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Monday, November 21, 2011

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Belmont law to add four faculty members

Belmont University College of Law has announced the hiring of four faculty members for the 2012-2013 school year. They are Ellen Black, who will serve as assistant professor of law in the areas of products liability and family law and as director of the school's externship program; Donald Q. Cochran, who will serve as an associate professor of law in the areas of criminal law and procedure, evidence and trial advocacy; Brenda Childs See, who will serve as professor of legal practice; and Lynn Ridgeway Zehrt, who will serve as an assistant professor. The college also announced it will name another three faculty members in the coming months.

Read more about these appointments

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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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2011/certlist_112111.pdf

ROBIN CAMPBELL ARMBRISTER v. EDWIN C. ARMBRISTER, JR.

Court: TCA

Attorneys:

Bruce Hill, Sevierville, Tennessee, for the appellant, Edwin C. Armbrister, Jr.

Kevin W. Shepherd, Maryville, Tennessee, for the appellee, Robin Campbell Armbrister.

Judge: MCCLARTY

At issue in this appeal is the amount of income that can be imputed to the father for child support, as well as whether the mother should be charged with the attorney fees and costs in regard to an order of protection. The trial court found that the father was voluntarily underemployed. Finding that the evidence does not preponderate against the trial court's finding of voluntary underemployment, we affirm the trial court as to that matter. We reverse the trial court's ruling regarding the attorney fees and costs.

http://www.tba2.org/tba_files/TCA/2011/armbristerr_112111.pdf

IN RE: CAINE D.J.S.

Court: TCA

Attorneys:

Crystal Goan, Esq., Bulls Gap, Tennessee, for the appellant, DJ.

Lauren Armstrong, Morristown, Tennessee, for the appellee, TH.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Marcie E. Greene, Assistant Attorney General, Nashville, Tennessee, for the Tennessee Department of Children's Services.

Judge: FRANKS

The Department of Children's Services petitioned the Trial Court to terminate the parental rights of the mother, DJ, and the presumptive father, TH, who was married to the mother at the time of the child's birth. Following an evidentiary hearing, the Trial Court terminated the parental rights of the mother DJ and her husband at the time of the child's birth, TH. Both parties appealed to this Court and we affirm the termination of the mother's parental rights and vacate the Judgment terminating TH's parental rights on the grounds that the statutory grounds for termination was not established by the evidence.

http://www.tba2.org/tba_files/TCA/2011/cainedjs_112111.pdf

PAULETTA C. CRAWFORD, ET AL. v. EUGENE KAVANAUGH, M.D.

Court: TCA

Attorneys:

Bob McDaniel Green, Johnson City, Tennessee, for the appellants, Pauletta C. Crawford and James Crawford.

Edward G. White, II, and E. Michael Brezina, III, Knoxville, Tennessee, for the appellee, Eugene Kavanaugh, M.D.

Judge: MCCLARTY

This is a medical malpractice case in which Pauletta C. Crawford ("Wife") and James Crawford ("Husband") filed suit against Eugene Kavanaugh, M.D. ("Doctor"). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the "Crawfords") dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2011/crawfordp_112111.pdf

ROY L. LAWHON, v. MOUNTAIN LIFE INSURANCE COMPANY

Court: TCA

Attorneys:

Heather G. Anderson, Knoxville, Tennessee, for the appellant, Mountain Life Insurance Company.

W. Holt Smith, Madisonville, Tennessee, for the appellee, Roy L. Lawhon.

Judge: FRANKS

Plaintiff made claim for credit disability insurance coverage after he became disabled, and defendant insurance company denied benefits on the grounds of misrepresentations in the application for insurance, which he had executed. The Trial Court ruled in favor of plaintiff on the grounds that misrepresentations in the application did not increase the risk of loss. On appeal, we reverse the Trial Court's Judgment because the misrepresentations contained in the application for insurance increase defendant's risk of loss under the statute.

http://www.tba2.org/tba_files/TCA/2011/lawhonr_112111.pdf

STATE OF TENNESSEE v. VICTOR A. ASKEW

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal), and Roger Eric Nell, District Public Defender, and Fred W. Love, Assistant Public Defender (at trial), for the appellant, Victor A. Askew.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Victor A. Askew, was convicted by a Montgomery County jury of premeditated first degree murder, attempted second degree murder, and felony evading arrest. He was subsequently sentenced to concurrent sentences of life imprisonment, eight years, and two years in the Department of Correction. On appeal, the defendant raised the single issue of sufficiency of the evidence with regard to his first degree murder conviction. Specifically, he contends that the State failed to present sufficient evidence of the element of premeditation. Following review of the record, we find no error and affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2011/askewv_112111.pdf

PHILIP REED BRYAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Philip Reed Bryan, Memphis, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The pro se petitioner, Philip Reed Bryan, appeals the Shelby County Criminal Court's summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2011/bryanp_112111.pdf

STATE OF TENNESSEE v. FRANKLIN E. NEWBERN and REGINALD CURRIE

Court: TCCA

Attorneys:

Noel H. Riley, II, Dyersburg, Tennessee, for the appellant, Franklin E. Newbern and Danny H. Goodman, Jr., Tiptonville, Tennessee, for the appellant, Reginald Currie.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

After a jury trial, both Appellants were found guilty of possession of .5 grams or more of cocaine with the intent to sell or deliver. As a result, they were both sentenced to fifteen years as Range II, multiple offenders. The sentences were ordered to run consecutively to sentences for other offenses for which the Appellants had already been sentenced. After the denial of a motion for new trial and motion for judgment of acquittal, Appellants have appealed to this Court. On appeal, both Appellants contend that the evidence was insufficient to support the convictions. Additionally, Appellant Currie insists that the trial court erred in denying the motion for new trial based on the "perjured testimony of a key witness." After a review of the evidence, we determine that the evidence was sufficient to support the convictions and that Appellant Currie failed to show that the State knowingly utilized false testimony that was material to the conviction. Accordingly, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/currier_112111.pdf

KONSTANTINOS DIOTIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Leslie I. Ballin and Richard S. Townley, Memphis, Tennessee, for the appellant, Konstantinos Diotis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Konstantinos Diotis, appeals from the dismissal of his petition for post-conviction relief as time-barred. In this appeal, the petitioner contends that application of the statute of limitations in his case is inappropriate because (1) the United States Supreme Court decision in Padilla v. Kentucky, __ U.S. __, 130 S. Ct. 1473 (2010), should be applied retroactively and (2) principles of due process require the tolling of the statute of limitations. The petitioner waived his claim of due process tolling by failing to present it to the post-conviction court. Further, because we conclude that Padilla should not be applied retroactively, we affirm the judgment of the post-conviction court dismissing the petition as untimely.

http://www.tba2.org/tba_files/TCCA/2011/diotisk_112111.pdf

STATE OF TENNESSEE v. MICHAEL ANTONIO DODSON

Court: TCCA

Attorneys:

Jeremy Wayne Parham, Nashville, Tennessee, for the appellant, Michael Antonio Dodson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. (Torry) Johnson, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Michael Antonio Dodson, pled guilty to aggravated rape and two counts of especially aggravated kidnapping, Class A felonies; two counts of aggravated robbery, Class B felonies; and aggravated burglary and employing a firearm during a felony, Class C felonies. See T.C.A. sections 39-13-502 (2010) (aggravated rape), 39-13-305 (2010) (especially aggravated kidnapping), 39-13-402 (2010) (aggravated robbery), 39-14-403 (2010) (aggravated burglary), 39-17-1324 (Supp. 2008) (amended 2009) (employing a firearm). He was sentenced to serve twenty-five years for aggravated rape, twenty-three years for each of the especially aggravated kidnapping convictions, ten years for each of the aggravated robbery convictions, five years for aggravated burglary, and ten years for employing a firearm. The trial court imposed partial consecutive sentencing yielding an effective sentence of eighty-six years. The Defendant contends that the trial court erred in choosing the length of his sentences and in imposing consecutive sentencing. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/dodsonm_112111.pdf

STATE OF TENNESSEE v. KEELE CAMILLE MAYNOR a/k/a KEELE CAMILLE PAYNE

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender; and Richard Kenneth Mabee, Assistant District Public Defender, Chattanooga, Tennessee, for the appellant, Keele Camille Maynor.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William H. Cox, III, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Pursuant to a negotiated plea agreement, Defendant, Keele Camille Maynor (a/k/a Payne), pled guilty to nine charges and was sentenced as follows: in Count 1, Defendant pled guilty to Class C felony theft and was sentenced to serve 42 months in the Tennessee Department of Correction (TDOC); in Count 2, Defendant pled guilty to Class C felony theft and was sentenced to five years in TDOC, suspended with probation for ten years; in Count 3, Defendant pled guilty to Class D felony theft and was sentenced to three years in TDOC, suspended with probation for six years; in Count 4, Defendant pled guilty to Class D felony theft (although the judgment, in error, reflects a conviction for Class E felony theft) and was sentenced to three years in TDOC, suspended with probation for six years; in Count 5, Defendant pled guilty to Class E felony theft and was sentenced to two years in TDOC, suspended with probation for four years; in Count 6, Defendant pled guilty to Class D felony theft and was sentenced to three years in TDOC, suspended with probation for six years; in Count 7, Defendant pled guilty to Class E felony theft and was sentenced to two years in TDOC, suspended with probation for five years; in Count 8, Defendant pled guilty to Class E felony theft and was sentenced to two years in TDOC, suspended with probation for five years; and in Count 9, Defendant pled guilty to Class E felony forgery and was sentenced to serve two years in TDOC. Pursuant to the plea agreement, Defendant was to receive concurrent Range I sentences, but the trial court, following a sentencing hearing, determined the length, range, and manner of Defendant's sentences. The trial court also imposed an agreed upon amount of restitution. On appeal, Defendant challenges the trial court's imposition of a 42-month sentence of incarceration in Count 1 and asserts that the sentence structure imposed by the trial court results in consecutive, rather than concurrent, sentences. We affirm the convictions and sentences imposed in all counts, except for Count 4, which we remand for entry of a corrected judgment.

http://www.tba2.org/tba_files/TCCA/2011/maynork_112111.pdf

STATE OF TENNESSEE v. GARY REEVES

Court: TCCA

Attorneys:

Roger A. Staton, Jackson, Tennessee, for the appellant, Gary Reeves.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Gary Reeves, appeals his Madison County Circuit Court convictions of theft of property valued at more than $1,000 but less than $10,000 and criminal trespass, challenging the sufficiency of the convicting evidence. Because sufficient evidence supports both convictions, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/reevesg_112111.pdf

TIMOTHY WATSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Timothy Watson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Timothy "Tink" Watson, was indicted by the Dyer County Grand Jury in October of 2005 for two counts of sale of more than .5 grams of cocaine. Petitioner represented himself at trial and was convicted by a jury of one count of sale of more than .5 grams of cocaine. After a sentencing hearing, Petitioner received a fifteen-year sentence as a Range II, multiple offender. Petitioner filed several pleadings referred to as "amended" motions for new trial after a hearing. The trial court denied the motions. Petitioner subsequently pled guilty to five subsequent indictments through a plea agreement that included a waiver of his right to appeal the felony drug conviction from the October 2005 indictment. Petitioner then sought pro se post-conviction relief. After counsel was appointed, an amended petition was filed. The trial court held a hearing on the petition. It was dismissed after a hearing by the post-conviction court because it was untimely and because Petitioner had waived his claims by his plea agreement. Appellant appeals this decision. After a review, we determine that the petition was untimely and, therefore, properly dismissed by the post- conviction court. However, the record fails to include a judgment form for Count One of the indictment. Accordingly, the judgment of the post-conviction court is affirmed, but the matter is remanded to the trial court for entry of a judgment form for Count One of the indictment.

http://www.tba2.org/tba_files/TCCA/2011/watsont_112111.pdf

STATE OF TENNESSEE v. JERRY WILLIAMS

Court: TCCA

Attorneys:

Phillis Aluko (on appeal); and Dianne Thackery (at trial), Assistant District Public Defenders, for the appellant, Jerry Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jose Leon and Theresa McCusker, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

A Shelby County Criminal Court jury convicted the defendant, Jerry Williams, of alternative counts of aggravated assault. The trial court ordered the convictions merged and imposed a Range I sentence of five years' incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence and the propriety of the five-year sentence. Discerning no error, we affirm. We remand the case, however, for the entry of a single judgment of conviction reflecting the merged convictions.

http://www.tba2.org/tba_files/TCCA/2011/williamsj_112111.pdf

CAMERON WINSELLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Terita M. Hewlett, Memphis, Tennessee, for the appellant, Cameron Winselle.

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

Judge: WITT

The petitioner, Cameron Winselle, appeals the Shelby County Criminal Court's denial of his petition for post- conviction relief challenging his convictions of two counts of first degree murder on the basis of ineffective assistance of counsel. The petitioner specifically contends that trial counsel committed ineffective assistance by failing to present evidence of his diminished capacity, failing to exhaust peremptory challenges, failing to investigate the facts of the offense, and failing to move for the trial judge's recusal based upon the trial judge's previous employment as a prosecutor. The petitioner also contends that appellate counsel was deficient for failing to raise issues on appeal. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/winsellec_112111.pdf

TODAY'S NEWS

Legal News
General Assembly News
Upcoming
Career Opportunities
TBA Member Services

Legal News

General Sessions court continues to make changes

After Shelby County General Sessions Court Clerk Otis Jackson was indicted earlier this year, court judges picked Edward L. Stanton Jr. to replace him. Last month, Stanton dismissed the office's finance director Zack Armour and replaced him with Adrienne Evans, an internal auditor who earlier this year wrote a critical report of financial problems in the clerk's office. Both Evans and Stanton appeared at a recent county commission hearing and said they are working to fix other problems at the court. The commission is considering how to stop future abuses, including giving its audit committee greater oversight of elected officials.

The Commercial Appeal reports

Federal magistrate: Jail's ban on head coverings OK

Jail officials in Sumner County did not violate the First Amendment rights of a former inmate when they prohibited him from wearing a kufi, or Islamic head covering, according to U.S. Magistrate Judge Juliet Griffin. On Friday, Griffin found that prison officials identified legitimate safety concerns in prohibiting the head covering and recommended that the prisoner's lawsuit against the practice be dismissed. The case now goes to a federal district judge.

Vanderbilt law prof named to trafficking committee

Ellen Wright Clayton, professor of pediatrics and law, and director of the Center for Biomedical Ethics and Society at Vanderbilt University, has been appointed to the Institute of Medicine's Committee on Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States. The committee is charged with examining the scope and severity of commercial sexual exploitation of children and sex trafficking of U.S. citizens or lawful permanent residents who are under age 18.

Read more from the school

Mississippi juvenile judge resigns

Tate County, Miss., Juvenile Judge Leigh Ann Darby, who has been at the center of a controversial case that sent three innocent teenagers to a detention facility, has resigned. In July, three juveniles were shackled and strip-searched at a youth detention facility for allegedly trespassing by walking through a neighbor's yard. Attorneys for the children argued that Darby should have followed the customary practice of releasing the youths into their parents' custody, instead of taking them into police custody. The teens later were found to be innocent of the charges.

The Memphis Business Journal reports

Opinion: All responsible for reporting child abuse

Hugh Nystrom, director of program operations and development for Childhelp in Knoxville, writes in yesterday's News Sentinel that Tennessee law requires "any person who knows or has reasonable cause to suspect that a child has been sexually abused" to report that to authorities. He also points out that the law has provisions to protect the identity of the reporter and make sure that person is immune from civil and criminal liability. "With this law in place," he says, everyone has "a moral and legal obligation to report suspected sexual abuse." Childhelp provides child abuse assessments, forensic interviews and medical exams, and ongoing support for abused children and their nonoffending family members.

Freeh to lead Penn State's internal investigation

Former FBI director Louis J. Freeh was appointed today to lead Penn State's internal investigation into child-sex abuse allegations involving former football coach Jerry Sandusky. Originally, the university appointed two of its trustees to lead the investigation, but after receiving criticism and urging from faculty, it announced an independent review. Freeh will have the power to look into anyone and everyone, including trustees. "No one is above scrutiny," said university trustee and Merck pharmaceutical company CEO Kenneth Frazier.

Annenberg TV News reported the appointment

KBA collects activity bags for children

The Knoxville Bar Association (KBA) Unmet Legal Needs of Children Committee is preparing activity bags for children who accompany family members to the City County Building for legal proceedings. Those who would like to donate items may drop them off at the KBA office, 505 Main St., Suite 50; Egerton, McAfee, Armistead & Davis PC, 1400 Riverview Tower; or Toppenberg & Burke PC, 612 S. Gay St., Suite 1. Donations are being accepted through Dec. 9. Contact committee co-chairs Elaine Burke (865-522-8767) or Cheryl Rice (865-546-0500) for more information.

General Assembly News

Former judge to run for new House district

Mike Carter, a former General Sessions judge who came close to being named Hamilton County mayor, plans to run for a new state House district being created during the redistricting process. The new District 29 is expected to include the rapidly growing areas of Collegedale, parts of Ooltewah and a stretch of Highway 58. Others mentioned for a possible race include Collegedale Mayor John Turner, Republican activist Wes Kliner and Ray Minner of Collegedale. Rep. JoAnne Favors currently serves as District 29 representative, but the new district reportedly will no longer include her residence. She is expected to run in the District 28 race.

Chattanoogan.com has more

Legislators talk about judicial elections

At a breakfast meeting of the Blount County Chamber of Commerce last week, state Sen. Doug Overbey and Reps. Robert Ramsey and Art Swann, all Republicans from Maryville, briefed the audience on issues facing the legislature. When asked about whether the state plans to move to direct elections of appellate and state Supreme Court judges, all three said the current process was a good one and that injecting campaign money into judicial races was not a good idea.

State seeks legislative fix to protest issues

The head of the state's General Services Department appeared before a legislative committee last week and urged elected officials to consider new legislation governing use of War Memorial Plaza. The department argued last month that it has the authority to impose curfews and new regulations on the plaza, but recent court decisions have called that authority into question. None of those present articulated what legislation might look like.

Upcoming

'Hot Coffee' documentary screening set for Nov. 30

Lipscomb University's HumanDocs Film Series continues next Wednesday, Nov. 30, with a screening of the documentary "Hot Coffee" at 8:30 p.m. The movie looks at the well-known lawsuit brought against McDonald's in the 1990s and what that case reveals about consumer justice. The showing will be presented in the Shamblin Theater, located in the Bennett Campus Center. A brief panel discussion will follow the screening. The event is free and open to the public.
Learn more online

Download a flyer about the film

Career Opportunities

Department of Revenue seeks lawyer

The Tennessee Department of Revenue seeks a full-time attorney in its legal office to advise personnel and the public on tax laws, legislation, litigation and Administrative Procedures Act hearings. The position's primary responsibility will be the research and drafting of policy rulings on the interpretation and application of state tax laws. The successful applicant must have very strong technical writing skills. To apply, please send a letter of interest and current resume by mail to Kristin Husat, Director of Legal Services Tennessee Department of Revenue, 500 Deaderick St., 6th Floor, Nashville, TN 37242, or by email to kristin.husat@tn.gov.

Learn more on JobLink

TBA Member Services

Program offers savings on auto insurance

See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734

or get an online rate quote

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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.