Lawyers cited for good works at Equal Justice Conference

Tennessee Attorney General Robert Cooper last week lauded the efforts of the Tennessee Bar Association for encouraging attorneys in Tennessee to do more pro bono work. Cooper was keynote speaker at the 2009 Equal Justice Conference at Paris Landing State Park. He updated the audience on his office's efforts to protect the citizens of Tennessee during the current economic downturn, including malevolent credit counseling services, notarios, utility decoupling and foreclosure issues. Nashville lawyer Margaret Behm, chair of the Tennessee Supreme Court's Access to Justice Commission, also spoke at the conference.

During the event Rep. Gary Moore and Sen. Mike Stewart were given the Legislative Leadership Award; Adinah Robertson of the Legal Aid Society of Middle Tennessee & the Cumberlands won the B. Riney Green Award; and the New Advocate of the Year award came down to a tie between Craig Barnes of Memphis Area Legal Services and Spring Miller of Southern Migrant Legal Services.
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JIMMY COLLINS v. COCA-COLA BOTTLING COMPANY CONSOLIDATED, INC. ET AL.

Court: TWCA

Attorneys:

P. Allen Phillips, Jackson, Tennessee, for the appellant, Coca-Cola Bottling Company Consolidated, Inc.

Art D. Wells, Jackson, Tennessee, for the appellee, Jimmy Collins.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General, for the appellee, The Second Injury Fund.

Judge: COLE

Employee alleged that he sustained a gradual injury to his lower back as a result of his work as a route salesman for a soft drink company. He was treated by several doctors, to whom he gave differing histories concerning how his injury occurred. The trial court found that he had sustained a compensable injury and awarded 70% permanent partial disability apportioned between Employer and the Second Injury Fund. Employer appeals, contending the evidence preponderates against the trial court's finding. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/collinsj_092909.pdf


LARRY EUGENE DOUGLAS v. DURA-CRAFT MILLWORK, INC. ET AL.

Court: TWCA

Attorneys:

Sean Antone Hunt, Memphis, Tennessee, for the appellants, Dura-Craft Millwork, Inc., and American National Property and Casualty Co.

Charles L. Hicks, Camden, Tennessee, for the appellee, Larry Eugene Douglas.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General, for the appellee, The Second Injury Fund.

Judge: KURTZ

Employee injured his neck in the course of his employment. While he was receiving treatment for that injury, his doctors discovered that he had a serious spinal condition. The treating doctors testified that this condition was unrelated to his work injury. After receiving treatment, Employee returned to work at his previous job. Several months later, his position was eliminated. He declined an offer of alternate employment. The trial court found that he did not have a meaningful return to work and awarded 65% permanent partial disability ("PPD") to the body as a whole. On appeal, Employer contends that the trial court erred by adopting the impairment rating of an evaluating physician and by finding that Employee did not have a meaningful return to work. We agree and modify the judgment accordingly.

http://www.tba2.org/tba_files/TSC_WCP/2009/douglasl_092909.pdf


IN RE A. G.

Court: TCA

Attorneys:

Bobby A. McGee, Linden, Tennessee, for the appellant, C.G.

Stephen Mills, Nashville, Tennessee, for the appellee, M.H.

Judge: COTTRELL

The trial court found the mother of a nine year old girl in criminal contempt for withholding visitation from the child's father and imposed a forty day sentence. The court suspended the sentence, contingent upon the mother's strict compliance with the court's orders. Because she failed to comply, the suspension was lifted, and she served nine days of her sentence prior to a new suspension. By that time, custody of the child had been transferred to the father, and the mother was ordered to pay him child support. The father filed a motion to lift the suspension of the remainder of the sentence because of the mother's failure to pay the ordered child support. After a hearing the trial court ordered Mother to serve the remainder of the sentence. Mother's appeal of the order lifting the suspension is not justiciable since she served the entire sentence. The father later filed another contempt petition for non-payment of child support. Neither the mother nor her attorney appeared at the scheduled contempt hearing, and the trial court pronounced judgment, holding the mother in contempt and sentencing her to an additional forty days. Mother argues on appeal that the trial court deprived her of her due process rights. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2009/ag2_092909.pdf


IN THE MATTER OF A. G.

Court: TCA

Attorneys:

Cynthia A. Cheatham, Manchester, Tennessee, for the appellant, C. G.

Joel Stephen Mills, Nashville, Tennessee, for the appellee, M. H.

Judge: COTTRELL

The Juvenile Court gave a father custody of his seven year old daughter, and it suspended the child's visitation with her mother after hearing proof that the mother had persistently ignored court orders and tried to undermine the father's relationship with his child. About seven months later, the mother filed an appeal of the Juvenile Court's order to the Circuit Court. The Circuit Court dismissed the appeal as untimely because Tenn. Code Ann. section 37-1-159 sets strict time limits for the filing of appeals from final orders of the Juvenile Court to Circuit Court. The mother argues that her appeal to Circuit Court was in fact timely because the Juvenile Court's order was not final since it was not "marked on its face as filed for entry," as is required by the Tennessee Rules of Civil Procedure. Based on the evidence in the record that the order had been filed and stamped, we affirm the Circuit Court.

http://www.tba2.org/tba_files/TCA/2009/ag_092909.pdf


IN RE ASHLEY M.

Court: TCA

Attorneys:

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Vicky M.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jill Z. Grim, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

Judge: SUSANO

This is termination of parental rights case. In July 2005, Ashley M. (DOB: June 3, 1993) ("the Child") was adjudicated dependent and neglected. Two years later, the State sought to terminate the parental rights of Vicky M. ("Mother") and James M. ("Father"). Following a hearing, the trial court found (1) that grounds alleged in support of the petition had been clearly and convincingly established and (2) that the proof showed, again clearly and convincingly, that it is in the Child's best interest to terminate the parental rights of both parents. The trial court ordered that the rights of both parents were terminated. Mother appeals, but only as to the denial of her motion to continue the hearing below. We affirm.

http://www.tba2.org/tba_files/TCA/2009/ashleym_092909.pdf


DONALD F. BRADFORD, ET AL. v. JAMES W. SELL, ET AL.

Court: TCA

Attorneys:

Rick J. Bearfield, Johnson City, Tennessee, for the appellants, Donald F. Bradford and Wendy L. Bradford.

Robert L. Arrington and Frank A. Johnstone, Kingsport, Tennessee, for the appellees, James W. Sell and Carolyn R. Sell.

Judge: SUSANO

This is continuing litigation between property owners James W. Sell and Carolyn R. Sell ("the Landlords") and their tenants, Donald F. Bradford and Wendy L. Bradford ("the Tenants"). In Bradford v. Sell, 240 S.W.3d 834 (Tenn. Ct. App. 2007) ("Bradford I"), we made a ruling favorable to the Landlords and "remanded with instructions for the trial court to enter judgment requiring the parties to enter into [the Landlords'] proposed substitute lease agreement as required by the clear and unambiguous language of the [parties' Recognition Non-Disturbance Agreement ("the RNDA")]. Id. at 840. The primary dispute in Bradford I was whether the RNDA mandated the execution of the substitute lease proposed by the Landlords, which lease obligated the Tenants to pay insurance and taxes as additional elements of rent, as opposed to the signing of the substitute lease proposed by the Tenants, which did not obligate the Tenants to pay insurance and taxes. After we released our opinion in Bradford I, the Tenants filed a motion in the Court of Appeals arguing that the Landlords received a payment out of the bankruptcy of the Landords' previous tenant, Winn-Dixie, for which, in equity, the Tenants should receive a credit. In response to the motion, we ordered that "[o]n remand the trial court is directed to consider the bankruptcy judgment and payment in favor of [the Landlords] against Winn-Dixie, and if the trial court determines that requiring [the Tenants] to pay the full amount of taxes and insurance for which they are contractually liable would result in double payment to [the Landlords], [the Tenants] shall be entitled to an offset in the amount that [the Landlords have] already received from Winn-Dixie for those expenses." We left our earlier opinion and judgment otherwise unaltered. On remand, the trial court determined that since the total amount paid to the Landlords from the bankruptcy did not fully compensate them for the rent that went unpaid by Winn-Dixie, no offset for the Tenants was equitably required. The trial court determined that the Landlords were entitled to discretionary costs in the amount of $1,754.15 for expert witness fees incurred in the trial on remand. The Tenants appeal. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2009/bradfordd_092909.pdf


GEORGE R. CALDWELL, Jr., ET AL. v. PBM PROPERTIES

Court: TCA

Attorneys:

Glenna W. Overton, Knoxville, Tennessee, for the appellants, George R. Caldwell, Jr., and Angie R. Caldwell.

Robert R. Davies, Knoxville, Tennessee, for the appellee, PBM Properties.

Judge: SUSANO

George R. Caldwell, Jr., and Angie R. Caldwell ("the Homeowners") sued PBM Properties and others alleging that alterations made by PBM in 1998 to the natural drainage conditions on properties that neighbor the Homeowners created a continuing temporary nuisance that recurred in 2005 and caused flooding to the Homeowners' property. PBM filed a motion for summary judgment on the ground that the cause of action was barred by the statute of repose for improvements to real property found at Tenn. Code Ann. section 28-3-202 (2000). The trial court agreed and granted the motion. The Homeowners appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2009/caldwellg_092909.pdf


LISA BASS COLLINS v. STEPHEN BUTLER COLLINS

Court: TCA

Attorneys:

James H. Bradberry, Dresden, Tennessee, for the Appellant, Stephen Butler Collins.

Terry Jack Leonard, Camden, Tennessee, for the Appellee, Lisa Bass Collins.

Judge: STAFFORD

This case involves a divorce ending a one year marriage. Husband appeals the trial court's valuation of marital property, its decision not to include the increase in wife's separate property in the distribution of marital property and the award of temporary support to the wife during the pendency of the divorce. Because the trial court failed to properly determine the marital value on some items of property we reverse the trial court's decision as to those items and remand for further consideration. We affirm the trial court's decision as to the value of the remaining items of property and its award of temporary support. Affirmed in part, reversed in part and remanded.

http://www.tba2.org/tba_files/TCA/2009/collinsl_092909.pdf


TENNESSEE RIVER COLLECTION YACHT SALES, LLC, ET AL. v. P.F.C., INC. dba STINGRAY BOAT COMPANY

Court: TCA

Attorneys:

Christopher T. Varner and Joseph W. Dickson, Chattanooga, Tennessee, for the appellants, Tennessee River Collection Yacht Sales, LLC, and TRC Watersports Center, LLC.

John W. Baker, Jr., and Brent A. Morris, Knoxville, Tennessee, for the appellee, P.F.C., Inc., dba Stingray Boat Company.

Judge: SUSANO

This case arises out of the termination of a dealer agreement ("the Agreement"), pursuant to which Tennessee River Collection Yacht Sales, LLC, and TRC Watersports Center, LLC (collectively "the Dealers") were authorized to sell recreational boats manufactured by P.F.C., Inc. dba Stingray Boat Company ("the Supplier"), a South Carolina corporation. The Supplier terminated the Agreement citing the Dealers' failure to purchase the current product models. The termination was also based upon the recommendation of the Supplier's representative following an on-site visit to the Dealers. The Dealers filed suit alleging that the Supplier's refusal to repurchase the Dealers' remaining inventory of Stingray boats was a violation of statutory law governing the "Repurchase of Terminated Franchise Inventory," the Code Commission-supplied label for Tenn. Code Ann. sections 47-25-1301 - 14 (2001) ("the Repurchase Act"or "the Act"). The Supplier filed a motion to dismiss for lack of jurisdiction, asserting that under a governing law and forum selection clause contained in the Agreement, the action had to be brought in South Carolina, not Tennessee. The trial court agreed and dismissed the complaint without prejudice. The Dealers appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2009/tennesseeriver_092909.pdf


STATE OF TENNESSEE v. KENNETH THOMPSON ANDERSON, JR.

Court: TCCA

Attorneys:

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Kenneth Thompson Anderson, Jr.,

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and J.W. Hupp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Kenneth Thompson Anderson, Jr., was convicted of five counts of statutory rape, Class E felonies, and two counts of assault, Class A misdemeanors. See Tenn. Code Ann. sections 39-13-506(d)(1)(2), -101(b)(1). The trial court sentenced him as a Range I, standard offender, to two years for each statutory rape conviction and eleven months and twenty-nine days for each assault conviction. The trial court ordered the Defendant to serve two statutory rape convictions and both assault convictions concurrently with one another but consecutively to the three other statutory rape convictions, each of which was also to be served consecutively to one another. This resulted in a total effective sentence of eight years. The trial court further ordered that the Defendant serve one year of this sentence "day-for-day" in confinement, with the remaining seven years to be served on probation. In this direct appeal, the Defendant argues that: (1) the trial court violated the cancellation rule by allowing the victim to testify about instances of digital penetration and cunnilingus; (2) the trial court erred in finding sufficient corroboration of the victim's allegations of statutory rape; (3) the State presented evidence insufficient to convict him; (4) the trial court erred in excluding testimony about the victim's prior sexual conduct under Tennessee Rule of Evidence 412; (5) the trial court impermissibly denied him the right to fully cross-examine certain witnesses; (6) the trial court shifted the burden of proof to him by constraining his closing argument; and (7) the trial court erred in setting the length and manner of his sentence, and in ordering that he serve one year of his sentence "day-for-day." After our review, we affirm the Defendant's convictions for statutory rape but vacate his convictions for assault. We also affirm his sentence length and split confinement, but remand and order that his judgment forms correctly reflect service of his period of confinement in the local jail rather than the Department of Correction, and we order that the requirement of "day-for-day" service of the sentence be deleted.

http://www.tba2.org/tba_files/TCCA/2009/andersonk_092909.pdf


STATE OF TENNESSEE v. SEAN BRETT BROWDER

Court: TCCA

Attorneys:

Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the appellant, Sean Brett Browder.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; John Carney, District Attorney General, and John Finklea, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Sean Brett Browder, was indicted for one count of theft over $10,000 and one count of theft over $500 by the Montgomery County Grand Jury. Appellant entered an open guilty plea to one count of theft of property over $1,000 and one count of theft of property over $500. At the conclusion of a sentencing hearing, the trial court sentenced Appellant to five years for the first count and three years for the second count to be served concurrently to each other in the Department of Correction. Appellant now argues on appeal that the trial court erred in imposing the length of sentence and in not ordering alternative sentencing. After a thorough review of the record, we conclude that there is no basis for reversal of the length of his sentence and there was adequate support for the denial of alternative sentencing.

http://www.tba2.org/tba_files/TCCA/2009/browders_092909.pdf


STATE OF TENNESSEE v. JUSTIN BRIAN CONRAD

Court: TCCA

Attorneys:

J. Runyon, Clarksville, Tennessee, for the appellant, Justin Brian Conrad.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; John Carney, District Attorney General, and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

After being indicted by the Montgomery County Grand Jury in December of 2005 for first degree premeditated murder, felony murder and theft of property over $1,000, Appellant, Justin Brian Conrad, was found guilty by a jury on all counts of the indictment. As a result, the trial court merged the felony murder conviction with the first degree premediated murder conviction and sentenced Appellant to a life sentence. After the denial of a motion for new trial, Appellant seeks resolution of the following issues on appeal: (1) whether the evidence was sufficient to support the convictions for first degree murder and felony murder; (2) whether the trial court properly denied a motion for judgment of acquittal on the theft of property charge; and (3) whether the trial court properly refused to declare a mistrial after a witness alluded to Appellant's prior criminal history. After a review of the record, we determine that the trial court properly denied a mistrial where the jury was immediately admonished to ignore the improper testimony regarding Appellant's prior criminal history and that the evidence was sufficient to support the convictions. Accordingly, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/conradj_092909.pdf


GRADY LEE FLIPPO v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellee, Grady Lee Flippo.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; Charles Frank Crawford, Jr. , District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Grady Lee Flippo, was convicted of two counts of attempted aggravated assault and sentenced to six years and six months as a Range I Standard offender. On direct appeal, this court upheld the convictions, but modified the sentences to run concurrently resulting in an effective sentence of three years and six months. On this appeal, he asserts that he received ineffective assistance of counsel. Specifically, he argues that his trial counsel was ineffective because he failed to adequately prepare for trial; properly explain the facts, adverse testimony, and the elements of the charges; interview and call witnesses; and failed to strike a juror. Following a review of the parties' briefs, the record, and applicable law, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/flippog_092909.pdf


STATE OF TENNESSEE v. EDWIN GOMEZ

Court: TCCA

Attorneys:

Cynthia M. Fort, Nashville, Tennessee, for the defendant-appellant, Edwin Gomez.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa S. Roberge, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret T. Gunn and Roger D. Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Edwin Gomez ("Gomez") appeals from his resentencing pursuant to the remand order from the Tennessee Supreme Court in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) ("Gomez II"). He was convicted by a Davidson County jury of conspiracy to commit aggravated robbery, facilitation of felony murder, facilitation of especially aggravated robbery, and facilitation of aggravated robbery and was originally sentenced to six, twenty-five, twelve, and six years, respectively, in the Tennessee Department of Correction. The trial court ordered the sentences to be served consecutively for an effective forty-nine-year sentence. Following a remand and resentencing, the trial court imposed the same sentence. The sole issue presented for our review is whether the sentence imposed by the trial court is excessive. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/gomeze_092909.pdf


STATE OF TENNESSEE v. RICKY JOE HEADLEY

Court: TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee, and Russ Heldman, Franklin, Tennessee, for the appellant, Ricky Joe Headley.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Ron Davis, District Attorney General, and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Ricky Joe Headley, was indicted by the Williamson County Grand Jury in October of 2007 for four counts of official misconduct in violation of Tennessee Code Annotated section 39-16- 402, as a result of actions taken while serving as the Sheriff of Williamson County. Appellant was also indicted by the Davidson County Grand Jury in October of 2007 in a multi-count indictment for thirty-three drug related charges that arose out of his unlawful acquisition of prescription medication from a pharmacy in Davidson County while he was wearing his Williamson County uniform and driving a Williamson County law enforcement vehicle. The cases were consolidated, and Appellant eventually pled guilty to one count of conspiracy to commit official misconduct and four counts of simple possession, all Class A misdemeanors, in exchange for an effective sentence of four years, eleven months, and twenty-five days. Appellant was ordered to serve the sentence on probation, three years of which was to be supervised. At a sentencing hearing, the trial court denied judicial diversion. Appellant appeals this denial. We determine that the trial court considered the factors required for the grant or denial of judicial diversion and did not abuse its discretion in denying judicial diversion to Appellant. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/headleyr_092909.pdf


STATE OF TENNESSEE v. RONNIE HENRY

Court: TCCA

Attorneys:

Ronnie Henry, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Ronnie Henry, was convicted by a Shelby County jury of four counts of aggravated robbery, a Class B felony, and four counts of robbery, a Class C felony. The counts involving the same victims were merged, resulting in two convictions for aggravated robbery and two convictions for robbery, and the defendant was sentenced by the trial court to an effective sentence of seventy years in the Department of Correction. In his original direct appeal, the defendant challenged the sufficiency of the evidence and alleged that the trial court erred in limiting the testimony of a witness and in its sentencing determinations. See State v. Ronnie Henry, No. W2006-00344-CCA-R3-CD, 2008 WL 450459 (Tenn. Crim. App. Feb. 19, 2008), perm. to appeal denied (Tenn. Sept. 29, 2008). We affirmed the convictions but remanded for resentencing "in compliance with Gomez II [State v. Gomez, 239 S.W.3d 733 (Tenn. 2007)] and our standard principles of sentencing." Id. at *5. On remand, the trial court again sentenced the defendant to an effective sentence of seventy years in the Department of Correction. In this appeal, the pro se defendant raises issues relating to the State's alleged untimely filing of its notice of enhanced punishment; the trial court's ruling on the State's motion in limine with respect to the testimony of a defense witness; and the trial court's imposition of consecutive sentencing. The State responds by arguing that the first two issues are waived and that the record supports the trial court's imposition of consecutive sentencing. We agree with the State and, accordingly, affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/henryr_092909.pdf


EARNEST GWEN HUMPHREY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Earnest Gwen Humphrey.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Bill Gibson, District Attorney General; and William Locke and Ben Fann, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner was convicted by a White County jury of second degree murder. He agreed to a sentence of twenty-two years. His appeal to this Court was unsuccessful. He subsequently filed a petition for post-conviction relief. In his petition he alleged that he was afforded ineffective assistance of counsel. The post-conviction court denied the petition, and Petitioner appealed. After a thorough review of the record, we conclude that Petitioner was unable to prove that counsel's representation was below the level required for effective assistance or that there is a reasonable probability that had counsel's representation matched that argued by Petitioner the outcome at trial or on appeal would have been different. Therefore, we affirm the post-conviction court's denial of the petition.

http://www.tba2.org/tba_files/TCCA/2009/humphreye_092909.pdf


ROBERT L. MITCHELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Robert L. Mitchell.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Robert L. Mitchell, was found guilty in 2005 of two counts of aggravated kidnapping, one count of especially aggravated kidnapping, and one count of assault. The trial court merged the aggravated kidnapping convictions and sentenced the petitioner to twelve years at 100%, to twenty- five years at 100% for the especially aggravated kidnapping, and to eleven months, twenty-nine days for the assault conviction. The sentences for the kidnapping convictions were ordered to be served consecutively, with the sentence for assault to be served concurrently, for a total effective sentence of thirty-seven years. In his timely petition for post-conviction relief, he asserted that trial counsel was ineffective for not arguing that a stepparent could not be guilty of the aggravated kidnapping of a stepchild; for not interviewing the petitioner's neighbors; for not arguing that the petitioner's sentences violated the Blakely decision; for not questioning his stepdaughter as to whether a man had been living with her mother; for not seeking a special jury instruction regarding the alleged inconsistent testimony of the victim; and for not moving to dismiss the superseding indictment. The post-conviction court dismissed the petition, and, following our review, we affirm the dismissal.

http://www.tba2.org/tba_files/TCCA/2009/mitchellr_092909.pdf


DONALD THOMAS STAGNER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Angela L. Jenkins-Hines, Jackson, Tennessee, for the appellant, Donald Thomas Stagner.

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

Judge: GLENN

On November 3, 2006, the petitioner, Donald Thomas Stagner, pled guilty to aggravated burglary and theft over $500 and was sentenced as a Range I, standard offender to four years and one and one- half years, respectively. The court ordered that the sentences would be served concurrently and suspended after ninety days. On October 18, 2007, the petitioner sought post-conviction relief, asserting that his pleas of guilty were unknowing and that trial counsel was ineffective. Following an evidentiary hearing, the post-conviction court denied relief by order entered on February 4, 2008. The defendant filed his notice of appeal on March 13, 2008, and the State argues that the notice of appeal was untimely and, thus, this appeal should be dismissed. Following our review, we affirm the dismissal of the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/stagnerd_092909.pdf


STATE OF TENNESSEE v. WILLIAM GLENN WILEY

Court: TCCA

Attorneys:

Lindsay C. Barrett, Nashville, Tennessee (on appeal); Jodie A. Bell and Manuel B. Russ, Nashville, Tennessee (at trial) for the defendant-appellant, William Glenn Wiley.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; John C. Zimmerman and Shannon E. Poindexter, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCMULLEN

At the conclusion of his second trial, Defendant-Appellant, William Glenn Wiley (hereinafter "Wiley") was convicted by a Davidson County jury of first degree felony murder and especially aggravated robbery. The jury sentenced him to life imprisonment without the possibility of parole for the felony murder conviction, and the trial court sentenced him as a Range I, standard offender to a concurrent twenty-year sentence for the especially aggravated robbery conviction. On appeal, Wiley argues that: (1) the trial court erred in denying his motion for judgment of acquittal when the evidence was insufficient to convict him of first degree felony murder and especially aggravated robbery; (2) he should be granted a new trial because of several violations of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); (3) he should be granted a new trial because of several Tennessee Rule of Criminal Procedure 16 violations; (4) the trial court erred by admitting into evidence his Knights Inn employment application and Arrowhead Motel receipt; (5) the trial court erred in admitting prior bad act evidence in the form of Michelle Scheffel's testimony and rebuttal evidence of a prior assault;(6) his sentence of life imprisonment without the possibility of parole is excessive; and (7) the trial court erred in denying his request for co-counsel. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wileyw_092909.pdf

THOMAS concurring
http://www.tba2.org/tba_files/TCCA/2009/wileyw_CON_092909.pdf


STATE OF TENNESSEE v. DON WAYNE WILLIAMS

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; and Susan D. Korsnes, Assistant Public Defender, for the appellant, Don Wayne Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; James G. (Jerry) Woodall, District Attorney General; and Anna B. Cash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Don Wayne Williams, was convicted by a Madison County jury of resisting arrest, a Class B misdemeanor, and felony failure to appear, a Class E felony. He was later sentenced by the trial court to six months for the resisting arrest conviction and as a career offender to six years for the failure to appear conviction. His sole issue on appeal is whether the evidence was sufficient to sustain his conviction for failure to appear. Based on our review, we conclude that the State presented sufficient evidence from which a rational jury could find the defendant guilty of the offense beyond a reasonable doubt. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/williamsd_092909.pdf


Carrying of Firearms in Parks Being Used by Schools

TN Attorney General Opinions

Date: 2009-09-29

Opinion Number: 09-160

http://www.tba2.org/tba_files/AG/2009/ag_09_160.pdf

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Legal News
Former sheriff denied diversion again
The state's Court of Criminal Appeals has affirmed a judge's decision to deny former Williamson County sheriff Ricky Headley's request for judicial diversion. Read the opinion here. On Feb. 13, 2008, he pleaded guilty official misconduct and four counts of simple possession of fraudulently obtained prescription painkillers from a Nashville pharmacy. Headley also resigned from the Sheriff's Office as a condition of the plea agreement.
The Tennessean has more
U.S. attorney ousted in 2006 returning to Nevada job
Daniel Bogden is the only one of nine federal prosecutors ousted in 2006 to return to his appointed post after being fired by President George W. Bush. U.S. Sen. Harry Reid, the Democratic majority leader, wanted Bodgen to return to his old post of U.S. attorney for Nevada to "right the wrong" of his dismissal. President Obama gave his blessing, and the Senate confirmed Bodgen on Sept. 15. He expects to begin before Oct. 10.
WATE.com has this AP story
Suits will try to prove Bush aides liable for actions
Government officials are usually protected from claims that they violated a person's civil rights. But in suits stemming from law enforcement and intelligence efforts after the Sept. 11 attacks, three federal courts have left open the possibility that former Attorney General John Ashcroft and a lieutenant may be held personally liable. "It shows a willingness on the part of the courts to hold those who authorized illegal action responsible, not only those who carry it out," said David Cole, a constitutional law professor at Georgetown University.
NewsChannel 5 carried this AP story
MTSU recieves grant for forensic science
Middle Tennessee State University has been awarded $550,000 by the U.S. Department of Justice to improve its forensic curriculum. The funding will be used to develop six forensic science courses at MTSU, provide 12 in-service training workshops for Tennessee sheriff's and police departments, in addition to funding the development of a number of online training workshops.
Find out more in the Tennessean
Two lawyers sue each other after breakup
When Robert Whitaker left the employ of Bart Durham, Durham slapped his former employee with a lawsuit accusing Whitaker of making claims on fees he won while working at the firm, what the filing called "attempted extortion and/or embezzlement." Whitaker first called it a misunderstanding but now has filed his own complaint. It begins by alleging Durham acted too quickly with his initial suit. Durham filed his complaint against the former employee without ever contacting Whitaker, who says he had no plans to make the fee claims, the filing says.
NashvillePost.com reports
Politics
Yarbro to run against Henry
Nashville lawyer Jeff Yarbro announced today he will mount a Democratic primary challenge to state Sen. Douglas Henry, the chamber's longest serving member. The primary campaign will pit the 32-year-old against an incumbent who has served in the Senate seven years longer than his challenger has been alive. Henry, 83, was first elected to the seat representing southwestern Nashville in 1970. Yarbro is an attorney with Bass Berry & Sims.
NashvillePost.com reports
Ouster set for Memphis city attorney
State prosecutors plan to seek the removal of Memphis City Attorney Elbert Jefferson, the Commercial Appeal reports this afternoon. A hearing for an ouster suit was set today for Oct. 6 before Criminal Court Judge James Lammey. District Attorney Gen Bill Gibbons' office has been reviewing possible misconduct charges stemming from Jefferson's authorization of $55,000 in city funds to pay attorney Robert Spence, who represented former mayor Willie Herenton while he was under investigation by a federal grand jury.
Read about it in the Commercial Appeal
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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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