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Thursday, March 31, 2011

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Belmont Law names associate dean

Belmont University College of Law has named Waller Lansden Dortch & Davis attorney Charles A. Trost to the post of associate dean for external relations. The position will be responsible for extending the outreach of the college to the broader Nashville community, developing legal education programs and pursuing development opportunities. Last year, Trost served as commissioner of revenue for the state under then-Governor Phil Bredsen. Prior to that he was a senior partner at Waller Lansden, practicing in the area of tax law. He has 10 years of experience in general civil and criminal law practice, and has taught law at the University of Alabama, University of Tennessee and Vanderbilt University. Read more about his background from the Belmont College of Law.

The Nashville Post reported the story

TODAY'S OPINIONS
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STATE OF TENNESSEE v. TEDDY RAY MITCHELL
With Dissenting Opinion

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Asst. Attorney General; C. Berkeley Bell, District Attorney General; Victor Vaughn, Asst. District Attorney General, for the appellant, State of Tennessee.

Darren V. Berg, James Charles Wright, and Robert Deno Cole, Knoxville, Tennessee, for the appellee, Teddy Ray Mitchell.

Judge: WADE

The defendant was convicted of disorderly conduct and sentenced to thirty days in jail, to be served on probation. On direct appeal, the Court of Criminal Appeals reversed, holding that the evidence was insufficient. This Court granted the State permission to appeal in order to consider the admissibility of a racially derogatory term, to review the sufficiency of the evidence, and to determine whether the conviction violated the constitutional right to free speech. Because the disputed testimony was properly admitted, the evidence was sufficient to support a conviction for disorderly conduct, and there was no violation of the right to free speech, the Court of Criminal Appeals is reversed. The judgment of conviction and sentence is reinstated.

http://www.tba2.org/tba_files/TSC/2011/mitchellt_033111.pdf

LEE concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/mitchellt_DIS_033111.pdf

IN RE: BECKA L. A. K.
With Dissenting Opinion

Court: TCA

Attorneys:

Connie Reguli, Brentwood, Tennessee, for the appellant, Shannon Kane.

Charles N. Griffith, Waverly, Tennessee, for the appellee, Russell Klein.

Judge: COTTRELL

The trial court allowed the mother of a twelve year old girl to move out of state with the child over the objections of the father and set out a generous visitation schedule so the father could maintain a close relationship with his daughter. Shortly after the move, the father filed a petition for contempt and for change of custody, alleging that the mother had deliberately thwarted his court-ordered visitation to defeat his parental rights. After a hearing, the trial court concluded that the father had proved his allegations, and it transferred custody of the child to him. Since we find that the evidence preponderates against the trial court's findings, we reverse and reinstate the parenting plan in effect before the father filed his petition and remand to the trial court for crafting of a transition plan.

http://www.tba2.org/tba_files/TCA/2011/beccalak_033111.pdf

CLEMENT concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2011/beccalak_DIS_033111.pdf

RALPH KENNETH FREEMAN, v. CITY OF CHATTANOOGA

Court: TCA

Attorneys:

Ralph Freeman, Chattanooga, Tennessee, pro se.

Crystal R. Freiberg and Patrick P.H. Bobo, Chattanooga, Tennessee, for the appellee, City of Chattanooga.

Judge: FRANKS

The Chattanooga City Police Department terminated petitioner for violation of policies, and the City Council upheld petitioner's termination. Petitioner filed a writ of certiorari in Chancery Court and the Chancellor upheld petitioner's termination. On appeal, we affirm the Judgment of the Chancery Court.

http://www.tba2.org/tba_files/TCA/2011/freemanr_033111.pdf

ANTHONY V. JACKSON v. GINGER JACKSON
With Dissenting Opinion

Court: TCA

Attorneys:

Ginger Jackson, Hillsboro, Tennessee, pro se

Karen Sedora, Tullahoma, Tennessee, for the appellee, Anthony V. Jackson

Judge: HIGHERS

This appeal involves countless motions filed over a period of nearly nine years following the parties' contentious divorce. The mother appeals, challenging numerous rulings by the trial court. We affirm in part, reverse in part, vacate in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2011/jacksona_033111.pdf

KIRBY partially dissenting
http://www.tba2.org/tba_files/TCA/2011/jacksona_DIS_033111.pdf

JESSE L. ROGERS, III., v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Jesse L. Rogers, III., Mountain City, Tennessee, pro se.

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

Judge: FRANKS

Plaintiff, an incarcerated prisoner, appealed a Circuit Court's decision dismissing his writ of habeas corpus to Chancery Court. The Chancellor held that an appeal from Circuit Court would not lie in Chancery Court which has no jurisdiction to try a writ of habeas corpus related to criminal proceedings. On appeal, we affirm the Judgment of the Chancery Court and remand.

http://www.tba2.org/tba_files/TCA/2011/rogersj_033111.pdf

IN RE: THE ESTATE OF MARY PAULINE STUMPE SCHORN, DECEASED

Court: TCA

Attorneys:

Donald K. Vowell, Knoxville, Tennessee, for the appellant, the Estate of Mary Pauline Stumpe Schorn, John H. Schorn, Personal Representative.

Ann Mostoller, Oak Ridge, Tennessee, for the appellees, Mary V. Schorn, and Charles A. Schorn.

Judge: SWINEY

In March of 2004, the Trial Court entered an order to probate the Last Will and Testament of Mary Pauline Stumpe Schorn ("Deceased") and appointed John H. Schorn the Personal Representative of Deceased's estate ("Personal Representative"). On April 13, 2010, the Trial Court entered an order that, inter alia, ordered the Personal Representative to "compile a complete list of where the estate monies are and what has been spent since the last accounting was provided to the beneficiaries...," within thirty days, and to close and settle the estate within ninety days. The Personal Representative appeals the April 13, 2010 Order to this Court. We hold that the order appealed from is not a final judgment, and, therefore, we lack jurisdiction to consider the appeal. The appeal is dismissed.

http://www.tba2.org/tba_files/TCA/2011/schornm_033111.pdf

APRIL AMANDA WORLEY, v. RICHARD THOMAS WHITAKER

Court: TCA

Attorneys:

Zachariah N. Stansell, Knoxville Tennessee, for the appellant, Richard Thomas Whitaker.

Thomas F. diLustro, Knoxville, Tennessee, for the appellee, April Amanda Worley.

Judge: FRANKS

Plaintiff sought and obtained an Order of Protection from the Trial Court against defendant, Subsequently, following an evidentiary hearing, the Court found defendant in contempt of the Order of Protection, and sentenced him to 1830 days in prison. Defendant has appealed to this Court inter alia, seeking a reduction in the sentence. We affirm the Judgment of the Trial Court, but modify by reducing his sentence to 730 days.

http://www.tba2.org/tba_files/TCA/2011/worleya_033111.pdf

STATE OF TENNESSEE v. THOMAS E. CAMPBELL

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the Defendant-Appellant, Thomas E. Campbell.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Thomas Miner, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Thomas E. Campbell, was convicted by a Warren County jury of attempted child abuse, a Class B misdemeanor, and aggravated sexual battery, a Class B felony. He was sentenced to six months in the county jail for attempted child abuse. For aggravated sexual battery, Campbell was sentenced as a Range I, violent offender to ten years in the Tennessee Department of Correction. On appeal, Campbell claims that: (1) both convictions were not supported by sufficient evidence; and (2) his sentence for aggravated sexual battery was excessive. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/campbellt_033111.pdf

STATE OF TENNESSEE v. JAMES RAE LEWTER

Court: TCCA

Attorneys:

S. Craig Moore, Fayetteville, Tennessee (on appeal) and A. Jackson Dearing, III and Dorothy Buck, Shelbyville, Tennessee (at trial) for the defendant-appellant, James Rae Lewter.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder and Elizabeth Bingham Marney, Assistant Attorneys General; Charles F. Crawford, Jr., District Attorney General; and Ann L. Filer and Hollyn Hewgley, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, James Rae Lewter, was convicted by a Lincoln County jury of burglary and theft of property valued at $1,000 or more but less than $10,000, both Class D felonies. The trial court sentenced Lewter as a Range II, multiple offender to concurrent sentences of eight years at thirty-five percent in the Department of Correction. On direct appeal, Lewter argued: (1) the evidence was insufficient to convict him; (2) the trial court imposed an excessive sentence of eight years in violation of State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007); and (3) the State engaged in misconduct during closing arguments. See State v. James Rae Lewter, No. M2007-02723-CCA-R3-CD, 2009 WL 1076716, at *1 (Tenn. Crim. App., at Nashville, Apr. 9, 2009), rev'd, 313 S.W.3d 745 (Tenn. June 4, 2010). Upon initial review, this court, after concluding that the evidence was insufficient to support his convictions, reversed and vacated Lewter's convictions and dismissed the indictment. Id. Following the reversal, the State applied for permission to appeal this court's decision to the Tennessee Supreme Court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, and on August 17, 2009, permission to appeal was granted. Upon review, the Tennessee Supreme Court held that "the evidence was sufficient to support a reasonable inference of guilt beyond a reasonable doubt." State v. Lewter, 313 S.W.3d 745, 746 (Tenn. 2010). Consequently, it reversed the judgment of the Court of Criminal Appeals and remanded the case to this court for consideration of the remaining two issues: (1) whether the trial court imposed an excessive sentence in violation of Gomez, 239 S.W.3d at 740; and (2) whether the State engaged in misconduct during closing arguments. See Lewter, 313 S.W.3d at 751. On remand, we conclude that Lewter did not receive an excessive sentence pursuant to Gomez and that the State's remarks during closing argument did not constitute prosecutorial misconduct. Accordingly, as to the issues remanded for our review, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/lewterj_033111.pdf

STATE OF TENNESSEE v. PAUL ALEXANDER MONTGOMERY, III

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender; Michael Jonothan Collins, Assistant Public Defender (at trial); William Joseph Harold, Assistant Public Defender (at trial); and Gregory D. Smith, Clarksville, Tennessee (on appeal), for the appellant, Paul Alexander Montgomery, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Paul Alexander Montgomery, III, was convicted of nine counts of rape of a child, a Class A felony. See Tenn. Code Ann. section 39-13-522. In this appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain the convictions of rape of a child and (2) the trial court erred by admitting evidence in violation of Tennessee Rules of Evidence 403 and 404(b). Following our review, we reverse the judgments of the trial court and remand the Defendant's case for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/montgomeryp_033111.pdf

STATE OF TENNESSEE v. HENRY LEE MOORE

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender, and Richard Kenneth Mabee, Assistant District Public Defender, for the appellant, Henry Lee Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; William H. Cox, III, District Attorney General; and C. Matthew Rogers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Henry Lee Moore, appeals the Hamilton County Criminal Court's order revoking his probation for two counts of violation of the Motor Vehicle Habitual Offender Act, a Class E felony, and one count of resisting arrest, a Class B misdemeanor, and ordering the remainder of his effective four-year sentence into execution. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/mooreh_033111.pdf

BOBBY G. NEELY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Norman David Lipton, South Pittsburg, Tennessee, for the appellant, Bobby G. Neely.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Bobby G. Neely, appeals the Marion County Circuit Court's denial of post-conviction relief from his convictions for rape of a child, criminal attempt to manufacture a Schedule II controlled substance, and child abuse, for which he received an effective sentence of fifteen years' confinement. On appeal, the Petitioner contends that the trial court erred by determining that he failed to file his petition for post-conviction relief in a timely manner. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/neelyb_033111.pdf

STATE OF TENNESSEE v. KENNETH PAUL NIGHTENGALE

Court: TCCA

Attorneys:

Edward Cantrell Miller, District Public Defender, and Keith Eric Haas, Assistant Public Defender, for the appellant, Kenneth Paul Nightengale.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner and Sophia S. Lee, Assistant Attorneys General; James Dunn, District Attorney General; and Steven Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Kenneth Paul Nightengale, was convicted by a Cocke County Circuit Court jury of theft over $10,000 but less than $60,000, a Class C felony. See T.C.A. section 39-14-103 (2010). He was sentenced as a Range III, persistent offender to fifteen years' confinement. On appeal, he contends that the evidence was insufficient to support his conviction and that the trial court erred by allowing the State to introduce a statement made by the Defendant but not disclosed during discovery. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/nightengalek_033111.pdf

FRED THOMPSON, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeremy W. Parham, Nashville, Tennessee, for the appellant, Fred Thompson, Jr.

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

Judge: THOMAS

The Petitioner, Fred Thompson, Jr., appeals as of right from the Davidson County Criminal Court's denial of his petition for post-conviction relief. The Petitioner was convicted of first degree murder committed in the perpetration of theft and theft of property valued less than $10,000, a Class D felony. He received a sentence of life imprisonment for the first degree murder conviction and a concurrent sentence of five years for the theft conviction. The Petitioner challenges the performance of trial and appellate counsel. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/thompsonf_033111.pdf

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General Assembly News

Ramsey proposes deal on judicial elections

Tennessee Senate Speaker Ron Ramsey said Thursday he is trying to cut a deal with the state Supreme Court for a constitutional amendment to let the justices keep running in yes/no retention elections. Ramsey told reporters he met with Supreme Court Chief Justice Cornelia Clark in his office this week and proposed they join forces to codify the current retention process in the state constitution. Ramsey also said he broke a tie vote in favor of direct election of judges this week to show the court that he means business.

The Nashville City Paper reports

Congressional News

Senate committee approves Sharp nomination

The U.S. Senate Judiciary Committee this morning unanimously approved the nomination of Nashville attorney Kevin Sharp, who is being considered for a federal judgeship in the Middle District of Tennessee. The action now moves to the full Senate, where a vote has not yet been set. Sharp was nominated last November to fill the seat vacated by former judge Robert L. Echols.

The Nashville Post has the story (subscription required)

Legal News

Firm creates scholarship to honor Conners

Bradley Arant Boult Cummings LLP has established a scholarship in memory of John T. Conners Jr., a founding partner of the firm's Nashville office. The firm will provide $10,000 a year for five years to fund the scholarship, which will go to students graduating from Saint Henry School and attending Father Ryan High School in Nashville.