APPELLATE COURT OPINIONS

When asked to rule on the defendant‘s motion for physical examination by a certified rehabilitation counselor, the trial judge telephoned the director of a university department for information regarding the program in order to determine whether rehabilitation counselors "are even qualified to testify as experts." The trial judge disclosed the communication on the record and granted the examination. Later, the defendant filed a motion to recuse. The trial judge denied the motion and this accelerated interlocutory appeal followed. Because the trial judge learned information concerning facts in dispute from an extrajudicial source, we conclude that recusal is required by Canon 2.11 of the Tennessee Code of Judicial Conduct

I concur in the opinion as authored by Judge Stafford and write separately to reiterate the conclusion that nothing in the record leads me to believe that the trial judge is biased or prejudiced for or against any party or that there was any improper motive in the court’s contact with Dr. Mulkey. As gatekeeper of the expert opinion evidence proffered at trial, the court has the responsibility under Tenn. R. Evid. 702 and 703 to determine whether the evidence “will substantially assist the trier of fact to understand the evidence or to determine a fact at issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The record fully supports the trial court’s statement that the purpose of the call to Dr. Mulkey was to gain basic knowledge of the field of rehabilitation counseling, a discipline taught at the University of Tennessee. My concern, and what leads me to conclude that recusal is appropriate in this case, is the limited and specific nature of the court’s inquiry and how that inquiry could reasonably create the appearance of impropriety

Following a jury trial in the Dyer County Circuit Court, Defendant, Daniel McCaig, was found guilty of misdemeanor theft. Defendant appeals this conviction. The theft charge was in Circuit Court by virtue of Defendant’s appeal from a conviction for the offense following a bench trial in the Dyersburg Municipal Court. The Dyersburg Municipal Court also partially revoked Defendant’s probation in an unrelated offense. Defendant appealed both judgments to the Circuit Court for de novo review. Defendant was sentenced by the Circuit Court to serve 11 months and 29 days in the Dyer County Jail for the theft conviction. The Circuit Court judge (hereinafter “trial judge”) also revoked his probation on the other case and ordered him to serve that sentence concurrently with the sentence for theft. Defendant has also appealed to this court the revocation of probation. In this appeal, Defendant raises the following issues for our review: 1) the evidence was insufficient to support his theft conviction; and 2) his due process rights were violated by the State’s failure to provide written notice of the allegation against him which was the basis for the trial court’s revocation of probation. Having reviewed the record and the briefs of the parties, we conclude that the evidence was sufficient to support Defendant’s conviction for theft. We also conclude that the written notice to Defendant of his probation violation did not include the theft charge, and therefore, that ground cannot be a basis to revoke probation. Furthermore, the trial court failed to base its decision on a de novo review. Therefore, we affirm Defendant’s theft conviction and reverse the trial court’s revocation of Defendant’s probation, and dismiss the probation violation warrant.

I cannot concur in the majority’s conclusion that Judge Stanley’s “personal extrajudicial knowledge” created “an appearance of impropriety . . . under Canon 2.11 of the Code of Judicial Conduct necessitating recusal.” Therefore, I respectfully dissent

The Defendant, Timothy Andrew Bishop, appeals his convictions for two counts of child abuse, a Class D felony.  The Defendant challenges the trial court’s admission of lay opinion testimony from a detective regarding the victim’s bruises, the prosecutor’s statements during closing argument, and the admission of a hearsay statement under the then existing state of mind exception. He also asserts on appeal that the trial court erred in admitting, under the excited utterance exception to the rule against hearsay, the victim’s statements at school that the Defendant was responsible for his bruises.  After a thorough review, we conclude that the hearsay statements admitted as excited utterances were admitted in error and that the error was not harmless.  Accordingly, we reverse and remand for a new trial.

This appeal concerns a local zoning board’s denial of a permit to replace an old billboard with a new digital billboard. After the zoning board denied the permit for the new billboard, the applicants who had requested the permit filed a petition for a writ of certiorari in chancery court. The chancery court found no basis to disturb the zoning board’s denial of a permit based upon its review of the administrative record. Although the applicants have appealed from the chancery court’s decision, we conclude that we cannot reach the merits of their appeal. Because the applicants did not file a petition for a writ of certiorari that complied with Tennessee Code Annotated section 27-8-106 within sixty days of the zoning board’s order, we conclude that the chancery court was without subject matter jurisdiction to review the zoning board’s actions. We accordingly vacate the chancery court’s order and dismiss this case.    

Plaintiff, a special education assistant, was injured at work when two middle school students were roughhousing in a school hallway and one was pushed into her, causing her to fall. She sued Rutherford County for negligence, pursuant to the Tennessee Governmental Tort Liability Act, alleging that, inter alia, her injuries were caused by the County’s failure to properly supervise the students, whom she also sued. After a bench trial, the court rendered judgment in favor of the defendants. Plaintiff appeals the judgment with respect to the County, contending that the court erred in holding that the County was immune from suit, that the evidence preponderated against certain findings of the court, and that the court erred in concluding that the County’s agents had not acted negligently. Discerning no error, we affirm the judgment.

Upon petition of the Tennessee Department of Children’s Services (“the Department”), the trial court terminated the parental rights of Mother. We reverse the trial court’s determination that Mother willfully failed to support her children prior to her incarceration and its determination that she failed to substantially comply with the requirements of the family permanency plans created in this case. However, clear and convincing evidence supports the remaining grounds for termination relied upon by the trial court, as well as the trial court’s determination that the termination of Mother’s parental rights is in the children’s best interest. Accordingly, we affirm the termination of Mother’s parental rights.

In December 2014, the Madison County Grand Jury indicted Jakeil Malik Waller (“the Defendant”) and the Defendant’s brother, Jernigal Blackwell, for second degree murder and aggravated assault. Following a trial, a jury convicted the Defendant of second degree murder and felony reckless endangerment, as a lesser included offense of aggravated assault, and the trial court sentenced the Defendant to an effective sentence of twenty-seven years’ incarceration. On appeal, the Defendant contends that: (1) the evidence was insufficient to support his conviction for second degree murder; (2) the prosecutor committed misconduct during closing argument; and (3) the trial court abused its discretion by admitting two photographs of the victim that were not relevant to any issue at trial. Upon review, we affirm the judgments of the trial court.

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights to two minor children on the ground of mental incompetence and on its finding that termination of Appellant’s parental rights is in the children’s best interests. Discerning no error, we affirm.

The Petitioner, Larry Hunt, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his aggravated robbery, aggravated kidnapping, and aggravated rape convictions, for which he is serving an effective thirty-two-year sentence. He contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

The Petitioner, Maurice Dotson, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief from his convictions of possessing marijuana with intent to sell and deliver, possessing a firearm during the commission of a dangerous felony, possessing drug paraphernalia, and theft of property valued under five hundred dollars and resulting effective eleven-year sentence. On appeal, the Petitioner contends that his guilty pleas were involuntary and that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The petitioner, Charles T. Hartley, appeals the denial of his petition for post-conviction relief. The petitioner, originally indicted for rape of a child, entered an Alford plea to the lesser offense of attempted aggravated sexual battery and received a sentence of ten years to be served on supervised probation. The petitioner filed a petition for post-conviction relief arguing: (1) the judgments in his case were illegal because they did not reflect the sentence of mandatory supervision for life; and (2) he received ineffective assistance of counsel. The post-conviction court dismissed the petition finding that it was barred by the statute of limitations and also ruled that if an appellate court concluded that the petition was not barred, that the petitioner received effective assistance of counsel. On appeal, the petitioner argues that the trial court erred when it dismissed his petition. Following our review, the judgment of the post-conviction court is affirmed.

The trial court summarily dismissed the Appellant’s “motion for new trial or evidentiary hearing on the grounds of ineffective assistance of counsel.”  The trial court properly treated the pleading as a subsequent petition seeking post-conviction relief and denied the same without a hearing.  The trial court’s ruling is hereby affirmed.

Sherry Ann Claffey (“the Defendant”) entered a no contest plea to two counts of vehicular homicide as a result of reckless conduct. Following a hearing, the trial court denied judicial diversion, sentenced the Defendant to concurrent terms of five years on each count, and ordered the Defendant to serve 200 days in confinement and to serve the balance of her sentence on probation. On appeal, the Defendant argues that because the trial court failed to properly consider the factors  applicable to judicial diversion, no presumption of reasonableness should apply to the trial court’s denial of judicial diversion, and this court should conduct a de novo review of the record and grant judicial diversion. After a review of the record and applicable law, we conclude that because the trial court unduly considered irrelevant facts concerning the death  of victims and facts not supported by the proof concerning the Defendant’s prescription drug usage to support the three factors on which it relied to deny judicial diversion, no presumption of reasonableness applies. After reviewing the record de novo, we hold that judicial diversion should be granted to the Defendant and reverse the judgments of the trial court.

This is a negligence case involving the alleged sexual assault of a 13-year-old special education student by another 13-year-old special education student in a school bathroom. The trial court determined that the Appellant school district was not entitled to summary judgment as a matter of law because there was a question of fact as to whether the incident was foreseeable. We conclude that there is no dispute of material fact and that summary judgment in favor of the school district should be granted. Reversed and remanded.

The Tennessee Supreme Court has remanded this case for reconsideration in light of State v. Willie Duncan, --- S.W.3d. ---, No. W2013-02554-SC-R11-CD, 2016 WL 6024007 (Tenn. Oct. 14, 2016). See State v. Angela Ayers, No. W2014-00781-CCA-R3-CD, 2015 WL 4366633 (Tenn. Crim. App. July 16, 2015) (“Ayers I”), perm. app. filed, case remanded (Tenn. Oct. 31, 2016). Relevant to the current remand, this court concluded in the previous appeal that the State‟s failures to identify the underlying dangerous felony in the indictment count related to employing a firearm during the commission of a dangerous felony and to charge a separate offense that was an enumerated dangerous felony rendered the indictment count relative to the employing a firearm during the commission of a dangerous felony defective. Upon further review, we conclude that in lieu of identifying the enumerated dangerous felony in the indictment count charging employing a firearm during the commission of a dangerous felony, the indictment must charge separately at least one enumerated dangerous felony in order to provide a defendant with adequate notice of the charged offense. Under the circumstances in this case, we conclude that the count charging employing a firearm during the commission of a dangerous felony is defective because it failed to provide the Defendant adequate notice of the charged offense. We affirm the judgments of the trial court relative to the voluntary manslaughter and false report convictions, but we reverse the employing a firearm during the commission of a dangerous felony judgment, vacate the conviction, and dismiss the charge.

This appeal arises from a jury trial. The plaintiff filed a premises liability suit against the defendant-homeowners after she allegedly fell and sustained injuries while viewing the defendants’ home as a prospective buyer. After a two-day jury trial, the jury returned a verdict in favor of the defendant-homeowners, finding that they were not at fault for the plaintiff’s injuries. The plaintiff raises numerous issues on appeal. We affirm.      

The defendant, Hayden Daniel Rutherford, appeals his Sequatchie County Circuit Court guilty-pleaded conviction of robbery, claiming that the trial court erred by ordering that he serve his six-year sentence in confinement.  Discerning no error, we affirm.

A Davidson County Criminal Court Jury convicted the Appellant, Mark Brian Dobson, of five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony.  After a sentencing hearing, he received an effective seventy-year sentence.  On appeal, the Appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court improperly denied his motion for a continuance, (3) the trial court erred by admitting into evidence a recorded telephone call in which his mother mentioned a stolen firearm, (4) the indictment for the charge of employing a firearm during the commission of a dangerous felony was defective for failing to name the underlying dangerous felony, (5) the trial court improperly instructed the jury on employing a firearm during the commission of a dangerous felony, and (6) his effective sentence is excessive.  Based upon the record and the parties’ briefs, we conclude that the Appellant’s sentence for employing a firearm during the commission of a dangerous felony in count eleven must be modified and remand the case to the trial court for correction of that judgment and to correct a clerical error on the judgment for count twelve.  The judgments of the trial court are affirmed in all other respects.

Jana Maria Deboe Howard Sisco (“Mother”) appeals the March 31, 2015 order of the Circuit Court for Montgomery County (“the Trial Court”) modifying the Permanent Parenting Plan entered when Mother and Robert Glynn Howard (“Father”) divorced. Mother raises issues regarding whether a material change in circumstances justifying a modification had occurred and, if so, whether a modification was in the best interest of the parties’ minor children. We find and hold that the March 31, 2015 order fails to comply with Tenn. R. Civ. P. 52.01. We, therefore, vacate the March 31, 2015 order and remand this case to the Trial Court to make specific findings of fact and conclusions of law in compliance with Tenn. R. Civ. P. 52.01. 

The Defendant, Candace Renee Bennett, pleaded guilty to attempted aggravated child neglect in exchange for an agreed eight-year sentence. The trial court ordered that the Defendant serve her sentence on probation and that her sentence run concurrently with a sentence in another case. The Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 contending that her sentence was illegal. She asked to withdraw her guilty plea and have the charges dismissed. The trial court denied her motion. On appeal, the Defendant contends that her sentence is illegal because it is not authorized by, and directly contravenes the criminal responsibility statute. After review, we affirm the trial court’s judgment.

The Petitioner, Jimmy Newell, appeals the dismissal of his habeas corpus petition in which he challenged the legality of his two convictions for theft of property between $1,000 and $10,000 and his effective four-year sentence concurrently and with parole eligibility after service of thirty percent of his sentence. After a thorough review of the record, we conclude that the petition was properly dismissed, and we affirm the judgment of the habeas corpus court.