AG: Fines for suspended judges are unconstitutional

The state attorney general says that the Court of the Judiciary would not have the authority to order suspended judges to pay for their replacements or assess fines of up to $25,000 -- even if legislation were passed to allow such actions. In an opinion issued yesterday, the AG said such actions would be unconstitutional because they would cause judicial compensation not to "be ascertained by law" as required by the Tennessee Constitution.

Download the attorney general's opinion

TODAY'S OPINIONS
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THOMAS E. BLAKE v. NISSAN NORTH AMERICA, INC., ET AL.

Court: TWCA

Attorneys:

T. Franklin Gilley, III, Murfreesboro, Tennessee, for the appellant(s), Nissan North America, Inc. and Ace Insurance Company.

David H. Dunaway, LaFollette, Tennessee, for the appellee, Thomas E. Blake.

Judge: KURTZ

The employee sustained a compensable injury to his right arm. After surgery and recovery, he returned to work for the same employer at the same rate of pay. Over a year later, his work week was reduced from forty to thirty-two hours per week as part of a plant-wide reduction in hours due to economic conditions. While working the reduced number of hours, he accepted a buyout offer and voluntarily resigned. Subsequently, his workers' compensation case was tried. The trial court held that he did not have a meaningful return to work because of the reduction in work hours and made an award of more than one and one-half times the impairment. The employer has appealed, contending that employee had a meaningful return to work in spite of the plant-wide reduction of work hours carried out for the purpose of preventing layoffs. We agree that the reduction in force, under these facts, does not impair the determination that the employee had a meaningful return to work, and we modify the judgment accordingly.

http://www.tba2.org/tba_files/TSC_WCP/2010/blaket_111010.pdf


WILLIAM W. GRIFFIN v. WALKER DIE CASTING, INC., ET AL.

Court: TWCA

Attorneys:

Christen C. Blackburn, Nashville, Tennessee, for the appellants, Walker Die Casting, Inc. and Liberty Mutual Insurance Company.

John R. White, Shelbyville, Tennessee, for the appellee, William W. Griffin.

Judge: BLACKWOOD

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sought to compel the employer to provide a total left knee replacement surgery based upon court-approved settlement for a work-related left knee contusion. The trial court ordered the employer to provide the knee replacement surgery and awarded attorney's fees to the employee. The employer has appealed, arguing that the trial court erred by finding that the proposed surgery was causally related to the work injury. We agree and reverse the trial court's order.

http://www.tba2.org/tba_files/TSC_WCP/2010/griffinw_111010.pdf


CAROL L. BRANDON v. WILLIAMSON MEDICAL CENTER, ET AL.

Court: TCA

Attorneys:

Robert L. Green, Al H. Thomas, Memphis, Tennessee, for the appellant, Carol L. Brandon.

Bryan Essary, Heather Piper-Coke, Nashville, Tennessee, for the appellee, Williamson Medical Center.

Phillip North, Renee Levay Stewart, Judith Ragan, Nashville, Tennessee, for the appellee, Bernard L. Burgess, Jr., M.D.

E. Reynolds Davies, Jr., John T. Reese, Nashville, Tennessee, for the appellee, Eugene B. Arnett, III, M.D.

Judge: HIGHERS

Plaintiff timely filed a complaint for medical malpractice, but failed to file a certificate of good faith within ninety days as required. Defendants filed a motion to dismiss, and Plaintiff subsequently filed a motion for enlargement pursuant to Rule 6.02 and a proposed certificate of good faith. The trial court granted Defendants' motion, finding Plaintiff had failed to demonstrate "good cause" for failing to file the required certificate. Because we find that Plaintiff has failed to demonstrate either "good cause" or "excusable neglect," we affirm the trial court's dismissal of Plaintiff's complaint.

http://www.tba2.org/tba_files/TCA/2010/brandonc_111010.pdf


JENNIFER BONNER GIVENS, ET AL. v. MARK S. JOSOVITZ, ET AL.

Court: TCA

Attorneys:

William Kennerly Burger, Murfreesboro, Tennessee, for the appellants, Jennifer Bonner Givens, Donald Bonner, and Michelle Bonner.

J. Eric Miles, Phillip North, Nashville, Tennessee, for the appellee, Mark S. Josovitz, M.D.

John T. Reese, E. Reynolds Davies, Jr., Nashville, Tennessee, for the appellee, Tanzania M. Dooley, M.D.

Judge: HIGHERS

After an elevated PSA test in October 2000, Dr. Josovitz referred Decedent to a urologist. After an even higher PSA level on retest, the urologist performed a biopsy, which was benign. Despite being informed of his need for additional PSA testing, Decedent did not return to the urologist, and, despite routinely seeing Decedent for other health issues, Dr. Josovitz did not again discuss the need for repeat testing with Decedent until 2004. In May 2004, Decedent was diagnosed with advanced prostate cancer, and he died in September 2005. Plaintiffs' expert testified that Decedent's prostate cancer must have been diagnosed by December 2001 in order for Decedent to survive. However, it is undisputed that the Defendants had no knowledge of his prostate cancer by that time. Plaintiffs filed suit in this case beyond the three-year statute of repose for medical malpractice. Because they are unable to prove Defendants had knowledge of Decedent's prostate cancer, fraudulent concealment is unavailable to toll the statute of repose. Accordingly, we find that Plaintiffs' wrongful death claim is barred by the statute of repose and further that Plaintiffs are not entitled to recover damages for pain and suffering. Summary judgment is granted to Defendants, and the trial court's dismissal of Plaintiffs' claim is affirmed.

http://www.tba2.org/tba_files/TCA/2010/givensj_111010.pdf


INTERNATIONAL MARKET AND RESTAURANT, INC. ET AL. v. BELMONT UNIVERSITY ET AL.

Court: TCA

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the appellants, International Market and Restaurant, Inc. and Patti K. Myint, d/b/a P.M. Cafe.

Charles Ingram Malone and Lauren Brittain Patten, Nashville, Tennessee, for the appellee, Belmont University.

Cynthia Ellen Gross, James Earl Robinson, and Philip Daniel Baltz, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: BENNETT

International Market and Restaurant, Inc. and Patti Myint, owner of the P.M. Cafe, sued the Belmont University and the Metropolitan Government because representatives of Belmont and the United States Secret Service informed the plaintiffs that the streets and sidewalks around plaintiffs' establishments would be closed for security purposes the evening of the Presidential debate at Belmont pursuant to a plan developed by the Secret Service. The plaintiffs closed the businesses that evening; however, the sidewalks were not closed. The plaintiffs claim that they lost revenue by closing and seek compensation based on negligent representation, constructive fraud and breach of the indemnity agreement between Belmont and Metro. The trial court granted Belmont's motion for summary judgment and Metro's motion to dismiss. Plaintiffs appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2010/internationalmarket_111010.pdf


TERRANCE LOWDERMILK v. TENNESSEE DEPARTMENT OF SAFETY

Court: TCA

Attorneys:

Terrance Lowdermilk, Loretto, Pennsylvania, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Troy A. McPeak, Assistant Attorney General, for the appellee, Tennessee Department of Safety.

Judge: CLEMENT

Petitioner filed this petition for judicial review in 2009 to challenge the propriety of the seizure of $5,518 in cash following the Tennessee Bureau of Investigation executing a search warrant on Petitioner's residence in May of 2001. A notice of seizure was served on Petitioner; also a forfeiture warrant was issued and mailed to Petitioner at his residence. The Department of Safety subsequently entered a final administrative order forfeiting the money. When Petitioner filed this action almost eight years later, the trial court dismissed the petition on the ground that it lacked subject matter jurisdiction because the petition was not timely filed. The trial court dismissed the action. We affirm.

http://www.tba2.org/tba_files/TCA/2010/lowdermilkt_111010.pdf


KEVIN MILLEN v. SHELBY COUNTY SHERIFF'S OFFICE

Court: TCA

Attorneys:

Kevin Millen, Memphis, Tennessee, pro se.

Lisa LaVigne Kelly, Eugene C. Gaerig, Memphis, Tennessee, for the appellee, Shelby County Sheriff's Office.

Judge: HARRIS

After unsuccessfully appealing his worker's compensation lawsuit, Appellant was assessed appellate court costs. A Fieri Facias/Writ of Execution was executed, and Appellant's car was attached and sold at a sheriff's sale. Appellant then filed a lawsuit against the Sheriff's Office claiming he had been carjacked. The trial court dismissed Appellant's complaint and we affirm.

http://www.tba2.org/tba_files/TCA/2010/millenk_111010.pdf


IN RE: PAULINE M., STEPHANIE M., AND RACHAEL M.

Court: TCA

Attorneys:

T. Wood Smith, Greeneville, Tennessee, for the appellant, Stephen M.

Sandra Lee Stanbery-Foster, Greeneville, Tennessee, for the appellant, Brenda M.

Robert E. Cooper, Jr., Attorney General and Reporter; and Michael E. Moore, Solicitor General; Elizabeth C. Driver, Senior Counsel, for appellee, State of Tennessee, Department of Children's Services.

Judge: STAFFORD

This is a termination of parental rights case. The trial court terminated both parents' rights to the children on grounds of: (1) abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. section 36-1-102(1)(A)(ii); and (2)persistence of conditions as set out at Tenn. Code Ann. section 36-1-113(g)(3). The trial court also terminated Father's parental rights on the additional ground of abandonment by failure to support pursuant to Tenn. Code Ann. section 36-102(1)(A)(i), and Mother's parental rights on the additional ground of mental incompetence pursuant to Tenn. Code Ann. section 36-1-113(g)(8)(B). Finding clear and convincing evidence in the record to support each of these grounds, as well as clear and convincing evidence that termination of Mother's and Father's parental rights is in the best interests of the children, we affirm.

http://www.tba2.org/tba_files/TCA/2010/paulinem_111010.pdf


ANNE S. PHILLIPS v. ANDERSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

David A. Stuart, Clinton, Tennessee, for the appellant, Anne S. Phillips.

Arthur F. Knight, Knoxville, Tennessee, for the appellee, Anderson County, Tennessee.

Judge: MCCLARTY

This appeal involves a retaliatory discharge claim. Employee claims that she was discharged after reporting her supervisor's unlawful activities. Employer denied that employee was discharged, claimed that she quit, and demonstrated that the State terminated the grant funding the program overseen by employee. A jury trial commenced, and at the close of all proof, employer moved for a directed verdict. The trial court granted the motion for directed verdict and found that employee failed to prove a causal link between her discharge and her decision to engage in a protected activity. Employee appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/phillipsa_111010.pdf


REGIONS BANK, SUCCESSOR-IN-INTEREST TO UNION PLANTERS BANK v. LOST COVE CABINS AND CAMPGROUNDS, INC. ET AL.

Court: TCA

Attorneys:

Granville Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellants, Lost Cove Cabins and Campgrounds, Inc., J. Darin Lance, and JDL Properties, Inc.

Joseph Robert Prochaska, Nashville, Tennessee, for the appellee, Regions Bank, Successor-in-Interest to Union Planters Bank.

Judge: BENNETT

The trial court entered judgment against the borrowers and guarantors on two promissory notes. On appeal, the defendants argue that the trial court erred in striking their jury demand and that they are entitled to relief under an alleged written commitment for permanent financing or under various equitable theories. We find the defendants' arguments to be without merit and affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2010/regionsbank_111010.pdf


WADE PHELPS/PHELPS HARRINGTON CONSTRUCTION CO., INC. v. C & C CONSTRUCTION CO., LLC, ET AL.

Court: TCA

Attorneys:

Dan R. Alexander, Nashville, Tennessee, for the appellant, Wade Phelps.

Richard Manson, John Richard Manson, Isaac I. Conner, Nashville, Tennessee, for the appellee, Joseph L. Angus.

Judge: HIGHERS

Contractor agreed to build duplex for property owner, with plaintiff providing construction financing. At closing, contractor was paid, but contractor did not pay plaintiff as agreed. Plaintiff sued property owner, contractor, and bank. We previously affirmed the trial court's grant of summary judgment to the bank, finding that contractor and plaintiff were in a joint venture, such that payment to contractor was payment to plaintiff. Property owner then moved for summary judgment, which the trial court granted. Because we find no separate agreement between property owner and plaintiff requiring repayment directly to plaintiff, plaintiff's cause of action against property owner is precluded, and the trial court's grant of summary judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2010/wadephelps_111010.pdf


PHILLIP LOWELL BLEDSOE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Barbara Hobock and Cynthia Chandler-Snell, Humboldt, Tennessee, for the Petitioner-Appellant, Phillip Lowell Bledsoe.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Phillip Lowell Bledsoe, appeals from the Gibson County Circuit Court's denial of post-conviction relief from his conviction for first degree premeditated murder. In his appeal, the Petitioner argues that he received ineffective assistance of counsel because trial counsel failed to pursue potentially exculpatory evidence; failed to impeach a detective's credibility based on his police misconduct in a different case; failed to object to numerous references to the Petitioner's gang membership; and failed to file a motion in limine, make an objection, or request a limiting instruction regarding references to a polygraph examination. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/bledsoep_111010.pdf


PHILANDER BUTLER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Philander Butler, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Nicole Germain, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Philander Butler, pro se, appeals the summary dismissal of his petition for post-conviction relief for being filed after the statute of limitations had expired. On appeal, he argues that the post-conviction court erred in dismissing his petition before appointing counsel and conducting a hearing to determine the merits of his petition. After review, we affirm the summary dismissal of the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2010/butlerp_111010.pdf


VICTOR L. DOBBINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Christopher Coates, Nashville, Tennessee, for the appellant, Victor L. Dobbins.

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

Judge: WELLES

Following a bench trial, the Petitioner, Victor L. Dobbins, was found guilty of being a convicted felon in possession of a handgun, a Class E felony. See Tenn. Code Ann. section 39-17- 1307(b)(2). This Court affirmed his conviction on direct appeal. State v. Victor L. Dobbins, No. M2007-01751-CCA-R3-CD, 2008 WL 2648951 (Tenn. Crim. App., Nashville, July 3, 2008), perm. to appeal denied, (Tenn. Dec. 22, 2008). The Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner contends that the post-conviction court erred in denying him relief because: (1) trial counsel failed to properly investigate his case and (2) the cumulative effect of trial counsel's errors entitles him to a new trial. After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2010/dobbinsv_111010.pdf


STATE OF TENNESSEE v. AUBREY TREMAINE EISOM AND CEDRIC MOSES

Court: TCCA

Attorneys:

Ralph Lawson, Dyersburg, Tennessee, for the appellant, Aubrey Tremaine Eisom.

Noel H. Riley, II, Dyersburg, Tennessee, for the appellant, Cedric Moses.

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

Judge: WITT

A Dyer County Circuit Court jury convicted the defendant, Aubrey Tremaine Eisom, of two counts of first degree felony murder and one count of especially aggravated robbery and convicted the defendant, Cedric Moses, of two counts of the facilitation of first degree felony murder and one count of especially aggravated robbery. The trial court sentenced Mr. Eisom to consecutive sentences of life imprisonment for both of the felony murder convictions and a consecutive sentence of 40 years' incarceration for the especially aggravated robbery conviction. The trial court sentenced Mr. Moses to 25 years' incarceration for each of his three convictions and ordered the sentences to be served concurrently, for a total effective sentence of 25 years. In this appeal, Mr. Eisom contends that the trial court erred by denying his motion for a bill of particulars, that the trial court erred by denying his motion to sever his trial from that of Mr. Moses, that the trial court erred by prohibiting him from presenting a "third party defense," and that the evidence was insufficient to support his convictions. Mr. Moses also challenges the sufficiency of the convicting evidence, claiming that the State failed to sufficiently corroborate the testimony of accomplice Ewan Dewayne Anthony. Mr. Moses additionally asserts that the trial court erred by refusing to sever his trial from that of Mr. Eisom and that his sentence is excessive. Discerning no error in the judgments of the trial court in Mr. Eisom's case, we affirm Mr. Eisom's convictions and the accompanying sentence. Because the State failed to produce sufficient evidence to corroborate the accomplice testimony relative to Mr. Moses' involvement in the crimes, we reverse Mr. Moses' convictions and dismiss the charges against him.

http://www.tba2.org/tba_files/TCCA/2010/eisoma_111010.pdf


STATE OF TENNESSEE v. ELLIOT FULLILOVE

Court: TCCA

Attorneys:

Juni Ganguli and Ruchee Patel, Memphis, Tennessee, for the appellant, Elliot Fullilove.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Nicole Germain and Kate Edmandss, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Elliot Fullilove, was convicted of first degree (felony) murder and especially aggravated robbery, a Class A felony. He was sentenced to concurrent life sentences. On appeal, he argues that the evidence was insufficient to support his convictions and that the trial court erred in denying his motion to suppress a statement he made to the police, in admitting hearsay, and in admitting a crime scene photograph. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/fullilovee_111010.pdf


STATE OF TENNESSEE v. JIMMY L. GLADDEN, JR.

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender and Timothy Boxx, Assistant Public Defender, Dyersburg, Tennessee, for appellant, Jimmy L. Gladden, Jr.

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

Judge: MCLIN

The defendant Jimmy L. Gladden Jr., appeals from the revocation of his community corrections sentence, claiming that the trial court erred by ordering that he serve his sentence in confinement. The state has filed a motion requesting that this court affirm the trial court's judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. We conclude that the state's motion is meritorious. Accordingly, we grant the state's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/gladdenj_111010.pdf


RICK D. HANEBUTT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Matthew M. Maddox, Huntingdon, Tennessee, for the appellant, Rick D. Hanebutt.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Hansel McCadams, District Attorney General; and Beth Hall, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Rick D. Hanebutt, appeals the Carroll County Circuit Court's denial of his petition for post-conviction relief. The petitioner is currently serving concurrent sentences of life and twenty years for his convictions for first degree murder and attempted first degree murder. On appeal, the petitioner contends that the trial court erred in: (1) denying his motion to continue the post-conviction hearing; and (2) denying his petition for post-conviction relief. He contends that the court erred in denying relief because he claims he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective in failing to: (1) investigate the case and present viable witnesses, proof, and argument as to self-defense; (2) obtain a ballistics expert; (3) obtain unadulterated copies of phone records and obtain the phone records of another witness; (4) properly impeach a witness with inconsistent evidence, statements, and testimony; (5) contest the search warrant; (6) renew a motion to change venue; (7) object to statements made bythe prosecution during voir dire; and (8) request additional jury instructions on drug usage and witness credibility. He further contends that the cumulative effect of all the alleged errors supports a finding of ineffective assistance of counsel. Following a thorough review of the record before us, we find no error and affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2010/hanebuttr_111010.pdf


STATE OF TENNESSEE v. VINCENT JORDAN

Court: TCCA

Attorneys:

Edward E. DeWerff, Clarksville, Tennessee, for the appellant, Vincent Jordan.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, 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, Vincent Jordan, appeals the Montgomery County Circuit Court's order revoking his probation for robbery, a Class C felony, and ordering the Defendant to serve the remainder of his eight-year sentence in confinement. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/jordanv_111010.pdf


CHRISTOPHER LOVIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jason D. Demastus, Chattanooga, Tennessee, for the appellant, Christopher Lovin.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William Paul Phillips, District Attorney General; and Jared Ralph Effler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Christopher Lovin, appeals the Claiborne County Criminal Court's denial of post-conviction relief from his conviction for felony murder in the perpetration of aggravated child abuse. On appeal, he contends that trial counsel rendered ineffective assistance by (1) failing to object to the State's amendment of his indictment, (2) failing to examine and rebut the State's medical witnesses properly, (3) failing to object to the State's use of demonstrative evidence, and (4) failing to object to the State's presentation of two theories of causation. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/lovinc_111010.pdf


STATE OF TENNESSEE v. VERSHAWN MCCOY

Court: TCCA

Attorneys:

Robert Brooks, Memphis, Tennessee (on appeal) and Leslie I. Ballin, Memphis, Tennessee (at trial), for the Appellant, Vershawn McCoy.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General, Tom Hoover and Carla Taylor, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Defendant, Vershawn McCoy, of second degree murder, and the trial court sentenced him as a violent offender to twenty years to be served at 100%. On appeal, the Defendant contends that the trial court inadequately responded to a jury question raised during deliberation requesting a definition of "state of passion." After a thorough review of the record and applicable authorities, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2010/mccoyv_111010.pdf


STATE OF TENNESSEE v. JOSEPH NELSON

Court: TCCA

Attorneys:

George M. Googe, District Public Defender, and Gregory D. Gookin, Assistant Public Defender, for the appellant, Joseph Nelson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Joseph Nelson, was convicted by a Madison County jury of two counts of rape of a child, a Class A felony. He was subsequently sentenced by the trial court to concurrent sentences of twenty-five years, to be served in the Department of Correction. On appeal, the defendant has raised the single issue of sufficiency of the evidence. Following review of the record, we affirm the judgments of conviction.

http://www.tba2.org/tba_files/TCCA/2010/nelsonj_111010.pdf


STATE OF TENNESSEE v. PHILIP MICHAEL PATTERSON

Court: TCCA

Attorneys:

Kristin Godsey, Powell, Tennessee, for the Defendant-Appellant, Phillip Michael Patterson.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Mike Flynn, District Attorney General; and Robert Headrick, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Phillip Michael Patterson, pled guilty in the Circuit Court of Blount County to two counts of aggravated kidnapping, a Class B felony, one count of aggravated burglary, a Class C felony, one count of aggravated robbery, a Class B felony, two counts of theft of property between $1,000 and $10,000, a Class D felony, and one count of theft under $500, a Class A misdemeanor. He received an effective sentence of thirty years in the Tennessee Department of Correction. Patterson subsequently appealed his guilty pleas, and a protracted procedural history developed. On appeal, two of Patterson's claims remain: (1) whether the trial court erred by denying, without a hearing, his "Motion for Modification or Reduction of Sentence"; and (2) whether his convictions are void because he did not sign the plea agreement. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/pattersonp_111010.pdf


STATE OF TENNESSEE v. MARCOS ACOSTA RAYMUNDO, a.k.a. MARCOS RAYMUNDO ACOSTA

Court: TCCA

Attorneys:

Paul J. Walwyn, Madison, Tennessee, for the appellant, Marcos Acosta Raymundo, a.k.a. Marcos Raymundo Acosta.

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

Judge: WELLES

The Defendant, Marcos Acosta Raymundo, a.k.a. Marcos Raymundo Acosta, was charged with one count of aggravated child abuse of a child less than eight years old, a Class A felony, one count of aggravated child neglect of a child less than eight years old, a Class A felony, and two counts of child abuse of a child less than six years old, a Class D felony. See Tenn. Code Ann. sections 39-15-401(a), -402(b). Following a jury trial, he was convicted of four offenses: one count of attempted aggravated child abuse of a child less than eight years old, a Class B felony, and the other three offenses as charged. He was sentenced as a Range I, standard offender to twelve years for count one, attempted aggravated child abuse, twenty-five years for count two, aggravated child neglect, four years for count three, child abuse, and four years for count four, child abuse. The trial court ordered that count two was to be served concurrently with count one, and that counts three and four were to be served concurrently with each other, but consecutively to count two. Thus, the trial court sentenced the Defendant to a total effective sentence of twenty-nine years in the Department of Correction. In this direct appeal, the Defendant contends that: (1) the State presented evidence insufficient to convict him; and (2) his convictions for counts one, two, and four violated the principles of double jeopardy. After reviewing the record, we conclude that the State presented insufficient evidence to convict the Defendant of count two, aggravated child neglect, and that the Defendant's convictions for count one, attempted aggravated child abuse, and count four, child abuse, violate the principles of double jeopardy. Thus, we reverse the Defendant's convictions on counts two and four, and affirm his convictions on counts one and three. We remand to the trial court for a redetermination of concurrent and consecutive sentencing.

http://www.tba2.org/tba_files/TCCA/2010/raymundom_111010.pdf


STATE OF TENNESSEE v. EVELYN COTTON SELF

Court: TCCA

Attorneys:

Mary M. Little, McMinnville, Tennessee; and Robert Newman, McMinnville, Tennessee, for the appellant, Evelyn Cotton Self.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Darrell Ray Jullian, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Evelyn Cotton Self, was convicted of driving under the influence (DUI), second offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days with Defendant's sentence suspended and Defendant placed on probation after service of seventy-three days in confinement. On appeal, Defendant argues that (1) the evidence is insufficient to support her conviction; (2) the trial court erred in denying Defendant's request for a jury instruction on involuntary intoxication; (3) the trial court erred in instructing the jury concerning prescription medicines; (4) the trial court erred in excluding the testimony of Defendant's psychologist; and (5) the trial court erred in ordering Defendant to serve seventy-three days in confinement. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/selfe_111010.pdf


STATE OF TENNESSEE v. VIOLA DARLENE STEPHENS

Court: TCCA

Attorneys:

Philip A. Condra, District Public Defender; Robert G. Morgan, Assistant Public Defender; and Vanessa King, Assistant Public Defender, Jasper, Tennessee, for the appellant, Viola Darlene Stephens.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin Ball, Assistant Attorney General; J. Michael Taylor, District Attorney General; William Copeland, Assistant District Attorney General; and Steve Blount, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Viola Darlene Stephens, pled guilty to theft of property valued at less than $500, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor. The trial court sentenced her to eleven months, twenty-nine days for the theft conviction, to serve six months, and six months for driving on a revoked license, to be fully served in incarceration. The sentences were ordered to be served concurrently with each other. On appeal, Defendant contends that the trial court erred in not stating whether it had considered a sentence of community corrections. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/stephensv_111010.pdf


STATE OF TENNESSEE v. MICHAEL ANTHONY THARPE

Court: TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender, for the appellant, Michael Anthony Tharpe.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Hansel J. McCadams, District Attorney General; and R. Adam Jowers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Michael Anthony Tharpe, appeals the revocation of his probation by the Circuit Court for Carroll County. On May 11, 2009, he entered a guilty plea to theft over $500, and was sentenced to three years probation. He later committed new law violations and failed to report to his probation officer. Following a hearing on March 29, 2010, the defendant's probation was revoked, and he was ordered to serve the balance of his sentence in confinement. After careful review, we affirm the judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCCA/2010/tharpem_111010.pdf


STATE OF TENNESSEE v. DAVID SCOTT WINFREY

Court: TCCA

Attorneys:

Mike Anderson, Assistant Public Defender, Gallatin, Tennessee, for the appellant, David Scott Winfrey.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Bryna Grant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, David Scott Winfrey, pleaded guilty to twenty-nine Class A misdemeanors consisting of one count of aggravated criminal trespass, one count of stalking, thirteen counts of harassment, and fourteen counts of violation of an order of protection. Following a sentencing hearing, the trial court sentenced the Defendant to eleven months and twenty-nine days for each offense and ordered that ten of his violation of an order of protection sentences run consecutively. In a previous decision, we remanded this matter for re-sentencing, concluding that the trial court erroneously applied Tennessee Code Annotated section 39-13- 113(g). See State v. David Scott Winfrey, No. M2008-01429-CCA-R3-CD, 2009 WL 2486180 (Tenn. Crim. App., Nashville, Aug. 14, 2009). The Defendant now appeals the consecutive sentences imposed upon re-sentencing and contends that they are not in accordance with our previous opinion in this matter. After reviewing the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/winfreyd_111010.pdf


JEFFERY YATES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeffery Yates, Tiptonville, Tennessee, Pro Se.

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

Judge: WOODALL

Petitioner, Jeffery Yates, appeals the Lake County Circuit Court's dismissal of his petition for writ of habeas corpus. He contends that his 1994 convictions should have been served consecutively to his 1993 convictions because he was on bail when he committed some of the offenses. Therefore, he argues that his judgments of conviction are void. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/yatesj_111010.pdf


TODAY'S NEWS

Legal News
Upcoming
Career Opportunities
TBA Member Services
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Legal News
New programs for law students announced
The Tennessee Bar Association's Young Lawyers Division is launching two new programs for Tennessee law students. The first is a six-month leadership and mentoring program for 2nd and 3rd year students from a diverse range of backgrounds. The Diversity Leadership Institute is accepting applications through Nov. 22 and will get underway in January. Attorneys interested in helping with the program or serving as a mentor should contact Ahsaki Baptist or Blair Cannon. The second initiative is a new Judicial Internship Program that will match 1st and 2nd year law students with judges across the state for summer internships. That program is accepting applications through Dec. 31.
Learn more about TBA's law student programs
Loan repayment program deadline approaches
The John R. Justice Prosecutors and Defenders Incentive Act, created by Congress to encourage attorneys to choose careers as prosecutors and public defenders, is accepting loan repayment assistance applications through Nov. 15. The grant program provides initial funding in exchange for a lawyer's commitment to work as a prosecutor or defender for at least three years. Grant recipients are eligible to reapply for assistance each year.
Get details on the program and how to apply
Clerkship study shows changing demographics
NALP, the association for legal career professionals, recently released data on judicial clerkships, finding that over the past 10 years the number of positions has decreased significantly and there has been a shift in the demographics of those securing slots. Most notably, female law graduates now hold more clerkships overall (51 percent), while men continue to dominate at the federal level (54.3 percent). The other major finding is the disproportionality of minorities holding clerkships. While minorities made up 22 percent of the 2009 graduating class, they obtained only 16 percent of clerkships overall and only 13 percent at the federal level.
Learn more about the study
Bass hires former federal prosecutor
The Nashville law firm of Bass, Berry & Sims has hired Eli J. Richardson -- the former criminal chief of the U.S. Attorney's Office for the Middle District of Tennessee -- for its expanded internal investigations and government enforcement practice. At the firm, Richardson will represent clients who face government investigations or enforcement proceedings. His experience includes serving as an FBI agent, assistant U.S. attorney in New Jersey and Tennessee, and resident legal advisor to Serbia under the U.S. Department of Justice's Office of Overseas Prosecutorial Development, Assistance and Training.
The Nashville Post has the news (subscription required)
Oklahoma petitions court for new execution drug
States are scrambling to find the drugs needed to perform capital punishment due to a shortage of thiopental sodium, the only anesthetic that states have used so far in lethal injections. Now, Oklahoma authorities are seeking court permission to use pentobarbital, a drug used to euthanize animals. They argue the drug is humane and "substantially" similar to thiopental. Lawyers for the death row inmate on whom the drug would be used are adamant that their client should not be a guinea pig for the new substance.
The Wall Street Journal reports
Glankler starts move to new eastside offices
Memphis based Glankler Brown PLLC begins its move this week from downtown to new quarters in East Memphis. Over the next four weeks, the firm will move into 33,000 square feet in Triad Centre I near Poplar Avenue and Interstate 240. The firm had occupied three floors inside One Commerce Square.
Read more in the Memphis Daily News
Fate of Knoxville lawyer unclear after rulings
The Tennessee Court of Appeals yesterday vacated a judgment finding Knoxville lawyer Herbert S. Moncier in contempt of court and remanded the case for further proceedings. The court ruled that the trial court improperly exercised its authority by imposing the charge several weeks after the conduct occurred. The decision is just one in a litany of cases pending against Moncier, including a federal contempt of court charge, a four-year prohibition against practicing in federal court and suspension by the state Supreme Court. Moncier has appealed the federal contempt charge and the disciplinary action. He faces another sentencing hearing in federal court in February and a new hearing on the suspension after Judge Walter C. Kurtz rejected nearly every finding the Board of Professional Responsibility used to impose the discipline.
The News Sentinel has the story
Upcoming
Birch to receive ACLU's Lifetime Award
Former Tennessee Supreme Court Chief Justice Adolpho A. Birch Jr. will receive the American Civil Liberties Union's (ACLU) Lifetime Achievement Award on Nov. 20 at the group's annual Bill of Rights Celebration. The event will be held at the Loews Vanderbilt Hotel beginning at 6:30 p.m. with a silent auction. Special music will be presented by artist Nanci Griffith and the keynote address will be given by Omar C. Jadwat, an attorney with the group's Immigrants' Rights Project. Individual and table tickets are available from the ACLU by calling (615) 320-7142 or visiting the group's website.
Read more about the award
Career Opportunities
Nashville company seeks part-time lawyer
The Nashville office of Policy Studies Inc. is seeking a part time family law attorney to work 20 hours a week assisting its child support offices. The ideal candidate would have at least two years experience in domestic relations, child support enforcement, family law and/or as a prosecutor. Supervisory experience is preferred. Interested individuals should send a resume, cover letter and salary requirements to Jill Bukowski, 1515 Wynkoop, Suite 400, Denver, CO 80202.
Get detailed job specs on JobLink
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote
TennBarU CLE
New take on tech event
Got a tech topic you want to learn about ... or talk about? This year's Law Tech program is adopting an "unconference" format to allow more flexibility in programming. That means there will be plenty of time for roundtable discussions, short presentations and lots of hands-on learning. So if you have an idea or a suggestion, contact TBA Law Office Technology Section Chair Bill Fiala. The event will be held Feb. 17 at the Tennessee Bar Center in Nashville.
Find out more about the Law Tech

 
 
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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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