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Thursday, June 23, 2011

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Beasley elected Judicial Conference president

Criminal Court Judge James C. Beasley Jr. of Memphis has been elected president of the 183-member Tennessee Judicial Conference, which includes all state appellate and trial court judges. He succeeds Chancellor Thomas R. "Skip" Frierson of Morristown. Beasley has served the 30th Judicial District since 1995. Prior to taking the bench, he served as assistant district attorney general for 17 years. Beasley earned both his undergraduate and law degrees from the University of Memphis.

Read more on the AOC webpage

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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00 - TN Supreme Court - Rules
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13 - TN Court of Criminal Appeals
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03 - 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.

STATE OF TENNESSEE v. JOHN B. ALBERTS

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Ron Davis, District Attorney General, and Mary K. White, Assistant District Attorney General, for the appellant, State of Tennessee.

Vanessa P. Bryan, District Public Defender and James L. Elkins, III, Assistant Public Defender, Franklin, Tennessee, for the appellee, John B. Alberts.

Judge: SMITH

The Williamson County Grand Jury indicted Appellant, John B. Alberts, for eight counts of rape of a child, one count of solicitation of a minor to commit rape of a child, and one count of solicitation of sexual exploitation of a minor. Appellant filed a motion to suppress evidence recovered through the execution of a warrant to search Appellant's car. At the hearing on the motion to suppress, the trial court granted Appellant's motion based upon the conclusion that the search warrant was invalid. At the hearing, before the trial court announced its decision, the State argued an alternative theory that the search was valid as a warrantless search through an exception to the warrant requirement i.e., probable cause with exigent circumstances. The trial court declined to rule on the validity of the search based upon this alternative theory. The State asked for and was granted an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellant Procedure to determine if the trial court can consider the alternative theory to uphold the search. We have concluded that the trial court should consider an alternative theory to determine if the search was valid as a warrantless search based on probable cause and exigent circumstances. We remand the case back to the trial court for proceedings in accordance with this opinion.

http://www.tba2.org/tba_files/TCCA/2011/albertsj_062311.pdf

SAMANTHA MARIE DANIEL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert D. Philyaw, Signal Mountain, Tennessee, for the appellant, Samantha Marie Daniel.

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

Judge: GLENN

The petitioner, Samantha Marie Daniel, appeals the denial of her petition for post-conviction relief from her convictions for first degree murder and attempted first degree murder, arguing that the post-conviction court erred in finding that she received effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/daniels_062311.pdf

STATE OF TENNESSEE v. ALBERT DORSEY

Court: TCCA

Attorneys:

Robert W. Jones, Chief Public Defender; Barry W. Kuhn, Assistant Public Defender, Memphis, Tennessee, for the Defendant-Appellant, Albert Dorsey.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; Theresa McCusker and Rachel Newton, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Albert Dorsey, was convicted by a Shelby County jury of first degree premeditated murder and sentenced to life without the possibility of parole. On appeal, Dorsey claims: (1) his conviction was not supported by sufficient evidence; (2) the aggravating circumstance used to impose his sentence of life without the possibility of parole was not supported by sufficient evidence; and (3) the trial court erred by admitting several photographs of the victim. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/dorseya_062311.pdf

RICHARD T. HANKE, SR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee for the Defendant-Appellant, Richard Hanke, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Richard T. Hanke, Sr., appeals the denial of post-conviction relief by the Circuit Court of Madison County. He pled guilty to simple robbery, aggravated burglary, aggravated assault, possession of a weapon with intent to employ during the commission of a felony, retaliation for past action, and two counts of kidnapping. He received an effective sentence of fourteen years. In this appeal, he claims he received ineffective assistance of counsel and requests a delayed appeal in which to challenge his sentence. Upon review, we reverse the judgment of the post-conviction court and grant a delayed appeal.

http://www.tba2.org/tba_files/TCCA/2011/hanker_062311.pdf

STATE OF TENNESSEE v. ZACHARY HARRISON

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal); and A. Jackson Dearing, III, Assistant Public Defender (at hearing), for the appellant, Zachary Harrison.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Hollynn Eubanks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Zachary Harrison, appeals the order of the trial court revoking his probation and ordering that he serve the balance of his sentence in confinement. He argues that the trial court should have instead reinstated his probation because he made a genuine effort to comply with the rules of his probation and his violations were due to factors beyond his control. Following our review, we affirm the judgment of the trial court. However, we remand for entry of corrected judgments to reflect that the defendant pled guilty to Count 4 of the indictment, rather than Count 2, and that Count 2 was dismissed.

http://www.tba2.org/tba_files/TCCA/2011/harrisonz_062311.pdf

ROBERT N. HELTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal); and Andrew Jackson Dearing, III, Assistant Public Defender (at hearing), for the appellant, Robert N. Helton.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Robert N. Helton, appeals the post-conviction court's dismissal of his petition for post-conviction relief from his convictions for theft of property over $10,000, burglary, and vandalism. On appeal, he argues that the post-conviction court erred in dismissing his petition because he received the ineffective assistance of counsel. After review, we affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2011/heltonr_062311.pdf

STATE OF TENNESSEE v. KENNETH KISAMORE

Court: TCCA

Attorneys:

Benjamin R. Newman, McMinnville, Tennessee, for the appellant, Kenneth Kisamore.

Robert E. Cooper, Jr., Attorney General and Reporter, Clark B. Thornton, Assistant Attorney General; and Lisa Zavogiannis, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Kenneth D. Kisamore, was indicted by the Warren County Grand Jury for two counts of delivery of more than .5 grams of cocaine, in two separate cases, numbered F-11092 and F11093. The cases were consolidated prior to trial. After a jury trial, Appellant was found not guilty of the offense in case number F-11092 and guilty of the offense, as indicted, in case number F-11093. As a result of the conviction, Appellant was sentenced as a Range III, persistent offender to twenty- five years in incarceration. After the denial of a motion for new trial, Appellant has appealed, presenting the following questions for our review: (1) whether it was plain error for the trial court to allow the prosecutor to comment about the sentence received by a defendant charged along with Appellant thereby violating Appellant's rights under Tennessee Code Annotated section 40-35-201(b); (2) whether the trial court erred by refusing to allow the testimony of jurors regarding extraneous prejudicial information; and (3) whether the evidence was sufficient to support the conviction. After a review of the record, we conclude that Appellant waived the issue regarding the alleged violation of Tennessee Code Annotated section 40-35-201(b) for failure to object at trial. Further, we determine that Appellant waived the issue regarding juror testimony for failure to submit an adequate record for review. Finally, after a review of the evidence, we conclude that the evidence was sufficient to support the conviction. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/kisamorek_062311.pdf

STATE OF TENNESSEE v. TIFFANY SANDERS McNEAL

Court: TCCA

Attorneys:

Francis King, Nashville, Tennessee, for the Defendant-Appellant, Tiffany Sanders McNeal.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian K. Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Tiffany Sanders McNeal, entered guilty pleas in Case No. 2009-D-2911 to two counts of possession with the intent to sell or deliver a controlled substance (one count for a Schedule III drug and one count for a Schedule IV drug), a Class D felony, and in Case No. 2009-D-3417 to one count of attempted aggravated child abuse with a weapon, a Class C felony, in the Davidson County Criminal Court. Pursuant to her plea agreement, the remaining counts in Case No. 2009-D-2911 for the delivery of a Schedule III drug and criminal impersonation were dismissed, and McNeal received concurrent sentences of six years with a release eligibility of thirty-five percent for the drug convictions and ten years with a release eligibility of forty-five percent for the attempted aggravated child abuse conviction, for an effective sentence of ten years. The manner of service of the sentence was determined by the trial court at the sentencing hearing. On appeal, McNeal argues that the trial court abused its discretion by denying an alternative sentence and a community corrections sentence. Upon review, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/mcnealt_062311.pdf

JASON PAUL SHERWOOD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Nathan Moore, Nashville, Tennessee, for the appellant, Jason Paul Sherwood.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A jury convicted the petitioner, Jason Paul Sherwood, of two counts of premeditated first degree murder, two counts of felony murder, and attempted first degree murder. The trial court sentenced him to two consecutive life sentences plus twenty-five years. This court upheld his convictions and sentences. The petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel, and the post-conviction court denied relief. The petitioner appeals the court's denial of post-conviction relief. Following our review of the record, the parties' briefs, and applicable law, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2011/sherwoodj_062311.pdf

STATE OF TENNESSEE v. STEVEN F. SMITH
With Concurring Opinion

Court: TCCA

Attorneys:

David G. Mullins, Bristol, Tennessee, for the appellant, Steven F. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; H. Greeley Wells, Jr., District Attorney General; and Janine M. Myatt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Steven F. Smith, appeals as of right from the Sullivan County Criminal Court's revocation of probation and order of incarceration. The Defendant contends that the trial court erred in rejecting his defense of insanity. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/smiths_062311.pdf

OGLE concurring
http://www.tba2.org/tba_files/TCCA/2011/smiths_CON_062311.pdf

EMMANUEL S. TROTTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Nick T. Tooley, Clarksville, Tennessee, for the appellant, Emmanuel S. Trotter.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Emmanuel S. Trotter, appeals from the Montgomery County Circuit Court's dismissal of his petition for post-conviction relief. In this appeal as of right, the Petitioner contends that the post-conviction court erroneously dismissed his petition as untimely when due process concerns necessitated tolling of the statute of limitations. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/trottere_062311.pdf

STATE OF TENNESSEE v. SAUL ESTEBAN VASQUEZ

Court: TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Saul Esteban Vasquez.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Andrea Green, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: THOMAS

A Davidson County grand jury indicted the Defendant, Saul Esteban Vasquez, for possession with intent to deliver not less than 70 pounds nor more than 100 pounds of marijuana, a Class B felony, possession of a firearm during the commission of a dangerous felony, a Class D felony, and unlawful possession of drug paraphernalia, a Class A misdemeanor. The Defendant pled guilty to the Class B felony, with the length and manner of service for the sentence left to the discretion of the trial court. The remaining counts were dismissed. The trial court sentenced the Defendant as a Range I, standard offender to eight years in the Tennessee Department of Correction. In this appeal as of right, the Defendant contends that the trial court erred in denying all forms of alternative sentencing. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/vasquezs_062311.pdf

STATE OF TENNESSEE v. DORIS ANN WHALEY

Court: TCCA

Attorneys:

Robert J. Jessee, Johnson City, Tennessee, for the appellant, Doris Ann Whaley.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Dennis Dwayne Brooks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Washington County Criminal Court jury convicted the appellant, Doris Ann Whaley, of first degree premeditated murder, and the trial court sentenced her to life. On appeal, the appellant contends that (1) the evidence is insufficient to support the conviction, (2) the trial court violated Tennessee Rule of Evidence 611(a) by convincing her son to testify against her, (3) the trial court erred by admitting evidence regarding a telephone conversation the appellant had with a witness after the appellant's son testified, and (4) the trial court erred by refusing to give the jury a flight instruction. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/whaleyd_062311.pdf

IN RE: EVETTE ELIZABETH DUKES, BPR 026101

Court: TSC-Disciplinary_Order

Judge: WADE

Reinstatement

http://www.tba2.org/tba_files/TSC/2011/dukese_062311.pdf

IN RE: LATRENA DAVIS INGRAM, BPR 016657

Court: TSC-Disciplinary_Order

Judge: WADE

Reinstatement

http://www.tba2.org/tba_files/TSC/2011/ingraml_062311.pdf

IN RE: BRIAN WADE LYNN, BPR 016796

Court: TSC-Disciplinary_Order

Judge: WADE

Reinstatement

http://www.tba2.org/tba_files/TSC/2011/lynnb_062311.pdf

TODAY'S NEWS

Legal News
U.S. Supreme Court
Career Opportunities
Upcoming
Passages
Disciplinary Actions
TBA Member Services

Legal News

Group forms new entertainment firm

A group of six attorneys formerly with Nashville's Lassiter Tidwell Davis Keller & Hogan have formed the new entertainment law firm of Keller Turner Ruth Andrews Ghanem & Heller. The firm will focus on transactional and litigation services for entertainment and sports clients as well as real estate, corporate, tax and estate planning. The new firm is located in the Terrazzo tower, the LEED-certified, mixed-use development in Nashville's trendy Gulch area. Principals in the firm include Jordan Keller, TD Ruth and Jennifer Ghanem -- all formerly active in the TBA YLD's mock trial program. The firm is located at 700 12th Avenue South, Suite 302, Nashville 37203 and can be reached at (615) 244-7600 or online at www.ktrlawgroup.com.

The Nashville Post reports (subscription required)

TJC honors lawyer, law firm for pro bono

The Tennessee Justice Center (TJC) has honored a lawyer and law firm for their pro bono work. Jeffrey C. Smith, partner in charge of the Memphis office of Adams and Reese, was named Pro Bono Attorney of the Year, while the Nashville firm of Waller Lansden Dortch & Davis was chosen as Pro Bono Firm of the Year. Tennessee Supreme Court Justice Sharon Lee presented the awards at a ceremony last week in the Chattanooga office of the Legal Aid Society of East Tennessee. News Channel 11 reported the AP's story about the awards.

Learn more about the Justice Center on the web

Cumberland County Bar elects officers

The Cumberland County Bar Association has elected new officers. Solo practioner Walter Alan Rose has taken office as president, while Landon Colvard has taken over as secretary and treasurer. Both practice in Crossville.

Back pay protected for immigrant workers

A federal judge in Knoxville has ruled that workers do not have to reveal their immigration status to an employer they are suing to recover back wages. The company in question had argued that illegal immigrants have no right to recover wages, since they did not earn them legally in the first place. However, U.S. Magistrate Judge Bruce Guyton ruled that workers must be paid for the hours they work, regardless of their immigration status. The ruling is the first of its kind in the Sixth Circuit, according to the story.

The Jackson Sun reports

Appeals court rules on foreclosure notice question

Under current law, the seller of a foreclosed property is to advertise the sale "in some newspaper published in the county where the sale is to be made." A Roane County couple argued that the law requires the newspaper be printed in the county where the sale is to be made. The court rejected that argument, upholding the tradition of such notices appearing in regional papers -- which may be printed in another county but are distributed in the county of sale.

The News Sentinel explains

Firms launch innovative programs

Several law firms recently launched new, innovative programs. The Chattanooga law firm of Chambliss, Bahner & Stophel PC has entered into what it calls a "ground breaking" arrangement with the Tennessee Medical Association (TMA) to provide employment and insurance contract review services for TMA members. In addition, the Chattanooga office of Miller & Martin has launched the Chattanooga Corporate Counsel Network to provide area in-house counsel the opportunity to socialize, network and share best practices.

Chattanoogan.com has more on the Miller & Martin initiative

Overall crime rates down in Tennessee

A 10-year study by the Tennessee Bureau of Investigation has found that some violent crimes and property crimes have decreased, but drug and disorderly conduct cases have increased. The report released this week found that property crimes decreased by nine percent, offenses such as assault, murder and sex crimes decreased by 0.3 percent, and the state's overall crime rate is at its lowest level. However, increases were seen among offenses such as liquor law violations, trespassing and disorderly conduct, which grew by more than 150 percent; drug cases, which surged 45 percent; and domestic violence cases, which increased 17 percent.

The Memphis Daily News has this AP story

Harvard grads drop Facebook lawsuit

The Harvard University classmates of Facebook founder Mark Zuckerberg are ending the legal battle made famous by the Hollywood movie "The Social Network." In a one-paragraph court filing Wednesday, Cameron and Tyler Winklevoss said they would accept a settlement of $20 million in cash and $45 million in stock offered in 2008. The pair decided to forgo a trip to the U.S. Supreme Court yesterday after the 9th U.S. Circuit Court of Appeals ruled against them.

WTVF News Channel 5 reports

U.S. Supreme Court

Crack convict can seek shorter term

The U.S. Supreme Court ruled 5-4 on Thursday that a defendant who pleaded guilty to crack cocaine possession can seek a shorter sentence now that the federal sentencing guidelines for cocaine crimes have been changed. The issue for the court was whether the normal rule allowing a sentence reduction applied to a person whose guilty plea included a specific prison term or sentencing range. The ruling will allow the defendant to seek a reduction of nine months in his sentence.

WRCB-TV Chattanooga has the news

Career Opportunities

Knox County seeks deputy law director

The Knox County Law Director's Office is seeking a deputy director to represent the county in civil rights, workers' compensation, education, employment and general litigation cases in local, state and federal court. Candidates should have extensive civil trial experience in Tennessee's state and federal courts. Applications are being accepted until Aug. 1.

Learn more on JobLink

Upcoming

MBA and Justice Holder to offer karate classes

The Memphis Bar Association Wellness Committee invites attorneys, support staff, families and friends to join Supreme Court Justice Janice Holder for a low-key karate class during the months of June and July. Sessions will be held June 24 and 27, and July 1, 5, 7, 12, 14, 19, 21, 26 and 28. The cost is $5.00 per person, per class. Classes will be held from 7 to 8 a.m. on the ground floor of the 55 South Main Street Building. The class fee also includes coffee from a barista. No prior experience is required. Participants should wear comfortable clothing or yoga attire. A 6 p.m. class also may be offered given sufficient interest. Justice Holder, known in class as "Sensei Holder" earned a third-degree black belt in 2005. She has been an instructor for nine years.

Learn more from the MBA

Passages

Services set for Lebanon lawyer

Services for Lebanon lawyer Robert Timothy Hatton, originally of Ohio, will be held at Jamestown Church of Christ, 152 West Washington Street, Jamestown, Ohio, on July 9. Friends may visit with the family beginning at 10 a.m. Services will begin at 10:30 a.m. Hatton passed away after a tragic plane crash on June 18 in Guntersville, Ala. He was traveling from Tennessee to Florida for a vacation.