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| Monday, April 28, 2008 |
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The Complete Lawyer: Stress and how to deal with it
Fatigue, anxiety, difficulty concentrating, poor memory and indecisiveness are all symptoms of stress afflict many lawyers. A new survey by The Complete Lawyer finds that nearly 75 percent of its readers are at risk for burnout and 45 percent suffer from high levels of acute stress. Learn more about the survey and find out proven antidotes to stress -- some traditional others less mainstream -- in the latest issues of The Complete Lawyer. Available online now.
http://tennessee.thecompletelawyer.com/volume4/issue3/index.php
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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 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
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
09 - TN Court of Criminal Appeals
00 - 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
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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.
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STATE OF TENNESSEE v. ANDRE DOTSON
Court: TSC
Attorneys:
William G. Gosnell, Memphis, Tennessee, for the appellant, Andre Dotson.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; and
David H. Findley, Assistant Attorney General for the appellee, State of Tennessee.
Judge: GOSNELL
The Defendant, Andre Dotson, was convicted of two counts of aggravated robbery and two counts
of robbery. On direct appeal of right, the Court of Criminal Appeals modified one robbery
conviction to theft based upon insufficient evidence of the element of fear on the part of a victim,
but otherwise affirmed. We granted permission to appeal in order to consider several issues,
including those related to the consolidation of the four indictments in a single trial. We hold that (1)
the consolidation of the four charges constituted reversible error; (2) while the trial court did not
abuse its discretion by severing the two indictments against a co-defendant, that would have been
unnecessary had the Defendant been afforded separate trials; (3) the co-defendant’s statements to
police did not fall under the "against interest" exception to the hearsay rule and were properly
excluded as evidence; and (4) the evidence at trial was sufficient to establish fear on the part of one
of the victims, an essential element for the offense of robbery. Because the trial court erroneously
refused to order separate trials on each of the four indictments and the error cannot be classified as
harmless, the judgment of the Court of Criminal Appeals is reversed and the Defendant is granted
new trials on each indictment.
http://www.tba2.org/tba_files/TSC/2008/dotsona_042808.pdf
DON DRAKE ET AL. v. JANA M. WILLIAMS, M.D., ET AL.
Court: TCA
Attorneys:
Andy Allman, Clinton L. Kelly, and F. Dulin Kelly, Hendersonville, Tennessee, for the appellants,
Don Drake and Sandra Drake.
Garrett E. Asher and Emily H. Wilburn, Nashville, Tennessee, for the appellee, Jana M. Williams,
M.D.
Dixie W. Cooper, Carol Elaine Davis, and Clarence James Gideon, Nashville, Tennessee, for the
appellee, Centennial Medical Center/Parthenon Pavilion.
Judge: BENNETT
The parents of a young man who committed suicide after being discharged from a psychiatric
hospital sued the hospital and the treating psychiatrist for wrongful death. The trial court granted
the defendants' motions for summary judgment on the basis that the decedent's act of suicide was
an intervening, superseding cause. We reverse and remand for further proceedings.
http://www.tba2.org/tba_files/TCA/2008/draked_042808.pdf
BOGDAN RENTEA v. BEN M. ROSE et al.
Court: TCA
Attorneys:
Bogdan Rentea, Austin, Texas, Pro Se.
Winston S. Evans, Nashville, Tennessee, for the appellees, Ben M. Rose, C. Bennett Harrison,
Jr., and Cornelius & Collins, LLP.
Judge: BENNETT
This is an appeal of summary judgment in a lawsuit that arose from a heated discovery dispute.
Plaintiff-attorney appeals the grant of summary judgment in favor of Defendants on claims of
abuse of process, fraudulent concealment, and outrageous conduct against the attorneys and law
firm representing the plaintiff-attorney's former corporate client in a separate lawsuit. Finding
no error, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCA/2008/renteab_042808.pdf
ROBERT A. WARD and wife, SALLY WARD, v. CITY OF LEBANON, TENNESSEE; CITY OF LEBANON GAS DEPARTMENT; JAMES N. BUSH CONSTRUCTION, INC.; FOSTER ENGINEERING & ENERGY, INC.; and WATER MANAGEMENT SERVICES, LLC.
Court: TCA
Attorneys:
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which ANDY BENNETT, J.,
and JON KERRY BLACKWOOD, SR. J., joined.
Robyn Beale Williams, Nashville, Tennessee, for appellant, City of Lebanon.
James C. Wright and Edward U. Babb, Knoxville, Tennessee, for appellant, James N. Bush
Construction, Inc.
Jack O. Bellar and Jamie D. Winkler, Carthage, Tennessee, for appellees, Robert A. Ward and Sally
Ward.
Robert H. Watson, Jr., and Hanson R. Tipton, Knoxville, Tennessee, for Amicus Curiae Tennessee
Municipal League Risk Management Pool.
C. Dewey Branstetter, Jr., Nashville, Tennessee for Amicus Curiae Tennessee One Call System, Inc.
Judge: FRANKS
Plaintiff, while excavating, struck a gas line which resulted in an explosion and fire, seriously
injuring plaintiff. Plaintiffs brought this action against several defendants and the case went to trial
against the City of Lebanon and Bush Construction Company, Inc. A jury returned a verdict for the
plaintiffs and allocated percentages of fault as to both defendants and the plaintiff. The Trial Court
entered Judgment in favor of the plaintiffs and defendants appealed. We reverse the Trial Court
Judgment and remand for a new trial on the grounds that a part of the charge to the jury was
erroneous.
http://www.tba2.org/tba_files/TCA/2008/wardr_042808.pdf
STATE OF TENNESSEE v. BARBARA ANN BRYANT
Court: TCCA
Attorneys:
J. Barney Witherington IV, Covington, Tennessee, for the Appellant, Barbara Ann Bryant.
Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
Elizabeth Rice, District Attorney General, and Walt Freeland, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: SMITH
In Tipton County, Petitioner entered an open guilty plea to three counts of vehicular homicide, one
count of vehicular assault and two counts of driving while intoxicated, which were later merged into
the first vehicular homicide conviction. Following a sentencing hearing, the trial court sentenced
Petitioner to three consecutive ten-year sentences for the vehicular homicides and a consecutive
three-year sentence for vehicular assault. This resulted in an effective thirty-three-year sentence.
Petitioner was unsuccessful on appeal. State v. Barbara Ann Bryant, No. W2004-01245-CCA-R3-
CD, 2005 WL 756252 (Tenn. Crim. App., at Jackson, Apr. 1, 2005), perm. app. denied, (Tenn. Oct.
3, 2005). Petitioner subsequently filed a petition for post-conviction relief. The post-conviction
court denied and dismissed the petition. After a thorough review of the record, we affirm the postconviction
court’s decision based upon the fact that Petitioner did not present the issue to the postconviction
court that she now presents to this Court on appeal.
http://www.tba2.org/tba_files/TCCA/2008/bryantb_042808.pdf
STATE OF TENNESSEE v. PAMELA CLIMER
Court: TCCA
Attorneys:
Kenneth R. McKnight, Assistant Public Defender, for the appellant, Pamela Climer.
Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and David L. Puckett, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Pamela Climer, pled guilty to one count of failure to appear, a Class E felony, and
was sentenced to one year in the Department of Correction. While incarcerated, although it is not
clear where, she sent to the court clerk a letter requesting a suspended sentence hearing. At the
hearing, the trial court held that it lacked jurisdiction to consider her request because the defendant
had been transferred to the custody of the Department of Correction. The defendant argues that this
determination was erroneous because she was not transferred to the Department of Correction until
after she filed her request. However, because the appellate record is silent on where the defendant
was held when she filed her request, we must presume that the trial court's ruling was correct and
affirm its judgment.
http://www.tba2.org/tba_files/TCCA/2008/climerp_042808.pdf
CHARLES D. JOHNSON v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Charles D. Johnson, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and
Scott McCluen, District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Petitioner, Charles D. Johnson, appeals the trial court's summary dismissal of his petition for writ
of habeas corpus. After a thorough review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2008/johnsonc_042808.pdf
JULIUS JONES v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Patrick E. Stegall, Memphis, Tennessee, for the appellant, Julius Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The petitioner, Julius Jones, was convicted in 2002 of facilitation of felony murder, a Class B felony,
and sentenced to twenty-three years in the Department of Correction. Following an unsuccessful
direct appeal to this court, he filed a petition for post-conviction relief alleging that Tennessee's 1989
Criminal Sentencing Reform Act was unconstitutional and that his appellate counsel rendered
ineffective assistance in violation of his federal and state constitutional rights. The post-conviction
court denied the petition, holding that the petitioner failed to prove his factual allegations by clear
and convincing evidence. After our review, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2008/jonesj_042808.pdf
STATE OF TENNESSEE v. TYRONE NEELY
Court: TCCA
Attorneys:
Andrew E. Bender, Memphis, Tennessee, for the Appellant, Tyrone Neely.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General,
for the Appellee, State of Tennessee.
Judge: HAYES
The Appellant, Tyrone Neely, appeals the Shelby County Criminal Court’s denial of his petition to
reinstate driving privileges, which were revoked after he was declared a motor vehicle habitual
offender (MVHO) on October 20, 1994. In December 2006, Neely filed a petition to reinstate his
driving privileges, pursuant to an amendment to the reinstatement of license statute, Tennessee Code
Annotated section 55-10-615(c), which permits immediate reinstatement of driving privileges when
one of the underlying convictions which qualifies a person for MVHO status is not enumerated in
Tennessee Code Annotated section 55-10-603(2)(A). In his petition, Neely asserted that his
underlying convictions for driving on a cancelled, suspended, or revoked license, were not qualifying
offenses of Tennessee Code Annotated section 55-10-603(2)(A); therefore, he was entitled to
reinstatement. At the scheduled hearing, the trial court summarily denied the petition without
allowing Neely to present proof regarding the prior convictions. Neely appeals this ruling. On
appeal, the State concedes, and we agree, that it is necessary that the case be remanded to the trial
court for a full hearing to determine the nature of the qualifying convictions and whether Neely is
entitled to immediate restoration of his driving privileges as provided by Tennessee Code Annotated
section 55-10-615(c). Accordingly, the judgment of the trial court is vacated and remanded.
http://www.tba2.org/tba_files/TCCA/2008/neelyt_042808.pdf
STATE OF TENNESSEE v. JUAN LA SEAN PERRY
Court: TCCA
Attorneys:
Gary Howell, Mt. Pleasant, Tennessee, for the appellant, Juan La Sean Perry.
Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney
General; Michael Bottoms, District Attorney General; and Dan Runde, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: MCLIN
The defendant, Juan La Sean Perry, was convicted by jury of second degree murder. Thereafter, the
defendant received a sentence of twenty-five years. On appeal, the defendant presents the following
issues for review: (1) whether the trial court erred in denying the defendant’s motion to suppress the
handgun taken from the defendant as a result of a traffic stop; and (2) whether the trial court erred
in failing to find any mitigating factors when imposing the sentence. After a thorough review of
the record, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment
http://www.tba2.org/tba_files/TCCA/2008/perryj_042808.pdf
STATE OF TENNESSEE v. DON SANDERS
Court: TCCA
Attorneys:
Robert Wilson Jones, Shelby County Public Defender; Garland Ergüden, Assistant Public Defender
(on appeal); Sherrye Brown and Constance Barnes, Assistant Public Defenders (at trial), Memphis,
Tennessee, for the Appellant, Don Sanders.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Charles Bell and Pamela Fleming, Assistant
District Attorneys General, for the Appellee, State of Tennessee.
Judge: HAYES
The Appellant, Don Sanders, appeals his conviction by a Shelby County jury for the first degree
murder of Marilyn Hughes. On appeal, Sanders argues that, because he suffers from a mental illness,
the evidence is insufficient to establish that he possessed the mental capacity to premeditate the
murder of the victim. Following a review of the record, we conclude that the evidence is legally
sufficient to support his conviction. Accordingly, the judgment is affirmed.
http://www.tba2.org/tba_files/TCCA/2008/sandersd_042808.pdf
TROY WESTON v. TONY PARKER, WARDEN (STATE OF TENNESSEE)
Court: TCCA
Attorneys:
Troy Lee Weston, pro se.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Elizabeth
B. Marney, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The Petitioner, Troy Lee Weston, appeals the lower court's denial of his petition for habeas
corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant
to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to comply with the
procedural prerequisites for seeking habeas corpus relief. Accordingly, we affirm the trial court's
dismissal
http://www.tba2.org/tba_files/TCCA/2008/westont_042808.pdf
RAYMOND DAVID WRIGHT v. HOWARD CARLTON, Warden
Court: TCCA
Attorneys:
Raymond David Wright, Mountain City, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; David
H. Findley, Assistant Attorney General; Anthony W. Clark, District Attorney General, for the
Appellee, the State of Tennessee.
Judge: WEDEMEYER
The Petitioner, Raymond David Wright, pled guilty to second degree murder in 1993 in exchange
for a fifty year sentence as a Range III offender. He filed a petition for habeas corpus relief claiming
his sentence was illegal because, had he been tried and convicted, he would be considered only a
Range I offender. Thus, he claims his fifty-year sentence is illegal. The Petitioner further asserts
second degree murder is not a lesser included offense of first degree felony murder, and, therefore,
the trial court had no jurisdiction to sentence him. The habeas court dismissed the petition without
a hearing. After a thorough review of the record and applicable law, we affirm the judgment of the
habeas court.
http://www.tba2.org/tba_files/TCCA/2008/wrightr_042808.pdf
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| TODAY'S NEWS |
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Legislative News
Legal News
Death Penalty Commentary
Upcoming
TBA Member Services
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| Legislative News |
| Bredesen threatens veto on judicial selection |
| Gov. Phil Bredesen has threatened to veto proposals to change the judicial selection process if lawmakers don't find a way to resurrect his proposal to require the panel hold all their deliberations in public. |
The Maryville Daily Times has more
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| McMillan to start run for governor early |
| Former state House Democratic Leader Kim McMillan of Clarksville said Sunday she's declaring her intention to run for governor so she'll have plenty of time to listen to what people want from a governor.
McMillan, a lawyer, former six-term state legislator and senior adviser to Gov. Phil Bredesen, said she planned to file documents today setting up an exploratory committee for governor, a step required under state law to raise and spend campaign funds. |
The Commercial Appeal has the story
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| Legal News |
| L.A.W. elects officers, board |
| The Marion Griffin Chapter of the Lawyers' Association of Women announces its elected officers and board of directors. They are M. Bernadette Welch, president, Tennessee Department of Revenue; Candice L. Reed, president-elect, Counsel On Call; Mary Ellen Morris, secretary, Miller & Martin PLLC; Margaret Myers, treasurer, Adams and Reese LLP; Chasity Goodner, archivist, Walker, Tipps & Malone; Chancellor Ellen Hobbs Lyle, archivist, Part III Davidson County, Chancery Court Twentieth Judicial District; Patricia Eastwood, newsletter editor, Caterpillar Financial Services Corporation; Donna L. Roberts, newsletter editor, Stites & Harbison PLLC; Patty Daniel Stranch, newsletter editor, solo practitioner; Kristal Hall Boone, first year director, solo practitioner; Martha Boyd, first year director, Boult Cummings Conners & Berry PLC;
Clisby Hall Barrow, second year director, Vanderbilt University; Kim McMillan, second year director, Austin Peay State University; and
Patricia Head Moskal, past president, Boult Cummings Conners & Berry PLC. |
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| Scalia talks about public and private life on '60 Minutes' |
| Supreme Court Justice Antonin Scalia first agreed to talk to 60 Minutes correspondent Lesley Stahl about a new book he's written on how lawyers should address the court. But over the course of several conversations, the story grew into a profile -- his first major television interview -- including discussions about abortion and Bush v. Gore. |
Find out more from 60 Minutes
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| Death Penalty Commentary |
| Editorial: Death penalty still needs scrutiny |
| Sunday's Tennessean featured an editorial and commentary on the death penalty, acknowledging that with the recent Supreme Court ruling on lethal injection, executions will probably resume quickly. But the paper says a look should be taken at the entire process, that "studies have shown that the justice system is stacked against suspects who are indigent or members of racial and ethnic minorities, with insufficient resources committed to the public defenders who would represent them." |
Read the editorial
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| Kirby: Go ahead with death sentences |
| Tennessee District Attorneys General Conference Executive Director Wally Kirby writes a column saying that death sentences should now be carried out. He writes he knows of none "where an innocent person has been executed."
He says "prosecutors, as opposed to other attorneys, are ethically bound to seek justice. They are to protect the rights of the innocent as strongly as they pursue the guilty." |
Read the opinion piece in the Tennessean
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| Raybin: Level playing field for both sides in capital cases |
| Nashville lawyer David Raybin points out in a column that there was no clear majority as to why the Kentucky lethal injection protocol was valid. "Rather, the court simply found that the procedure did not offend the Constitution, leaving many questions unanswered for future litigation." Explaining his position, he writes, "We would do better to debate the way capital cases are tried in our nation rather than how the condemned are to make their unnatural exit from this world." |
Read the opinion piece in the Tennessean
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| Upcoming |
| YLD golf event raises funds for CASA |
| There is still time to sign up for the The 2nd Annual Child Advocacy Centers Charity Golf Tournament at the Rarity Pointe Golf Club. The event, sponsored by District 4 of the TBA's Young Lawyers Division, will be May 9 at Lake Tellico. All proceeds go to Child Advocacy Centers and related services in Bledsoe, Blount, Bradley, Loudon, McMinn, Meigs, Monroe, Morgan, Polk, Rhea and Roane counties.
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Find out more or register today
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| TBA Member Services |
| First Tennessee is TBA's preferred provider |
| First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more |
on the TBA Web site
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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.
© Copyright 2008 Tennessee Bar Association
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