Judicial conference names new leadership

Tennessee Court of Criminal Appeals Judge D. Kelly Thomas of Maryville has been elected president of the 178-member Tennessee Judicial Conference (TJC), which includes all state appellate and trial court judges. Thomas has served on the bench since 1990. Prior to his appellate court appointment in 2006, he was circuit court judge for the 5th Judicial District. Before being elected judge, he practiced law in Maryville. Thomas earned his law degree from The University of Tennessee in 1977. Other new officers are Circuit Court Judge William B. Acree Jr., president-elect; Criminal Court Judge Richard Baumgartner of Knoxville, vice-president; Chancellor Daryl R. Fansler of Knoxville, secretary; and Criminal Court Judge E. Shayne Sexton of Jacksboro, treasurer.

For a list of executive committee members visit the AOC's web site at:

http://www.tsc.state.tn.us/geninfo/PRESSREL/2007/072pr.htm#KellyThomas

TODAY'S OPINIONS
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Editor-in-Chief, TBALink

KATHY WILLIAMS HICKS v. ROGER CARL HICKS
Corrected Opinion


Court: TCA

Attorneys:

Charles C. Morrow, Brentwood, Tennessee, for the appellant, Roger Carl Hicks

Mary B. Langford, Nashville, Tennessee, for the appellee, Kathy Williams Hicks

Judge: CAIN

In an action for divorce, Husband appeals the trial court's divorce award, the division of the marital estate, and the award of attorney's fees and court costs. Husband also alleges that the trial court was prejudiced against his attorney. We affirm the decision of the trial court and find that Husband's appeal was frivolous, thus warranting the award of damages.

http://www.tba2.org/tba_files/TCA/2007/hicksr_corr_062007.pdf


RICHARD COBURN MERCER v. MARILYN LUCRETIA HADLEY

Court: TCA

Attorneys:

Marilyn Lucretia Hadley, appellant, pro se

Mark G. Rothberger, Chattanooga, Tennessee, for the appellee, Richard Coburn Mercer

Judge: SUSANO

This is a post-divorce case. Richard Coburn Mercer (Husband) filed a petition seeking a reduction in his alimony obligation to his former spouse, Marilyn Lucretia Hadley (Wife). She filed a counterclaim seeking a judgment for an alimony arrearage. She also sought other relief. The trial court denied Husband's petition and awarded Wife an arrearage of $2,000. Wife appeals, asserting that the trial court erred (1) in allowing Husband a $6,000 credit against his $7,975 alimony arrearage; (2) in failing to decree that she was entitled to an equitable division of an employment severance package that Husband started receiving shortly after the parties' divorce; and (3) in the taxing of a special master's fee and in failing to tax Husband with the cost of a transcript of the hearing before the master. Husband, on the other hand, argues that the trial court erred in awarding Wife a $1,500 attorney's fee. He also seeks damages for a frivolous appeal. We modify in part, reverse in part, and affirm in part. We reject Husband's contention that Wife's appeal is frivolous in nature.

http://www.tba2.org/tba_files/TCA/2007/mercerc_062007.pdf


STATE OF TENNESSEE v. BETTY R. CHUMBLEY

Court: TCCA

Attorneys:

Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Betty R. Chumbley

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Charles F. Crawford, District Attorney General; Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: TIPTON

The defendant, Betty R. Chumbley, pled guilty to two counts of theft between $10,000 and $60,000, a Class C felony; three counts of official misconduct, a Class E felony; and one count of destruction of and tampering with governmental records, a Class A misdemeanor. The theft counts were merged and the official misconduct counts were merged. She received an effective five-year sentence on probation. On appeal, the defendant contends that the trial court erred in denying her judicial diversion. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/chumbleyb_062007.pdf


STATE OF TENNESSEE v. WILLIAM THOMAS HECKART

Court: TCCA

Attorneys:

Leslie S. Hale, Assistant Public Defender, for the appellant, William Thomas Heckart

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: GLENN

The defendant, William Thomas Heckart, pled guilty in the Sullivan County Criminal Court to reckless endangerment, a Class E felony; two counts of aggravated assault, a Class C felony; misdemeanor violation of the sex offender registry, a Class A misdemeanor; and felony violation of the sex offender registry, a Class E felony, and was sentenced as a Range I offender to an effective six-year sentence in the Department of Correction. On appeal, he argues that the trial court erred in denying his request for probation or other alternative sentencing. Following our review, we affirm the judgment of the trial court but remand for entry of a corrected judgment form in count two of case number S50,856 to reflect that the conviction offense was a Class C felony.

http://www.tba2.org/tba_files/TCCA/2007/heckartw_062007.pdf


STATE OF TENNESSEE v. TIMMY LEE HILL

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Timmy Lee Hill

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Charles F. Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

A Marshall County Circuit Court jury convicted the appellant, Timmy Lee Hill, of three counts of aggravated kidnapping, two counts of aggravated assault, one count of escape, and one count of evading arrest. The trial court merged the aggravated kidnapping convictions and ordered that the appellant serve an effective forty-year sentence in confinement for all of the convictions. On appeal, the appellant contends that (1) the trial court erred by overruling his Batson challenges during jury selection; (2) the trial court erred by overruling his objection to the State's improper attempt to impeach a defense witness; (3) the evidence is insufficient to support his aggravated kidnapping and aggravated assault convictions; and (4) the trial court improperly sentenced him as a career offender for some of the offenses. Based upon the record and the parties' briefs, we conclude that the evidence is insufficient to support one of the appellant's aggravated assault convictions because the evidence does not show that the victim suffered serious bodily injury. Therefore, the appellant's conviction for that offense is modified to misdemeanor assault, and the case is remanded to the trial court for resentencing as to that offense. The case is also remanded in order for the trial court to reconsider consecutive sentencing and to make several corrections to the judgments. The judgments of the trial court are affirmed in all other respects.

http://www.tba2.org/tba_files/TCCA/2007/hillt_062007.pdf


STATE OF TENNESSEE V. BRANDON MOBLEY
Corrected Opinion


Court: TCCA

Attorneys:

Brandt W. Davis (at trial), Knoxville, Tennessee, and Julie A. Rice (on appeal), Knoxville, Tennessee, for the Appellant, Brandon Mobley.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; Takisha Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WEDEMEYER

The Defendant, Brandon Mobley, was convicted by a Knox County jury of two counts of first degree murder, especially aggravated robbery, and setting fire to personal property, and the trial court sentenced him to two consecutive life sentences plus twenty-two years. On appeal, he alleges: (1) there is insufficient evidence upon which to convict him on either count of first degree murder; (2) there is insufficient evidence upon which to convict him of especially aggravated robbery; (3) the trial court erred in initially prohibiting testimony from a defense expert, which caused a violation of his Fifth Amendment rights; and (4) the trial court erred in sentencing him. After reviewing the record and applicable law, we affirm the Defendant's convictions, but we conclude the Defendant was improperly sentenced. Thus, we modify the Defendant's sentences for his convictions for especially aggravated robbery and setting fire to personal property from twenty to eighteen years and from two years to one year, respectively.

http://www.tba2.org/tba_files/TCCA/2007/mobleyb_corr_062007.pdf


BOBBY JAMES MOSLEY v. WAYNE BRANDON, WARDEN

Court: TCCA

Attorneys:

Bobby James Mosley, Pro se, Only, Tennessee

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General, for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, Bobby James Mosley, proceeding pro se, appeals the Hickman County Circuit Court's summary dismissal of his petition for writ of habeas corpus. In September, 2004, Mosley was convicted by a Marshall County jury of aggravated robbery and was sentenced to twelve years in the Department of Correction. On appeal, Mosley argues that his judgment of conviction is void for the following reasons: (1) the trial court falsely stated that his trial had been severed from a co-defendant's; (2) he was tried in a joint trial and acquitted, but the verdict forms were altered; and (3) his second trial for the same offense, in September, 2004, violated his constitutional protection against double jeopardy. Finding that Mosley is not entitled to relief, we affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2007/moselyb_062007.pdf


PHILLIP O'BRIAN PYE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan D. Brown, Columbia, Tennessee, for the appellant, Phillip O'Brian Pye

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Dan Runde, Assistant District Attorney General, for the appellee, the State of Tennessee

Judge: WOODALL

Petitioner, Phillip O'Brian Pye, appeals the denial of his petition for post-conviction relief. On appeal, Petitioner contends that (1) trial counsel provided ineffective assistance of counsel during the negotiation and entry of his pleas of guilty; and (2) his guilty pleas were not voluntarily or knowingly entered into because he was under the influence of a drug and because his counsel rendered ineffective assistance of counsel. After a thorough review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/pyep_062007.pdf


JOSEPH EDWARD SUGGS, III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Joseph Edward Suggs, III

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and James Sledge and Hugh Garrett, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: OGLE

The petitioner, Joseph Edward Suggs, III, pled guilty in the Davidson County Criminal Court to three counts of rape of a child, and he received a total effective sentence of seventy-five years. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel were ineffective and that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/suggsj_062007.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
AG: Bakers don't have authority to file for girl
The state attorney general is arguing that Jerry and Louise Baker, the foster parents of Anna He, do not have authority to act as "next friends" of the girl because that would conflict with the rights of the natural parents. In a court filing Monday, AG Bob Cooper also said the Bakers' attorney used extreme, horrifying and irrelevant hypotheticals to argue that the U.S. District Court should overturn the state Supreme Court's ruling returning He to her natural parents.
Read about the ongoing legal battle in the Commercial Appeal
Passengers may challenge traffic stops
The U.S. Supreme Court ruled Monday that passengers stopped in cars by the police, like drivers, are considered to have been "seized," and therefore have a right to contest the legality of the stop if they are subsequently searched and arrested. The 9-0 ruling overturns state court decisions in California, Colorado and Washington.
Read more in the News Sentinel
Worker's comp penalties topped $1M last year
The state collected a record amount in penalties last year from companies not complying with workers' compensation laws. The Department of Labor and Workforce Development took in more than $1 million from 292 non-compliant companies compared to $873,258 from 180 employers the year before. Funds are deposited in an account that helps injured employees not covered by workers' comp insurance.
The Nashville Business Journal has the story
Chattanooga lawyer jailed
Chancellor Howell Peoples gave attorney Cris Helton two weeks to produce an accounting of his handling of a client's estate, but jailed him for failing to come to court on a show cause order regarding the matter. Helton, who is the city attorney for East Ridge, was earlier removed from the case by Peoples. He was released from jail after posting bond.
Chattanoogan.com has more
Library runs afoul of civil rights rules
State officials say Knox County violated federal civil rights law by moving a branch library farther from the center of East Knoxville's black population before getting public input. As a result, the Tennessee secretary of state has frozen grant funding for the library system until the federal Institute of Museum and Library Services determines whether to refer the matter to the U.S. Department of Justice. The county contends it did nothing wrong when it moved the library 931 feet to the east.
The News Sentinel reports
Former federal agent picked for Peete's seat
Memphis City Council members, rocked by indictments and ethics scandals, have chosen a former Secret Service agent to join their ranks. On the second round of voting Tuesday night, members selected Henry Hooper II, owner and agent of Henry Hooper State Farm Insurance and Finance Agency, to fill the unexpired term of Rickey Peete. Hooper will serve until a new council is seated in January.
The Commercial Appeal reviews Hooper's experience
Judge says DUI court could curb repeat cases
Circuit Court Judge Don Ash heard 10 drunk driving cases yesterday, including that of a man convicted nine times and facing his 10th charge. Such situations demonstrate the need for better treatment of multiple offenders, officials say. Those calling for change argue that so-called "DUI courts," which mandate treatment for alcoholism as a part of probation, could curb these repeat offences.
The Murfreesboro Daily reports
Death sentence reinstated for Memphis killer
The 6th Circuit Court of Appeals turned down the appeal of a death row inmate who had chosen electrocution over lethal injection at the time he was sentenced. Gary Bradford Cone, who was convicted in 1982 of killing an elderly Memphis couple, recently raised new issues regarding his trial and argued that his chosen method of execution is unconstitutional. The court rejected the appeal saying that it has never found that electrocution offends standards of decency.
Read about the case in the Commercial Appeal
State Farm accuses Katrina lawyer of ethics violations
State Farm yesterday asked a federal judge to disqualify a prominent lawyer who has represented hundreds of Mississippi homeowners in Hurricane Katrina litigation. The company accuses Richard "Dickie" Scruggs of improperly using internal State Farm records obtained from a pair of whistleblowers. Scruggs contends the documents show that the company manipulated engineering reports to deny claims.
WMC-TV has more
Frist to teach at Princeton
Former Senator Bill Frist is returning to his alma mater, Princeton University, to teach government health policy, the university said Tuesday. Frist, a practicing physician, has been named a visiting professor for the 2007-2008 academic year both for the university's undergraduate and graduate schools. In other news, Frist has joined with former Senate Majority Leader, Democrat Tom Daschle, to co-chair an initiative highlighting global health and extreme poverty as foreign policy priorities in the 2008 presidential election.
Read the university's press release
Columnist expresses concern with department's 'holy hires'
Daily News Journal columnist Ed Kimbrell raises concerns that those who graduate from evangelical or parochial universities are given hiring preference at the U.S. Department of Justice, and that veteran lawyers have been transferred or demoted to make room for such "holy hires." The effect, he argues, has been a shift in department policies and priorities.
Read his piece
Ogletree merger leads to two new offices
Ogletree, Deakins, Nash, Smoak & Steward PC plans to open new offices in Memphis and Jackson, Miss. after it merges with Memphis-based Lewis Fisher Henderson and Claxton LLP. Lewis Fisher attorneys Frederick J. Lewis, Thomas L. Henderson, Charles V. Holmes, O. John Norris III, Craig A. Cowart and Whitney King Fogerty will open the Memphis office as shareholders of Ogletree Deakins. Donna K. Fisher, a founding partner of Lewis Fisher, will join the firm as counsel. Henderson will manage the 10-attorney team, which also will include counsel Conie L. Abernathy and associates Jeremy A. Ireland and Kristy L. Gunn, according to the Memphis Daily News.

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