All appellate judges retained in yesterday's vote

Despite organized efforts to target the defeat of two members of the Tennessee Supreme Court and members of the intermediate appellate courts, all judges were returned to the bench by unprecedented margins. TBA President Larry Wilks pronounced himself "pleased, but not surprised" with the wisdom of Tennessee voters. "The election was not only an endorsement of the performance of the individual judges, but also a vote of confidence in the Tennessee Plan for merit selection, evaluation and retention of our appellate bench," said Wilks.

The campaigns by the Tennessee Medical Association, Tennessee Right to Life, TeamGOP and a Knoxville property rights group, as well as a voter guide put out by the Family Action Council of Tennessee appeared to have little if any effect on vote totals which approached 75 percent for retention. The TBA urged voters to consider the performance evaluation recommendations of the Tennessee Judicial Evaluation Commission set up under the Tennessee Plan when making their yes/no selections.

Meanwhile, the debate in several of the trial, general sessions and local judicial elections was also influenced by TBA's Fair Judicial Campaign Code of Conduct, which asked judges not to commit on how they might rule in specific cases.
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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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
Knoxville, Tennessee
Editor-in-Chief, TBALink

ROY RUSSELL v. THYSSEN KRUPP ELEVATOR MANUFACTURING,

Court: TWCA

Attorneys:

Gregory D. Jordan, Rainey, Kizer, Reviere, & Bell, Jackson, Tennessee, for the appellant, Thyssen Krupp Elevator Manufacturing, Inc.

Steve Taylor, Memphis, Tennessee, for the appellee, Roy Russell.

Judge: LOSER

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists the trial court erred in finding that the claimant gave proper notice of his injury, in finding the claimant suffered an injury by accident arising out of and in the course of his employment with the defendant and in awarding permanent partial disability benefits based on thirty percent to the body as a whole. The Panel has concluded the judgment of the trial court should be affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2006/russellr080406.pdf


IN THE MATTER OF K.E.R.

Court: TCA

Attorneys:

Liberty N. Lander-Dyer, Gallatin, Tennessee, for the appellant, A. A. H.

Paul G. Summers, Attorney General and Reporter, Elizabeth C. Driver, Assistant Attorney General; Jennifer L. Evans, Guardian ad Litem, Springfield, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

Judge: COTTRELL

The Department of Children's Services petitioned the trial court to terminate the parental rights of a mother whose child had tested positive for cocaine at birth. The court granted the petition, finding among other things that while the child was in foster care, the mother continued to use cocaine, had not successfully corrected the conditions that led the Department to assume custody of the child, and that termination was in the child's best interest. The mother appealed. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2006/ker080406.pdf


STATE OF TENNESSEE v. LONNA K. BREWER

Court: TCCA

Attorneys:

Susan V. Logan, Franklin, Tennessee, for the appellant, Lonna K. Brewer.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Kim R. Helper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Lonna K. Brewer, pled nolo contendere in the Williamson County Circuit Court to two counts of obtaining a controlled substance by fraud, a Class D felony. She received concurrent two-year sentences to be served as one day in jail and the remainder on supervised probation. On appeal, she contends that the trial court erred by denying her request for judicial diversion. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/brewerl080406.pdf


RICKY R. BRYAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Darrell L. Scarlett, Murfreesboro, Tennessee, for the Appellant, Ricky R. Bryan.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Ricky R. Bryan, appeals the judgment of the Rutherford County Circuit Court denying post-conviction relief. Bryan was convicted of first degree murder and subsequently sentenced to life in prison without the possibility of parole. On appeal, Bryan argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective for failing to introduce evidence of third party guilt in the homicide. After review, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/bryanr080406.pdf


RICKY BUTLER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee for the appellant, Ricky Butler.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Mike Bottoms, District Attorney General; and Larry Nickell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Ricky Butler, filed a petition to rehear in accordance with Rule 39 of the Tennessee Rules of Appellate Procedure on June 29, 2006, following the release of the opinion of this Court on June 27, 2006. The opinion of this Court dismissed the petitioner's appeal because the appellant's notice of appeal was filed outside the thirty day time limit.

The grant or denial of a petition to rehear remains solely in the discretion of this Court. However, Rule 39 of the Tennessee Rules of Appellate Procedure provides guidance as to the "character of reasons that will be considered" by the Court in making its determination. Such circumstances include the following: (1) the court's opinion incorrectly states the material facts established by the evidence and set forth in the record; (2) the court's opinion is in conflict with a statute, prior decision, or other principle of law; (3) the court's opinion overlooks or misapprehends a material fact or proposition of law; and (4) the court's opinion relies upon matters of fact or law upon which the parties have not been heard and that are open to reasonable dispute. See Tenn. R. App. P. 39(a); see also Advisory Comm'n Comments, Tenn. R. App. P. 39. A petition to rehear is intended to call attention of the Court to matters overlooked, not things which counsel supposes were improperly decided after full consideration. Clover Bottom Hosp. & Sch. v. Townsend, 513 S.W.2d 505, 508 (Tenn. 1974). Further, a petition for rehearing which merely reargues the appellant's original position will not be granted. New Jersey Zinc Co. v. Cole, 532 S.W.2d 246, 253 (Tenn. 1975); State v. Thomas Dillon, No. 03C01-9304-CR- 00124, 1994 WL 615748 (Tenn. Crim. App., at Knoxville, Nov. 7, 1994); see also Tenn. R. App. P. 39.

The appellant argues that this Court's dismissal of his appeal was incorrect because this Court granted a Motion to Accept Late Filed Notice of Appeal on July 15, 2005. We have reviewed our opinion and the record. Apparently missing from the Court's file in this case when it was originally given to the panel was indeed an order from this Court granting the appellant's request to file a late notice of appeal. Therefore, we will grant the appellant's petition to rehear and will address the appellant's issues on the merits.

http://www.tba2.org/tba_files/TCCA/2006/butlerr080406.pdf


JERRY D. CARNEY V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jerry D. Carney, Pro Se, Henning, Tennessee.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to dismiss or in the alternative 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 dismissing his petition for writ of error coram nobis in which the petitioner alleged that newly-discovered evidence mandated a new trial. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for coram nobis relief after a hearing and that 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.

http://www.tba2.org/tba_files/TCCA/2006/carneyj080406.pdf


DARRYL FORD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Darryl Ford, Pro Se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter and Preston Shipp, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Darryl Ford, proceeding pro se, appeals the Wayne County Circuit Court's summary dismissal of his petition for writ of habeas corpus. Because the petition fails to raise a cognizable claim for habeas corpus relief, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/fordd080406.pdf


PAUL L. HAWKINS and JAMES EARL LOFTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul L. Hawkins and James Earl Lofton, Pro Se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter; Leslie Price and Brian C. Johnson, Assistant Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellants, Paul L. Hawkins and James Earl Lofton, proceeding pro se, jointly appeal the Wayne County Circuit Court's summary dismissal of their separate petitions for writ of habeas corpus. Hawkins and Lofton were each found to be habitual criminals, and, as a result, are serving sentences of life imprisonment in the Department of Correction. On appeal, Hawkins and Lofton contend that their "habitual criminal convictions" are illegal and void because Tennessee's habitual criminal statute is unconstitutional in its application. After review, we affirm the trial court's summary dismissal of the petition finding the issue to be without merit.

http://www.tba2.org/tba_files/TCCA/2006/hawkinsp080406.pdf


STATE OF TENNESSEE v. BOBBY RAY JOHNSON

Court: TCCA

Attorneys:

Robert S. Peters, Winchester, Tennessee for the appellant, Bobby Ray Johnson.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Mikey Layne, District Attorney General; and Jason Ponder, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

In the latter half of 2001, the defendant, Bobby Ray Johnson, who was living in Coffee County, convinced his girlfriend to engage in fellatio on two occasions with the minor victim, while the defendant watched and videotaped the encounters. The defendant was indicted for two counts of rape of a child. The defendant was convicted on both counts by a Coffee County jury. The trial court sentenced the defendant to two consecutive sentences of twenty years each to be served at 100% as a child rapist. The defendant argues that there was insufficient evidence to support his conviction and that the trial court erred in ordering his sentences to be served consecutively. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/johnsonb080406.pdf


STATE OF TENNESSEE v. LUTHER MELVIN JOHNSON II

Court: TCCA

Attorneys:

Gary N. Lovellette, Cookeville, Tennessee, for the appellant, Luther Melvin Johnson II.

Paul G. Summers, Attorney General & Reporter; Leslie Price, Assistant Attorney General; William E. Gibson, District Attorney General; and Beth Willis, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WADE

The defendant, Luther Melvin Johnson II, who had been indicted for aggravated burglary, attempted theft, assault, and criminal impersonation, was convicted of criminal trespass, a Class C misdemeanor, which is a lesser included offense of aggravated burglary. See Tenn. Code Ann. Section 39-14-405 (2003). The trial court imposed a sentence of thirty days, allowing the defendant to serve his sentence on consecutive weekends. See Tenn. Code Ann. Section 40-35-302(d) (2003). In this appeal, the defendant alleges that the evidence is insufficient to support the conviction and that the trial court erred by failing to instruct the jury on the defenses of ignorance or mistake of fact and necessity. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/johnsonl080406.pdf


STATE OF TENNESSEE v. JOHNNY C. MENIFEE

Court: TCCA

Attorneys:

Claudia S. Jack, District Public Defender and Shipp R. Weems, Assistant Public Defender, Columbia, Tennessee, for the Appellant, Johnny C. Menifee.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Mike Bottoms, District Attorney General; and Daniel Runde, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Johnny C. Menifee, was convicted by a Maury County jury of Class D felony evading arrest with risk of injury, misdemeanor theft, Class E felony reckless endangerment with a deadly weapon, and resisting arrest following his involvement in a car theft and resulting police high-speed chase. Menifee was subsequently sentenced to an effective eighteen-year Department of Correction sentence. On appeal, Menifee raises two issues for review: (1) whether the evidence is sufficient to support his convictions; and (2) whether his dual convictions for felony evading arrest and felony reckless endangerment violate double jeopardy. Following review, we affirm the convictions.

http://www.tba2.org/tba_files/TCCA/2006/menifeej080406.pdf


MARCIE MURRAY V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Marcie A. Murray, Pro Se, Memphis, Tennessee.

Paul G. Summers, Attorney General & Reporter; David Edward Coenen, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to affirm the judgment of the habeas corpus court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has appealed the habeas corpus court's order summarily dismissing the petition for writ of habeas corpus. Upon a review of the record in this case, we are persuaded that the habeas corpus court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the habeas corpus court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/murraym080406.pdf


STATE OF TENNESSEE v. CHRISTOPHER NICHOLAS ORLANDO

Court: TCCA

Attorneys:

Kevin S. Latta and J. Hilton Conger, Smithville, Tennessee, for the Appellant, Christopher Nicholas Orlando.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William E. Gibson, District Attorney General; and William Locke, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Christopher Nicholas Orlando, was convicted by a DeKalb County jury of facilitation of first degree murder, a Class A felony, and sentenced as a Range II, multiple offender to thirty-five years in the Department of Correction. On appeal, Orlando raises the following issues for our review: (1) whether he was denied his fundamental right to a fair trial because the State failed to (a) disclose the terms of a plea agreement with a key witness and (b) preserve exculpatory evidence; and (2) whether he was sentenced in violation of Blakely v. Washington. After a review of the record, we affirm.

http://www.tba2.org/tba_files/TCCA/2006/orlandoc080406.pdf


STATE OF TENNESSEE v. LATONYA TAYLOR

Court: TCCA

Attorneys:

C. LeAnn Smith, Nashville, Tennessee, for the appellant, Latonya Taylor.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Angelita Dalton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Latonya Yvonne Taylor, was convicted by a Davidson County jury of aggravated robbery, especially aggravated kidnapping, and two counts of kidnapping. For these convictions, the Defendant received an effective twenty-three-year sentence in the Department of Correction. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the trial court erred in denying her motion to suppress her statement given to the police; (2) whether the trial court improperly limited the scope of the Defendant's mother's testimony; (3) whether the evidence is sufficient to support her conviction for especially aggravated kidnapping; and (4) whether the trial court erred by imposing consecutive sentences. After review, we find no error and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/taylorl080406.pdf


STATE OF TENNESSEE v. MICHAEL EUGENE WILKERSON

Court: TCCA

Attorneys:

L. Scott Grissom, Assistant Public Defender, for the appellant, Michael Eugene Wilkerson.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Dale Potter, District Attorney General; and Larry Bryant, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WADE

The defendant, Michael Eugene Wilkerson, pled guilty to the offense of escape, a Class E felony. See Tenn. Code Ann. Section 39-16-605(b)(2) (2003). The trial court imposed a Range II, four-year sentence to be served consecutively to a sentence of fifty-seven years for three prior drug possession offenses. See Tenn. Code Ann. Section 39-16-605(c). In this appeal, the defendant asserts that his sentence is excessive. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/wilkersonm080406.pdf


Home Rule Charter Amendments on Ballot

TN Attorney General Opinions

Date: 2006-08-02

Opinion Number: 06-124

http://www.tba2.org/tba_files/AG/2006/ag_06-124.pdf

Tenn Code Ann. Section 13-7-208 Protection of Nonconforming Billboard Sites

TN Attorney General Opinions

Date: 2006-08-03

Opinion Number: 06-125

http://www.tba2.org/tba_files/AG/2006/ag_06-125.pdf

TODAY'S NEWS

Election 2006
Legal News
TBA Member Services

Election 2006
View vote count for appellate judges
With results in from 96 percent of the state's precincts at press time, each judge on the Supreme Court, the Court of Appeals and the Court of Criminal Appeals won retention handily.
The Tennessean has the vote breakdown for each
Follow county and local judicial races
For information about contested judicial elections around the state, watch for results to be posted on the Division of Election's Web site. At press time, results were not available.
Monitor developments here
NAACP investigates voter intimidation claims
Working on behalf of the NAACP, Memphis lawyer Van Turner visited Sherwood Elementary yesterday to investigate claims of voter intimidation. He found several disabled voters who were not receiving proper assistance and a problem with provisional ballots, both of which were able to be resolved. If the voters allege they were intimidated, the NAACP said it would contact the U.S. Department of Justice to investigate.
Read the complete report at WMC-TV's Web site
Courts may overrule voters on term limits
A longtime elected official predicted a legal challenge if voters approve term limits for fee offices of Knox County. Trustee Mike Lowe maintains that state law created these offices (which collect fees for the county, such as property taxes and license plate fees) and does not allow for term limits.
Read more in the News Sentinel
FEC considers easing political ad rules
Just in time for the fall elections, government regulators are weighing whether to ease restrictions on when interest groups can run political ads. A proposal by the head of the Federal Election Commission would allow lobbying groups to air advertisements closer to an election. If approved, the move could unleash a flood of election ad spending and open a new legal battle over federal campaign finance law.
The Bristol Herald Courier has this AP report
Legal News
Judicial Selection Commission to meet next week
The Tennessee Judicial Selection Commission will convene for a specially called meeting on Tuesday, Aug. 8 at 1:30 p.m. The meeting will be held in the 6th floor conference room of the Adminstrative Office of the Courts.

Marchetti elected president of general counsels group
L. Gino Marchetti Jr., a partner in the Nashville-based law firm of Taylor, Pigue and Marchetti PLLC, was named president-elect of the International Association of Defense Counsel at the group's annual meeting in Rome, Italy. He will take office in July 2007 and serve for one year. Marchetti earned his law degree from the University of Tennessee College of Law in 1976.

Homeowners suing insurers after Katrina fight for a 'mass action'
Lawyers for hundreds of Mississippi homeowners who sued their insurance companies after Hurricane Katrina are fighting to keep the cases joined in a "mass action," the Associated Press reports. Richard "Dickie" Scruggs, a high-profile attorney whose firm represents about 3,000 Gulf Coast policyholders, says that consolidating hundreds of cases against the same insurer is the only way to ensure that justice is served. But lawyers for Allstate Property and Casualty Insurance Co. said a consolidated trial would "fester with confusion."
Read more at WMCTV.com
Commission OKs bond for justice complex
The Fayette County Commission has unanimously approved a $5 million bond issue to finance the remaining costs of constructing a new criminal justice complex, reports the Fayette County Review.

TBA Member Services
New TBA benefit: Lawyers professional liability insurance
The TBA is now offering TBA Member Insurance Solutions, administered by Clay & Land Insurance. The new program will provide TBA members a highly rated carrier, access to 25 other markets providing professional liability insurance, qualified and experienced agents and risk management seminars for CLE credit.

"Our recent survey of Tennessee attorneys showed that almost 50% of our members believe that lawyers' professional liability coverage is an important and valuable benefit," TBA Executive Director Allan Ramsaur said in announcing the new program. "This partnership is just another way for the TBA to further serve every lawyer every day."
Learn more about this program

 
 
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