Bennett appointed to fill Court of Appeals vacancy

Governor Phil Bredesen today appointed Dickson County native Andy D. Bennett to fill a position on the Tennessee Court of Appeals, Middle Section. He succeeds Justice William C. Koch Jr., who recently was named to the Tennessee Supreme Court. Bennett has served in the Office of the Attorney General since 1982, holding a variety of positions, including assistant attorney general, deputy attorney general for legislative affairs and associate chief deputy. He was named chief deputy attorney general in 1997. Bennett earned his law degree from Vanderbilt University Law School. Read more in the governor's press release:

http://www.tennesseeanytime.org/governor/viewArticleContent.do?id=1105

TODAY'S OPINIONS
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RANDY DILLARD v. BRANDY LYNN JENKINS

Court: TCA

Attorneys:

William J. Brown, Cleveland, Tennessee, for the Appellant, Randy Dillard.

Barrett T. Painter, Cleveland, Tennessee, for the Appellee, Brandy Lynn Jenkins.

Judge: LEE

Following the end of a seven-year relationship with Mother, Father filed a Petition for Paternity and Custody/Visitation to establish his paternity of the couple's daughter and to be designated as her primary residential parent. The parties agreed that Father was the Child's biological father. Following a hearing in 2003, the trial court entered a Temporary Order, granting temporary custody to Mother, ordering home studies of both parents' residences, and staying further matters for a later hearing. More than two years later, the trial court held another hearing. After hearing the parties' evidence, the trial court stated that the issue was whether a change of custody should be ordered, as the initial custody determination had already been made at the 2003 hearing. The trial court concluded that evidence of Mother's drug addiction was not sufficient to justify a change of custody and therefore denied Father's request for custody. The trial court did not make a finding of paternity, although it did order Father to pay child support, Mother's attorney's fees, and court costs. Father appeals. After careful review, we conclude that the trial court erred by not entering an order establishing Father as the Child's biological father. We further hold that the trial court applied an incorrect legal standard in making the initial custody determination in this case. As a result, we reverse and remand for entry of an order of paternity and a new trial on the issue of custody.

http://www.tba2.org/tba_files/TCA/2007/dillardr_091807.pdf


BRIAN HARLOW v. JEWELL CANTRELL

Court: TCA

Attorneys:

Michael R. Giaimo, Livinston, Tennessee, for the appellant, Brian Harlow.

Craig P. Fickling, Cookeville, Tennessee, for the appellee, Jewell Cantrell.

Judge: HARRIS

The sole issue presented on this appeal is whether the trial court abused its discretion by denying a motion for a continuance filed by one of the parties to this action. The basis of the motion was that the moving party, Brian Harlow, had accepted employment driving a bus in the state of California. The motion for continuance was denied and the trial of the case proceeded in Mr. Harlow's absence. Judgment was rendered against Mr. Harlow and he has appealed. We are unable to find that the trial court abused its discretion by denying the continuance and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2007/harlowb_091807.pdf


ROBBIE KEELER v. THE METROPOLITAN NASHVILLE AIRPORT AUTHORITY

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Robbie Keeler.

James E. Gaylord, Nashville, Tennessee, for the appellee, Metropolitan Nashville Airport Authority.

Judge: CAIN

Employee of the Metropolitan Nashville Airport Authority (MNAA) appeals the MNAA's decision to demote her based on a determination that Employee abused her authority by attempting to have a subordinate conduct her job-specific testing, which she had previously failed. Finding substantial and material evidence to support the MNAA's decision, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2007/keelerr_091807.pdf


JOHN C. KERSEY, SR. v. JOHN BRATCHER, ET AL.

Court: TCA

Attorneys:

John C. Kersey, Sr., Murfreesboro, Tennessee, Pro Se Appellant.

D. Randall Mantooth, Nashville, Tennessee, for the Appellees, John Bratcher and Beverly Raechelle Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and P. Robin Dixon, Jr., Assistant Attorney General, for the Appellee, Michelle Blaylock.

Judge: SWINEY

John C. Kersey, Sr. ("Plaintiff") sued John Bratcher, Clerk of the Chancery Court for Rutherford County, Tennessee ("Bratcher"); Beverly Raechelle Wilson, Deputy Clerk of the Chancery Court ("Wilson"); and Michelle Blaylock, Judicial Assistant to Circuit Judge Rogers ("Blaylock"), claiming, in part, that the defendants had violated Tenn. Code Ann. section 10-7-503 regarding records open to public inspection. Blaylock filed a motion for summary judgment, and Bratcher and Wilson filed a motion to dismiss for failure to state a claim upon which relief can be granted. After a hearing, the Trial Court granted Blaylock's motion for summary judgment and Bratcher's and Wilson's motion to dismiss. Plaintiff appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2007/kerseyJ_091807.pdf

HARRIS concurring
http://www.tba2.org/tba_files/TCA/2007/kerseyJ_con_091807.pdf

LEE dissenting
http://www.tba2.org/tba_files/TCA/2007/kerseyJ_dis_091807.pdf


KATHERINE MCKAY v. RONNIE REECE AND HIS WIFE, MARY REECE; JAMES BLANKENSHIP AND HIS WIFE, PATRICIA BLANKENSHIP; AND CITIZENS BANK OF LAFAYETTE

Court: TCA

Attorneys:

Charles Hill Beaty, Gallatin, Tennessee, for the appellants, Ronnie Reece and his wife, Mary Reece; and James Blankenship and his wife, Patricia Blankenship.

Michael W. Edwards and Russell E. Edwards, Hendersonville, Tennessee, for the appellee, Katherine McKay.

Judge: KIRBY

This is an action to set aside a warranty deed based on fraud. The plaintiff inherited family-owned property after her father's death, and she lived on the property. She obtained a line of credit for $40,000 from the defendant bank, secured by the property. The plaintiff defaulted on the loan, and the bank initiated foreclosure proceedings. The plaintiff contacted the defendants, acquaintances of her father, seeking their advice on how to stop the foreclosure. The defendants told the plaintiff that the bank could not stop the foreclosure, but suggested that, in order to avoid foreclosure, they would assume the plaintiff's $40,000 loan and the plaintiff would transfer the property to them. The parties agreed that, in addition to the defendants' assumption of the $40,000 loan, the plaintiff could live on the property for one year and repurchase the property at the end of the year for the amount of the loan plus any incidental costs. With that understanding, the plaintiff executed a warranty deed transferring the property to the defendants, and the defendants assumed the loan. Before the end of the agreed year, the defendants listed the property for sale with a real estate agent for approximately $400,000. When the plaintiff questioned the defendants, she was told that she could purchase the property for one dollar over the highest offer the defendants had received for the property. The plaintiff then filed this lawsuit, asking the court to set aside the warranty deed transferring the property to the defendants. After a bench trial, the trial court set aside the deed based on inadequacy of consideration and other badges of fraud. The defendants now appeal. We affirm, upholding the trial court's credibility determinations and finding that the preponderance of the evidence supports the trial court's decision.

http://www.tba2.org/tba_files/TCA/2007/mcKayk_091807.pdf


STATE OF TENNESSEE v. SHARI BRANDENBURG

Court: TCCA

Attorneys:

John S. Colley, III, Columbia, Tennessee, for the appellant, Shari Brandenburg.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

Following the stop of her vehicle, the defendant, Shari Brandenburg, was arrested for driving under the influence (DUI), a Class A misdemeanor. She pled guilty and was sentenced to eleven months and twenty-nine days, all suspended except for forty-eight hours, with the balance to be served on probation. As a condition of her guilty plea, she reserved a certified question of law: whether a private citizen may make an arrest for violation of Tennessee's speeding statute. The State argues on appeal that the certified question is not dispositive of the case, and we agree. Accordingly, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2007/brandenburgs_091807.pdf


RANDALL CARVER v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender and Patrick McGill, Assistant District Public Defender, for the appellant, Randall Carver.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Randall Carver, filed a pro se petition for writ of error coram nobis and/or habeas corpus relief. The trial court treated the petition as one for post-conviction and summarily dismissed the petition. On appeal, this Court affirmed the post-conviction court's dismissal of the petition. See Randall Carver v. State, No. M2002-02891-CCA-R3-CO, 2003 WL 21145572 (Tenn. Crim. App., at Nashville, May 16, 2003). Petitioner subsequently filed a petition for writ of habeas corpus, alleging numerous claims for relief. The trial court denied the petition without a hearing, determining that because Petitioner failed to produce material to the court for consideration and that because Petitioner was being held by the State of Kentucky on Kentucky charges all of Petitioner's issues were moot. Petitioner appealed. On appeal, this Court, without reaching the merits of Petitioner's argument, remanded the case for determination of "why the counsel who represented the petitioner in the lower court is not representing the petitioner on appeal." See Randall Carver v. Tony Parker, Warden, No. W2005-00522-CCA-R3-HC, 2006 WL 140408, at *2 (Tenn. Crim. App., at Jackson, Jan. 18, 2006). On remand, the trial court learned that Petitioner had been granted parole on his underlying sentences in the State of Tennessee, waived extradition and was transferred to the custody of the State of Kentucky. Subsequently, the trial court entered an order denying the petition for writ of habeas corpus. Petitioner filed a timely notice of appeal. He argues that he is entitled to request habeas corpus relief while being incarcerated in Kentucky and that this Court should transfer the petition to the court in which he was originally convicted. Because an out-of-state resident may seek habeas corpus relief in Tennessee from a Tennessee conviction, see State v. Church, 987 S.W.2d 855, 857-58 (Tenn. Crim. App. 1998), and the supreme court recently determined in Joseph Faulkner a/k/a Jerry Faulkner v. State, ___ S.W.3d ___, 2007 WL 1226831, at *6 (Tenn. Apr. 27, 2007), that a "prisoner serving concurrent state and federal sentences in a federal correctional institution may challenge his state convictions through the use of the state writ of habeas corpus," we determine that the trial court did not lose jurisdiction to make a determination on the merits of Petitioner's claim by virtue of Petitioner's parole from his Tennessee convictions and incarceration in Kentucky. Therefore, we reverse and remand the judgment of the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2007/carverr_091807.pdf


STATE OF TENNESSEE v. JAMES N. COOK

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor Johnson III, District Attorney General; and KatriGeneral, for the appellant, the State of Tennessee.

David L. Raybin, Nashville, Tennessee, for the appellee, James N. Cook.

Judge: WOODALL

The State appeals the trial court's grant of Petitioner James N. Cook's petition for writ of habeas corpus, arguing that Petitioner failed to comply with the mandatory procedural requirements for pursuing habeas corpus relief. Alternatively, the State contends that Petitioner is not entitled to habeas corpus relief because Petitioner's judgment of conviction is not facially void. After a thorough review of the record, we conclude the judgment is not void, and reverse the trial court's judgment granting Petitioner habeas corpus relief. The Petitioner's conviction is reinstated.

http://www.tba2.org/tba_files/TCCA/2007/cookj_091807.pdf


STATE OF TENNESSEE v. MAURICE EMERY

Court: TCCA

Attorneys:

Michael A. Carter, Milan, Tennessee, for the appellant, Maurice Emery.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Garry G. Brown, District Attorney General; and Jerald M. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Maurice Emery, appeals from his Gibson County Circuit Court convictions of possession with intent to sell one-half gram or more of cocaine, a Class B felony, possession of marijuana, a Class A misdemeanor, and possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. sections 39-17-417, -418, -425. The defendant, a Range II multiple offender, is serving an effective twelve-year sentence in the Department of Correction for these convictions. He claims (1) that the trial court erred in denying his motion to sever his case from that of his co-defendant, (2) that his arrest was not supported by probable cause, and (3) that he was denied the effective assistance of counsel. We hold that the defendant is not entitled to relief and affirm.

http://www.tba2.org/tba_files/TCCA/2007/emerym_091807.pdf


JEFFERY ENGLISH v. CHERRY LINDAMOOD, Warden and STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeffery English, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Jeffery English, appeals from the trial court's dismissal of his petition seeking habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's dismissal of the petition 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/2007/englishj_091807.pdf


STATE OF TENNESSEE v. SANDRA EVANS

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; and Garland Erguden and Robert Trent Hall, Assistant Public Defenders, for the appellant, Sandra Evans.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Sandra Evans, was convicted of first degree felony murder in the perpetration of theft and voluntary manslaughter (a Class C felony). The conviction for voluntary manslaughter was merged with the felony murder conviction, and the defendant was sentenced to life imprisonment. On appeal, the defendant challenges the admissibility of hearsay testimony under the exceptions for excited utterances, and medical diagnosis and treatment. The defendant also contends that certain testimony violated her right to confrontation and that the evidence, as a whole, was insufficient to support the convictions. Upon review, we reverse the conviction and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2007/evanss_091807.pdf


STATE OF TENNESSEE v. TIMOTHY ORLANDO HALL

Court: TCCA

Attorneys:

David A. Doyle (on appeal and at trial), District Public Defender and Robert T. Depew (at trial), Assistant Public Defender, Gallatin Tennessee, for the appellant, Timothy Orlando Hall.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Bryna Landers Grant and William G. Lamberth, III, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Timothy Orlando Hall, pled guilty to aggravated assault, a Class C felony and domestic assault, a Class A misdemeanor. He received a total effective sentence of four years on probation. Thereafter, the trial court revoked the defendant's probation on the basis that he had violated the terms and conditions of his probation. The defendant appeals the revocation of his probation, arguing that the trial court failed to exercise conscientious and intelligent judgment. Following our review of the record, the parties' briefs and the applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/hallt_091807.pdf


JAMES EARL KENNER v. RICKY J. BELL, WARDEN

Court: TCCA

Attorneys:

Lindsay C. Barrett, Dickson, Tennessee, for the appellant, James Earl Kenner.

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

Judge: WOODALL

Petitioner, James Earl Kenner, appealed to this Court from the trial court's summary dismissal of his petition for habeas corpus relief. We affirmed the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. James Earl Kenner v. Ricky J. Bell, Warden, No. M2005- 00622-CCA-R3-HC, 2005 WL 2139402 (Tenn. Crim. App. at Nashville, Aug. 31, 2005), perm. to app. denied (Tenn., Dec. 27, 2005). On appeal by permission to the United States Supreme Court, the judgment of this Court was vacated and the case was remanded for further consideration in light of Cunningham v. California, 549 U.S. _____, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007). See James Earl Kenner v. Ricky J. Bell, Warden, 127 S. Ct. 1243 (Mem), 167 L. Ed. 2d 60 (2007). Subsequently counsel was appointed to represent Petitioner. After further briefing by the parties in light of the order of the United States Supreme Court, we have further considered the case and conclude that Petitioner's sentences do not violate the Sixth Amendment to the United States Constitution. In actuality, the sentences imposed upon Petitioner, which he attacks in his habeas corpus petition, are based solely upon the verdict returned by the jury and Petitioner's prior convictions. Accordingly, the sentences were imposed in compliance with the Sixth Amendment, as interpreted in Cunningham v. California, and the judgment of the trial court is therefore affirmed.

http://www.tba2.org/tba_files/TCCA/2007/kennerJ_091807.pdf


STATE OF TENNESSEE v. BILLY JOHN KIMMES

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; Gregory D. Gookin and Paul E. Meyers, Assistant District Public Defenders, for the appellant, Billy John Kimmes.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; Angela Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant was convicted by a Madison County jury of theft of property valued at $10,000 or more, a Class C felony, and sentenced to five years in prison as a Range I, standard offender. On appeal, the defendant contends that the evidence produced at trial was insufficient to support the jury's guilty verdict, and he also contends that his sentence was excessive, both in the length of the sentence and the trial court's failure to impose an alternative sentence. After reviewing the record, we conclude that the evidence produced at trial was sufficient to support the defendant's conviction, and that the sentence imposed by the trial court was appropriate. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/kimmesb_091807.pdf


DERRY LAVELLE LOVINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stephen D. Scofield, Dyersburg, Tennessee, for the appellant Derry Lavelle Lovins.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Petitioner was convicted of second degree murder and sentenced to twenty-three years in the Department of Correction. On direct appeal, this Court affirmed his conviction. State v. Derry Lavelle Lovins, No. W2003-00309-CCA-R3-CD, 2004 WL 224482, at *1 -7 (Tenn. Crim. App., at Jackson, Feb. 4, 2004), perm. app. denied (Tenn. Mar. 5, 2007). Petitioner then filed a pro se petition for post-conviction relief. Petitioner was appointed counsel and an evidentiary hearing was held. The trial court subsequently denied the petition and a timely notice of appeal was filed. After a review of the record, this Court determined that Petitioner was entitled to a delayed appeal to our supreme court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. The remaining post-conviction proceedings were stayed pending the delayed appeal. On March 5, 2007, the supreme court denied Petitioner's delayed appeal. We now address Petitioner's remaining claims for post-conviction relief. Petitioner argues that he is entitled to post-conviction relief because (1) he received ineffective assistance of counsel, (2) his constitutional rights were violated by the State's failure to disclose physical evidence during discovery, (3) he was prejudiced by the trial judge's facial expressions, and (4) the jury reached a compromised verdict. After a thorough review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/lovinsd_091807.pdf


STATE OF TENNESSEE v. CHARLES STAN MARTIN

Court: TCCA

Attorneys:

Bryan E. Delius, Sevierville, Tennessee, and Richard L. Gaines, Knoxville, Tennessee, for the appellant, Charles Stanley Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; James B. (Jimmy) Dunn, District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Charles Stan Martin, was convicted by a Sevier County jury of one count of reckless homicide, a Class D felony, and received a four-year sentence to be served on probation. On appeal, the defendant contends that: (1) the evidence was not sufficient to support his conviction, (2) the reckless homicide statute is unconstitutional as applied to him, (3) the trial court erred in admitting evidence of a prior incident, (4) the trial court erred in failing to instruct the jury on an alibi defense, and (5) the trial court abused its discretion in denying him judicial diversion. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/martinc_091807.pdf


STATE OF TENNESSEE v. JAMES DAVID MAY

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender (on appeal), and Michael Collins, Assistant Public Defender (at trial), for the appellant, James David May.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, James David May, pled guilty in the Bedford County Circuit Court to one count of jail escape, a Class E felony. He was sentenced as a Range II, multiple offender to three years and six months in the Department of Correction. On appeal, the defendant challenges the imposition of incarceration, arguing that it would be more appropriate to sentence the defendant to community corrections. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mayj_091807.pdf


STATE OF TENNESSEE v. JEROME MAYO

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender (on appeal); Russell A. Church, Assistant District Public Defender (at trial), Clarksville, Tennessee, for the appellant, Jerome Mayo.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John W. Carney, District Attorney General; and Dan Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

We first decided this appeal in 2005. Our decision was vacated by the United States Supreme Court and the case was remanded to us for reconsideration in light of Cunningham v. California, 549 U.S. --, 127 S. Ct. 856 (2007). We requested and received supplemental briefing from the parties addressing any Cunningham issues. When this case was previously before this Court, the Defendant challenged the sufficiency of the evidence to sustain his aggravated robbery conviction. The Defendant received an enhanced sentence of eighteen years as a Range II, multiple offender for this conviction, but the trial court subsequently reduced his sentence to fifteen years based upon Blakely v. Washington, 542 U.S. 296 (2004). Originally, the State appealed the modified sentence, arguing that the trial court erred in reducing the Defendant's sentence, and we agreed. Upon further consideration of the matter, we conclude, and the State now concedes, that sentencing was proper and affirm the judgment in its entirety. We reissue our previous opinion as follows with a new section dealing with the Cunningham issues.

http://www.tba2.org/tba_files/TCCA/2007/mayoj_091807.pdf


STATE OF TENNESSEE v. WILLIAM JOE MURPHY

Court: TCCA

Attorneys:

Shana Johnson (on appeal), Sr. Assistant Public Defender, and Dave Stockton (at trial), Assistant District Public Defender, Somerville, Tennessee, for the appellant, William Joe Murphy.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Joe Van Dyke and Cameron B. Williams, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, William Joe Murphy, was convicted by a McNairy County Jury of aggravated assault, a Class C felony. Subsequently, he was sentenced to five years in confinement as a Range I offender. On appeal, the defendant presents two issues for review: (1) whether the evidence was sufficient to sustain his conviction; and (2) whether the trial court improperly enhanced his sentence. Upon review of the full record and the applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/murphyw_091807.pdf


KEVIN D. OTEY v. JIM WORTHINGTON, Warden

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon and John H. Bledsoe, Assistant Attorneys General, for the Appellant, State of Tennessee.

Joe H. Walker and Walter B. Johnson, II, Assistant Public Defenders, Harriman, Tennessee, for the Appellee, Kevin D. Otey.

Judge: WEDEMEYER

The Petitioner, Kevin D. Otey, pled guilty in 1996 in Maury County to arson and was sentenced to four years confinement. In 1997, the Petitioner pled guilty to possession of cocaine for resale, felonious evading arrest, and reckless endangerment and received an effective sentence of six years. The Petitioner pled guilty in 1999 to another count of possession of cocaine with intent to sell and was sentenced to eleven years "concurrent with [his] prior sentence." The Petitioner subsequently filed a pro se petition for writ of habeas corpus and the Morgan County Court granted relief on the basis that the eleven-year sentence should be calculated as beginning at the imposition of his arson sentence, which had been imposed three years earlier. The State filed a timely notice of appeal and raised the following issues: (1) the habeas court erred by consulting the Tennessee Offender Management Information System report; (2) the habeas court erred by defining "concurrent" to award the Petitioner retroactive credit on his eleven-year sentence; and (3) the habeas court erred by granting relief in an unripe case. After a thorough review, we reverse the habeas court's judgment and dismiss the Petitioner's claim for habeas corpus relief.

http://www.tba2.org/tba_files/TCCA/2007/oteyk_091807.pdf


STATE OF TENNESSEE v. TERRANCE PATTERSON

Court: TCCA

Attorneys:

Phyllis Aluko, Assistant Public Defender, for the appellant, Terrance Patterson

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Shelby County Grand Jury indicted Appellant for aggravated arson and vandalism over $10,000.00, but below $60,000.00. At the conclusion of a jury trial, Appellant was convicted as charged. The trial court sentenced Appellant to twenty-five years as a Range I Standard Offender for the aggravated arson conviction and eight years as a Range II Multiple Offender for the vandalism conviction. The trial court also ordered these sentences to be served consecutively. Appellant now appeals these judgments arguing that: (1) there was insufficient evidence to support his convictions; (2) evidence of impeachment by prior conviction was improperly admitted; (3) the trial court improperly allowed the amendment of the indictment; and that (4) the trial court erred in enhancing the sentence and in imposing consecutive sentences. We have thoroughly reviewed the record and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/pattersont_091807.pdf


SIDNEY PORTERFIELD v. RICKEY J. BELL, WARDEN, STATE OF TENNESSEE

Court: TCCA

Attorneys:

Sidney Porterfield, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Sidney Porterfield, pro se, seeks habeas corpus relief from his 1986 Shelby County first degree murder conviction and death sentence, alleging his indictment was void because it was returned by a grand jury from which women had been systematically excluded as grand jury forepersons. He now appeals from the Davidson County dismissal of his petition. The State contends that this court is without jurisdiction to hear this appeal because the petitioner filed an untimely notice of appeal and offered no explanation and, further, that the petition does not meet all the criteria set forth in Tennessee Code Annotated section 29-21-107. Furthermore, the State contends that a void indictment does not deprive a trial court of jurisdiction, that the petitioner's claim is not cognizable for habeas corpus relief because proof beyond the face of the judgment and record is required, and that our Supreme Court has rejected an identical claim regarding discrimination in the selection of a grand jury foreperson in State v. Bondurant, 4 S.W.3d 662 (Tenn. 1999). After careful review, we conclude that the notice of appeal is not jurisdictional and may be waived in the interest of justice. However, without explanation or request being filed, the interest of justice weighs against waiver; therefore, we dismiss this appeal.

http://www.tba2.org/tba_files/TCCA/2007/porterfields_091807.pdf


STATE OF TENNESSEE v. KEVIN RUDD

Court: TCCA

Attorneys:

William D. Massey and Lorna McClusky, Memphis, Tennessee, for the appellant, Kevin Rudd.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; and William L. Gibbons, District Attorney General; Robert Carter and Alonda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Kevin Rudd, was indicted for the first degree murder of his wife. After a jury trial, the appellant was found guilty of first degree murder and sentenced to life in prison. On appeal, the appellant argues: (1) the trial court improperly admitted propensity evidence in violation of Tennessee Rule of Evidence 404(b); (2) the trial court improperly denied a mistrial; and (3) the trial court improperly denied a motion in limine to exclude testimony that indicated the appellant engaged in shooting at other people. Because we determine that the trial court improperly admitted evidence in violation of Tennessee Rule of Evidence 404(b), we reverse the judgment of the trial court and remand for a new trial. The remaining issues are without merit.

http://www.tba2.org/tba_files/TCCA/2007/ruddk_091807.pdf


DENNIS JOE STOBAUGH v. KENNETH W. LOCKE, WARDEN

Court: TCCA

Attorneys:

Dennis Joe Stobaugh, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Dennis Joe Stobaugh, pro se, appeals the dismissal of his petition for habeas corpus relief. The petitioner remained free on bond for more than seventeen years and now claims "credit for time at liberty." After careful review, we conclude the petitioner is not entitled to relief and affirm the trial court's dismissal of his petition for habeas corpus relief.

http://www.tba2.org/tba_files/TCCA/2007/stobaughd_091807.pdf


STATE OF TENNESSEE v. DEMARIO TABB

Court: TCCA

Attorneys:

M. J. Werner, Memphis, Tennessee, for the Appellant, Demario Tabb.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

A Shelby County jury found the Appellant, Demario Tabb, guilty of the first degree felony murder of Floricelda Reynoso Ambrocio; the first degree felony murder of the unnamed, viable fetus of Floricelda Ambrocio; and the attempted aggravated robbery of Rodrigo Ramirez. At the penalty phase of the trial, the jury fixed Tabb’s punishment at life without the possibility of parole for each murder conviction. Following a separate sentencing hearing, the trial court sentenced Tabb to five years imprisonment for his Class C felony conviction for attempted aggravated robbery and ordered that all sentences be served concurrently. On appeal, Tabb presents the following issues for our review: (1) whether his statement to police should have been suppressed because it was obtained in violation of his constitutional right to counsel; (2) whether the statement was properly admitted as rebuttal proof; and (3) "whether [the trial] court erred in its use of curative instructions to [the] jury." Following review, we find no error and affirm the judgments of conviction.

http://www.tba2.org/tba_files/TCCA/2007/tabbd_091807.pdf


STATE OF TENNESSEE v. MILICA WILSON

Court: TCCA

Attorneys:

Robert B. Gaia, Olive Branch, Mississippi, for the appellant, Milica Wilson.

Robert E. Cooper, Jr., Attorney General & Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Milica Wilson, was indicted for one count of attempted especially aggravated robbery. After a jury trial, Appellant was found guilty of facilitation of attempted especially aggravated robbery. He was found not guilty of felony murder and first degree murder. As a result, Appellant was sentenced on August 13, 2003, to serve eight years as a Range II, multiple offender in the Department of Correction. Appellant filed an untimely motion for new trial on September 25, 2003. Subsequently, Appellant filed two amended motions for new trial. The trial court conducted a hearing on the motions on February 27, 2006, at the conclusion of which the trial court denied the motion for new trial. Appellant filed an untimely notice of appeal. On appeal, Appellant contends: (1) the evidence was insufficient to support the conviction; (2) the trial court erred in admitting the testimony of co-defendant Frank Dowdy as there was no corroboration of the testimony; and (3) the trial court erred in giving a jury instruction on flight. Because Appellant filed an untimely motion for new trial, which resulted in the filing of an untimely notice of appeal, we must dismiss Appellant's appeal.

http://www.tba2.org/tba_files/TCCA/2007/wilsonm_091807.pdf


TODAY'S NEWS

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Disciplinary Actions
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Legal News
Court seeks comment on proposed rules amendments
Late today the Tennessee Supreme Court published for comment amendments to the Tennessee Rules of Appellate, Civil, Criminal and Juvenile Procedure and the Rules of Evidence. In August 2007, the Advisory Commission completed its 2006-2007 term and presented its recommendations to the court. The deadline for submitting written comments is Friday, Nov. 30, 2007. Watch for more analysis of the proposed changes in tomorrow's TBA Today.
Download the proposed rules amendments
Two turn down chief magistrate job
Former General Sessions Judge Richard Holcomb and retired Chattanooga attorney Leroy Phillips have declined overtures from Hamilton County commissioners to serve as chief judicial commissioner. Meanwhile, current Chief Magistrate Bob Meeks has said he would continue in the role if asked. Commissioners this week face a larger issue: whether to continue the magistrate program, reform it or phase it out.
The Times Free Press has the story
Justice Thomas to appear on 60 Minutes
U.S. Supreme Court Justice Clarence Thomas will appear on 60 Minutes on Sept. 30 to publicize his new book "My Grandfather's Son: A Memoir." Thomas received a $1.5 million advance from HarperCollins for the book, which focuses on his childhood and ends with the battle over his 1991 confirmation.
Law.com carried this Legal Times story
And speaking of the Supreme Court...
Chicago lawyer Michael O'Donnell reviews Jeffrey Toobin's new book "The Nine: Inside the Secret World of the Supreme Court" for the San Francisco Chronicle, and concludes that while it offers little inside information after 2003, coverage of the 1990s and early 2000s is packed with insider detail that makes for riveting reading.
Read his review
Putnam Co. bar elects officers
The Putnam County Bar Association on Friday elected Britton A. Jared, president; John Gholson IV, vice president; Bryant Dunaway, secretary; and Richard Dale Bohannon, treasurer. All practice law in Cookeville.

2008 Law Day theme chosen
The American Bar Association has announced that the 2008 Law Day theme will be "The Rule of Law: Foundation for Communities of Opportunity and Equity." The topic will emphasize how the law affects Americans on a daily basis. This upcoming year also marks a milestone: the 50th anniversary of celebrating Law Day in the U.S.
Read more about Law Day
Suit names God as defendant
A Nebraska state senator has sued God in an attempt to make a point about frivolous lawsuits, namely that anybody can sue anybody about anything. The suit by state Sen. Ernie Chambers says God has caused "fearsome floods ... horrendous hurricanes, terrifying tornadoes" and requests a permanent injunction.
The Associated Press reports
EU denies privilege for in-house counsel
Highlighting the differences between American and international law practice, the second-highest court in the European Union ruled yesterday that attorney-client privilege does not apply to communications between companies and their in-house counsel. According to observers, the decision underscores the importance of retaining outside counsel in sensitive matters concerning European companies.
The International Herald Tribune covers the story
Attorney fees in pro bono case cause stir
A major Seattle-based law firm's effort to collect $1.8 million from taxpayers in a pro bono case has ignited a firestorm of controversy. The firm of Davis Wright Tremaine took on a reverse discrimination case that went all the way to the U.S. Supreme Court. But now it is seeking to recover attorney fees from the city's public schools. Legal observers weigh in on the ethics of such a move in this article.
Read about it in the Seattle Times
Upcoming
Nashville Bar picnic coming Thursday
The Nashville Bar Association is hosting its 10th Annual Member Picnic on Thursday at Hall of Fame Park. The event is free to all NBA members and will feature a live band, barbecue, refreshments and activities. As part of the event, the Nashville Pro Bono Program will celebrate 25 years by crowning a Catfish King and Queen, who will be chosen based on the number of new and renewing pro bono panel attorney applications they can secure. Mark Pickrell and Jonathan Cole are candidates for Catfish King and Marsh Nichols and Cyndi Parson are candidates for Catfish Queen.
RSVP online
Judge to host seminar on criminal justice system
The City of Chattanooga's Office of Multicultural Affairs in collaboration with the Office of Faith Based and Community Partnerships will present "The Criminal Justice System, What Everyone Should Know" on Sept. 20, 4:30-6:30 p.m. Moderator for the event, which is free and open to the public, will be former city judge Walter Williams. For more information contact the city at (423) 643-6706 or oma@mail.chattanooga.gov
Read more on Chattanoogan.com
Disciplinary Actions
Four attorneys reinstated
Henry Roger Allison III of Nashville, John Stephen Anderson of Rogersville, Lisa Belle Hatfield of Knoxville and Thomas G. Hull of Greeneville have been reinstated to the practice of law in Tennessee after paying the annual BPR fee.
View all attorneys suspended and reinstated for 2007 fee violations
TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
Visit the site

 
 
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