Friday, December 09, 2011
Search our Database for Opinions and News Items
 
 
TBA chosen for national civility program

The Tennessee Bar Association has been selected as one of nine organizations to take part in a national civility program. Funded by a grant from the National Endowment for the Humanities (NEH), "Civility and Free Expression in a Constitutional Democracy -- A National Dialogue" will be administered through the American Bar Association Division for Public Education. The TBA has established a planning committee to tailor the model to our state and draw in a public audience for three events that will be held in late 2012 and early 2013. Our partners across the state are: the Howard H. Baker Jr. Center for Public Policy, the University of Memphis Cecil C. Humphreys School of Law, Lipscomb University and the First Amendment Center in Nashville. TBA President-Elect Jackie Dixon will lead the planning process.
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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
08 - 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.
ROY E. KEOUGH v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Donald E. Dawson and Sarah Willingham, Nashville, Tennessee, for the appellant, Roy E. Keough.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; James E. Gaylord, Assistant Attorney General; William L. Gibbons, District Attorney General; Robert J. Carter and John Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: CLARK

We granted permission to appeal in this post-conviction capital case to consider whether the courts below erred in holding that the state and federal constitutional right against self-incrimination does not afford a post- conviction petitioner who chooses to testify the right to limit the scope of the State's cross-examination. However, we need not decide whether and in what manner the constitutional right against self- incrimination applies in the post-conviction context because this appeal can be resolved on non- constitutional grounds. We have concluded that the scope of cross-examination of a post-conviction petitioner is governed by Tennessee Supreme Court Rule 28, section 8(C)(1)(d). The judgments of the trial court and the Court of Criminal Appeals are vacated, and this matter is remanded for a new post-conviction hearing at which Petitioner shall be afforded the right to testify subject to the limited scope cross-examination provided by Rule 28, section 8(C)(1)(d).

http://www.tba2.org/tba_files/TSC/2011/keoughr_120911.pdf
MARIA WELCHEZ CATULAN v. JUAN MANUEL WELCHEZ

Court: TCA

Attorneys:

David L. King, Nashville, Tennessee, for the appellant, Juan Manuel Welchez.

Theresa A. Light Critchfield and Jean N. Crowe, Chattanooga, Tennessee, for the appellee, Maria Welchez Catulan.

Judge: BENNETT

Husband argues on appeal that the trial court erred in holding a hearing on his wife's petition for an order of protection when his attorney was not present. Finding no error, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2011/catulanm_120911.pdf
KIMBERLIE LOIS EDMONSON v. TERRY LYNN WILSON

Court: TCA

Attorneys:

H. Chris Trew, Athens, Tennessee, for the appellant, Terry Lynn Wilson.

Kimberlie Lois Edmonson, Athens, Tennessee, Pro Se.

Judge: MCCLARTY

In this case, Kimberlie Lois Edmonson ("Ms. Edmonson") filed suit against Terry Lynn Wilson ("Mr. Wilson") for breach of an alleged partnership agreement. Prior to trial, the parties reached an agreement. Following the announcement of the agreement in court by counsel, Ms. Edmonson refused to honor the agreement. Mr. Wilson filed a motion to enforce the agreement, and the trial court denied the motion. The case proceeded to a bench trial, and the court held in favor of Ms. Edmonson. Mr. Wilson appeals. We hold that the court should have enforced the settlement agreement and reverse the decision of the court.

http://www.tba2.org/tba_files/TCA/2011/edmonsonl_120911.pdf
CHARLOTTE SCOTT FORBESS v. MICHAEL E. FORBESS

Court: TCA

Attorneys:

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Charlotte Scott Forbess.

Thomas D. Forrester, Covington, Tennessee, for the appellee, Michael E. Forbess.

Judge: STAFFORD

This case involves the valuation of assets for division of marital property and alimony. Wife filed for divorce, seeking an equitable division of the marital assets, including Husband's one-half interest in a real estate partnership. At trial, each party introduced experts to testify as to the value of Husband's interest in the partnership. The trial court valued the partnership at a fair market value that was between the values testified to by the experts. The court awarded Wife one-half of the value, awarded Wife one-half of a note that was based on property Husband owned prior to the marriage, and awarded Wife alimony. After a motion to alter or amend, the trial court reduced Wife's interest in the partnership and the note to take into account Husband's tax liability. Wife appeals, arguing that the trial court erred in valuing the partnership and in its alimony award. Affirmed.

http://www.tba2.org/tba_files/TCA/2011/forbessc_120911.pdf
TONY MIZE ET AL. v. VICTOR MARK CONSULO ET AL.

Court: TCA

Attorneys:

George R. Fusner, Brentwood, Tennessee, for the appellants, Victor Mark Consulo and wife, April M. Consulo.

Wende J. Rutherford and Robert F. Spann, Nashville, Tennessee, for the appellees, Tony Mize and wife, Sharla Mize.

Judge: BENNETT

Purchasers of house sued sellers for breach of contract because, contrary to the sale agreement, the house was not connected to the sewer. After a trial, the court entered judgment in favor of the purchasers for the cost of connecting the house to the sewer. In this appeal, the sellers argue that the trial court erred in applying the wrong statute of limitations, in finding in favor of the purchasers, in using the wrong measure of damages, and in the award of attorney fees. We find no error in the trial court's decision.

http://www.tba2.org/tba_files/TCA/2011/mizet_120911.pdf
MARKESE BROOKS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ebony N. Dawkins, Memphis, Tennessee, for the appellant, Markese Brooks.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kevin Rardin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Markese Brooks, appeals the post- conviction court's denial of his petition for post-conviction relief, arguing he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/brooksm_120911.pdf
STATE OF TENNESSEE v. ROBERT CHARLES BROWN

Court: TCCA

Attorneys:

David W. Camp (on appeal) and Kandi Kelley Collins and Paul Myers (at trial), Jackson, Tennessee, for the appellant, Robert Charles Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Chester County Circuit Court jury convicted the appellant, Robert Charles Brown, of eighty-five counts of rape of a child, a Class A felony. After a sentencing hearing, the appellant received an effective one-hundred-year sentence to be served at one hundred percent. On appeal, the appellant contends that the trial court erred by (1) denying his motion to dismiss the indictment because he was deprived of his right to a speedy trial, (2) allowing a State witness to testify about an incriminating hearsay statement made by the appellant, and (3) failing to require the State to make an election of offenses. The State acknowledges that the trial court erred regarding the election of offenses but argues that the error is harmless. We conclude that the trial court committed reversible error by failing to require the State to make an election of offenses. Therefore, the appellant's convictions are reversed, and the case is remanded to the trial court for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/brownr_120911.pdf
STATE OF TENNESSEE v. TIMOTHY BRYANT BURTON

Court: TCCA

Attorneys:

James O. Martin, III, Nashville, Tennessee, and Andrew Jackson Dearing, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Timothy Bryant Burton.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Charles Crawford, District Attorney General, and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Timothy Bryant Burton, appeals his Bedford County conviction for violation of the sex offender registry and the State's use of his prior convictions to establish his status as a violent sex offender. After a review of the record, we conclude that Appellant failed to timely register with a law enforcement agency within forty-eight hours of his change of residence in violation of Tennessee Code Annotated section 40-39-203 or, in other words, that the evidence was sufficient to support the conviction. Additionally, Appellant waived any issue with regard to the admission of evidence by failing to object at trial or raise the issue in a motion for new trial and is not entitled to plain error review. As a result, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/burtont_120911.pdf
STATE OF TENNESSEE v. CHRISTINE CAUDLE
With Concurring Opinion

Court: TCCA

Attorneys:

Vanessa P. Bryan, District Public Defender (on appeal); James L. Elkins, III, Assistant Public Defender (on appeal); and Judson Phillips, Nashville, Tennessee (at trial), for the appellant, Christine Caudle.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Kim Helper, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Christine Caudle, pled guilty to reckless endangerment with a deadly weapon and theft of merchandise over $500, Class E felonies. See T.C.A. sections 39-13-103, 39-14-146 (2010). She was sentenced as a Range II, multiple offender to three years for each conviction, to be served concurrently. On appeal, she contends that the trial court erred by failing to apply applicable mitigating factors and by failing to grant probation or an alternative sentence. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/caudlec_120911.pdf

BIVINS concurring
http://www.tba2.org/tba_files/TCCA/2011/caudlec_CON_120911.pdf
WALTER LEON CROSS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

George D. Norton, Jr., Ripley, Tennessee, for appellant, Walter Leon Cross.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Jason Poyner and Billy G. Burk, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Walter Leon Cross, pled guilty in the Tipton County Circuit Court to felony failure to appear, eleven counts of forgery, three counts of theft over $1,000, and two counts of identity theft. Pursuant to the plea agreement, he received an effective sentence of twenty years. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that his pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/crossw_120911.pdf
STATE OF TENNESSEE v. DIANE FORREST

Court: TCCA

Attorneys:

Charles Griffith, Waverly, Tennessee, for the appellant, Diane Forrest.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Hansel J. McCadams, District Attorney General; R. Adam Jowers, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: BIVINS

This case arises from charges that Diane Forrest ("the Defendant") concealed from police certain items used to make methamphetamine that her son had been using when his mobile methamphetamine lab exploded. A jury convicted the Defendant of one count of tampering with evidence and one count of accessory after the fact. The trial court merged the accessory after the fact conviction into the tampering with evidence conviction. The Defendant was sentenced to three years, with forty-five days incarceration to be served prior to her release on probation. On appeal, the Defendant argues that the trial court erred by: (1) excluding extrinsic evidence of a prior inconsistent statement made by an eyewitness; (2) admitting testimony about a second two-liter bottle found at the scene of the methamphetamine lab; (3) failing to dismiss the tampering with evidence charge at the close of the State's proof; (4) rendering a sentence that was disproportionately harsh; and (5) increasing the Defendant's appeal bond to $18,000. After a careful review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/forrestd_120911.pdf
STATE OF TENNESSEE v. DERRICK LAMONT PARRISH

Court: TCCA

Attorneys:

LaShawn A. Williams, Memphis, Tennessee, for the appellant, Derrick Lamont Parrish.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

Following his guilty pleas to nine felonies, the appellant, Derrick Lamont Parrish, received a total effective sentence of sixteen and one-half years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the length of the sentences imposed by the trial court. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/parrishd_120911.pdf
STATE OF TENNESSEE v. KENNETH SPENCER

Court: TCCA

Attorneys:

Stephen C. Bush, District Public Defender; Tony N. Brayton (on appeal); Clifford T. Abeles, Jr. and Sanjeev Memula (at trial), Assistant Public Defenders, for the appellant, Kenneth Spencer.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; William L. Gibbons, District Attorney General; and Amy P. Weirich and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Kenneth Spencer, was convicted by a Shelby County jury of first degree premeditated murder and was sentenced by the trial court to life imprisonment. He raises the following four issues on appeal: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred in denying his motion to suppress his statement to police; (3) whether the trial court erred in admitting evidence of his prior bad acts; and (4) whether the trial court impermissibly commented upon the evidence by issuing an incomplete statement to the jury on the element of premeditation. Based on our review, we conclude that the evidence was sufficient to sustain the conviction and that the trial court did not err in its evidentiary rulings. We further conclude, however, that the trial court committed reversible error by improperly commenting on the evidence and giving an incomplete statement of the law in its expanded premeditation instruction. Accordingly, we reverse the judgment of the trial court and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/spencerk_120911.pdf
TODAY'S NEWS
Legal News
Court of the Judiciary
Upcoming
TBA Member Services
Legal News
Kitch to lead Nashville Bar
The Nashville Bar Association Thursday night passed the gavel to new President John Kitch during its annual Meeting and Banquet. Joining him in leadership of the bar will be President-Elect Tom Sherrard and new board members Dewey Branstetter, Ed Lanquist, John McLemore, Jeff Mobley, Maria Salas and Overton Thompson. The NBA also presented its John C. Tune Public Service Award to William "Bill" T. Ramsey, and the Joseph G. Cummings Pro Bono Volunteer of the Year Award to Lewis G. "Buddy" Burnett.
Read more from the NBA
Baumgartner ruled in 'less than 40' cases during impairment
Thursday the Knox County District Attorney's Office said it estimates disbarred judge Richard Baumgartner presided over "less than 40" trials that resulted in convictions from 2008 until he resigned in March 2011. Since last week when new trials were granted to four defendants in a murder case, the question of how many others may be requested has been asked. Just because a defense attorney requests a new trial does not mean that it will be granted. If or when new trials are granted, the District Attorney then has the option to appeal the judge's decision.
WBIR has the story
Courthouse overcrowding causes case rescheduling
In Shelbyville, defendants had to appear in shifts earlier this week after a report of "dangerous overcrowding" was reported. A maximum occupant load of 60 people for the main courtroom area was enforced for the first floor chambers at the county courthouse. Circuit Court Clerk Thomas Smith told several attorneys present in the courtroom Wednesday that the repeated continuances of cases and inability to resolve many of them in General Sessions Court was causing the large dockets, and hence, the overcrowding.
The Shelbyville Times-Gazette tells the story
Memphis law prof has talent for humor, tort law
University of Memphis law school professor Andrew J. McClurg thinks the legal profession desperately needs an injection of humor. He also is not shy about going on the offensive with lawyer-bashing strangers. But he is best known as "Tortman" by students and faculty alike. McClurg recalls a game he played with his daughter when she was a child. "We'd be sitting in a public place and I'd say, 'Tortgirl, spot the tort.' Then I'd time her as she ran around trying to identify the nearest defective-premises condition. Sound sick? Probably, but I've taught thousands of first-year law students to play 'Spot the Tort' over the years and they've lived happier and healthier lives because of it."
Read about him in the Commercial Appeal
Interested in ABA post? Start now
Lawyers interested in being appointed to an American Bar Association (ABA) position can do so online now. ABA President Elect Laurel Bellows will make approximately 600 appointments to standing committees, special committees, commissions, and other entities and initiatives. The deadline for submitting applications is March 1. The Tennessee Bar Association's ABA Resource Committee will assist lawyers interested in applying for service on the various ABA entities. Contact ABA Resource Committee Chair Jonathan Cole or ABA State Delegate Randy Noel for further information about ways in which the committee can be of assistance.
Learn more or apply for and ABA post now
DOJ looking into e-book prices
The U.S. Justice Department has confirmed that it is looking into possible anticompetitive practices involving e-book sales. Sharis Pozen, the acting head of the department's antitrust division, has been working with state attorneys general and European Union lawyers to investigate whether Apple helped five major publishing houses illegally raise prices for e-books when it launched its iPad tablet and iBookstore in 2010.
The Memphis Daily News has the story
Killian explains his job
U.S. Attorney for the Eastern Tennessee District William Killian spoke to the Rotary Club of Cleveland earlier this week to explain what the U.S. Attorney's Office does. "Our mission is to enforce the law and defend the interests of the United States, ensure public safety against threats foreign and domestic ... [and] provide leadership in preventing and controlling crime, which we do in cooperation with other state and local agents," Killian told them.
Read it in The Cleveland Dailey Banner
Knox Commission's 2007 move reminder of need for sunshine
Columnist Greg Johnson reminds readers of "Black Wednesday" at Knox County Commission in 2007 when commissioners met out of public view to handpick new officials. The News Sentinel sued and, in the process, ended up affirming and strengthening Tennessee's "sunshine law." Now, the Tennessee County Commission Association wants to return to the dark side and allow politicos to meet and deliberate in private as long as they number less than a quorum. "Now would be the time," he writes, "for the people to let county commissioners, state representatives and state senators know they like the sunshine just fine."
Read the column in the News Sentinel
Gibbons: Violent crime rate down 7.6 percent
Bill Gibbons, commissioner of the state Department of Safety and Homeland Security, told the Memphis Rotary Club that the state's violent crime rate dropped 7.6 percent between 2010 and 2011. Much of the decrease was driven by a 3.6 percent dip in violent crime in Memphis over the same period. In an editorial, the Commercial Appeal praises crime-reduction strategies, the efficiency of the police department and other criminal justice agencies.
Read the editorial
Court of the Judiciary
Hamilton County judge reprimanded
The Tennessee Court of the Judiciary today filed a public reprimand of Hamilton County General Sessions Court Judge David Bales following the investigation of two complaints against him. The complaints -- one from an attorney and the other from a fellow judge -- involved comments and actions made by Bales in two separate incidents. Both related to the setting of bonds for defendants.
Read the full public reprimand
Upcoming
Civil rights exhibit opens in Brownsville
A traveling exhibit commemorating the 50th anniversary of Tennessee sit-ins opens today at the West Tennessee Delta Heritage Center in Brownsville. "We Shall Not Be Moved: The 50th Anniversary of Tennessee's Civil Rights Sit-ins" continues through Jan. 22. The exhibit was organized by the curatorial staff at the Tennessee State Museum in Nashville. The free exhibit includes photos and artifacts to examine segregation in the state and how resistance developed in black communities. It covers events in Nashville, Chattanooga, Memphis, Knoxville and elsewhere.
Learn more
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.
© Copyright 2011 Tennessee Bar Association