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Friday, May 06, 2011

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2011 court rules amendments adopted

The 2011 Appellate Court Rules package was passed by the General Assembly earlier this week. The rules will be effective as amended on July 1. Senate resolutions passed on April 4; House resolutions passed May 2. Here are the amendments:

Amendments to Tennessee Rules of Appellate Procedure (SR13/HR35)

Amendments to Tennessee Rules of Civil Procedure (SR12/HR34)

Amendments to Tennessee Rules of Criminal Procedure (SR14/HR36)

Amendments to Tennessee Rules of Evidence (SR11/HR33)

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.

IN RE: CALEB L. C.
CORRECTION: Changes made to pages 16 and 19

Court: TCA

Attorneys:

Ricky A.W. Curtis, Blountville, Tennessee, for the appellant, Randall Cregg C.

Sarah Y. Sheppeard, Knoxville, Tennessee, Wendy Brooks Crew, Birmingham, Alabama, and Randall M. Kennedy, Bristol, Tennessee, for the appellees, Roger Redmond and Stephanie Redmond.

Judge: STAFFORD

This is a dependency and neglect case. The child's mother is deceased, and the child's father has a long history of physically abusing family members. Both the juvenile court and the circuit court, on de novo appeal, found the child to be dependent and neglected and determined that the child's best interests were served by remaining in the custody of his maternal uncle and aunt. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2011/caleblc_COR_050611.pdf

STATE OF TENNESSEE v. PHILLIP WAYNE FLOWERS

Court: TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); and Tom W. Crider, District Public Defender (at trial and on appeal); and Rachele Scott, Assistant Public Defender (at trial), for the appellant, Phillip Wayne Flowers.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Phillip Wayne Flowers, who pled guilty to one count of sexual battery, a Class E felony, and was sentenced to one year on community corrections, appeals the trial court's denial of his motion to withdraw his guilty plea. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/flowersp_050611.pdf

MARGO FRESHWATER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stephen Ross Johnson, Knoxville, Tennessee, for the appellant, Margo Freshwater.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Margo Freshwater, was convicted of first degree murder and sentenced by the jury to imprisonment for 99 years. In 1970, she escaped from the Tennessee Prison for Women and was at large until 2002, when she was arrested in Columbus, Ohio, and returned to Tennessee to resume service of her sentence. She filed a petition for writ of error coram nobis which twice has been remanded to the trial court. The main issue in this appeal is whether the State withheld from the petitioner's counsel the statement of Johnny Box that the petitioner's co-defendant told him that he had been the lone shooter of the victim, which, had it been revealed to her counsel, more probably than not, according to the petitioner, would have resulted in a different judgment. Following our review, we concur with the argument of the petitioner in this matter. Accordingly, we reverse the petitioner's conviction for first degree murder and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/freshwaterm_050611.pdf

STATE OF TENNESSEE v. JASON R. McCALLUM

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender; and Patrick McGill, Assistant Public Defender, for the appellant, Jason R. McCallum.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Renee Creasy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Jason R. McCallum, was convicted by a Dyer County Circuit Court jury of the sale of more than 0.5 grams of a Schedule II controlled substance, methamphetamine, within 1000 feet of a school, a Class A felony. He was sentenced to eighteen years as a Range I offender. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/mccallumj_050611.pdf

TODAY'S NEWS

Legal News
Passages
Disaster Relief
General Assembly News
TBA Member Services

Legal News

Judge suspends interpreter who viewed porn in court

Bradley County General Sessions Judge Sheridan Randolph suspended court interpreter Mark Weissenberg Thursday after finding him in criminal contempt of court for viewing pornographic pictures in the courtroom. Weissenberg was also fined $10. According to Randolph's ruling, Weissenberg will not be eligible to work as a court translator until July 29 when he is scheduled to appear at a hearing before the Tennessee Administrative Office of the Courts. Weissenberg said he innocently opened an email from his brother that contained the pictures.

The Cleveland Daily Banner reports

Census causes judge status to change in 2 counties

After the 2010 Census report, two counties in Tennessee -- Claiborne and Marshall -- "moved from a class 4 to a class 3 county," according to Elizabeth Sykes with the Administrative Office of the Courts. Sykes says this means that "by statute, judges in these counties move from part-time judges to full-time judges that are prohibited from maintaining a law practice." But Marshall County Judge Steve Bowden -- a part-time judge with a private practice -- says not so fast.

The Marshall County Tribune has the story

Clayton's death raises questions about equipment

The recent death of former Judge James Clayton while at the Cannon County Courthouse has raised questions about the length of time it took the ambulance to arrive, possibly because of the failure of an emergency "panic" button, and whether the automated external defibrillator at the courthouse worked.

The Daily News Journal reports

Passages

Former KBA president Sam Fowler dies

A former president of the Knoxville Bar Association and long-time lawyer, Sam F. Fowler Jr. died May 5. He was 82. A graduate of the University of Tennessee and the University of Virginia School of Law, Fowler practiced law for nearly 60 years. The News Sentinel has more. Fowler served as president of the KBA in 1980, was a founding fellow of the Tennessee Bar Foundation, past president of the East Tennessee Foundation and past president of the Knox County Community Mediation Center. Services will be held May 9. Family and friends will meet at 12:45 p.m. for a 1 p.m. committal service at Greenwood Cemetery. A memorial service will be held at 3 p.m. at Sequoyah Hills Presbyterian Church. Visitation will follow the service in Barron Hall.

Read his obituary

Disaster Relief

Free CLE for lawyers handling disaster cases

The Tennessee Bar Association will offer a one-hour free CLE webcast on May 13 about the legal issues related to handling contractor/home repairs in Tennessee. The session will include a discussion of home solicitation sales by contractors and how the Tennessee Consumer Protection Act protects consumers from predatory contractors. This free program -- which will help lawyers handle disaster-related pro bono cases -- is accredited for one hour of continuing legal education. The course is being offered free by the TBA as a public service for attorneys who provide pro bono assistance.

General Assembly News

Opinion: Voter Confidence Act should not be repealed

State Sen. Roy Herron, D-Dresden, says in a guest column that repeal of the Voter Confidence Act "would be a devastating blow to democracy in Tennessee." He argues that "electronic voting machines used in 93 of our 95 counties are so vulnerable to fraud and thievery that they can steal your vote even before you cast your ballot."

Read the piece in the Commercial Appeal

Exclusionary rule bill passes House

The Exclusionary Rule Reform Act passed the state House on Wednesday. The final vote was 89-9. Rep. Eric Watson, R-Cleveland, the chairman of the House Judiciary Committee, was the chief sponsor of the bill. Speaking about the bill, he said HB401 creates a "good faith exception" to the exclusionary rule "so courts will have a legitimate alternative to allow evidence to be heard in a case and [have] a clear definition so there will be clarity on the issue."