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Monday, September 26, 2011

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Supreme Court admission again part of TBA Academy

A limited number of Tennessee attorneys this year will experience the honor of being admitted to practice before the U.S. Supreme Court as part of the 28th Annual TBA Academy. The event, scheduled for Dec. 6-7 in Washington, D.C., also includes a celebration dinner, a tour of the U.S. Supreme Court and more.

Find out more or register online now

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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
05 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2011/certlist_092611.pdf

STATE OF TENNESSEE v. JOSHUA LYNN PARKER

Court: TSC

Attorneys:

Edward C. Miller, District Public Defender, and Keith E. Haas, Assistant Public Defender, for the appellant, Joshua Lynn Parker.

Robert E. Cooper, Jr., Attorney General & Reporter; Gordon W. Smith, Associate Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; and Al Schmutzer, Jr., District Attorney General Pro Tempore, for the appellee, State of Tennessee.

Judge: CLARK

We granted this appeal by the State to determine if the defendant's conviction of second degree murder should be affirmed pursuant to State v. Mellons, 557 S.W.2d 497 (Tenn. 1977), despite insufficient evidence to support it. We hold that Mellons does not control the outcome of this case. We also hold that sufficient proof must support every element of the offense of which a defendant is convicted, even where the conviction offense is charged as a lesser-included offense and sufficient proof supports the greater offense. In this case, the trial court erred in charging the jury with second degree murder as a lesser-included offense of first degree felony murder. Because the proof is not sufficient to support it, we must reverse and vacate the conviction of second degree murder. However, because the proof is sufficient to support the offense of reckless homicide, we remand this matter to the trial court for (1) entry of an amended judgment reflecting a conviction of reckless homicide, and (2) sentencing on reckless homicide. The defendant is entitled to no relief on his remaining issues. The judgment of the Court of Criminal Appeals is affirmed in part and reversed in part.

http://www.tba2.org/tba_files/TSC/2011/parkerj_092611.pdf

VALERIE ROCHELLE EVANS ALBERTSON v. MATTHEW SCOTT ALBERTSON

Court: TCA

Attorneys:

James S. Smith, Jr., Rockwood, Tennessee, for the appellant, Matthew Scott Albertson.

Browder G. Williams, Kingston, Tennessee, for the appellee, Valerie Rochelle Evans Albertson.

Judge: SWINEY

After more than seventeen years of marriage, Valerie Rochelle Evans Albertson ("Wife") sued Matthew Scott Albertson ("Husband") for divorce. After a trial, the Trial Court entered its Final Decree of Divorce on December 17, 2010 nunc pro tunc to November 8, 2010. In the Final Decree of Divorce the Trial Court, inter alia, awarded Wife a divorce, awarded Wife transitional alimony, divided the marital assets and debts, entered a permanent parenting plan with regard to the parties' minor child, and awarded Wife attorney's fees. Husband appeals the property division and the award of alimony. The record on appeal contains no transcript or statement of the evidence. We affirm.

http://www.tba2.org/tba_files/TCA/2011/albertsonv_092611.pdf

ELIZABETH CUDE v. GILBERT E. HERREN, M.D., ET AL.

Court: TCA

Attorneys:

Thomas D. Yeaglin, Memphis, Tennessee, for the appellant, Elizabeth Cude.

Michael G. McLaren, Jana Davis Lamanna, Memphis, Tennessee, for the appellee, Gilbert E. Herren, M.D.

Eugene J. Podesta, Jr., Julia Kavanagh, Memphis, Tennessee, for the appellee, Methodist Healthcare - Memphis Hospitals.

Judge: HIGHERS

The trial court dismissed Plaintiff's re-filed suit for failure to comply with the 60-day notice and certificate of good faith requirements set out in the Medical Malpractice Act. Because we find such requirements applicable to Plaintiff's suit and no extraordinary cause to excuse her non-compliance, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCA/2011/cudee_092611.pdf

SHONDA M. MICKEL v. ERIC CROSS, ET AL.

Court: TCA

Attorneys:

Eric D. Cross, Jackson, Tennessee, appellant, Pro Se.

Kevin A. Snider, Memphis, Tennessee, for the appellee, Shonda M. Mickel.

Judge: PER CURIAM

Appellant filed his Notice of Appeal of an order of the trial court which failed to adjudicate all claims. We dismiss the appeal for lack of jurisdiction.

http://www.tba2.org/tba_files/TCA/2011/mickels_092611.pdf

STATE OF TENNESSEE v. JOSHUA W. EADS

Court: TCCA

Attorneys:

Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellant, Joshua W. Eads.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William Paul Phillips, District Attorney General; and Tracy T. Jenkins, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Joshua W. Eads, was convicted by a Union County jury of facilitation of burglary, a Class E felony; theft of property under $500, a Class A misdemeanor; and theft of property over $1000, a Class D felony. Following a sentencing hearing, he was sentenced to an effective term of six years in the Department of Correction. On appeal, the defendant asserts that the trial court erred in: (1) failing to grant his motion for judgment of acquittal because the evidence was legally insufficient to establish that the defendant committed the instant crimes; and (2) charging the jury with the lesser included offense of criminal responsibility for facilitation of burglary because the evidence indicated that the defendant did not promote or assist in the crimes. Following review of the record, we find no error and affirm the judgments of conviction.

http://www.tba2.org/tba_files/TCCA/2011/eadsj_092611.pdf

RENWICK A. EARLS, JR. v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Renwick A. Earls, Jr., Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; and Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Renwick A. Earls, Jr., pled guilty to one count of second degree murder and received a sentence of forty years as a Range II offender. He now appeals the dismissal of his petition for habeas corpus relief, arguing that the trial court did not have the authority to sentence him to forty years, rendering the judgment void. Because the petitioner has failed to establish that his judgment is void or that he is otherwise entitled to relief, we affirm the denial of habeas corpus relief.

http://www.tba2.org/tba_files/TCCA/2011/earlsr_092611.pdf

STATE OF TENNESSEE v. JONATHAN SCOTT FLYNN
CORRECTION in the footnote removes the word "the" in the sentence "J.C. McLin to the this court"

Court: TCCA

Attorneys:

Wesley Daniel Stone, Knoxville, Tennessee, for the Defendant-Appellant, Jonathan Scott Flynn.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

On August 6, 2009, the defendant pleaded guilty in case number 92306 to theft over $1,000, a Class D felony, in exchange for a sentence of two years in the Tennessee Department of Correction as a Range I, standard offender. The defendant was released on December 20, 2009, and placed on supervised probation. On March 12, 2010, the defendant pleaded guilty in case number 91245 to theft over $10,000, a Class C felony, in exchange for a sentence of six years in the Tennessee Department of Correction as a Range II, multiple offender. The trial court suspended the defendant's sentence in 91245 and placed the defendant on probation. On November 8, 2010, the trial court revoked the defendant's probation and ordered him to serve his sentences in confinement. On appeal, the defendant argues that the court abused its discretion in revoking the defendant's probation, alleging that the record does not demonstrate that the defendant was in violation of his probation. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/flynnj_COR_092611.pdf

STATE OF TENNESSEE v. WILLIAM TOBY JOHNSON

Court: TCCA

Attorneys:

Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, William Toby Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General, William H. Cox, District Attorney General; Cameron Williams, Assistant District Attorney General; and Lance Pope, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

The Hamilton County Grand Jury returned an indictment against Defendant, William Toby Johnson, charging him with aggravated burglary, resisting arrest, and four counts of aggravated robbery. By agreement, count six of the indictment was amended to charge attempted aggravated robbery rather than aggravated robbery. It also appears that the resisting arrest charge was dismissed before trial. At trial, following the close of the State's proof, the trial court granted Defendant's motion for a judgment of acquittal regarding the aggravated robbery of Luis Lopez, and the charge was reduced to robbery. The jury convicted Defendant of aggravated criminal trespass, theft of property valued under $500 from Luis Lopez, and two counts of the lesser-included offense of robbery involving Edgar Perez and Valentina Soto Santizo. Defendant was sentenced to eleven months and twenty nine days each for aggravated criminal trespass and theft, and fifteen years for each robbery conviction. The trial court ordered the two robbery sentences to run concurrently with each other but consecutively to the other two sentences. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred in allowing the State to introduce an audio recording of the 911 call made by one of the victims at the time of the offenses; and (3) that his sentence is excessive. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/johnsonw_092611.pdf

STATE OF TENNESSEE v. BENJAMIN PATTERSON and CHARLES P. YOKLEY

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Benjamin Patterson; and Sandra L. Welles, Franklin, Tennessee, for the appellant, Charles P. Yokley.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendants, Benjamin Patterson and Charles P. Yokley, were indicted by the Davidson County Grand Jury for sale of less than .5 grams of cocaine within 1,000 feet of a child care facility in Count 1 and delivery of less than .5 grams of cocaine within 1,000 feet of a child care facility in Count 2. Following a jury trial, Defendants were both convicted as charged, and the trial court merged the delivery offenses with the sale offenses. Defendant Patterson was sentenced as a standard offender to serve three years incarcerated, and Defendant Yokley was sentenced as a multiple offender to serve seven years incarcerated. Both defendants raise several issues on appeal, including the sufficiency of the convicting evidence, alleged errors regarding the jury instructions, and the trial court's refusal to exclude certain evidence. After a careful review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/pattersonb_092611.pdf

IN RE: JAMES A. HEWITT, BPR 0I9803

Court: TSC-Disciplinary_Order

Judge: KOCH

Suspension

http://www.tba2.org/tba_files/TSC/2011/hewittj_092611.pdf

IN RE: JAMES STRONG POWELL, BPR 015619

Court: TSC-Disciplinary_Order

Judge: KOCH

Suspension

http://www.tba2.org/tba_files/TSC/2011/powellj_092611.pdf

IN RE: LISA ANN TEMPLE, BPR 018462

Court: TSC-Disciplinary_Order

Judge: KOCH

Suspension

http://www.tba2.org/tba_files/TSC/2011/templel_092611.pdf

TODAY'S NEWS

Legal News
General Assembly News
Upcoming
Disciplinary Actions
TBA Member Services

Legal News

Commissioner takes action in court clerk case

Shelby County Commissioner Mike Ritz called today for the creation of a special investigative committee to look into problems at the Chancery Court clerk's office, where bookkeeper Brandon Gunn has been accused of embezzling more than $1 million. In addition, Ritz called for the county attorney's office to file charges against Chancery Court Clerk Dewun Settle; Wanda Wright, Settle's chief administrative officer; and Veronica Nelson, Gunn's supervisor. He also said he would personally file ethics complaints against the three. Finally, Ritz announced he would ask the county attorney to prepare a resolution asking the chancery court judges to replace Settle.

The Commercial Appeal reports

Opinion: Judicial selection is good for business

Doug Buttrey, executive director of Tennesseans for Economic Growth, writes in Sunday's Knoxville News Sentinel that keeping the state's judicial selection system in place is one of the best things Tennessee can do to create a positive business climate. Buttrey cites reports from the U.S. Chamber that judicial selection, rather than contested, partisan and costly elections, is the best system for business recruitment and job creation since job creators place a high value on consistency, integrity and predictability.

Read the opinion piece

Coverage of judicial ethics hearings continues

Weekend stories in the Nashville City Paper and The Tennessean provide a recap of last week's legislative hearings on the Court of the Judiciary. Taking an interesting slant on the issue, the Tennessean raises a question about the legislature's own ethics panel, which "operates in much the same fashion as the Court of the Judiciary. And in some respects...is even more taciturn." In today's issue of the paper, columnist Gail Kerr gives her suggestions for enhancing transparency at the court.

Commission questions court waiver of fees

Members of the Montgomery County Commission are questioning why the local circuit court waived more than $550,000 in legal fees in just one month. Judge Ken Goble said in most cases defendants are simply unable to pay because they have no money or no legal source of income, and that the court does not take such a step "without heavy consideration." County leaders, however, stressed the budgetary impact of waiving the fees and asked the courts to "diligently" assess each case, and even work with defendants on payment plans. Goble said he understood the concern, but could not compromise his integrity by taking budget issues into consideration.

The Leaf-Chronicle reports

ABA lauds Susano's approach to disability

The American Bar Association's (ABA) Commission on Mental & Physical Disability Law profiles the life and career of Knoxville Judge Charles Susano on its website this month. Susano, who sits on the Tennessee Court of Appeals, developed paraplegia after falling and breaking his back in 1992. The commission reports that Susano "cheerfully accepts his paraplegia" and focuses on the many things he can do rather than the few things he no longer can do.