TBA Today - Friday, November 20, 2020 - Your fastest source of appellate court decisions, Supreme Court rules and orders changes, attorney general opinions and other Tennessee legal community news.
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TBA Today
Friday, November 20, 2020
Today's News

Tennessee Resident, Former Concentration Camp Guard to be Deported

The federal Board of Immigration Appeals has dismissed the appeal of Tennessee resident Friedrich Karl Berger, a German citizen who was ordered removed from the United States earlier this year on the basis of his service in Nazi Germany as an armed guard at the Neuengamme Concentration Camp. The board upheld a Memphis-based immigration judge’s decision from Feb. 28 that Berger was removable to Germany under the 1978 Holtzman Amendment to the Immigration and Nationality Act. That law allows the government to deport those found to have provided assistance to Nazi-sponsored persecution. Berger has lived in the United States since the 1950s. He is now in his mid-90s. Since the 1979 inception of the Justice Department’s program to detect, investigate, and remove Nazi persecutors, it has won cases against 109 individuals. Read more about the department’s Human Rights and Special Prosecutions Section.

 

Washington County Reschedules Session Court Matters

The Washington County Circuit Court Clerk recently announced the rescheduling of state general sessions court matters. Starting Monday, proceedings set for November have been postponed to February 2021. Proceedings for December have been postponed to March 2021. The clerk reported these measures are designed to “to keep everyone safe and give our hardworking clerks some flexibility in their staffing to be able to keep our courts running.” The delays do not apply to incarcerated defendants, who will continue to be brought from the jail on their assigned court dates. View the new schedule.

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New Award Recognizes Innovation in the Law

The Institute for the Advancement of the American Legal System (IAALS) has launched a new annual award program to recognize lawyers and judges who use innovation to make the American legal system work better. The organization hopes the award will showcase innovators, risk takers, visionaries and emerging leaders who bring a reform-minded approach to the improvement of the legal system. Nominations are being accepted through Dec. 8. Candidates should be within their first 15 years of practice. Learn more about the Alli Gerkman Legal Visionary Award and how to submit a nomination.

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VLPA Offers Internships for Law Students

The Nashville-based Volunteer Lawyers and Professionals for the Arts is accepting applications for its Spring 2021 internship program for law students. Interns serve for a semester and perform a range of tasks, including handling client-intake calls, researching specific skills of volunteers, and matching clients with attorneys. Those interested should submit a resume and cover letter expressing interest to info@abcnashville.org. Learn more about the program on VLPA’s website.

Federal Prisoner was 8th to be Executed This Year

The U.S. government executed Orlando Hall yesterday just before midnight after the U.S. Supreme Court overturned a stay imposed by a lower court. He is the eighth federal inmate to be executed this year, Action News 5 reports. Hall was convicted of abducting and killing a 16 year-old girl while searching for two brothers who had stolen his money from a drug deal. Hall’s attorneys had sought to halt the execution over concerns that Hall, who is Black, was sentenced on the recommendation of an all-white jury. The Congressional Black Caucus had asked Attorney General William Barr to stop it because of the coronavirus.

 
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LAS Plans 3 Phone Clinics Next Week

Legal Aid Society of Middle Tennessee & the Cumberlands will hold three phone clinics next week for members of the public with questions about housing and renters’ rights, bankruptcy, medical bills, debt collection, domestic violence, SNAP benefits and unemployment benefits. Clinics will take place on Monday from 4 to 5:30 p.m., Wednesday from 11 a.m. to 1 p.m. and on Saturday from 8:30 to 11 a.m. All times central. LAS is looking for attorneys to help answer questions. To volunteer contact Andrae Crismon or Kendra Cheek or call 615-780-7131. See all clinics for the month.

 
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Memphis Lawyer Remembered as ‘Best’ and ‘Brightest’

Memphis lawyer James J. "Jim" Webb Jr. died Nov. 10 at the age of 63. A 1995 graduate of the University of Memphis School of Law, Webb began his career as a law clerk to Tennessee Supreme Court Justice Holly Kirby while she was on the Tennessee Court of Appeals. In 1997, he joined Crone & Mason, and then in 2010, moved to the Miles Mason Family Law Group. He was the senior associate attorney there at the time of his passing. Colleagues called Webb "one of the brightest, finest lawyers” and “one of the best people” they knew. Memorial donations may be made to the American Diabetes Association.

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First African American to Lead DOJ Civil Rights Division Dies

Drew S. Days III, a lawyer who grew up in the segregated South, devoted much of his career to the cause of racial equality, and became the first African American to lead the U.S. Justice Department’s Civil Rights Division died Nov. 15 at age 79, the Washington Post reports. His death was announced by Yale Law School, where he was a professor emeritus. Days spent decades seeking to advance the cause of civil rights from positions both inside and outside the government. He was a lawyer for the NAACP Legal Defense and Educational Fund before being tapped by President Jimmy Carter for the DOJ role. He also served as solicitor general under President Bill Clinton. He joined the Yale Law School faculty in 1981 and taught at the university until retiring in 2017.

 
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Legal Ethics & Technology When Working Remotely

How do you as a lawyer working remotely meet your ethical duties of competence, confidentiality and supervision? And how do you make sure your tech systems are secure? This one-hour program — sponsored by Attorney's Insurance Mutual of the South — looks at model ethics rules applicable to the remote environment and the realities of cybersecurity, including how to recognize phishing emails, how to avoid ransomware attacks and how to protect electronic devices. Birmingham lawyer J.S. Chris Christie with Sirote & Permutt PC digs into the specifics with actual examples of security compromises and provides recommendations for protecting yourself and your firm.

 
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Share Your News with Colleagues

Do you have news to share with your colleagues about a job move, an award received or a leadership appointment? TBA members can submit their news for publication on the TBA’s online Success feature. To get started, visit our online submission form and follow the prompts for entering the information. You also can upload a press release and a photograph. Once approved, your news will be viewable and available for sharing on Linkedin.

 
Court Opinions

You can obtain full-text versions of these opinions by selecting the link below each opinion’s summary paragraph. Your email software should give you the option of reading the opinion online or downloading it to your computer or mobile device. Decisions from the 6th Circuit Court that are not designated for publication are not included in this report.

JOHN DOE EX REL. JANE DOE v. BRENTWOOD ACADEMY, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

Justin Gilbert, Chattanooga, Tennessee, for the appellants, John Doe (M2017-02548), and Jane Doe (M2017-02548).

Darrell Townsend, Nashville, Tennessee, for the appellant, Justin Gilbert.

Thomas Anthony Swafford, Lucian T. Pera, Joshua Counts Cumby, Nashville, Tennessee, Tara L. Swafford and Elizabeth G. Hart, Franklin, Tennessee, for the appellees, Buddy Alexander, Nancy Brasher, Brentwood Academy, Inc., Lyle Husband, Curt Masters, and Mike Vazquez.

Elizabeth A Russell, Franklin, Tennessee, for the appellees, K.E.M., K.M., and C.M.

Edward P. Silva, Franklin, Tennessee, for the appellees, B.D., E.D., and C.D.

Judge(s): ARMSTRONG

In this consolidated appeal, we review whether the trial court erred in holding appellants’ attorney in civil contempt and/or in assessing fees and costs after this Court, in a previous appeal, reversed the trial court’s grant of appellees’ motion for involuntary dismissal and mandated for entry of an order granting appellants’ motion for voluntary dismissal. We conclude that there was no contempt and that the fees assessed for contempt were unwarranted. Because the underlying lawsuit was voluntarily nonsuited, we pretermit appellants’ issue concerning whether the trial court erred in denying recusal.

doej_112020.pdf

IN RE MALACHI M.

Court: TN Court of Appeals

Attorneys:

Greta Locklear, Chattanooga, Tennessee, for the appellant, Albert J.

Herbert H. Slatery, III, Attorney General and Reporter, and Stephanie R. Reevers, Deputy Attorney General, for the appellee, Tennessee Department of Children’s Services.

Judge(s): MCGEE

This appeal involves a petition to terminate the parental rights of a father to a minor child. The trial court found that there was clear and convincing evidence to terminate the father’s rights on the ground of abandonment by an incarcerated parent and that termination was in the best interest of the child. The father appealed. We affirm the trial court’s decision to terminate the father’s parental rights and remand.

malachim_112020.pdf

 

STATE OF TENNESSEE v. RICKY BOYD

Court: TN Court of Criminal Appeals

Attorneys:

Stephen Bush and Phyllis Aluko (on appeal), Memphis, Tennessee; Jessica L. Gillentine (on appeal), Bartlett, Tennessee; and Jacinta Hall and Samuel Christian (at trial), Memphis, Tennessee, for the Appellant, Ricky Boyd.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Jessica Banti, Gavin Smith, and Lessie Rainey, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge(s): OGLE

A Shelby County Criminal Court Jury convicted the Appellant, Ricky Boyd, of attempted second degree murder, aggravated rape, and rape. At the sentencing hearing, the trial court merged the aggravated rape and rape convictions and imposed a total effective sentence of thirty-seven years in the Tennessee Department of Correction. On appeal, the Appellant contends that (1) the trial court erred by denying his motion to dismiss the indictment; (2) the trial court erred by granting the State’s motion to quash the Appellant’s subpoena duces tecum seeking “the District Attorney’s records concerning the time that [the Appellant’s] case was presented” to the grand jury; (3) the trial court erred by denying the Appellant’s request to review the victim’s mental health records; (4) the trial court erred by refusing to allow defense counsel to cross-examine the victim regarding her history of audio and visual hallucinations and her refusal to take medication to treat her condition; (5) the trial court erred by refusing to dismiss the case or give a Ferguson instruction based upon the State’s failure to preserve evidence that might play a significant role in the defense; (6) the State’s evidence was not sufficient to sustain his convictions; and (7) “the trial court erred by considering a prior charged offense during its deliberations as to sentencing even though the [Appellant] [pled] guilty to a lesser charge of aggravated assault and no factual basis surrounding the negotiated plea [was] entered into evidence.” Upon review, we find no reversible error and affirm the judgments of the trial court.

boydr_112020.pdf

STATE OF TENNESSEE v. DETERRIO HARRISON

Court: TN Court of Criminal Appeals

Attorneys:

J. Colin Morris, Jackson, Tennessee, for the appellant, Deterrio Harrison.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Jody Pickens, District Attorney General; and Bradley F. Champine, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WILLIAMS

The Defendant, Deterrio Harrison, appeals his conviction for aggravated robbery, for which he received a twelve-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support his conviction. Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgment of the trial court.

harrisond_112020.pdf

STATE OF TENNESSEE v. RAMELL MARTEZ JACKSON

Court: TN Court of Criminal Appeals

Attorneys:

John P. McNeil and Claiborne H. Ferguson (on appeal), Memphis, Tennessee, and Vicki L. Green (at trial), Millington, Tennessee, for the appellant, Ramell Martez Jackson.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Mark E. Davidson, District Attorney General; and James W. Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): EASTER

Ramell Martez Jackson, Defendant was convicted after a jury trial of theft of property, possession of drug paraphernalia, possession of marijuana with intent to deliver in a drug free zone, and possession of a firearm during the commission of a dangerous felony. Defendant received an effective sentence of five years. Defendant filed a motion for new trial which was denied by the trial court. After a thorough review of the record, we affirm the judgments of the trial court.

jacksonr_112020.pdf

STATE OF TENNESSEE v. EARL JEROME LEE, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Earl Jerome Lee, Jr., Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant Attorney General; Jody S. Pickens, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): THOMAS

The Appellant, Earl Jerome Lee, Jr., appeals as of right from the Madison County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. He contends that he is entitled to relief because his conviction for attempted felony escape was erroneously ordered to be served concurrently with his other sentences. Although we disagree with the trial court’s conclusion that this issue had been previously litigated, we nevertheless conclude that the Appellant fails to state a colorable claim for relief. Therefore, we affirm the judgment of the trial court.

leee_112020.pdf

STATE OF TENNESSEE v. PATRICK PHILLIPS

Court: TN Court of Criminal Appeals

Attorneys:

Monica A. Timmerman, Bartlett, Tennessee (on appeal) and Ralph T. Gibson, Memphis, Tennessee (at trial), for the appellant, Patrick Phillips.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Devon Lepeard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): DYER

A Shelby County jury convicted the defendant, Patrick Phillips, of rape of a child and aggravated sexual battery. Following a sentencing hearing, the trial court imposed an effective sentence of twenty-seven years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his convictions and argues the trial court erred in denying his motion for new trial based on the State’s failure to answer the defendant’s motion for a bill of particulars. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

phillipsp_112020.pdf

STATE OF TENNESSEE v. JASHUN YANCE ROBERTSON

Court: TN Court of Criminal Appeals

Attorneys:

A. Blake Neill, Somerville, Tennessee, for the appellant, Jashun Yance Robertson.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Mark E. Davidson, District Attorney General; and Raven Icaza, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

Defendant, Jashun Yance Robertson, appeals the Fayette County Circuit Court’s denial of his request for judicial diversion pursuant to Tennessee Code Annotated section 40-35- 313. Defendant contends that the trial court abused its discretion by relying on Defendant’s prior delinquent acts to deny diversion, when there was no proof regarding these acts in the record, and by failing to consider the “judicially recognized differences between juveniles and adults” in reaching its decision. Upon review, we affirm the judgments of the trial court.

robertsonj_112020.pdf

STATE OF TENNESSEE v. DEVIN ROGERS

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. McClusky (on appeal), and Juni S. Ganguli (at trial), Memphis, Tennessee, for the appellant, Devin Rogers.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kevin D. McAlpin and Meghan S. Fowler, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): THOMAS

The Defendant, Devin Rogers, appeals from his Shelby County Criminal Court convictions for aggravated robbery and aggravated burglary, for which he received an effective elevenyear sentence. On appeal, the Defendant contends that the evidence was insufficient to support his convictions, arguing that his co-defendant’s testimony was “wildly contradictory” to that of the victim. Following our review, we affirm.

rogersd_112020.pdf

RAYMOND WATISON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Raymond Watison, Clifton, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Ryan Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

Raymond Watison, Petitioner, filed a Petition for Writ of Error Coram Nobis (“the Petition”), claiming newly discovered evidence. The State moved to dismiss the Petition. The trial court found that the Petition failed to state a colorable claim and that it was not timely filed and summarily dismissed the Petition. We affirm.

watisonr_112020.pdf

ANTONIO WICKS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jason M. Matthews, Memphis, Tennessee, for the appellant, Antonio Wicks.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

A Shelby County jury convicted Petitioner, Antonio Wicks, of second degree murder in the death of the victim, Donald Miller, and the trial court sentenced Petitioner to 25 years’ incarceration as a Range I violent offender. This court affirmed Petitioner’s conviction on direct appeal. See State v. Antonio Wicks, No. W2011-00964-CCA-R3- CD, 2012 WL 1424717, at *1 (Tenn. Crim. App. Apr. 23, 2012), perm. app. denied (Tenn. Aug. 16, 2012). Petitioner filed a pro se post-conviction petition and four amended petitions following the appointment of counsel. Following a hearing, the postconviction court denied relief. Petitioner now appeals, claiming that he was denied the effective assistance of counsel because trial counsel failed to (1) move for a mistrial due to only having eleven jurors; (2) file a motion to dismiss the indictment pursuant to State v. Ferguson, 2 S.W.3d 912, 915-16 (Tenn. 1999); (3) cross-examine the State’s witness regarding the loss or destruction of potentially exculpatory evidence; (4) object to improper prosecutorial argument; and (5) raise in the motion for new trial and on direct appeal the failure to cross-examine a witness and improper prosecutorial argument. After a thorough review of the record and applicable case law, the judgment of the postconviction court is affirmed.

wicksa_112020.pdf

STATE OF TENNESSEE v. JOHN EDWARD WILSON, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Chelsea A. Curtis, Deputy Director Tennessee District Public Defenders Conference, Franklin, Tennessee (on appeal) and Brent Bradberry, Assistant District Public Defender, Dresden, Tennessee (at trial), for the appellant, John Edward Wilson, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Danny Goodman, Jr., District Attorney General; and Colin Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): DYER

The defendant, John Edward Wilson, Jr., pled guilty to aggravated burglary and indecent exposure for which he received an effective sentence of five years’ confinement. The defendant appeals the trial court’s denial of diversion and other forms of alternative sentencing, claiming the trial court erred in failing to properly analyze the diversion factors and failing to apply the correct legal standard when ordering confinement rather than probation. The State contends the defendant failed to show he was a favorable candidate for diversion, and the trial court properly exercised its discretion in ordering confinement. Upon our review of the applicable law, the record, and the arguments of the parties, we reverse the decision of the trial court and remand the matter for a new sentencing hearing consistent with this opinion.

wilsonj_112020.pdf

 

UNITED STATES OF AMERICA v. MICHAEL JONES

Head Comment: COOK delivered a separate opinion concurring in the judgment.

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Matthew Ahn, FEDERAL PUBLIC DEFENDER’S OFFICE, Toledo, Ohio, for Appellant.

ON BRIEF: Alissa M. Sterling, UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for Appellee.

Judge(s): MOORE, COOK, and STRANCH, Circuit Judges

Court Appealed: United States District Court for the Northern District of Ohio at Toledo

KAREN NELSON MOORE, Circuit Judge. The “compassionate release” provision of 18 U.S.C. § 3582 allows district courts to reduce the sentences of incarcerated persons in “extraordinary and compelling” circumstances. 18 U.S.C. § 3582(c)(1)(A). For over three decades, § 3582(c)(1)(A) allowed only the Bureau of Prisons (“BOP”) to file motions for compassionate release. Because the BOP rarely did so, few compassionate release cases reached the federal courts. This drought of compassion concluded in 2020, when the forces of law and nature collided. The First Step Act of 2018’s provision allowing incarcerated persons to file their own § 3582(c)(1)(A) motions coupled with COVID-19’s pernicious presence in federal prisons triggered a massive upswing in imprisoned persons seeking compassionate release; 10,940 persons applied for compassionate release in the first three months of the pandemic alone. Michael Jones is one of these legion petitioners. Jones is serving a ten-year sentence at Federal Correctional Institution Elkton, where one out of every four imprisoned persons has tested positive for COVID-19. In his § 3582(c)(1)(A) motion, Jones’s medical ailments—which expose him to COVID-19-related health complications—comprise the crux of his request for a sentence reduction.

Here, the district court found for the sake of argument that an extraordinary and compelling circumstance existed in Jones’s case but that the § 3553(a) factors counseled against granting compassionate release. The district judge, however, did not refer to U.S.S.G. § 1B1.13 in rendering its extraordinary-and-compelling finding. Because Jones—not the BOP—filed a motion for compassionate release, the district court did not need to refer to § 1B1.13 in its decision. Further, the district court satisfied its obligation to explain its consideration of the § 3553(a) factors. Thus, we AFFIRM.

jonesm_112020.pdf

 

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.

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