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Tuesday, December 20, 2011

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AOC explains why 16,000 emails won't sway decisions

Tennessee's Administrative Office of the Courts (AOC) has been inundated with email petitions -- more than 16,000 -- requesting the court stop the retrials of four defendants charged with the murders of Channon Christian and Christopher Newsom of Knoxville.

In a statement released today, AOC Public Information Officer Laura Click points out that the Code of Judicial Conduct prevents the Supreme Court, or any judge, from considering ex parte communications as part of its decision-making process, and prohibits judges from commenting on any cases that may come before them. "Should the state file an appeal from the trial judge's decision granting the motions for retrials, the appellate courts will consider the appeal based on the facts and information filed with the court as part of the regular appeals process, described in the Tennessee Rules of Appellate Procedure," Click said.

Read the AOC's statement

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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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.

MELISSA HAMLIN v. WINDSOR FORESTRY TOOLS, INC. ET AL.

Court: TWCA

Attorneys:

Thomas P. Cassidy, Jr. and Mary Louise Wagner, Memphis, Tennessee, for the appellants, Windsor Forestry Tools, Inc., Blount, Inc., and Liberty Mutual Insurance Company

Floyd S. Flippin, Humboldt, Tennessee, for the appellee, Melissa Hamlin

Judge: KURTZ

The employee injured her back at work and the injury required surgical treatment. The employee returned to work but was later terminated for violation of her employer's attendance and absenteeism policy. The trial court found the employee did not have a meaningful return to work. The trial court, however, adopted the impairment rating that the employee's evaluating physician expressed and awarded 90% permanent partial disability benefits, the maximum award permitted by Tennessee Code Annotated section 50-6-241(d). The employer has appealed, contending that the trial court erred by adopting the evaluating physician's impairment rating, by its use of the six-times multiplier on the basis of facts not in evidence, and by finding that the employee did not have a meaningful return to work. We agree that the evidence preponderates against the trial court's findings concerning employee's impairment and the six-times multiplier. Accordingly, we modify the award.

http://www.tba2.org/tba_files/TSC_WCP/2011/hamlinm_122011.pdf

JAMES TERRY JOHNSON v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC. D/B/A AT&T, INC.

Court: TWCA

Attorneys:

Charles E. Pierce, Knoxville, Tennessee, for the appellant, American Telephone and Telegraph Company, Inc.

Jay E. DeGroot, Jackson, Tennessee, for the appellee, James Terry Johnson.

Judge: CHILDRESS

An employee suffered a partial amputation of his left index finger. Compensability of the injury was not contested. At trial, the employee argued that his disability award should be apportioned to the hand. His employer contended that the award should be limited to the index finger. The trial court agreed with the employee and awarded 52% permanent partial disability to the hand. The employer appealed. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonj_122011.pdf

ANITA BERKLEY RHODES v. CAREALL, INC. ET AL.

Court: TWCA

Attorneys:

Catherine Bulle Clayton, Jackson, Tennessee, for the appellants, Careall, Inc. and Wausau Underwriters Insurance Co.

Jay E. Degroot, Jackson, Tennessee, for the appellee, Anita Berkley Rhodes.

Judge: CHILDRESS

An employee alleged that she sustained a right- and left-side hernia while working. Her employer denied the claim for the left-side hernia. The trial court held that both the right- and left-side hernias were compensable and awarded permanent partial disability benefits. The employer appealed. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/rhodesa_122011.pdf

JOSHUA N. LEE, v. LYONS CONSTRUCTION COMPANY, INC.

Court: TCA

Attorneys:

Andrew E. Farmer, Sevierville, Tennessee, for the appellant, Joshua N. Lee.

Joshua A. Wolfe, and Adam F. Rust, Knoxville, Tennessee, for the appellee, Lyons Construction Company, Inc.

Judge: FRANKS

Plaintiff and others sustained injuries in a single car accident and sued defendant construction company and the Tennessee Department of Transportation, alleging that defendant construction company had recently completed work on that section of the highway where the accident occurred, and that a low point in the pavement caused plaintiff to lose control of his vehicle and wreck. Defendant answered, stating that they had completed the required construction on that section of the highway, and the State had accepted its work pursuant to Tenn. Code Ann. section 12-4-501 et seq. which provides upon proper completion of the work the contractor "is discharged from all liability to any party". Defendant filed a Motion for Summary Judgment which the Trial Court granted and plaintiff appealed. We hold that summary judgment for the defendant in this case was proper, and affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2011/leej_122011.pdf

LISA SMITH c/o RODTERRIUS M. TINNEL (DECEASED), ET AL. v. HFH, INC. d/b/a DHL AND PACIFIC EMPLOYERS INSURANCE COMPANY, ET AL.

Court: TCA

Attorneys:

Lisa Smith, Spring Hill, Tennessee, Pro Se.

Terry R. Clayton, Nashville, Tennessee, Pro Se.

John Edward Quinn, Nashville, Tennessee, for the appellee/defendant, Pacific Employers Insurance Company.

David J. Deming, Nashville, Tennessee, appellee/defendant, Pro Se.

G. Wayne Davis, Nashville, Tennessee, appellee/defendant, Pro Se.

John Edward Quinn, Nashville, Tennessee, for the appellee/defendant, HFH, Inc.

Judge: COTTRELL

This is an appeal from an order denying a motion for a default judgment. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

http://www.tba2.org/tba_files/TCA/2011/smithl_122011.pdf

STATE OF TENNESSEE v. RODERICK BALDWIN

Court: TCCA

Attorneys:

Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Roderick Baldwin.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Roderick Baldwin, appeals the order of the Montgomery County Circuit Court revoking his community corrections sentence for his convictions for aggravated criminal trespass, a Class A misdemeanor, and two counts of aggravated assault, a Class C felony. On appeal, the Defendant contends that the trial court abused its discretion by revoking his community corrections sentence and ordering him to serve the remainder of his sentences in confinement. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/baldwinr_122011.pdf

KEVIN JOEL HERNANDEZ v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick G. Frogge, Nashville, Tennessee, for the appellant, Kevin Joel Hernandez.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Tammy Meade, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Kevin Joel Hernandez, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his conviction of conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school zone and resulting fifteen-year sentence to be served at one hundred percent. The appellant contends that he received the ineffective assistance of counsel because trial counsel (1) failed to investigate his case adequately, consult with him, or prepare for trial and (2) failed to request a jury instruction on facilitation. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/hernandezk_122011.pdf

MANNAKA OUNG v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick G. Frogge, Nashville, Tennessee for the Petitioner-Appellant, Mannaka Oung.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Mannaka Oung, appeals the Davidson County Criminal Court's summary dismissal of his petition for post-conviction relief from his 2000 conviction for aggravated assault and resulting three-year suspended sentence. Oung filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel based on counsel's failure to advise him of the plea's possible effects on his immigration status and potential deportation. The post-conviction court concluded that the petition was barred by the statute of limitations and dismissed the petition. On appeal, Oung argues that his claim is based on a constitutional right that did not exist at the time of his plea, such that the statute of limitations does not bar his claim. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/oungm_122011.pdf

STATE OF TENNESSEE v. JAMAR ED-WAE SCOTT

Court: TCCA

Attorneys:

Paula Blair (on appeal) and Michelle H. Thompson and Derrick Scretchen (at trial), Nashville, Tennessee, for the appellant, Jamar Ed-Wae Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm and Renee Erb, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the appellant, Jamar Ed-Wae Scott, of two counts of first degree felony murder, two counts of second degree murder, and two counts of attempted robbery, and the trial court sentenced him to an effective sentence of life plus eight years in confinement. On appeal, the appellant contends that (1) the trial court erred by allowing a witness to testify about a statement made by a co-defendant pursuant to Tennessee Rule of Evidence 803(1.2)(E), the co-conspirator exception to the hearsay rule, and (2) the evidence is insufficient to support the convictions. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/scottj_122011.pdf

STATE OF TENNESSEE v. CHARLES STEVEN SHIVERS A.K.A. SCOTT KEVIN MCNEIL

Court: TCCA

Attorneys:

Dawn Deaner, District Public Defender; Emma Rae Tennent (on appeal), Jonathan F. Wing and Sunny Eaton (at trial), Assistant Public Defenders, for the appellant, Charles Steven Shivers a.k.a. Scott Kevin McNeil.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Benjamin Ford, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Charles Steven Shivers, was convicted of attempted first degree murder, a Class A felony, and especially aggravated robbery, a Class A felony. He was sentenced to twenty-five years at thirty percent for the attempted murder and to a consecutive eighteen years at one hundred percent for the especially aggravated robbery, for a total effective sentence of forty-three years. On appeal, the defendant claims that the evidence is insufficient to support his convictions and that the trial court erred by denying the defendant's pretrial motion to suppress the victim's identification testimony, erred by having an ex parte meeting with a juror during deliberations, and erred in imposing consecutive sentences. After carefully reviewing the record and the parties' arguments, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/shiversc_122011.pdf

STATE OF TENNESSEE v. MONTARIUS A. WILLIAMS

Court: TCCA

Attorneys:

Michael S. Colavecchio, Nashville, Tennessee, for the appellant, Montarius Williams.

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson III, District Attorney General; Ben Ford, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: BIVINS

This is an appeal from the trial court's order revoking the community corrections sentence of the Defendant, Montarius A. Williams, and ordering him to be incarcerated. The Defendant contends (1) that some of the proof offered in support of revocation should have been suppressed as the result of an illegal search and (2) that the evidence is not sufficient to support the trial court's decision. After a thorough review of the record, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/wiliamsm_122011.pdf

STATE OF TENNESSEE v. DANITA LANETTE WILSON and TIFFANY NICOLE NORMAN

Court: TCCA

Attorneys:

Michael Colavecchio, Nashville, Tennessee, for the appellant, Danita Lanette Wilson, and Wendy Tucker, Nashville, Tennessee, for the appellant, Tiffany Nicole Norman.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel, Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, the State of Tennessee.

Following a jury trial, Defendant Danita Lanette Wilson was convicted of two counts of aggravated child neglect (counts one and two), conspiracy to possess a Schedule II controlled substance with intent to sell (count three), possession of .5 grams or more of cocaine with intent to sell (counts four and eight), attempted aggravated child neglect (count six), reckless endangerment (count seven), tampering with evidence (count nine), resisting arrest (count ten), and possession of drug paraphernalia (count eleven). The trial court merged the two convictions for aggravated child neglect into a single count, referred to as "count one." The trial court sentenced Defendant Wilson to seventeen years for aggravated child neglect (count one); five years for conspiracy to possess a Schedule II controlled substance with intent to sell (count three); ten years for each conviction of possession of .5 grams or more of cocaine with intent to sell (counts four and eight); ten years for attempted aggravated child neglect (count six); eleven months, twenty-nine days for reckless endangerment (count seven); five years for tampering with evidence (count nine); six months for resisting arrest (count ten); and eleven months, twenty-nine days for possession of drug paraphernalia (count eleven). The trial court further ordered that Defendant Wilson's seventeen-year sentence in count one, her ten-year sentence in count four, and her ten-year sentence in count six be served consecutively for an effective thirty-seven-year sentence. The jury convicted Defendant Tiffany Nicole Norman of two counts of child neglect (counts one and two), facilitation of conspiracy to possess a Schedule II controlled substance with intent to sell (count three), facilitation to possess .5 grams or more of cocaine with intent to sell (count four), possession of drug paraphernalia (count five), and two counts of attempted aggravated child neglect (counts six and seven). The trial court also merged Defendant Norman's convictions for child neglect into a single count, referred to as "count one." The trial court sentenced Defendant Norman to four years for child neglect (count one); six years for facilitation of conspiracy to possess a Schedule II controlled substance with intent to sell (count three); nine years for facilitation to possess .5 grams or more of cocaine with intent to sell (count four); eleven months, twenty-nine days for possession of drug paraphernalia (count five); ten years for each conviction of attempted aggravated child neglect (counts six and seven). The trial court further ordered that Defendant Norman's four-year sentence in count one, her nine-year sentence in count four, and her ten-year sentence in count six be served consecutively for an effective twenty-three-year sentence.

On appeal, Defendants both argue that (1) the trial court erred in denying their motions to sever offenses and defendants; (2) the counts of indictments charging them with aggravated child neglect and attempted aggravated child neglect are defective; (3) the trial court erred in allowing Dr. Donna Seger to testify as an expert witness as to the time frame in which Nehemiah Stallings ingested the drugs; and (4) the evidence was insufficient to support the convictions. Defendant Norman additionally argues that the trial court erred in allowing the State to refer to her pregnancy at the time of the offenses, that the trial court erred in admitting testimony that she lied during a hospital admissions drug screen, and that the trial court erred is denying her motion to suppress her statements to police. Defendant Wilson also argues that the trial court erred in denying her motion in limine and admitting a note found on the refrigerator at 28 Shepard Street. She also asserts that her effective thirty-seven-year sentence is excessive. After a careful review, we reverse and dismiss Defendant Norman's convictions for child neglect in counts one and two, which were merged by the trial court. We also remand for entry of a corrected judgment in count eight. Otherwise, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/wilsond_122011.pdf

TODAY'S NEWS

Legal News
General Assembly News
Disciplinary Actions
TBA Member Services

Legal News

Lincoln denied provisional approval by ABA

Lincoln Memorial University's Duncan School of Law in Knoxville has been denied provisional approval by the American Bar Association (ABA). Pete DeBusk, chair of the LMU Board of Trustees and the school's main benefactor, said the emailed news he received today "caught us totally off guard." The school is approved by the Tennessee Board of Law Examiners, so students will still be able to sit for the state's bar exam. In a story in Sunday's New York Times Dean Sydney Beckman talked about the struggle to provide an affordable legal education while also complying with the ABA's stringent and expensive accreditation standards. DeBusk said the school will consider all options of appealing the ABA decision, including the possibility of fighting it in court.

The News Sentinel has this story

Fowlkes nominated for district court

President Barack Obama has nominated Criminal Court Judge John Fowlkes to be on the U.S. District Court, sending the nomination to the U.S. Senate last week for confirmation. Fowlkes would fill the vacancy created by the recent elevation of Judge Bernice Donald to the U.S. Sixth Circuit Court of Appeals.

Hospital-Legal Aid partnership to help patients' legal stress

Chattanooga's Erlanger Health System and Legal Aid of East Tennessee have announced a health law partnership designed to assist people dealing with stress stemming from issues such as domestic violence, housing trouble and employment challenges. Under the deal, a full-time Legal Aid attorney and a part-time assistant will work at the hospital, helping people find services that address their needs. The 40-hour-a-week position will be funded for the first six months with $25,000 from Erlanger and a one-time grant to Legal Aid from an unnamed legal organization.

The Times Free Press has more

DNA warrants on 'John Doe' stay valid

Tennessee law enforcement officials now have an unlimited amount of time to investigate and prosecute crimes if there is DNA evidence involved, thanks to a recent ruling by the Tennessee Court of Criminal Appeals in the case of Robert Jason Burdick, the so-called Wooded Rapist. While prosecutors are applauding the ability to use a scientifically advanced tactic to enhance law enforcement, critics say the approach threatens criminal defendants' constitutional rights and undermines the purpose for putting time limits on prosecutions in the first place.

The Tennessean has the story

General Assembly News

Rep. DeBerry is cancer-free

After nearly three years of battling pancreatic cancer, State Rep. Lois DeBerry, D-Memphis, was told by her doctors last month that they couldn't find any trace of the terminal disease. "It's the best Christmas present I could get," she told The Associated Press. Doctors had removed DeBerry's pancreas, which produces several important hormones, such as insulin. The removal left her with Type 1 diabetes and a daily practice of giving herself insulin shots.