ABA releases diversity report and recommendations

A new report from the American Bar Association lays out proposals to advance diversity in the legal profession. The report, "Diversity in the Legal Profession: Next Steps," is the result of a two-year study by the Commission on Diversity. The report contains recommendations for law schools, firms, bar associations and government bodies interested in increasing diversity. The commission is asking organizations to submit information on how they plan to implement -- or already are implementing -- any of the proposals in the report. Responses will be posted on the association's Next Steps web page.

Download the report here

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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HARTFORD UNDERWRITERS INSURANCE CO. v. DALE PENNEY, d/b/a DLP CONSTRUCTION CO.

Court: TCA

Attorneys:

Douglas M. Cox, Chattanooga, Tennessee, for the appellant, Dale Penney, d/b/a DLP Construction Co.

Blakeley D. Matthews and Ben M. Rose, Nashville, Tennessee, for the appellee, Hartford Underwriters Insurance Co.

Judge: MCCLARTY

Hartford Underwriters Insurance Co. ("Hartford") filed this suit against Dale Penney, d/b/a DLP Construction Co. ("Mr. Penney"), seeking compensation for additional workers' compensation insurance premiums, as well as court costs and service of process fees. The trial court awarded judgment in favor of Hartford for $12,316 plus costs. Hartford subsequently filed a motion seeking pre-judgment interest, which was granted after a hearing resulting in an additional award of $4,823.77. Mr. Penney appeals. We affirm in part, vacate in part and remand to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2010/hartford_061710.pdf


NANCY LUNA v. ROGER DEVERSA, M.D. and HAMILTON COUNTY

Court: TCA

Attorneys:

Nancy Luna, Palmer, Tennessee, pro se.

Laura Beth Rufolo, Chattanooga, Tennessee, for the appellee, Roger DeVersa, M.D.

Robert J. Boehm and C. Eugene Shiles, Chattanooga, Tennessee, for the appellee, Chattanooga-Hamilton County Hospital Authority.

Judge: MCCLARTY

This appeal arises from a medical malpractice claim. A surgeon performed a procedure on the plaintiff at the defendant hospital. The defendant hospitalist physician monitored the plaintiff's post-surgery recovery. The plaintiff filed this lawsuit asserting that the defendant hospitalist was negligent in releasing her from the hospital prematurely. The defendant hospitalist filed a motion for summary judgment, as did the hospital. The trial court granted summary judgment to both. We affirm.

http://www.tba2.org/tba_files/TCA/2010/lunan_061710.pdf


KAREN MICHELLE PEARSON v. PAUL JASON PEARSON

Court: TCA

Attorneys:

Deborah A. Yeomans, Legal Aid of East Tennessee, Johnson City, Tennessee, for the appellant, Karen Michelle Pearson.

Paul Jason Pearson, Greeneville, Tennessee, pro se appellee

Judge: MCCLARTY

This appeal arises from the dismissal of an ex parte order of protection filed by Wife. After finding that Wife failed to prove the allegations in the petition by a preponderance of the evidence, the trial court dismissed the order of protection and assessed the costs against Wife. Wife appeals. We reverse.

http://www.tba2.org/tba_files/TCA/2010/pearsonk_061710.pdf


STATE OF TENNESSEE v. DENNIS RAY BAILEY

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the Defendant-Appellant, Dennis Ray Bailey.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Kelly Jackson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Dennis Ray Bailey, was convicted by a jury in the Circuit Court of Dickson County of driving under the influence, second offense, a Class A misdemeanor. He was sentenced to eleven months and twenty-nine days, suspended after serving 45 days in confinement, and ordered to pay a $600 fine. Bailey claims on appeal that he was denied a fair trial due to prosecutorial misconduct. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/baileyd_061710.pdf


MICHAEL BRANHAM v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Michael Branham.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Michael Branham, appeals the Hamilton County Criminal Court's denial of his petition for post-conviction relief from his conviction upon a guilty plea for aggravated assault, a Class C felony, for which he received a three-year sentence with split confinement. He contends that the proof at the post-conviction hearing established that he received the ineffective assistance of counsel, that the trial court failed to review the post-conviction hearing evidence under the standard established in United States v. Cronic, 466 U.S. 648 (1984), and that the trial court committed plain error when it failed to address the issue of prosecutorial misconduct. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/branhamm_061710.pdf


DONALD CLARK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Donald Clark, pro se.

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

Judge: WOODALL

Petitioner, Donald Clark, appeals the trial court's denial of his petition for writ of habeas corpus. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/clarkd_061710.pdf


STATE OF TENNESSEE v. LONNIE L. CROSS

Court: TCCA

Attorneys:

Larry D. Wright, Cleveland, Tennessee, for the appellant, Lonnie L. Cross.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Steven Bebb, District Attorney General; and Brooklyn Martin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

After the appellant, Lonnie L. Cross, led police on a high-speed chase, a Bradley County Criminal Court jury convicted him on two counts of reckless endangerment with a deadly weapon, felony evading arrest with risk to others, driving on a revoked license, and speeding. The trial court sentenced the appellant to an effective sentence of eight years in custody. On appeal, the appellant contends that the evidence was insufficient to support two of his convictions: the evading arrest conviction and one of the reckless endangerment convictions. The appellant also challenges the trial court's reliance on two sentencing enhancement factors. Upon review, we conclude that there was sufficient evidence for the appellant's convictions. We also conclude that, although the trial court erred in its application of one of the enhancement factors, the error was harmless. However, our review of the record reveals that the trial court committed plain error. The appellant's conviction on the reckless endangerment in count three violates constitutional double jeopardy protections. We therefore affirm the judgements of the trial court as to count one, reckless endangerment, and count two, evading arrest. The judgment of conviction in count three is vacated, and the case is remanded to the trial court for merger of the conviction in count three with the evading arrest conviction in count two.

http://www.tba2.org/tba_files/TCCA/2010/crossl_061710.pdf


STATE OF TENNESSEE v. JESSE B. GILLILAND

Court: TCCA

Attorneys:

Jennifer Lynn Thompson, Nashville, Tennessee, for the appellant, Jesse B. Gilliland.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Ron Davis, District Attorney General, and Mary K. White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jesse B. Gilliland, was arrested at the Cool Springs Mall in Franklin, Tennessee for videotaping underneath women's skirts. Officers obtained a search warrant and while conducting the search, discovered marijuana. The Williamson County Grand Jury indicted Appellant for one count of possession of marijuana weighing less than a half of an ounce. Appellant filed a motion to suppress based on lack of probable cause for the search warrant. The trial court denied the motion. Appellant entered a negotiated plea to the marijuana charge with a sentence of eleven months and twenty-nine days. As part of his plea agreement, Appellant reserved a certified question arguing that there was not probable cause to support the search warrant because the facts as alleged, of Appellant photographing underneath women's skirts in a public place, did not constitute a crime. On appeal, the State concedes that the facts as presented do not actually constitute crime under our State's current statutory scheme. Therefore, we must reverse trial court's judgment, order that the evidence found as a result of the execution of the search warrant be suppressed, and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2010/gillilandj_061710.pdf


STATE OF TENNESSEE v. PHILLIP G. HARRIS

Court: TCCA

Attorneys:

Clayton M. Whittaker, Chattanooga, Tennessee, for the Defendant-Appellant, Phillip G. Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles E. Layne, District Attorney General; and Kenneth Shelton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Phillip G. Harris, pled guilty to aggravated sexual battery, a Class B felony, in the Circuit Court for Coffee County. Pursuant to the plea agreement, he was sentenced as a violent offender to eight years in the Tennessee Department of Correction. The judgment order did not impose lifetime community supervision following the expiration of Harris' sentence as required by Tennessee Code Annotated section 39-13-524. Consequently, the State filed a motion to amend the judgment order. The trial court entered a corrected judgment order that imposed lifetime community supervision. On appeal, Harris challenges the validity of his guilty plea and the constitutionality of the lifetime supervision statute. The State contends this court lacks jurisdiction to hear this appeal because Rule 3 of the Tennessee Rules of Appellate Procedure does not provide for an appeal as of right. Upon review, we agree with the State and dismiss Harris' appeal.

http://www.tba2.org/tba_files/TCCA/2010/harrisp_061710.pdf


BRUCE HUFFINES v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Bruce Huffines, appellant, pro se.

Robert E. Cooper, Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Bruce Huffines, appeals pro se the trial court's summary dismissal of his petition for habeas corpus relief from his conviction for forgery, a Class E felony. The State has filed a motion requesting that this court affirm the trial court's summary dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We conclude the petition fails to state a cognizable claim for habeas corpus relief. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/huffinesb_061710.pdf


TRAVIS DEAN JACKSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Travis Dean Jackson, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter, and Matthew Bryant Haskell, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Petitioner has appealed the trial court's order dismissing the petition for postconviction relief. Upon review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for post-conviction relief and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/jacksont_061710.pdf


STATE OF TENNESSEE v. PATTY SUE LAWRENCE

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Patty Sue Lawrence.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, 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: OGLE

Appellant, Patty Sue Lawrence, was convicted of two counts of prostitution, a Class B misdemeanor, and one count of submitting a false police report, a Class D felony. The trial court ordered an effective sentence of three years in custody. She appeals, challenging the sufficiency of the evidence and the trial court's denial of alternative sentencing. We affirm.

http://www.tba2.org/tba_files/TCCA/2010/lawrencep_061710.pdf


NEIL LINCOLN MILLER v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Neil Lincoln Miller, appellant, pro se.

Robert E. Cooper, Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Neil Lincoln Miller, appeals pro se the trial court's denial of habeas corpus relief from his conviction upon a guilty plea for second degree murder. The State has filed a motion requesting that this court affirm the trial court's summary dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We conclude the petition fails to state a cognizable claim for habeas corpus relief. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/millern_061710.pdf


STATE OF TENNESSEE v. JULIE PETTY

Court: TCCA

Attorneys:

Jerred A. Creasy, Dickson, Tennessee, for appellant, Julie Petty.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Ray Crouch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Dickson County Grand Jury indicted Appellant, Julie Petty, for one count of sexual battery by an authority figure and one count of statutory rape by an authority figure. These charges came about as a result of Appellant's sexual relationship with a fourteen-year-old girl who was a student at the school where Appellant was a substitute teacher and softball coach. Appellant entered an open plea to one count of sexual battery by an authority figure. Following a sentencing hearing, the trial court sentenced Appellant to four years with one year to be served in confinement and the remaining three years to be served on probation. Appellant appeals from the trial court's imposition of this sentence. On appeal, Appellant argues that the trial court should have imposed a three-year sentence with the entire sentence to be served on probation. After a review of the record on appeal, we conclude that there is no basis for reversal of the trial court's judgment. Therefore, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/pettyj_061710.pdf


STATE OF TENNESSEE v. CATHERIN VAUGHN a/k/a KATHERINE FUNK

Court: TCCA

Attorneys:

Mary Frances Parker, for the appellant, Catherin Vaughn a/k/a Katherine Funk.

Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, and Laurel Hemenway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

On March 13, 2007, Appellant, Catherin Vaughn, pled guilty in Rutherford County Circuit Court to child abuse of a child under the age of six. The trial court ordered her to serve three years on probation. On December 18, 2008, Appellant made several threatening comments about a juvenile court judge in front of the worker who was teaching Appellant parenting skills and anger management. These threats were reported to the police. As a result, on January 1, 2009, Appellant was arrested for retaliation for past actions against a judge. A probation violation warrant was filed against Appellant. The trial court held a probation violation hearing. At the conclusion of the hearing, the trial court determined that Appellant had violated her probation. The trial court revoked her probation and sentenced her to serve twenty-one days in incarceration and serve two more years on probation. Appellant appeals from the revocation of her probation. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in revoking Appellant's probation. Therefore, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/vaughnc_061710.pdf


TIMOTHY WEBBER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Richard D. Dumas, Jr., for the appellant, Timothy Webber.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Ben Ford, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

In January 2007, the Davidson County Grand Jury indicted Petitioner, Timothy Webber, for one count of second degree murder and one count of aggravated assault in connection with the death of a homeless woman and the beating of a man. On October 22, 2007, Petitioner pled guilty to second degree murder. As part of his plea agreement, Petitioner was sentenced to seventeen years to be served at 100%. Petitioner subsequently filed a petition for postconviction relief alleging that he was afforded ineffective assistance of counsel because counsel did not explain to Petitioner that he was pleading guilty to a "knowing killing." In addition, Petitioner alleged that because he was afforded ineffective assistance of counsel, his plea was not entered knowingly, voluntarily, and intelligently. The post-conviction court held an evidentiary hearing on the issues. In a written order, the post-conviction court denied the petition. Petitioner appealed to this Court. After a thorough review of the record, we conclude that trial counsel and the trial court explained to Petitioner that he was pleading guilty to a knowing killing and that Petitioner understood that fact. Therefore, he was not afforded ineffective assistance of counsel and his plea was entered knowingly, voluntarily, and intelligently. We affirm the post-conviction court's denial of the petition.

http://www.tba2.org/tba_files/TCCA/2010/webbert_061710.pdf


TODAY'S NEWS

Legal News
Flood Impact
Legislative News
Politics
Upcoming
TBA in the News
TBA Member Services

Legal News
Sentencing hearing set for Palin email hacker
Former University of Tennessee student David C. Kernell, who was convicted of obstructing justice in an investigation into the hacking of Sarah Palin's e-mail account, will face a sentencing hearing on Sept. 24. Those following the case predict he likely will be sentenced to 15 to 21 months in prison.
The News Sentinel has more
Fowler nominated for U.S. Marshal post
President Obama today nominated James Thomas Fowler to be the U.S. Marshal for the Eastern District of Tennessee, the Chattanooga Times Free Press reports. Fowler began his law enforcement career with the Knoxville Police Department, and joined the U.S. Marshals in 1989. Since then, he has worked as a deputy marshal in both the Eastern and Middle Districts of Tennessee. Fowler is a graduate of Columbia Southern University. His father, Joe Fowler, served as the U.S. Marshal for the same district in the 1990s.

UM accepting nominations for civil rights book award
The Benjamin L. Hooks Institute for Social Change at the University of Memphis is soliciting nominations for its 2010 Book Award, which recognizes a book, published during the year, that best advances understanding of the American Civil Rights Movement. The recipient of the award will receive $1,000 and an invitation to participate in the Hooks Institute Lecture Series. Books should be submitted to the institute by Dec. 1. For questions or comments, contact Book Award Committee Chair Aram Goudsouzian at (901) 678-2520 or agoudszn@memphis.edu.

Flood Impact
Juvenile court spends $758,000 to clean documents
It's been a month and a half since devastating flooding wreaked havoc at Nashville's Juvenile Justice Center, yet the building remains closed (there's concern mold may have spread through it) and many cases are on hold waiting for boxes of documents to dry out. More than 2,000 boxes -- containing 15,000 case files -- were soaked in the flood and have been stored on refrigerated trailers for the last month. The Juvenile Court has spent $758,000 thus far to move, sort and put files through the freeze-dry procedure. The next step will be a page-by-page gamma radiation treatment that will add substantially to the total cost of restoring the documents.
WSMV-TV Nashville reports
Legislative News
Senator: Retired justices could fill in for recused justices
U.S. Sen. Patrick Leahy, D-Vt., reportedly is considering legislation that would allow former U.S. Supreme Court justices to sit in for current justices who recuse themselves from a case. The idea, according to Leahy, came from Justice John Paul Stevens, who is preparing to retire. Such a move would avoid 4-to-4 decisions -- a threat that court observers say looms over the justices whenever one considers recusal from a case. The U.S. Supreme Court, unlike lower courts and some state supreme courts, has no procedure for replacing disqualified justices.
Learn more about the issue in the Blog of Legal Times
Politics
Attorney among six seeking House seat
While the state Senate primary contest between incumbent Sen. Mae Beavers and Rep. Susan Lynn -- both Mt. Juliet Republicans -- is receiving wide attention, the race to replace Lynn could also be interesting. Three Republicans face off in the primary. They are attorney Adam Futrell, a 2006 graduate of Vanderbilt Law School, retiree Robert Fields and Mt. Juliet Mayor Linda Elam. The winner will face Democrat Allen Barry and two independents in the general election.
Tennessee Report has more on the candidates
Upcoming
ABA president's visit to Memphis expanded
American Bar Association President Carolyn Lamm will be in Memphis next Tuesday to speak at the Memphis Rotary Club at noon. TBA Today previously carried news of a reception in her honor from 4-6 p.m. at the University of Memphis School of Law. Now Lamm has announced she will hold a 10 a.m. press event at Memphis Area Legal Services where she will present an award to U.S. Rep. Steve Cohen for his support of legal services.

Female judges, law student to be honored at NSL event
The National Association of Women Judges (NAWJ) will host an event at the Nashville School of Law at 5 p.m. on Tuesday to recognize 22 female judges who are alumnae of the school. In addition, Tennessee Supreme Court Justice Sharon Lee, who serves as a NAWJ district director, will present the association's Equal Access to Justice Scholarship to current student Brandy L. Spurgin, who was chosen for the $1,000 award for her commitment to equality of opportunity and access to justice.
Read more and see the list of judges being honored
Reception planned for Judge Ann Pugh
The Memphis Bar Association is hosting a retirement reception for General Sessions Criminal Court Judge Ann Pugh on June 24 from 5:30-7:30 p.m. at the home of Leslie and Renelle Ballin. Pugh announced earlier this year that she would retire as of May 31 but the Shelby County Commission approved a temporary appointment allowing her to serve until Aug. 31. When she does step down, she will have served the criminal justice system for 32 years. For more information or to RSVP, email allison@bbfpc.com by June 18.

TBA in the News
Paper covers pro bono award
The Murfreesboro Daily News Journal carried a story yesterday about TBA being honored with the Harrison Tweed Award for extraordinary achievements in increasing access to legal services for the poor. The award recognizes the association's 4ALL campaign, which included the 4/4 Pro Bono Public Service Day, as well as legal clinics held during October's Celebrate Pro Bono Month. The award will be presented to the TBA at a luncheon during the American Bar Association's Annual Meeting in San Francisco this August.
Read the story
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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