New CLE program makes you an eyewitness to history

Learn what role Tennessee lawyers played in the Memphis sanitation strike and events leading up to the assassination of the Rev. Martin Luther King in a new CLE from the TBA's TennBarU. This online video program features a discussion by participants who played key roles in these events.

http://www.legalspan.com/tnbar/catalog.asp?UGUID=&CategoryID=&ItemID=20060721-325567-114922

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

TERRY ABELS, as Next Friend and Guardian Ad Litem for JERRY HUNT v. GENIE INDUSTRIES, INC.; WHITE ELECTRICAL CONSTRUCTION COMPANY; and RENTAL SERVICES CORPORATION

Court: TSC

Attorneys:

William E. Godbold, III, and Sean W. Martin, Chattanooga, Tennessee, and Molly Glover and Tracy A. Overstreet, Memphis, Tennessee, for the Petitioner/Defendant Rental Services Corporation a/k/a RSC.

Marty R. Phillips, Bradford D. Box, and James V. Thompson, Jackson, Tennessee, and Steve Beal, Lexington, Tennessee, for the Respondent/Plaintiff, Terry Abels, as next friend and guardian ad litem for Jerry Hunt.

J. Randolph Bibb, Jr., Nashville, Tennessee, and Robert F. Chapski, Knoxville, Tennessee, for the Respondent/Defendant Genie Industries, Inc.

Robert D. Flynn, Memphis, Tennessee, for the Respondent/Defendant White Electrical Construction Company.

Judge: CORNELIA A. CLARK

We accepted two questions of law certified by the United States District Court for the Western District of Tennessee to determine whether the applicable statute of limitations, Tenn. Code Ann. § 28-3-104(a)(1) (2000), begins to run against the tort claims of a legally disabled individual once a legal guardian is appointed. We hold that Tennessee's legal disability statute, Tenn. Code Ann. § 28-1-106 (2000), tolls the statute of limitations for legally disabled individuals for so long as the disability of unsound mind remains, regardless whether such individual has had a legal guardian appointed to pursue such claims on his behalf.

http://www.tba2.org/tba_files/TSC/2006/abelst_091406.pdf


WILLIAM L. SMITH V. VIRGINIA LEWIS, WARDEN, ET AL.

Court: TSC

Attorneys:

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Amy L. Tarkington, Deputy Attorney General; James Michael Taylor, District Attorney General; and James Pope, III, Assistant District Attorney General, for the Appellant, State of Tennessee.

Philip A. Condra, District Public Defender; B. Jeffery Harmon, Assistant Public Defender, for the Appellee, William L. Smith.

Judge: CORNELIA A. CLARK

We granted permission to appeal to determine the extent to which a judgment order containing a sentence for rape of a child which suggests the possibility of early release is void and subject to correction by writ of habeas corpus. On the facts of this case, we grant habeas corpus relief to the extent of vacating the illegal sentence but not to the extent of vacating the underlying conviction. We therefore affirm in part and reverse in part the Court of Criminal Appeals. This matter is remanded for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/smithw_091406.pdf


RONNIE LYN CHRIST v. KERY N. HOMONAI

Court: TCA

Attorneys:

Barbara McCullough of Memphis, Tennessee for Appellant, Ronnie Lyn Christ

No brief filed by Appellee

Judge: W. FRANK CRAWFORD

This appeal involves a dispute over a non-marital child's surname. Father/Appellant filed a petition in the Juvenile Court of Shelby County, seeking to legitimate his son and to give him his surname. Following a bench trial, the juvenile court legitimated the child, and directed that the child's surname be changed to a hyphenated surname consisting of Mother's maiden name and Father's surname. Father/Appellant appeals. We reverse the trial court's finding concerning the child's surname and remand for further proceedings consistent with T.C.A. 27-3-128 and this Opinion.

http://www.tba2.org/tba_files/TCA/2006/christr_091406.pdf


WADE D. HARLEY, ET AL. v. BARRY HARRISON

Court: TCA

Attorneys:

Laurence Anthony Deas, Madison, Tennessee, attorney for Appellant, Barry Harrison.

Joel M. Leeman and Mary Beth Hagan, Nashville, Tennessee, attorneys for Appellee, Wade D. Harley and Delores L. Harley.

Judge: JON KERRY BLACKWOOD, SR.

This is a breach of contract case regarding a dispute that has been on-going since 1995. On August 30, 1994, the plaintiffs contracted with the defendant for the construction of a new home, to be built around an existing nineteenth century house which was to be partially dismantled and utilized in the construction. After many months of construction, the plaintiffs terminated the contract and filed a complaint which sought, among other relief, a writ of possession for various "house parts" of the nineteenth century home which the defendant was wrongfully withholding and for which he had filed a Mechanics' and Materialmen's Lien. The defendant answered, filed a counter claim and eventually amended the Lien to increase the amount. On August 8, 2005, the trial court entered judgment ordering the removal of the defendant's lien and awarding plaintiffs $149,337.00. The defendant appeals. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/harleyw_091406.pdf


JIMMY RAY CURETON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Jimmy Ray Cureton.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: THOMAS T. WOODALL

Petitioner, Jimmy Ray Cureton, was convicted of felony murder and attempted especially aggravated robbery. The trial court reduced the attempted especially aggravated robbery conviction to attempted aggravated robbery. On appeal, this Court affirmed the conviction for felony murder, reversed the trial court's order reducing the attempted especially aggravated robbery conviction, reinstated the attempted especially aggravated robbery conviction, and remanded for a sentencing hearing on the reinstated conviction. State v. Cureton, 38 S.W.3d 64, 67 (Tenn. Crim. App. 2000). On remand, the trial court sentenced Petitioner to ten years for attempted especially aggravated robbery and this Court affirmed the sentence on appeal. State v. Jimmy Ray Cureton, No. E2001-01511-R3-CD, 2003 WL 179856, (Tenn. Crim. App., at Knoxville, Jan. 28, 2003) (no Tenn. R. App. P. 11 application filed). Petitioner subsequently filed a petition for post-conviction relief. In the present action, Petitioner appeals the trial court’s denial of his petition for post-conviction relief, arguing that the trial court erred in finding that he received effective assistance of counsel. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/curetonj_091406.pdf


STATE OF TENNESSEE v. MARLIN C. GOFF

Court: TCCA

Attorneys:

A. D. Jones, Jr., Bristol, Tennessee, for the appellant, Marlin C. Goff.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Barry Staubus, Assistant District Attorney General; and Rebecca H. Davenport, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: THOMAS T. WOODALL

Following a jury trial, Defendant, Marlin C. Goff, was found guilty of rape of a child, a Class A felony, and was sentenced to twenty-five years’ confinement. In his appeal, Defendant contends that (1) the evidence is insufficient to support his conviction; (2) the trial court failed to properly ascertain the competency of the victim to testify; (3) the trial court erred in allowing the State to cross-examine Defendant concerning his failure to give a statement to the investigating officers; and (4) the length of his sentence is excessive. There is no indication in the record that Defendant filed a motion for new trial, see Tenn. R. App. P. 3(e), and thus issue (2) is waived. As to issue (3), we have reviewed the issue under the discretion extended by Rule 52(b) of the Tennessee Rules of Criminal Procedure and find no plain error. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/goffm_091406.pdf


STATE OF TENNESSEE v. FREDRICK ARNAZ MILLER

Court: TCCA

Attorneys:

Jeffrey S. Schaarschmidt, Chattanooga, Tennessee, for the appellant, Frederick A. Miller.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Bill Cox, District Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: DAVID H. WELLES

The Defendant, Fredrick Arnaz Miller, was convicted by a Hamilton County jury of first degree murder, attempted first degree murder, and especially aggravated robbery. The Defendant was sentenced to life in prison for the murder conviction and, following a sentencing hearing, received sixty-year sentences for both the attempted first degree murder and especially aggravated robbery convictions. The sentences for first degree murder and attempted first degree murder were to be served consecutively, for an effective sentence of life plus sixty years. On appeal, the Defendant raises the following issues for our review: (1) whether the trial court erred in denying his motion to suppress statements made to the police; (2) whether the trial court erred by failing to redact a portion of the co-defendant’s agreement with the State to testify against the Defendant; (3) whether the trial court abused its discretion by admitting into evidence a photograph of the Defendant; (4) whether the trial court erred by failing to grant the Defendant's motion for a mistrial or request for a curative instruction based upon remarks made by the trial judge before the jury; (5) whether the trial court erred in admitting hearsay statements of the accomplice; (6) whether the trial court erred by instructing the jury on flight; (7) whether consecutive sentencing was appropriate; (8) whether the trial court properly allowed a State witness to identify the Defendant's voice on the surveillance videotape; and (9) whether the evidence is sufficient to support his convictions. After review, we conclude that there is no reversible error and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/millerf_091406.pdf


STATE OF TENNESSEE v. BENNY RAY MITCHELL

Court: TCCA

Attorneys:

Brad L. Davidson, Newport, Tennessee, for the appellant, Benny Ray Mitchell.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Alfred C. Schmutzer, Jr., District Attorney General; James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant, Benny Ray Mitchell, was convicted of theft of property valued over $10,000 and for operation of a chop shop. The trial court sentenced the Defendant, a persistent offender, to twelve years for the theft conviction and ten years for the operation of a chop shop, and it ordered that the sentences run consecutively. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions; and (2) the jury was unable to render an unbiased verdict because one juror had a medical condition that he willfully failed to disclose. Finding that there exists no reversible error, we affirm the judgments of the trial court

http://www.tba2.org/tba_files/TCCA/2006/mitchellb_091406.pdf


STATE OF TENNESSEE v. NELSON TROGLIN

Court: TCCA

Attorneys:

C. Douglas Fields, Crossville, Tennessee (on appeal) and Jeffrey Harmon, Jasper, Tennessee (at trial), for the appellant, Nelson Troglin.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; James Michael Taylor, District Attorney General; James W. Pope III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant, Nelson Troglin, was convicted of attempted first degree murder, and the trial court sentenced him to twenty-four years in the Department of Correction. On appeal, the Defendant contends that the trial court erred when it: (1) refused to strike prospective jurors; (2) did not instruct jurors on the charge of aggravated assault as a lesser-included offense; (3) refused the Defendant's request for a mental evaluation; (4) denied the motions to replace Defendant's counsel, which caused the Defendant to receive ineffective assistance of counsel; and (5) improperly allowed references to the Defendant's indictment for the murder of Ralph Wilkey. Finding no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/troglinn_091406.pdf


TODAY'S NEWS

Legal News
Supreme Court Watch
Legislative News

Legal News
Midstate prosecutor target of TBI probe
The Tennessee Bureau of Investigation confirmed today that it has launched a criminal investigation into the office of District Attorney General Bill Gibson, who handles prosecutions in parts of Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White counties.
The Tennessean has this breaking story.
Arthur March expected to plead guilty in murder plot
Arthur March is expected to appear in court Friday morning and plead guilty to his role in a plot to kill Larry and Carolyn Levine. March's son, Perry March, was recently convicted of murder in his wife Janet March's death. The Levines are the parents of Janet March.
WSMV has the story.
Rein in incursions on attorney-client privilege, ABA pres tells Senate committee
American Bar Association President Karen J. Mathis this week urged the Senate Judiciary Committee "to send a strong message to the Department of Justice that the attorney-client privilege and the work product doctrine are fundamental principles of our legal system that must be protected." Mathis told committee members that Justice Department directives to federal prosecutors are "improperly undermining those fundamental rights," in testimony at a hearing on "The Thompson Memorandum's Effect on the Right to Counsel in Corporate Investigations."
Read the full report from the ABA.
Juvenile judge says attorney disrupted hearing
A newly seated Anderson County Juvenile Court judge said in a memo Wednesday that an attorney with no business in her court interrupted an emergency hearing and made derogatory remarks to her. Judge April Meldrum said in the memo issued late Wednesday that a special judge will be appointed to determine if lawyer Victoria Bowling should be held in contempt of court. The incident involving Bowling, who was a Democratic candidate for the juvenile judge's post in the May primaries, occurred a week after Meldrum took office.
The News Sentinel has the story.
Barber's slaying case takes new turn
The case of the slaying of popular West Knoxville barber David Leath has taken a new and sharp turn. Leath's widow, Raynella Dossett Leath, accused in a civil lawsuit of killing her husband, claims in court documents filed last week that her husband was killed by his daughter from a previous marriage, Cindy Leath Wilkerson.
Follow the plot twists with the News Sentinel.
Jailhouse rocks!
The Bradley County Justice Center was open to the public on Sunday for the first time in two years, as Sheriff Tim Gobble welcomed nearly 500 visitors.
The Bradley News has the story and pictures.
Charges on horizon in HP spy scandal
Criminal charges could come within a week in the boardroom spying scandal at Hewlett-Packard Co., California's Attorney General's Office said Wednesday. Spokesman Tom Dresslar did not say who would be charged or what the charges would be. He also emphasized that it may take longer for the detailed investigation to produce charges.
Read more in the News Sentinel.
Knox County Clerk's courthouse offices may leave downtown
As of last week, you can no longer get a driver's license renewed at the old Knox County courthouse, or anywhere else downtown. And if Knox County Clerk Mike Padgett has his way, other services, including the motor-vehicle tag renewal services, will also be moved, perhaps to some of the suburban locations where the county already operates offices. "It's very hard to get to the downtown location," he says.
Metro Pulse has the story.
Supreme Court Watch
Columnist questions Bredesen's take on justice candidate
Tennessean columnist Dwight Lewis questions why Gov. Phil Bredesen says Shelby County Circuit Judge D'Army Bailey's nomination for a seat on the state's top court is problematic.
Read his defense of Judge Bailey.
Wade investiture next week
Tennessee Supreme Court Justice Gary R. Wade will be sworn in by Gov. Phil Bredesen during a formal investiture ceremony at 2 p.m. Sept. 22 at the Sevier County Courthouse. The public is invited. Circuit Court Judge Rex Henry Ogle of the 4th Judicial District will preside. Others who will participate include Court of Criminal Appeals Judge Norma Ogle; Appellate Court Clerk Michael Catalano; Sevier County Mayor Larry Waters; Sevierville Mayor Bryan Atchley; Col. John Patrick, marshal of the Tennessee Supreme Court; Jamesena Miller, community volunteer; and Rev. Randy Davis of First Baptist Church of Sevierville.

Legislative News
Registry fines former senator $10K
The Tennessee Registry of Election Finance has fined former state Sen. Kathryn Bowers after she didn't appear at a hearing over an unreported campaign contribution. The registry notified Bowers, a Memphis Democrat, that she was in violation of election finance laws because she had failed to report a $2,500 contribution from FedEx in January. When she failed to appear before the board as ordered on Wednesday, she was fined $10,000.
Read it in the News Sentinel.

 
 
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