Raybin and Richter Tennessee Supreme Court Hot List

(We do not maintain a "mailing list." To review the HotList each week, bookmark this page and return to it every Wednesday afternoon.)

David Raybin and Sarah Richter edit the Tennessee Supreme Court Hot List which will keep you informed about the recent grants of review in both civil and criminal cases and what it may mean to your practice.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of June 29, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

Special Edition: Tennessee Supreme Court Issues and Analysis

By David Raybin and Sarah Richter

The Original Tortfeasor Rule

The original tortfeasor rule generally holds that if one is injured by the negligence of another, and these injuries are aggravated by medical treatment, either prudent or negligent, the negligence of the wrongdoer causing the original injury is regarded as the proximate cause of the damage subsequently flowing from the medical treatment. The original tortfeasor's remedy would then arguably lie in an action for contribution against the medical provider. In Alice J. Banks v. The Elks Club Pride of TN 1102, et al., Plaintiff fell and injured herself at Elks Lodge. Plaintiff then treated with Physician, who operated at the wrong level of Plaintiff's spine during surgery. Thereafter, Plaintiff entered Nursing Home where her alleged lack of care worsened her injuries. Plaintiff sued Elks Lodge for premises liability and Physician for medical malpractice. Physician moved to dismiss arguing that under the common law original tortfeasors rule, Elks Lodge was the proximate cause of Physician's malpractice. The trial court disagreed and refused to dismiss Physician. Elks Lodge and Physician later amended their answers to allege fault against Nursing Home; however, the trial court denied the motions citing the original tortfeasors rule. The Supreme Court granted a Rule 9 review on December 15, 2008. Because this case has spawned a number of briefs from competing sides we have including the primary briefs below as items you can access. Thanks to Matt Russell with Stewart & Wilkinson, who sent us the briefs.

Permission to Appeal and the Court's order

Elk's Lodge principal brief

Boyce Brief

Amicus brief, TDLA

Amicus brief - Tennessee Association of Justice

Banks' principal brief

Elks Lodge Reply Brief

Boyce reply brief

And now, Our Prediction: The Supreme Court will likely address whether the original tortfeasor rule survived the adoption of comparative fault. The Court of Appeals has upheld the original tortfeasor's liability for subsequent medical complications in numerous other cases. Sarah believes that the Supreme Court has granted review of this case in order to abolish the original tortfeasor rule which is clearly at odds with comparative fault. David agrees but would note that the original tortfeasor rule is essentially the same as in criminal cases. See Odeneal v. State, 157 S.W. 419 (Tenn.1913) (when one inflicts injury one assumes the risk attendant to it including death from an allegedly inappropriate surgical procedure).

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of May 11, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of May 4, 2009)

Note: The entries for April 27 and May 4 are our first Hot List case summaries since the recent "redo" of our new web site. Sarah and David will continue bringing you timely analysis of the recent cases where the Supreme Court grants review with our predictions; occasionally we even agree !!

• Grandfathering Under Private Acts

In Smith County Regional Planning Commission v. Hiwassee Village Mobile Home Park, LLC, Planning Commission brought suit seeking civil penalties and injunctive relief against Mobile Home Park alleged to be in violation of a private act regulating mobile home parks in the county. The trial court found that Mobile Home Park was not protected by a grandfather provision and ordered injunctive relief to bring Mobile Home Park into compliance with the private act. On appeal, the court affirmed. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse the finding by the trial court that the mobile home park was abandoned and therefore, hold that Mobile Home Park was grandfathered in under the private act.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 27, 2009)

Criminal - Guilty Plea Failure to Advise of Direct or Collateral Consequences

In Ward v. State, 2009 WL 113236 (Tenn.Crim.App.,2009) the defendant pled guilty to aggravated sexual battery and received an effective sentence of thirteen and one-half years. Later he filed a petition for post-conviction relief, alleging that his guilty pleas were not knowingly, intelligently, and voluntarily made and that he received the ineffective assistance of counsel. Ward asserted that trial counsel rendered ineffective assistance by not informing him that registration as a sexual offender and that he would be on community supervision for life was a consequence of his guilty pleas. The Court of Criminal Appeals held that the community supervision and sex offender registration was only collateral to the plea and thus the plea would not be set aside:

A plea is not "voluntary" if it results from ignorance, misunderstanding, coercion, inducements, or threats. ........The trial court must determine if the guilty plea is "knowing" by questioning the defendant to make sure he fully understands the plea and its consequences. ...........This requirement is limited to the direct consequences of the plea; the failure of the trial court to explain the collateral consequences of a conviction will not render a guilty plea involuntary. .......This issue appears to be one of first impression in Tennessee. In its order denying the petition, the post-conviction court canvassed case law from other jurisdictions and found, as we have set out, that most jurisdictions considering the issue have held that sexual offender registration is a collateral consequence of a guilty plea. .........We agree with the conclusion of the post-conviction court that the sexual offender registry requirement is a collateral consequence of a defendant's guilty plea for the registration requirement is remedial and regulatory, not punitive or penal. Our conclusion is supported by the findings made by the General Assembly when it enacted the Registration Act. The General Assembly declared that the "primary governmental interest" furthered by the Registration Act was "protecting vulnerable populations from potential harm," and that continued registration of offenders was necessary "[t]o protect the safety and general welfare of the people of this state." ....... The General Assembly also declared that, in making certain information about sexual offenders publicly available, it did not intend for the information to be used to inflict retribution or additional punishment on those offenders. Id. § 40-39-201(b)(8). In addition, we also note that the Sixth Circuit discussed the Registration Act in Cutshall v. Sundquist, 193 F.3d 466 (6th Cir .1999), and determined that the Act served legitimate regulatory purposes and did not impose punishment. Accordingly, we conclude that the post-conviction court did not err in determining that the sexual offender registry requirement is a collateral consequence of a defendant's guilty plea..........On appeal, the petitioner additionally argues that the post-conviction court failed to consider the application of Tennessee Code Annotated section 39-13-524(a), which provides: In addition to the punishment authorized by the specific statute prohibiting the conduct, any person who, on or after July 1, 1996, commits a violation of § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-522, or attempts to commit a violation of any of these sections, shall receive a sentence of community supervision for life. In the petitioner's view, "[t]he purpose of this statute, which applies to sex offenders, is clearly to be part of the sentence for the offense, rather than a regulatory scheme having only collateral connection to the sentence."........Our review indicates that our supreme court has yet to address this issue, but Nevada and New Jersey courts, in looking at similar statutory provisions, have concluded that lifetime supervision is a direct, not collateral, consequence of a plea. We decline to follow the New Jersey and Nevada decisions, previously mentioned, believing the better approach is that taken by Judge Thomas in his dissent in Parker. In Parker, Judge Thomas likened the obligations of community supervision for life under Tennessee Code Annotated section 39-13-524(a) to prerequisites for a sex offender's release on parole and concluded that "the specifics of community supervision for life are ... more of a collateral consequence of a guilty plea as opposed to a substantial consequence. ......Given the protective and rehabilitative aims of sex offender community supervision and the similarities to regular parole, by extension of our supreme court's reasoning in Jaco, we conclude that community supervision is not punishment but, instead, a collateral consequence of the petitioner's guilty plea. Because the sexual offender registry and community supervision requirements were collateral consequences of the petitioner's guilty plea, the trial court was not required to inform the petitioner of these requirements before accepting his plea. Although the better practice is to inform defendants of the requirements, we cannot conclude that the trial court's omission violated a clear and unequivocal rule of law. Therefore, the petitioner has not established the existence of one of the five prerequisites for plain error relief, and our analysis need go no further. The petitioner is not entitled to relief.

Judge Tipton dissented "from the majority opinion's holding that lifelong community supervision is not a direct punitive consequence of the petitioner's pleading guilty to aggravated sexual battery. Tennessee expressly makes life supervision a part of the sentence. See T.C.A. § 39-13-524 (providing for "a sentence of community supervision for life")." The Tennessee Supreme Court granted review on April 27, 2009.

PREDICTION: David believes this is not even close. Being sentenced to 13 years in prison and then not being told you will be on parole-like community supervision for the rest of your life is hardly some "collateral consequence." The Court is confusing a specific sentence - albeit a sentence on parole-like supervision - with the cases holding that a judge need not address parole eligibility at the time of taking a plea. The possibility of parole is conjectural and thus arguably collateral. The certainty of lifetime sex offender supervision at the end of the "prison portion" of the sentence is absolute and is for a term for the offender's life. The statute compels "lifetime supervision" and, indeed, it is so much a part of the sentence that the judgment form can be later amended if that part of the sentence is not imposed at the time of the plea. State v. Bronson, 172 S.W.3d 600 (Tenn.Crim.App. 2005). Thus, the failure to address the lifetime supervision at the time of the plea is per se erroneous. Indeed one has to but observe the uniform judgment document to see that the lifetime supervision is one of the sentencing "check blocks." Lest anyone think that sex-offender supervision is a "walk in the park," one has but to look at the list of supervision conditions that includes everything short of tattooing bar codes on the offenders. See the sample conditions form here which include not only the "standard" parole conditions but a host of "special sex offender" restrictions such as mandatory polygraphs, curfews and electronic monitoring. The sex offender registration requirement is a much closer question; given that the legislature has now required a fee to register (at one time it was free) this is probably punitive enough to constitute a "sentence" for which advice must be given, certainly by the lawyer and probably by the judge at the time of the plea. This will be reversed.

• Interpretation of Chapter 118 of the Private Acts of 1987; Taxes

In Home Builders Assoc. of Middle Tenn. v. Williamson County, et al., Homebuilders filed a Complaint for declaratory judgment against County seeking interpretation of Chapter 118 of the Private Acts of 1987 under which County levied additional adequate facilities taxes on Homebuilders based upon its audit of actual square footage built. The trial court granted County summary judgment finding that County could calculate taxes at the time of the issuance of the certificate of occupancy rather than the time the building permit was issued. On appeal, the court affirmed. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm finding that the Legislature intended to allow County to levy the tax at the time of issuance of the certificate of occupancy or the time the building permit is issued.

• Classification of Marital Assets

In Lee Medical, Inc. v. Paula Beecher, et al., Husband (an attorney) received $17 million attorney's fee award seven months after Wife filed for divorce. The trial court classified the fee as a marital asset subject to equitable division. On appeal, the court affirmed the classification of the fee as marital property and the division of the marital estate. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm finding that the attorney's fee award constituted marital property. David disagrees because there was no collusion to obtain the funds until after the divorce.

• Discovery of Findings from Internal Peer Investigation

In Kimberly Powell v. National Healthcare of Cleveland, Inc., d/b/a Cleveland Community Hosp., the trial court allowed the discovery of the infectious rate at Hospital which an infection control nurse performed at the instruction of Hospital's quality control committee. Pursuant to a Rule 9 appeal, the Court of Appeals affirmed setting forth the parameters of the discovery. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm but address the dissent of J. Susano.

• Federal Preemption Under the Tennessee Trade Practices Act

In Samuel D. Leggett, et al. v. Duke Energy Corp., et al., Plaintiffs sued Natural Gas Companies under the Tennessee Trade Practices Act alleging that Natural Gas Companies conspired unlawfully to increase the wholesale prices of natural gas. The trial court granted Natural Gas Companies' motion to dismiss on the basis of federal preemption. On appeal, the court reversed and remanded the case for further proceedings. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely find that Plaintiffs' claims are subject to federal preemption. David agrees.

• Causation in Retaliatory Discharge Claim

In Gerry G. Kinsler v. Berkline, LLC, Employee filed action for retaliatory discharge after being terminated from his employment with Employer, three days after backing out of a workers' compensation settlement. The trial court granted Employer summary judgment finding that timing alone was insufficient to withstand Employer's motion for summary judgment. On appeal, the court reversed and remanded holding that proof of close temporal proximity alone can establish causation and genuine issues of material fact concerning Employer's explanation for termination preclude summary judgment. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm the holding that proof of close temporal proximity alone can establish causation but reverse as to whether Employer presented a legitimate non-pretextual reason for discharging Employee.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 20, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 13, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 6, 2009)

• Surrender of Parental Rights v. Termination of Parental Rights

In re: The Adoption of A.E., E.E., and E.E., father consented to the termination of his parental rights but appealed, in relevant part, on the grounds that his surrender was procedurally deficient. The court found that the trial court properly granted mother's petition to terminate parental rights. The Supreme Court granted review on April 6, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse and explain the difference between the surrender of parental rights and the termination of parental rights and the procedural safeguards associated with each.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 30, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 23, 2009)

• Criminal Statute - Theft of Services

In State v. Sheryl Ann Marshall, et al the defendants were each charged with one count of theft of services from Gallatin Housing Authority valued between $1,000.00 and $10,000.00. The defendants underreported their income to obtain public housing at a lower rate. The defendants moved to dismiss the indictments, arguing that these circumstances were not within the purview of the theft of services statute. See Tenn.Code Ann. § 39-14-104. The trial court granted the motion, concluding that occupancy of a residence pursuant to a lease term was not a service under the plain meaning of the statute. The State appealed and the Court of Criminal Appeals affirmed the dismissal agreeing that the defendants did not receive a "service" within the purview of the theft of services statute.

"First, the public housing provided by GHA does not constitute a "public service" under the "services" definition. The Defendants correctly point to the statutory rule of construction " ejusdem generis." Ejusdem generis means that "where general words follow special words which limit the scope of the statute, general words will be construed as applying to things of the same kind or class as those indicated by the preceding special words." .... In section 39-11-106, the phrase "other public service" is preceded by an enumerated list of services, mostly utilities. As noted by the trial court, the Defendants did not receive a "public service" but rather if they paid their rent, "these services [would] be provided." Second, public housing is not equivalent to "accommodations in hotels, restaurants or elsewhere" as these accommodations are transitory and temporary in nature. The trial court thoroughly analyzed the provisions of the lease and determined that the housing received by the Defendants was not an accommodation within the plain meaning of the statute. We agree that occupancy of a dwelling pursuant to a lease term is not an accommodation within the scope of the theft of services statute. Moreover, a service or accommodation was not provided when the Defendants renewed their respective leases and recertified to GHA that their income was accurate. To conclude that the present circumstances fall under the meaning of the "services" definition would impermissibly extend the coverage of the statute. Finally, as noted by the trial court, our legislature has criminalized certain actions in similar situations; for example, TennCare fraud codified at Tennessee Code Annotated section 71-5-2601; communications theft codified at Tennessee Code Annotated section 39-14-149; destruction or interference with utility lines, fixtures, or appliances codified at Tennessee Code Annotated section 39-14-411; and unauthorized water connections codified at Tennessee Code Annotated section 65-27-107. Under the present statute, "public service" does not include developments by a public housing authority. Our legislature has not yet seen fit to criminalize the behavior at issue...Based upon the foregoing reasoning, we conclude that the public housing received by the Defendants does not fall within the "services" definition for purposes of the theft of services statute. The order of the trial court dismissing the indictments against the Defendants is affirmed.

The Tennessee Supreme Court granted review on March 23, 2009. PREDICTION: The trial judge and the Court of Criminal Appeals were correct. Our legislature passes dozens of bills each year. They can create a new criminal offense if desired to "solve" this problem without a court doing violence to the rule of strict construction of criminal statutes which should dictate the result here.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 16, 2009)

• Summary Judgment

In Joseph Davis, et al. v. Patrick J. McGuigan, et al., homeowners filed suit against appraiser for intentional and negligent misrepresentation and violation of the Tennessee Consumer Protection Act. Appraiser moved for summary judgment on all claims. The trial court denied Appraiser's motion on the negligent misrepresentation claim, but dismissed the intentional misrepresentation claim and the Tennessee Consumer Protection Act claim. During the course of the proceedings, the trial court also excluded certain witnesses who were tendered as experts. Both parties appeal. On appeal, the court affirmed the grant of summary judgment on both claims and declined to address the remaining issues for lack of justifiability.

The Supreme Court granted review on March 16, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm the dismissal of homeowners, intentional misrepresentation claim but reverse the dismissal of homeowners' Tennessee Consumer Protection Act claim since appraiser failed to show that homeowners could not establish a causal link the alleged misrepresentation and their alleged injury.

• Procedure for Appeal of Suspension by Board of Education

In Joseph Bailey, et al. v. Blount County Board of Education, non-tenured teacher employed was suspended for ten days without pay upon charges of inappropriate conduct. Several months later, the Board terminated teacher's employment. Teacher and his wife filed a complaint alleging injuries as the result both the suspension and the termination. Upon the Board's motion for summary judgment, the trial court dismissed the complaint with prejudice upon the ground that plaintiffs failed to exhaust all administrative remedies before filing suit. On appeal, the court determined that the Board's decision terminating teacher's employment was void ab initio and therefore, reversed the trial court's summary judgment as to teacher's termination claims. However, the court affirmed the trial court's grant of summary judgment as to teacher's ten-day suspension claims upon the ground that it was barred under the applicable statute of limitations. The Supreme Court granted review on March 16, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse the grant of summary judgment as to teacher's ten-day suspension claims and affirm in all other respects.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 13, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 6, 2009)

• Surrender of Parental Rights v. Termination of Parental Rights

In In re: The Adoption of A.E., E.E., and E.E., father consented to the termination of his parental rights but appealed, in relevant part, on the grounds that his surrender was procedurally deficient. The court found that the trial court properly granted mother's petition to terminate parental rights. The Supreme Court granted review on April 6, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse and explain the difference between the surrender of parental rights and the termination of parental rights and the procedural safeguards associated with each.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 30, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 23, 2009)

• Criminal Statute - Theft of Services

In State v. Sheryl Ann Marshall, et al the defendants were each charged with one count of theft of services from Gallatin Housing Authority valued between $1,000.00 and $10,000.00. The defendants underreported their income to obtain public housing at a lower rate. The defendants moved to dismiss the indictments, arguing that these circumstances were not within the purview of the theft of services statute. See Tenn.Code Ann. § 39-14-104. The trial court granted the motion, concluding that occupancy of a residence pursuant to a lease term was not a service under the plain meaning of the statute. The State appealed and the Court of Criminal Appeals affirmed the dismissal agreeing that the defendants did not receive a "service" within the purview of the theft of services statute.

"First, the public housing provided by GHA does not constitute a "public service" under the "services" definition. The Defendants correctly point to the statutory rule of construction " ejusdem generis." Ejusdem generis means that "where general words follow special words which limit the scope of the statute, general words will be construed as applying to things of the same kind or class as those indicated by the preceding special words." .... In section 39-11-106, the phrase "other public service" is preceded by an enumerated list of services, mostly utilities. As noted by the trial court, the Defendants did not receive a "public service" but rather if they paid their rent, "these services [would] be provided." Second, public housing is not equivalent to "accommodations in hotels, restaurants or elsewhere" as these accommodations are transitory and temporary in nature. The trial court thoroughly analyzed the provisions of the lease and determined that the housing received by the Defendants was not an accommodation within the plain meaning of the statute. We agree that occupancy of a dwelling pursuant to a lease term is not an accommodation within the scope of the theft of services statute. Moreover, a service or accommodation was not provided when the Defendants renewed their respective leases and recertified to GHA that their income was accurate. To conclude that the present circumstances fall under the meaning of the "services" definition would impermissibly extend the coverage of the statute. Finally, as noted by the trial court, our legislature has criminalized certain actions in similar situations; for example, TennCare fraud codified at Tennessee Code Annotated section 71-5-2601; communications theft codified at Tennessee Code Annotated section 39-14-149; destruction or interference with utility lines, fixtures, or appliances codified at Tennessee Code Annotated section 39-14-411; and unauthorized water connections codified at Tennessee Code Annotated section 65-27-107. Under the present statute, "public service" does not include developments by a public housing authority. Our legislature has not yet seen fit to criminalize the behavior at issue...Based upon the foregoing reasoning, we conclude that the public housing received by the Defendants does not fall within the "services" definition for purposes of the theft of services statute. The order of the trial court dismissing the indictments against the Defendants is affirmed.

The Tennessee Supreme Court granted review on March 23, 2009. PREDICTION: The trial judge and the Court of Criminal Appeals were correct. Our legislature passes dozens of bills each year. They can create a new criminal offense if desired to "solve" this problem without a court doing violence to the rule of strict construction of criminal statutes which should dictate the result here.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 16, 2009)

• Summary Judgment

In Joseph Davis, et al. v. Patrick J. McGuigan, et al., homeowners filed suit against appraiser for intentional and negligent misrepresentation and violation of the Tennessee Consumer Protection Act. Appraiser moved for summary judgment on all claims. The trial court denied Appraiser's motion on the negligent misrepresentation claim, but dismissed the intentional misrepresentation claim and the Tennessee Consumer Protection Act claim. During the course of the proceedings, the trial court also excluded certain witnesses who were tendered as experts. Both parties appeal. On appeal, the court affirmed the grant of summary judgment on both claims and declined to address the remaining issues for lack of justiciability.

The Supreme Court granted review on March 16, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm the dismissal of homeowners, intentional misrepresentation claim but reverse the dismissal of homeowners' Tennessee Consumer Protection Act claim since appraiser failed to show that homeowners could not establish a causal link the alleged misrepresentation and their alleged injury.

• Procedure for Appeal of Suspension by Board of Education

In Joseph Bailey, et al. v. Blount County Board of Education, non-tenured teacher employed was suspended for ten days without pay upon charges of inappropriate conduct. Several months later, the Board terminated teacher's employment. Teacher and his wife filed a complaint alleging injuries as the result both the suspension and the termination. Upon the Board's motion for summary judgment, the trial court dismissed the complaint with prejudice upon the ground that plaintiffs failed to exhaust all administrative remedies before filing suit. On appeal, the court determined that the Board's decision terminating teacher's employment was void ab initio and therefore, reversed the trial court's summary judgment as to teacher's termination claims. However, the court affirmed the trial court's grant of summary judgment as to teacher's ten-day suspension claims upon the ground that it was barred under the applicable statute of limitations. The Supreme Court granted review on March 16, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse the grant of summary judgment as to teacher's ten-day suspension claims and affirm in all other respects.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 9, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 2, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted the Week of February 23, 2009)

• Robbery; Violence AFTER the Theft

In State v Swift the defendant argued that pursuant to the Tennessee Supreme Court's holding in State v. Owens, 20 S.W.3d 634, 641 (Tenn.2000), in order to sustain an aggravated robbery conviction, the state was required to establish beyond a reasonable doubt that the use of violence or placing another in fear occurred contemporaneously with the taking. The defendant asserted that because these two events did not occur contemporaneously, he could not have been found guilty of aggravated robbery. The Court of Criminal Appeal's Opinion, in relevant part, was as follows:

After [store employee] Czyrnik found the empty game cases, he went to the store's loss prevention desk, which was located at the front of the store, near the exit. Czyrnik told the loss prevention worker, Curtis Odom, that a man had stolen two PlayStation games. At that point, the defendant walked toward the desk. Czyrnik explained that the store's policy when dealing with a potential shoplifter was to approach the person without making a scene and ask the person to step into an office to fill out some paperwork. Czyrnik said that Odom attempted to speak to the defendant, but the defendant threw a punch at Odom, which missed. Odom and Czyrnik then attempted to grab the defendant, and the defendant again threw a punch, this time at Czyrnik. This punch also missed. Czyrnik said that the two employees cornered the defendant in the lobby outside the store's exit doors, but Czyrnik observed a knife in the defendant's hand, and the two employees backed off. Czyrnik said that he observed the defendant reaching at his pants when he initially approached the two employees at the loss prevention desk, so he presumed that the defendant was reaching for the knife at that point. He also said that seeing the defendant with a knife put him in fear of his safety.

Our supreme court has held that to sustain a robbery conviction, "the use of violence (fear) must precede or be concomitant or contemporaneous with the taking to constitute robbery" .... The defendant, basing his argument upon our supreme court's opinion in Owens, asserts that his aggravated robbery conviction must be overturned because his placing the two store employees in fear was not contemporaneous with his taking of the computer games. However, the facts of this case can be distinguished from those of Owens. In Owens, the defendant grabbed an article of clothing and fled the store without paying for the merchandise. Two store employees chased the defendant several blocks before the defendant dropped the merchandise and brandished a box cutter at the employees. The defendant was later convicted of robbery, but the Tennessee Supreme Court reversed, concluding that "[t]his evidence [was] not sufficient to establish violence or fear preceding or contemporaneous with the taking of property. Indeed ... the use of violence or fear was subsequent to the taking and temporally remote." The facts of this case are similar to one considered by this court in which we concluded that the defendant's use of violence was contemporaneous with his taking of property. In State v. Mario Merritt, .... the defendant and two other persons were observed taking several items of clothing from a Memphis department store. As the defendant walked past the store's cash registers and toward the store's exit, he was confronted by a loss prevention employee. .. The defendant then pointed a gun at the employee and ordered him to get onto the ground. Id. The employee refused, and an altercation ensued.. A second employee arrived, and the defendant shot this employee before leaving the store. ... This court affirmed the defendant's conviction, concluding that the facts of Owens were "clearly distinguishable from the [facts of Mario Merritt ] in which the violence was contemporaneous with the taking of the clothing." ... Similarly, the defendant's placing the Best Buy employees in fear was concomitant or contemporaneous to the taking of the store's merchandise, which occurred as he attempted to leave the store with the merchandise. Accordingly, we affirm the defendant's aggravated robbery conviction.

The Tennessee Supreme Court granted limited review on February 24 "only with regard to Mr. Swift's first issue - whether the evidence is insufficient to justify finding the appellant guilty of aggravated robbery rather than theft and aggravated assault where the violence or intimidation occurred after the taking was complete."

PREDICTION: The issue is characterized that the "violence or intimidation occurred after the taking was complete." The issue should be WHEN was the taking completed? A taking need not be instantaneous or a discreet point in time, but is like a wide-receiver at a football game: undisputed control. While the thief is still menacing the employees to make his escape from the curtilage of the store, he doesn't have undisputed control so the theft isn't complete. Any other result would transform this to an "armed shoplifting." It certainly is a closer case than some David has seen but here the conviction will be affirmed.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of February 17, 2009)

Amended Motion for New Trial; Timeliness

The issue in State v. Hatcher, 2008 WL 4071829, Tenn.Crim.App., 2008 was whether the AMENDED motion for a new trial was filed in a timely fashion. On January 28, 2005, Appellant was found guilty of first degree murder which carries a mandatory life sentence and two counts of attempted murder. On February 22, 2005, Appellant's first trial counsel filed a motion for new trial. The trial court entered the final judgments, including the order of sentence, on October 4, 2005. A sentencing hearing and hearing on a motion for new trial were heard jointly on October 4, 2005. At the conclusion of the hearing on the motion for new trial, the trial court denied the motion and appointed new counsel for Appellant. The trial court also stated that newly-appointed counsel would be allowed to file an amended motion for new trial. On November 2, 2005, newly-appointed counsel filed a "Motion Requesting Trial Court to Enter Order Permitting Counsel to File an Amended Motion for New Trial." In this motion, newly-appointed counsel argued that the trial court still had jurisdiction of Appellant's case because no notice of appeal had yet been filed. On the same date, the trial court filed an order granting the filing of an amended motion for new trial. On May 2, 2006, newly-appointed counsel filed an amended motion for new trial. The trial court held a hearing on the motion on July 31, 2006. The trial court entered an order denying the amended motion on the same date as the hearing. On August 30, 2006, Appellant filed a notice of appeal. The State argues that pursuant to Rules 29(e) and 33(b) of the Tennessee Rules of Criminal Procedure a motion for judgment of acquittal or motion for a new trial must be filed within thirty days of the date of entry of the order of sentence. Appellant's amended motion for new trial was filed after the thirty days. Therefore, according to the State, Appellant's appeal is not properly before the Court. The Court of Criminal agreed and declined to consider the grounds raised in the Amended Motion for a New Trial. The Tennessee Supreme Court granted review on February 17, 2009.

PREDICTION: If you look only at the absurd "Motion Requesting Trial Court to Enter Order Permitting Counsel to File an Amended Motion for New Trial" it is astounding that the Supreme Court would grant review here; it is pointless. The Court of Criminal Appeals was exactly correct. The problem is that the trial judge granted the motion (!) which arguably kept the case alive so that the erstwhile amended motion for a new trial WAS timely. That is the theory I suppose. Clearly the new lawyer had to have time to review the record to file amendments but the solution was to file a skeleton, first amended motion and then continue the hearing until more meat could be put on the bones and THEN file an indisputably timely, second amended motion for a new trial . There is no such thing as a motion to delay the filing of a time-sensitive pleading. Thus, there is and never should be such a thing as an Order granting a delay in the filing of a time sensitive pleading. It is a non-event. It would be the same as asking a court to extend the statute of limitations. Here the Supreme Court may be sensitive to the new lawyer relying on a trial judge's grant of an extension of which the judge had zero authority to grant. The Court of Criminal Appeals did not address that issue at all when I suspect that will be the center of the Supreme Court's resolution of the appeal. However, I cannot see the Supreme Court giving any weight to the trial judge's order. Any contrary result would end in chaos. The solution here is to deny the defendant relief on direct appeal, hope the defendant files a post conviction petition which should be granted on the spot and the defendant allowed a delayed appeal as a result of ineffective assistance of counsel. In this fashion the late-raised issues can be addressed on collateral relief. In fairness the defendant was convicted of murder which generated an automatic life sentence. The other counts required later sentencing hearings which meant the murder conviction and the other convictions were on two separate time tracks. That can be confusing but that still is no excuse for filing a "Motion Requesting Trial Court to Enter Order Permitting Counsel to File an Amended Motion for New Trial" and, worse, no excuse for the judge granting such a thing. As noted, the skeleton amended motion for new trial would have done the trick.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of February 9, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of February 2, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of January 26, 2009)

• Criminal Law; Expert Witness, Lesser Included Offenses

In State v. Brown, 2008 WL 2687702, Tenn. Crim. App. July 02, 2008, the defendant, was convicted by a Shelby County Criminal Court jury of first degree felony murder in the perpetration of aggravated child abuse and aggravated child abuse. ... In this direct appeal, he claims (1) that the trial court improperly allowed evidence of the defendant's bad acts without conducting a hearing as required by Tennessee Rule of Evidence 404(b), (2) that the trial court committed plain error in allowing a state's expert witness to testify about the victim's cause of death without establishing a proper foundation, (3) that the court erred in failing to replace a juror who indicated she had some knowledge of one of the state's witnesses, (4) that the trial court failed to give instructions on lesser offenses, and (5) that he is entitled to a new trial based upon prosecutorial misconduct during closing argument. We hold that although the state made an improper rebuttal argument, the error was harmless, and the remaining issues are without merit. We affirm the judgments of the trial court. ....Next, the defendant claims that the trial court erred in allowing Doctor Gunther to testify about the victim's cause of death without having established a proper foundation for her opinion. His specific complaint is that the witness offered expert opinion testimony about the victim's cause of death based upon her examination of slides made of the victim's preserved brain in 1999, despite the original autopsy having been performed in 1996 and the original slides having been lost in the interim. The defendant concedes that the defense did not make a contemporaneous objection to the evidence at trial but argues for relief on the basis of plain error. The state argues that no plain error has been shown...... In order for this court to reverse the judgment of a trial court, the error must be "of such a great magnitude that it probably changed the outcome of the [proceedings]," and "recognition should be limited to errors that had an unfair prejudicial impact which undermined the fundamental fairness of the trial." We hold that although the record clearly establishes what occurred in the trial court and does not reflect that the defendant waived the issue for tactical reasons, the defendant cannot establish that a clear and unequivocal rule of law was breached, that a substantial right was adversely affected, or that consideration of the issue is necessary to do substantial justice. The record reflects that Doctor Gunther performed the autopsy of the victim in September and October 1996. She acknowledged on cross-examination that slides and her report of the pathology work done on samples of the victim's brain were misplaced and that she took new samples from the victim's preserved brain, made new slides, and examined them in 1999 and created an addendum to her 1996 report. She explained, "And I recall that November of 1996 was about the time the histology laboratory, which had been kept in the Department of Pathology for decades, was being shut down and downsized, and all the slides were being moved to Memphis Pathology Laboratory. And I expect they got lost in the shuffle." She said she could have testified from her own memory and from the report of the neuropathologist, but in order to be complete, she took new samples from the victim's brain, which had not been misplaced and was preserved in formalin, and she repeated the examination procedure. She said her findings in 1999 were consistent with her 1996 conclusion that the victim died from shaken baby syndrome. We perceive no breach of a clear and unequivocal rule of law in the admission of the evidence nor any effect on a substantial right of the defendant. We note, as well, Doctor Schmidt's testimony was consistent with that of Doctor Gunther with respect to the cause of the victim's injury and resulting death. Even if Doctor Gunther's testimony had been erroneously admitted, we would be unable to conclude, based upon the additional testimony of Doctor Schmidt, that consideration of the issue was necessary to do substantial justice. For these reasons, we hold that the defendant cannot establish all of the prerequisites to plain error relief. .......In his next issue, the defendant argues that the trial court erred in failing to instruct the jury on the lesser offenses of the felony murder charge. The state argues that the defendant is not entitled to relief because there were no facts from which an inference of guilt of second degree murder could be drawn, that the defendant invited error as to the lesser included offense of criminally negligent homicide by requesting that lesser offense instructions not be given, that there was no proof of recklessness to support a reckless homicide charge, and that any error in the failure to charge reckless homicide was harmless. Pursuant to the statute in force at the time of the offenses on trial, the trial court was required "to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so." T.C.A. § 40-18-110(a) (1997). Thus, when the evidence introduced by either party was susceptible of inferring guilt of a lesser offense, the trial court was required by this statute to charge such lesser offense. ...An instruction was not required, though, if the record contains no evidence to support a conviction for the lesser offense. ... In this regard, "the trial court must consider the evidence in the light most favorable to the existence of the lesser included offense and if the evidence so considered permits an inference of guilt of a lesser offense, the trial court must give instructions as to that lesser offense." ......The record reflects that the trial court informed the parties that it would be instructing the jury on felony murder without any lesser offenses. Despite the state bringing Trusty to the court's attention and stating that the defense proof might call for an instruction on criminally negligent homicide as a lesser offense, the defendant declined lesser included offense instructions. Without regard to the defendant's desire regarding lesser included offense instructions, the trial court had an independent duty to instruct the jury on all applicable lesser included offenses. .... Thus, the defendant's failure to request the instructions is not determinative [under the law at the time].Second degree murder is "a knowing killing of another[.]" T.C.A. § 39-13-210(a)(1). "A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result." .... Considered in the light most favorable to the existence of the offense, the evidence in the present case would not support a conviction of second degree murder. There was no evidence the defendant acted knowingly in causing the victim's death. The defendant's theory of the case was that he did nothing to harm the victim and that she was injured when she fell down a flight of stairs. No instruction was required on the lesser offense of second degree murder....'Reckless' refers to a person who acts recklessly with respect to ... the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that ... the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint....Considered in the light most favorable to the existence of the lesser included offense, the evidence does not support a conclusion that the defendant was aware of a substantial and unjustifiable risk of the victim's death. The defendant testified that he had seen the victim walk up and down the stairs before. There was no evidence he realized any danger in placing her at the top of the stairs. The trial court did not err in not instructing the jury on reckless homicide. 'Criminal negligence' refers to a person who acts with criminal negligence with respect to the ... result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that ... the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint....T.C.A. § 39-11-302(d). Considering the evidence in the light most favorable to the existence of the lesser offense, the evidence supported an instruction on criminally negligent homicide. The defendant's proof would support a conclusion that the defendant should have been aware of a substantial and unjustifiable risk that leaving the victim unattended at the top of the stairs would result in her death. Therefore, we must consider whether the failure to give the instruction was harmless beyond a reasonable doubt. .... In that regard, we note that although the defendant offered evidence that the victim was injured by falling down the stairs, his proof did not address the inconsistency of that account with the nature and magnitude of the victim's injuries. All of the medical proof refuted the accuracy of the defendant's account. Additionally, the jury's rejection of the defendant's theory of accidental injury is evident by its separate verdict of aggravated child abuse. We hold that the failure to give the instruction on criminally negligent homicide was harmless beyond a reasonable doubt.

On January 26, 2009 the Tennessee Supreme Court granted review. PREDICTION: The Court gave no hint as to which issue was worthy of review. David believes the lesser included offense issue may have some merit because the quality of the defense proof does not drive the harmless error train. The fact that the jury had no other option but an all or nothing option dilutes the harmless of the failure to instruct on negligent homicide. The expert witness issue may have some traction but David thinks that relief here, if any, will come on the instruction issue. If the defendant prevails it will be a close, split decision.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of January 12, 2009)

NO REVIEWS WERE GRANTED THIS WEEK

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