Lawyers' role key in judicial elections, Wilks says

TBA Today has carried several stories in the past week about groups mounting challenges to specific candidates and efforts to encourage partisan or special interest block voting. "The closer we get to election time the more vigilant lawyers will have to be in looking for efforts to mislead voters in judicial elections," TBA president Larry Wilks said today.

The organized bar has taken several actions intended to foster healthy judicial elections including implementation of a policy to respond to unjust criticism of judges, support for the official judicial evaluation process, encouraging judges to subscribe to the Fair Judicial Campaign Code of Conduct and conducting local bar polls informing the public on the measured views of lawyers.

"Individual lawyers also have a duty to talk with their friends, neighbors and acquaintances about the best way to judge judges" Wilks said. The TBA will respond to press queries and will continue to carry stories about the challenges that the judicial system faces as early voting begins and the Aug. 3 election approaches. Read accounts of judicial attacks in the Chattanooga Times Free Press and Knoxville News Sentinel.
TODAY'S OPINIONS
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Editor-in-Chief, TBALink

MARJORIE M. KIRKPATRICK v. ROBERT W. O'NEAL

Court: TSC

Attorneys:

Mitchell A. Byrd, Chattanooga, Tennessee, for the Appellant Robert W. O'Neal.

Robert P. Rayburn, Chattanooga, Tennessee, for the Appellee Marjorie M. Kirkpatrick.

Judge: CLARK

We took this case to address whether the child support obligation of a non-residential parent continues after the death of a residential parent when custody is awarded to another party. We conclude that a non-residential parent's obligation to support a minor child continues until the child reaches majority, no matter who retains custody of the child. The duty of support is owed to the child and may be paid to a custodian on behalf of that child. Because parents owe child support regardless of the existence of a court order to that effect, third party custodians are entitled to retroactive child support from the date a child is legally placed in their custody. This action is affirmed as modified and remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/Kirkpatrickm_071006.pdf


DIANE JORDAN, ET AL. v. KNOX COUNTY, TENNESSEE, ET AL.

Court: TSC

http://www.tba2.org/tba_files/TSC/2006/knoxcounty_071006.pdf


GARY A. PRICE V. TIPTON STEEL ERECTORS, INC., and LEGION INSURANCE COMPANY

Court: TWCA

Attorneys:

Herbert A. Thornbury of Chattanooga, Tennessee, for Appellant, Gary A. Price.

L. Hale Hamilton and Neil A. Brunetz, Chattanooga, Tennessee, for Appellees, Tipton Steel Erectors, Inc. and Legion Insurance Company.

Judge: FRIERSON

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded plaintiff thirty (30) weeks of permanent disability for the loss of his right, great toe. On appeal, the employee contends that his injury was not limited to the scheduled member but that he is entitled to an award of permanent, partial vocational disability to the body as a whole. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2006/priceg_071006.pdf


JAMES L. FERGUSON, ET AL. v. JOHN F. JENKINS
Corrected Case


Court: TCA

Attorneys:

K. Jeff Luethke, Kingsport, Tennessee, for the appellant, Consumers Insurance Company.

Robert J. Jessee, Johnson City, Tennessee, for the appellees, James L. Ferguson and wife, Jamie Ferguson

Judge: SUSANO

James L. Ferguson (the plaintiff) and his wife, Jamie Ferguson, filed suit against John F. Jenkins (the tortfeasor) to recover damages for personal injuries sustained by the plaintiff when the motorcycle he was operating was struck by the tortfeasor's vehicle. The plaintiff caused process to be served upon Consumers Insurance Company (Consumers), on the theory that the policy of automobile insurance issued to him by Consumers afforded him uninsured motorist coverage for the subject accident. Following the plaintiff's settlement with the tortfeasor, Consumers filed a motion for summary judgment, contending that the plaintiff's motorcycle was owned by him for his personal use, and, as such, was not covered by his policy with Consumers, which only covered vehicles owned by, and intended to be resold by, the plaintiff's used vehicle dealership. The trial court denied Consumers' motion, and the case proceeded to trial. At the conclusion of a bench trial, the court held that the plaintiff was entitled to coverage under the uninsured motorist provisions of the Consumers policy. The court determined, inter alia, that the motorcycle the plaintiff was driving was a "covered auto" intended for resale. Consumers appeals, arguing that this holding is in error. We affirm.

This opinion was originally released on March 28, 2006. The correction is on page 1.

http://www.tba2.org/tba_files/TCA/2006/fergusonj_corr071006.pdf


ORLANDO RESIDENCE, LTD. v. NASHVILLE LODGING COMPANY, ET AL.

Court: TCA

Attorneys:

Kenneth E. Nelson, Pro Se.

Eugene N. Bulso, Jr. and Melissa Ballengee Alexander, Nashville, Tennessee, for the appellee, Orlando Residence, Ltd.

Judge: FARMER

Appellant Kenneth Nelson ("Mr. Nelson") raises numerous issues on appeal. However, for the reasons stated below, we only address the issue of whether the trial court erred in dismissing Mr. Nelson's statute of limitations defense. We affirm.

http://www.tba2.org/tba_files/TCA/2006/OrlandoResidence_071006.pdf


STATE OF TENNESSEE v. ISAIAH BURTON, JR.

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee (on appeal); Frank McLeod, Nashville, Tennessee (at trial), for the appellant, Isaiah Burton, Jr.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Bernard McEvoy, Assistant District Attorney General; and Diona Layden, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a bench trial, Defendant, Isaiah Burton, Jr., was convicted of three counts of aggravated sexual battery and two counts of rape of a child. Defendant was sentenced to nine (9) years for each aggravated sexual battery conviction and twenty (20) years for each conviction for rape of a child. The sentence in Count 13 (rape of a child, twenty (20) years) was ordered to be served consecutively to the sentence in Count 18 (rape of a child, twenty (20) years). The sentences for the aggravated sexual battery conviction were structured to, in effect, run concurrently with the sentence for the rape of a child convictions, for a total effective sentence of forty (40) years. On appeal, Defendant argues (1) the evidence was insufficient to sustain the conviction of aggravated sexual battery under count two; (2) the evidence was insufficient to sustain the conviction of rape of a child under count thirteen; (3) the evidence was insufficient as to sustain the conviction of rape of a child under count eighteen; (4) the trial court erred in overruling Defendant's motion to suppress Defendant's statement; (5) the trial court erred in overruling Defendant's motion for a continuance filed on October 18, 2004; (6) the trial court erred by overruling Defendant's renewed motion for a continuance on October 25, 2004; (7) the trial court erred in overruling Defendant's motion for an independent psychological evaluation of the victims; and (8) the trial court erred in overruling Defendant's motion for judgment of acquittal with respect to the two rape of a child charges. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/BurtonIsaiah_071006.pdf


STATE OF TENNESSEE v. LARRY EUGENE CULPEPPER

Court: TCCA

Attorneys:

Jennifer Lynn Thompson, Nashville, Tennessee, for the appellant, Larry Eugene Culpepper.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Christi Thompson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Larry Eugene Culpepper, was indicted on one count of rape of a child, a Class A felony. Following a jury trial, the jury found Defendant not guilty of the charged offense and guilty of the lesser included offense of aggravated sexual battery, a Class B felony. In his appeal, Defendant argues that (1) the evidence was not sufficient to support his conviction; (2) the trial court erred in finding that the victim was competent to testify as a witness; (3) the trial court erred by conducting a bifurcated proceeding during which enhancement factors were submitted to the jury for its determination; and (4) that the trial court erred in sentencing the Defendant to more than the minimum sentence for a Class B felony. After review, we affirm Defendant's conviction of aggravated sexual battery. Although the trial court erred in conducting a bifurcated sentencing hearing, we conclude that such error was harmless error beyond a reasonable doubt, and also affirm the trial court's judgment of sentencing.

http://www.tba2.org/tba_files/TCCA/2006/CulpepperL_071006.pdf


STATE OF TENNESSEE v. JAMES E. FENTON, JR. A/K/A CHRIS FENTON

Court: TCCA

Attorneys:

Danny J. Baxter, Nashville, Tennessee, for the appellant, James E. Fenton, Jr.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson and Rachel Sobrero, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, James Fenton, was convicted of especially aggravated robbery. The trial court imposed a sentence of twenty years. In this appeal, the defendant asserts (1) that the trial court erred by disallowing questions about the number of times the victim had previously been robbed; (2) that the evidence was insufficient to support the conviction; (3) that the trial court erred by denying his motion for judgment of acquittal; (4) that the trial court failed to appropriately exercise its role as thirteenth juror; and (5) that the trial court erred by failing to consider as a mitigating factor the defendant's lack of education. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/FentonJames_071006.pdf


STATE OF TENNESSEE v. STEVEN CRAIG FULTS STATE OF TENNESSEE v. STEVEN CRAIG FULTS

Court: TCCA

Attorneys:

Guy R. Dotson, Sr., and Guy R. Dotson, Jr., Murfreesboro, Tennessee, for the appellant, Steven Craig Fults.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Laural Nutt, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Steven Craig Fults, was convicted of five counts of rape, a Class B felony, twelve counts of sexual battery by an authority figure, a Class C felony, and seven counts of statutory rape, a Class E felony. At the conclusion of a sentencing hearing, the trial court sentenced Defendant to nine years for each rape conviction, three years for each sexual battery by an authority figure conviction, and one year for each statutory rape conviction. The trial court ordered Defendant to serve (1) all of his sentences for the rape convictions consecutively to each other; (2) all of his sentences for his sexual battery by an authority figure convictions consecutively to each other but concurrently to his sentences for rape; and (3) all of his sentences for his statutory rape convictions consecutively to each other, but concurrently to his sentences for rape, for an effective sentence of forty-five years. In his appeal, Defendant argues (1) that the trial court erred in allowing the State to amend the indictment prior to trial; (2) that the evidence was insufficient to support his convictions; and (3) that the trial count erred in imposing consecutive sentencing. Defendant does not challenge the length of his sentences or the trial court's application of enhancement factors. After a thorough review of the record, we conclude that the evidence is sufficient to support Defendant's convictions of rape (counts one through five) and statutory rape (counts thirty-one through thirty-seven). We further conclude, however, that Defendant's separate convictions for sexual battery by an authority figure in counts twenty-seven through twenty nine, and counts thirty-one through thirty-seven violate double jeopardy principles. We accordingly merge Defendant's convictions of sexual battery by an authority figure in counts twenty-seven through twenty-nine into his convictions of rape in counts two through four, and his convictions of statutory rape in counts eleven through seventeen into his sexual battery by an authority figure convictions in counts thirty-one through thirty-seven. We otherwise affirm the judgments of the trial court, including the imposition of consecutive sentencing. Thus, the total sentence remains at the effective sentence of forty-five years imposed by the trial court.

http://www.tba2.org/tba_files/TCCA/2006/FultsStevenCraig_071006.pdf


STATE OF TENNESSEE v. JENNIFER ANN HARGROVE AND THOMAS DAVID GAMBRELL

Court: TCCA

Attorneys:

Peter D. Heil, Nashville, Tennessee, (on appeal); and Thomas T. Overton, Nashville, Tennessee (at trial and on appeal); for the appellant, Thomas David Gambrell; Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender, (on appeal); Laura Dykes, Assistant Public Defender, (at trial); and Laura Getz, Assistant Public Defender, (at trial), Nashville, Tennessee, for the appellant, Jennifer Ann Hargrove.

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

Defendant, Jennifer Ann Hargrove, entered a best interest plea to attempted aggravated child abuse. Defendant, Thomas David Gambrell, entered a guilty plea to attempted aggravated child neglect Each agreement included an eight year sentence agreed to by the State and each Defendant, with the manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the trial court sentenced Defendant Gambrell and Defendant Hargrove as Range I, standard offenders, and ordered both Defendants to serve eight (8) years in the Department of Correction. The trial court denied split confinement as set forth in Tennessee Code Annotated Section 40-35-306 (2003). On appeal, pursuant to Tennessee Code Annotated Section 40-35-103(1)(A)-(C) (2003), both Defendants challenge the trial court's denial of split confinement. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/GambrellT_071006.pdf


STATE OF TENNESSEE v. MATTHEW MELTON JACKSON

Court: TCCA

Attorneys:

Emma Rae Tennent, Assistant Public Defender, Nashville, Tennessee, for the appellant, Matthew Melton Jackson.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Matthew Melton Jackson, pled guilty to two counts of aggravated robbery and received an effective eight-year sentence in the Department of Correction. As part of his plea, the Defendant explicitly reserved, with the consent of the trial court and the State, a certified question of law: whether the Defendant was denied his federal and state constitutional rights to a speedy trial. After review, we affirm the judgment of the Davidson County Criminal Court denying the Defendant's motion to dismiss the indictment based on unnecessary delay.

http://www.tba2.org/tba_files/TCCA/2006/JacksonMatthew_071006.pdf


STATE OF TENNESSEE v. JOHN C. KERSEY

Court: TCCA

Attorneys:

John C. Kersey, Smyrna, Tennessee, Pro Se.

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

Judge: WOODALL

Defendant, John C. Kersey, was issued a citation for speeding and found guilty in the Rutherford County General Sessions Court. On appeal to the circuit court, the trial court, sitting without a jury, found Defendant guilty of violating Tennessee Code Annotated Section 55-8-152, a Class C misdemeanor, and ordered Defendant to pay a fine of $25.00 and court costs. In his appeal, Defendant argues that (1) the evidence is insufficient to support his conviction under the facts presented in this case; (2) the trial court erred in ruling the dispatcher’s tape inadmissible under relevancy grounds; and (3) the trial court erred in not issuing a bench warrant for the arrest of Deputy Jonathan Stephens as requested by Defendant. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/KerseyJohnC_071006.pdf


GERALD W. McCULLOUGH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John H. Dickey, Fayetteville, Tennessee, for the Appellant, Gerald W. McCullough.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles and Ann Filer, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WITT

The Bedford County Circuit Court, following a hearing, dismissed the post-conviction petition filed by Gerald W. McCullough, the petitioner, by which he had attacked his 1999 Bedford County jury conviction of aggravated sexual battery. In his appeal from the denial of post-conviction relief, the petitioner claims that his trial counsel rendered ineffective assistance by failing to take steps to challenge the state's use of evidence that showed instances of uncharged sexual misconduct of the petitioner and failing to preserve the record on this issue. We affirm the order of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/McCulloughG_071006.pdf


STATE OF TENNESSEE v. DENNIS ALLEN ROLLISON

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender, and Russel A. Church, Assistant Public Defender, for the appellant, Dennis Allen Rollison.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Dennis Allen Rollison, was convicted by a Montgomery County Criminal Court jury of sexual battery, a Class E felony, and was sentenced to one year to be served on probation. He appeals, claiming that the evidence is insufficient because it fails to show he touched the victim inappropriately. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/rollisondennis_071006.pdf


STATE OF TENNESSEE v. JAMES A. STOKES

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, James A. Stokes.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Katrin Miller, Assistant District Attorney General; and Christopher Buford, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant was indicted for the first degree premeditated murder of Danquel R. Batey. Following a jury trial, Defendant was found guilty of the lesser included offense of voluntary manslaughter, a Class C felony. The trial court sentenced Defendant as a Range II, multiple offender, to ten years confinement. In his appeal, Defendant challenges the sufficiency of the convicting evidence and the length of his sentence. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/StokesJamesa_071006.pdf


WILLIAM B. THURLBY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul G. Whetstone, Mosheim, Tennessee, for the appellant, William B. Thurlby.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, William B. Thurlby, appeals the dismissal of his petition for post-conviction relief, arguing ineffective assistance of both pre-arrest and trial counsel, the State withheld evidence and failed to make an election of offenses, his due process rights were violated, and the cumulative effect of the various errors resulted in the denial of his right to a fair trial. Following our review, we affirm the dismissal of the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2006/ThurlbyWilliam_071006.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Top court to hear appeal on Knox Charter case
The Tennessee Supreme Court has agreed to reach down and hear an appeal on the validity of Knox County's Charter, but it will not take up the case before the Aug. 3 election. The court set deadlines for briefs to be filed and scheduled oral arguments for Sept. 6 in Knoxville.
Read the full order
12 file for criminal court post
The list of candidates to fill the vacant Court of Criminal Appeals seat created by the appointment of Judge Gary R. Wade to the Tennessee Supreme Court stretched to 12 by today's deadline. Here are the applicants: Paula Voss, assistant federal community defender, Knoxville; attorney Douglas A. Trant, Knoxville; Circuit Court Judge Dea Kelly Thomas Jr., 5th Judicial District, Maryville; Circuit Court Judge William Neil Thomas, III, 11th Judicial District, Lookout Mountain; Criminal Court Judge E. Shayne Sexton, 8th Judicial District, Jacksboro; attorney William Louis Ricker, Greeneville; Assistant U.S. Attorney, Eastern Division, Perry H. Piper, Signal Mountain; attorney Hugh J. Moore Jr., Chattanooga; prosecutor William Brownlow Marsh, Maryville; attorney G. Scott Green, Knoxville; attorney Charles Leland "Lee" Davis, Signal Mountain; and attorney Clifton Leland Corker, Kingsport.

Court rules on child support obligations
The state Supreme Court ruled today that a noncustodial parent still has child support obligations when a youngster is placed in the custody of a third party. Read the full opinion
Read the Knoxville News Sentinel story
Appeals court critical of sentencing
Using the case of a convicted Knoxville killer as a backdrop, the 6th U.S. Circuit Court of Appeals is warning federal judges to do a better job of justifying their sentencing decisions or face a nasty reversal on their appellate record, the Knoxville News Sentinel reports.
Read the full story
Attorneys General reach pack with cigarette maker over internet sales
Tennessee has joined 33 other states in an agreement with Lorillard Tobacco Co. to reduce illegal cigarette sales over the Internet and mail. As part of the agreement the company will end cigarette shipments to customers engaging in illegal Internet and/or mail orders, reduce the amount of orders to customers that the Attorneys General determine to be engaged in illegal re-sales to Internet vendors, and suspend from company incentive programs any retailer found to be engaging in illegal sales.
Read the AG press release
Jasper attorney in running for AG post
Jasper attorney William Charles "Bill" Killian is the first person to officially apply to be Tennessee's next attorney general. Applications must be received at the Administrative Office of the Courts by the end of the business day July 17. The next attorney general will succeed Paul Summers, who announced in April he would not seek reappointment when his term ends Aug. 31.
Find out more about the application process
TJC names new members to board
The Tennessee Justice Center has elected four new members to its board, the City Paper reports. They include Gregg Ramos, a partner with Nashville-based North, Pursell, Ramos & Jameson; Dr. Dwight Montgomery, a pastor of the Annesdale Cherokee Baptist Church in West Tennessee; and Dr. Robert F. Miller, a Nashville-based physician and assistant professor at Vanderbilt University Medical School. Nashville attorney David Esquivel of Bass Berry & Sims joined the board in April.

Watch for IOLTA grant applications
Application forms for grants to be paid during 2007 from the Tennessee IOLTA (Interest On Lawyers' Trust Accounts) program will be available July 24 on the Tennessee Bar Foundation web site. Completed applications must be returned by Sept. 1. For information, contact the TBF at info@tnbarfoundation.org or 800-634-2516.
Visit the Bar Foundation web site
TBA Member Services
New edition of Alimony Bench Book now available
The TBA Family Law Section has just released the 4th Edition of the Alimony Bench Book. This publication will be distributed to state court judges at next week's judicial conference and is available for purchase at the TBA's online bookstore or by calling 800-899-6993 or in Nashville at 383-7421.
Order online now

 
 
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