Shelby mayor, others talk public service to TBALL class

Members of the TBA Leadership Law program traveled to Memphis this week for programs Wednesday and today focusing on Issues in Community Service. The group heard from a number of attorneys who serve their communities in a variety of ways, including Shelby County Mayor A C Wharton, Robert Lipscomb of the Memphis Housing Authority, Ann Langston of The Church Health Center and Karen Hall of the Community Legal Center. In addition, the group took part in a public service project at St. Jude's Childrens Hospital and toured the National Civil Rights Museum after a presentation on Dr. Martin Luther King's assassination presented by Mike Cody and Charles F. Newman of Burch, Porter & Johnson; the Rev. Samuel L. Kyles; and attorney Walter Bailey. All were involved in events surrounding King's visit to Memphis.
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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.

01 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
08 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

STATE OF TENNESSEE v. EDWARDO RODRIGUEZ

Court: TSC

Attorneys:

William K. Cather, Assistant District Public Defender, Lebanon, Tennessee, for the appellant, Edwardo Rodriguez.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: KOCH

This appeal calls into question the verdict of a Wilson County jury finding the defendant guilty of two counts of child rape and aggravated sexual battery. After receiving two consecutive twenty-year sentences, the defendant appealed to the Court of Criminal Appeals. He asserted that the trial court erred by admitting evidence suggesting that he possessed child pornography and that the trial court also erred by denying his requests for a mistrial after two of the State's witnesses referred to other uncharged allegations of sexual abuse. The Court of Criminal Appeals determined that the trial court did not err by declining to declare a mistrial but also determined that the trial court erred by admitting evidence regarding the defendant's possession of child pornography. However, the court decided that the admission of the evidence regarding the defendant's possession of child pornography was harmless error. We granted the defendant's application for permission to appeal. We concur with the Court of Criminal Appeals' conclusion that the trial court erred by admitting the evidence regarding the defendant's possession of child pornography. However, we have determined that the admission of the evidence regarding the defendant's possession of child pornography was not harmless. Therefore, we reverse the defendant's conviction and remand the case for a new trial.

http://www.tba2.org/tba_files/TSC/2008/rodrigueze_042408.pdf


DOUGLAS TOALSTON v. BRIDGESTONE/FIRESTONE, INC.

Court: TWCA

Attorneys:

Terry L. Hill and Lauren S. Disspayne, Nashville, Tennessee, for the appellant, Bridgestone/Firestone, Inc.

Herbert M. Schaltegger and D. Russell Thomas, Murfreesboro, Tennessee, for the appellee, Douglas Toalston.

Judge: SCOTT

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The Employee developed lateral epicondylitis as a result of his work activities, and the Employer provided medical treatment for the injury. The Employee's symptoms were not relieved, and he sought and received a second opinion through his Employer. Both authorized physicians concluded that the Employee had no permanent impairment. The Employee sought an evaluation from an unauthorized physician, who diagnosed carpal tunnel syndrome in addition to lateral epicondylitis. That physician performed surgery and assigned permanent impairment. The Employee sought permanent disability benefits, and the Employer denied liability. The trial court awarded 30% permanent partial disability to the right arm. The Employer has appealed arguing that the evidence preponderates against the trial court's findings. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2008/toalstond_042408.pdf


JOHNNY DAVID HILL SR. v. CONNIE LOUISE HILL

Court: TCA

Attorneys:

Randy Hillhouse, Lawrenceburg, Tennessee, for the Plaintiff/Appellant, Johnny David Hill

Barbara G. Medley, Lewisburg, Tennessee, for the Defendant/Appellee, Connie Sue Hill

Judge: KIRBY

This appeal involves legal separation and divorce. The parties had a long-term marriage. The husband worked as a truck driver; the parties owned a trucking company. At various times, the wife worked as a bookkeeper for several companies, but had primarily been a homemaker raising the parties' two children, now adults. The marital estate consisted of real estate, the trucking company, and personal property. Both parties had significant health problems, and both had engaged in extramarital affairs. After the husband's most recent affair, the wife told the husband to leave. He did so, and then filed a complaint for divorce. The wife answered and counterclaimed for divorce, but later amended her counterclaim to seek legal separation instead of divorce. She did so because her health insurance and prescription medication would be prohibitively expensive if she were not covered by the husband's insurance. After a trial, the trial court ordered legal separation, but indicated that it contemplated awarding a divorce once the wife qualified for federal healthcare benefits. The court also divided the marital estate, awarding approximately sixty percent to the wife, and ordered the husband to pay alimony in futuro. The husband appeals, asserting that the trial court erred in not granting a divorce, in making an inequitable division of the marital estate, and in ordering alimony in futuro. We reverse the trial court's decision to order legal separation. In light of the wife's health insurance needs after the divorce takes effect, we vacate the property division and award of alimony, and remand for reconsideration of those issues.

http://www.tba2.org/tba_files/TCA/2008/hillj_042408.pdf


DANNY ALEXANDER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Danny Alexander, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Mike Bottoms, District Attorney General, forthe Appellee, State of Tennessee.

Judge: WEDEMEYER

This matter is before the Court upon the State's motion to affirm the judgment of the post-conviction court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner, Danny Alexander, appeals the post-conviction court's dismissal of his petition for post-conviction relief based on its untimeliness. Upon a review of the record, we are persuaded that the post-conviction court was correct that the petition is barred by the statute of limitations. This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/alexanderd_042408.pdf


STATE OF TENNESSEE v. RICKY BAGBY

Court: TCCA

Attorneys:

Ricky Bagby, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; Charles Crawford, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Ricky Bagby, appeals the trial court's denial of his motion to reduce his sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. The State has filed a motion requesting that this Court affirm the trial court's judgment pursuant to Rule 20, Rules of the Court of Criminal Appeals. After a review of the record, we conclude that the State's motion should be granted. The Defendant has failed to present an adequate record for review. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/bagbyr_042408.pdf


DARYL FORTNER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Daryl Fortner, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Following a late-night attack on his former wife and step-son, Petitioner, Daryl Fortner, was convicted by a Davidson County jury of two counts of attempted first degree murder and one count of aggravated burglary. The trial court sentenced Petitioner to two twenty-year sentences to be served consecutively to each other, and a five-year sentence to be served concurrently with the two twenty-year sentences. Petitioner's sentences resulted in an effective sentence of forty years. Petitioner's convictions and sentences were affirmed on direct appeal. Petitioner subsequently filed a petition for writ of habeas corpus alleging that the trial court acted illegally and was without authority to sentence him to consecutive sentences. The habeas corpus court summarily dismissed the petition. After a thorough review of the record, we have determined that the trial court had authority to impose consecutive sentences and did not act illegally in doing so. Therefore, we affirm the dismissal of the petition by the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2008/fortnerd_042408.pdf


STATE OF TENNESSEE v. KESHAWN DARNELL LEE

Court: TCCA

Attorneys:

Michael J. Collins, Shelbyville, Tennessee, for the Appellant, Keshawn Darnell Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Clarence E. Lutz, Assistant Attorney General; Chuck Crawford, District Attorney General; Weakley E. Barnard and Brooke Grubb, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Marshall County jury convicted the Defendant, Keshawn Darnell Lee, of two counts of sexual battery, two counts of assault, and one count of attempted rape. The trial court sentenced him to an effective sentence of five years of incarceration. On appeal, the Defendant raises two issues: (1) the evidence is insufficient to sustain his convictions; and (2) the sentence imposed is excessive. After a thorough review of the record and the applicable law, we affirm the trial court's judgments, but remand for the entry of modified judgments reflecting the merger of the count 2 conviction with count 1 and the merger of the count 4 conviction with count 3.

http://www.tba2.org/tba_files/TCCA/2008/leek_042408.pdf


STATE OF TENNESSEE v. ADRIAN K. NELSON

Court: TCCA

Attorneys:

Lindsay C. Barrett, Dickson, Tennessee, for the appellant, Adrian K. Nelson.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Dale Potter, District Attorney General, and Larry Bryant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Adrian K. Nelson, was indicted by a Warren County Grand Jury for possession of .5 grams or more of cocaine with the intent to sell, evading arrest, felony reckless endangerment, leaving the scene of an accident, resisting arrest and driving on a suspended license, second offense. After a jury trial, Appellant was convicted of all of the offenses and sentenced to an effective sentence of twenty-two years. The trial court denied a motion for new trial. Appellant seeks review of the following issues on appeal: (1) whether the trial court erred in denying the motion for new trial; (2) whether the trial court properly denied the motion to suppress; (3) whether the evidence was sufficient to support Appellant's convictions for possession of cocaine with intent to sell, evading arrest and reckless endangerment; (4) whether the trial court erred by failing to instruct the jury with the lesser included offense of misdemeanor reckless endangerment; (5) whether the trial court erred in failing to instruct the jury on the inference of "casual exchange" as set forth in Tennessee Code Annotated section 39-17-419; and (6) whether the sentence is excessive. Because we determine that the trial court erred by failing to instruct the jury with the lesser included offense of misdemeanor reckless endangerment, we reverse Appellant's conviction for felony reckless endangerment and remand the matter to the trial court for further proceedings. In all other respects, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/nelsona_042408.pdf


STATE OF TENNESSEE v. BRIAN EDWARD OWEN

Court: TCCA

Attorneys:

Vanessa Pettigrew Bryan, Franklin, Tennessee, for the Appellant, Brian Edward Owen.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; Ronald L. Davis, District Attorney General; Michael J. Fahey, II,, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Brian Edward Owen, pled guilty to two counts of rape of a child, leaving the sentence to be determined by the trial court. The trial court sentenced the Defendant to consecutive eighteen-year sentences. The Defendant appeals the judgments, claiming the trial court's decision to order consecutive sentences violated established Sixth Amendment precedent. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/owenb_042408.pdf


STATE OF TENNESSEE v. RENESHIA KIOTA PARKER

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Reneshia Kiota Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Naylor, Assistant District Attorney General, for the Appellee, the State of Tennessee.

Judge: WEDEMEYER

The Defendant, Reneshia Kioto Parker, pled guilty to forgery involving $1000 or more and theft of property valued at $60,000 or more. The trial court sentenced the Defendant to an effective sentence of ten years in prison. On appeal, the Defendant claims the trial court abused its discretion when it sentenced her. After a thorough review of the record and the applicable law, we dismiss this appeal because the Defendant failed to file a timely notice of appeal.

http://www.tba2.org/tba_files/TCCA/2008/parkerr_042408.pdf


GUSTAVO GARCIA REYES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gustavo Garcia Reyes, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Naylor, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant pled guilty to one count of evading arrest and two counts of aggravated vehicular homicide, and the trial court sentenced him to an effective sentence of twenty-five years. The trial court denied the Defendant's motion to reduce or modify his sentence, which the Defendant filed pursuant to Tennessee Rule of Criminal Procedure 35(b). On appeal, the pro se Defendant claims: (1) the trial court abused its discretion by denying his petition for habeas corpus relief; and (2) the trial court abused its discretion by erroneously finding facts. After a thorough review of the facts and the applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/reyesg_042408.pdf


Lenoir City Council Member also Serving as City Board of Education Member

TN Attorney General Opinions

Date: 2008-04-24

Opinion Number: 08-96

http://www.tba2.org/tba_files/AG/2008/ag_08_96.pdf

TODAY'S NEWS

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Legal News
Ward is first applicant for Criminal Appeals seat
Judge W. Mark Ward of the 30th Judicial District Criminal Court is the first candidate to apply for a vacancy on the state Court of Criminal Appeals, western division. The seat came open with the recent retirement of Judge David G. Hayes. Also of note, the court this week changed the deadline for submitting applications from May 16 to May 9.
Learn more from the AOC
Gibson resigns before legislature can fire him
Putnam County District Attorney Bill Gibson has submitted his resignation and announced plans to leave office on July 10, the Tennessean reported this afternoon. The announcement came as the state legislature was attempting to remove Gibson from office. Gibson lost his law license in an ethics scandal two years ago, but has continued to draw a salary ever since -- more than $190,000 to date -- even though he cannot work on legal cases.
Read it in the Tennessean
Memphis law team second in nation in appellate contest
University of Memphis law students Jennifer Bellott and Michael Goodin faced Harvard University's team in the final round of the national championships of the American Bar Association's National Appellate Advocacy Competition. In a split decision by the judges, the Memphis team finished second. Bellott was named National Best Advocate, an award given to the best oral advocate of the competition. Associate Dean Barbara Kritchevsky was the team's coach.
Find out more about the competition
Texting tests Freedom of Information Act in new ways
The story of Detroit Mayor Kwame Kilpatrick's affair with his chief of staff -- documented in text messages -- has brought to light a freedom-of-information issue courts have not had to address in the past. While government officials communicate electronically more frequently and through more media than ever before, e-mails, text messages, chat rooms, instant messages and video conferences all remain virtually unmentioned in FOI laws.
The First Amendment Center explores the issue
Pro bono hours count as billables in firm's new plan
Memphis lawyers Carla Peacher-Ryan and Antonio L. Matthews coordinate Baker Donelson's new pro bono initiative. Peacher-Ryan talks about what that means, as well as some memorable cases she has handled. "We now give 20 billable hours for every 20 hours of pro bono work. So it's part and parcel of your work requirements," Peacher-Ryan says of the firm's pro bono approach.
Read the interview in the Memphis Daily News
O'Connor on ethics: Is it the right thing to do?
Former Supreme Court Justice Sandra Day O'Connor spoke to a crowd at Stanford University this week, lamenting the lack of lawyer scruples. She cited the "drastic results" of the collapse of Enron Corp. in 2001. "We have a deeper obligation than that as a lawyer, as a human being, to reflect on what we're being asked to do and put it in a larger perspective and ask if it is the right thing to do. Many times it isn't."
The New York Sun reports
Carter County breaks ground for new, 'historic' jail
The official groundbreaking for the new Carter County jail was April 22, with construction expected to start in the next two weeks. "It's a very interesting groundbreaking, knowing the history of Carter County and the Watauga Settlement," said J. Mark Rodgers, the new jail's architect. "The first seat of government independent of the colonies was over there under that sycamore tree. Here we are, once again historically bringing new levels of justice to Carter County."
Read more about it in the Elizabethton Star
Greene County looks to add a 'pod' for more jail space
The Greene County Commission is considering "buying some time" by building a new 318-inmate modular pod on the grounds of the county workhouse. County officials have been told by the Tennessee Corrections Institute that the county must have a plan in place by the end of the year to reduce serious overcrowding at the detention center, or face state decertification of that facility. The pod proposal would allow more prisoners to be housed at the workhouse than are currently housed at the overcrowded county detention center.
The Greeneville Sun reports
Legislative News
Med mal bill passes Senate; on governor's desk
A compromise bill aimed at cutting down on medical malpractice lawsuits is headed to Gov. Phil Bredesen's desk after the state Senate unanimously approved the measure this morning. Earlier this month, the House passed the bill 93-1. The bill, among other things, tries to limit possibly frivolous lawsuits being filed by requiring plaintiff's attorneys to have a medical expert sign a "certificate of good faith" that medical malpractice occurred.
The City Paper reports
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
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'12 Angry Men' coming to Nashville, discounts available
TBA members can receive a discount to see "Twelve Angry Men," starring Richard Thomas at Nashville's Tennessee Performing Arts Center, May 8-11. Enter the password "juryduty" on TPAC's
Corporate Saver web site
TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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