TBA Today

Wednesday, June 08, 2011

Search our Database for Opinions and News Items

Cameras will roll in federal Western District pilot program

The federal courts of the Western District of Tennessee have been selected to experiment with cameras in civil proceedings, one of 14 districts around the country chosen to take part in the three-year pilot program. The announcement was made by the Judicial Conference of the United States in Washington today. Cameras will be limited to civil proceedings in which all parties have consented to their presence. The decision of the five active and one senior status judge to participate in the pilot program was not unanimous, so there may be a judge or judges who elect not to participate, Clerk Thomas M. Gould said.

The Commercial Appeal has the details

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
03 - TN Court of Appeals
10 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
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.

DANIEL CLAY LEWIS v. DANA HOLDING CORPORATION

Court: TWCA

Attorneys:

Fred J. Bissinger, Nashville, Tennessee, and Terri L. Bernal, Chattanooga, Tennessee, for the appellant, Dana Holding Corporation.

Floyd S. Flippin and Terri Smith Crider, Humboldt, Tennessee, for the appellee, Daniel Clay Lewis.

Judge: HOLDER

An employee sustained an injury to his shoulder at work. After a surgical repair, he briefly returned to work but was laid off prior to reaching maximum medical improvement. He filed a complaint in chancery court seeking workers' compensation benefits from his employer. His treating physician assigned no impairment rating and placed no restrictions on his activities. An evaluating physician assigned 6% impairment to the body as a whole and recommended that Mr. Lewis avoid certain activities. The trial court awarded 36% permanent partial disability to the body as a whole. The employer has appealed, contending that the award is excessive. We modify the judgment to award 24% permanent partial disability to the employee. We also conclude that local Rule 17A of the Chancery Court of the 28th Judicial District of Tennessee conflicts with Tennessee Rule of Civil Procedure 58.

http://www.tba2.org/tba_files/TSC_WCP/2011/lewisd_060811.pdf

IN RE IYANA R.W.

Court: TCA

Attorneys:

Timothy T. Ishii, Nashville, Tennessee, for the appellant, Dana R. B.

Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Ramon W.

Judge: MCCLARTY

The primary residential parent of the parties' ten-year-old daughter requested permission to relocate to Colorado. The mother's reason for the relocation was that she had married a man who was a military service member stationed in Colorado. The father opposed the move. The trial court denied the request after finding that the mother's conduct surrounding the move constituted a material change in circumstances and that it was in the child's best interest that the father become the primary residential parent. The mother appeals. At the time of the request to relocate, Mother was the primary residential parent and spent substantially more time with the child; thus, Tenn. Code Ann. section 36-6-108(d) applied. Finding that the trial court erred in failing to apply Tenn. Code Ann. section 36-6-108(d), we reverse the trial court's judgment; grant Mother's request to relocate to Colorado with the parties' minor child; deny Father's petition to change custody; and remand for the trial court to set Father's visitation.

http://www.tba2.org/tba_files/TCA/2011/iyanarw_060811.pdf

IN RE: JAIDEN C.W. And CAIDEN J.W., Children Under the Age of 18 years (d.o.b. 7/27/2006)

Court: TCA

Attorneys:

Michelle M. Benjamin, Winchester, Tennessee, for the appellant.

Eric J. Burch, Manchester, Tennessee, for the appellee.

Judge: FARMER

This is a child support case. The juvenile court found, inter alia, the father owed a child support arrearage of $21,356.63. We affirm in part, vacate in part, and remand.

http://www.tba2.org/tba_files/TCA/2011/jaidencw_060811.pdf

STATE OF TENNESSEE v. JULIO RAMIREZ

Court: TCA

Attorneys:

David L. Raybin, Nashville, Tennessee (on appeal), and Barry Tidwell and Eric Carter, Nashville, Tennessee (at trial), for the Appellant, Julio Ramirez.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Hugh Garrett and J.W. Hupp, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Julio Ramirez, of six counts of aggravated sexual battery, one count of rape of a child, and one count of assault, for crimes involving multiple victims, and the trial court sentenced him to an effective sentence of eighteen years of confinement. The trial court subsequently reduced this sentence to fifteen years following a motion for new trial hearing. On direct appeal from his convictions, the Defendant contends: (1) his trial counsel deprived him of the effective assistance of counsel by failing to move to sever the offenses with respect to the multiple victims; (2) he did not knowingly waive his right to be tried separately for the offenses and, as such, his joint trial for these offenses violated his rights to due process, a jury trial, and the effective assistance of counsel; (3) the evidence was insufficient to support his conviction for rape of a child; (4) the trial court improperly limited the defense's cross-examination of the victims' mother; (5) the trial court improperly limited the defense's presentation of character testimony; (6) the State made improper remarks during closing argument; and (7) the trial court erroneously instructed the jury. After a thorough review of the record and applicable law, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2011/ramirezj_060811.pdf

STATE OF TENNESSEE v. DANE SHANNON BRIEST

Court: TCCA

Attorneys:

Lee Sprouse, Nashville, Tennessee, for the appellant, Dane Shannon Briest.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III; District Attorney General; and Allen Grant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Dane Shannon Briest, pled guilty in the Davidson County Criminal Court to theft of property valued one thousand dollars or more but less than ten thousand dollars, a Class D felony, and evading arrest, a Class A misdemeanor. He received concurrent sentences of six years, one month for the felony conviction and eleven months, twenty-nine days for the misdemeanor conviction to be served on probation. On appeal, the appellant contends that the trial court erred by revoking his probation. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/briestd_060811.pdf

STATE OF TENNESSEE v. PHILLIP LYNN DORSE

Court: TCCA

Attorneys:

Timothy Boxx, Assistant Public Defender, for the appellant, Phillip Lynn Dorse.

Robert E. Cooper, Jr., Attorney General and Reporter, Cameron L. Hyder, Assistant Attorney General; C. Phillip Bivens, District Attorney General, and Charles Dyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Phillip Lynn Dorse, was indicted by the Dyer County Grand Jury for two counts of aggravated assault in connection with a neighborhood altercation during which Appellant hit two individuals with a baseball bat. After a jury trial, Appellant was convicted of one count of aggravated assault and one count of assault. The trial court sentenced Appellant to an effective sentence of eight years as a Range II, multiple offender to be served consecutively to a previously imposed sentence. On appeal, Appellant argues that the evidence was insufficient to support his convictions and that the trial court erred in imposing consecutive sentences. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/dorsep_060811.pdf

STATE OF TENNESSEE v. ROBERT A. GUERRERO

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Robert A. Guerrero.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; T. Michel Bottoms, District Attorney General, and Kimberly Cooper, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Robert A. Guerrero, was indicted by the Maury County Grand Jury on two counts of first degree murder, two counts of felony murder, nine counts of attempted first degree murder, and nine counts of aggravated assault. Following a jury trial, Defendant was convicted of two counts of first degree murder and nine counts of attempted first degree murder. Defendant was sentenced by the trial court to two consecutive life sentences and nine fifteen-year sentences, to run consecutive to the life sentences, for a total effective sentence of two life sentences plus 135 years. In this direct appeal, Defendant makes the following assignments of error: 1) the trial court erred by denying Defendant's challenges for cause to three jurors; 2) the trial court erred by not allowing Defendant to conduct an individual voir dire of the prospective jurors regarding their media exposure to the case; 3) the trial court erred by not striking three jurors after they saw Defendant being escorted to the restroom by a courtroom deputy; 4) the trial court erred in allowing a witness for the State to remain in the courtroom in violation of Tennessee Rule of Evidence 615; 5) the trial court erred by allowing the testimony of an emergency room doctor who treated some of the victims; 6) the trial court erred by allowing two exhibits into evidence over Defendant's objection as to the chain of custody; 7) the indictments charging attempted first degree murder, Counts 5 through 9, should have been dismissed for failing to provide Defendant adequate notice of the charge; 8) the trial court erred by instructing the jury on criminal responsibility; 9) the trial court erred by imposing consecutive sentencing; 10) the evidence was insufficient to support Defendant's convictions. Following a careful review of the record on appeal, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/guerreror_060811.pdf

STATE OF TENNESSEE v. JOSHUA MAURICE HICKMAN

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the Defendant-Appellant, Joshua Maurice Hickman.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Janice Norman, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Joshua Maurice Hickman, appeals the revocation of his community corrections sentence. He pled guilty in the Criminal Court of Davidson County to possession with intent to sell a Schedule I controlled substance, a Class B felony. Hickman was originally sentenced as a multiple offender to twelve years in the Tennessee Department of Correction. Pursuant to the plea agreement, this sentence was suspended to twelve years on community corrections. On appeal, Hickman concedes that he violated the terms of the community corrections sentence. He argues, however, that the trial court abused its discretion by imposing his original sentence. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/hickmanj_060811.pdf

RICKY LYNN HILL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ricky Lynn Hill, Tiptonville, Tennessee, appellant, pro se.

Jerry P. Spore and Teresa A. Luna, Jackson, Tennessee, for the appellees, The City of Henderson, Tennessee and Ronnie Faulkner.

Judge: PER CURIAM

The trial court dismissed this action, inter alia, for lack of subject matter jurisdiction. We dismiss this appeal for Appellant's failure to timely file the notice of appeal.

http://www.tba2.org/tba_files/TCCA/2011/hillr_060811.pdf

TONY HOOVER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Deena L. Knopf, Memphis, Tennessee, for the appellant, Tony Hoover.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alexia Fulgham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Tony Hoover, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. The petitioner entered open Alford pleas to two counts of rape and two counts of incest. Following a sentencing hearing, the trial court imposed an effective sentence of twenty-one years in the Department of Correction. On appeal, the petitioner contends that his pleas were not entered with an understanding of the nature and consequences of the pleas. He also contends that trial counsel provided ineffective assistance by failing to properly inform him of the terms and consequences of his guilty pleas and by advising him to waive his ex post facto rights and be sentenced pursuant to the 2005 amendments to the Sentencing Act. Following careful review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/hoovert_060811.pdf

TYLER KING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Danny Goodman, Jr., Tiptonville, Tennessee, for the appellant, Tyler King.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Tyler King, appeals as of right from the Dyer County Circuit Court's denial of his petition for post- conviction relief. The Petitioner pled guilty to voluntary manslaughter, a Class C felony, and received an agreed sentence of 15 years in the Tennessee Department of Correction as a Range II, multiple offender. The Petitioner challenges the voluntariness of his guilty plea and the performance of trial counsel. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/kingt_060811.pdf

STATE OF TENNESSEE v. RODNEY MCALISTER

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender (on appeal), and Stephen Lefler, Memphis, Tennessee (at trial), for the appellant, Rodney McAlister.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; D. Michael Dunavant, District Attorney General, and Joni Livingston and Julie Pillow, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Rodney McAlister, was convicted by a Lauderdale County jury of vandalism between $1000 and $10,000, a Class D felony. He was thereafter sentenced to a term of five years, as a multiple offender, in the Department of Correction. On appeal, the defendant challenges only the sufficiency of the evidence, asserting that the State failed to negate the defenses of duress and necessity. Following review of the record, we conclude that the evidence is sufficient and affirm the conviction.

http://www.tba2.org/tba_files/TCCA/2011/mcalisterr_060811.pdf

STATE OF TENNESSEE v. JAMES RYAN WATSON

Court: TCCA

Attorneys:

G. Scott Kanavos, Cleveland, Tennessee, for the appellant, James Ryan Watson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Jerry N. Estes, District Attorney General, and Brooklynn Townsend, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Ryan Watson, was indicted in June of 2009 by the Polk County Grand Jury for driving under the influence ("DUI") of an intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system, or in the alternative, driving while the alcohol concentration in the defendant's blood or breath was .08% or more. Prior to trial, Appellant filed a motion to suppress the following: (1) the search of his person and vehicle; (2) his statement at the time of the arrest; (3) the results of the blood alcohol test; and (4) the results of the field sobriety tests. After a hearing, the trial court denied the motions. Subsequently, Petitioner pled guilty to DUI, first offense and was sentenced to eleven months and twenty-nine days incarceration in the county jail. The trial court suspended the sentence, after service of forty-eight hours, and ordered Appellant to serve the sentence on probation. As a condition of the guilty plea, Appellant reserved a certified question of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure arguing that the trial court erred in denying the motion to suppress. After a thorough review of the record, we conclude that the evidence does not preponderate against the factual findings of the trial court that there was probable cause for the stop of Appellant's vehicle. Therefore, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/watsonj_060811.pdf

STATE OF TENNESSEE v. WALTER WILLIAMS

Court: TCCA

Attorneys:

Brett B. Stein, Memphis, Tennessee, for the appellant Walter Williams

Robert E. Cooper, Jr., Attorney General and Reporter, Lindsy Paduch Stempel, Assistant Attorney General; William L. Gibbons, District Attorney General, Tracey Jones and Paul Goodman, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

The Shelby County Grand Jury indicted Appellant, Walter Williams, for one count of rape in connection with the rape of his thirteen-year-old daughter. A jury found Appellant guilty as charged. The trial court sentenced Appellant to eight years as a Range I, standard offender. Appellant appeals his conviction. He argues that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in allowing testimony of an expert witness; (3) the trial court erred in allowing certain questions during the jury voir dire; and (4) the trial court erred in failing to give the missing witness jury instruction. After a thorough review of the record, we conclude that Appellant's argument must fail. Therefore, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/williamsw_060811.pdf

TODAY'S NEWS

Legal News
Career Opportunities
Upcoming
TBA Member Services

Legal News

New 'emotional distress' picture law questioned

A new Tennessee law makes it a crime to intentionally transmit or display an image that causes an individual emotional distress without a "legitimate purpose." What constitutes a "legitimate purpose" is not defined in the statutory language, the First Amendment Center points out. "If you're posting a picture of someone in an embarrassing situation -- not at all limited to, say, sexually themed pictures or illegally taken pictures -- you're likely a criminal unless the prosecutor, judge or jury concludes that you had a 'legitimate purpose,'" a UCLA law professor says of the law in his blog. Professor Eugene Volokh says he thinks the law is "unconstitutional."

The First Amendment Center looks into it

Knox Criminal Court seat not a sure bet

No one is "placing any bets" on who Gov. Bill Haslam will choose in the selection of a Criminal Court judge to replace Richard Baumgartner, although Metro Pulse seems to give the edge to Scott Green. The Judicial Nominating Commission has submitted the names of Green, Stephen Sword and Chuck Burks. The Knoxville legal community was "shocked," the paper says, that Sessions Judge Andy Jackson did not make the final cut.

Read the story

11th Circuit panel hears health care arguments

On Wednesday, a three-judge panel of the 11th Circuit Court of Appeals heard oral arguments on whether to reverse a Florida judge's ruling that struck down the federal health care overhaul law. Some 26 states opposing the law and an alliance of small businesses argue that Congress didn't have the power to require virtually all Americans to maintain health insurance. The Justice Department says the legislative branch exercised its "quintessential" right. Lawyers on both sides have said the cases ultimately will be decided by the U.S. Supreme Court. But the appeal court panel's decision in Atlanta is being closely watched and could help shape the debate.

WRCB carried this AP story

Years behind Tennessee, woman presides over Kentucky high court

Deputy Chief Justice Mary C. Noble will become the first woman to preside during oral arguments in the Kentucky Supreme Court on Wednesday.

WKRN News reports the AP story

Lawyer numbers at big firms down overall, minorities up

The percentage of minority lawyers at large firms has edged up, erasing the decline reported by last year's American Lawyer Diversity Scorecard. This year, even though overall attorney head count continued to drop slightly, the number of minority lawyers rose. Cumulatively, the firms that responded to the survey this year saw their collective U.S. head count fall by 359; yet they increased their minority head count in U.S. offices by 136.

Look at the Diversity Scorecard

Politicians caught in scandals need to 'lawyer up,' not just apologize

Political sex scandals come and go so quickly that yesterday's scoundrels are often able to resurrect themselves and turn their saga into a story about revival. But there does seem to be an increasing interest in subjecting more cheating politicians not just to public shaming but official investigation. Aside from providing fodder for partisan opponents, legal proceedings offer some reassurance that the transgressor won't get away scot-free, says Larry J. Sabato, director of the University of Virginia Center for Politics.

National Public Radio explores it

Career Opportunities

Corporate counsel sought

Special Counsel Inc. is seeking a senior level in-house counsel to grow the legal team at a high profile corporate client. Candidates should have at least ten years of commercial real estate experience representing retail clients. A commercial real estate partner or current in-house counsel is strongly preferred. Qualified candidates should submit resumes to nashville@specialcounsel.com.