TBA Today - Thursday, September 12, 2024 - Your fastest source of appellate court decisions, Supreme Court rules and orders changes, attorney general opinions and other Tennessee legal community news.
To view this email in a browser, click here.
Association Logo
TBA Today
Thursday, September 12, 2024
Today's News

Gov. Lee Announces 3 New Judicial Appointments

Tennessee Gov. Bill Lee announced three judicial appointments last week. Adrienne Waters Ogle, a partner at Ogle McCarter and a magistrate on the Sevier County Juvenile Court, has been named to the 4th Judicial District Circuit Court. The court serves Cocke, Grainger, Jefferson and Sevier counties. Kimberly Lund has been named to the 19th Judicial District Chancery Court, which serves Montgomery and Robertson counties. She currently serves as an assistant district attorney in the district. The governor selected Lund after fewer than three lawyers applied for the vacancy. Finally, Joshua Turnbow has been named to the 23rd Judicial District Circuit Court. He currently is an assistant district attorney in the district, which serves Cheatham, Dickson, Houston, Humphreys and Stewart counties. All three seats are new judicial positions created by the General Assembly during the last session. Read more about new jurists in a release from the governor's office.
 

Comptroller Audit Finds Indigent Representation System Lacks Capacity, Causes Court Delays

The Division of State Audit in the Office of the Comptroller of the Treasury on Sept. 5 issued its performance audit report of the Tennessee Court System, which evaluated the "effectiveness and efficiency" of the current system of indigent representation, as well as other court programs. The audit recognized that Tennessee, "like many other states," continues to face obstacles, and recommended that the Administrative Office of the Courts (AOC) "continue to work with the Supreme Court, the governor and the state legislature to ensure all citizens are afforded their constitutional or statutory right to legal counsel." The report discusses the need to address capacity issues and compensation of lawyers who take these difficult cases. The TBA remains committed to working with stakeholders to secure additional resources to address these issues. Read more about the report.
article image

Nashville Judge Rules Against State’s Voting Rights Restoration Process

A Nashville judge has restored the voting rights of four people in Davidson County, rejecting a state rule that formerly incarcerated individuals must have their gun ownership rights restored before voting rights can be restored, WPLN reports. The Tennessee State Election Commission issued guidance in July requiring restoration of gun ownership rights as well as the payment of restitution, court costs and child support payments before voting rights could be restored. Advocates argued that since many felony charges bar people from owning a gun, that right could never be restored. Criminal Court Judge Angelita Dalton, citing the Tennessee Supreme Court’s holding in State v. Johnson, found that the prohibition on possessing firearms does not render the petitioners ineligible from having full citizen rights restored. In related news, Tennessee Lookout reports that Gov. Bill Lee pledged to look into the issue after the New York Times reported on the challenges facing Tennesseans.
article image

Man Arrested for Shooting Involving Chancellor Myles

The Metropolitan Nashville Police Department has arrested David Joseph Bush, 23, on an indictment charging him with multiple crimes in connection with last September’s shooting into a car driven by Davidson County Chancery Court Judge I’Ashea Myles on I-440. During the incident, which police say was motivated by road rage, Myles was struck by broken glass but otherwise uninjured. Her front seat passenger suffered gunshot wounds to the hand and leg and was hospitalized before being discharged to continue recovering at home. Police linked Bush to the incident based on ballistic evidence and cell phone data. At the time of his arrest, Bush was free on a $125,000 bond for a March arrest for an alleged road rage shooting case on Murfreesboro Pike. Read more in a release from the department.
article image

Photo: Daily Memphian

Jury Selected, Opening Statements Made in Nichols Case

After about 13 hours of arguments over two days, a jury has been empaneled in the Tyre Nichols federal criminal case, according to the Commercial Appeal. Opening arguments also have been made in a trial that will determine whether or not former Memphis police officers Tadarrius Bean, Demetrius Haley and Justin Smith Jr. are guilty of violating Nichols' civil rights during a beating after a Jan. 7, 2023 traffic stop. Two other former officers, Emmitt Martin III and Desmond Mills Jr., pleaded guilty before the trial to using excessive force and conspiracy to witness tamper. A number of witnesses also took the stand yesterday, including a police department trainer and the nurse who admitted Nichols to the hospital. Read more in the Daily Memphian.
article image

AG Urges Congress to Push for Surgeon General Warnings on Social Media

This week, in a letter to Congress, Attorney General Jonathan Skrmetti and 41 attorneys general called on lawmakers to pass legislation authorizing a U.S. Surgeon General warning on all algorithm-driven social media platforms. The group cites research that links young people’s use of such platforms to psychological harm, including depression, anxiety and even suicidal thoughts. They also note how platforms feature “irresistible algorithmic recommendations, infinite scrolling and a constant stream of notifications” to keep kids engaged “even at the expense of taking breaks, engaging in other activities or sleeping.” Read more in a release. Last year, Skrmetti joined a nationwide effort to sue Meta alleging many of the same harms.
article image

Crossville Lawyer Named Counsel for State Textbook Commission

The State Textbook and Instructional Materials Quality Commission recently announced that Crossville lawyer Hayden T. Shadden was named its new general counsel. Shadden graduated from the University of Memphis Cecil C. Humphreys School of Law in 2020 and previously was in private practice focusing on civil litigation, mergers and acquisitions, employment law and estate planning/taxation. The commission is composed of 11 volunteer members who recommend textbooks and instructional materials to the State Board of Education and hear challenges to public school library books and materials.
 
article image

Chancellor OKs Memphis Gun-Control Referendums for November

Shelby County Chancellor Melanie Taylor Jefferson ruled Wednesday that gun control questions can appear on the November ballot, the Daily Memphian reports. Taylor Jefferson agreed with the Memphis City Council’s private attorney that state claims that the referendums are preempted by state gun laws were “not ripe” because the referendums are just proposals, and no amendments have yet been made to the city charter. The Memphis City Council approved the ballot measures in July but the Shelby County Election Commission ruled they would not be added to the ballot based on guidance from state officials. The council then sued the commission.

Rematch Set for Elizabethton Municipal Judge Race

The race for Elizabethton municipal judge is shaping up to be the third rematch between Municipal Judge Jason Lee Holly and Teresa Murray Smith, who held the post for three months in 2020 and was the city’s first female judge. The Elizabethton Star looks at the candidates, the history of their service and Smith’s reasons for entering the race this year.
 
article image

NBA YLD to Host 21st Annual Race Judicata

Make plans now to join the Nashville Bar Association (NBA) YLD for the 21st Annual Race Judicata. The race will take place on Oct. 5 at Edwin Warner Park, 7311 TN-100, Nashville 37221. The race offers 5K and 10K distances for runners and walkers as well as team competitions and post-race activities such as yoga, a beer garden and non-alcoholic mimosas. Participants also will be invited to attend a pre-race virtual workshop focused on movement in everyday life. All proceeds from the race benefit ABLE Youth and the Nashville chapter of Achilles International. Learn more and register here.
 
article image

TBA Has Resources for Cleaning up Data Before Moving to a New Practice Management System

Depending on your current practice management and accounting programs, you may be set no matter what changes happen to your firm from a revenue, staffing or practice area perspective. Some products can grow with you; others, not so much. If you’ve decided to change practice management or accounting programs, review this checklist to ensure a quality data conversion from your existing system to the new one. Find this and more in the Practice Management section of TBA’s Law Practice Management Center.
 

4 Attorneys Reinstated from CLE Violations

This week, the Tennessee Supreme Court reinstated four lawyers who had been suspended for failing to complete annual continuing legal education requirements, including one in 2021 and three in 2023.
 
article image

2024 Environmental Forum Set for Nov. 15

The TBA’s 2024 Environmental Forum will take place in person on Nov. 15 in Nashville. This year’s program will address topics such as endangered species litigation, underground storage tanks, drinking water, the Chevron decision, brownfields, ethics and more. Breakfast and lunch will be included. Watch for more information coming soon.
 
article image

Traveling or Need a Hotel for a Visiting Guest?

The Tennessee Bar Association Travel Discount Program offers travel discount service to TBA members. Savings average 10-20% below market on all hotels and car rental suppliers around the world. Save time and money. To access this service, make sure you are logged in to your TBA member account first, then explore any hotel, any car, anywhere, anytime.
 
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.

Court: TN Court of Appeals

Attorneys:

Willie Gordon, Memphis, Tennessee, Pro Se.

Lani D. Lester, Memphis, Tennessee, for the appellees, Victor Murphy, TIVIC Construction Company, Lisa Ivy, Ludora Cooper, and The Memphis-Shelby County Community Redevelopment Agency.

Judge(s): STAFFORD

Pro se Appellant, Willie Gordon, has appealed an order of the Shelby County Circuit Court that was entered on December 15, 2023. We determine that the trial court’s order does not constitute a final appealable judgment. Therefore, this Court lacks jurisdiction to consider the appeal. The appeal is, therefore, dismissed.

gordonw_091224.pdf

Court: TN Court of Appeals

Attorneys:

Joseph Edwin Costner, Maryville, Tennessee, for the appellant, Ransford Sarfo.

Richard Lampton Hollow, Knoxville, Tennessee, for the appellant, Adams Publishing Group, LLC d/b/a The Daily Times.

Richard Everett Collins, II, Knoxville, Tennessee, for the appellee, John S. McMurtrie.

Judge(s): MCCLARTY

This is a consolidated appeal from the trial court’s denial of Tennessee Public Participation Act (“TPPA”) petitions filed by each of the named defendants in the underlying defamation lawsuit. Upon review, we affirm the trial court’s judgment as to each defendant.

mcmurtriej_091224.pdf

Court: TN Court of Appeals

Attorneys:

Thomas M. Leveille, Knoxville, Tennessee, for the appellants, 24hr Home Buyers, LLC, and Nathan Jackson.

Matthew A. Grossman and Rebekah P. Harbin, Knoxville, Tennessee, for the appellees, Angela Roberts and Louis Roberts.

Judge(s): DAVIS

This appeal stems from a contract to purchase real property in Knox County, Tennessee, which ultimately fell through. The intended purchaser filed suit against the property owner seeking to enforce the contract. The property owner brought a counterclaim against the intended purchaser and a third-party claim against the intended purchaser’s principal averring that they fraudulently induced him to enter into the contract. After contentious litigation, the trial court entered a default judgment in favor of the property owner as a sanction for ongoing discovery abuses by the intended purchaser and its principal. The intended purchaser and its principal sought relief from the judgment pursuant to Tennessee Rule of Civil Procedure 60.02, which the trial court denied. Discerning no error by the trial court, we affirm.

robertsl_091224.pdf
 

Court: TN Court of Criminal Appeals

Attorneys:

Mitchell A. Raines, (on appeal), Appellate Division Assistant Public Defender; Jeremy B. Epperson, District Public Defender; Joshua L. Phillips, (at trial), Assistant Public Defender, Jackson, Tennessee, for the appellant, Tomar Donyelle Beard.

Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas, Senior Assistant Attorney General; Jody S. Pickens, District Attorney General; and Alfred L. Earls and Matthew Floyd, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

A Madison County jury convicted the Defendant, Tomar Donyelle Beard, of attempted first degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony. The trial court imposed an effective sentence of thirty-one years in the Tennessee Department of Correction. On appeal, the Defendant asserts that the trial court erred when it excluded the Defendant’s expert from testifying and denied the Defendant’s motion for a continuance. After review, we affirm the trial court’s judgments.

beardt_091224.pdf

Court: TN Court of Criminal Appeals

Attorneys:

Reginald D. Bond, Nashville, Tennessee, Pro Se.

Jonathan Skrmetti, Attorney General and Reporter; Abigail H. Rinard, Assistant Attorney General; Jody S. Pickens, District Attorney General; and Matthew Floyd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

In 2012, the Defendant, Reginald D. Bond, pleaded guilty to multiple counts of attempted rape of a child, and the trial court sentenced him to ten years of incarceration and ordered him to community supervision for life and to register as a sex offender. After his release, the Defendant was convicted of violating the sex offender registry, and the trial court sentenced him to six years, suspended to probation. He violated his probation by being charged with new offenses, so the trial court revoked his probation and ordered him to serve his sentence in confinement. The Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1, seeking to correct an illegal sentence, contending that his sentence was illegal because the community supervision and sex offender registry requirements violated double jeopardy. The trial court summarily denied Rule 36.1 relief. On review, having determined that the Defendant has failed to state a colorable claim for Rule 36.1 relief, we affirm the judgment of the trial court.

bondr_091224.pdf

Court: TN Court of Criminal Appeals

Attorneys:

Patrick T. McNally, Nashville, Tennessee (on appeal), and Stephen G. Young, Nashville, Tennessee (at plea and sentencing), for the appellant, Curtis Bradley.

Jonathan Skrmetti, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant Attorney General; Glenn R. Funk, District Attorney General; and Simone Marshall, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): AYERS

Defendant, Curtis Bradley, was indicted on one count of aggravated assault by causing serious bodily injury and one count of false imprisonment. He entered a negotiated plea agreement to the lesser-included charge of reckless aggravated assault with the trial court to determine the length of sentence and whether Defendant would receive judicial diversion. The false imprisonment charge was dismissed pursuant to the agreement. The trial court denied judicial diversion, and ordered Defendant to serve three years, suspended to probation. Defendant argues on appeal that the trial court abused its discretion in denying his request for judicial diversion and by imposing more than the minimum sentence. Based on our review of the entire record, oral arguments, and the parties’ briefs, we affirm the judgment of the trial court, but remand for entry of a judgment form for the dismissal of count two.

bradleyc_091224.pdf

Court: TN Court of Criminal Appeals

Attorneys:

Daniel J. Murphy, Lewisburg, Tennessee (on appeal), and Nichole Dusche, Franklin, Tennessee (at post-conviction hearing), for the appellant, Dewayne Edward Harris.

Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant Attorney General and Caroline Weldon, Assistant Attorney General; Stacey Edmonson, District Attorney General (Assistant District Attorney General at post-conviction hearing), for the appellee, State of Tennessee.

Judge(s): AYERS

Petitioner, Dewayne Edward Harris, appeals the denial of his post-conviction petition, arguing that the post-conviction court erred in denying his claim that trial counsel was ineffective for failure to investigate, failure to develop a reasonable trial strategy, and failure to object to the use of Petitioner’s nicknames and to testimony regarding statements made by a non-testifying co-defendant. Following our review of the entire record, oral arguments, and the briefs of the parties, we affirm the judgment of the post-conviction court.

harrisd_091224.pdf

Court: TN Court of Criminal Appeals

Attorneys:

Terrell L. Tooten, Memphis, Tennessee, for the appellant, Curtis Keller.

Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant Attorney General; Steven L. Mulroy, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

In this consolidated appeal, Shelby County juries convicted the Petitioner, Curtis Keller, of three counts of especially aggravated kidnapping, three counts of aggravated robbery, four counts of attempted aggravated robbery, one count of aggravated burglary, and one count of evading arrest (No. 10-02756); and two counts of especially aggravated kidnapping, one count of attempted especially aggravated kidnapping, one count of especially aggravated burglary, three counts of aggravated assault, and one count of employing a firearm during the commission of a “dangerous felony” (No. 10-07532). The Petitioner received effective sentences of 300 years (No. 10-02756) and 210 years (No. 10- 07532). The Petitioner appealed his convictions in both cases. See State v. Keller, No. W2012-01457-CCA-R3-CD, 2013 WL 6021332 (Tenn. Crim. App. Nov. 6, 2013), perm. app. granted, cause remanded (Tenn. Feb. 11, 2014) and State v. Keller, No. W2012- 01457-CCA-R3-CD, 2014 WL 4922627 (Tenn. Crim. App. Sept. 29, 2014), perm. app. denied (Tenn. Jan. 15, 2015). The Petitioner then filed a series of motions and petitions, which this court has addressed on appeal. Keller v. State, No. W2019-01652- CCA-R3- ECN, slip op. at 2 (Tenn. Crim. App. Jan. 27, 2021), perm. app. denied; Keller v. State, No. W2020-00590-CCA-R3-PC, 2021 WL 2886338 (Tenn. Crim. App. July 9, 2021), perm. app. denied (Tenn. Oct. 15, 2021). In the consolidated matter herein, the Petitioner filed: a petition “new post-conviction” relief and a “supplemental” petition for writ of error coram nobis in No. 10-02756; a petition for DNA post-conviction analysis in Nos. 10- 07532 and 10-02756; and a motion to correct an illegal sentence pursuant to Tennessee Rule of Appellate Procedure 36.1 in No. 10-07532. The trial court denied the petitions, and the Petitioner filed a notice of appeal. After this appeal was docketed, counsel filed a motion for a late-filed notice of appeal for all five underlying petitions. On review, having determined that all of the Petitioner’s filings in No. 10-02756 and his petition for DNA analysis in No. 10-07532 were untimely, we deny his motion for a late-filed notice of appeal and dismiss the appeal with respect to those filings. The remaining motion, the Petitioner’s motion to correct an illegal sentence in No. 10-07532, was timely filed and, upon review, we conclude the Petitioner has failed to state a colorable claim for Rule 36.1 relief. As such, we affirm the trial court’s judgment denying the petition.

kellerc_091224.pdf

Court: TN Court of Criminal Appeals

Attorneys:

Samuel W. Hinson, Lexington, Tennessee, for the appellant, James Carter Millinder.

Jonathan Skrmetti, Attorney General and Reporter; Brooke A. Huppenthal, Assistant Attorney General; Jody S. Pickens, District Attorney General; and Eric V. Wood, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HIXSON

The Defendant, James Carter Millinder, appeals the trial court’s decision ordering his agreed-upon nine-year sentence to be served consecutively to an unserved sentence in another county. The Defendant claims that the trial court erred by sentencing him in a manner not contemplated by the agreement between the parties and that this error rendered his guilty plea involuntary. Given the deficiencies in the Defendant’s appellate brief, as well as the absence of transcripts of the guilty plea and sentencing proceedings from the appellate record, we affirm the judgments of the trial court.

millinderj_091224.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.

UNSUBSCRIBE

© Copyright 2024 Tennessee Bar Association, 3310 West End Ave., Suite 590, Nashville, TN 37203