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Tuesday, September 19, 2006

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Departing AG to join Waller firm in Nashville

Tennessee Attorney General Paul Summers will join the law firm of Waller Lansden Dortch & Davis in Nashville when he leaves office at the end of September. Summers, who has served as a private attorney, district attorney and as an appellate court judge in his career will work with clients on complex litigation, investigation and regulatory matters, the Tennessean reports. State court officials say Solicitor General Mike Moore will serve as acting attorney general until a replacement is selected by the Supreme Court. The court felt it would not be appropriate to appoint Deputy Attorney General Andy Bennett since he is one of the 14 applicants to replace Summers.

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

MARCIE BEGLEY v. STEPHEN B. WLODARZ

Court: TCA

Attorneys:

Stephen B. Wlodarz, Tiptonville, Tennessee, pro se Appellant.

Marcie Begley, Rogersville, Tennessee, pro se Appellee.

Judge: LEE

In this wrongful death action, the issue presented is whether an uncertified copy of the Defendant's guilty plea to murder is sufficient to support a grant of summary judgment to the Plaintiff. Marcie Begley's father, Gerald Gibson, was a sheriff's deputy who was killed in the line of duty. Stephen Wlodarz was sued for the wrongful death of Mr. Gibson. Ms. Begley filed a motion for summary judgment asserting that Mr. Wlodarz pleaded guilty to the murder of Gerald Gibson and should, therefore, be estopped from denying responsibility for her father's death. The motion was not supported by an affidavit, but only by an uncertified copy of Mr. Wlodarz's guilty plea. The plea agreement indicated that Mr. Wlodarz pleaded guilty to first-degree murder; however, the document failed to identify the murder victim. The trial court granted Ms. Begley's motion for summary judgment and awarded her one million dollars in compensatory damages. Mr. Wlodarz appeals. After careful review, we hold that an uncertified copy of a plea agreement is inadmissible evidence and should not have been considered by the trial court for purposes of the summary judgment motion. Because Ms. Begley submitted no additional evidence to support her motion, we hold that the trial court erred in granting summary judgment to Ms. Begley. We reverse the decision of the trial court and remand.

http://www.tba2.org/tba_files/TCA/2006/begleym_091906.pdf

STATE OF TENNESSEE v. PEGGY DALE HALL

Court: TCA

Attorneys:

David Brady, John B. Nisbet, III, and April Craven, Cookeville, Tennessee, for the appellant, Peggy Dale Hall.

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

Judge: WEDEMEYER

The Defendant, Peggy Dale Hall, was convicted of four counts of statutory rape, and the trial court sentenced her to an eight-year probationary sentence. A violation of probation warrant was subsequently issued, and the Defendant admitted violating the rules of her probation. On appeal, the Defendant contends that the trial court erred when, after revoking her probation, it ordered her to serve the balance of her eight-year sentence in prison. Finding that there exists no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/hallp_091906.pdf

STATE OF TENNESSEE v. BRENDA ARMSTRONG

Court: TCCA

Attorneys:

Trudy L. Bloodworth, Nashville, Tennessee, for the Appellant, Brenda Armstrong.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Kim R. Helper, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Brenda Armstrong, was convicted by a Williamson County jury of especially aggravated robbery, a Class A felony, and was sentenced to twenty-three years in the Department of Correction. On appeal, Armstrong raises the following issues for our review: (1) whether the evidence was sufficient to support her conviction; (2) whether the trial court abused its discretion in permitting introduction into evidence of portions of a videotaped interview of the Appellant; and (3) whether the trial court erred in sentencing. After review of the record, we affirm Armstrong's conviction and resulting sentence.

http://www.tba2.org/tba_files/TCCA/2006/armstrongb_091906.pdf

STATE OF TENNESSEE v. SHELVY A. BAKER

Court: TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Shelvy A. Baker.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WADE

The defendant, Shelvy A. Baker, was convicted of second degree murder. See Tenn. Code Ann. Section 39-13-210 (1997). The trial court imposed a sentence of twenty-five years to be served at one hundred percent. In this appeal as of right, the defendant argues (1) that the trial court erred by refusing to dismiss the indictment and (2) that the evidence was insufficient to support the conviction. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/bakers_091906.pdf

RAFAEL ANTONIO BUSH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the Petitioner, Rafael Antonio Bush.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Thomas S. Santel, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Rafael Antonio Bush, was convicted of especially aggravated robbery, aggravated burglary, and aggravated assault and received an effective twenty-two year sentence in the Tennessee Department of Correction. He filed a petition for post-conviction relief, alleging that he had not received the effective assistance of counsel at trial. The post-conviction court dismissed the petition after a hearing, and this appeal ensued. On appeal, the Petitioner contends that his trial counsel was ineffective for failing to request that the jury be instructed about accomplice testimony. Finding no reversible error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/bushrar_091906.pdf

STATE OF TENNESSEE v. JOYCE ELIZABETH CLEVELAND

Court: TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender, for the Appellant, Joyce Elizabeth Cleveland.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Joyce Elizabeth Cleveland, appeals her Marshall County Circuit Court sentences for forgery and criminal impersonation, Class E felonies. She claims that the trial court erred in denying her a form of alternative sentencing and in imposing consecutive sentencing. Because the record supports the circuit court's judgments, we affirm.

http://www.tba2.org/tba_files/TCCA/2006/clevelandj_091906.pdf

STATE OF TENNESSEE v. MICHAEL H. EVANS

Court: TCCA

Attorneys:

Michael J. Flanagan (on appeal), Nashville, Tennessee; Kenneth Quillen (at trial), Nashville, Tennessee, for the Appellant, Michael H. Evans.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Michael H. Evans, was convicted by a Humphreys County jury of premeditated first degree murder and sentenced to life imprisonment. On appeal, Evans has raised three issues for our review: (1) whether the evidence is sufficient to support the conviction; (2) whether the court erred in not instructing the jury on self-defense; and (3) whether the court erred in not granting a petition for writ of error coram nobis based upon newly discovered evidence. With regard to Appellant's issues 2 and 3, we find no error. However, after review of the convicting evidence, we conclude that the proof fails to establish that the homicide was premeditated. Nonetheless, we conclude that the evidence is legally sufficient to support a conviction of second degree murder. Accordingly, we modify the judgment of conviction and vacate the sentence entered by the trial court. The case is remanded to the trial court for resentencing for second degree murder.

http://www.tba2.org/tba_files/TCCA/2006/evansm_091906.pdf

STATE OF TENNESSEE v. WILLIAM H. GRISHAM, II

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal), and Comer Donnell, Public Defender and Tom Bilbrey, Assistant Public Defender (at trial), for the appellant, William H. Grisham, II.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Howard Chambers and Tiffany Gibson, Assistant District Attorneys General, for the appellee, the State of Tennessee.

Judge: WADE

The defendant, Willam H. Grisham, II, was indicted on two counts of first degree premeditated murder, two counts of felony murder, and one count of especially aggravated robbery. The jury returned not guilty verdicts on each count of felony murder. The defendant was convicted of two counts of first degree premeditated murder and one count of especially aggravated robbery. The trial court imposed consecutive life sentences for each of the murder convictions and a consecutive sentence of ten years for the robbery. In this appeal of right, the defendant argues that the evidence was insufficient to support any of the three convictions. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/grishamw_091906.pdf

STATE OF TENNESSEE v. LEON MCKISSACK, JR.

Court: TCCA

Attorneys:

John H. Henderson, District Public Defender, for the appellant, Leon McKissack, Jr.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Christopher K. Vernon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Leon McKissack, Jr., appeals from his four convictions for delivery of one-half gram or more of cocaine, a Class B felony, which he received in a bench trial in the Williamson County Circuit Court. The defendant was sentenced to fifteen years for each conviction, and the court ordered these sentences to be served concurrently to each other but consecutively to an unexpired sentence for which he had been paroled at the time of the offenses. The defendant challenges the sufficiency of the convicting evidence for each of his four convictions, the sufficiency of the state's proof of chain of custody of the drugs, his classification as a Range II offender, and the length of the individual sentences imposed. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/mckissackl_091906.pdf

STATE OF TENNESSEE v. ROBERT MORRISON

Court: TCCA

Attorneys:

Philip A. Condra, District Public Defender, and Quisha A. Light, Assistant Public Defender, for the appellant, Robert Morrison.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; James Michael Taylor, District Attorney General; and William Bobo Copeland, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Robert Morrison, appeals from his Franklin County conviction of possession of drug paraphernalia, a Class E felony, for which he was sentenced to serve two years of split confinement, consisting of 120 days in the county jail and the balance on probation with a special condition that he meet the requirements of the community corrections program. In this appeal, the defendant claims that (1) his conviction is not supported by sufficient evidence, (2) the trial court erred in failing to suppress his pretrial statement, and (3) the trial court erred in admitting evidence that a methamphetamine lab had been confiscated at the defendant's house on a prior occasion. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/morrisonr_091906.pdf

LONIEL THEOPLIS MORTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John Green, Murfreesboro, Tennessee, for the appellant, Loniel Theoplis Morton.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Loniel Theoplis Morton, appeals the circuit court's denial of his motion to reopen his post-conviction petition. He contends the court erred in concluding that his petition was time barred. Upon review, we affirm the decision of the circuit court and dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2006/mortonl_091906.pdf

STATE OF TENNESSEE v. JAMES C. OSBORNE
With Concurring Opinion

Court: TCCA

Attorneys:

Comer L. Donnell, District Public Defender, and William K. Cather, Assistant Public Defender, for the appellant, James C. Osborne.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, James C. Osborne, was convicted by a jury of rape, a Class B felony. The defendant was sentenced as a Range I offender to twelve years at 100%. He now appeals his conviction and sentence. After thorough review, we conclude that no reversible error is present. The judgment of conviction is hereby affirmed.

http://www.tba2.org/tba_files/TCCA/2006/osbornej_091906.pdf

HAYES Concurring
http://www.tba2.org/tba_files/TCCA/2006/osbornej_con091906.pdf

STATE OF TENNESSEE v. RAYMOND EDWARD PEEBLES

Court: TCCA

Attorneys:

Edward L. Holt, Jr., Murfreesboro, Tennessee, for the appellant, Raymond Edward Peebles.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Bill Whitesell, District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Rutherford County Grand Jury indicted the defendant for sale of cocaine, less than 0.5 grams. Following a jury trial, the jury found the defendant guilty. The trial court sentenced the defendant to six years to be served at thirty-five percent as a Range II multiple offender. The defendant argues that the evidence was insufficient to support his conviction and that the trial court incorrectly allowed in testimony from two witnesses who were not qualified as experts. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/peeblesr_091906.pdf

STATE OF TENNESSEE v. JOHN ROBERT PERKINS

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, John Robert Perkins.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Bedford County Circuit Court jury convicted the appellant, John Robert Perkins, of theft of property valued one thousand dollars or more but less than ten thousand dollars and misdemeanor assault. The trial court sentenced him as a Range II, multiple offender to seven years for the theft conviction and to eleven months, twenty-nine days for the assault conviction, ordering that the appellant serve the sentences consecutively to each other and consecutively to any other outstanding sentences. On appeal, the appellant claims that the trial court should have sentenced him as a Range I offender for the felony theft conviction because the State late-filed its notice to seek enhanced punishment. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/perkinsj_091906.pdf

STATE OF TENNESSEE v. SHIRLEY PETERS

Court: TCCA

Attorneys:

Michael D. Galligan and John P. Partin, McMinnville, Tennessee, for the appellant, Shirley Peters.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles Michael Layne, District Attorney General; and Kenneth J. Shelton, Jr. and Jason Ponder, Assistant District Attorneys General, for the appellant, Shirley Peters.

Judge: WILLIAMS

The defendant, Shirley Peters (Pettit), pled guilty to reckless homicide (Class D Felony) and agreed to a sentence of eight years as a Range II, multiple offender. The manner of service of the sentence was to be determined following a sentencing hearing. On July 11, 2005, the trial court ordered the defendant to serve her sentence in confinement and denied any alternative sentence. The defendant contends on appeal that the trial court erred in (1) overruling her motion for deferred judgment and (2) requiring confinement when she is eligible for alternative sentencing. We conclude that the defendant has not carried her burden of showing that the sentence imposed is improper, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/peterss_091906.pdf

LADONNIS D. PETTY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James P. McNamara, Nashville, Tennessee, for the petitioner, Ladonnis D. Petty.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Ladonnis D. Petty, appeals from the post-conviction court's denial of his petition for post-conviction relief. On appeal, he argues that the post-conviction court erred in finding that his guilty plea was knowingly and voluntarily entered. Following our review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/pettyl_091906.pdf

STATE OF TENNESSEE v. RODRIGUES D. PRUITT, a/k/a RODRIGUEZ D. PRUITT, a/k/a RODRIQUEZ D. PRUITT

Court: TCCA

Attorneys:

Richard McGee and James O. Martin, III, Nashville, Tennessee, for the appellant, Rodrigues Pruitt, a/k/a Rodriguez D. Pruitt, a/k/a Rodriquez D. Pruitt.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant was convicted of possession of .5 grams or more of cocaine with the intent to sell or deliver, a Class B felony, and sentenced as a career offender to thirty years in the Department of Correction, to be served consecutively to his current sentence. On appeal, he argues that the trial court erred: (1) in denying his motion to suppress the evidence; (2) by allowing a law enforcement officer to testify as an expert witness and disallowing defense counsel to fully cross-examine the witness; (3) by not instructing the jury on the lesser-included offense of facilitation; (4) by not instructing the jury that evidence of mere association with others involved in criminal activity is insufficient to establish guilt; (5) in denying his motion for judgment of acquittal because the evidence was insufficient to support his conviction; and (6) in sentencing him as a career offender. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/pruittr_091906.pdf

STATE OF TENNESSEE v. ANTONIO D. RICHARDSON
ORDER ON PETITION FOR REHEARING

Court: TCCA

Judge: WITT

We have carefully considered each of the points raised by the state in its petition to rehear. In the course thereof, we have endeavored to describe the legal parameters that attend the principles of due process announced in Anthony and its progeny, from all of which it is ORDERED that the state's petition for rehearing is respectfully DENIED.

http://www.tba2.org/tba_files/TCCA/2006/richardsona_091906.pdf

Vehicle Protection Product Act

TN Attorney General Opinions

Date: 2006-09-18

Opinion Number: 06-140

http://www.tba2.org/tba_files/AG/2006/ag_06-140.pdf

Interpretation of the 2006 Amendments to Tenn. Code Ann. Section 49-4-933(f)

TN Attorney General Opinions

Date: 2006-09-18

Opinion Number: 06-141

http://www.tba2.org/tba_files/AG/2006/ag_06-141.pdf

TODAY'S NEWS

Legal News
Legislative News
Election 2006

Legal News

Commission seeks outside counsel

The Tennessee Judicial Selection Commission, meeting today in special session, voted to ask the attorney general to seek outside counsel to represent it in a lawsuit filed Monday by the AG on behalf of Gov. Bredesen. That suit poses that the commission should not be allowed to recommend judges previously rejected by the governor. The Nashville Post reported the late-breaking story.

Court stays Holton execution

The execution of Daryl Keith Holton was called off Monday night after the U.S. Supreme Court decided to keep in place a stay of execution issued earlier Monday by three judges on the 6th U.S. Circuit Court of Appeals.

Read the Tennessean story

Chattanooga officials meet to discuss clogged courts

Judges and attorneys in Hamilton County met today to work on delays and other problems in the criminal courts system there which are creating lengthy delays, the Chattanoogan.com reports.

Read about the meeting

Vines out, but troubles may linger

U.S. Attorney Jim Vines may be leaving office before his political appointment expires, but that is no guarantee he will dodge charges of age discrimination.

The Nashville City Paper explores his legal future

RSVP now for NBA Picnic

The Nashville Bar Association will celebrate its 175th year when members come together Thursday for the Annual NBA Picnic at Hall of Fame Park next to the downtown Hilton Hotel.

Members can RSVP here

New development director at UT Law

Howie Avery, the interim director of development at the UT College of Business, will assume the duties of Director of Development at the College of Law next week. Born and raised in New York City, Howie graduated in 1996 from the University of Tennessee with a degree in accounting. He continued his education at Arizona State University, receiving a M.Ed. in higher education administration. He joined UT after spending three years at the University of Texas.

Profile of new Benton County judge

Judge Ron Darby is the new general sessions and juvenile court judge in Camden, and he already has plans for his new position, including expanding the traffic school program and investigating the possibility of a drug court.

The Camden Chronicle has more

Legislative News

Senator wants trial moved to his district

An attorney for indicted state Sen. Jerry Cooper, D-Morrison, asked a federal judge to move Cooper's case to a court in his Senate district, arguing that it would be more convenient for potential witnesses. Cooper is charged in a borrowing scheme involving the 1999 sale of his lumber mill in Warren County.