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Court: TSC


Robert Jones, Shelby County Public Defender; Phyllis Aluko and Tony N. Brayton, Assistant Public Defenders (on appeal); Kathy Kent and Latonya Burrow, Assistant Public Defenders (at trial); Memphis, Tennessee, for the appellant, Devin Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Senior Counsel; Clarence Lutz, Assistant Attorney General (on appeal); William L. Gibbons, District Attorney General; Stacy McEndree and Karen Cook, Assistant District Attorneys General (at trial); Memphis, Tennessee, for the appellee, State of Tennessee.

Judge: KOCH

This appeal involves a defendant who shot two persons during a robbery at the home of one of the victims. One of the victims died. A Shelby County grand jury indicted the defendant for (1) premeditated and intentional murder, (2) murder during the perpetration of a robbery, (3) attempted first degree murder, and (4) especially aggravated robbery. A jury found the defendant guilty on all counts. At the penalty phase of the trial, the jury found the presence of the aggravating circumstances in Tenn. Code Ann. section 39-13-204(i)(6) and (7) (2006) and sentenced the defendant to death. In a separate sentencing hearing, the trial court sentenced the defendant to twenty-five years for the attempted first degree murder and especially aggravated robbery convictions and ordered these sentences to be served consecutively to each other and to the sentence of death. The defendant appealed his convictions and sentences to the Court of Criminal Appeals. The Court of Criminal Appeals, after concluding that the trial court's submission of the Tenn. Code Ann. section 39-13-204(i)(6) aggravating circumstance to the jury was harmless error, affirmed the defendant's convictions and the sentences. State v. Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039 (Tenn. Crim. App. July 6, 2007).

We have concluded that the Court of Criminal Appeals erred by holding that the evidence did not support submitting the Tenn. Code Ann. section 39-13-204(i)(6) aggravating circumstance to the jury. We also hold as follows: (1) the trial court committed no errors with regard to the admission or exclusion of evidence, (2) the trial court did not err with regard to its handling of the Arabic language interpreter or the dismissal of one of the jurors, (3) the prosecutor's closing arguments did not result in reversible error, (4) the trial court did not commit reversible error with regard to the instructions for lesser-included offenses, (5) the evidence supports the defendant's convictions for attempted first degree murder and especially aggravated robbery, (6) the sentences of attempted first degree murder and especially aggravated robbery are not excessive, and the trial court did not err by ordering them to be served consecutively, (7) the evidence supports the defendant's first degree murder convictions, as well as the jury's finding that the Tenn. Code Ann. section 39-13-204(i)(6) and (7) aggravating circumstances apply in this case, (8) the defendant's multiple constitutional challenges to Tennessee's death penalty procedures are without merit, and (9) the defendant's constitutional challenge to Tennessee's lethal injection protocol is without merit. We also agree with the Court of Criminal Appeals's conclusion with respect to the remaining issues and attach to this opinion as an appendix the relevant portions of that court's opinion. Finally, in the discharge of our obligation under Tenn. Code Ann. section 39-13-306 (2006), we have thoroughly reviewed the record in this case and have determined (1) that the defendant's death sentence was not imposed in an arbitrary fashion, (2) that the evidence fully supports the aggravating circumstances in Tenn. Code Ann. section 39-3-204(i)(6) and (7), (3) that these aggravating circumstances outweigh the mitigating circumstances offered by the defendant, and (4) that the defendant's death sentence, taking into consideration the nature of the offenses and the defendant himself, is neither excessive nor disproportionate to the penalties imposed in similar cases. Accordingly, the judgment of the Court of Criminal Appeals, as corrected by this opinion, is affirmed.



Court: TCA


Marlene Eskind Moses and John D. Kitch, Nashville, Tennessee, for the appellant, Gregory John Motycka.

D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellee, Mary Hendon Atkins.


In this divorce action, the husband appeals the trial court's award of alimony in solido, an upward deviation in child support, and the issuance of a permanent injunction against his mistress. The trial court awarded the wife alimony in solido in the amount of $360,000, which was satisfied with an assignment of the husband's equity in the marital residence. The trial court made an upward deviation in child support, requiring the husband to pay more than twice the presumptive amount. The trial court also made the husband's mistress an involuntary third party and issued a permanent injunction prohibiting her from having any contact with the wife or the parties' children. The husband contends the assignment of his equity in the marital residence as alimony in solido constituted an inequitable distribution in the martial property, the upward deviation in child support is not justified, and the trial court lacked jurisdiction to issue an injunction against his mistress. We affirm the award of alimony in solido. We reverse the upward deviation in child support because the record fails to establish specific facts that justify a deviation from the presumptive amount of child support. We vacate the permanent injunction issued against the husband's mistress because the injunction is void due to the fact the trial court did not have jurisdiction over her.


PEDRO AND GRISELDA VALADEZ, Individuals and as parents and next Friends of FATIMA VALADEZ, a minor v. NEWSTART, LLC, ET AL.

Court: TCA


Tim Edwards, Memphis, TN, for Appellants.

Darrell E. Baker, Jr., Peter B. Winterburn, Memphis, TN, for Appellees Newstart, LLC, and Carl Pean, M.D.

Jerry E. Mitchell, Justin E. Mitchell, Memphis, TN, for Appellee Ericka Lee Gunn-Hill, M.D.


In this appeal we are asked to reverse the trial court's grants of summary judgment to Appellees and adopt a loss of chance theory of recovery, thus allowing Appellants to recover for Appellees' alleged failure to timely notify them that their unborn child was afflicted with spina bifida such that they could participate in a clinical trial. Because our supreme court has expressly stated that Tennessee does not recognize a cause of action for loss of chance, we affirm.



Court: TCA


Glenn K. Vines, Jr., Memphis, TN, for Appellant.

R. Dale Thomas, Jesse D. Nelson, Jackson, TN, for Appellee.


This appeal involves a motion to dismiss for insufficient service of process. The summons issued for service on the defendant-appellee was served by the deputy sheriff on a co-defendant. The trial court granted the defendant-appellee's motion to dismiss. We affirm.



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