Raybin And Perky Tennessee Supreme Court Hot List – Part 2
- What is a Handgun ?
Case: State of Tennessee v. Guy Alvin Williamson (Tenn. Crim. App. 2011)
Facts: This case arises out of the pat-down of Guy Alvin Williamson outside a motel room in Covington, Tennessee, during which officers discovered a handgun. Mr. Williamson filed a motion to suppress the evidence and dismiss the indictment, arguing that he was detained and searched without probable cause or reasonable suspicion. The trial court denied the motions. As a result, Mr. Williamson was convicted of being a convicted felon in possession of a handgun and possession of a firearm while under the influence of alcohol or a controlled substance.
Issue: The Court of Criminal Appeals affirmed the judgments of the trial court. The Court held that the detention of Mr. Williams was fully justified by what the officers learned and observed once they arrived at the scene in light of the totality of the circumstances. Also, the Court held, in a case of first impression in Tennessee, that although the handgun was “not capable of expelling a projectile,” operability of the handgun is not what is required by statute, but only design, make, or adaption to expel a projectile is required.
Review Granted: January 11, 2012.
Prediction: David believes the Supreme Court has taken this case to determine if the object is a “handgun.” David thinks the Court will reverse the decision of the Court of Criminal Appeals. This is a criminal statute and must be strictly construed. The contrary federal cases do not seem persuasive.
- Sentence Enhancement
Case: State of Tennessee v. Susan Renee Bise (Tenn. Crim. App. 2011)
Facts: This case arises out of Susan Renee Bise’s involvement with her son and a friend in breaking onto the property of the victim, James McElroy, and taking tools and various other items of value sometime in September 2008. As a result, Ms. Bise was convicted by a Greene County Criminal Court jury of facilitation of aggravated burglary and two counts of theft of property in an amount greater than $1,000 but less than $10,000, all Class D felonies, and was sentenced to an effective term of three years as a Range I offender. The trial court applied an enhancement factor in reaching her sentence.
Issue: The Court of Criminal Appeals affirmed the convictions but concluded that the trial court inappropriately enhanced the defendant’s sentences, modifying the sentences to the minimum in the range of two years. The Court held that the State presented sufficient evidence for a rational trier of fact to find that Ms. Bise committed two counts of theft over $1,000. The issue on appeal is whether an appellate court has authority to review and modify the trial court’s sentence in light of the 2005 amendment to the Sentencing Act and in light of Blakely/Cunningham.
Review Granted: January 11, 2012.
Prediction: David believes the Supreme Court will permit the sentence reduction.
- Ineffective Assistance of Counsel
Case: Brandon Mobley v. State of Tennessee (Tenn. Crim. App. 2011)
Facts: Brandon Mobley was convicted in 2005 of two counts of premeditated first degree murder, especially aggravated robbery, and setting fire to personal property for which he is now serving two consecutive life sentences plus 19 years. Mr. Mobley filed a petition for post-conviction relief based upon allegations that he was denied the effective assistance of counsel and other constitutional deprivations. The post-conviction court denied his petition.
Issue: The Court of Criminal Appeals reversed the judgment of the post-conviction court determining that the petitioner is entitled to relief on the issue of ineffective assistance of counsel concerning the use of expert testimony. In a complex ruling, the Court held that the errors of counsel in arguing whether the expert could be asked whether Mr. Mobley could form the requisite intent at both the trial court and appellate court levels, in conjunction with the trial counsel’s failure to inquire or even understand his duty to inquire about Mr. Mobley’s ability to premeditate, amounted to deficient performance.
Review Granted: January 10, 2011.
Prediction: David believes that the Supreme Court will likely uphold the Court of Criminal Appeals grant for post-conviction relief. This was a profound failure which effectively removed the only opportunity the defendant had for a lesser included offense conviction.
- Sufficiency of the Evidence
Case: State of Tennessee v. Carl J. Wagner (Tenn. Crim. App. 2011)
Facts: Carl J. Wagner was convicted in a Davidson County Criminal Court of second degree murder, first degree murder committed in the perpetration of an aggravated robbery, and especially aggravated robbery. The trial court imposed concurrent sentences of 22 years’ incarceration, life imprisonment, and 22 years’ incarceration, respectively, and merged the conviction of second degree murder into the conviction of first degree murder.
Issue: The Court of Criminal Appeals affirmed the conviction in count one and remanded that count for resentencing, and reversed and dismissed the charges in counts two and three. The Court determined that there was insufficient evidence to support the Mr. Wagner’s convictions of first degree murder committed in the perpetration of an aggravated robbery and especially aggravated robbery. Under the facts, there was not enough proof that anything was actually stolen. However, there was sufficient evidence that Mr. Wagner acted knowingly by firing his gun in the direction of the victim in that he was reasonably certain to cause the death of the victim by engaging in such conduct, therefore presenting sufficient evidence to support the conviction of second degree murder.
Review Granted: January 11, 2012.
Prediction: Although this is close, David believes the Supreme Court will uphold the ruling of the Court of Criminal Appeals.
- Competency to Make Decisions Regarding Post-Conviction Remedies
Case: Paul Dennis Reid, Jr. v. State of Tennessee (Tenn. Crim. App. 2011)
Facts: Paul Dennis Reid, Jr. was convicted and sentenced to death on seven counts of first degree murder. Reid’s convictions and sentences were affirmed on direct appeal by the Supreme Court. The instant appeals stem from evidentiary hearings wherein the Montgomery and Davidson County trial courts concluded that Reid was competent to decide on his own behalf to forego any post-conviction relief on his convictions and sentences.
Issue: The Court of Criminal Appeals affirmed the judgment of the trial courts. The Court, being bound by the decisions of the Supreme Court, held that if the clear and convincing standard is adequate to ensure due process in the tolling context, then it is proper for purposes of the post-conviction proceeding itself and that the petitioner has the burden of proof. Here, Reid failed to prove by clear and convincing evidence that he was incompetent during the relevant statutory limitations periods and at the time of the evidentiary hearing.
Review Granted: January 11, 2012. The Supreme Court’s Order granting review provided that the Court is particularly interested in the following issues regarding this case: (1) Whether the test for capacity to bring or maintain an action in State v. Reid, 197 S.W.3d 694, 699-702 (Tenn. 2006) and State v. Nix, 40 S.W.3d459, 464 (Tenn. 2001) that requires a litigant to understand his or her legal rights and liabilities should include considering whether the petitioner possesses the present capacity to appreciate the petitioner’s position and to make a rational choice with respect to initiating litigation or whether the petitioner is suffering from a mental disease, disorder, or defect which may substantially affect the petitioner’s capacity.
(2) Whether the trial courts’ consideration and use of the civil capacity standard in In re Estate of Groves, 109 S.W.3d 317 (Tenn. Ct. App. 2003) is consistent with State v. Nix and effectively includes the capacity standard in Tenn. Sup. Ct. R. 28, § 11(B)(1).
Prediction: David believes the Supreme Court will likely affirm but further clarify the competency standards.
- Tennessee Consumer Protection Act, and Bailment
Case: Rondal Akers, et al. v. Prime Succession of Tennessee, Inc., et al. (Tenn. Ct. App. 2011)
Facts: The Akers’ son died and was sent by the funeral home to Tri-State for cremation. It is unknown what happened to deceased’s body after it was taken to Tri-State, but Marsh delivered what was purported to be deceased’s remains. It was discovered by the authorities that Marsh was accepting bodies for cremation, but not necessarily cremating them. Instead, Marsh was burying or dumping the bodies on Tri-State property. This is the second time this case is before the courts. The first time the case was brought on the issue of standing, which was granted and remanded back for trial. The trial court entered judgment upon the jury’s verdict finding that Marsh had intentionally inflicted emotional distress upon the Akers, that Marsh had violated the Tennessee Consumer Protection Act, and that Marsh had violated a bailment responsibility to the Akers. Marsh then filed a motion notwithstanding the verdict. After a hearing, the trial court granted Marsh a partial judgment notwithstanding the verdict reversing the judgment for the claims under the Tennessee Consumer Protection Act and bailment, and denied Marsh’s motion as to the remaining claims. The Akers then appealed.
Issue: The Court of Appeals affirmed the judgment in its entirety. The Court held that there was no bailment created because a dead body does not fit within the definition of personalty and also, because the agreement that the Akers had was with the funeral home, not with Marsh or Tri-State. Furthermore, the Court held with regard to the claim under the Tennessee Consumer Protection Act that the Akers were awarded damages for emotional distress, and emotional distress damages do not constitute actual damages under the statute.
Review Granted: January 11, 2012.
Prediction: Sarah believes the Supreme Court will likely uphold the decision as to the Tennessee Consumer Protection Act and the bailment claim. David disagrees because the dead body could constitute personality.
- Wrongful Discharge
Case: Porsha Perkins v. Metropolitan Government of Nashville and Davidson County (Tenn. Ct. App. 2011)
Facts: Porsha Perkins, a social worker employed by an agency of the Metropolitan Government of Nashville and Davidson County was discharged from her job following an allegation that she had pinched a child attending a Head Start program. She then filed a discrimination and wrongful termination claim with the Metro Civil Servant Commission. After the allegation against her proved to be baseless, she settled her claim with Metro for $45,000 and agreed not to be reinstated in her former job. She subsequently filed a complaint in the Circuit Court of Davidson County for retaliatory discharge and for employment discrimination. The discrimination claim was eventually dismissed by agreed order. Metro filed a motion for summary judgment on the remaining claim for wrongful discharge. The trial court granted the motion.
Issue: The Court of Appeals affirmed the ruling of the trial court upholding the grant of summary judgment to Metro. The Court held that because Ms. Perkins voluntarily agreed to surrender any rights to be reinstated in her job and received valuable consideration equivalent to her back pay her termination can no longer be considered adverse. As a result, she cannot prove all the required elements to establish a prima facie case of retaliatory discharge.
Review Granted: January 11, 2012.
Prediction: Sarah believes the Supreme Court will likely uphold the grant of summary judgment. David agrees.
- Personal Jurisdiction Over a Foreign Defendant
Case: State of Tennessee, by and through Robert E. Cooper, Jr., Attorney General and Reporter for the State of Tennessee v. NV Sumatra Tobacco Trading Company (Tenn. Ct. App. 2011)
Facts: The State brought action against a foreign tobacco product manufacturer which allegedly had failed to make escrow deposits as required under the Tennessee Escrow Fund Act for cigarettes sold in Tennessee. The trial court granted summary judgment in favor of the manufacturer finding that it lacked personal jurisdiction.
Issue: The Court of Appeals reversed the trial court’s order and remanded the matter for entry of summary judgment in favor of the State and for calculation of the escrow amount owed. The Court held that Sumatra cannot escape jurisdiction in Tennessee because a manufacturer that distributes its products into the stream of commerce for widespread distribution derives both legal and economic benefits from the states in which its products are sold. Additionally, a foreign manufacturer that purposefully avails itself of those benefits should be subject to personal jurisdiction, even though its products are distributed by independent companies. The Court further stated that the exercise of jurisdiction is supported if the manufacturer knew or reasonably should have known of the distribution system through which its products were being sold in the forum state
Review Granted: January 11, 2012.
Prediction: Sarah believes the Supreme Court will likely uphold the exercise of personal jurisdiction against Sumatra. She agrees with the Court of Appeals that Sumatra clearly did more than merely place its products into the stream of commerce but intentionally decided to market and sell its product nationwide with the goal of mass distribution to all fifty states, including Tennessee, which therefore opens it up to being hauled into court and answer in a Tennessee court.
- Non-Party Comparative Tortfeasor
Case: Davey Mann, et al. v. Alpha Tau Omega Fraternity, et al. (Tenn. 2011)
Facts: Davey Mann and Teresa Mann were injured in an automobile accident when Jeffrey Callicut allegedly crossed the centerline, causing a head-on collision. Prior to the accident, Callicut had allegedly consumed alcoholic beverages at the home of Eric and Lori Cox during a social gathering of members/prospective members of Alpha Tau Omega Fraternity (ATO). The Mann’s filed their initial complaint against the Callicut’s, ATO, Tennessee Zeta Rho Chapter (ZR), the Cox’s, and John Doe, A through Z. An answer was filed by ZR. Based on this answer an amended complaint was filed against E.J. Cox, Daniel Kelly, John Condon, III, Nicholas Beaver, and Zachary Beaver (collectively, Defendants). Defendants filed motions for summary judgment and a motion for judgment on the pleadings. Before these motions could be heard, the Callicut’s moved to amend their answer, alleging the comparative fault of Defendants, whom they referred to as codefendants. Based on the allegations of comparative fault against Defendants in the Callicut’s amended answer, and attempting to utilize Tenn. Code Ann. § 20-1-119, Plaintiffs amended their complaint again to assert claims against Defendants who then filed motions to dismiss and for summary judgment. The trial court granted the motions of the Defendants.
Issue: The Court of Appeals affirmed the decision of the trial court because no final order had been entered against the defendants and they therefore remained parties to the lawsuit when the plaintiffs sought to assert claims against them in their Second Amended Complaint. The Court held that since the original statute of limitations had expired and Tenn. Code Ann. § 20-1-119 could not be utilized to extend the statute of limitations period against the defendants, the motions were properly granted.
Review Granted: December 13, 2011.
Prediction: Sarah believes the Supreme Court will likely uphold the decision of the Court of Appeals and the trial court. David disagrees because the intent is to permit an extension of the statute of limitations.
- Jury Reading Scripture During Deliberations
Case: David Keen v. State of Tennessee (Tenn. Crim. App. 2006)
Facts: Petitioner was sentenced to death. On direct appeal, the petitioner’s conviction was affirmed, but the Supreme Court reversed and remanded the sentence of death after finding reversible error due to erroneous jury instructions. On remand, the jury again, imposed the penalty of death. Our Supreme Court affirmed the sentence of death of direct appeal. A petition for post-conviction relief was filed alleging a claim, among others, of jury misconduct. The petition alleged that during deliberations a juror read aloud a passage from Romans 13 during a point in deliberations when “one juror didn’t believe in the death penalty.” The juror testified that these specific verses were read because it deals with punishment in that if you commit a crime you’re supposed to be punished. An evidentiary hearing was conducted and the post-conviction court denied relief and dismissed the petition.
Issue: The Court of Criminal Appeals affirmed the judgment of the post-conviction court finding that the petitioner failed to prove the allegations contained in his post-conviction relief petition. Specifically, as to the jury misconduct, the Court held that the reading of the Bible verse was not shown to be prejudicial to the petitioner in that no proof had been presented that the reading of the Bible verse put any undue pressure on any juror, or had any influence on the jury’s verdict.
Review Granted: December 14, 2011.
Prediction: After praying about his prediction, David believes the Supreme Court will reverse the finding of the Court of Criminal Appeals and remand back to the trial court for a new trial. The Biblical passage was directly related to punishment and was used to induce the juror to vote for death. It is per se an outside influence and this sentence will not stand.
