State will not fight stay of execution

Tennessee attorney general's office said Monday it would not challenge the stay of execution issued by a federal appeals court for death row inmate Donnie Johnson, the Tennessean reports. The 6th U.S. Circuit Court of Appeals granted the stay last week based on claims by Johnson's lawyers that prosecutors and their star witness lied about immunity granted for the testimony that convicted him. Johnson was scheduled to die in the electric chair Wednesday.

http://tennessean.com/apps/pbcs.dll/article?AID=/20061024/NEWS01/610240360/1006/NEWS

TODAY'S OPINIONS
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JOSEPH M. HASKINS, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF DREW E. HASKINS, JR., DECEASED

Court: TCA

Attorneys:

John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee, for the Appellant, Drew E. Haskins III.

Robin L. Miller, Charles J. Gearhiser, and R. Wayne Peters, Chattanooga, Tennessee, for the Appellee, Joseph M. Haskins, Individually and as Executor of the Estate of Drew E. Haskins, Jr., Deceased.

Judge: LEE

Drew E. Haskins, Jr., and his two sons, Drew E. Haskins III, and Joseph M. Haskins, formed two partnerships, Capital Developers Partnership and Dayton Pike Plaza Associates, with each sharing an equal one-third interest in both partnerships. After the father's death, the sons continued to operate the partnerships and elected not to purchase their fatherís partnership interest. Four years after the father's death, suit was filed to dissolve the partnerships. The trial court ordered that the partnerships be dissolved. On appeal, questions are raised regarding the trial court's rulings as to the distribution of monies related to the Capital Developers Partnership, as to the propriety of actions taken by Joseph M. Haskins after he elected himself managing partner of that partnership and as to Drew E. Haskins III's request for attorney's fees and expenses with regard to both partnerships. We affirm the trial court's ruling that Joseph M. Haskins did not have to pay interest on funds that he erroneously paid himself as managing partner of Capital Developers Partnership and was later required to reimburse; affirm the trial court's ruling that the Estate of Drew E. Haskins, Jr.'s interest in Capital Developers be determined as of the date of the partnership's dissolution rather than at the time of final distribution of proceeds from its sale; and affirm the trial court's approval of a lease executed by a tenant of the Capital Developers Partnership and Joseph M. Haskins after the latter proclaimed himself managing partner of that partnership. We affirm in part and reverse in part the trial court's denial of Drew E. Haskins IIIís request for attorney's fees, costs and expenses as to both partnerships and remand for further determination in that regard. Finally, we reverse the trial court's ruling that the Drew E. Haskins, Jr. Estate should receive interest on proceeds realized from the sale of Capital Developers after such funds were deposited in the clerk and master's office.

http://www.tba2.org/tba_files/TCA/2006/haskinsjo_102406.pdf


IN RE E.M., II (D.O.B. 08/20/03) STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES V. CHRISTINA MARIE KEELYN AND EDWARD MALACHOWSKI

Court: TCA

Judge: KIRBY

This is an appeal from an unusual order in a termination of parental rights case. The child involved in this action was placed into state custody soon after the child's birth, because both the mother and the child tested positive for cocaine. The child was placed in the custody of a foster mother who was a single parent. The state filed a petition to terminate the parental rights of the biological parents of the child. After a trial, the trial court terminated the parents' parental rights. Additionally, the trial court sua sponte ordered the state to find a suitable dual-parent home in which to place the child and ordered the state to consult with private adoption agencies to accomplish this task. The state now appeals the portion of the trial court's order requiring it to place the child in a dual-parent home. There is no appeal from the termination of parental rights. We reverse the trial court's order regarding placement of the child, concluding that the trial court was without jurisdiction to adjudicate placement of the child after the parents' rights were terminated and the state was given complete guardianship over the child.

http://www.tba2.org/tba_files/TCA/2006/malachowskie_102406.pdf


ALLISON SHEA MINTON v. TIMOTHY JAMES FOX

Court: TCA

Attorneys:

Gregory H. Harrison, Knoxville, Tennessee, for the Appellant, Timothy James Fox.

Felisha B. White, Seymour, Tennessee, for the Appellee, Allison Shea Minton.

Judge: SWINEY

This is a child custody dispute which began when Allison Shea Minton ("Mother") filed a petition for paternity claiming Timothy James Fox ("Father") was the biological father of Mother's son. Father responded to the petition and admitted he was the child's biological father. Father had never denied the child was his, and Mother and Father had established a co-parenting time schedule on an amicable basis for several years after the child was born and before Mother filed her petition. The custody battle began when Mother's new husband joined the Navy and the family moved to Virginia. Once that happened, both Mother and Father sought to be designated as the child's primary residential parent. Following a trial, the Trial Court determined that Mother should be designated as the child's primary residential parent and entered an order to that effect which also set Father's child support payments, the amount of Father's child support arrearages, as well as Father's co-parenting time. Father appeals the Trial Court's order designating Mother as the primary residential parent. We affirm.

http://www.tba2.org/tba_files/TCA/2006/mintona_102406.pdf


VANESSA ANN WEBSTER v. BRAD ANTHONY WEBSTER

Court: TCA

Attorneys:

David W. Camp and Bob C. Hooper, Jackson, Tennessee, for the appellant, Vanessa Ann Webster.

Barbara Hobock and Cynthia Chandler-Snell, Humboldt, Tennessee, for the appellee, Brad Anthony Webster.

Judge: KIRBY

This is a parental relocation case. The parties were divorced and, under their MDA, the mother was designated the primary residential parent for the parties' two children. Within a month after the divorce decree was entered, the mother wrote the father a letter saying that she was moving to Canada with the children. The father filed an objection to the relocation in the trial court. The mother filed a response and a petition to relocate with the children to Canada, stating that she intended to marry a citizen of Canada who was currently serving in the Canadian armed services. After a hearing, the trial court denied the mother's petition, finding that the relocation did not have a reasonable purpose and that the relocation was not in the children's best interest. The mother now appeals. We reverse, holding that the evidence preponderates against the trial courtís finding of no reasonable purpose under the parental relocation statute.

http://www.tba2.org/tba_files/TCA/2006/websterva_102406.pdf


STATE OF TENNESSEE v. CHRISTOPHER KYLE

Court: TCCA

Attorneys:

Phyllis Aluko, Diane Thackery and David Bell Assistant Public Defenders, Memphis, Tennessee, for the appellant, Christopher Kyle.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Christopher Kyle, also known as "Snap," was convicted by a jury of second degree murder and theft of property. As a result, the trial court sentenced the appellant to twenty-three years as a violent offender for second degree murder and eleven months and twenty-nine days for theft of property. The sentences were ordered to run concurrently. On appeal, the appellant argues that the evidence was insufficient to support his conviction for second degree murder, that the trial court erred in instructing the jury on the theory of criminal responsibility and that his sentence is excessive. For the following reasons, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/kylec_102406.pdf


STATE OF TENNESSEE v. ASHLEY MARTIN

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender, and Tony N. Brayton and Trent Hall, Assistant Public Defenders, for the appellant, Ashley Martin.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Ashley Martin, was convicted of two counts of aggravated robbery: aggravated robbery by violence and aggravated robbery by fear. The trial court merged the convictions and sentenced the defendant to thirty years as a Range III, career offender. This appeal follows the denial of his motion for a new trial in which he alleged that: (1) the evidence was insufficient to support his conviction, and (2) the trial court erred in ruling his nine prior convictions for aggravated robbery were admissible for purposes of impeachment if he chose to testify. After careful review, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/martina_102406.pdf


STATE OF TENNESSEE v. DONALD BRADFORD SLAGLE, JR.

Court: TCCA

Attorneys:

Steven B. Ward, Madisonville, Tennessee, for the appellant, Donald Bradford Slagle, Jr.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A Loudon County jury found the defendant, Donald Bradford Slagle, Jr., guilty of fourth offense driving under the influence (DUI), fourth offense driving on a revoked license, and violating the implied consent law. The trial court imposed a one-year sentence for DUI, and eleven months, twenty-nine days for driving on a revoked license, all to be served in a community corrections program following service of 150 days in confinement. The defendant's driving privileges were also revoked. On appeal, the defendant argues that: (1) the trial court erred in failing to give his requested special jury instruction, and (2) the evidence was insufficient to sustain his DUI conviction. Following our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/slagled_102406.pdf


STATE OF TENNESSEE v. TORREZ TALLEY, JEVON BRYANT, AND KEITH EZELL

Court: TCCA

Attorneys:

Marvin E. Ballin, Memphis, Tennessee, for the appellant, Torrez Talley; William Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Jevon Bryant; and James Hale, Assistant Public Defender, for the appellant, Keith Ezell.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols and Ray Lepone, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

Pursuant to multiple indictments, Defendants Jevon Bryant, Keith Ezell and Torrez Talley were charged with fourteen counts of especially aggravated kidnapping and five counts of aggravated robbery. Defendant Bryant was also charged with one count of felon in possession of a firearm. Following a trial, the jury found Defendants Bryant and Ezell guilty on all counts. The jury found Defendant Talley guilty of ten counts of especially aggravated kidnapping and four counts of aggravated robbery. Thereafter, the trial court sentenced Defendant Bryant to an effective sentence of 364 years, Defendant Ezell to an effective sentence of 198 years, and Defendant Talley to an effective sentence of 140 years. On appeal, the following issues are presented for review: (1) whether the trial court properly denied a motion to suppress physical evidence; (2) whether the trial court properly denied a motion for mistrial during jury selection; (3) whether the trial court properly found purposeful discrimination by the defendants in their exercise of peremptory challenges; (4) whether the trial court erred by failing to require the state prosecutor to elect facts supporting Defendant Bryant's conviction for felonious possession of a handgun; (5) whether the trial court erred in allowing the prosecutor to rehabilitate the credibility of state witnesses; (6) whether the trial court erred in refusing to grant a mistrial or provide curative instruction following an improper statement made by a state witness; (7) whether the trial court erred in allowing the prosecutor to bring in Defendant Ezell's twin brother to rehabilitate a state witness' pretrial misidentification; (8) whether the trial court erred in refusing to grant a mistrial in response to the improper remarks made by the prosecutor during closing argument; (9) whether the trial court erred by refusing to permit counsel to review the jury instructions prior to charging the jury; (10) whether the trial court properly instructed the jury on reasonable doubt; (11) whether the trial court properly instructed the jury on the defendant's right not to testify; (12) whether the trial court erred by refusing to instruct the jury on false imprisonment as a lesser-included offense of especially aggravated kidnapping; and (13) whether the trial court erred in sentencing the defendants. Because we conclude that no reversible error exists, we affirm the judgments of the trial court. However, the record reflects that the defendants' especially aggravated kidnapping convictions were not properly merged. Therefore, we remand for merger and entry of corrected judgments as to those convictions.

http://www.tba2.org/tba_files/TCCA/2006/talleyt_102406.pdf


Medical Laboratory Personnel Rule

TN Attorney General Opinions

Date: 2006-10-17

Opinion Number: 06-164

http://www.tba2.org/tba_files/AG/2006/ag_06-164.pdf

Tennessee Commission of Indian Affairs - Individual and Organizational Recognition Criteria

TN Attorney General Opinions

Date: 2006-10-17

Opinion Number: 06-165

http://www.tba2.org/tba_files/AG/2006/ag_06-165.pdf

TODAY'S NEWS

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Legal News
Metro law director considering mayoral bid
Metro Nashville Law Director Karl Dean said today that he's considering running for mayor next year. The Vanderbilt University Law School grad was elected in 1990, 1994 and 1998 as the Metro public defender.
Read more in the Tennessean
Battle over anti-porn law begins
Eight years after Congress passed a law aimed at protecting children from online pornography, free speech advocates and web site publishers argued in federal court Monday that the measure is fatally flawed, the Knoxville News Sentinel reports. The law -- which has never been enforced -- would impose a $50,000 fine and six-month prison term on commercial web site operators who allow minors to view such content, which is to be defined by "contemporary community standards." The plaintiffs argued that "community standards" is too vague.
Read more
Franklin Co. courthouse called fire hazard
The fire marshal in Franklin County has called the county's historic courthouse a fire hazard, WSMV reports. The building was found to have no adequate exits in the event of a fire, and the nearly 70-year-old building also has no fire or smoke alarms, the fire marshal said.
Find out more
New Nashville federal courthouse gets construction manager
A California company has been selected to provide construction management services for a new federal courthouse in Nashville, the Nashville Business Journal reports. A subsidiary of the Jacobs Engineering Group will perform construction management on the $112 million project.

Vanderbilt Law School earns Sloan Foundation grant
The Alfred P. Sloan Foundation has awarded Vanderbilt Law School a grant of $609,500 to fund a two-year study on the international role of American corporations.
Learn more about the project
Upcoming
5K to benefit MALS this weekend
Memphis Area Legal Services (MALS), The Exchange Club Family Center and the Shelby County District Attorney General's Office will host the second annual Regions-Morgan Keegan Legal Legs for Justice 5K Run/Walk presented by Verizon Wireless on Oct. 27. Proceeds benefit MALS Domestic Violence Project, The Exchange Club Family Center and the Domestic Violence Council. For more information contact Kristen Myers at 737-0853 or email her.
Register for the race.
BPR Actions
Knoxville lawyer suspended
On Oct. 17, the Supreme Court of Tennessee issued an order suspending the law license of David Andrew Lufkin, who last practiced law in Knoxville. This is an immediate temporary suspension issued pursuant to Section 4.3 of Rule 9, Rules of the Tennessee Supreme Court. In issuing the suspension, the court found that Lufkin posed a threat of substantial harm to the public.
Read the BPR release
Chattnanooga attorney censured
Richard B. Teeter, a Chattanooga attorney, received a public censure from the Board of Professional Responsibility on Oct. 19. In a Georgia Superior Court he was found guilty of civil contempt for willfully failing and refusing to comply with his divorce decree in failing to pay alimony, was arrested and held until he paid the required amounts.
Read the BPR release
Cookeville lawyer censured
Edwin J. Mackie Jr., a Cookeville attorney, received a public censure from the Board of Professional Responsibility on Oct. 19. On Feb. 23, the Internal Revenue Service filed a Notice of Federal Tax Lien against Mackie for failure to pay Section 941 federal withholding taxes for the four quarters of 2004, which he has since paid. He violated Rules of Professional Conduct 8.4(a)(c)(d).
Read the BPR release
Chattanooga lawyer censured
Keith Alan Black, a Chattanooga attorney, received a public censure from the Board of Professional Responsibility on Oct. 12, for engaging in the practice of law after he was administratively suspended on Sept.20, 2004, and for failing to pay his Board of Professional Responsibility registration fee. Black's practicing law while on administrative suspension violated Rule of Professional Conduct 5.5(a).
Read the BPR release
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