TBA Today

Tuesday, March 08, 2011

Search our Database for Opinions and News Items

State Mock Trial Competition on tap this weekend

The 31st annual Tennessee State High School Mock Trial Competition gets underway this weekend at the Davidson County Courthouse in Nashville. Teams from across the state will present the case of the United States of America v. Kiffin van der Lame -- a federal criminal case involving wire fraud and extortion. More than 100 lawyers and judges are volunteering their time to run the competition and work with teams.

This year, 16 teams will compete. They are: Beech High School of Hendersonville, Chattanooga Southeast Tennessee Home Education Association, Clarksville High School, Dyersburg High School, Jefferson County High School of Dandridge, Kingsport Area Christian Home Education Association, Knoxville West High School, McCallie School of Chattanooga, Martin Luther King Jr. Magnet and Montgomery Bell Academy of Nashville, Ravenwood High School of Brentwood, St. Mary's Episcopal School of Memphis, Signal Mountain High School of Chattanooga, Tullahoma High School and White Station High School (Gray and Green teams) of Memphis.

Learn more about the competition on the TBA's mock trial webpage

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.

00 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
10 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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.

MICHAEL DEVEREUX v. UNITED PARCEL SERVICE, INC.

Court: TWCA

Attorneys:

David T. Hooper, Nashville, Tennessee, for the appellant, United Parcel Service, Inc.

Angus Gillis, III, Nashville, Tennessee, for the appellee, Michael Devereux.

Judge: BLACKWOOD

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sought reconsideration of his earlier workers' compensation settlement, which had been "capped" pursuant to Tennessee Code Annotated section 50-6-241(d). His employer asserted that he had been terminated for cause, and was therefore not eligible for reconsideration. The trial court found for the employee and awarded additional benefits. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/devereuxm_030811.pdf

JACQUELINE MORAN v. CUMBERLAND COUNTY MEDICAL CENTER, ET AL.

Court: TWCA

Attorneys:

C. Douglas Dooley and Barret S. Albritton, Chattanooga, Tennessee, for the appellants, Cumberland County Medical Center and Liberty Mutual Insurance Company.

Craig P. Fickling, Cookeville, Tennessee, for the appellee, Jacqueline Moran.

Judge: BLACKWOOD

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee injured her back while discharging her duties in the housekeeping department of her employer in October 2003. After treatment in the emergency room, she received conservative treatment from her physicians. She was released by her physician and returned to work. In February 2005, she was terminated by her employer. She continued to receive medical treatment for her back. In 2006, her physician recommended surgery, which was performed in December 2007. The trial court found that the employee was permanently and totally disabled as a result of her injury. The employer has appealed, contending that the employee had a meaningful return to work and that the award should be limited to two and one-half times her medical impairment ruling pursuant to Tennessee Code Annotated section 50-6-241(a)(1). The employer also contends that the evidence preponderates against the trial court's finding that the employee was permanently and totally disabled. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/moranj_030811.pdf

HELEN M. LAND v. JACK CASTEEL

Court: TCA

Attorneys:

Steven B. Ward, Madisonville, Tennessee, for the appellant, Jack Casteel.

Robert Louis Jolley, Jr., Knoxville, Tennessee, for the appellee, Helen M. Land.

Judge: MCCLARTY

The appellant appeals the trial court's issuance of orders of protection against him. The appellant's sister and brother-in-law filed petitions for ex parte orders of protection and alleged that on two separate occasions, the appellant fired shots toward their home. The appellant denies the allegations. After a hearing, the trial court found by a preponderance of the evidence that entry of the orders of protection was necessary. We affirm.

http://www.tba2.org/tba_files/TCA/2011/landh_030811.pdf

IN RE SAMARIA S. AND SAMARION S. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. TIKINDRA G.

Court: TCA

Attorneys:

Charles L. Holliday, Jackson, Tennessee, for the Respondent/Appellant, Tikindra G.

Robert E. Cooper, Jr., Attorney General & Reporter, and Douglas Earl Dimond, Senior Counsel, for the Petitioner/Appellee, State of Tennessee, Department of Children's Services

Lanis L. Karnes, Jackson, Tennessee, Guardian Ad Litem

Judge: KIRBY

This is a dependency and neglect appeal from a finding of severe child abuse. The respondent mother gave birth to premature twins. Before the hospital released the premature infants to the mother's care, she was given extensive instructions on their feeding. Two weeks later, one twin was hospitalized, near death from severe malnutrition and dehydration. Days later, the other twin was hospitalized, also severely malnourished and dehydrated. The twins were taken into State protective custody, and a petition for dependency and neglect was filed, alleging severe child abuse. The mother stipulated to dependency and neglect, but denied severe child abuse. The juvenile court held that the first twin had been subjected to severe child abuse, but not the second twin. The mother appealed this finding to the circuit court. After a de novo hearing, the circuit court held that both twins had been subjected to "severe child abuse" as defined in Tennessee Code Annotated section 37-1-102(b)(23)(A) and (B). The mother now appeals. We affirm, finding, inter alia, that subsection (B) of the statute does not require proof that the mother's conduct was "knowing" in order to find severe child abuse.

http://www.tba2.org/tba_files/TCA/2011/samarias_030811.pdf

MAREY ATEF ABOU-RAHMA, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Marey Atef Abou-Rahma, Jr.

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

Judge: SMITH

Based upon the facts in three cases, the Davidson County Grand Jury indicted Petitioner, Marey Atef Abou-Rahma, Jr., for five counts of aggravated robbery, two counts of felony murder, two counts of first degree murder, and two counts of attempted first degree murder. On February 8, 2008, Petitioner pled guilty to two counts of aggravated robbery and two counts of felony murder. Petitioner was sentenced to two consecutive life sentences for the felony murder convictions and sentenced to two, eight-year sentences for the aggravated robbery convictions to be served concurrently to each other and the life sentences. On November 24, 2008, Petitioner filed a petition for post-conviction relief arguing among other things that he received ineffective assistance of counsel and that he did not enter his guilty plea voluntarily and knowingly. After an evidentiary hearing, the post- conviction court denied the petition. After a thorough review of the record, we affirm the denial of the post-conviction petition.

http://www.tba2.org/tba_files/TCCA/2011/abou-rahmam_030811.pdf

STATE OF TENNESSEE v. FABIAN CLAXTON

Court: TCCA

Attorneys:

Charles Mitchell (on appeal) and Larry Copeland (at trial), Memphis, Tennessee, for the appellant, Fabian Claxton.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; William L. Gibbons, District Attorney General; and Dean DeCandia and Colin A. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a jury trial, the Defendant, Fabian Claxton, was convicted of four counts of attempted first degree murder, a Class A felony, and unlawful possession of a handgun while at a public place, a Class A misdemeanor. The Defendant was sentenced to consecutive sentences of 22 years for each of the four attempted first degree murder convictions and a concurrent sentence of 11 months and 29 days for the unlawful possession of a handgun while at a public place conviction, for a total effective sentence of 88 years. In this appeal as of right, the Defendant contends that (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred in instructing a witness to identify the Defendant; and (3) the trial court improperly imposed consecutive sentences. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/claxtonf_030811.pdf

STATE OF TENNESSEE v. JANE DOE
CORRECTION: The file date has been changed from 3/7/10 to 3/7/2011

Court: TCCA

Attorneys:

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

G. Jeff Cherry and David Veile, Lebanon, Tennessee, for the appellee, Jane Doe.

Judge: OGLE

The appellant, State of Tennessee, appeals the Davidson County Criminal Court's order granting the motion of the appellee, Jane Doe, to expunge a criminal indictment that was dismissed pursuant to a plea agreement. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/doej_COR_030811.pdf

TIMOTHY CARL JOHNSON, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert C. Richardson, Jr., Columbia, Tennessee, for the Appellant, Timothy Carl Johnson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Michel T. Bottoms, District Attorney General; Daniel J. Runde, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Timothy Carl Johnson, Jr., pled guilty to attempted second degree murder, theft of property valued over $1000, attempted escape, burglary, nine counts of burglary of a vehicle, and ten counts of theft of property valued under $500. The trial court sentenced him to eighteen years in prison. The Petitioner filed a petition for post- conviction relief in which he alleged he received the ineffective assistance of counsel. The post-conviction court dismissed this petition after a hearing. On appeal, the Petitioner contends his trial counsel was ineffective because he did not adequately investigate the case. After a thorough review of the record, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/johnsont_030811.pdf

STATE OF TENNESSEE v. JEREMY KEETON

Court: TCCA

Attorneys:

William M. Harris, Lawrenceburg, Tennessee, for the Appellant, Jeremy Keeton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Michel T. Bottoms, District Attorney General; and Doug Dicus, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

Following a change of venue, a Giles County jury convicted the Defendant of voluntary manslaughter, and the trial court sentenced him to fifteen years in the Tennessee Department of Correction. The Defendant appeals his conviction and sentence, claiming that the trial court erred when it: (1) denied his request for a continuance to secure a material witness to the case; (2) denied his request for a jury instruction on ignorance and mistake of fact; and (3) sentenced him as a Persistent, Range III offender. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/keetonj_030811.pdf

ORLANDO M. REAMES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Chase Gober, Nashville, Tennessee, for the appellant Orlando M. Reames.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Pursuant to a plea agreement, the Petitioner, Orlando M. Reames, entered an "open" guilty plea to one count of aggravated assault, a Class C felony, and the State dismissed one count of failure to appear, a Class E felony. See Tenn. Code Ann. sections 39-13-102(e)(1), -16-609(e). The trial court sentenced the Petitioner to twelve years as a Range III, persistent offender. The Petitioner filed a timely petition for post-conviction relief and, after a hearing, the post-conviction court denied relief. In this appeal, the Petitioner argues that Trial Counsel was ineffective because he failed to adequately prepare for the Petitioner's trial, resulting in the Petitioner feeling coerced to accept the State's plea offer. After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2011/reameso_030811.pdf

STATE OF TENNESSEE v. RICKEY CLAYTON ROGERS

Court: TCCA

Attorneys:

John S. Colley, III, Columbia, Tennessee, for the appellant, Rickey Clayton Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; T. Michel Bottoms, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Rickey Clayton Rogers, was charged in a three-count indictment with DUI third offense; driving on a revoked or suspended license, third offense; and violation of the implied consent law. He filed a motion to dismiss all charges in the indictment on the basis that the charges were filed outside the applicable statute of limitations. The trial court denied the motion. Defendant pled guilty as charged in the indictment, and purported to reserve certified questions of law for appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The State argues that the appeal should be dismissed because of Defendant's failure to comply with all of the requirements to reserve a certified question of law for appeal; in the alternative, the State argues that the judgments should be affirmed. After a review of the record and a review of the applicable case law, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2011/rogersr_030811.pdf

STATE OF TENNESSEE v. RANDY LYNN SHELBY

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Randy Lynn Shelby.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; John Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Randy Lynn Shelby, was convicted by a Montgomery County jury of two counts of aggravated burglary and one count of especially aggravated kidnapping. Following a sentencing hearing, he received an effective sixty-year sentence to be served at 100%. In this direct appeal, the Defendant's only challenge is to the sufficiency of the evidence supporting his conviction for especially aggravated kidnapping, arguing that the short period of confinement was incidental to the burglary and did not substantially interfere with the victim's liberty. After a review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/shelbyr_030811.pdf

STATE OF TENNESSEE v. TONY STEWART

Court: TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District Public Defender; and Susan D. Korsnes, Assistant Public Defender (at trial), attorneys for the appellant, Tony Stewart.

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

Judge: THOMAS

The Defendant, Tony Stewart, was indicted for attempted first degree murder, aggravated assault, coercion of a witness, and misdemeanor evading arrest. After a jury trial, the Defendant was convicted of attempted second degree murder, aggravated assault, coercion of a witness, and misdemeanor evading arrest. In this appeal as of right, the Defendant contends that the evidence was insufficient to sustain his convictions. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/stewartt_030811.pdf

CHARLES A. WALKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kathryn B. Stamey, Clarksville, Tennessee, for the Appellant, Charles A. Walker.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; John W. Carney, Jr., District Attorney General; Arthur F. Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Montgomery County jury convicted the Petitioner, Charles A. Walker, of two counts of rape of a child and one count of aggravated sexual battery, and the trial court sentenced him to an effective sentence of twenty-eight years, at 100%, in the Tennessee Department of Correction. The Petitioner appealed his convictions, and this Court affirmed his two rape of a child convictions but reversed and remanded for a new trial the aggravated sexual battery conviction. State v. Charles A. Walker, No. M2005-00165-CCA-R3-CD, 2006 WL 3313651, at *1 (Tenn. Crim. App., at Nashville, Nov. 15, 2006), perm. app. denied (Tenn. Mar. 12, 2007). The Petitioner filed a petition for post-conviction relief, in which he alleged he received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that: (1) his trial counsel was ineffective; (2) the prosecutor committed several acts of prosecutorial misconduct at trial; (3) his convictions should be reversed based upon "cumulative error and bias"; and (4) his sentencing was illegal. After careful review, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/walkerc_030811.pdf

TODAY'S NEWS

Legal News
Passages
Disciplinary Actions
General Assembly News
TBA Member Services

Legal News

3 names given to governor for 5th district judgeship

Three candidates have been sent to Gov. Bill Haslam for his consideration in filling the 5th Judicial District opening created by the retirement of Judge W. Dale Young. The nominees are Steven H. Cook, assistant U.S. attorney for the Eastern Division of Tennessee; Tammy M. Harrington, deputy district attorney general, 5th Judicial District; and Lynn C. Peterson, an attorney with Lewis, King, Krieg and Waldrop PC. All three are from Maryville. The Judicial Nominating Commission met in Maryville today to review all of the applicants for the vacancy. After holding a public hearing and an interview with each applicant, the commission made the recommendation.

The Administrative Office of the Courts has the news

Lawyers line up on both sides of basketball player slaying

District Attorney Bill Whitesell and Assistant DA Paul Newman will be prosecuting the case of Shanterrica Madden, who is charged with first-degree murder in the March 2 stabbing death of MTSU basketball player Tina Stewart. Joe Brandon took Madden's case and is claiming self-defense. The Daily News Journal looks at past cases where these lawyers have battled head-to-head.

Read the story

UT's Aarons honored

University of Tennessee College of Law faculty member Dwight Aarons and several law students were honored at the 11th annual Blackshear Gala March 4. Aarons was honored for his dedication and service to the Black Law Students' Association.

See a picture and the list of winners

Memphians at polls today to decide school issue

Memphis voters are being asked today to approve transfer of management and administration of the city's unique special school district, Memphis City Schools, to Shelby County. "Separate but equal was ruled against the law of the nation years ago, and that's what we've been maintaining in Shelby County," City Council chairman Myron Lowery said. "It's time for it to end."

Follow the vote in the Commercial Appeal

UT team advances to finals in trial advocacy competition

The University of Tennessee College of Law team of J. Clay Cox, Eric Mauldin, G. William Perry and Jacob Wilson won the Atlanta regional competition March 5 in the American Association for Justice National Student Trial Advocacy competition. A second UT team of Claire Arnett, Josh Arters, Jennie Brooks and Brandon Morrow tied for fifth place with a 2-1 record out of a field of 18 teams in the regional. By winning the regional competition, the top UT team qualified for the national finals in Las Vegas in April. Both teams are coached by Larry Giordano, a partner with the Knoxville law firm of Lewis, King, Krieg & Waldrop PC.

Learn more and see a picture

Memphis law team wins regional in appellate advocacy competition

Grace Whiting and Tracy Bradshaw, University of Memphis Law's 3L American Bar Association NAAC team, went undefeated to win the Seattle Regional of the ABA's National Appellate Advocacy Competition, held March 3-5. They will continue on to nationals in Chicago, April 7-9. The team is coached by Professor Barbara Kritchevsky.

Women held to different standard, Sotomayor says

If you are a woman who wants to be a judge, you'll need thick skin, U.S. Supreme Court Justice Sonia Sotomayor told students at at Northwestern University School of Law. "There are expectations about how women and men should behave," she said, noting that during the nomination process she was asked for the names of everyone she ever dated. "There were (questions) I was offended by, because I was convinced they were not asking those questions of male applicants." She told the group that although some of her male colleagues are also single and bring dates to public affairs, she does not. "I knew if I did the same thing, my morals would be questioned."