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

MAHLE, INC. v. WALTER DEAN ROUSE

Court: TWCA

Attorneys:

Kelly A. Campbell, Morristown, Tennessee, for Appellant, Mahle, Inc.

Jeffrey M. Cranford, Morristown, Tennessee, for Appellee, Walter Dean Rouse.

Judge: THAYER

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. The trial court awarded the Employee 85 percent permanent partial disability as a result of metal poisoning at his workplace. The Employer contends the action should be dismissed because notice of injury was not timely given and because the evidence was insufficient to establish causation of injury. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2006/mahleinc_101706.pdf


BASIL MARCEAUX v. NEILL SOUTHERLAND, ET AL.

Court: TCA

Attorneys:

Basil Marceaux, appellant, pro se.

Ward Crutchfield, Chattanooga, Tennessee, attorney for appellees, Neill Southerland and Rheubin Taylor.

Ronald D. Wells and Stacy Lynn Archer, Chattanooga, Tennessee, attorneys for appellees, Sam Elliott, Cris Helton and Brian Smith.

Jennifer T. Flowers, Chattanooga, Tennessee, attorney for appellees, Marty Lasley, Ann Shaffer, Ken Fritz, Phillip Noblett, Mike McMahan and Randy Nelson.

Robert G. Norred, Jr., Chattanooga, Tennessee, attorney for appellees, Chattanooga Free Press, Channel 9 News, Channel 3 News, Channel 61 News and Comcast.

Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, attorneys for appellees, The Tennessean and USA Today.

Eileen Burkhalter Smith, Nashville, Tennessee, attorney for appellee, Mothers Against Drunk Driving.

Judge: SUSANO

The trial court dismissed the plaintiff's complaint--without hearing proof--on the defendants' respective motions to dismiss. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/marceauxb_101706.pdf


STATE OF TENNESSEE, EX REL. BRENDA WIX v. MICHAEL WALLACE SHERROD

Court: TCA

Attorneys:

Michael W. Sherrod, Springfield, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Warren Jasper, Assistant Attorney General, for the appellees, Tennessee Department of Human Services, Brenda Wix, and Paul G. Summers.

Judge: COTTRELL

In this appeal, the father's conviction of criminal contempt must be reversed because the State concedes it cannot demonstrate that the father was advised of his right to counsel and voluntarily waived it.

http://www.tba2.org/tba_files/TCA/2006/sherrodm_101706.pdf


MARY SUE WALLER v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert L. Huskey, Manchester, Tennessee, for the appellant, Mary Sue Waller.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General and George H. Coffin, Jr., Senior Counsel, for the appellee, State of Tennessee.

Judge: FARMER

This is an appeal of a personal injury award from the Tennessee Claims Commission. Mary Sue Waller (Ms. Waller) challenges the adequacy of damages awarded for the injuries she sustained in an automobile accident caused by the negligence of a state employee. She asserts that the State's failure to produce an expert and to challenge her expert's testimony binds the court to her expert's conclusions. Additionally, assuming this conclusive effect, she insists that the commissioner must have relied upon previously stricken deposition testimony in rendering her judgment. Ms. Waller further contends the award fails to account for her persistent neck and back pain, as well as the permanent impairment proven by her expert. The record contains sufficient evidence, including medical records admitted by Ms. Waller herself, to support the findings and award. Moreover, her expert's opinion is not only advisory, but also susceptible to conflicting evidence and a credibility determination. Because the evidence does not preponderate against the commissioner's findings and award, we affirm.

http://www.tba2.org/tba_files/TCA/2006/wallerm_101706.pdf


JERRY ANDERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jerry Anderson, Clifton, Tennessee, pro se.

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

Judge: WELLES

The Petitioner, Jerry Anderson, appeals from the order of the trial court dismissing his petition for habeas corpus relief. The State has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/andersonj_101706.pdf


SHELVY ANTWAIN BAKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mike J. Urquhart, Nashville, Tennessee, for the appellant, Shelvy Antwain Baker.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Shelvy Antwain Baker, pled guilty in the Davidson County Criminal Court to one count of first degree murder, two counts of attempted first degree murder, three counts of aggravated robbery, and three counts of attempted aggravated robbery. As a result of his guilty pleas, the petitioner received a total effective sentence of life plus twenty years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective, his guilty pleas were not knowingly and voluntarily entered, and the State committed prosecutorial misconduct. The post-conviction court denied the petition, and the petitioner appeals. Upon review of the record and the partiesí briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/bakers_101706.pdf


STATE OF TENNESSEE v. THOMAS RAY BRYANT

Court: TCCA

Attorneys:

Jack O. Bellar, Carthage, Tennessee, for the appellant, Thomas Ray Bryant.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Thomas Ray Bryant, filed a notice of appeal, pursuant to Tennessee Rule of Appellate Procedure 3(b) from the trial court's denial of Defendant's "Motion to Set Aside Amended Judgment." After review of the entire record and applicable case law, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2006/bryantt_101706.pdf


STEVEN RAY CHANCE (a.k.a. ARYAN RAY GARRETT) v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Steven Ray Chance, pro se.

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

Judge: WELLES

This matter is before this Court upon the Petitioner's appeal from an order of the trial court denying a petition "re-submitting petition for suspension of sentence." The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/chances_101706.pdf


JIMMY RAY CULBERSON V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General, Mike Bottoms, District Attorney General; for Appellee, State of Tennessee.

William C. Barnes, Jr., Columbia, Tennessee, Attorney for the Petitioner, Jimmy Ray Culberson.

Judge: DANIEL

Petitioner, Jimmy Ray Culberson, pled guilty to two counts of rape of a child and received concurrent fifteen-year sentences with 100% service on each count. In September 2003, petitioner filed a petition for post-conviction relief claiming that his plea was not knowing and voluntary and that he received the ineffective assistance of counsel. Following an evidentiary hearing, the trial court denied the petition. In this appeal, petitioner maintains the trial court erred in denying his petition. Following our review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/culbersonj_101706.pdf


ANTONIO HANSERD v. RICKY BELL, WARDEN AND STATE OF TENNESSEE

Court: TCCA

Attorneys:

Antonio Hanserd, pro se.

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

Judge: WELLES

The Petitioner, Antonio Hanserd, appeals from the order of the trial court dismissing his petition for habeas corpus relief. The State has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/hanserda_101706.pdf


STATE OF TENNESSEE V. RONALD EUGENE MULLINS

Court: TCCA

Attorneys:

Andrew Jackson Dearing, Shelbyville, Tennessee, Attorney for the Appellant, Ronald Eugene Mullins.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: DANIEL

The appellant, Ronald Eugene Mullins, was convicted by a jury of theft of property over one thousand dollars. The trial court ordered the appellant to serve a three-year sentence as a Range I standard offender. After the denial of a motion for new trial, the appellant filed a timely notice of appeal challenging the sufficiency of the evidence. After a review of the record, we affirm.

http://www.tba2.org/tba_files/TCCA/2006/mullinsr_101706.pdf


TERRY M. ODOM V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, Attorney for the Petitioner, Terry M. Odom.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General, Victor S. Johnson, District Attorney General; Kathy Morante, Assistant District Attorney General; for Appellee, State of Tennessee.

Judge: DANIEL

Petitioner, Terry M. Odom, was indicted on three counts of aggravated sexual battery. Pursuant to a plea agreement, petitioner pled guilty to one count and received an eight-year sentence at 100% while the two remaining counts were dismissed. Petitioner filed a petition for post-conviction relief and after the appointment of counsel filed an amended petition. Following an evidentiary hearing on August 3, 2005, the trial court denied the petition. On appeal, petitioner claims the trial court erred in denying relief. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/odomt_101706.pdf


CARLOS SERRANO v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Carlos Serrano, pro se.

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

Judge: WELLES

The Petitioner, Carlos Serrano, pled guilty to second degree murder and received a sentence of thirty years as a violent offender. The Petitioner subsequently filed a petition for post-conviction relief, which the trial court summarily dismissed based upon the Petitioner's failure to amend his petition to contain a factual basis in support of the allegations contained therein. The Petitioner now appeals from that dismissal. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/serranoc_101706.pdf


STATE OF TENNESSEE V. DANNY S. SWAW

Court: TCCA

Attorneys:

Dana M. Ausbrooks, Assistant Public Defender, (on appeal) and Larry Drolsum, Assistant Public Defender, (trial), Franklin, Tennessee; Attorney for the Appellant, Danny S. Swaw.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General, Ronald L. Davis, District Attorney General; for Appellee, State of Tennessee.

Judge: DANIEL

Appellant Danny S. Swaw was indicted in July 2004 on one count of selling morphine, a Class C felony, and indicted on January 2005 on one count of selling methamphetamine, a Class B felony. Pursuant to a plea agreement, the appellant entered guilty pleas on both counts and received a four-year sentence and a consecutive eight-year sentence as a Range I standard offender. However, the plea agreement provided the determination of alternative sentencing would be left to the trial court. Following a sentencing hearing, the trial court denied probation and community corrections. Appellant appeals the trial court's finding that he was not a favorable candidate for alternative sentencing. We affirm the trial court.

http://www.tba2.org/tba_files/TCCA/2006/swawd_101706.pdf


STATE OF TENNESSEE v. TORREZ TALLEY, JEVON BRYANT, AND KEITH EZELL

Court: TCCA

Attorneys:

Marvin E. Ballin, Memphis, Tennessee, for the appellant, Torrez Talley; William Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Jevon Bryant; and James Hale, Assistant Public Defender, for the appellant, Keith Ezell.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols and Ray Lepone, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

Pursuant to multiple indictments, Defendants Jevon Bryant, Keith Ezell and Torrez Talley were charged with fourteen counts of especially aggravated kidnapping and five counts of aggravated robbery. Defendant Bryant was also charged with one count of felon in possession of a firearm. Following a trial, the jury found Defendants Bryant and Ezell guilty on all counts. The jury found Defendant Talley guilty of ten counts of especially aggravated kidnapping and four counts of aggravated robbery. Thereafter, the trial court sentenced Defendant Bryant to an effective sentence of 364 years, Defendant Ezell to an effective sentence of 198 years, and Defendant Talley to an effective sentence of 140 years. On appeal, the following issues are presented for review: (1) whether the trial court properly denied a motion to suppress physical evidence; (2) whether the trial court properly denied a motion for mistrial during jury selection; (3) whether the trial court properly found purposeful discrimination by the defendants in their exercise of peremptory challenges; (4) whether the trial court erred by failing to require the state prosecutor to elect facts supporting Defendant Bryant's conviction for felonious possession of a handgun; (5) whether the trial court erred in allowing the prosecutor to rehabilitate the credibility of state witnesses; (6) whether the trial court erred in refusing to grant a mistrial or provide curative instruction following an improper statement made by a state witness; (7) whether the trial court erred in allowing the prosecutor to bring in Defendant Ezell's twin brother to rehabilitate a state witness' pretrial misidentification; (8) whether the trial court erred in refusing to grant a mistrial in response to the improper remarks made by the prosecutor during closing argument; (9) whether the trial court erred by refusing to permit counsel to review the jury instructions prior to charging the jury; (10) whether the trial court properly instructed the jury on reasonable doubt; (11) whethr the trial court properly instructed the jury on the defendant's right not to testify; (12) whether the trial court erred by refusing to instruct the jury on false imprisonment as a lesser-included offense of especially aggravated kidnapping; and (13) whether the trial court erred in sentencing the defendants. Concluding that no reversible error exists, as to the aggravated robbery and felon in possession of a firearm. We affirm the convictions and sentences for especially aggravated kidnapping. Because the record reflects that the especially aggravated kidnapping convictions were not properly merged, we remand for merger and entry of corrected judgments as to those offenses.

http://www.tba2.org/tba_files/TCCA/2006/talleyt_101706.pdf


STATE OF TENNESSEE v. JAMES EDWARD TAYLOR

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, James Edward Taylor.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the appellant, James Edward Taylor, of first degree felony murder and especially aggravated robbery, and the trial court sentenced him to consecutive sentences of life and forty years, respectively. On appeal, the appellant claims that the trial court should have granted his motion to suppress eyewitness identification testimony and his motion to suppress his confession to a fellow jail inmate. The appellant also contends that the trial court should have excluded from evidence a videotaped conversation between him and the inmate; that the trial court improperly ruled that Officer Gary Smith's testimony about the appellantís familial relationship with his codefendant was admissible pursuant to Tennessee Rule of Evidence 803(19), the hearsay exception for reputation concerning personal or family history; that the trial court erred by allowing Officer Smith to testify because the defense lacked prior notice; that the trial court improperly allowed witnesses to give hearsay testimony about the victim's statements under Tennessee Rule of Evidence 804(b)(2), the dying declaration exception to the hearsay rule; and that the evidence is insufficient to support the convictions. Upon review of the record and the parties' briefs, we conclude that the trial court erred by admitting Officer Smith's testimony under Tennessee Rule of Evidence 803(19). However, the error was harmless, and we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/taylorj_101706.pdf


STATE OF TENNESSEE v. DERRICK WALTON

Court: TCCA

Attorneys:

Marvin Ballin, Memphis, Tennessee, for the appellant, Derrick Walton.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assisntant Attorney General; William L. Gibbons, District Attorney General; and James Wax and Teresa McCusker, Assistant District Attorneys General; for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Derrick Walton, was convicted of one count of second degree murder. He was sentenced to twenty-three years in the Department of Correction. The Defendant's sole issue on appeal is whether the trial court erred in enhancing his sentence. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/waltond_101706.pdf


STATE OF TENNESSEE v. TRAVIS T. WHITE

Court: TCCA

Attorneys:

F. Michie Gibson, Jr., Nashville, Tennessee, for the appellant, Travis T. White.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Kristen Shea, Assistant District Attorney General; and Michael Rohling, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant was found guilty of criminal impersonation, a Class B misdemeanor, and felony evading arrest, a Class D felony. The trial court sentenced Defendant as a Range III, career offender, to twelve years for his felony conviction, and a concurrent sentence of eleven months, twenty-nine days for the misdemeanor conviction. Defendant does not appeal his sentences. The sole issue on appeal is a challenge to the legal sufficiency of the evidence to support the convictions. Although not raised by either party, we notice as plain error that Defendantís judgment for his criminal impersonation conviction classifies the offense as a Class A misdemeanor, rather than a Class B misdemeanor, and the trial court erroneously sentenced Defendant to eleven months, twenty-nine days for this conviction. See Tenn. R. Crim. P. 52(b). After a thorough review, we affirm Defendant's conviction of felony evading arrest. We reverse and remand Defendant's conviction of criminal impersonation for the entry of a corrected judgment consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2006/whitet_101706.pdf


TODAY'S NEWS

Legal News
Upcoming
TBA Member Services

Legal News
Gibson apologizes, gives legal responsibilities to assistant
District Attorney Bill Gibson has named an assistant to handle the "practice of law" for the DA's office and has apologized to staff for the ethics scandal, which caused him to temporarily lose his law license.
Read the text of his apology in the Cookeville Herald Citizen
Board of Law Examiners moving
Effective Monday, Oct. 30, the Tennessee Board of Law Examiners will move to a new location. Its new address will be: L & C Tower, 401 Church Street, Suite 2200, Nashville, TN 37243-0740. Phone and fax numbers will remain the same.
Visit the board's Web site for more information
Memphis attorneys return to damaged building
As of last week, all attorneys with Burch, Porter & Johnson had returned to work in the Memphis firm's historic building. On Oct. 6, fire swept through the adjacent Court Park Building. Although the fire did not reach the law firm, destruction of nearby buildings resulted in structural and water damage at the firm.

Two local judges honored
The Tennessee Chapter of the American Board of Trial Advocates has named Judge William H. Inman of Morristown and Judge Kindall Lawson from Rogersville as "judges of the year" at a recent awards dinner.
Read about their careers in the Citizen Tribune
Tennessee negotiates $2 million settlement with jeweler
The Tennessee attorney general's office, along with 17 other states, has entered into an agreement with Friedman's Jewelers for alleged unfair and deceptive trade practices.
Read the AG's press release for more details
Anderson County Commission considers courtroom move
Members of the Anderson County Commission's Operations Committee will consider General Sessions Judge Ron Murch's request to move his courtroom from the Oak Ridge Municipal Building to the courthouse in Clinton. Murch cited mounting security concerns in the Oak Ridge courtroom as the basis for his request. Under the proposal, Murch and Judge Don Layton would share a courtroom and Murch would have an office in the Robert Jolley building.
The News Sentinel reports on the story
Avian influenza awareness
The Marion Griffin Chapter of the Lawyers Association for Women sponsored a lunch program today with Juli Horton M.D. to educate attendees on the avian flu threat. While the public health community is focused on the threat of a pandemic influenza outbreak and planning is necessary, Dr. Horton stressed the importance of routine flu shots. She told the group that while there are some hopeful signs that a vaccine might be developed, the only proven methods of fighting a pandemic flu strain are early treatment, border restrictions and social distancing, such as school closings.

Upcoming
Memphis bar to sponsor mediation seminar
To mark this Thursday's Mediation Day in Tennessee, the Memphis Bar Association's Alternative Dispute Resolution Section will sponsor a free seminar on the issue at 5:30 p.m. in Room 248 of the University of Memphis Law School, located at 3715 Central Ave. For more information about the event call (901) 754-9994. Section chair and Germantown lawyer Sheree Lynn Hoffman provides a preview of the seminar in a Commercial Appeal guest editorial.
Read her piece
Lawyers arts group to sponsor reception
Tennessee Volunteer Lawyers for the Arts will host a reception for a new art exhibit titled "Private Dialogue," which will be curated by the Zeitgeist Gallery and presented by the Vanderbilt University Law School. The reception will be Thursday, Oct. 26, from 5-7 p.m. in the north lobby of the law school, located at 131 21st Ave., South in Nashville. The show will feature artists using personal language to interpret and react to the world around them.

TBA Member Services
Make the most of your TBA membership
Contact Membership Director Sarah Stair for more information on our money saving member benefits. Call 800.899.6993 or email sstair@tnbar.org


 
 
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