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Friday, March 11, 2011

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Comments sought for proposed changes to judge's code

The Tennessee Supreme Court filed an order today soliciting public comments to proposed changes to the Code of Judicial Conduct, the ethics rules for Tennessee judges. The Tennessee Bar Association (TBA) filed a petition on Feb. 25, asking the court to adopt an amended Code of Judicial Conduct. The proposed changes address a variety of issues, including judicial recusals, campaign contributions and participation in political advocacy groups.

"Adopting the TBA's proposed amendments would result in a comprehensive revision of the current Tennessee Code of Judicial Conduct," the order states. "In light of the important public policy issues raised by the petition, the Court hereby solicits written comments regarding the TBA's proposed amendments from judges, lawyers, bar associations and members of the public and other interested parties." The deadline for submitting comments is Nov. 1.

See the order and the TBA petitions and exhibits

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
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
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00 - TN Supreme Court - Disciplinary Orders

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.

WILLIAM DAVID MORGAN v. GOODYEAR TIRE & RUBBER COMPANY ET AL.

Court: TWCA

Attorneys:

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellants, Goodyear Tire & Rubber Company and Liberty Mutual Insurance Company.

Jeffrey A. Garrety and Michael J. Cash, Jackson, Tennessee, for the appellee, William David Morgan.

Judge: HARRIS

In this workers' compensation appeal, the employee alleged a work-related incident aggravated a pre-existing back condition and that he required surgery as a result of the injury. His employer denied the claim, contending that the surgery was for treatment of a pre-existing condition and that the work related incident did not advance the pre-existing condition. The trial court found for the employee and awarded 20% permanent partial disability benefits. The employer appealed. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/morganw_031111.pdf

PHOENIX CREDIT v. DEBORAH L. AKERS

Court: TCA

Attorneys:

Deborah L. Akers, Nashville, Tennessee, Pro Se.

R.W. Shick, Jr., Nashville, Tennessee, for the appellee, Phoenix Credit.

Judge: STAFFORD

This is an appeal from the grant of summary judgment in favor of Appellee. Appellant obtained a credit card from Appellee's predecessor in interest, and defaulted on payment of the debt. Appellee brought suit to recover the debt, and the trial court granted summary judgment to Appellee. Appellant appeals, arguing that there is a dispute of fact as to whether Appellee is a lawful successor in interest, and also asserting that the trial court erred in denying Appellant's request to have certain documents included in the record. Affirmed.

http://www.tba2.org/tba_files/TCA/2011/akersd_031111.pdf

FRANK BARRETT AND JODI LYNN CHEATHAM v. TOWN OF NOLENSVILLE

Court: TCA

Attorneys:

John Edward Herbison, Nashville, Tennessee, for the appellants, Frank Barrett and Jodi Lynn Cheatham.

Robert John Notestine, III, Nashville, Tennessee, for the appellee, Town of Nolensville.

Judge: BENNETT

Parties who pled guilty to violation of a Nolensville ordinance argued that the costs assessed in their cases violated Article VI, Section 14 of the Tennessee Constitution. The Nolensville municipal court found against the parties. On appeal, the circuit court also found against the parties. On further appeal, we affirm the lower courts' decisions against one party and affirm in part and reverse in part the lower courts' decisions against the other party.

http://www.tba2.org/tba_files/TCA/2011/barrettf_031111.pdf

STATE OF TENNESSEE v. REGINALD MAURICE ADKINS

Court: TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Reginald Maurice Adkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; adn Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Reginald Maurice Adkins, was convicted of first degree felony murder, see Tennessee Code Annotated section 39-13-302, and attempted especially aggravated robbery, a Class B felony, see Tennessee Code Annotated sections 39-12-107(a), -13-403(b). In this direct appeal, the Defendant contends that the State presented insufficient evidence to convict him of either offense. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/adkinsr_031111.pdf

DETRICK COLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeffrey P. Yarbro, Gene L. Humphreys, and Kelly A. Gleason, Nashville, Tennessee, for the appellant, Detrick Cole.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General; Angela M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Detrick Cole, appeals as of right from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. A Shelby County Criminal Court jury found the Petitioner guilty of the premeditated first degree murder of Santiefe Thomas. The jury also sentenced the Petitioner to death after finding that the Petitioner had previously been convicted of one or more felonies for which the statutory elements involved the use of violence to the person, see Tenn. Code Ann. section 39-13-204(i)(2), and that this aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt. The Petitioner's conviction and sentence were affirmed on direct appeal by the Tennessee Supreme Court. State v. Cole, 155 S.W.3d 885 (Tenn. 2005). Following the filing of a timely petition for post-conviction relief and a full evidentiary hearing, the post-conviction court denied relief. On appeal to this court, the Petitioner presents a number of claims that can be characterized in the following categories: (1) the Petitioner's trial counsel were ineffective, (2) the Petitioner's appellate counsel were ineffective, (3) the Petitioner is statutorily ineligible for the death penalty, and (4) Tennessee's death penalty statutory scheme is unconstitutional. Following our review, we reverse, in part, the judgment of the post-conviction court and remand this case for a new sentencing hearing.

http://www.tba2.org/tba_files/TCCA/2011/coled_031111.pdf

STATE OF TENNESSEE v. GUY T. GRAVES

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Guy T. Graves.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Guy T. Graves, was indicted in November of 2009 by the Madison County Grand Jury for three counts of burglary. At trial, the trial court granted Appellant's motion for acquittal on count three of the indictment. The jury found Appellant guilty of the two remaining charges. The trial court sentenced Appellant as a Range III, persistent offender, to twelve years for each conviction, ordering Appellant to serve the sentences consecutively. After the denial of a motion for new trial, the following issues are presented for this Court on appeal: (1) whether the evidence was sufficient to establish Appellant's identity as the perpetrator of the crimes; and (2) whether the trial court properly ordered consecutive sentencing. After a review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/gravesg_031111.pdf

STATE OF TENNESSEE v. CHRIS JONES

Court: TCCA

Attorneys:

Leslie I. Ballin, Memphis, Tennessee (at trial and on appeal); and Richard S. Townley, Memphis, Tennessee (on appeal), for the appellant, Chris Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Bret Thomas Gunn, District Attorney General, pro tem; and Katrin Novak Miller, Assistant District Attorney General, pro tem, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Chris Jones, was charged with one count of first degree murder with respect to victim Donald Munsey; two counts of attempted first degree murder with respect to victims Justin Smith and David Eagan; one count of use of a firearm during the commission of a dangerous felony; and one count of possession of a firearm where alcoholic beverages are served. Following a jury trial, the Defendant was convicted of one count of second degree murder; one count of attempted second degree murder with respect to Mr. Smith; one count of attempted voluntary manslaughter with respect to Mr. Eagan; one count of use of a firearm during the commission of a dangerous felony; and one count of possession of a firearm where alcoholic beverages are served. In this appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain his convictions on the first three counts; (2) the trial court erred when it excluded testimony of Mr. Munsey's prior violent acts; (3) that the trial court erred in allowing the State to present evidence regarding the Defendant's recent divorce; (4) that the trial court erred in allowing the State to rehabilitate a witness with his prior consistent statement; and (5) that the Defendant's rights to trial by jury and due process were violated by the use of sequential jury instructions. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/jonesc_031111.pdf

DIMECOS ICHAD JONES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brett B. Stein, Memphis, Tennessee, for the appellant, Dimecos Ichad Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Michael Zak, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Dimecos Ichad Jones, appeals as of right from the Shelby County Criminal Court's denial of his petition for post-conviction relief, alleging that his trial and appellate counsel were ineffective. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/jonesd_031111.pdf

STATE OF TENNESSEE v. JAMES F. MASON

Court: TCCA

Attorneys:

John W. Price, Murfreesboro, Tennessee, for the appellant, James F. Mason.

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

Judge: WELLES

This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The Defendant, James F. Mason, pleaded guilty to possession of methamphetamine with the intent to deliver. As part of his plea agreement, the Defendant attempted to reserve a certified question of law, challenging the trial court's denial of his motion to suppress the evidence seized during the search of his residence. Because the Defendant has failed to properly certify his issue for review, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2011/masonj_031111.pdf

STATE OF TENNESSEE v. FREDERICK LAMONT MOORE

Court: TCCA

Attorneys:

Robert Brooks, Memphis, Tennessee (on appeal), and George Morton Googe, District Public Defender (at trial), for the appellant, Frederick Lamont Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James G. Woodall, District Attorney General; Jody S. Pickens and Alfred Lynn Earls, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a jury trial, the Defendant, Frederick Lamont Moore, was convicted of first degree premeditated murder; first degree murder committed while in the perpetration of a felony (felony murder); aggravated kidnapping, a Class B felony; and two counts of tampering with evidence, a Class C felony. The trial court merged the first degree premeditated murder conviction with the felony murder conviction and ordered a sentence of life imprisonment for the resulting conviction. As to the remaining counts, the trial court ordered a sentence of 20 years for the aggravated kidnapping conviction and concurrent sentences of 10 years for each of the tampering with evidence convictions. The trial court also ordered the Defendant to serve his 20-year sentence for aggravated kidnapping consecutively to his life imprisonment sentence for the first degree murder conviction. 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/mooref_031111.pdf

STATE OF TENNESSEE v. EDDIE H. PITTMAN

Court: TCCA

Attorneys:

J. Colin Morris, Jackson, Tennessee (at trial); and Paul E. Meyers, Assistant Public Defender (on appeal), for the appellant, Eddie H. Pittman.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Eddie H. Pittman, was convicted by a Madison County Circuit Court jury of theft of property valued between $500-$1000, a Class E felony, and was sentenced as a career offender to six years in the Department of Correction. On appeal, he challenges the sufficiency of the evidence regarding the value of the stolen goods. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/pittmane_031111.pdf

BOBBY JOE ROLLINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Bobbie Joe Rollins.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Petitioner, Bobby Joe Rollins, was convicted of aggravated robbery, a Class B felony, and sentenced as a Range III, persistent offender to twenty-eight years. See Tenn. Code Ann. section 39-13-402 (aggravated robbery defined). This Court affirmed his conviction and sentence on direct appeal. See State v. Bobby Joe Rollins, No. M2008-00284-CCA-R3-CD, 2008 WL 5427733 (Tenn. Crim. App., Nashville, Dec. 31, 2008) (mem.), perm. to appeal dismissed, (Tenn. Mar. 23, 2009). 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 claims that he was denied effective assistance of counsel because: (1) Trial Counsel mis-advised the Petitioner with respect to whether he should testify at his trial; (2) Trial Counsel failed to undertake any meaningful trial preparations with the Petitioner; and (3) Trial Counsel failed to object and request a mistrial when a witness stated that the Petitioner had been in "the pen." After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2011/rollinsb_031111.pdf

STATE OF TENNESSEE v. GUSSIE WILLIS VANN

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; R. Steven Bebb, District Attorney General; and Jerry Sloan, Assistant District Attorney General, for the Appellant, State of Tennessee.

Benjamin L. McGowan, Chattanooga, Tennessee, for the Appellee, Gussie Willis Vann.

Judge: MCMULLEN

Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State appeals the trial court's order denying jury instructions on lesser included offenses at the Defendant Gussie Willis Vann's retrial for felony murder. See T.C.A. section 39-13-202(a)(2) (1991). The Defendant was originally convicted by a McMinn County jury of felony murder committed in the perpetration of aggravated rape and two counts of incest. He was sentenced to death plus six years' incarceration. In affirming his convictions on direct appeal, this court, see State v. Gussie Willis Vann, No. 03C01-9602-CC-00066, 1997 WL 309320 (Tenn. Crim. App., at Knoxville, June 10, 1997), and the Tennessee Supreme Court, see State v. Vann, 976 S.W.2d 93 (Tenn. 1998), rejected the Defendant's claim that the trial court erred by failing to instruct the jury on the lesser included offenses of felony murder. The Defendant subsequently filed a petition for post-conviction relief, and the post-conviction court ordered a new trial on grounds unrelated to the issue presented in this appeal. Prior to retrial, the Defendant moved to dismiss his indictment and bar instructions on the lesser included offenses of felony murder arguing, among other things, (1) that principles of double jeopardy, collateral estoppel, and judicial estoppel precluded the State from prosecuting the Defendant on any lesser included offense of felony murder because the "explicit statements" of both this court and the Tennessee Supreme Court "on direct appeal that the trial record was 'devoid of evidence' of lesser included offenses were factual determinations, necessary to valid final judgments, from which the government is prohibited from seeking an inconsistent determination" and (2) that "the [original] trial judge's refusal to instruct on such lesser included offenses was a qualitative determination of the evidence, tantamount to an acquittal and triggering traditional double jeopardy and res judicata [as] to those charges." Following a hearing, the trial court agreed in part with the Defendant and actually barred retrial on any lesser included offenses of felony murder. The State sought and we granted Rule 9 review to determine "whether constitutional double jeopardy protections bar at the trial the inclusion of lesser included offenses of first degree felony murder." Upon our review, we reverse the decision of the trial court and remand for proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2011/vanng_031111.pdf

Use of Net Lottery Proceeds

TN Attorney General Opinions

Date: 2010-03-11

Opinion Number: 11-20

http://www.tba2.org/tba_files/AG/2011/ag_11_20.pdf

TODAY'S NEWS

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TBA Member Services

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ADR rule amendments approved by court

The Tennessee Supreme Court has amended Rule 31, Rules of the Supreme Court of Tennessee, regarding alternative dispute resolution proceedings. These amendments will take effect on April 1. On Dec. 6, 2010, the Alternative Dispute Resolution Commission filed a petition asking the court to amend Sections 2(n), 3(a) and 5(c) of Rule 31, which was published for comment. The deadline for submitting comments was Feb. 15.

Download the order and appendix

Request for recusals triggers complaint

A lawyer who asked three judges in one case to recuse themselves is now facing possible public censure by the Board of Professional Responsibility. "She should take this as a lesson learned and refrain from seeking to recuse a judge on frivolous grounds," the BPR complaint said. The lawyer, Cyndi Cheatham, says she was just trying to get a fair trial for her client because all three of the judges had some connection to her client's ex-husband. "I think there needs to be a new mechanism to ask a judge to examine their own bias or prejudice in a case because a fair and unbiased judiciary is the most important right a litigant has," she said.

WSMV has this story

Chief judge to preside over mock trial final round; competition begins today

Fifteen Tennessee judges, including Chief Justice Cornelia A. Clark, will preside over the 31st annual Tennessee State High School Mock Trial Competition this weekend. Judges from across the state will join more than 100 attorneys and volunteers who will lend their expertise to this weekend's state competition, sponsored by the Tennessee Bar Association Young Lawyers Division. Sixteen teams have qualified for the state championship by winning their local mock trial competitions. The winner of the state championship will represent Tennessee at the National High School Mock Trial Competition in Phoenix on May 5-8. The state competition began this afternoon (Friday) at the Davidson County Courthouse in Nashville. Clark will preside over the championship round, which will be Saturday at 4:30 p.m.

See the list of participating judges

Plant food used as drug seized

Tennessee Attorney General Bob Cooper and Agriculture Commissioner Julius Johnson today announced the statewide seizure of Molly's Plant Food, a substance alleged to have been touted on the Internet for its mind-altering qualities when taken orally. No criminal charges have been filed in this case. However, the attorney general's office and Department of Agriculture have cited civil law violations because the product has not been properly registered and labeled in accordance with state law, according to the complaint.

Lawyer seeks justice after 90+ years

MetroPulse columnist Jack Neely shares a recent conversation he had with Knoxville attorney Don Paine regarding his quest to get some level of justice for Maurice Mays, who he first wrote about in the Tennessee Bar Journal four years ago. Paine believes Mays was wrongly convicted in a 1919 murder case and has prepared a Petition for Exoneration addressed to Gov. Bill Haslam.

Second-career brings fulfillment

Tonya Cammon left a successful career in medical technology for the law. Since then she's built a strong practice with the Chattanooga firm of Grant, Konvalinka & Harrison, and has become an inexhaustible community volunteer. The Hamilton County Herald gives us a glimpse into her life and career.