Some new faces, but number of lawyer lawmakers down

While the Tennessee legislature will include two new lawyers in the Senate and one in the House, the total number of lawyers in the General Assembly is down to 20 from 27 of 132 members after yesterday's election. The state's U.S. congressional delegation will include a new lawyer but the total number of lawyers representing Tennessee in Washington, D.C. will remain unchanged. For details on how the election affected lawyers in public service, read the TBA's analysis:

http://www.tba2.org/tbatoday/legislation/2006/lawyerlegis_110706.html

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

IN THE MATTER OF: D.M.H. AND A.L.H., d/o/b 9-16-92
DONNA PATRICE HAMLETT v. MAURICE GIVENS


Court: TCA

Attorneys:

Jay Dustin King, Jackson, TN, for Appellant.

No attorney of record for Appellee.

Judge: HIGHERS

This case involves the legitimation of twin children and two subsequent actions to establish child support. In the first case, the parties agreed to attempt mediation of the issues, and it appears that a permanent parenting plan was agreed upon which provided for equal and joint custody of the children. Because parenting time was split equally, neither party was to pay support to the other, but certain expenses were to be paid by each parent. The parties allegedly signed the agreement at mediation, and a formal memorandum was subsequently drawn up and presented to the court. The court approved the formal memorandum and entered the parenting plan as an order of the court. In the second action, the mother claimed that because she had never signed the formal, typed version of the agreement, the parenting plan was void. The trial court agreed and set aside the mediated parenting plan. A new plan was entered by the court awarding primary custody to the mother and ordering the father to pay child support, which was calculated retroactively to the date of the children's birth. The father timely appealed, and for the following reasons, we reverse and remand this case for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/hamlettd_110806.pdf


MITCHELL BOWERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert B. Gaia, Memphis, Tennessee, for the appellant, Mitchell Bowers.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Gail Vermaas, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Mitchell Bowers, was convicted of first degree murder and sentenced to life imprisonment in 1997. He appeals the denial of his post-conviction petitioner in which he asserted that trial counsel was ineffective in: (1) failing to advise him that he was not required to testify in his own behalf at trial, and (2) failing to disclose that counsel had previously represented the victim. Upon review, we conclude that the evidence does not preponderate against the findings of the post-conviction court; therefore, we affirm.

http://www.tba2.org/tba_files/TCCA/2006/bowersm_110806.pdf


STATE OF TENNESSEE v. LISA MARIE BUTLER

Court: TCCA

Attorneys:

Robert Jones, District Public Defender, and Trent Hall, Assistant Public Defender (at trial); and Phyllis Aluko, Assistant Public Defender (on appeal), for the Appellant, Lisa Marie Butler.

Robert G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

A Shelby County jury convicted the defendant, Lisa Marie Butler, of first degree felony murder and aggravated child abuse, see T.C.A. Section 39-13-202, -15-402 (2003), in connection with the June 17, 2003 death of her eight-month-old child, Dewayne Butler. The trial court sentenced the defendant as a Violent Offender to life imprisonment at 100 percent for the felony murder conviction and to 20 years and six months at 100 percent for the aggravated child abuse conviction, with concurrent service of the sentences. On appeal, the defendant contests the legal sufficiency of the convicting evidence at trial and argues that her sentence for the aggravated child abuse conviction is excessive. After our review of the record and the parties' briefs, we affirm the defendant's convictions.

http://www.tba2.org/tba_files/TCCA/2006/butlerl_110806.pdf


STATE OF TENNESSEE v. JOSEPH KEVAN CLARK

Court: TCCA

Attorneys:

Jim W. Horner, District Public Defender and H. Tod Taylor, Assistant Public Defender, at trial, for the appellant, Joseph Kevan Clark.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Phillip Bivens, District Attorney General and Charles Dyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

On July 21, 2005, the appellant, Joseph Kevan Clark, was convicted by a Dyer County jury of violating Tennessee Code Annotated Section 55-10-616, a section of the Motor Vehicle Habitual Offender Act. On September 27, 2005, the appellant was sentenced to five years' incarceration as a Range III offender. He appeals the judgment, contending that his conviction is invalid because the underlying order declaring him to be a motor vehicle habitual offender was not properly entered pursuant to Tennessee Rule of Civil Procedure 58. Because we have previously held that an individual must utilize the provisions of Tennessee Rule of Civil Procedure 60.02 to challenge an order declaring the individual to be a motor vehicle habitual offender, we affirm the judgment of the trial court. The appellant also contends that the five-year sentence imposed by the trial court was excessive. Because the trial court appropriately considered both mitigating and enhancement factors, we affirm the sentence imposed by the trial court.

http://www.tba2.org/tba_files/TCCA/2006/clarkj_110806.pdf


STATE OF TENNESSEE v. KEUSI YAMBA DONALD

Court: TCCA

Attorneys:

Joseph P. Atnip, District Public Defender; and Colin Johnson, Assistant Public Defender, for the appellant, Keusi Yamba Donald.

Paul G. Summers, Attorney General and Reporter; David Coenen, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Keusi Yamba Donald, was convicted of possession with intent to sell or deliver 26 grams or more of cocaine, a Class B felony, and possession with intent to sell or deliver more not less than one-half (1⁄2) ounce nor more than ten (10) pounds of marijuana, a Class E felony. The trial court sentenced Defendant to serve sixteen years in the Department of Correction as a Range II, multiple offender for his conviction of possession with intent to sell or deliver cocaine, and six years in the Department of Correction as a Range III, career offender for his conviction of possession with intent to sell or deliver marijuana, with the sentences to be served concurrently. On appeal, Defendant argues that (1) the trial court erred in failing to grant his motion to suppress evidence, (2) the evidence was insufficient to support his convictions, and (3) his sentence of sixteen years was excessive. After a thorough review, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/donaldk_110806.pdf


DIALLO J. LAUDERDALE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender for the Appellant, Diallo J. Lauderdale.

Michael E. Moore, Acting Attorney General & Reporter; Elizabeth B. Marney, Senior Counsel Criminal Justice Division; Robert Radford, District Attorney General; and Steve Garrett, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Diallo J. Lauderdale, was convicted by a Henry County Circuit Court jury of first degree felony murder, and the trial court sentenced him as a violent offender to life in the Department of Correction. On direct appeal, this court affirmed the petitioner's conviction and sentence. The petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed after a hearing. On appeal, the petitioner contends that the post-conviction court erred when it dismissed his petition because his trial counsel rendered ineffective assistance of counsel. After thoroughly reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/lauderdaled_110806.pdf


MORRIS RUCKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Morris Rucker, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Morris Rucker, appeals from the trial court's order dismissing his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/ruckerm_110806.pdf


STATE OF TENNESSEE v. MARCHELLO SIMPSON

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender, and David S. Stockton, Assistant Public Defender, (on appeal); and C. Michael Robbins, Memphis, Tennessee, (at trial), for the appellant, Marchello Simpson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Joe VanDyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Marchello Simpson, pled guilty to aggravated assault, a Class C felony, and nolo contendere to aggravated burglary, a Class C felony. The trial court sentenced the defendant as a Range I, standard offender to six years for each of the convictions and ordered that the sentences be served consecutively in the Department of Correction. On appeal, the defendant claims that the trial court erred in ordering consecutive sentences based upon a finding that he was a dangerous offender. We hold that no error occurred, and we affirm the trial court.

http://www.tba2.org/tba_files/TCCA/2006/simpsonm_110806.pdf


STATE OF TENNESSEE v. RODNEY CLAY SPARKS

Court: TCCA

Attorneys:

Ardena J. Garth and Donna Robinson Miller, Chattanooga, Tennessee, for the Appellant, Rodney Clay Sparks.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William H. Cox, III, District Attorney General; Bates Bryan and Boyd Patterson, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A jury convicted the Defendant, Rodney Clay Sparks, of second degree murder, and the trial judge imposed a twenty year sentence. On appeal, the Defendant contends the trial court erred when it: (1) failed to give a proper self defense instruction, (2) did not allow evidence of the victim's prior burglary, and (3) did not mitigate the Defendant's sentence. We affirm the judgment of the Criminal Court.

http://www.tba2.org/tba_files/TCCA/2006/sparksr_110806.pdf


STATE OF TENNESSEE v. JAMES HENRY WALKER

Court: TCCA

Attorneys:

Matthew P. Armour, Somerville, Tennessee, for the appellant, James Henry Walker.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Terry Dycus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, James Henry Walker, was convicted of one count of burglary, a Class D felony; one count of theft of property valued at $500 or less, a Class A misdemeanor; and one count of vandalism of property valued at $500 or less, a Class A misdemeanor. The trial court sentenced Defendant to concurrent sentences of six years as a Range II, multiple offender, for his felony conviction, and eleven months, twenty-nine days for each misdemeanor conviction, for an effective sentence of six years. Defendant does not appeal the length of his sentences. In his appeal, Defendant challenges the sufficiency of the convicting evidence and argues that the trial court erred in denying his motion to suppress his statements and testimony of his identification. After a thorough review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/walkerj_110806.pdf


STATE OF TENNESSEE v. BRANDON WALLACE

Court: TCCA

Attorneys:

William Dan Douglas, Jr., Ripley, Tennessee, for the Appellant, Brandon Wallace.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer-Walker, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Brandon Wallace, appeals the sentencing decision of the Lauderdale County Circuit Court. Following a jury trial, Wallace was convicted of two counts of attempted first degree murder, attempted second degree murder, attempted especially aggravated robbery, especially aggravated burglary, and felony reckless endangerment. Wallace's conviction for attempted especially aggravated robbery was merged with his conviction for especially aggravated burglary. Following a direct appeal of his convictions and sentences, a panel of this court affirmed the convictions but remanded for resentencing in accordance with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2005). After a resentencing hearing was conducted, Wallace was sentenced to twenty years for each attempted first degree murder conviction, eight years for attempted second degree murder, eight years for attempted especially aggravated robbery, eight years for especially aggravated burglary, and one year for felony reckless endangerment. Based upon the imposition of partial consecutive sentencing, Wallace received an effective sentence of forty-years confinement. On appeal, he challenges the trial court's application of enhancement factors, failure to apply mitigating factors, and imposition of consecutive sentencing. After review, the sentences are affirmed. However, we remand for entry of corrected judgment of conviction forms to properly reflect merger of the offenses and imposition of the aggregate forty-year sentence.

http://www.tba2.org/tba_files/TCCA/2006/wallaceb_110806.pdf


STATE OF TENNESSEE v. BRANDON WALLACE

Court: TCCA

Attorneys:

William Dan Douglas, Jr., Ripley, Tennessee, for the Appellant, Brandon Wallace.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer-Walker, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Brandon Wallace, appeals the sentencing decision of the Lauderdale County Circuit Court. Following a jury trial, Wallace was convicted of two counts of attempted first degree murder, attempted second degree murder, attempted especially aggravated robbery, especially aggravated burglary, and felony reckless endangerment. Wallace's conviction for attempted especially aggravated robbery was merged with his conviction for especially aggravated burglary. Following a direct appeal of his convictions and sentences, a panel of this court affirmed the convictions but remanded for resentencing in accordance with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2005). After a resentencing hearing was conducted, Wallace was sentenced to twenty years for each attempted first degree murder conviction, eight years for attempted second degree murder, eight years for attempted especially aggravated robbery, eight years for especially aggravated burglary, and one year for felony reckless endangerment. Based upon the imposition of partial consecutive sentencing, Wallace received an effective sentence of forty-years confinement. On appeal, he challenges the trial court's application of enhancement factors, failure to apply mitigating factors, and imposition of consecutive sentencing. After review, the sentences are affirmed. However, we remand for entry of corrected judgment of conviction forms to properly reflect merger of the offenses and imposition of the aggregate forty-year sentence.

http://www.tba2.org/tba_files/TCCA/2006/wallaceb_110806.pdf


TODAY'S NEWS

Legal News
BPR Actions
TBA Member Services

Legal News
AOC names deputy director, other senior staff
Tim Townsend, fomer fiscal services director for the Administrative Office of the Courts (AOC), has been named deputy director. He succeeds Elizabeth (Libby) Sykes, who was appointed by the Supreme Court to serve as administrative director of the state court system. Townsend is a 25-year veteran of state government, including 17 years with the court system.

In other personnel changes, Townsend's former assistant, Pam Hancock, is the new fiscal services director and Mary Rose Zingale has been named director of the new Court Services Division.

'JAIL 4 Judges' defeated
Two state ballot initiatives viewed as threats to judicial independence were defeated yesterday. In South Dakota voters resoundingly rejected, by a 90-10 margin, the Judicial Accountability Initiative Law - known as JAIL 4 Judges - which would have created a constitutional amendment abolishing judicial immunity. In Colorado, 57 percent of voters opposed a constitutional amendment that would have imposed term limits on appellate court judges.
The ABA has details on these referendum votes
Judicial diversity big winner on Tuesday
Diversity on the bench was a big winter yesterday, especially in Kentucky and North Carolina. William E. McAnulty Jr. became the first black judge elected to the Kentucky Supreme Court. The state's high court also got its first female justice since 2004. In North Carolina, two women retained their seats on the state supreme court, including the first black woman to serve.
ABA Journal.com has the story on these and other judicial races
Public defenders annual report available
Want to know how many "D" felonies the public defender handled in Tipton County? Or how many felony cases public defenders closed in the 19th Judicial District? Get these statistics and more in the 2006 annual report of the Tennessee District Public Defenders Conference.
Download the report here
Publicity concerns lead to rare sequestration order
A Knox County judge yesterday issued a rare order that will keep jurors sequestered during the upcoming trial of a man accused of serial rape. Authorities allege that Bruce Warren Scarborough is the infamous "UT rapist" suspected in a series of rapes involving young women connected to the University of Tennessee in 1997.
Read about new case developments in the News Sentinel
BPR Actions
Memphis lawyer censured
The Board of Professional Responsibility issued a public censure to Mark D. Talley on Nov. 3 after finding that he failed to notify a client of his suspension. The board conditioned the censure on Talley refunding $1,000 to his client, stating that it would vacate the censure and initiate a formal disciplinary proceeding if the payment is not made.
Read the BPR release
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TBA MBNA MasterCard offers low rate
Show your TBA affiliation and get a low annual percentage rate with the TBA MBNA MasterCard.
Click here to learn more

 
 
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