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Thursday, April 28, 2011

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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.

01 - TN Supreme Court
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00 - TN Supreme Court - Rules
02 - TN Court of Appeals
07 - TN Court of Criminal Appeals
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00 - Formal Ethics Opinions - BPR
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.

JASON CALVERT v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Dumaka Shabazz, Nashville, Tennessee, for the appellant, Jason Calvert.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; J. Ross Dyer, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: CLARK

We granted the defendant's application for permission to appeal in this post-conviction proceeding to determine whether the defendant received ineffective assistance of counsel in conjunction with his guilty pleas to multiple sex offenses, because his counsel did not inform him about the mandatory lifetime community supervision consequence of some of his convictions. After a hearing, the post-conviction court denied relief upon its determination that the defendant's legal representation was competent; the Court of Criminal Appeals affirmed. We hold that the defendant has demonstrated by clear and convincing proof that (1) his counsel's performance fell below the objective standard of reasonableness because counsel did not advise him that, in addition to his effective ten-year sentence, a mandatory sentence of community supervision for life was a consequence of his guilty pleas; and (2) there was a reasonable probability that, but for counsel's failure to properly inform him, the defendant would not have pled guilty and would have insisted on going to trial. We therefore reverse the judgment of the Court of Criminal Appeals and remand this matter to the original trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2011/calvertj_042811.pdf

JOHNNY HATCHER, JR. v. CHAIRMAN, SHELBY COUNTY ELECTION COMMISSION, MYRA STYLES, MEMBER, SHELBY COUNTY ELECTION COMMISSION, BILL GIANNINI, MEMBER, SHELBY COUNTY ELECTION COMMISSION, ROBERT D. MEYERS, MEMBER, SHELBY COUNTY ELECTION COMMISSION, BRIAN STEPHENS, MEMBER, SHELBY COUNTY ELECTION COMMISSION, SHEP WILBUN, JR., MEMBER, SHELBY COUNTY ELECTION COMMISSION, THE CITY OF MEMPHIS, A CORPORATION; AND A.C. WHARTON, JR.

Court: TCA

Attorneys:

Johnny Hatcher, Jr., Memphis, Tennessee, pro se.

Allan J. Wade and Brandy S. Parrish, Allan J. Wade, PLLC, Memphis, Tennessee, for Defendants/Appellees, Shelby County Election Commission and The City of Memphis.

Donald A. Donati, William B. Ryan and Bryce W. Ashby, Donati Law Firm, LLP, Memphis, Tennessee, for Defendant/Appellee A. C. Wharton, Jr., in his individual capacity.

Judge: KIRBY

This appeal involves an election contest. The appellant was an unsuccessful candidate for mayor in a municipal election. After the election, the appellant filed this lawsuit seeking declaratory and injunctive relief and contesting the election. The trial court granted summary judgment to the defendants. We affirm.

http://www.tba2.org/tba_files/TCA/2011/hatcherj_042811.pdf

WHITNEY W. WEBB v. JUSTIN L. PEWITT

Court: TCA

Attorneys:

Anthony L. Clark, Paris, Tennessee, for the appellant, Whitney W. Webb.

Teresa McCaig Marshall, Paris, Tennessee, for the appellee, Justin L. Pewitt.

Judge: STAFFORD

This is a post-divorce modification of child custody case. The trial court modified custody upon its finding that a material change in circumstances had occurred such that primary residential custody with the Appellant Mother was no longer in the child's best interest. The court granted primary residential custody to the Appellee Father and Mother appeals. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2011/webbw_042811.pdf

STATE OF TENNESSEE v. EDDIE J. BAUCOM, III

Court: TCCA

Attorneys:

Michael J. Flanagan (on appeal), Nashville, Tennessee; Jake Lockert, District Public Defender and Kathleen Mitchell, Assistant Public Defender (at trial), Dickson, Tennessee, for the appellant, Eddie J. Baucom, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Kelly Jackson and Craig S. Monsue, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Eddie J. Baucom, III, was convicted by a Dickson County jury of one count of fourth offense of driving while under the influence and one count of resisting arrest. He was subsequently sentenced to two years probation for driving under the influence and thirty days incarceration in the Dickson County jail for resisting arrest. On appeal, the defendant challenges the sufficiency of the convicting evidence for the driving under the influence. Based upon a thorough review of the record and the parties' briefs, we affirm the judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCCA/2011/baucome_042811.pdf

RODNEY BUFORD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David Hopkins, Nashville, Tennessee, for the appellant, Rodney Buford.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Sarah Davis, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Rodney Buford, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of trial counsel because counsel failed to obtain a medical expert to testify at trial and failed to file a motion to suppress his statement to police. He further argues that appellate counsel was deficient for failing to challenge the sufficiency of the evidence on appeal and that the trial court erred by not finding that he was illegally sentenced. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/bufordr_042811.pdf

STATE OF TENNESSEE v. DAVID NEAL DAVIS

Court: TCCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, David Neal Davis.

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

Judge: WOODALL

Defendant, David Neal Davis, was originally indicted by the Rutherford County Grand Jury on four counts of aggravated sexual battery and one count of attempt to commit aggravated sexual battery. In a trial on these charges, Defendant moved for a mistrial, after the victim testified that she had been digitally penetrated by Defendant. The trial court granted Defendant's motion for a mistrial. In a superseding indictment, Defendant was indicted on two counts of rape of a child, eight counts of aggravated sexual battery, one count of solicitation of a minor, and one count of attempted aggravated sexual battery. Following a jury trial on these charges, Defendant was convicted of rape of a child, attempted rape of a child, seven counts of aggravated sexual battery, two counts of child abuse, and one count of attempted solicitation of a minor. He was sentenced by the trial court to an effective sentence of twenty years confinement. In this appeal as of right, Defendant asserts the following errors by the trial court: 1) the trial court erred by failing to dismiss the indictment on the basis of double jeopardy, or alternatively, on the basis of prosecutorial misconduct; 2) the trial court erred by denying Defendant's motion to introduce evidence of specific instances of sexual conduct by the victim; 3) the trial court erred by failing to dismiss Counts five and seven of the indictment, charging aggravated sexual battery, based on the State's failure to prove venue in those counts; and 4) the trial court erred by failing to dismiss Count one of the indictment, charging rape of a child, based on the State's failure to prove an element of the offense. After a thorough review of the record and the briefs of the parties, we find no error and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/davisd_042811.pdf

ALANDA D. HAYES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Alanda D. Hayes, Pro se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General, and Anthony Wade Clark, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Alanda D. Hayes, brought the present petition for habeas corpus relief in the Johnson County Criminal Court, challenging the legality of the sentences he received in five separate cases. The habeas corpus court dismissed the petition without a hearing. On appeal, the Petitioner contends that the habeas corpus court erred when it dismissed his petition because he was sentenced in contravention of the 1989 Sentencing Act and that, as such, his sentences are void. Having thoroughly reviewed the record and applicable authorities, we conclude the habeas corpus court properly dismissed the petition. We therefore affirm the habeas corpus court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/hayesa_042811.pdf

HERBERT N. JACKSON v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Herbert N. Jackson, Memphis, Tennessee, pro se.

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

Judge: WITT

The petitioner, Herbert N. Jackson, appeals the denial of his petition for writ of habeas corpus, which challenged his 2006 Madison County Circuit Court conviction of theft of property valued at $1,000 or more but less than $10,000. In this appeal, he claims that his sentence is illegal because the trial court failed to award him credit for the time he spent on community corrections and that his sentence has expired. Because the habeas corpus court erroneously concluded that the petitioner failed to state a cognizable claim for habeas corpus relief and because the petitioner has established entitlement to habeas corpus relief, the judgment of the habeas corpus court is reversed, and the case is remanded to the habeas corpus court for the entry of an order directing the trial court to amend the petitioner's judgment to reflect credit for time actually served on community corrections. Further, because the petitioner has established that, accounting for a correct application of community corrections credit, his sentence has been served and has expired, the petitioner is entitled to immediate release.

http://www.tba2.org/tba_files/TCCA/2011/jacksonh_042811.pdf

STATE OF TENNESSEE v. TOMMY EARL JONES
With Dissenting Opinion

Court: TCCA

Attorneys:

James Baum, Burns, Tennessee, for the appellant, Tommy Earl Jones.

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

Judge: WELLES

Following a jury trial, the Defendant, Tommy Earl Jones, was convicted of rape, a Class B felony, theft of property over $1,000, a Class D felony, aggravated kidnapping, a Class B felony, and especially aggravated burglary, a Class B felony. See Tenn. Code Ann. section 39-13-304(b), -13-503(b), -14-103, -14-105(3), -14-404(c). The trial court sentenced the Defendant to ten years for his rape conviction, three years for his theft conviction, ten years for his aggravated kidnapping conviction, and twelve years for his especially aggravated burglary conviction. The trial court ordered that the Defendant's sentences for rape and aggravated kidnapping be served consecutively for a total effective sentence of twenty years. In this direct appeal, the Defendant presents the following issues for our review: (1) The trial court erred when it excluded the Defendant from jury selection, trial, and the return of the verdict in the absence of any waiver; (2) The State presented insufficient evidence to convict the Defendant of especially aggravated burglary; (3) The trial court erred when it allowed a forensic expert to testify about opinions based on possibilities; and (4) The trial court erred in imposing consecutive sentences. After our review, we conclude that the Defendant's fundamental right to be present during his trial was violated. As a result, we must reverse the Defendant's convictions and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/jonest_042811.pdf

WEDEMEYER dissenting
http://www.tba2.org/tba_files/TCCA/2011/jonest_DIS_042811.pdf

FRANK PEAKE, III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Samuel J. Harris, Cookeville, Tennessee, for the appellant, Frank Peake, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; William E. Gibson, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Frank Peake, III, appeals from the Putnam County Criminal Court's denial of his petition for post- conviction relief. In 2004, the Petitioner was convicted by a jury of aggravated assault and was, thereafter, sentenced to six years as a Range II, multiple offender. This Court affirmed the Petitioner's conviction on direct appeal. The Petitioner later filed a post-conviction petition and, following an evidentiary hearing, the post-conviction court denied relief. On appeal, the Petitioner argues that he received the ineffective assistance of counsel due to trial counsel's failure (1) to investigate and interview witnesses that would have corroborated his self-defense theory and (2) to request a limiting instruction as to the prior threat made by the Petitioner. Following our review of the record and the parties' briefs, we conclude that the Petitioner has not shown that he is entitled to relief. The judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/peakef_042811.pdf

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Judge: Deputies violated mother's civil rights

U.S District Court Judge William Haynes Jr. ruled Wednesday that the Davidson County Sheriff's Office violated the civil rights of a Nashville mother when they kept her in shackles during labor and after giving birth. In a case that drew national attention, deputies arrested the nine-months pregnant woman for careless driving and driving without vehicle insurance, and held her when they discovered a previous deportation order returning her to her native country of Mexico.