Committee to study death penalty passes House

Legislation that would create a committee to study administration of the death penalty (HB2162/SB1911) passed the House today 79-14, with two representatives present but not voting. The bill now goes back to the Senate for action on an amendment requiring that the report be issued one year from appointment of the committee.
TODAY'S OPINIONS
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IN RE: CONSERVATORSHIP OF GLADYS R. BURCHARD, AND PUBLIC GUARDIAN FOR THE ELDERLY, AS CONSERVATOR FOR GLADYS R. BURCHARD, v. RALPH O. BURCHARD

Court: TCA

Attorneys:

Debra J. Lanthripp, pro se, Trenton, Georgia, appellant.

Jerre B. Mosley, Chattanooga, Tennessee, for Conservator.

Judge: FRANKS

Petitioner intervened in this action, averring that the conservator for her mother had died and asked that she be appointed conservator of her mother. The Trial Court appointed a successor conservator and ruled that petitioner had no standing to contest the conservatorship and to be appointed conservator since she was a non-resident of the State. On appeal, we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2007/burchardg_060707.pdf


IN RE: ESTATE OF G. WALLACE CRESWELL, ORAL RUTH CRESWELL v. JAMES STEWART CRESWELL

Court: TCA

Attorneys:

Robert M. Cohen, Maryville, Tennessee, for appellant.

W. Phillip Reed, Maryville, Tennessee, for appellee. OPINION

Judge: FRANKS

In this Estate, the parties in open court announced the terms of settlement between them of the entire Estate. Appellant sought to set aside the settlement on the grounds of duress, but after an evidentiary hearing the Trial Court refused to set aside the settlement. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/creswellw_060707.pdf


STATE OF TENNESSEE v. DENNIS BRIAN DAVIS

Court: TCCA

Attorneys:

Anthony W. Turner, Crossville, Tennessee, for the Appellant, Dennis Brian Davis.

Robert E. Cooper, Jr., Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney General; William Edward Gibson, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Dennis Brian Davis, appeals his Cumberland County Criminal Court jury conviction of manufacturing methamphetamine, a schedule II controlled substance, within 1,000 feet of a school. See T.C.A. Sections 39-17-417(a)(1), (c)(2),- 432 (2006). In his timely appeal, he claims that the evidence was legally insufficient to support the verdict. We disagree and affirm the criminal court's judgment.

http://www.tba2.org/tba_files/TCCA/2007/davisd_060707.pdf


DANIEL LYNN OWEN v. STATE OF TENNESSEE
This is a corrected opinion.


Court: TCCA

Attorneys:

Daniel Lynn Owen, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Ellen L. Berez, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Daniel Lynn Owen, pled guilty to arson and setting fire to personal property, agreeing to a concurrent sentence of ten years for arson and two years for setting fire to personal property, as a Range II, multiple offender. The original judgment incorrectly listed the conviction for arson as a Class B felony rather than a Class C felony, and the trial court later amended the judgment to correctly indicate the petitioner had been convicted of a Class C felony. The petitioner filed this appeal to contest the amended judgment. We conclude that correcting a clerical mistake does not trigger a Tennessee Rule of Appellate Procedure 3 appeal as of right. No error exists, and the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2007/owendlCORR_060707.pdf


STATE OF TENNESSEE v. DONALD LUKE SEIBER

Court: TCCA

Attorneys:

Michael T. Cabage, Knoxville, Tennessee, for the Appellant, Donald Luke Seiber.

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Donald Luke Seiber, was convicted by a Knox County Criminal Court jury of aggravated kidnapping, aggravated assault, and two counts of sexual battery. The defendant appealed. The Court of Criminal Appeals affirmed his convictions but remanded for a new sentencing hearing because adequate findings were not made to support an effective sentence of 16 years. Upon remand, the trial court again imposed sentences of two years each for sexual battery in counts one and two, ten years for aggravated kidnapping in court three, and four years for aggravated assault in court four, for an effective 16-year sentence based on the existence of multiple enhancement factors and because the defendant was a "dangerous offender." The defendant again appealed. Our de novo review reveals that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), was decided prior to the defendant's first sentencing hearing, and the defendant then began his Sixth Amendment challenge to Tennessee's sentencing scheme and the trial court's authority to enhance his sentence beyond that authorized by the jury's verdicts. Because Blakely and its progeny are controlling, we reverse the trial court's sentencing determinations and modify the defendant's sentences for an effective sentence of 15 years, with specific findings that the defendant is a "dangerous offender" who merits consecutive sentencing.

http://www.tba2.org/tba_files/TCCA/2007/seiberd_060707.pdf


STATE OF TENNESSEE v. ROSEANNE K. WARD AND JERRY W. WARD
This is a corrected opinion.


Court: TCCA

Attorneys:

Terry J. Leonard, Camden, Tennessee, for the appellant, Roseanne K. Ward and Jerry W. Ward.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Robert Radford, District Attorney General; and Beth Boswell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

This appeal arises from the Benton County Circuit Court's continued denial of pretrial diversion notwithstanding approval by the District Attorney General and previous reversal by this Court. This is the second interlocutory appeal in this matter. Upon due consideration of the record and the parties' briefs, we reverse the circuit court's judgment and remand for entry of an order approving the pretrial diversion agreement between the prosecutor and the defendants.

http://www.tba2.org/tba_files/TCCA/2007/wardrCORR_060707.pdf


TODAY'S NEWS

Legal News
Politics
TBA Member Services

Legal News
Cheney pushed for wiretaps, official says
Vice President Dick Cheney disagreed with Justice officials on the legality of surveillance in 2004, according to former deputy attorney general James B. Comey. Their exchange came the day before White House officials tried to get approval for the same program from then-Attorney General John D. Ashcroft, who lay recovering from surgery in a hospital. Comey's disclosures indicate that Cheney and his aides were more closely involved than previously known in a fierce internal battle over the legality of the warrantless surveillance program.
The Washington Post has the story
Axley says he's through after 25 years on bench
Criminal Court Judge W. Fred Axley announced Wednesday that he will retire at the end of this month. With 25 years on the bench, he is the longest-serving of the 10 Criminal Court judges in Shelby County. Axley said pension benefits and cost-of-living issues prompted his decision, not recent allegations of sexual misconduct.
The Commercial Appeal has the story
Apply for seat by July 3
The Judicial Selection Commission will soon meet to begin the process of filling the vacancy in the Criminal Court of the 30th Judicial District. Those interested should apply by July 3. Applicant questionnaires and more information are avalailable at the
AOC web site
Agent says Cooper not suspected at first
When the bank fraud investigation that involved state Sen. Jerry Cooper began, he was thought to be a victim, not a suspect, a former Tennessee Bureau of Investigation agent testified Wednesday.
The Times Free Press has more
Soldier's mother files suit against peace group
The mother of a soldier killed in Iraq is suing a national women's peace group for using her son's picture in a traveling display. The group, Codepink, removed Capt. Robert Secher's picture from the exhibit when it learned of the mother's feelings, but Elke Morris is still pursuing court action; she filed a lawsuit in Shelby County Chancery Court on May 25.
The Kingsport TImes-News carried this AP story
Child rape conviction
'easiest ever'
A case the prosecutor called the easiest one he's ever taken to court, resulted in the conviction of a man accused of child rape. The defendant's own lawyer called him an "idiot," but said he wasn't guilty of that charge.
WMCT-TV carried this AP story
Lyle tells commission to hurry up and rule on Hutchison
Davidson County Chancellor Ellen Hobbs Lyle has ordered the Peace Officer Standards and Training Commission to rule on whether former Knox County Sheriff Tim Hutchison should be decertified or not. If he is not decertified by July 1 his pension will be $60,000 more than if he is. "If the POST commission, within a reasonable time, refuses to consider the matter or act or commits error in its response to the plaintiffs request for expedited relief, this court has jurisdiction for immediate review," Lyle wrote.
The News Sentinel has the story
Knox commission directed to develop nepotism policy
Urged by the public, the Knox County Ethics Committee agreed Wednesday to encourage the County Commission to develop a policy regarding "nepotism and cronyism." Jan. 31 was the day the commission appointed 12 county officeholders after their predecessors had been ousted from office by a state Supreme Court decision upholding the Knox County Charter and its previously unenforced term limits provision. There was a public outcry over the way the appointments were handled because commissioners took frequent recesses, adjourning to a backroom behind the commission chamber, apparently to discuss which candidates to choose.
Read more in the News Sentinel
MTSU harrassment case at Supreme Court
A sexual harassment case against the president of Middle Tennessee State University reached the state Supreme Court Wednesday. The case is one of the first workplace retaliation cases to reach a state supreme court after an unanimous U.S. Supreme Court decision a year ago broadened the scope of the legal definition of employer harassment, the AP reports.
WMCT-TV has more
1Point's Stokes will stay in jail until trial
Barry Stokes, founder of the bankrupt 1Point Solutions, tried to convince U.S. Magistrate Judge Clifton Knowles yesterday that he would not be a flight risk and that he should be allowed to leave jail while awaiting his trial, which includes charges of embezzlement and fraud. Among several pieces of evidence presented was an audiotape of a telephone call where his mother refused to put up money for him. Knowles denied Stokes, saying he had also contradicted himself in statements, and was "not a credible witness."
NashvillePost.com followed the story
Elected officials still draw pay, even when suspended or convicted
Suspended District Attorney Bill Gibson is still being paid a six-figure salary, even though he hasn't been able to work since last October when the Board of Professional Responsibility suspended him for ethical misconduct. Gibson, who has not been charged with a crime, has a term that doesn't end until 2014. Since elected officials can't simply be fired under current law, Gibson and other officials serving time or suspended keep on cashing the taxpayer's paychecks.
Read more in the Tennessean
Politics
Tinker to run against Cohen for Memphis seat
Virtually guaranteeing a high-stakes, high-cost Democratic Primary for the Ninth Congressional District seat next year, lawyer Nikki Tinker, who came in second last year, has formally declared her intent to run again, the Commercial Appeal reports this afternoon. The Memphis seat, long in the hands of successive Harold Fords, is held by former state Sen. Steve Cohen.
Read more
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