Court Opinions

Format: 03/02/2015
Format: 03/02/2015
State of Tennessee v. Micah Johnson, Alias
E2013-02356-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

The Defendant, Micah Johnson, alias, was convicted by a Knox County jury of one count of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. The trial court merged the murder counts and the kidnapping counts into a single count for each, respectively. The trial court imposed an effective sentence of life imprisonment with the possibility of parole plus fifty years for all of these convictions. In this direct appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for premeditated murder; (2) the trial court erred by failing to instruct the jury regarding substantial interference as mandated in State v. White, 362 S.W.3d 559 (Tenn. 2012), thus, requiring reversal of his kidnapping convictions; (3) the trial court erred, in violation of Tennessee Rule of Evidence 404(b), by allowing introduction of the Defendant’s prison disciplinary records as rebuttal evidence to the neuropsychologist’s testimony about the Defendant’s psychological test results; (4) the trial court abused its discretion by allowing the State to impeach the forensic psychiatrist defense expert with a twenty-two-year-old academic misdeed; (5) the trial court erred by failing to suppress the video recording of the crime scene and the photographs taken at the crime scene and during the victim’s autopsy all gruesomely depicting the victim’s body; (6) plain error occurred when the State elicited testimony from its rebuttal mental health expert that, if the Defendant was found not guilty by reason of insanity, he was not committable to a mental health facility in her opinion; and (7) the imposition of consecutive sentencing was improper. Following our review of the record and the applicable authorities, we conclude that the trial court’s failing to instruct the jury properly pursuant to White constitutes reversible error. Therefore, the Defendant’s two convictions for especially aggravated kidnapping must be reversed and remanded to the trial court for a new trial as to those offenses only. In all other respects, the judgments of the trial court are affirmed.

Knox County Court of Criminal Appeals 03/02/15
State of Tennessee v. William Scott Ross
M2014-00459-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant-Appellant, William Scott Ross, pled guilty to one count of facilitation of a conspiracy to sell over seventy pounds of marijuana and one count of official misconduct.  Pursuant to the plea agreement, he received an effective three-year sentence in the local corrections facility, suspended to supervised probation.  After a hearing, the trial court denied the Defendant’s request for judicial diversion.  On appeal, the Defendant argues that the trial court erred in refusing to grant judicial diversion.  Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/02/15
State of Tennessee v. Elmi Abdulahi Abdi
M2014-00755-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl Blackburn

In this delayed direct appeal, the Defendant, Elmi Abdulahi Abdi, argues that the trial court erred when it admitted a redacted version of his video-recorded statement into evidence.  The Defendant contends that the trial court should have introduced the full video-recorded statement to allow the jury to consider his statement in context.  The record does not include the un-redacted video statement, a transcript of the audio of the un-redacted video statement, a transcript of a hearing on the Defendant’s motion in limine to exclude the redacted statement, or an order from the trial court ruling on the motion in limine.  Additionally, the Defendant did not make a contemporaneous objection when the redacted video was played to the jury and did not require the introduction of the un-redacted video pursuant to the rule of completeness, Tennessee Rule of Evidence 106.  We conclude that the trial court did not err in admitting the redacted video and affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/02/15
State of Tennessee v. Timothy Allen Johnson
M2014-00766-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Timothy Allen Johnson, was convicted of one count of tampering with evidence, a Class C felony.  He was sentenced as a persistent offender to a twelve-year sentence.  On appeal, the defendant argues that the evidence is insufficient to support his conviction.  After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/02/15
In Re S.C.M. Et Al.
E2014-01379-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Douglas T. Jenkins

This is a termination of parental rights case regarding S.C.M. and T.O.J.M. (collectively, the Children), the minor children of H.C. (Mother) and B.M. (Father). After both parents were arrested, the Children’s maternal grandparents, R.R. and T.R. (collectively, the Grandparents) obtained temporary, emergency custody. Nearly three years later, the Grandparents filed a petition seeking to (1) terminate both parents’ rights and (2) adopt the Children. Following a trial, the court terminated both parents’ rights. Father appeals. We affirm.

Hawkins County Court of Appeals 03/02/15
Michael David Olson v. Jennifer Carlin Beck
M2013-02560-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

In this divorce appeal, Husband argues that the trial court erred in not allowing him to repudiate the parties’ marital dissolution agreement. Husband also asserts that the trial court erred in its determination regarding the parenting plan, in failing to consider split parenting time, and in awarding Wife her attorney fees. We find no merit in Husband’s arguments and affirm the trial court’s decision.

Davidson County Court of Appeals 02/27/15
Sherrie L. Durham v. Tennessee Department of Labor And Workforce Development, et al
M2014-00428-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Jude Donald P. Harris

The trial court denied Plaintiff’s motion to recuse and granted Defendants’ motion to dismiss for failure to prosecute. We reverse in part, affirm in part, and remand for further proceedings consistent with this Opinion.

Court of Appeals 02/27/15
Cody S. Thomas v. Jenna R. (Thomas) Miller
M2013-01485-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. B. Cox

In this post-divorce case, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent and to hold Mother in contempt for failure to abide by the joint decision-making provision of the plan.  The trial court found a material change of circumstances existed warranting a change in the primary residential parent and held Mother in contempt, awarding Father $675.00 in attorney’s fees as a sanction. Mother appeals. We find no error in the trial court’s decision to change the primary residential parent;however,we vacate the trial court’s finding of contempt because Father’s petition did not comply with the mandates of Tenn. R. Crim. P. 42(b).

Moore County Court of Appeals 02/27/15
Directv, Inc., et al v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee
M2013-01673-COA-r3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell M. Perkins

Plaintiffs contend that the sales tax law unconstitutionally discriminates against satellite television providers. The law taxes the entire subscription fee billed to satellite customers while the first $15 of the subscription fee billed to cable customers is exempt. On cross motions for summary judgment,the trial court found the sales tax law violated the Commerce Clause of the United States Constitution. The Commissioner of Revenue appeals. Because we find that satellite providers and cable providers are not similarly situated for purposes of the Commerce Clause, we reverse.
 

Davidson County Court of Appeals 02/27/15
Cynthia McKenzie v. Jason McKenzie
M2013-02003-COA-R3-CV
Authoring Judge: Presiding Frank G. Clement, Jr.
Trial Court Judge: Judge Philip E. Smith

An attorney, who was representing herself in her divorce action, appeals the trial court’s  finding  that  she  was  in  direct  contempt  of court.  She  insists  her  conduct  was  not  contemptuous and it did not disrupt the orderly progress of the hearing. She also challenges  the procedure bywhich the trial court conducted the summary contempt hearing, asserting it was erroneously held hours after the successful completion of the hearing in which she was  allegedly in contempt of court. She also challenges the sufficiency of the evidence and  contends the trial court erred by basing its finding of contempt on extraneous evidence  instead of relying solely on knowledge the judge obtained through his own senses, his sight  and hearing. A trial court has the authority to punish direct contempt summarily but only in  exceptional circumstances when necessary to“act swiftly and firmly to prevent contumacious conduct from disrupting the orderly progress” of a court proceeding. Danielsv.Grimac,342 S.W.3d 511, 517 (Tenn. Ct. App. 2010); State v. Turner, 914 S.W.2d 951, 956-57 (Tenn.  Crim. App. 1995); Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908, 911-12 (Tenn.  1964). The transcript of thehearingrevealsnoexceptionalcircumstances and no conduct that  obstructed the administration of justice. To the contrary, all issues at the hearing during  which  the  alleged  contemptuous  conduct  occurred  were  ruled  upon, and  the  hearing  concluded hours before the commencement of the summary contempt hearing. Based on  these facts, Plaintiff was entitled to a hearing upon proper notice pursuant to the procedures  of Tenn. R. Crim. P. 42(b). See Grimac, 342 S.W.3d at 517-18 (citing Turner,914S.W.2dat 959 n. 11). Therefore, the court erred by conducting a deferred summary contempt hearing.  Furthermore, the trial court found the attorney in contempt, “in willful misbehavior in her  official  transactions  by appearing  in  Court  intoxicated,” based  on  extrinsic  evidence,  urinalysis results, obtained after the hearing in question,not on conduct the court observed in the courtroom. Tennessee Rule of Criminal Procedure42(a),which governs the procedure by which a judge may summarily punish a person for criminal contempt,limits the evidence that may be considered to conduct the judge “saw or heard” in the courtroom. See Wilson v.  Wilson, No. 03A01-9104-CH-00126, 1992 WL 200971, at *4 (Tenn. Ct. App. Aug. 21,  1992). Because the finding of intoxication was based on extrinsic evidence, the criminal  contempt judgment must be reversed. The record also reveals the extrinsic evidence, thetest results the court relied upon, was unreliable, for it was only designed to test the“presence”of  any alcohol for persons in recovery, not whether a person was “intoxicated.” Therefore, the  judgment of criminal contempt is reversed and the case is dismissed.

Davidson County Court of Appeals 02/27/15
In Re: J.A.G. et al.
M2014-01469-COA-R3-PT
Authoring Judge: Chief Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John P. Hudson

This is a parental termination case concerning the four minor children (collectively, the Children) of L.Y.N.G. (Mother) and K.B.G. (Father). The Department of Children’s Services (DCS) was already involved with the family when it took emergency custody of the children following an incident of domestic violence between the parents. The children were placed together in fostercare with relatives. They were adjudicated dependent and neglected. Fifteen months later, DCS filed a petition to terminate the parental rights of both parents. The court granted the petition based on its finding, byclear and convincing evidence, (1) that multiple grounds for termination existed and (2) that termination was in the children’s best interest.  Mother and Father appeal. They challenge the trial court’s finding of grounds for termination, but do not raise an issue as to the trial court’s determination regarding the Children’s best interest. We affirm.

Putnam County Court of Appeals 02/27/15
Edward Martin v. Gregory Powers, et al
M2014-00647-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge James G. Martin, III

Holder of an automobile liabilityinsurancepolicybrought suit to recover for injuries sustained after being struck by a driver in a rental vehicle. The policy holder also sought coverage under the uninsured motorist coverage provision of his policy. Insurance carrier filed answer denying coverage and moved for summary judgment, contending that the policyholder was not entitled to coverage because the vehicle involved in the incident was owned by a rental car agency and, consequently, his damages did not arise out of the ownership, maintenance or use of an uninsured motor vehicle as required by the policy. The trial court held that the rental car agency was a self-insurer under Tennessee law and, consequently, the vehicle was not an “uninsured motor vehicle,”and granted the carrier’s motion. Policyholder appeals; finding no error, we affirm the judgment.

Williamson County Court of Appeals 02/27/15
S. W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al. - Concur
W2014-00621-COA-R10-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

I concur in the result reached by the majority Opinion that the trial court erred in imposing additional restrictions on Defendants’ counsel with regard to the requested ex parte interviews in this particular case. I write separately, however, to express my concern regarding the implications of this ruling, as fully explained in my separate concurrence in Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV, 2015 WL 277114 (Tenn. Ct. App. Jan. 20, 2015) (Stafford, J., concurring). Specifically, I agree with the majority’s interpretation of Tennessee Code Annotated 29-26-121(f), and its holding that the statute, as interpreted, does not authorize the trial court to impose the additional restrictions at issue in this case. However, I have genuine concern that the practical effect of the majority’s holding limits the inherent power of the trial court to both enforce its orders and protect litigants from unfair invasions of their privacy. As such, I must respectfully file this separate concurrence, in reliance on and fully incorporating my concurrence in Dean-Hayslett. See 2014 WL 277114, at *14–*17.

Shelby County Court of Appeals 02/27/15
S.W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al.- Concur
W2014-00621-COA-R10-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert L. Childers

I concur in the result reached by the majority opinion. I reach my conclusion, however, applying the abuse of discretion standard to the court’s action in imposing the specific restrictions and conditions in the protective order.

Shelby County Court of Appeals 02/27/15
S.W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al.
W2014-00621-COA-R10-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert L. Childers

This is a healthcare liability action. The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but set-forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit. The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.” The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order. We reverse in part, affirm in part, and remand for further proceedings.

Shelby County State Court Clerks 02/27/15
State of Tennessee v. Jaron Harris
E2014-00822-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Bob R. McGee

A Knox County jury convicted the Defendant, Jaron Harris, of two counts of especially aggravated kidnapping, two counts of aggravated robbery, four counts of first degree felony murder, one count of second degree murder, one count of attempted second degree murder, two counts of employing a firearm during the commission of a dangerous felony, and two counts of aggravated assault. The trial court merged several of the convictions, dismissed one count of aggravated assault, and then sentenced the Defendant to serve a total effective sentence of life plus fourteen years. On appeal, the Defendant asserts that: (1) the evidence is insufficient to support his convictions; and (2) the trial court erred when it allowed crossexamination of the Defendant about statements he made to other inmates about escaping from the courtroom. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Knox County Court of Criminal Appeals 02/27/15
In Re K.M.K. et al
E2014-00471-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Daniel R. Swafford

K.M.K. (Father) appeals the trial court’s judgment terminating his parental rights to his son, K.M.K., and his daughter, K.M.K. (collectively, the Children). The petitioner, Department of Children’s Services (DCS), removed the Children from their mother’s home after it found them living in unsafe and unsanitary conditions. They were placed in foster care and subsequently adjudicated dependent and neglected. Nine months later, DCS filed a petition to terminate the parental rights of both parents. The trial court terminated 1 Father’s rights based upon findings of (1) abandonment, (2) substantial noncompliance with a permanency plan, and (3) persistence of conditions. The trial court also determined that termination is in the best interest of the Children. Father appeals. We affirm the judgment of the trial court as modified in this opinion. Those modifications do not affect the trial court’s decision to terminate Father’s parental rights, which ultimate decision we affirm.

Bradley County Court of Appeals 02/27/15
In Re R.S.M.
E2014-00027-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John C. Rambo

A.E.M. (Mother) surrendered parental rights with respect to her minor daughter, R.S.M. (the Child), to prospective adoptive parents, P.B.G. and D.R.G. (collectively, Respondents). M.S.M. and M.W.M. (Grandparents), the Child’s maternal grandparents, filed a complaint seeking to intervene in the surrender by A.E.M. of her parental rights. At trial, the court found (1) that the burden of proof was on Grandparents to establish, by clear and convincing evidence, that it was in the Child’s best interest to remove her from Respondents, and (2) that they failed to meet their burden. The court dismissed Grandparents’ complaint. They appeal. We affirm.

Washington County Court of Appeals 02/27/15
Delwin L. Huggins et al v. R. Ellsworth McKee et al.
E2014-00726-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jon Kerry Blackwood

This is the second appeal in this action involving a dispute over setoff claims related to a bankruptcy proceeding. The action commenced when the original plaintiff, Delwin L. Huggins, filed a complaint against the defendants, R. Ellsworth McKee and Alternative Fuels, LLC (“AF”), in December 2007. In July 2009, Mr. Huggins filed for Chapter 7 bankruptcy. In that proceeding, John P. Konvalinka purchased Mr. Huggins‟s interest in this action and was subsequently joined as a substitute plaintiff. Following consideration of the defendants‟ motion for judgment on the pleadings, the trial court dismissed Mr. Konvalinka‟s claims. Upon appeal, this Court affirmed the dismissal as to Mr. Konvalinka‟s claims against Mr. McKee but reversed as to the claims against AF. Upon remand, the trial court dismissed Mr. Konvalinka‟s claims against AF as moot. Having determined that the trial court failed to explain its conclusion that no relief would be possible, we vacate the judgment.

Hamilton County Court of Appeals 02/27/15
State of Tennessee v. Reginald Perry Davis Lashley
M2014-00733-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Timothy L. Easter

The defendant, Reginald Perry Davis Lashley, appeals the revocation of his probationary sentence.  The defendant pled guilty to two counts of criminal attempt to deliver a controlled substance, to wit ecstasy, and received an effective six-year sentence, which was suspended to supervised probation following service of one year in incarceration.  Subsequently, a violation warrant was issued alleging that the defendant had violated the terms and conditions of his probation by being arrested for DUI, using intoxicants to excess, failing to report the new arrest, and failing to verify payment of costs and fines.  Following a hearing, the trial court found the defendant had violated the terms and conditions of his probation and ordered that the balance of the sentence be served in incarceration.  On appeal, the defendant contends that the decision to revoke was not supported by sufficient evidence.  Following review of the record, we conclude that the trial court did not abuse its discretion in revoking the defendant’s probation.  As such, the judgment of the trial court is affirmed.

Williamson County Court of Criminal Appeals 02/27/15
Keesha Washington v. State of Tennessee
M2014-00250-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Timothy L. Easter

The Petitioner, Keesha Washington, appeals the Williamson County Circuit Court’s denial of her petition for post-conviction relief from her 2010 conviction for aggravated arson and her eighteen-year sentence.  She contends that the post-conviction court erred by denying her relief because she received the ineffective assistance of counsel.  We affirm the judgment of the post-conviction court.

Williamson County Court of Criminal Appeals 02/27/15
Terry Nelson v. Michael D. Ponce & Associates, PLLC
M2014-01079-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Don R. Ash

This is a legal malpractice case that was dismissed on grant of summary judgment in favor of Appellee law firm. The trial court denied Appellant’s motion to continue the hearing on the motion for summary judgment, and also struck Appellant’s filings in opposition to the motion for summary judgment as untimely. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 02/26/15
Willie Moore v. State of Tennessee
W2014-00334-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner, Willie Moore, pleaded guilty to eleven counts of identity theft, Class D felonies, and received the agreed-upon sentence of eleven years on each count to be served concurrently with each other as a persistent offender at forty-five percent release eligibility. He filed the instant petition for post-conviction relief on the basis that his guilty pleas were not knowingly, voluntarily, and intelligently entered. The post-conviction court denied relief, and this appeal followed. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 02/26/15
Don Sanders v. State of Tennessee
W2013-02781-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James Lammey, Jr.

The Petitioner, Don Sanders, appeals the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief seeking relief from his conviction of first degree premeditated murder and resulting life sentence. On appeal, the Petitioner contends that the post-conviction court erred by ruling that his petition was untimely and by refusing to toll the one-year statute of limitations for his mental incompetence. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the post-conviction court’s dismissal of the petition.

Shelby County Court of Criminal Appeals 02/26/15
Alphonzo Chalmers v. State of Tennessee
W2014-00377-CCA-R3-ECN
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

A Shelby County Criminal Court Jury convicted the petitioner, Alphonzo Chalmers, of first degree murder, and the trial court imposed a sentence of life imprisonment in the Tennessee Department of Correction. Thereafter, the petitioner filed a petition for writ of error coram nobis, arguing that newly discovered mental health records entitled him to a new trial. The coram nobis court summarily denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the coram nobis court.

Shelby County Court of Criminal Appeals 02/26/15