Caperton decision bolsters supporters of judicial selection

Analysis of the U.S. Supreme Court's decision Monday on recusal of judges who accept large campaign donations continues with comments from TBA President Buck Lewis and two editorials in support of the ruling. An article in the Commercial Appeal today features several Tennessee attorneys and judges speaking about the decision in Caperton v. Massey Coal Co. The paper also ran an editorial today in support the decision saying, "The case...underscores the potential problems that can arise when state appellate judges are forced to raise huge sums of money to run in popular elections." The Chattanooga Times Free Press also commended the ruling today, saying that the "avoidance of even the appearance of a conflict of interest lie[s] at the heart of due process."

Reflecting on the court's decision and the fact that the state legislature likely will give final consideration to the issue of judicial selection in Tennessee this week, TBA President Lewis said, "In this week, our legislature is poised to save merit selection at the very moment in history when the U. S. Supreme Court has decried one of the many problems associated with contested judicial elections. I hope the Senate will now act with dispatch and preserve in Tennessee what so many bar leaders in other states wish they had for their judicial branches of government."
TODAY'S OPINIONS
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01 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
07 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2009/certlist_061009.pdf


CONNIE ERDMAN v. SATURN CORPORATION

Court: TWCA

Attorneys:

Larry R. McElhaney, II, Nashville, Tennessee, for the appellant Connie Erdman.

Nathaniel K. Cherry, Nashville, Tennessee, for the appellee Saturn Corporation.

Judge: BLACKWOOD

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 hearing and reporting to the Supreme Court of findings of fact and conclusions of law. On appeal, Employee contends that the trial court erred in two ways: first, in finding that Employee's permanent partial disability award should be capped at one and one-half times her medical impairment rating; and second, in finding that Employee is not entitled to reconsideration of a prior injury to her left shoulder. Because the evidence does not preponderate against the findings, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2009/erdmanc_061009.pdf


PAUL L. MCMILLIN v. CRACKER BARREL OLD COUNTRY STORE
CORRECTION


Court: TCA

Attorneys:

Paul L. McMillin, pro se.

John Thomas Feeney, Nashville, Tennessee, for appellee, Cracker Barrel Old Country Store, Inc.

Judge: FRANKS

Plaintiff brought an action against defendant in 2005 and another action, similar in nature, against the same defendant in 2006. The actions were assigned to two separate Judges and the 2005 action was first dismissed by one Judge and subsequently the 2006 action was dismissed by the other Circuit Judge. The plaintiff has appealed the 2006 action. We affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/mcmillinp_corr_061009.pdf


WESLEY ROBERTS v. WILLIAM D. VAUGHN

Court: TCA

Attorneys:

Marlene Simpson, Jackson, Tennessee, for the Plaintiff/Appellant, Wesley Roberts.

William D. Vaughn, Columbus, Georgia, Defendant/Appellee, pro se.

Judge: KIRBY

This appeal involves the doctrine of res judicata. The plaintiff and the defendant had several business dealings, including loans, a marketing consultant agreement, and a lease agreement. The plaintiff filed a lawsuit against the defendant in general sessions court to recover monies allegedly owed under the marketing consultant agreement. The defendant failed to answer or appear. The general sessions court entered a default judgment in favor of the plaintiff. The plaintiff then filed the instant lawsuit against the same defendant in circuit court. In the circuit court lawsuit, the plaintiff sought to recover monies that the defendant allegedly owed from all of the parties financial dealings, including the marketing consultant agreement that was the subject of the previous general sessions judgment. The trial court granted summary judgment in favor of the defendant based on res judicata. The plaintiff now appeals. We affirm as to the claims in circuit court based on the marketing consultant agreement. As to the remaining claims, we reverse, finding that the defendant failed to establish that they are part of the cause of action that was adjudicated in the general sessions court.

http://www.tba2.org/tba_files/TCA/2009/robertsw_061009.pdf


CYNTHIA LEE ZIMMERMAN v. RICHARD LANCE ZIMMERMAN

Court: TCA

Attorneys:

Judy A. Oxford, Franklin, Tennessee, for the appellant, Cynthia Lee Zimmerman, appellant.

Stephen Walker Pate, Murfreesboro, Tennessee, for the appellee, Richard Lance Zimmerman.

Judge: COTTRELL

The husband fled the state without making any provisions for his wife's support. She filed a petition for legal separation and asked the trial court for permission to sell the marital home to pay her living expenses. After the home was sold, the trial court allowed the wife to use half the net proceeds for support and placed the other half in escrow. Both parties subsequently filed for divorce. After a hearing at which the court declined to consider awarding alimony to the wife because of procedural reasons, the court declared the parties divorced pursuant to Tenn. Code Ann. section 36-4-129(b). The court divided the remaining funds from the sale of the marital home between the parties, giving most of the money to the husband in the belief that wife's earlier receipt of proceeds from the home amounted to an earlier division of marital property in the wife's favor. The wife argues on appeal that she was entitled to a greater share of the remainder because the first half of the proceeds was actually awarded to her as a form of support and was used for that purpose, and thus that the funds previously escrowed constituted the only marital property within the court's power to divide. We agree, and we amend the trial court's division of marital property, but we affirm its decision not to award alimony to the wife.

http://www.tba2.org/tba_files/TCA/2009/zimmermanc_061009.pdf


RONALD FIELDING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paula Ogle Blair, Nashville, Tennessee, attorney for appellant, Ronald Fielding.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Ronald Fielding, appeals as of right the Davidson County Criminal Court's denial of his petition for post-conviction relief challenging his convictions for three counts of rape of a child, two counts of aggravated sexual battery and one count of rape for which he received an effective fifty-year sentence to be served in the custody of the Department of Correction. On appeal, he alleges that his guilty plea was involuntary and that both trial and appellate counsel were ineffective. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/fieldingr_061009.pdf


STATE OF TENNESSEE v. DAVID LYNN JORDAN

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender, Jackson, Tennessee, and Lloyd Tatum, Henderson, Tennessee, for the appellant, David Lynn Jordan.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

A Madison County jury convicted the defendant, David Lynn Jordan, of three counts of first degree premeditated murder, two counts of first degree felony murder, two counts of attempted first degree murder, two counts of aggravated assault, and one count of leaving the scene of an accident. The trial court merged the felony murder convictions with the premeditated murder convictions involving the same victims and the aggravated assault convictions with the attempted murder convictions. For the three first degree murder convictions, the defendant was sentenced to death. Additionally, he was sentenced as a Range I, standard offender to consecutive terms of twenty-five years for each of the attempted first degree murder convictions, six years for each of the aggravated assault convictions, and thirty days for leaving the scene of an accident. The defendant now seeks review by this court of both his convictions and resulting sentences of death, presenting the following issues for review: (1) whether the trial court erred by failing to provide a limiting instruction regarding the use of hearsay statements during the testimony of the State's expert witness; (2) whether the defendant was denied a fair trial by the use of interpretations of his confession and alleged comments which were not videotaped; (3) whether the trial court erred by prohibiting members of the defendant's family from remaining in the courtroom during the penalty phase; (4) whether the prosecutorial misconduct during the penalty phase denied the defendant a fair trial; (5) whether the trial court erred in admitting certain victim impact testimony; (6) whether the jury instruction on the felony murder aggravating factor is unconstitutional; (7) whether the trial court erred in admitting certain photographs during the penalty phase; (8) whether the evidence was sufficient to support the application of aggravating factors; (9) whether Tennessee's death penalty statutes are constitutional; (10) whether cumulative error requires relief; and (11) whether the death sentence in this case is disproportionate to death sentences in other cases. Following review, we affirm the defendant's convictions and the sentences of death.

http://www.tba2.org/tba_files/TCCA/2009/jordand_061009.pdf


KIMBERLY ANN LYTTLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, attorney for appellant, Kimberly Ann Lyttle.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles Frank Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Kimberly Ann Lyttle, appeals as of right the Marshall County Circuit Court's denial of her petition for post-conviction relief challenging her guilty plea convictions for possession with intent to sell cocaine and three counts of sale of cocaine and her resulting fourteen-year effective sentence. She argues that her trial counsel's ineffective assistance rendered her guilty pleas involuntary. The State argues that the trial court properly denied post-conviction relief. Following our review, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/lyttlek_061009.pdf


STATE OF TENNESSEE v. ELVIN HUBIE PEARSON and MARCUS ANTHONY PEARSON

Court: TCCA

Attorneys:

J. Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Marcus Anthony Pearson, and Manuel B. Russ, Nashville, Tennessee, for the appellant, Elvin Hubie Pearson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendants, brothers Elvin Hubie Pearson and Marcus Anthony Pearson, were each charged with the first degree premeditated murder of Kenneth Scott, the felony murder of Scott while attempting the first degree murder of Frank Newsom, the felony murder of Scott while attempting the first degree murder of Lamarco Comer, the attempted first degree premeditated murder of Newsom, and the attempted first degree murder of Comer. Following a jury trial, Elvin was found guilty of the attempted voluntary manslaughter of Scott, and Marcus was found guilty of the first degree premeditated murder of Scott. Additionally, both were found guilty of both counts of felony murder and both counts of attempted first degree murder. Elvin received a sentence of life in the Department of Correction for the felony murder of Scott while attempting the first degree murder of Newsom, a conviction into which his attempted voluntary manslaughter conviction as well as his other felony murder conviction were merged. Marcus received a sentence of life in the Department of Correction for the first degree murder of Scott, a conviction into which both of his felony murder convictions were merged. Both Elvin and Marcus also received twenty years in the Department of Correction for each of their two attempted first degree murder convictions, those sentences to be served concurrently with each other but consecutively to their life sentences. In this direct appeal, both Elvin and Marcus contend that: (1) the State presented insufficient evidence of premeditation; and (2) the State committed prosecutorial misconduct in recalling a certain witness, Karen Carney. Elvin additionally contends that the trial court erred because it: (1) denied his motion to suppress Newsom's out-of-court identification; (2) denied his motion to suppress Comer's in-court identification; (3) did not allow Comer to be properly impeached regarding his prior juvenile convictions; (4) did not allow Newsom to be properly impeached regarding his prior felony convictions; (5) allowed the State to play a portion of one of his phone calls from jail; (6) failed to strike certain improper statements in the State's closing argument; (7) allowed the State to improperly impeach by transcript; (8) ordered consecutive sentences; and (9) considered irrelevant -2- issues at sentencing. Finally, Marcus also contends that the trial court erred in failing to grant his severance motion. After our review, we affirm both the Defendants' convictions but remand their cases for resentencing on the issue of their consecutive sentences.

http://www.tba2.org/tba_files/TCCA/2009/pearsone_061009.pdf


STATE OF TENNESSEE v. SHANTAIN S. STAFFORD

Court: TCCA

Attorneys:

John Chadwick Long, Old Hickory, Tennessee, for the appellant, Shantain S. Stafford.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Lawrence R. Whitley, District Attorney General; and C. Wayne Hyatt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Shantain S. Stafford, was convicted of aggravated robbery following a jury trial. He was sentenced as a Range II, multiple offender to twenty years in the Department of Correction. In this direct appeal, the Defendant challenges the sufficiency of the evidence to support his conviction and contends that his sentence is excessive. After a review of the record, we conclude that the State presented evidence sufficient to support the Defendant's conviction and that the trial court did not err in sentencing him. Accordingly, the judgment of the Sumner County Criminal Court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/staffords_061009.pdf


LACARL TERRELL TIGG v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John Baker, Murfreesboro, Tennessee, for the appellant, LaCarl Terrell Tigg.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William Whitesell, District Attorney General; and Trevor H. Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, LaCarl Terrell Tigg, appeals as of right the Rutherford County Circuit Court's denial of his petition for post-conviction relief. The Petitioner alleges that his guilty plea to sale of 0.5 grams or more of cocaine, a Class B felony, was not voluntarily, knowingly, and understandingly entered due to the ineffective assistance of counsel. Specifically, he contends that trial counsel failed to investigate and adequately advise him on his case and that he was coerced into pleading guilty. After the appointment of counsel and an evidentiary hearing, the post-conviction court found that the Petitioner failed to prove his allegations by clear and convincing evidence and denied the petition. Following our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/tiggl_061009.pdf


STATE OF TENNESSEE v. DWIGHT WOODLEE

Court: TCCA

Attorneys:

David H. Veile and Jack D. Lowery, Lebanon, Tennessee, attorneys for appellant, Dwight Woodlee.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Lisa Zavagiannis, District Attorney General; and Mark E. Tribble, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Dwight Woodlee, appeals as of right his guilty plea convictions for vandalism and civil rights intimidation, both Class D felonies, for which the trial court imposed concurrent four year sentences to be served on probation. He contends that the trial court erred in denying his application for judicial diversion. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/woodleed_061009.pdf


TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
Bass Berry lays off 10 lawyers statewide
Bass Berry & Sims today layed off 10 associate attorneys and 22 staff members from its offices in Knoxville, Memphis and Nashville. The cuts represent five percent of the firm's attorneys and nine percent of support staff. In addition to the cuts, the firm said its summer class will be smaller than in previous years, the starting date for new hires will be deferred until January, and existing associate attorneys' pay will be frozen.
Read more in the Nashville Post (subscription necessary)
Commission censures Lockett, calls for resignation
The Knox County Commission voted 16-1 this afternoon to censure county Law Director Bill Lockett and ask for his resignation within five business days. The move comes after the county Ethics Committee voted unanimously last night to petition the commission to take action. Meanwhile, Lockett's former law firm says most of the $30,000 originally identified has been paid back but that additional missing funds have been uncovered. The News Sentinel has the latest.
Read about the commission's action
Read about the law firm's findings
GOP now holds majority on state election commission
Two east Tennessee Republicans were formally named to the state Election Commission today, giving the GOP a majority on the expanded panel. One of the new members is Judy Blackburn of Morristown, a retired small business owner and member of the Hamblen County Election Commission. She will be the first woman ever to serve on the commission. The second member is Lafollette businessman Kent Younce.
Learn more in Humphrey on the Hill in the News Sentinel
JAG applications spike in current economy
Several branches of the military report they have received a record number of applicants for Judge Advocate General Corps positions. The Navy, for example, has received more than twice as many applications as last year. The chief judge advocate for Army recruiting says that while the military cannot match the salaries of big firms, it can offer job stability and benefits in uncertain economic times.
The National Law Journal has more
Missing judge gone fishing
Parties gathered for a preliminary hearing in a Chattanooga murder case yesterday but without the judge and two key witnesses. When General Sessions Court Judge Bob Moon did not show, the case was transferred to Judge Ron Durby. Reluctant to take up a case already being handled by a colleague, Durby rescheduled the hearing for Moon. Durby, however, did get to the bottom of the case of the missing judge. Reached by phone, Moon said he had taken a few vacation days to go fishing after being advised that the material witness would not appear in court.
Read the story in the Chattanoogan
Nashville LAW chapter names new officers
The Marion Griffin Chapter of the Lawyers Association for Women recently named new officers for the coming bar year. Candice Reed with Counsel on Call assumes the office of president. Donna L. Roberts with Stites & Harbison PLLC takes over as president-elect. Mary Dohner Smith with Constangy, Brooks & Smith is secretary and Margaret R. T. Myers with Adams and Reese LLP is treasurer. They are all from Nashville.

SETLAW elects new board
SouthEast Tennessee Lawyers Association for Women recently named officers for the new bar year. Kathryn Russell with Campbell & Campbell is president. Amanda B. Rogers with Luther Anderson PLLP is president-elect. Heather Magnuson with Leitner, Williams, Dooley & Napolitan PLLC is treasurer, while Kathryn G. Smith with the EPB Legal Division is secretary. All are from Chattanooga.

Legislative News
Constitutional convention bill holding judicial selection hostage
Senate Republican Leader Mark Norris is attempting to have the Senate consider a late-filed bill calling for a state constitutional convention on judicial selection and has repeatedly postponed a final vote on judicial selection saying the two bills are "inextricably intertwined." Senate Democratic Leader Jim Kyle, meanwhile, says it is too late in the session to bring new legislation to the floor. The Senate is scheduled to consider the judicial selection bill Thursday if the parties can reach agreement.
Read more from Humphrey on the Hill in the News Sentinel
TBA Member Services
TBA, Bank of America team up for no-fee credit card
The TBA World Points Rewards MasterCard from Bank of America places a new world of rewards, privileges, and service at your command -- with no annual fee.
Click here to learn more

 
 
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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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