Revised judicial election plan wins Senate support

The Senate today completed action on a revised judicial election plan that preserves merit selection, performance evaluation and retention elections. The action came on a 21-10 vote to "concur" with a House-adopted amendment to remove a provision from the bill that would have allowed the governor to "reach down," beyond the two panels of three candidates submitted to him, to any candidate who applied for commission consideration.

Major features of the bill include:
-- creation of a new 17-member judicial nominating commission appointed by the two speakers with a minimum of 10 and a maximum of 14 lawyers.
-- continuation of retention elections for Supreme Court and intermediate appellate court judges, with new language asking voters if they wish to retain or replace judges.
-- establishment of a newly-restructured judicial performance evaluation commission to evaluate appellate judges.

The plan will go into effect July 1. The bodies that administer the plan will sunset on June 30, 2012.
TODAY'S OPINIONS
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GENERAL MOTORS CORPORATION v. WEISLEY FRAZIER ET AL.

Court: TWCA

Attorneys:

J. Anthony Arena, Brentwood, Tennessee, for the appellant, Weisley Frazier.

Nathaniel K. Cherry, Nashville, Tennessee, for the appellee, General Motors Corporation. Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Diane Dycus, Deputy Attorney General; and Amy T. McConnell, Assistant Attorney General, for the appellee, the Second Injury Fund.

Judge: CHILDRESS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee injured his back and knees at work. While he was receiving medical treatment, Employee offered a special retirement incentive package to decrease its workforce. Employee chose to accept this plan and retired while he was still receiving medical treatment. At trial, he contended that he was permanently and totally disabled. The trial court found that he was not permanently and totally disabled. The trial court also found that Employee's recovery was limited to one and one-half times his anatomical impairment. Employee has appealed, and on appeal, Employee asserts that the trial court erred in finding that he was not permanently and totally disabled. In the alternative, he asserts that the trial court erred in applying the one and one-half times "cap." We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/gmc_061209.pdf


DAVID HIX v. TRW, INC. ET AL.

Court: TWCA

Attorneys:

Richard Lane Moore, Cookeville, Tennessee, for the appellants, TRW, Inc., TRW Automotive U. S., LLC, and American Home Assurance Company.

Hugh Green and John Meadows, Lebanon, Tennessee, for the appellee, David Hix.

Judge: KOCH

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. Section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. An employee sustained a work- related repetitive exposure hearing loss injury. After he retired for reasons unrelated to the injury, he filed suit in the Criminal Court for Wilson County seeking workers' compensation benefits. Following a bench trial, the trial court (1) determined that the injury should be assigned to the scheduled member (hearing) rather than to the body as a whole, (2) awarded 50% permanent partial disability to that member, and (3) set the date of injury as the date that the employee first gave notice to the employer of the injury. The employer appealed arguing that injury should have been assigned to the body as a whole and that the award was excessive. While disagreeing as to the proper date, both the employer and employee argue that the trial court erred in setting the date of injury. We affirm the trial court's decision to assign the award to the scheduled member (hearing). However, we find that the award was excessive and modify it to 5% permanent partial disability to the hearing of both ears. We have also determined that the trial court erred with regard to its determination of the date of the injury.

http://www.tba2.org/tba_files/TSC_WCP/2009/hixd_061209.pdf


STATE OF TENNESSEE v. CHARLES EDWARD CLAYBROOKS, JR.

Court: TCCA

Attorneys:

David G. Hirshberg, Nashville, Tennessee, for the appellant, Charles Edward Claybrooks, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Renee Erb, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Davidson County Grand Jury indicted Appellant, Charles Edward Claybrooks, Jr., for three counts of aggravated robbery and two counts of aggravated assault based upon an incident that occurred at The Athlete's Foot store on July 31, 2005. After a jury trial, Appellant was convicted of all counts. The trial court sentenced Appellant to an effective sentence of sixty years. Appellant now appeals arguing that the evidence was insufficient to support his conviction and that the trial court erred in imposing such lengthy and consecutive sentences. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/claybrooksc_061209.pdf


RONALD FIELDING v. STATE OF TENNESSEE
CORRECTION: Dissenting opinion added


Court: TCCA

Attorneys:

Paula Ogle Blair, Nashville, Tennessee, attorney for appellant, Ronald Fielding.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Ronald Fielding, appeals as of right the Davidson County Criminal Court's denial of his petition for post-conviction relief challenging his convictions for three counts of rape of a child, two counts of aggravated sexual battery and one count of rape for which he received an effective fifty-year sentence to be served in the custody of the Department of Correction. On appeal, he alleges that his guilty plea was involuntary and that both trial and appellate counsel were ineffective. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/fieldingr_061009.pdf

TIPTON Dissenting
http://www.tba2.org/tba_files/TCCA/2009/fieldingr_diss_061109.pdf


STATE OF TENNESSEE v. CORA NEUMA FIERBAUGH

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mitchell T. Harper, Knoxville, Tennessee (at trial), for the appellant, Cora Neuma Fierbaugh.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James B. Dunn, District Attorney General; and Emily Faye Abbott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Cora Neuma Fierbaugh, pled guilty to reckless endangerment, a Class E felony, evading arrest, a Class E felony, driving on a suspended license, a Class B misdemeanor, leaving the scene of an accident, a Class C misdemeanor, and violation of the registration law, a Class C misdemeanor. The trial court denied judicial diversion and imposed two-year sentences for the felony convictions, a six-month sentence for the Class B misdemeanor conviction, and thirty-day sentences for the Class C misdemeanor convictions. The sentences were imposed to run concurrently, for an effective two-year sentence, which the trial court ordered to be served with sixty days in jail and the balance on probation. In this appeal, the defendant raises two issues: (1) whether the trial court erred by denying the defendant's application for judicial diversion and (2) whether the trial court erred by imposing confinement. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/firebaughc_061209.pdf


STATE OF TENNESSEE v. CHARLES W. GEE

Court: TCCA

Attorneys:

Charles G. Currier, Knoxville, Tennessee, for the appellant, Charles W. Gee.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Andrew Freiberg and James H. Stutts, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Charles W. Gee, appeals from his Monroe County Criminal Court convictions of fraudulently submitting an insurance claim of $60,000 or more, see T.C.A. Section 39-14-133 (2003), arson, see id. Section 39-14-301(a)(2), and conspiracy to commit arson, see id. Subsection 39-12-103, 39-14-301(a)(2). He argues that the trial court erroneously failed to give a jury instruction expressing disfavor toward unrecorded extrajudicial confessions. Further, he argues that his eight-year effective sentence was excessive and that the trial court erred in considering the defendant's lack of remorse in determining that he was not amenable to rehabilitation. Upon review of the record, we find that the defendant has waived his jury instruction issue and that the trial court appropriately sentenced the defendant. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/geec_061209.pdf


STATE OF TENNESSEE v. JOSEPH GUNTER

Court: TCCA

Attorneys:

Martha J. Yoakum, District Public Defender; Leif E. Jeffers, Assistant Public Defender, Jackson, Tennessee (at trial) and Kevin R. Bryant, Crossville, Tennessee (on appeal), for the defendantappellant, Joseph Gunter.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Deputy District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Joseph Gunter ("Gunter"), was convicted by a Fentress County jury of first degree felony murder and especially aggravated robbery, a Class A felony. He received a life sentence without parole for the first degree felony murder conviction and a twenty-year sentence for the aggravated robbery conviction to be served concurrently in the Tennessee Department of Correction. On appeal, Gunter argues: (1) he was denied a fair trial because of misconduct by two different jurors, (2) he was denied a fair trial because of the trial court's rulings on certain evidentiary issues and because of the trial court's negative comments during the trial, (3) he was denied due process because of the State's failure to disclose and preserve new and potentially exculpatory evidence, (4) he was denied due process because of the State's failure to test the murder weapon and other items for fingerprints, and (5) he was denied a fair trial because of the cumulative effect of the errors in this case. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/gunterj_061209.pdf


MARK EDWARD HARRIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; Joe Harrison, Assistant Public Defender (at trial); and Mark Edward Harris, pro se (on appeal).

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Janine Myatt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Mark Edward Harris, appeals from the Sullivan County Criminal Court's denial of his "Motion to Correct Illegal Sentence," the substance of which is that the trial court, upon revocation of the petitioner's probation, failed to award him credit for time served in the court's revocation and confinement order. Because the trial court determined that it awarded the defendant credit for all time served, it dismissed the motion. We dismiss the appeal from the order of the criminal court.

http://www.tba2.org/tba_files/TCCA/2009/harrism_061209.pdf


STATE OF TENNESSEE v. MICHAEL BRUCE MCCLOUD

Court: TCCA

Attorneys:

Mark E. Stephens, District Public Defender, and Christy Murray, Assistant District Public Defender, for the appellant, Michael Bruce McCloud.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Sarah Winningham and Leon Franks, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

A Knox County Criminal Court jury convicted the defendant, Michael Bruce McCloud, of driving under the influence, second offense, and the trial court imposed a sentence of 11 months and 29 days. In this appeal, the defendant asserts that the trial court erred by denying his motion to dismiss, that the trial court erred by denying his motion to exclude the blood alcohol test results as violative of Tennessee Code Annotated section 55-10-406, that the court erred in denying his bid to exclude the testimony of a police officer who opined about "occupant kinetics" inside a vehicle, that the trial court erred by limiting his cross-examination of a State's witness, and that the evidence was insufficient to support his conviction. Discerning no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mccloudm_061209.pdf


GREGORY D. MCDANIEL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory D. McDaniel, Pro se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

The petitioner appeals the summary dismissal of his petition for post-conviction relief. The petitioner asserts that he received ineffective assistance of counsel at his probation revocation proceedings. Upon review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/mcdanielg_061209.pdf


DENNIS WAYNE MERRIWEATHER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dennis Wayne Merriweather, Pro Se, Only, Tennessee.

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

Judge: SMITH

Appellant, Dennis Wayne Merriweather, filed a petition for the writ of habeas corpus in which he alleged that his fifteen year sentence for selling controlled substances within 1,000 feet of a school renders the judgment imposed as a result of his guilty plea void because the judgment provides the sentence is to be served at 100%. Because we find the judgment is not void, we hold the habeas court properly dismissed the habeas corpus petition. Accordingly, the judgment of the lower court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/merriweather_061209.pdf


STATE OF TENNESSEE v. JOHN ALLEN MURPHY, JR.

Court: TCCA

Attorneys:

Michael J. Flanagan (on appeal) and Daniel D. Warlick (at trial), Nashville, Tennessee, for the appellant, John Allen Murphy, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, John Allen Murphy, Jr., was convicted by a Davidson County jury of assault, a Class A misdemeanor, and resisting arrest, a Class B misdemeanor. At the conclusion of the sentencing hearing, the trial court sentenced him as a Range I, standard offender to consecutive terms of eleven months, twenty-nine days for the assault conviction and six months for the resisting arrest conviction, with the sentences suspended and the defendant placed on probation and ordered to attend a fifty-two-week dual substance abuse/anger management course. On appeal, the defendant challenges the sufficiency of the evidence for both convictions and argues that the trial court erred by denying his motion to sever the offenses, not instructing the jury on self-defense, and ordering consecutive sentencing. Following our review, we conclude that the evidence was sufficient to sustain the convictions but that the trial court erred by not instructing the jury on self-defense, by imposing consecutive sentencing, and by denying the defendant's motion to sever the offenses. We further conclude that the failure to sever the offenses constituted reversible error. Accordingly, we reverse the defendant's convictions and remand for separate trials for each offense.

http://www.tba2.org/tba_files/TCCA/2009/murphyj_061209.pdf


TINA M. SWEAT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick G. Frogge, Nashville, Tennessee, for the appellant, Tina M. Sweat.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Albert C. Schmutzer, Jr., District Attorney General Pro Tempore, for the appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Tina M. Sweat, appeals the January 2008 order of the Putnam County Criminal Court setting aside as void a January 2006 order of that same court granting her post-conviction relief from her convictions on two counts of possession of a Schedule II controlled substance with intent to sell, Class C felonies, and one count of assault, a Class A misdemeanor. On appeal, the petitioner argues that (1) the court below was without jurisdiction to consider the State's motion to set aside the order granting post-conviction relief and (2) even if jurisdiction was proper, the trial court erred by granting the State's motion because the order granting post-conviction relief was facially valid and therefore not void. After reviewing the record, we conclude that the post-conviction court's January 2006 order was facially valid; because the order was not void, the court below was without jurisdiction to issue its January 2008 order vacating the post-conviction court's order granting relief. Accordingly, that order was void. We therefore reverse the judgment of the trial court and reinstate the post-conviction court's January 2006 order, as well as all relief granted pursuant to the order.

http://www.tba2.org/tba_files/TCCA/2009/sweatt_061209.pdf


KENNETH WAGGONER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kenneth Waggoner, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Kenneth Waggoner, appeals as of right the Davidson County Criminal Court's summary dismissal of his petition for post-conviction relief from his guilty plea to possession for resale of .5 grams or more of cocaine, a Class B felony, and resulting sentence of ten years in the custody of the Department of Correction. The petitioner alleges that his guilty plea was involuntary due to the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition without the appointment of counsel based upon its finding that the petitioner failed to present claims which would entitle him to post-conviction relief. On appeal, the petitioner argues that he is entitled to post-conviction relief. The State concedes that the petition states a claim for relief and urges this court to remand the case for appointment of counsel and an evidentiary hearing. Following our review, we agree with the State. Accordingly, we reverse the judgment of the post- conviction court summarily dismissing the petition for post-conviction relief and remand the case to the post-conviction court for the appointment of counsel and an evidentiary hearing.

http://www.tba2.org/tba_files/TCCA/2009/waggonerk_061209.pdf


STATE OF TENNESSEE v. DONALD BRADLEY WILLIAMS

Court: TCCA

Attorneys:

Jeremy W. Parham, Nashville, Tennessee, for the appellant, Donald Bradley Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Finley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, Donald Bradley Williams, pled guilty to one count of evading arrest while operating a motor vehicle, a Class E felony, and one count of joyriding, a Class A misdemeanor. The parties agreed to a six year sentence on the felony evading arrest conviction and an eleven month and twenty-nine day sentence on the joyriding conviction, to be served concurrently. At sentencing the trial court found that the sentences should be served consecutively to a previous sentence for which he was incarcerated. The defendant challenges the consecutive sentencing in this appeal. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/williamsd_061209.pdf


TODAY'S NEWS

Legal News
Legislative News
Passages
Practice Management
TBA Member Services

Legal News
Bredesen names daughter to replace father as judge
Gov. Phil Bredesen today named Amy V. Hollars to replace her father, John A. Turnbull, as a Circuit Court judge in Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White counties.
Read more from the Knoxville News Sentinel
Court considers revised MJP proposal, adopts 2 other rules
The Tennessee Supreme Court today published for comment revisions to last summer's TBA proposal to provide for multijurisdictional practice. The proposal includes a registration process for in house or corporate counsel for limited permission to practice for their employer, and permission for registered corporate counsel to do pro bono work. The deadline for commenting on the proposal is Aug. 10.

In other action, the court changed the effective date for the new foreign law student admission provision until August 1 and adopted a new Tennessee Supreme Court Rule 48, permitting the Supreme Court to take on jurisdiction in certain undecided cases.

Late Judge Hestle honored with portrait, ceremony
Attorneys, judges, court clerks, family and friends of the late Judge Jack Hestle packed his old court room in the Montgomery County Court Complex Thursday to honor the memory and legacy he left behind. A portrait was hidden behind a black veil, as members of the Montgomery County Bar Association spoke about a man they called, a kind, gracious "champion of law" who was a dear friend, mentor, former District Attorney and General Sessions judge.
Read more in the Clarksville Leaf Chronicle
Nashville School of Law recognizes pair's accomplishments
The Nashville School of Law will honor Deputy District Attorney Thomas B. Thurman and Nashville attorney John W. Lewis at its 16th annual Recognition Dinner tonight. In addition to recognizing the career achievements of the honorees, this annual event allows alumni to reconnect with classmates and professors.
See photos of honorees and others from NSL Patron Party
Legislative News
Senate committee restores Court of Judiciary funding
The Senate Finance Committee today adopted an amendment to the appropriations bill reversing an earlier recommendation that funding for the Court of the Judiciary, which enforces the Code of Judicial Conduct, be reduced by more than 80 percent from $272,000 to $69,000. Court of the Judiciary Presiding Judge Don Ash said the cut would have meant that the body would not have been able to open any new investigations next year. The Senate committee action still eliminates $1 million in indigent defense funding and $400,000 for judges salaries and benefits.

Passages
Nashville lawyer dies
Nashville lawyer Jimmy A. Duncan, 74, died May 28 after a battle with cancer. Funeral services were held May 31 at Brook Hollow Baptist Church, with interment at the Middle Tennessee State Veterans Cemetery on June 1. Duncan graduated from the YMCA Night Law School in 1975. He is survived by a number of family members, including a son Jad, who is also an attorney in solo practice in Nashville.

Practice Management
Frost Brown Todd launches apprentice program
Frost Brown Todd plans to start its first year employees as apprentices, who will spend their first 1,000 hours learning on the job at lower pay and under stricter scrutiny. The Louisville-based firm with offices in Nashville and several other Southern and Midwestern cities, developed the apprentice strategy as an alternative to rescinding offers and deferring start dates.
Read more about the program in the ABA's Online Journal
TBA Member Services
Save at FedEx Kinkos
Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
Find out more

 
 
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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.

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