Nominations being accepted for 2011 public service awards

Each year the Tennessee Bar Association recognizes outstanding service by attorneys who have donated their time to help others. Lawyers may be nominated in three categories: the Ashley T. Wiltshire Public Service Attorney of the Year, which recognizes a public service lawyer who demonstrates dedication to the development and delivery of legal services to the poor; the Harris Gilbert Pro Bono Volunteer of the Year Award, which recognizes significant pro bono work by a private attorney; and the Law Student Volunteer Award, which recognizes a student who has provided dedicated and outstanding pro bono services during the past year. Award nominations are due by Sept. 10. Award winners will be honored at the Tennessee Bar Association's Public Service Luncheon Jan. 22 in Nashville.

Learn more or submit a nomination 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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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

GLENDA HAMPTON v. NORTHWEST TENNESSEE HUMAN RESOURCE AGENCY
Corrected Opinion: On page one, the spelling of Judge Donald Parish's last name has been corrected.


Court: TCA

Attorneys:

Robert O. Binkley, Jr. and James V. Thompson, Jackson, Tennessee, for the appellant, Northwest Tennessee Human Resource Agency.

Ricky L. Boren, Jackson, Tennessee, for the appellee, Glenda Hampton.

Judge: STAFFORD

This is a personal injury case. The Appellant/Defendant's employee backed a van into a vehicle which the Appellee/Plaintiff was driving. Until the accident, the Plaintiff had not had any problems with her right shoulder. The morning after the accident the Plaintiff had pain and soreness in her shoulder. She was treated by three different orthopedic surgeons and ultimately had arthroscopic right shoulder surgery. The parties stipulated to liability. However, the Defendant disputed causation. A bench trial was held and the trial court found that the accident caused the Plaintiff's shoulder injury which necessitated the shoulder surgery. Defendant appealed from the trial court's judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2010/hamptong_CORR_071510.pdf


STATE OF TENNESSEE v. ANTHONY L. DAVIS

Court: TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the Appellant, Anthony L. Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; Bret Gunn and Rob McGuire, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County grand jury indicted the Defendant, Anthony L. Davis, and his co- defendant, Michael Ray Crockett, for the felony murder, premeditated murder, and especially aggravated robbery of victim Edgar Moreno-Gutierrez and for the especially aggravated robbery and two counts of felony murder of victim Michael Adams. The trial court severed the Defendant's trials, and in his first trial a Davidson County jury convicted him of the felony murder, premeditated murder, and especially aggravated robbery of victim Moreno- Gutierrez. The trial court merged the premeditated murder conviction with the felony murder conviction and sentenced the Defendant to life plus twenty-three years. In his second trial, a Davidson County jury convicted the Defendant of the especially aggravated robbery and two counts of the felony murder of victim Adams. The trial court merged the two felony murder convictions and sentenced the Defendant to life plus eighteen years, to be served consecutively to his sentence from his first trial. The two cases were consolidated on appeal. On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that the trial court improperly imposed consecutive sentencing in his first trial. After a thorough review of the record and relevant authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2010/davisanthony_071510.pdf


ANDREW NEAL DAVIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Wendy S. Tucker, Nashville, Tennessee, for the appellant, Andrew Neal Davis.

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

Judge: SMITH

Petitioner, Andrew Neal Davis, was convicted by a Davidson County Jury of first degree felony murder and aggravated child abuse. State v. Andrew Neal Davis, No. M2002-02375- CCA-R3-CD, 2004 WL 1562544 (Tenn. Crim. App., at Nashville, Jul. 9, 2004), perm. app. denied, (Tenn. Dec. 6, 2004). Petitioner's convictions were affirmed on direct appeal. Id. at *1. Petitioner filed a petition for post-conviction relief primarily on the basis of ineffective assistance of counsel. Petitioner also argued that the trial court committed various constitutional errors during trial. After a hearing on the petition, the post-conviction court denied the petition for relief. Petitioner appealed to this Court. After a review, we conclude that the post-conviction court properly dismissed the petition for post-conviction relief. Consequently, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/davisa_071510.pdf


STATE OF TENNESSEE v. SARAH ELLEN EATHERLY

Court: TCCA

Attorneys:

Emma Rae Tennant and Jonathan F. Wing, Nashville, Tennessee, for the Appellant, Sarah Ellen Eatherly.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Rebecca Schwartz, Assistant District Attorney General, for the Appellee, State of Tennessee.

The Defendant, Sarah Ellen Eatherly, pled guilty to vehicular assault and reckless aggravated assault. Following a sentencing hearing, the trial court denied the Defendant's request for judicial diversion and sentenced her to an effective sentence of two years, with seven days to be served in confinement and the remainder to be served on probation. The Defendant appeals, contending the trial court erred when it denied her request for judicial diversion. After a thorough review of the record and applicable authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2010/eatherlys_071510.pdf


STATE OF TENNESSEE v. MICHAEL ORLANDO FREEMAN

Court: TCCA

Attorneys:

Daniel J. Ripper, Chattanooga, Tennessee, attorney for appellant, Michael Orlando Freeman.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William H. Cox, III, District Attorney General; and Steve Smith, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Michael Orlando Freeman, pled guilty to robbery, a Class C felony, in the Criminal Court of Hamilton County with sentencing to be determined by the trial court. The trial court sentenced the Defendant as a Range I, standard offender to five years' incarceration. In this appeal as of right, the Defendant contends that the trial court erred in its application of enhancement factors to his sentence and in its denial of alternative sentencing. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/freemanm_071510.pdf


SAMUEL L. GIDDENS, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dumaka Shabazz, Nashville, Tennessee, for the Appellant, Samuel L. Giddens, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Amy Eisenbeck, Assistant District Attorney General, for the Appellee, State of Tennessee.

A Davidson County jury convicted the Petitioner, Samuel L. Giddens, Jr., of reckless homicide, attempted especially aggravated robbery, and aggravated burglary, and the trial court sentenced him to an effective sentence of fourteen years. On direct appeal, this Court affirmed the Petitioner's convictions and sentence. State v. Samuel L. Giddens, Jr., No. M2005-00691-CCA-R3-CD, 2006 WL618312, at *1 (Tenn. Crim. App., at Nashville, Mar. 13, 2006), Tenn. R. App. P. 11 application denied (Tenn. June 26, 2006). The Petitioner filed a petition for post-conviction relief, later amended by appointed counsel, alleging, in pertinent part, that he received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. After a thorough review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/giddenss_071510.pdf


KEVIN O. HOOKS v. STEVEN DOTSON, WARDEN

Court: TCCA

Attorneys:

Kevin O. Hooks, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; and Rachel E. Willis, Assistant Attorney General, attorneys for the appellee, State of Tennessee.

Judge: THOMAS

The pro se Petitioner, Kevin O. Hooks, appeals as of right from the Hardeman County Circuit Court's summary dismissal of his petition for a writ of habeas corpus challenging his conviction for first degree felony murder. Following our review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2010/hooksk_071510.pdf


STATE OF TENNESSEE v. PATRICIA HOWELL

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public Defender, for the appellant, Patricia Howell.

Robert E. Cooper, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

A Madison County Circuit Court jury convicted the Defendant, Patricia Howell, of aggravated assault, a Class D felony. The trial court sentenced her to four years incarceration as a Range I, standard offender, suspended to probation after the service of five months. In this appeal as of right, the Defendant contends that the evidence is insufficient to support her conviction because the victim's injury did not constitute serious bodily injury; thus, she should have been convicted of assault. Following our review, we agree with the Defendant and remand the case for entry of a modified judgment.

http://www.tba2.org/tba_files/TCCA/2010/howellp_071510.pdf


ANTONIO M. MILLER v. JOE EASTERLING, Warden

Court: TCCA

Attorneys:

Antonio M. Miller, Whiteville, Tennessee, Pro Se.

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

Judge: TIPTON

The Petitioner, Antonio M. Miller, appeals the Hardeman County Circuit Court's summary dismissal of his petition for writ of habeas corpus. On appeal, the Petitioner contends that (1) the trial court did not have jurisdiction to try him as an adult; (2) the prosecutor breached the plea agreement; (3) he was not given a psychological evaluation or a pretrial suppression hearing to challenge his confession; (4) he was not allowed to develop alibi witnesses; and (5) his nineteen-year sentence at one hundred percent is incorrect. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/millera_071510


KENNETH L. STOREY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Steve Sams (on appeal) and Joseph Liddell Kirk (at trial), Knoxville, Tennessee, for the appellant, Kenneth L. Storey.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Kenneth L. Storey, filed in the Knox County Criminal Court a pro se "Application for Post-Conviction or Habeas Corpus Relief," alleging that his sentence was void because the trial court did not follow the dictates of Blakely v. Washington, 542 U.S. 296 (2004). The post-conviction court dismissed the petition, finding that it was filed outside the statute of limitations. On appeal, the petitioner challenges the post-conviction court's ruling. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/storeyk_071510.pdf


STATE OF TENNESSEE v. JERRY WAYNE WATSON, JR.

Court: TCCA

Attorneys:

Robert T. Carter, Tullahoma, Tennessee, attorney for appellant, Jerry Wayne Watson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Charles Michael Lane, District Attorney General; and Kenneth J. Shelton, Jr., Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Jerry Wayne Watson, Jr., pled guilty to sale of cocaine in an amount more than .5 grams in case number 36,430 and to sale of cocaine in an amount more than .5 grams in case number 36,431. Following a sentencing hearing for both cases, the Defendant was sentenced to concurrent sentences of eight years, with 120 days in confinement followed by seven years and eight months on community corrections. In this appeal as of right, the Defendant contends that the trial court erred in denying full probation. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/watsonj_071510.pdf


STATE OF TENNESSEE v. HOLLENA ARLENE WEST

Court: TCCA

Attorneys:

David Neal Brady, District Public Defender; and Allison M. Rasbury, Assistant Public Defender, for the appellant, Hollena Arlene West.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Edward Gibson, District Attorney General; and Marty Savage, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Hollena Arlene West, was found guilty of driving under the influence ("DUI"). The trial court sentenced Defendant to eleven months, twenty-nine days, with the sentence suspended and Defendant placed on probation after serving ten days in confinement. On appeal, Defendant argues that the evidence was insufficient to support her conviction and the trial court erred in allowing expert testimony concerning the effect of taking multiple prescription medications. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/westh_071510.pdf


MICHAEL EUGENE WILKERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

C. Brent Keeton, Manchester, Tennessee, for the Appellant, Michael Eugene Wilkerson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Clarence E. Lutz, Assistant Attorney General; Lisa Zavagiannis, District Attorney General, for the Appellee, State of Tennessee.

Judge: COOPER

A Warren County jury convicted the Petitioner, Michael Eugene Wilkerson, of three counts of the sale of more than .5 grams of cocaine and one count of the casual exchange of marijuana, and the trial court sentenced him as a Range II, multiple offender to an effective sentence of fifty-seven years. On direct appeal, the Petitioner challenged the sufficiency of the evidence, and we affirmed the trial court's judgments. State v. Michael Wilkerson, No. M2005-02175-CCA-R3-CD, 2006 WL 2709240, at *1 (Tenn. Crim. App., at Nashville, Sept. 22, 2006), no Tenn. R. App. P. 11 application filed. The Petitioner then filed a petition for post-conviction relief in which he alleged that he received the ineffective assistance of counsel and that the State withheld exculpatory evidence. After a hearing, the post- conviction court dismissed the petition. After a thorough review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/wilkersonm_071510.pdf


The State's Sovereign Immunity From Local Air Pollution Control Requirements

TN Attorney General Opinions

Date: 2010-07-15

Opinion Number: 10-86

http://www.tba2.org/tba_files/AG/2010/ag_10_86.pdf

TODAY'S NEWS

Legal News
Election 2010
Disciplinary Actions
TBA in the News
TBA Member Services

Legal News
Knox chancellor allegedly threatened by Army soldier
A U.S. Army soldier has been arrested for allegedly posting a YouTube video that contained a veiled threat against Knox County Chancellor Michael W. Moyers. While no names are used in the video, a reference to a court date related to a child custody case suggests the man was referring to Moyers. The soldier is being held at the Knox County Detention Facility in lieu of $200,000 bond.
The News Sentinel reports
AOC names new access to justice coordinator
The Administrative Office of the Courts (AOC) this week named Anne-Louise Wirthlin as the court system's new access to justice coordinator. She replaces former TBA staff member Becky Rhodes, who served in the position for two years. Wirthlin previously worked as a programs manager at the AOC, where she provided staff support to the Alternative Dispute Resolution Commission. She also practiced law in Brentwood and worked as a contract attorney with TennCare. Wirthlin earned her law degree in 2004 from the University of Tennessee and a master of law from the University of Alabama in 2007.
Read more on the AOC website
Justice Lee to be recognized by YWCA
Tennessee Supreme Court Justice Sharon G. Lee will be recognized by the Knoxville YWCA at its annual Tribute To Women event Aug. 19. This year's honorees, who represent eight career fields, were selected for their high achievement and strong impact on the local community. Also being honored is Jo Terry, retired executive director of the Knoxville Community Justice Center on Family Violence and part founder of the Knoxville Family Justice Center.
Read an interview with the honorees in the News Sentinel
Feds consult with Memphis leaders on violence initiative
U.S. Justice Department officials are in Memphis this week to meet with local leaders in a series of "listening sessions" designed to inform a new national youth violence initiative. The city is among several selected to help federal authorities pre-plan for the program. The department is expected to launch a national planning initiative in the fall. In Memphis, local leaders hope to unveil a comprehensive initiative in the spring of 2011.
The Commercial Appeal has more
Court sets execution date for Stephen West
The Tennessee Supreme Court today set an execution date of Nov. 9 for Stephen Michael West. In doing so, it rejected West's arguments that his sentence should be modified to life in prison on grounds that no court properly evaluated mitigating evidence, that prosecutorial misconduct and errors were made in his case, and that he is mentally ill. Download the order and other filings on the AOC website.
Read more about the case from WKRN Nashville News 2
MBA holds closing ceremony for student interns
More than 60 minority high school students graduated from the Memphis Bar Association's Summer Law Intern Program last week. The program, an initiative of the association's Diversity Committee, exposes high school students to the "real world" practice of law with the goal of encouraging them to consider a career in the law. During the program, students work at least 15 hours a week and participate in group activities, such as meeting judges and learning about college and law school admissions.
See photos from the event
Election 2010
Paper weighs in on Shelby County judicial races
The Memphis Commercial Appeal released an online voter guide this week that includes information on a number of judicial races: circuit, criminal, juvenile and probate court clerk; circuit court judges Divisions 4 and 8; criminal court judge Division 3; and general sessions criminal court judges Divisions 7 and 10. The paper's editorial board also announced its endorsements of judicial and court clerk candidates.
Check out the guide
Disciplinary Actions
Hamilton County lawyer censured
Hamilton County lawyer Albert L. Watson III received a public censure from the Board of Professional Responsibility on July 14 for failing to file an appellate brief -- after notifying the court he would -- and failing to communicate with a client. The board found that he violated Rules of Professional Conduct 1.2, 1.3 and 1.4.
Download the BPR's notice
TBA in the News
Former TBA president named to TIPS honor roll
Memphis lawyer Buck Lewis with Baker, Donelson, Bearman, Caldwell & Berkowitz PC has been named a recipient of the 2009-2010 Public Service Honor Roll Award by the American Bar Association Tort Trial & Insurance Practice Section (TIPS) and its Law in Public Service Committee. Lewis was recognized for making access to justice the theme of his year as TBA president and leading the association's "4ALL" campaign, which significantly increased pro bono participation by Tennessee attorneys and enhanced the delivery of pro bono services in the state.
Read more from the firm's website
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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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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