• Supplementing the Record on Appeal

In State v. Larry Edward Moore, Jr., the defendant was convicted of carjacking and challenged on appeal, inter alia, the trial court's decision to not redact certain statements he made in an interview videotaped by police. Somehow the videotape in the record became damaged and unable to be viewed by the Court of Criminal Appeals. The court found that the defendant-appellant failed to meet its responsibility under T.R.A.P. 24(b) to prepare an accurate and complete record - and that the remainder of the record was sufficient to permit meaningful review - and upheld the conviction. In its order granting review, the Supreme Court ordered the defendant-appellant "to supplement the record on appeal with a non-defective DVD version" of the videotape, citing T.R.A.P. 24 (which allows the record to be corrected at any time) and State v. Byington, 284 S.W.3d 220 (Tenn. 2009), and remanded to the Court of Criminal Appeals for reconsideration.

Prediction: The case was remanded without consideration of the merits. Since this is primarily a question of fact based on a videotape that David - like the appellate courts - has not seen, he will not offer a prediction of how the lower court will hold on remand.

• Kidnapping During Robbery

In State v. White, the defendant was convicted of burglary, aggravated robbery, and especially aggravated kidnapping for his robbery of a White Castle restaurant. The facts showed that defendant took an employee's keys at gunpoint in the restroom, ordered her to remain in the bathroom, and then returned to force her to open the employee room and the safe contained therein. He then took money and various items from the restaurant and told the employee to remain in the room for several minutes after he left. The trial court denied defendant's motion to vacate the kidnapping charge. The Court of Criminal Appeals reversed, holding that the "movement" of the employee was not beyond that necessary to consummate the robbery and was merely incidental to it, thus not creating an independent offense of kidnapping. The fact that the defendant forced the employee to stay in the bathroom before moving her to the employee room is irrelevant, the court explained, because the robbery was continuing throughout those actions. The Supreme Court granted review on October 18, 2010.

Prediction: David believes the Supreme Court will uphold the ruling of the lower court. The Court's "necessary to consummate the underlying felony test" is very fact specific as indicated by the discussion of and comparison to previous cases in the lower court opinion, and finding that the defendant's actions here did not constitute a separate offense would be a consistent holding that clarifies the rule.

• Right to Jury Trials in Ouster Actions

In State of Tennessee ex rel. Robert L. Wolfenbarger, III., et al, vs. Scott Moore, et al, "citizen plaintiffs" filed an ouster suit against Scott Moore and Paul Pinkston, Knox County Commissioners. The trial court found that Moore, but not Pinkston, should be removed from office. The Court of Appeals reversed the judgment in favor of Pinkston and remanded for a new trial because the trail court erred by denying Citizen Plaintiffs' request for a jury trial. The Ouster Act provides that ouster actions "shall be conducted in accordance with the procedures of court of chancery," and Tenn. Code Ann. S 21-1-103 provides for jury trials in chancery court. This statute was intended to give a broad right to jury trial unless "expressly excepted" by another statute. Smith County Education Association v. Anderson, 676 S.W.2d 328, 337 (Tenn. 1984). Because the Ouster Act does not "expressly" preclude jury trials, the Court of Appeals held that the trial court erred in denying Plaintiffs' request. The Supreme Court granted Pinkston's application for review on August 25.

Prediction: Sarah believes the Court will affirm, finding that parties are entitled to request a trial by jury in an ouster action. David disagrees; that would be a dramatic change in the law.

• Writ Of Error Coram Nobis

In Wlodarz v. State, Tenn.Crim.App. (May 19, 2010) the defendant entered a best interest plea to murder. He filed a writ of error coram nobis claiming that a ballistics report was newly discovered evidence or that he did not know about the report when he entered a "best interest" guilty plea. The trial court found held that, even if the reports were new evidence, it was not persuaded that the report invalidated Petitioner's pleas. It reasoned that, because Petitioner entered best interest pleas, he did not necessarily agree with all the evidence, but he still accepted guilt in exchange for avoiding a potential death sentence. Given Petitioner's intelligence and awareness of the issues, the trial court concluded, the additional evidence did not show that his pleas were not knowingly and voluntarily entered. The Court of Criminal Appeals affirmed; "Petitioner testified that he did not see the reports until February 2008, and the coram nobis court accepted that testimony as true. Regardless, that was the basis for Petitioner's earlier post-conviction petition. .. Petitioner was unable to meet the burden for his post-conviction petition, and we will not re-litigate that issue now.". The Supreme Court granted review on August 25, 2010 and requested the parties brief the question of whether a guilty pleaded conviction is even subject to a writ of error coram nobis.

Prediction: The Supreme Court will hold that a writ of error coram nobis is not a "back door" vehicle to challenge a guilty plea. This will be affirmed.

• Double Jeopardy

In State v. Watkins, Tenn.Crim.App. (March 1, 2010) the Court of Criminal Appeals held that double jeopardy prevented defendant from being sentenced to consecutive terms for same criminal conduct and thus sentences were merged. Defendant was sentenced for four years for reckless homicide and twenty five years for aggravated child abuse arising from same conduct which caused the death of the thirteen month old victim. The evidence which supported defendant's convictions were identical as both convictions rested on the same act, namely the impact he caused between the victim's head and the stairway wall. The defendant did not raise the issue in the motion for new trial and thus the appellate court considered the issue under the stricter plain error standard. The Supreme Court granted review on August 25, 2010.

Prediction: Hopefully, that the issue arises as a plain error standard should not trouble the Supreme Court at all. These dual convictions should not stand otherwise every murder could also have a separate reckless endangerment charge tacked on as well. Conceptually, the homicide here should merge with the child abuse since the latter carries far more time. David does not see this case being reversed since the appellate merger was proper albeit in a plain error context.

• Rule 11 Sanctions

In Thomas & Associates, Inc. v. Homes By Design, Inc. and Tennessee American Contractors, Inc., prior to the trial of the case, Plaintiff filed a Rule 11 motion for sanctions contending that the filing of Defendant's counterclaim violated Rule 11. Thereafter, the case went to trial on Plaintiff's complaint and Defendant's counterclaim. At the close of the proof, Defendant voluntarily dismissed its counterclaims. After the trial was concluded, the trial court held that Defendant and its attorneys violated Rule 11 because the evidence presented at trial revealed that the counterclaim had no basis in fact or law and they failed to dismiss the counterclaim when the motion for sanctions was filed. On appeal, the Court of Appeals reversed the imposition of Rule 11 sanctions determining that the trial court applied an incorrect legal standard by evaluating the issue with the wisdom of hindsight instead of examining the circumstances existing at the time the counterclaim was signed by the attorneys, and for imposing sanctions on Defendant for failing to voluntarily dismiss its counterclaim, because Rule 11 does not impose a duty to review or reevaluate a pleading once filed or to take affirmative steps thereafter to dismiss a previously filed pleading. The Supreme Court granted review on March 1, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely affirm the decision of the Court of Appeals and clarify that pursuant to Tenn. R. Civ. P. 11, the trial court should test the signer's conduct by inquiring what was reasonable to believe at the time of signing the pleading. David disagrees: if facts later come to light that make the pleading wholly frivolous there should be a duty to mitigate and correct.

• Rule 60 Motion to Set Aside Judgment

In Stephanie H. Hewitt v. Joseph Cook, Mother filed a contempt petition against Father for failure to pay child support and also sought a judgment for the past-due support. In September 2006, Father was found in contempt and Mother was awarded a judgment. Father paid neither the judgment nor the current support obligation. In January 2007, Mother filed another contempt petition. After the second contempt petition was filed, Father's attorney withdrew from representing him. A hearing was held on Mother's contempt petition in August 2007, but Father did not attend. In September 2007, the trial court entered another order finding Father in contempt and awarding Mother another judgment. In March 2008, Father filed a Rule 60 motion for relief from the judgment, arguing that he did not have notice of the August 2007 hearing, was never sent a copy of the judgment, and only learned of the judgment in December 2007. The motion also sought the recusal of the trial judge. The trial court denied Father's Rule 60 motion and motion for recusal. On appeal, the court affirmed. The Supreme Court granted review on February 22, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely reverse holding that the failure to comply with Tenn. R. Civ. P. 58 invalidated the judgment. David agrees.

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