Will Supreme Court reach down? Answer in 'next few days'

The state Supreme Court has confirmed receipt of motions from Houston Gordon and Buck Lewis asking the court to exercise its statutory "reach down" jurisdiction and take their appeal of a chancery court decision directly, bypassing the court of appeals. The case, Bredesen vs. Tennessee Judicial Selection Commission, will set procedures for the submission of new Supreme Court candidates to Gov. Phil Bredesen. The Supreme Court "expects to make a decision on the motions in the next few days," says Administrative Office of the Courts' spokesperson Sue Allison. Trial and appellate documents in the case are available for download at:

http://www.tncourts.gov/

TODAY'S OPINIONS
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Editor-in-Chief, TBALink

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

https://www.tba2.org/tba_files/TSC/2006/certlist_122706.pdf


STATE OF TENNESSEE v. PAUL DENNIS REID, JR.
With Concurring/Dissenting Opinion and Appendix


Court: TSC

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Paul Dennis Reid, Jr.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle Chapman McIntire, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Tom Thurman, Roger Moore, Grady Moore, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WADE

The defendant, Paul Dennis Reid, Jr., was convicted of three counts of premeditated murder, three counts of felony murder, one count of attempted murder, and one count of especially aggravated robbery. The trial court merged each of the felony murder convictions with the corresponding premeditated murder convictions. The jury sentenced the defendant to death based upon four aggravating circumstances, see Tenn. Code Ann. Section 39-13-204(i)(2), (6), (7), (12) (Supp. 1996), and further found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, see Tenn. Code Ann. Section 39-13-204(g)(1) (Supp. 1996). We hold that (1) the trial court did not err by finding the defendant competent to stand trial; (2) the trial court did not err by admitting the testimony of the defendant's former employer; (3) the trial court did not err by denying the motion to limit proof regarding the defendant’s financial condition; (4) the trial court did not err by refusing to recuse itself from the case; (5) the trial court did not err by allowing the State to introduce evidence of the murders at the Captain D's restaurant to establish the "mass murder" aggravating circumstance; and (6) the defendant's sentences of death are not invalid under the mandatory review criteria of Tennessee Code Annotated Section 39-13-206(c)(1). As to the remaining issues, we agree with the conclusions reached by the Court of Criminal Appeals. The relevant portions of its opinion are appended. The judgment of the Court of Criminal Appeals is, therefore, affirmed.

https://www.tba2.org/tba_files/TSC/2006/reidpd_122706.pdf

ADOLPHO A. BIRCH, JR. SP. J., CONCURRING AND DISSENTING
https://www.tba2.org/tba_files/TSC/2006/reidpdDIS_122706.pdf

APPENDIX (Excerpts from the Court of Criminal Appeals' Decision)
https://www.tba2.org/tba_files/TSC/2006/reidpd.appendix_122706.pdf


MARC ESKIN, ET AL. v. ALICE B. BARTEE, ET AL.
With Concurring Opinion


Court: TCA

Attorneys:

J. Houston Gordon of Covington, Tennessee; Irma W. Merrill-Stratton of Memphis, Tennessee for Appellants, Marc Eskin and Karen Eskin, each individually and as parents and next friends to Brendan Eskin, a minor, and Logan Eskin, a minor.

Warren D. McWhirter of Memphis, Tennessee for Appellee, USAA Casualty Insurance Company.

Judge: CRAWFORD

Parents, individually and on behalf of their two minor children, sued various defendants for damages resulting from an automobile accident caused allegedly by the negligence of defendants. The complaint, in addition to seeking damages for the personal injuries sustained by one of the minor children, seeks damages on behalf of the mother and one minor child for negligent infliction of emotional distress. An uninsured motorist insurance carrier filed an answer in the cause and subsequently moved for summary judgment, which ostensibly involved only the claims for negligent infliction of emotional distress. The trial court granted the summary judgment motion but failed to denote that the grant was only a partial summary judgment for that particular claim. We modify the trial court's order by granting only a partial summary judgment and further reverse and remand that grant.

https://www.tba2.org/tba_files/TCA/2006/eskinm_122706.pdf

HOLLY KIRBY CONCURRING
https://www.tba2.org/tba_files/TCA/2006/eskinmCON_122706.pdf


BOBBY L. HOLLAND and wife, RITA HOLLAND v. AMELIA JO DINWIDDIE, DDS d/b/a JO DINWIDDIE, DDS

Court: TCA

Attorneys:

Dixie W. Cooper and Catherine Corless, of Nashville, Tennessee, for the Appellants.

W. Scott Sims, of Nashville, Tennessee, for the Appellee.

Judge: HIGHERS

The plaintiff patient visited the defendant dentist periodically between 1998 and 2003. Between 2001 and 2003, the defendant performed dental work on the plaintiff including root canals, fillings, and crown work. Over this period, the plaintiff's dental condition became significantly worse. The plaintiff developed abscesses and infection in his mouth and suffered from substantial dental pain. The plaintiff’s last visit to the defendant was in October of 2003. Over the 2003 holidays, the plaintiff unsuccessfully attempted to contact the defendant for relief from his increasingly painful condition. The plaintiff ultimately received treatment from another dentist throughout 2004. After receiving the plaintiff's dental records from the defendant in October of 2004, the treating dentist informed the plaintiff that the defendant's treatment had been negligent. The plaintiff filed a dental malpractice action against the defendant on January 12, 2005. The trial court granted the defendant's motion for summary judgment based on the one-year statute of limitations for medical malpractice claims, finding that the plaintiff should have discovered the injury by the time of the plaintiff's last visit to the defendant in October of 2003. The plaintiff filed a timely notice of appeal. We affirm.

https://www.tba2.org/tba_files/TCA/2006/hollandb_122706.pdf


STATE OF TENNESSEE v. EDGAR BAILEY, JR.

Court: TCCA

Attorneys:

Melanie R. Snipes, Cartersville, Georgia (on appeal and at trial); and Wade Hinton, Chattanooga, Tennessee (at trial), for the appellant, Edgar Bailey, Jr.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William H. Cox, III, District Attorney General; and Boyd M. Patterson, Jr. and Bates W. Bryan, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Edgar Bailey, Jr., was convicted of first degree premeditated murder and felony murder, which the trial court merged together; three counts of aggravated assault, Class C felonies; and setting fire to personal property, a Class E felony. He was sentenced to life imprisonment for the murder conviction, five years for each aggravated assault conviction, and eleven months, twenty-nine days for the setting fire to personal property conviction, with all sentences to be served concurrently. On appeal, he argues: (1) the trial court erred in denying his motion to suppress; (2) the evidence is insufficient to support his convictions; (3) the trial court erred in allowing expert testimony from a police officer; (4) the trial court erred in allowing a witness's tape-recorded statement after the witness testified that he could not recall the incident; (5) the trial court erred in allowing a photograph if the deceased victim into evidence; and (6) the trial court erred in not instructing the jury on the natural and probable consequences rule for first degree murder and felony murder. Following our review, we reverse the conviction for first degree premeditated murder and remand for a new trial; affirm the remaining convictions, including that for felony murder; and remand for resentencing as to the conviction for setting fire to personal property because the trial court erroneously considered the offense a Class A misdemeanor, rather than a Class E felony.

https://www.tba2.org/tba_files/TCCA/2006/baileye_122706.pdf


STATE OF TENNESSEE v. KACY DEWAYNE CANNON
Revised Opinion


Court: TCCA

Attorneys:

Ardena J. Garth and Donna Robinson Miller, Chattanooga, Tennessee, for the appellant, Kacy Dewayne Cannon.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; William Cox, III, District Attorney General; Mary Sullivan Moore and Boyd Patterson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Kacy Dewayne Cannon, was convicted of aggravated rape, and the trial court sentenced him to thirty-two and one half years in the Department of Correction. On appeal, the Defendant contends that: (1) the trial court erred when it denied the Defendant's motion to suppress the identification of his DNA profile from the DNA databank; (2) the trial court erred when it admitted into evidence pantyhose because the State failed to establish a proper chain of custody; (3) the evidence is insufficient to sustain the Defendant's conviction; (4) his constitutional right to confrontation was violated; (5) the trial court erred when it denied the Defendant's motion to recuse; and (6) the trial court erred when it sentenced the Defendant. Finding that there exists reversible error with regard to the sentencing of the Defendant, we affirm the conviction and remand for re-sentencing.

https://www.tba2.org/tba_files/TCCA/2006/cannonkREVISED_122706.pdf


STATE OF TENNESSEE v. MARCELLUS HURT

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, for the Appellant, Marcellus Hurt.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Marcellus Hurt, was convicted by a Madison County jury of three counts of misdemeanor theft, two counts of burglary of a vehicle, one count of felony vandalism over $500, one count of possession of burglary tools, and one count of misdemeanor evading arrest. As a result of these convictions, Hurt received an effective sentence of six years, eleven months, and twenty-nine days in confinement. On appeal, Hurt raises two issues for our review: (1) whether the evidence is sufficient to support his convictions for burglary of a vehicle and possession of burglary tools; and (2) whether his sentence is excessive. Following review of the record, we affirm the convictions and sentences as imposed.

https://www.tba2.org/tba_files/TCCA/2006/hurtm_122706.pdf


TODAY'S NEWS

Legal News
Supreme Court Watch
Online CLE

Legal News
High court becomes more media friendly
In a major change, members of the U.S. Supreme Court have been popping up in unusual places lately, including network television news programs where they are talking about more than just the law.
TriCities.com has this Associated Press story
Scholarship fund started in Trail's name
The late Larry Trail's legacy extends far beyond his contributions as a former Tennessee state senator, lawyer, and farmer -- it will also help promote student success with a scholarship fund started by his high school classmates. Trail, a Murfreesboro attorney for 28 years, was set to be sworn in as Circuit Court judge Sept. 1 for an eight-year term, but died soon after winning the Aug. 3 election.
Read more about Trail, and how to contribute to the fund in the Daily News Journal
Grand jury recommends changes for criminal courts
The Concurrent Grand Jury in Chattanooga has recommended that criminal court judges be limited to two terms and not be allowed to postpone cases more than two times, except for "extraordinary circumstances." The panel also recommended that a special DUI Court be set up to handle the large volume of drunk driving cases.
Reat the jury's full report at Chattanoogan.com
Reid execution set for January 2008
The Tennessee Supreme Court set a new execution date today for Paul Dennis Reid and upheld his conviction for murdering three McDonald's employees. Reid is now scheduled to die Jan. 3, 2008, but he still has state and federal appeals pending. Read the opinion and related documents in this issue of TBA Today.
The News Sentinel has more
Commentary: A true Christmas miracle
Humor columnist and former Tennessee Bar Association president Bill Haltom was more like Ebeneezer Scrooge when he had to shop for Christmas presents -- until his little girl went with him and reminded him of the magic.
Read the column in the Commercial Appeal
Berry's 17-year tenure ends with wit and wisdom
Franklin City Attorney Doug Berry retired after 17 years of service. Read about his tenure and see pictures -- including the framed piece of sheet rock that "Berry bashed in during a fit of anger in 2004" that was presented to him as a gift.
The Tennessean has the story
County may use recycle center as jail and charge 'housing fee'
The Lawrence County Commission will consider using a recycling center as a temporary jail at its January meeting, the Columbia Daily Herald reports. Already county property, the building could save $3,000 per month in rent and as much as $1.3 million in housing costs, County Mayor Paul Rosson said. The joint committee also agreed to a resolution to charge anyone arrested after Jan. 1 a housing fee of $50 per day.

Judge rules against widow
A copy of slain barber David Leath's will is not valid, even though the copy is an exact duplicate of the missing original and is signed in ink, a judge has ruled. The will left everything to Leath's widow, who was recently charged with his death, while Leath's only child and his grandchildren inherit nothing. "The sole issue before this court is (whether) the presumption that the will was destroyed or revoked by the testator himself (has been overcome)," Chancellor Daryl Fansler said in a ruling issued last week.
Follow the story in the Knoxville News Sentinel
Child Advocacy Center moves
The Child Advocacy Center for the 23rd Judicial District is about to move from its present location in Burns to Charlotte Square in Charlotte. The CAC is a child-friendly place where forensic interviews can be conducted and child protective investigative teams can discuss the merits of and plans for cases.
Read more in the Dickson Herald
Supreme Court Watch
High court runaround
In an editorial, the Tennessean says that for selecting Supreme Court justices the state should take a cue from the federal government process, which empowers the president to nominate candidates for the judiciary who are confirmed by the Senate. "On the state level, the governor likewise should not be bound by Judicial Selection Commission recommendations," the paper states.
Read the opinion
Online CLE
Here's help meeting 2006 CLE requirements
Need an hour or two of CLE to complete your 2006 requirements? The TBA's TennBarU online university is ready to help. With more than 25 text-based and 150-plus video courses -- many carrying ethics credit -- you'll find the programs you want and need.
Register or find out more now

 
 
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