an evidentiary hearing, the trial court dismissed the post-conviction petition. No appeal was taken from this disposition of the case. On November 23, 2004, Petitioner filed, pro se, a "Petition to Vacate Set Aside or Correct Sentence" regarding the first degree murder judgments. The Circuit Court of Cheatham County dismissed the petition without an evidentiary hearing. Petitioner timely appealed, and the State has filed a motion for this Court to affirm pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. We grant the State�s motion, and accordingly affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/Lichtgarnl_070706.pdf

STATE OF TENNESSEE v. CHRISTOPHER DOUGLAS MILLER

Court: TCCA

Attorneys:

Kevin R. Bryant, Crossville, Tennessee, for the appellant, Christopher Douglas Miller.

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

Judge: TIPTON

The defendant, Christopher Douglas Miller, appeals the Cumberland County Criminal Court's revocation of his judicial diversion and imposition of a sentence for misdemeanor assault of 11 months, twenty-nine days in jail. He contends that the evidence fails to prove he committed the trespass that resulted in the revocation and that his sentence is excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/millercd_070706.pdf

Constitutionality of proposed legislation banning the distribution of sexual devices

TN Attorney General Opinions

Date: 2006-07-05

Opinion Number: 06-106

http://www.tba2.org/tba_files/AG/2006/OP106.pdf

Prohibition of law enforcement from videotaping or digitally recording a juvenile during an investigation of a delinquent act

TN Attorney General Opinions

Date: 2006-07-05

Opinion Number: 06-107

http://www.tba2.org/tba_files/AG/2006/OP107.pdf

TODAY'S NEWS

Election 2006
Legal News
BPR Actions
Online CLE
TBA Member Services

Election 2006

GOP group urges votes against judges

A grass-roots Republican group is calling for GOP voters across the state to vote out Democratic-appointed judges sitting on state appellate courts, including justices on the Tennessee Supreme Court, the Tennessean reports.

Knox Bar survey rates judges

More than one-fourth of lawyers responding to a Knoxville Bar Association poll released today rated Criminal Court Judge Ray Lee Jenkins as a "poor" judge, the Knoxville News Sentinel reports.

Read the Knoxville Bar poll results

Nashville Bar survey released

Members of the Nashville Bar Association weighed in on the only contested General Sessions judicial race on the Aug. 3 ballot, coming out in support of former District Attorney Angie Blackshear Dalton in a survey released Thursday.