Supreme Court Opinions

Format: 03/26/2015
Format: 03/26/2015
State of Tennessee v. Frederick Herron
W2012-01195-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Carolyn W. Blackett

The defendant was charged with and convicted of rape of a child, and he received a twentyfive-year sentence. The defendant appealed, raising seven issues. The Court of Criminal Appeals held that the trial court erred by(1) allowing the prosecution to introduce the child’s prior consistent statement, a recorded forensic interview, during its case-in-chief before the child’s credibility had been challenged; and (2) ruling that if the defendant chose to testify the prosecution would be permitted to ask him whether he had been previously arrested or convicted of an unnamed felony. Nevertheless, in a divided decision, two judges of the Court of Criminal Appeals concluded that these errors were neither individually nor cumulatively prejudicial. The dissenting judge opined that the second error alone was prejudicial and entitled the defendant to a new trial. We affirm the Court of Criminal Appeals’ conclusions that the evidence is sufficient to support the conviction and that the election is sufficiently specific and definite. We hold that the cumulative effect of the two conceded trial errors is prejudicial and entitles the defendant to a new trial. Because of the remand for a new trial, we do not address the defendant’s other allegations of evidentiary errors. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part; the defendant’s conviction is vacated; and this matter is remanded to the trial court for a new trial, consistent with this decision.

Shelby County Supreme Court 03/26/15
State of Tennessee v. William Eugene Hall - CONCUR
M2012-00336-SC-DDT-DD
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Senior Judge Jon Kerry Blackwood

I concur fully with the Court’s opinion except for Section III(E), which reaffirms the proportionality review performed in Mr. Hall’s original direct appeal. Because I believe this Court used an improper method for analyzing the proportionality of Mr. Hall’s death sentence, I have conducted an independent proportionality review. Upon doing so, I concur with the Court’s conclusion that Mr. Hall’s death sentence is not disproportionate to the sentences imposed on other similar offenders who have committed similar crimes.

Humphreys County Supreme Court 03/20/15
State of Tennessee v. William Eugene Hall
M2012-00336-SC-DDT-DD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Senior Judge Jon Kerry Blackwood

The defendant was convicted on two counts of felony murder in the perpetration of a first degree burglary, three counts of grand larceny, one count of petit larceny, and three counts of first degree burglary. The jury imposed a sentence of death for the murder of one victim and a life sentence for the murder of the second victim. The trial court ordered an aggregate sentence of eighty years for the remaining crimes, to be served consecutively to the life sentence. The direct appeal was decided adversely to the defendant. On post-conviction review, this Court granted the defendant a delayed appeal and remanded to the trial court based upon the lack of meaningful representation during the original direct appeal. The trial court denied relief, and the Court of Criminal Appeals affirmed. We affirm the judgment of the Court of Criminal Appeals.

Humphreys County Supreme Court 03/20/15
Calvin Eugene Bryant v. State of Tennessee - CONCUR IN PART AND CONCUR IN RESULT
M2012-01560-SC-R11-PC
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Steve R. Dozier

I concur with the lead opinion’s conclusion that trial counsel’s failure to request an instruction on facilitation did not amount to deficient performance. Because the petitioner has failed to establish deficient performance, I also agree with the lead opinion’s conclusion that the petitioner is not entitled to relief on his claim of ineffective assistance of counsel. Having so concluded, I decline to join Section B of the lead opinion, which addresses the prejudice prong of the petitioner’s ineffective assistance of counsel claim. I reserve decision on the issue of the proper prejudice analysis for an appeal in which it is squarely presented. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (recognizing that a court need not address both prongs of a petitioner’s ineffective assistance of counsel claim when the court concludes that the petitioner has failed to establish either deficient performance or prejudice).

Davidson County Supreme Court 03/13/15
Calvin Eugene Bryant v. State of Tennessee - CONCUR IN PART AND DISSENT IN PART
M2012-01560-SC-R11-PC
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Steve Dozier

I concur with the majority that a conviction on a greater offense does not preclude a claim of ineffective assistance of counsel for the failure to request jury instructions on lesser included offenses. Although a small number of recent opinions by the Court of Criminal Appeals have held otherwise, most panels have endorsed the traditional view that the trial court has the obligation to provide instructions on the charged offense and all lesser included offenses warranted by the proof at trial, and that defense counsel, absent a reasonably based strategy, has the duty to seek instructions on all lesser included offenses. In contrast to the majority, I believe that trial counsel in this instance provided constitutionally inadequate representation by failing to request an instruction on facilitation as a lesser included offense of the sale of ecstasy within a school zone. I must, therefore, respectfully dissent to the extent that I would grant a new trial.

Davidson County Supreme Court 03/13/15
Calvin Eugene Bryant v. State of Tennessee
M2012-01560-SC-R11-PC
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Steve R. Dozier

In this post-conviction appeal, we address two issues: 1) whether trial counsel provided ineffective representation by failing to request a jury instruction on facilitation as a lesser-included offense; and 2) whether a trial counsel‟s failure to request a jury instruction on a lesser-included offense is never prejudicial to a defendant convicted of a greater offense. The defendant was charged with selling illegal drugs to a police informant. The defendant‟s trial counsel argued that he was entrapped by the informant. A jury instruction on facilitation as a lesser-included offense was neither requested by the defendant‟s trial counsel nor given by the trial court. The defendant was convicted of selling illegal drugs. The Court of Criminal Appeals affirmed his convictions. The defendant filed a petition for post-conviction relief, alleging that his trial counsel provided ineffective representation by not requesting a jury instruction on facilitation of the sale of a controlled substance. The post-conviction court denied relief. The Court of Criminal Appeals affirmed, holding that 1) trial counsel was not deficient in failing to request a jury instruction on facilitation; and 2) when convicted of a greater charge, a defendant can never show that the absence of a jury instruction on a lesser-included offense was prejudicial to the defendant. We hold that the evidence in this case failed to warrant a jury instruction on facilitation. Accordingly, trial counsel‟s failure to request a facilitation instruction was not deficient performance. Further, we hold that under certain facts and circumstances, a trial counsel‟s failure to request a jury instruction on a lesser-included offense can be prejudicial to a defendant and entitle him or her to post-conviction relief based on ineffective assistance of counsel. Our decision in State v. Davis, 266 S.W.3d 896, 910 (Tenn. 2008), approving sequential jury instructions, doesnot obviate an attorney's responsibility to request lesser-included offense instructions when warranted by the proof. We affirm the judgment of the Court of Criminal Appeals, as modified.
 

1 We heard oral argument on this case on May 29, 2014, at the American Legion Auxiliary Volunteer GirlsState held at Lipscomb University in Nashville, Tennessee, as a part of the Court‟s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

Davidson County Supreme Court 03/13/15
Stephen Michael West, et al v. Derrick D. Schofield, et al - Concurring in the judgment only
M2014-00320-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Chancellor Claudia C. Bonnyman

I concur in the conclusion reached by my colleagues that the identities of the John Doe defendants are not discoverable under Tennessee Rule of Civil Procedure 26.02(1). In my view,however, the majority opinion contains dicta that unnecessarily addresses several issues with far-reaching implications in death penalty litigation. Therefore, I must respectfully concur in the result only.

Davidson County Supreme Court 03/10/15
Stephen Michael West, et al v. Derrick D. Schofield, et al
M2014-00320-SC-R11-CV
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Chancellor Claudia C. Bonnyman

We granted the State of Tennessee permission to appeal from the Court of Appeals’ decision on interlocutory appeal in which the intermediate appellate court affirmed the trial court’s order compelling discovery in this declaratory judgment action. The Plaintiffs are seeking a declaration that the lethal injection protocol in place for the execution of convicted criminal defendants sentenced to death is unconstitutional. In conjunction with pursuing their claim, the Plaintiffs sought to discover the identity of persons involved in facilitating and carrying out executions. Over the State’s objection, the trial court ordered the State to provide these identities to the Plaintiffs, and the Court of Appeals affirmed the trial court’s order. Upon due consideration, we reverse and remand this matter for further proceedings consistent with this Opinion and in compliance with the timelines set forth in the judgment order filed contemporaneously with this Opinion.

Davidson County Supreme Court 03/10/15
State of Tennessee v. Charles D. Sprunger
E2011-02573-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Ronald Thurman

This appeal challenges the civil forfeiture of the appellant’s house after he was convicted of possessing child pornography on his home computer. We hold that, in forfeiture proceedings, the seizing authority is required to present affirmative proof that it complied with both the procedural and the substantive provisions of the applicable forfeiture statutes. In accord with prior decisions of this Court, we also hold that both the procedural and the substantive provisions of the forfeiture statutes must be strictly construed. The State in this case failed to show that it complied with the procedural requirements in the forfeiture
statutes. Therefore, we vacate the forfeiture.

Cumberland County Supreme Court 03/09/15
State of Tennessee v. Jacqueline Crank
E2012-01189-SC-R11-CD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge E. Eugene Eblen

The defendant, who was indicted for child neglect based upon her failure to obtain medical treatment for her daughter, challenged the constitutionality of the “spiritual treatment” exemption within the child abuse and neglect statute. The exemption, which is set out in Tennessee Code Annotated section 39-15-402(c), precludes the prosecution of parents who “provide[] treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment.” The defendant moved to dismiss the charge against her,claiming that the exemption was unconstitutionallyvague and violated the Establishment and Equal Protection Clauses of the Federal Constitution, as well as the comparable provisions of the Tennessee Constitution. The trial court denied the motion to dismiss. Following a bench trial, the trial court determined that the defendant did not qualify for the spiritual treatment exemption, found her guilty of child neglect, and imposed a sentence of eleven months and twenty-nine days, all to be served on unsupervised probation. The Court of Criminal Appeals affirmed the conviction without addressing the merits of the constitutional claims. We hold that the spiritual treatment exemption is not unconstitutionally vague. Because the exemption may be elided without invalidating the remainder of the child abuse and neglect statute, the defendant’s remaining constitutional challenges, even if successful, would not afford her relief. As a result, we decline to address whether the exemption violates the Establishment or Equal Protection Clauses of the Federal Constitution or the corresponding provisions in article I, section 3 and article XI, section 8 of the Tennessee Constitution. The judgment of the Court of Criminal Appeals is affirmed.

Loudon County Supreme Court 02/13/15
Orville Lambdin v. Goodyear Tire & Rubber Company
W2013-01597-SC-WCO-WC
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Chancellor W. Michael Maloan

During his thirty-seven years working for the employer, the employee suffered a gradual loss of hearing, especially at frequency levels of sound above 3000 hertz. Shortly after his retirement, he made a claim for workers’ compensation benefits. After hearing the proof, the trial court ultimately found that the AMA Guides did not cover hearing losses at the higher frequencies and awarded a 30% vocational disability,notonlyfor the anatomical impairment between 2000 and 3000 hertz but also for the impairment between 3000 and 4000 hertz. The employer appealed, asserting that the AMA Guides did not consider as an impairment hearing losses at levels higher than 3000 hertz and objecting to the method used by the employee’s physician to ascertain anatomical impairment above that level. Because the evidence clearly established a hearing impairment above 3000 hertz and there was evidentiary support for the trial court’s determination that expert testimony established an “appropriate” method for rating the impairment in a manner “used and accepted by the medical community,” the judgment is affirmed.

Obion County Supreme Court 01/29/15
Samuel E. Foster, et al v. Walter William Chiles, III, M.D. - Dissent
E2012-01780-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Dale C. Workman

Tennessee Code Annotated section 29-26-121(a)(1)provides thatanyperson who has a potential claim for health care liability must serve written notice on each defendant at least sixty days before filing a complaint.  In this case, the Court of Appeals held that Samuel E. Foster and his wife, Mary Foster (collectively, the “Plaintiffs”), complied with the plain language of this statute by sending notices of their potential claims well over sixty days prior to filing their complaint. Because I believe that the Court of Appeals properly interpreted the statute, I respectfully disagree with the conclusion reached by my colleagues and would remand this action for a trial on the merits rather than dismiss without prejudice to the filing of a third complaint.

Knox County Supreme Court 01/27/15
Samuel E. Foster, et al v. Walter William Chiles, III, M.D.
E2012-01780-SC-R11-CV
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Dale C. Workman

This appeal presents two issues for review: 1) whether a person asserting a health  care  liability claim must  give  written  notice  of  the claim to  all  potential  health  care defendants before re-filing a complaint, or whether notice given before filing the first complaint is  sufficient  notice for  a  subsequently filed  complaint against the same defendants; and 2) if pre-suit notice is required for each complaint, whether the sanction for noncompliance is a dismissal with or without prejudice.  The plaintiffs, before filing their health care liability complaint, gave the defendants written notice under Tenn. Code Ann. § 29-26-121(a)(1).  Thereafter, the plaintiffs voluntarily dismissed their complaint.   The plaintiffs  re-filed their complaint but  did  not provide  the  defendants  with  notice before the re-filing.  The trial court dismissed the complaint with prejudice for failure to comply with the notice requirement of Tenn. Code Ann. § 29-26-121(a)(1).  The Court of Appeals reversed, holding that the plaintiffs had to give pre-suit notice only once and that  pre-suit notice for the first complaint was sufficient for any subsequently filed complaints asserting the same claims against the same defendants. We hold that Tenn. Code Ann. § 29-26-121(a)(1) requires that plaintiffs notify prospective defendants of a forthcoming health care liability lawsuit before the filing of each complaint.  The sanction for failure to comply with Tenn. Code Ann. § 29-26-121(a)(1) is a dismissal without prejudice. 

Knox County Supreme Court 01/27/15
State of Tennessee v. Shanice L. Dycus
M2012-02297-SC-R11-CD
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Judge John H. Gasaway, III

We granted review in this case to determine whether the mandatory minimum service requirement of Tennessee Code Annotated section 39-17-432(c) (2010) (the “Drug-Free School Zone Act”) renders offenses under that act ineligible for judicial diversion. After a thorough review of the record and the applicable law, we hold that the mandatory minimum service requirement of the Drug-Free School Zone Act does not render offenses under that act ineligible for judicial diversion. Although the trial court failed to adequately address the appropriate factors on the record, based on our own de novo review, we hold that the record demonstrates that the trial court properly denied the Defendant’s request to be placed on judicial diversion. Accordingly, we reinstate the trial court’s judgments.

Montgomery County Supreme Court 01/23/15
Brenda Benz-Elliott v. Barrett Enterprises, LP et al
M2013-00270-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge John D. Wootten, Jr.

We granted permission to appeal to clarify the analysis that should be used to determine the applicable statute of limitations when a complaint alleges more than one claim. We hold that a court must identify the gravamen of each claim alleged to determine the applicable statute of limitations. Identifying the gravamen of a claim requires a court to consider both the legal basis of the claim and the injuryfor which damages are sought. Here, the plaintiff contracted to sell the defendants real property in Rutherford County. The contract provided that the plaintiff would retain ownership of a sixty-foot wide strip of property along Interstate 24 to provide access to her remaining property. The contract also provided that its covenants would survive the closing. The warranty deed failed to include the sixty-foot reservation required by the contract. The plaintiff sued the defendants, alleging claims of breach of contract, intentional misrepresentation, and negligent misrepresentation. The defendants raised several defenses, including the statute of limitations. The trial court dismissed the plaintiff’s intentionaland negligent misrepresentation claims butruled forthe plaintiff on the breach of contract claim and awarded her $650,000 in damages for the diminution in value of her remaining property due to the lack of the contractually guaranteed access route.  The defendants appealed, raising six issues, including an assertion that the plaintiff’s claim is barred by the statute of limitations. The Court of Appeals, focusing almost exclusively on the type of damages awarded, concluded that the gravamen of the plaintiff’s prevailing claim is injury to real property, and as a result, held that the claim is barred by the three-year statute of limitations applicable to “[a]ctions for injuries to personal or real property.” Tenn. Code Ann. § 28-3-105(1) (2000 & Supp. 2014). We disagree with the Court of Appeals’ conclusions and hold that the gravamen of the plaintiff’s prevailing claim is breach of contract, to which the six-year statute of limitations for “[a]ctions on contracts not otherwise expressly provided for” applies. Id. § 28-3-109(a)(3) (2000). Because the plaintiff’s claim is not barred by the statute of limitations, we reverse the judgment of the Court of Appeals and remand this matter to the intermediate appellate court for resolution of the other issues the defendants raised on appeal.

Rutherford County Supreme Court 01/23/15
In Re: Kaliyah S. et al.
E2013-01352-SC-R11-PT
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Daniel Ray Swafford

In this petition to terminate the parental rights of a biological parent, we granted permission to appeal to address whether the State is required to prove that it made reasonable efforts to reunify the parent with the child as a precondition to termination.  We hold that it is not. An action to terminate the parental rights of a biological parent is governed by Tennessee Code Annotated § 36-1-113. The language of Section 36-1-113 makes the State’s efforts to assist the respondent parent one of the factors to be considered in determining whether termination of the parent’s rights is in the child’s best interest. After reviewing the language of Section 36-1-113, other pertinent statutes, the legislative history, and caselaw interpreting Section 36-1-113, we hold that, in a termination proceeding, the extent of the efforts made by the State is weighed in the court’s best-interest analysis, but the State need not prove that it made reasonable efforts as an essential component of its petition to terminate parental rights. In so doing, we overrule In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326 (Tenn. Ct. App. Mar. 9, 2004), and its progeny to the extent that those cases required the State to prove reasonable efforts as an essential component of the termination petition. Accordingly, we reverse the decision of the Court of Appeals and reinstate the judgment of the juvenile court terminating the parental rights of the respondent father.

Bradley County Supreme Court 01/22/15
Edward Thomas Kendrick, III v. State of Tennessee
E2011-02367-SC-R11-PC
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Don W. Poole

This post-conviction appeal involves ineffective assistance of counsel claims made by a prisoner who fatally shot his wife. A Hamilton County jury, rejecting the prisoner’s defense that his rifle had malfunctioned and fired accidentally, convicted him of first degree premeditated murder. The Court of Criminal Appeals affirmed his conviction on direct appeal. State v. Kendricks, 947 S.W.2d 875 (Tenn. Crim. App. 1996). The prisoner later filed a petition for post-conviction relief in the Criminal Court for Hamilton Countyalleging, among other things, that his trial counsel had been ineffective because he decided not to seek an expert to rebut the anticipated testimony of the prosecution’s expert and because he did not attempt to use an exception to the hearsay rule to introduce statements favorable to the prisoner. The post-conviction court conducted a hearing and denied the petition. The Court of Criminal Appeals reversed the post-conviction court and granted the prisoner a new trial after concluding that trial counsel’s representation had been deficient and that, but for these deficiencies, the jury might have convicted the prisoner of a lesser degree of homicide. Kendrick v. State, No. E2011-02367-CCA-R3-PC, 2013 WL 3306655 (Tenn. Crim. App. June 27, 2013). We granted the State’s application for permission to appeal. Trial counsel’s decisions not to consult an expert to rebut the anticipated testimony of a prosecution expert and not to attempt to introduce a potentially favorable hearsay statement did not amount to deficient performance that fell below the standard of reasonableness. Accordingly, we reverse the decision of the Court of Criminal Appeals and remand for consideration of the prisoner’s remaining claims.

Hamilton County Supreme Court 01/16/15
State of Tennessee v. Justin Ellis
E2011-02017-SC-R11-CD
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Judge Bob R. McGee

We granted the State of Tennessee permission to appeal in this criminal proceeding to address two issues: (1) the analytical framework that a successor judge should utilize in deciding whether he can act as the thirteenth juror, and (2) the standard of appellate review of a successor judge’s determination that he can or cannot act as the thirteenth juror.  We hold that there is a rebuttable presumption that a successor judge can act as the thirteenth juror.  We also hold that an appellate court should review de novo a successor judge’s decision about acting as the thirteenth juror.  Applying these principles to the instant case, we hold that the successor judge committed no reversible error in determining that he could act as the thirteenth juror.  Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the trial court’s judgments of conviction.
 

Knox County Supreme Court 01/13/15
Thomas Fleming Mabry v. Board of Professional Responsibility Of The Supreme Court Of Tennessee
E2013-01549-SC-R3-BP
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Don R. Ash

A hearing panel of the Board of Professional Responsibility determined that an attorney failed to act diligently in his representation of a client and suspended the attorney from the practice of law for forty-five days. The trial court affirmed the suspension. After careful consideration, we affirm the judgment of the trial court.

Knox County Supreme Court 12/30/14
Diane West et al. v. Shelby County Healthcare Corporation d/b/a Reginal Medical Center at Memphis
W2012-00044-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Donna M. Fields

This appeal involves the ability of a hospital to use a hospital lien to recover from a third-party tortfeasor the unadjusted cost of the medical services it provided to a patient whose injuries were caused by the third party. Three patients were injured in separate, unrelated motor vehicle accidents in Memphis, Tennessee. All of them were treated at the Regional Medical Center at Memphis, and either their insurance company or TennCare paid the hospital the full amount of the adjusted charges for their care, in accordance with their contracts with the hospital. Despite receiving these payments, the hospital declined to release the lien it had perfected under the Tennessee Hospital Lien Act, Tenn. Code Ann. §§ 29-22-101 to -107 (2012). The patients filed suit in the Circuit Court for Shelby County seeking to quash the liens and monetary damages. In response, the hospital asserted that its refusal to release the liens was consistent with the Tennessee Hospital Lien Act and was permitted by its contracts with the patients’ insurance companies. The trial court dismissed the suit on the merits, and the patients appealed to the Court of Appeals. The intermediate appellate court reversed the trial court, determining that the hospital could not maintain its lien because each of the patients’ debts had been extinguished when the hospital accepted payment from the patients’ insurance companies for the full amount of the hospital’s bill based on the adjusted charges it had agreed to with either the patient’s insurance company or TennCare. West v. Shelby Cnty. Healthcare Corp., No. W2012-00044-COA- R3-CV, 2013 WL 500777 (Tenn. Ct. App. Feb. 11, 2013), reh’g denied (Tenn. Ct. App. Mar. 12, 2013). We granted two of the three patients’ Tenn. R. App. P. 11 applications for permission to appeal. We have determined that, except for the unpaid co-pays and deductibles which are a patient’s responsibility, neither the Tennessee Hospital Lien Act nor the hospital’s contracts with the patients’ insurance companies authorized the hospital to maintain its lien after the patients’ insurance company paid the adjusted bill. However, we have also determined that one of the patients who had not extinguished her debt to the hospital was not entitled to have the lien against her extinguished.

Shelby County Supreme Court 12/19/14
C. L. Gilbert,Jr. v. Izak Frederick Wessels, M. D.
E2013-00255-SC-R11-CV
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Jacqueline S. Bolton

The issue we address in this appeal is whether the Court of Appeals properly granted the defendant a Tennessee Rule of Appellate Procedure 10 extraordinary appeal. The trial court denied the defendant’s motion for a waiver of the contiguous state requirement in Tennessee Code Annotated section 29-26-115(b) as to an expert witness. The Court of Appeals granted the defendant’s Rule 10 appeal and held that the trial court did not abuse its discretion in declining to waive the contiguous state requirement. We hold that the Court of Appeals improvidently granted the appeal because the trial court did not so far depart from the accepted and usual course of judicial proceedings as to require immediate review and because a review was not necessary for a complete determination of the action on appeal. Tenn. R. App. P. 10(a). Accordingly, we remand this case to the Circuit Court for Hamilton County for further proceedings.

Hamilton County Supreme Court 12/18/14
Larry Sneed v. The City of Red Bank, Tennessee
E2012-02112-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Chancellor Jeffrey M. Atherton

We granted review in this interlocutory appeal to determine whether the analysis the Court of AppealsemployedinYoung v.Davis,No.E2008-01974-COA-R3-CV,2009 WL 3518162, at *6-7 (Tenn. Ct. App. Oct. 30, 2009), to conclude that Tennessee Public Protection Act (“TPPA”) claims against governmental entities must be tried without a jury in the manner prescribed bythe Governmental Tort LiabilityAct (“GTLA”), should be applied to determine whether a Tennessee Human Rights Act (“THRA”) claim against a governmental entity is controlled by the GTLA. We reject the analysis Young applied and overrule it to the extent it may be interpreted as holding that the GTLA governs all statutory claims against governmental entities. The analysis used in Cruse v. City of Columbia, 922 S.W.2d 492 (Tenn. 1996), controls the determination of this issue. Applying Cruse, we hold that the THRA is an independent and specific statute, which removed governmental immunity and which controls the adjudication of THRA claims. We further hold that the provisions of the THRA clearly establish legislative intent to afford a right to trial by jury to persons who bring THRA claims against governmental entities in chancery court.  Accordingly, based on these holdings, the judgment of the Court of Appeals is reversed. The trial court’s order transferring this case to circuit court is vacated, and this matter is remanded to the chancery court for further proceedings consistent with this decision.

Hamilton County Supreme Court 12/02/14
State of Tennessee v. Barry D. McCoy
M2013-00912-SC-R11-CD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge John H. Gasaway

The defendant was indicted for seven counts of rape of a child. Prior to trial, the State sought permission to offer as evidence a video-recorded statement made by the child victim to a forensic interviewer. At the conclusion of a pre-trial hearing, the trial court refused to allow the video-recorded statement as proof at trial. We granted the State an interlocutory appeal to determine whether Tennessee Code Annotated section 24-7-123 (Supp. 2014) violates the separation of powers,whether the video-recorded statement qualifies as inadmissible hear say evidence, and whether the use of the statement at trial would violate the defendant’s right to confront witnesses. Because section 24-7-123 does not unconstitutionally infringe upon the powers of the judiciary and is a valid legislative exception to the general rule against the admission of hearsay evidence, the ruling of the trial court is reversed and the cause is remanded for trial. The State will be permitted to offer the video-recorded statement as evidence at trial, provided that the evidence is relevant and otherwise comports with the requirements of section 24-7-123 and the Tennessee Rules of Evidence.

Montgomery County Supreme Court 12/01/14
Jerry Ray Davidson v. State of Tennessee - Concuring in Part and Dissenting in Part
M2010-02663-SC-R11-PD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Robert E. Burch

Initially, no words adequately describe the horrible nature of this murder.  Nevertheless, I concur with the majority that a new sentencing hearing is warranted based upon the ineffective assistance of counsel at the penalty stage of the trial. Moreover, I believe that the deficiency in counsel's performance was such that an entirely new trial should be granted. In that regard, I dissent.

Supreme Court 11/17/14
Jerry Ray Davidson v. State of Tennessee
M2010-02663-SC-R11-PD
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Robert E. Burch

This post-conviction appeal addresses the extent of defense counsel’s duty to present mitigation evidence during the penalty phase of a capital murder trial. Defense counsel in a capital case possessed evidence that their client suffered from severe lifelong cognitive impairments and personality disorders and that he was predisposed to sexual violence. However, during the defendant’s trial, defense counsel presented the jury with no psychological mitigation evidence and only cursory social history mitigation evidence. A Dickson County jury convicted the defendant of premeditated first degree murder and imposed the death penalty. The juryalso convicted the defendant of aggravated kidnapping, for which the defendant received a twenty-year sentence. Following unsuccessful direct appeals, State v. Davidson, 121 S.W.3d 600 (Tenn. 2003), the defendant filed a petition for post-conviction relief in the Circuit Court for Dickson County. Following a hearing, the post-conviction court denied the petition, and the Court of Criminal Appeals affirmed the post-conviction court’s decision. Davidson v. State, No. M2010-02663-CCA-R3-PD, 2013 WL 485222 (Tenn. Crim. App. Feb. 7, 2013). We find that, under the circumstances of this case, defense counsels’ failure to develop and present psychological mitigation evidence deprived their client of his right to effective assistance of counsel. While we uphold the client’s convictions, we vacate his death sentence and remand for a new capital sentencing hearing.

Dickson County Supreme Court 11/17/14