Judicial selection action accelerates

Three state legislative committees have taken action on bills with amendments that would, with only minor differences, continue merit selection, performance evaluations and retention elections for Tennessee judges.

The House Finance Committee's Budget Subcommittee adopted an amendment which completes HB1448/SB1573 by Reps. Joe McCord and Kent Coleman and Senators Jamie Woodson and Joe Haynes, and recommended it to the full committee for passage.

The House Government Operations Committee, which reviews all bills that create a board or commission, but cannot defeat a bill, recommended for passage HB1892/SB1715 by Reps. Kent Coleman and Jon Lundberg and Sen. Doug Overbey to the full House. In addition, the committee forwarded with a negative recommendation HB2141/SB2114 by Reps. Jon Lundberg and Kent Coleman and Senators Mark Norris and Dewayne Bunch. A negative recommendation still means that a bill can be considered.

At press time, the Senate Judiciary Committee adopted an amendment to SB1715 offered by bill sponsor Sen. Doug Overbey. The amendment offers a fresh approach to selection of commission members and preserves merit selection, performance evaluation and retention elections. The committee then deferred action on all judicial selection bills until Tuesday.

Download the Overbey amendment

TODAY'S OPINIONS
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01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
07 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
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00 - Formal Ethics Opinions - BPR

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STATE OF TENNESSEE v. JOEY DEWAYNE THOMPSON

Court: TSC

Attorneys:

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Joey Dewayne Thompson.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe and Cameron L. Hyder, Assistant Attorneys General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant was initially charged with premeditated first degree murder and felony murder of one victim (Counts I and II in the indictment) and the attempted first degree murder of a second victim (Count III). He was found guilty of the lesser-included offense of second degree murder on the first count, a mistrial resulted on the second count, and, as to the third count, the jury acquitted the defendant on the primary charge but returned a guilty verdict of attempted second degree murder, a lesser-included offense. On direct appeal, the Court of Criminal Appeals, because of error in the instructions to the jury, reversed the convictions on Counts I and III and remanded for a new trial. Prior to the second trial, the State voluntarily dismissed Count III, the Attempted second degree murder charge, and prosecuted the defendant only on Count I, for second degree murder, and Count II, for felony murder, both of the first victim. After the jury returned verdicts for the lesser-included offenses of voluntary manslaughter on Count I and second degree murder on Count II, the trial court imposed sentence and merged the two convictions. The defendant appealed, contending that because the prior jury had in effect returned a verdict of acquittal on the attempted first degree murder of the second victim, and because the alleged attempted first degree murder was the only possible predicate offense to support the felony murder charge in the retrial, the trial court had erred by allowing the felony murder charge to go to trial. The Court of Criminal Appeals affirmed the conviction. Because collateral estoppel, as a corollary in criminal cases of the constitutional protection against double jeopardy, precludes a guilty verdict on the requisite predicate offense for felony murder, we must reverse and dismiss the second degree murder conviction as a lesser-included offense of the improper primary charge. Otherwise, the judgment of the Court of Criminal Appeals upholding the conviction and sentence for voluntary manslaughter is affirmed.

http://www.tba2.org/tba_files/TSC/2009/thompsonj_050609.pdf

KOCH Concurring
http://www.tba2.org/tba_files/TSC/2009/thompsonj_con_050609.pdf


KEVIN CAMPBELL v. PML, INC.

Court: TWCA

Attorneys:

James F. McGrath and Fredrick J. Bissinger, Nashville, Tennessee, for the appellant, PML, Inc.

Edward L. Martindale, Jr., Jackson, Tennessee, for the appellee Kevin Campbell.

Judge: CHILDRESS

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. Employee was injured while attempting to adjust a moving conveyor belt. A post-accident drug screen of Employee revealed the presence of THC in his system. The amount of THC in Employee's system was of such levels as to trigger the statutory presumption created by Tennessee Code Annotated section 50-6-110(c)(1) that his drug use was the proximate cause of his injury. Employer denied Employee's' claim. The trial court found that Employee had rebutted the statutory presumption by a preponderance of the evidence and awarded benefits. Employer has appealed the trial court's finding that the presumption created by Tennessee Code Annotated section 50-6-110(c)(1) had been rebutted. Employee has also appealed both the trial court's award and denial of his motion for discretionary costs. Although we modify the denial of the motion for discretionary costs, we otherwise affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/campbellk_050609.pdf


DONNA L. COLLINS v. RANDY M. COLLINS

Court: TCA

Attorneys:

C. Tracey Parks, Lebanon, Tennessee, for the appellant, Randy M. Collins.

John R. Phillips, Jr., Gallatin, Tennessee, for the appellee, Donna L. Collins.

Judge: FARMER

In this divorce action, Husband appeals the trial court's award of $4,850.00 to Wife for attorney fees and its determination that Wife may possess the marital home until the parties' children graduate from high school. We affirm.

http://www.tba2.org/tba_files/TCA/2009/collinsd_050609.pdf


IN RE C.S.

Court: TCA

Attorneys:

Brian J. Hunt, Clinton, Tennessee for the Appellant, T. S.

Brennan Lenihan, Oak Ridge, Tennessee for Appellee, L.W.

Judge: MCCLARTY

This case involves an appeal concerning the termination of parental rights. L.W. ("Grandmother") filed a petition seeking to terminate the parental rights of her daughter, T.S., ("Mother") and James (Jim) R. ("Father") to the minor child, C.S. After a trial, the Juvenile Court found and held interalia, that clear and convincing evidence existed to terminate Mother's parental rights to C.S. based upon Tenn. Code Ann.Section 36-1-102, abandonment, and that the Mother's lifestyle has led to a persistence of conditions based upon Tenn. Code Ann. Section 36-1-113(g) and that it is in the child's best interest to terminate the Mother's parental rights. Mother appeals the termination of her parental rights to the minor child C.S. We affirm.

http://www.tba2.org/tba_files/TCA/2009/cs_050609.pdf


GARY L. WATTS AND JANET WATTS, Parents And Next Friends of CLINTON D. WATTS, Deceased v. EARNESTINE J. MORRIS, ET AL.

Court: TCA

Attorneys:

Richard M. Carter and J. Lewis Wardlaw, Memphis, Tennessee, for the Appellants, Gary L. Watts and Janet Watts.

J. Michael Fletcher, Memphis, Tennessee, for the Appellee, The City of Memphis.

Judge: FARMER

This case arises from the death of a graduate student near the University of Memphis. While crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault of the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.

http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf

KIRBY Concurring
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf


ANTONIO ARNOLD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Antonio Arnold, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tracye N. Jones, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Antonio Arnold, appeals as of right the Shelby County Criminal Court's summary dismissal of his petition for post-conviction relief. The post-conviction court dismissed the petition based upon its finding that the petition did not contain sufficient and specific factual bases in support of his claim for relief. Following our review, we reverse the judgment of the post- conviction court and remand the case for an evidentiary hearing.

http://www.tba2.org/tba_files/TCCA/2009/arnolda_050609.pdf


STATE OF TENNESSEE v. RICKEY DICKERSON

Court: TCCA

Attorneys:

Eric Christensen, Memphis, Tennessee, for the appellant, Rickey Dickerson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tracye N. Jones and Damon K. Griffin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Rickey Dickerson, was convicted by a Shelby County Criminal Court jury of two counts of second degree murder and sentenced to concurrent terms of twenty-two years as a Range I offender. On appeal, he challenges the trial court's admission of photographs of one of the victims, the trial court's giving a jury instruction on criminal responsibility, and the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/dickersonr_050609.pdf


HAMADI GYASI HALEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance B. Mayes, Nashville, Tennessee, for the appellant, Hamadi Gyasi Haley.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin James Allen, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Hamadi Gyasi Haley, appeals from the Knox County Criminal Court's denial of post-conviction relief from his convictions for first degree felony murder, especially aggravated robbery, and aggravated robbery for which he is serving concurrent sentences of life, seventeen years, and eight years, respectively. The petitioner contends that he received the ineffective assistance of counsel and that his constitutional rights were violated because he is actually innocent and because the State lost potentially exculpatory evidence. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/haleyh_050609.pdf


HENRY LEE HAWKINS, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Vanessa M. Cross, Memphis, Tennessee, for the appellant, Henry Lee Hawkins, Jr.

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

Judge: THOMAS

The petitioner, Henry Lee Hawkins, Jr., appeals from the Shelby County Criminal Court's denial of his petition for post-conviction relief from his convictions on four counts of aggravated robbery and effective sentence of 34 years in the Department of Correction. On appeal, the petitioner argues that he received the ineffective assistance of counsel at trial. After reviewing the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/hawkinsh_050609.pdf


JERMAINE JORDAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John David Wicker Jr., Nashville, Tennessee, for the appellant, Jermaine Jordan.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth Bingham Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Christopher Buford, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Jermaine Jordan (hereinafter "the petitioner"), pleaded guilty to attempted first degree murder and especially aggravated kidnaping for which he received a sentence of seventeen years' imprisonment. He now appeals from the Criminal Court of Davidson County's denial of post-conviction relief arguing ineffective assistance of counsel based on trial counsel's failure to adequately interview and investigate witnesses. The petitioner further alleges that he entered an involuntary and unknowing guilty plea because counsel erroneously advised him that he would be eligible for parole. Following our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/jordanj_050609.pdf


STATE OF TENNESSEE v. ANDREW MICHAEL RODRIGUEZ

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; and David S. Stockton, Assistant District Public Defender, attorney for appellant, Andrew Michael Rodriguez.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe L. VanDyke, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

A Hardeman County grand jury indicted the defendant, Andrew Michael Rodriguez, for one count of rape of a child, a Class A felony. The defendant entered a best interest plea to one count of sexual battery by an authority figure, a Class C felony, with an agreed sentence of six years as a Range I, standard offender. The manner of service of the sentence was left to the discretion of the trial court. Following a sentencing hearing, the trial court denied the defendant's request for judicial diversion, probation, or other alternative sentencing and ordered the defendant's sentence to be served in the custody of the Department of Correction. In this appeal as of right, the defendant argues that the trial court erred in denying his request for probation or alternative sentencing. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/rodrigueza_050609.pdf


STATE OF TENNESSEE v. DANIEL EARL WILLIAMS

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant District Public Defender, attorneys for appellant, Daniel Earl Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; James G. Woodall, District Attorney General; and Anna Banks Cash, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

A Madison County jury convicted the defendant, Daniel Earl Williams, of one count of driving under the influence, first offense, a Class A misdemeanor, one count of violation of the implied consent law, a Class A misdemeanor, one count of violation of the registration law, a Class C misdemeanor, and one count of violation of the open container law, a Class C misdemeanor. Following trial, the defendant submitted to having seven prior driving under the influence offenses and was convicted of driving under the influence, eighth offense, a Class E felony. The trial court sentenced the defendant as a Range I offender to serve two years in the custody of the Department of Correction. The defendant's sole issue on appeal is that the evidence produced at trial was insufficient to support his felony conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/williamsd_050609.pdf


Permissive Authority of Commissioner of Education to Withhold State Education Finance Funds

TN Attorney General Opinions

Date: 2009-05-04

Opinion Number: 09-70

http://www.tba2.org/tba_files/AG/2009/ag_09_70

TODAY'S NEWS

Legal News
Legislative News
Supreme Court Report
Upcoming
TBA Member Services

Legal News
Torture memo probe may lead to disbarments
The Justice Department reportedly is nearing the end of its investigation of John Yoo, Jay Bybee and Steven Bradbury -- former department lawyers whose legal memos authorized harsh interrogations. According to unnamed sources, the final report will refer some or all of the men to bar associations for possible disciplinary action, but likely will not call for criminal action.
NPR reported the story
Mental health courts increase despite debate
Mental health courts have expanded from just a handful to more than 250 today. Despite that growth, some experts question whether the courts are the most appropriate way to manage mentally ill who fall into trouble with the law, fearing their use can lead to greater criminalization and stigma. Mental health advocates also express concern that criminals get access to treatment before law-abiding patients. Others in the mental health community, however, support the courts as a way to help the mentally ill, increase public safety and reduce costs associated with recidivism.
Read more about the debate in this AP story on Tri-Cities.com
Birch to co-chair new panel on Nashville's public hospitals
Nashville Mayor Karl Dean today named a panel of community leaders to work on a better business model for the city's cash-strapped public hospitals, especially Nashville General Hospital at Meharry. The committee will be co-chaired by former Tennessee Supreme Court Chief Justice Adolpho A. Birch Jr. and Jack Bovender, chairman and retired CEO of Hospital Corporation of America.
Read more about the initiative from the Tennessean's political blog
Attorney charged with faking his death
A lawyer who faked his death and left the state was charged yesterday with false impression of death and filing a fraudulent insurance claim. In November 2008, William Grothe, a former attorney for a Music Row royalty company in Nashville, faked his own death and moved to Montana. He was later found at his wife's home in Franklin. WSMV-TV reported the news.

Jewett named new Brentwood city judge
Nashville attorney Laurie Jewett has been named the new Brentwood city judge. She replaces longtime judge Thomas Schlater, who announced his retirement earlier this year and will leave office in June. Jewett, one of 27 to apply for the job, is a part-time judicial magistrate in Davidson County. She also teaches civil and criminal litigation to paralegals. In her 29 years of practicing law, Jewett has handled medical malpractice, real estate, property and white-collar crime defense. She received her law degree from Vanderbilt University in 1980. The Tennessean reported the news.

Memphis moot court teams have good showing
The University of Memphis School of Law National Moot Court team reached the regional final round and won second place for its brief -- a distinction that earned the team a trip to the national final in New York City as one of the top 28 teams out of 175 in the country. The school's ABA-NAAC team competed in the Brooklyn regional and advanced to the "Sweet 16" out of 31 teams. The Wagner team reached the "Sweet 16" of its competition out of 40 teams. The teams were coached by Barbara Kritchevsky and Tim Perkins (class of 2005).

New civil rights museum opens in Tuskegee
The Tuskegee Human and Civil Rights Multicultural Center tells the story of slavery in Alabama's Black Belt region as well as the rise of the Tuskegee Institute. It also includes a memorial to the 623 men who were involved in the infamous Tuskegee syphilis study. Attorney Fred Gray, who represented Rosa Parks, Martin Luther King Jr. and the syphilis study victims, has been the brains and financing behind the museum, which is located 40 miles west of Montgomery, Ala. Gray recently spoke with the Tennessean about his vision for the museum and what the future holds for him.
Read the interview
Legal web sites win 'Webby'
The Webby Awards, known as the "Oscars of the Internet," were presented this week. In the legal category, the winner was WomensLaw.org, a website dedicated to helping victims of domestic abuse. GetLegal.com won the People's Voice Award, which is based on popular voting. That site offers written content and video explaining basic legal principles and information on a variety of legal topics, including crime, personal injury, divorce and immigration.
See all the winners
Legislative News
Subcommittee advances court reporter licensing
The Civil Practice Subcommittee of the state House's Judiciary Committee approved legislation yesterday to license court reporters. The TBA now favors court reporter licensure with the condition that discovery conducted under Tennessee Rules of Civil Procedure Rules 28, 29 and 30 does not require licensed court reporters.

Panel votes to merge ethics, finance agencies
Without debate, House State Government Subcommittee members this morning approved legislation that could eliminate the State Ethics Commission established three years ago in the wake of the Tennessee Waltz corruption probe. The measure approved would transfer the duties of the commission to the Registry of Election Finance if lawmakers decide not to renew the commission's authority this year. Supporters of the bill argue the move will save money.
Learn more in the Times Free Press
Southern conservative to lead Senate Judiciary's GOP
Senate Republicans are turning to Jeff Sessions, R-AL, as their point man on the Judiciary Committee and any battle that may ensue against the president's yet-unnamed Supreme Court nominee. Sessions will hold the post of ranking member through the end of next year, and then is expected to yield to Sen. Charles Grassley, R-IA, who has more seniority on the committee. The reshuffling comes on the heels of past ranking member Arlen Specter's decision to switch parties.
Read more about Sessions in this AP story in the Washington Post
Supreme Court Report
Hot List offers analysis of cases coming before Tennessee Supreme Court
Nashville attorneys David Raybin and Sarah Richter report that a number of new civil and criminal cases have been granted review by the Tennessee Supreme Court. You can read their analysis of those grants on the Raybin and Richter Tennessee Supreme Court Hot List.
Read the Hot List now
Obama seeks speedy action on court pick
President Barack Obama, eager to have his Supreme Court nominee seated by early October, has begun calling senators who will play key roles in the confirmation process, the Associated Press reports. While it is unclear when Obama will name a nominee, aides say he wants the process to move rapidly enough so that the Senate can confirm the person shortly after returning from its August recess, if not sooner.

U.S. Supreme Court rules on ID theft intent
A unanimous Supreme Court said Monday that undocumented workers who use phony IDs can't be considered identity thieves without proof they knew they were stealing real people's Social Security and other numbers. The court's decision limits federal authorities' use of a 2004 law, intended to get tough on identity thieves, against those picked up in workplace raids found to be using false identification.
The Memphis Commercial Appeal has this AP story
Upcoming
TJC to honor Mother of the Year at Nashville event
The Tennessee Justice Center (TJC) will honor Brittany Wilson of Kingston Springs as one of its Mothers of the Year during a reception Thursday at the Stites and Harbison law offices in Nashville. The 5:30 p.m. event, which is open to the public, will recognize Wilson's persistence in battling to obtain medical services for her twin girls and for extraordinary commitment to the health care of all children and families. She is one of six mothers and grandmothers to be honored by the TJC as a Mother of the Year.
Visit the TJC website to learn more
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Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
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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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