Tarpley, Elliott win TBA elections

John R. Tarpley of Nashville and Sam D. Elliott of Chattanooga were winners in the just completed 2006 TBA elections. Tarpley edged out Albert C. Harvey of Memphis for one of the TBA's positions in the ABA House of Delegates. Elliott will retain his post as the TBA's third district governor, prevailing over fellow Chattanoogan Bruce C. Bailey. More than 3,000 members voted in the races. To see a complete list of the new TBA officers, go to

http://www.tba2.org/tbatoday/news/2006/tbaelex_2006.html

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

CHARLES BEARD, SR. v. FLORENCE ELAINE BEARD (STANLEY)

Court: TCA

Attorneys:

Charles Beard, Sr., Chattanooga, Tennessee, pro se Appellant.

Erskine P. Mabee, Chattanooga, Tennessee, for the Appellee, Florence Elaine Beard (Stanley).

Judge: LEE

Charles Beard, Sr. (“Father”), acting pro se, appeals the trial court's judgment in this post-divorce action. Although it is difficult to ascertain from his appellate brief precisely what issues Father has attempted to raise for review, we have reviewed the entire record in this case and each of the rulings made by the trial court. We find no error in the trial court's judgment finding Father has not paid any child support to his former wife, in violation of a prior order of the court; in awarding Florence Elaine Beard Stanley ("Mother") a $21,330 judgment in child support arrearages; in suspending Father's previously awarded parenting time until he completed a six-month counseling and anger management program; and in reducing Father's child support payments based on his then-current income. However, we vacate the trial court's judgment sentencing Father to ten days in jail for civil contempt of court, because the trial court did not make a finding of his present ability to make the required payments.

http://www.tba2.org/tba_files/TCA/2006/beardc_050506.pdf


IN RE: ESTATE OF JAMES W. FORD, M.D.

Court: TCA

Attorneys:

James S. Strickland, Jr., of Memphis, Tennessee and Keith Jordan of Nashville, Tennessee for Appellant, David S. Weed

Ruby S. Wharton of Memphis, Tennessee and Kathleen N. Gomes of Memphis, Tennessee for Appellee, Estate of James W. Ford, M.D.

John A. Nolet, Attorney (pro hac vice), Tax Division, Department of Justice, Washington, D.C.; Jimmy L. Croom, Assistant U. S. Attorney, Jackson, Tennessee, for Appellee, The United States Internal Revenue Service

Judge: CRAWFORD

This is the second appeal of this probate case in which this Court is asked to determine whether the Appellant's claim against the decedent’s estate should be treated as a verified claim under the Claims Act, T.C.A. §30-2-306 et seq., as the trial court found, and controlled by the authorities therein, and then to determine the priority of Appellant's claim as against the Internal Revenue Service/Appellee’s claim against the estate for decedent's unpaid taxes. We find that Appellant's claim is a verified claim against the estate and, as such, is subject to the Claims Act. Pursuant to both the Claims Act, T.C.A. §30-2-317, and the Federal Insolvency Act 31 U.S.C. §3713, the IRS’s claim is prime. Affirmed.

http://www.tba2.org/tba_files/TCA/2006/fordj_050506.pdf


STATE OF TENNESSEE v. LEROY BRIMMER

Court: TCCA

Attorneys:

Garland Erguden (on appeal) and Clifford Abeles and Amy Mayne (at trial), Memphis, Tennessee, for the appellant, Leroy Brimmer.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles Bell and Chris Scruggs, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County Criminal Court jury convicted the appellant, Leroy Brimmer, of first degree premeditated murder, and the trial court sentenced him to life imprisonment. In this appeal, the appellant claims that the evidence is insufficient to support the conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/brimmerl_050506.pdf


EDDIE WAYNE GORDON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Timothy Boxx, Dyersburg, Tennessee, for the appellant, Eddie Wayne Gordon.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Garry G. Brown, District Attorney General; and Elaine Todd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Eddie Wayne Gordon, appeals the Gibson County Circuit Court’s denial of his petition for post-conviction relief from his guilty plea to first degree murder and resulting life sentence. He contends that he received the ineffective assistance of counsel and that his guilty plea was involuntary. Upon review of the record and the parties’ briefs, we affirm the post-conviction court’s judgment that the petitioner received the effective assistance of counsel. However, because the post-conviction court failed to address the issue of whether the petitioner pled guilty voluntarily, the case is remanded for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2006/gordone_050506.pdf


STATE OF TENNESSEE v. JERRY PHILLIP HALEY

Court: TCCA

Attorneys:

W. Jeffrey Fagan, Assistant Public Defender, for the appellant, Jerry Phillip Haley.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and Steve Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Jerry Phillip Haley, was convicted of aggravated burglary, theft over $1000, and assault. The trial court imposed Range II sentences of six years for the aggravated burglary, four years for the theft, and eleven months and twenty-nine days for the assault. The sentences were ordered to be served concurrently, for an effective sentence of six years. In this appeal, the defendant asserts (1) that the trial court erred by denying his motion for judgment of acquittal based on the insufficiency of the evidence and (2) that the trial court erred by failing to provide a jury instruction on facilitation of a felony. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/haleyjerry_050506.pdf


STATE OF TENNESSEE v. MARCUS D. HAYES

Court: TCCA

Attorneys:

Anthony Helm, Memphis, Tennessee, for the appellant, Marcus D. Hayes.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jimmy Lammey and Alexia Fulgham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Marcus D. Hayes, was indicted for premeditated first degree murder. He was convicted by a jury of the lesser-included offense of second degree murder. He was sentenced to twenty-three years in confinement. On appeal, the defendant challenges the admissibility of his statements to police and the sufficiency of the convicting evidence. After review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/hayesmarcusd_050506.pdf


STATE OF TENNESSEE v. SHANE M. MCANALLY

Court: TCCA

Attorneys:

Randall W. Morrison, Tullahoma, Tennessee, for the Appellant Shane M. McAnally.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Mike McCown, District Attorney General; and Richard Cawley, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: SMITH

The appellant, Shane M. McAnally, was convicted by a Bedford County jury of misdemeanor vandalism and was sentenced to a term of eleven months and twenty-nine days, with sixty days to be served in confinement. On appeal, McAnally raises two issues for our review: (1) whether the evidence is sufficient to support the conviction; and (2) whether the sixty-day period of confinement is excessive. Following review of the record, we conclude that the evidence is sufficient to support McAnally’s conviction for vandalism, and therefore affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/mcanally_050506.pdf

HAYES DISSENTING
http://www.tba2.org/tba_files/TCCA/2006/mcanally_dis_050506.pdf


MILTON K. PERKINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Milton K. Perkins.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Milton K. Perkins, appeals from the Davidson County Criminal Court’s dismissal of his petition for post-conviction relief from his guilty plea to aggravated robbery, a Class B felony, for which he received a twenty-year sentence. He contends that he received the ineffective assistance of counsel, rendering his guilty plea unknowing and involuntary. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/perkinsm_050506.pdf


JAMES WESTBROOK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Harold R. Gunn, Humboldt, Tennessee, for the appellant, James Westbrook.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Garry G. Brown, District Attorney General; and Jerald M. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, James Westbrook, appeals the dismissal of his petition for post-conviction relief, arguing that his trial counsel was ineffective for failing to file a motion to suppress evidence and for failing to call his codefendant as a witness at trial. Following our review, we conclude that the petitioner has failed to meet his burden of demonstrating either a deficiency in counsel’s performance or resulting prejudice to his case. Accordingly, we affirm the post-conviction court’s dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2006/westbrookjames_050506.pdf


STATE OF TENNESSEE v. RANDY C. WHITE

Court: TCCA

Attorneys:

Richard W. DeBerry, Assistant District Public Defender, Camden, Tennessee, for the Appellee, Randy C. White.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the Appellant, State of Tennessee.

Judge: HAYES

The State appeals the suppression of evidence by the Hardin County Circuit Court. Following his arrest for driving while intoxicated, the Defendant, Randy C. White, stated to the arresting officer that he was the driver of the vehicle. The trial court found that the statement was obtained in violation of Miranda v. Arizona. After review we conclude that, although the statement was made while White was in custody, it was not made in response to police interrogation. Thus, Miranda warnings were not required. Accordingly, we reverse the trial court’s suppression of the statement and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2006/whiterandyc_050506.pdf


PAUL WILSON v. STEPHEN DOTSON, WARDEN

Court: TCCA

Attorneys:

Paul Wilson, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Paul Wilson, appeals the summary dismissal of his petition for writ of habeas corpus, arguing that prior judgments used to enhance his 2005 aggravated robbery sentence were illegal and void. Following our review, we affirm the judgment of the trial court dismissing the petition for writ of habeas corpus.

http://www.tba2.org/tba_files/TCCA/2006/wilsonpaul_050506.pdf


TODAY'S NEWS

Legal News
Passages
BPR Actions
TBA Member Services
Legislative News

Legal News
Court rules death row defendants must OK appeals
The state Supreme Court has ruled that criminals sentenced to die in Tennessee must personally approve the filing of their final appeal process, the Nashville City Paper reports. Post conviction defender Don Dawson told the newspaper that the decision "locks the courthouse door to severely mentally ill inmates who aren't able on their own to determine the necessity to file a post-conviction petition."
Read the court's opinion
Women in public service conference in Nashville
The 16th annual Southern Women in Public Service: Coming Together to Make a Difference conference will be in Nashville this coming week, May 7-9. The conference brings together women leaders -- mayors, judges, legislators, cabinet officials and others -- from 13 Southern states to celebrate and encourage women in public service.
Find out more
Memphis Bar program wins ABA award
The Memphis Bar Association's Leadership Forum has been selected as one of three winners of an E. Smythe Gambrell Professionalism Award from the ABA Standing Committee on Professionalism.

Judge considering Confederate flag issue at school
U.S. District Court Judge Tom Varlan is considering whether to approve a temporary restraining order against the Blount County school board that would prohibit it from barring students from wearing or displaying the Confederate battle flag.
Read about it in the Knoxville News Sentinel
Retiring UT Law professor honored
Prof. Neil P. Cohen was honored at a retirement reception at the University Club in Knoxville on Thursday. Prof. Cohen is ending 34 years as a member of the faculty at the University of Tennessee College of Law at the conclusion of this academic year.
Read more
Grand jury urges drug testing, DUI court
The Concurrent Hamilton County Grand Jury is urging that a drug testing laboratory be reinstated in Chattanooga and that a special DUI court should be set up to speed those cases through the system.
Read the Chattanoogan.com report
Passages
Services Thursday for Memphis lawyer
Services were held Thursday for Memphis attorney Thomas Johnston, who died at his home Monday. A partner and former managing partner of the Armstrong Allen law firm, Mr. Johnston was a graduate of the University of Virginia and the University of Virginia Law School. He was a member of the Tennessee Bar Foundation and the American College of Trial Lawyers, and a leader in a number of Memphis organizations, including Calvary Episcopal Church, the Memphis College of Art, the Memphis Rotary Club and St. Mary’s Episcopal School. Memorials can be made to Calvary Episcopal Church, 102 North Second, Memphis, 38103, St. Mary’s Episcopal School, 60 Perkins Extd, Memphis, 38117, or the Memphis College of Art, 1930 Poplar Ave., Memphis, 38104.

BPR Actions
Johnson City lawyer suspended
The Supreme Court of Tennessee on May 1 suspended the law license of Michael D. Kellum of Johnson City, pursuant to Section 4.3 of Tennessee Supreme Court Rule 9. The Disciplinary Counsel had alleged that Kellum posed a substantial threat of irreparable harm to the public and that he failed to respond to complaints filed against him.
Read the BPR release
Nashville attorney disbarred
The Supreme Court of Tennessee on May 1 disbarred Nashville attorney D. Michael Van Sant from the practice of law. The order followed a recommendation from the Board of Professional Responsibility, which heard the matter on Dec. 19, 2005.
Read the BPR release
Cleveland lawyer censured
Cleveland attorney Edmund Lee Baugh Jr. was publicly censured by the Board of Professional Responsibility on May 3 for accepting representation of a client while on administrative suspension, violating Rule 5.5(a) of Rules of Professional Conduct.
Read the BPR release
Maryville lawyer suspended
The Tennessee Supreme Court on May 1 suspended Charles Alphonso Carpenter from the practice of law for 30 days, retroactive to March 10, 2006. In an agreement with the Board of Professional Responsibility, Carpenter had admitted violating Rule 8.4 (a-d) of the Rules of Professional Conduct.
Read the BPR release
Ridgely attorney suspended
The Supreme Court of Tennessee on May 1 suspended the law license of Ridgely attorney Guy S. Davis after finding that he had failed to answer a complaint filed with the Board of Professional Responsibility.
Read the BPR release
TBA Member Services
Student loans at low rates through SunTrust
The TBA and SunTrust Bank now have a Partnership Program to help alleviate the burden of student loans. Members and their families can consolidate their federal student loans at a special low fixed rate - right now as low as 5.375%. In addition, those with consolidation loans greater than $10,000 are eligible to reduce their interest rate by another 1.5% for on-time payments and automatic debit payments.
Learn more
Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service

 
 
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