New TennBarU online course focuses on ethics, technology

If you're looking for guidance in applying Tennessee's Rules of Professional Conduct to the technology you use in your daily practice, this course is for you. The interactive text format offers a lively learning experience, with scenarios that relate to the challenges you face.

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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

HERSCHEL DOWDELL v. JAMES L. COTHAM, ET AL.

Court: TCA

Attorneys:

Stephen E. Grauberger, Goodlettsville, Tennessee, for Appellant, Herschel Dowdell.

Lee Borthick, Jr., Springfield, Tennessee, for Appellees, James L. Cotham and Betty J. Cotham.

Judge: DANIEL

Herschel Dowdell filed an action to quiet title to his property based on a boundary line dispute with James and Betty Cotham, adjoining neighbors for over twenty years. The boundary dispute arose following a survey commissioned by Dowdell to determine the precise boundary of the two properties when Dowdell decided to place his property on the market for sale. The Cothams challenged the surveyor's findings and countersued Dowdell claiming adverse possession. Dowdell then amended his complaint to add the tort of defamation of title. Following a bench trial, the Chancery Court concluded that the evidence failed to support the adverse possession and defamation of title claims. The Court designated the adjoining ditch line as the natural boundary line. Dowdell brings this appeal claiming, among other things, that the trial court erred in denying the claim of defamation of title and erred in arbitrarily finding the boundary line to be the center of the adjoining ditch line. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2007/dowdell_072607.pdf


DARRYL JONES v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Henry R. Allison, III, Nashville, Tennessee, for the Appellant, Darryl Jones.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Jennifer L. Brenner, Nashville, Tennessee, for the Appellee, State of Tennessee.

Judge: SWINEY

Darryl Jones ("Claimant") was injured while being transported from prison to a court hearing. Claimant filed a negligence action against the State of Tennessee (the "State") for his personal injuries. After the case had been pending for almost two years, the State filed a motion to dismiss for failure to prosecute pursuant to Tenn. Code Ann. § 9-8-402(b). The State claimed that, for a one year period, no activity had occurred to advance the case to disposition and the applicable statute mandated dismissal. After Claimant failed to respond to the motion to dismiss, the Claims Commission granted the motion. Claimant thereafter filed a motion for relief from the judgment pursuant to Tenn. R. Civ. P. 60.02, which was denied. Claimant appeals the denial of his Rule 60.02 motion. We affirm.

http://www.tba2.org/tba_files/TCA/2007/jonesd_072607.pdf


LILLIANE KAMBU v. JEAN KATERA

Court: TCA

Attorneys:

Lorraine Wade, Nashville, Tennessee, for Appellant.

Virginia Lee Story, Franklin, Tennessee, for Appellee.

Judge: FRANKS

The Trial Court granted the parties a divorce, ordering the husband to pay child support and alimony in futuro. The husband has appealed arguing the Trial Court abused its discretion in awarding the wife alimony. We modify the alimony award and otherwise affirm.

http://www.tba2.org/tba_files/TCA/2007/kambul_072607.pdf


STATE OF TENNESSEE v. DEVIN BANKS
Corrected Opinion

Court: TCCA

Attorneys:

Robert Jones, Shelby County Public Defender; Phyllis Aluko and Tony Brayton, Assistant Public Defenders (on appeal); Kathy Kent and Latonya Burrow, Assistant Public Defenders (at trial), Memphis, Tennessee, for the Appellant, Devin Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General; Clarence Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General, Stacy McEndree, Assistant District Attorney General, and Karen Cook, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

A Shelby County jury found the Appellant, Devin Banks, guilty of the first degree premeditated murder of Kadhem Al-Maily and the Class A felonies of criminal attempt to commit first degree murder and especially aggravated robbery of Hussain Atilebawi. Following the penalty phase hearing, the jury found the presence of two statutory aggravating circumstances and imposed the sentence of death. In a separate sentencing hearing, the trial court sentenced Banks to twenty-five years for each of the Class A felonies and ordered them to be served consecutively to one another and to the sentence of death. Banks now seeks review by this court of both his convictions and resulting sentences, presenting the following issues for review: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court erred in admitting a photograph of the surviving victim; (3) whether the trial court erred in admitting Banks' statements absent a ruling on the motion to suppress; (4) whether the trial court erred in admitting hearsay statements made by the victim; (5) whether the trial court failed to properly certify the Arabic translator; (6) whether the trial court failed to properly instruct the jury as to lesser included offenses; (7) whether the indictment failed to charge a capital offense; (8) whether the victim impact jury instruction was coercive; (9) whether the closing argument by the prosecutor was improper; (10) whether the sentences for the non-capital offenses are excessive; (11) whether Tennessee’s death penalty statutes are constitutional; and (12) whether the death sentence in this case is disproportionate to death sentences in other cases. Following review, we affirm Banks' convictions for first degree murder, criminal attempt to commit first degree murder, and especially aggravated robbery. His sentences for the Class A felony convictions are also affirmed. We further conclude that the evidence does not support application of the (i)(6) statutory aggravating circumstance. Nonetheless, we conclude that the error is harmless, and the sentence of death is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/banksd_072607.pdf


JOSEPH D. COMBS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul A. Harr, Blountville, Tennessee, for the appellant, Joseph D. Combs.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Greeley Wells, District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Joseph D. Combs, was convicted by a jury of especially aggravated kidnapping, aggravated assault, aggravated perjury, aggravated rape, and seven counts of rape. As a result of the convictions, Petitioner was sentenced to an effective sentence of 114 years in incarceration. Petitioner appealed his convictions, presenting various grounds for relief. See State v. Evangeline Combs and Joseph D. Combs, Nos. E2000-02801-CCA-R3-CD and E2000-02800-CCA-R3-CD, 2002 WL 31118329 (Tenn. Crim. App., at Knoxville, Sept. 25, 2002), perm. app. denied, (Tenn. Jan. 27, 2003). This Court reversed Petitioner's conviction for aggravated perjury and remanded for a new trial on that charge, but affirmed Petitioner's remaining convictions. Id. at *83. The Tennessee Supreme Court denied permission to appeal on January 27, 2003. Subsequently, Petitioner sought post-conviction relief on the basis of ineffective assistance of counsel at trial. After a hearing, the post-conviction court dismissed the petition. Petitioner filed a timely notice of appeal. On appeal from the dismissal of the post-conviction petition, Petitioner argues that: (1) trial counsel failed to cite Indiana law at trial to establish a "de facto parent-child relationship" as a defense to the kidnapping charges; (2) trial counsel failed to properly elicit testimony to rebut or explain the victim's claim that she was referred to as a "servant" by Petitioner; (3) trial counsel failed to communicate properly with Petitioner and failed to discuss a defense or defense strategy; (4) trial counsel failed to provide promised evidence to the jury regarding the victim’s ulterior motive to testify; and (5) trial counsel failed to use independent medical experts to review medical records and failed to call the victim's attending physician to testify. Because we determine that trial counsel provided Petitioner with effective representation, we affirm the post-conviction court's dismissal of the post-conviction petition.

http://www.tba2.org/tba_files/TCCA/2007/combsj_072607.pdf


STATE OF TENNESSEE v. KEVON FLY

Court: TCCA

Attorneys:

Richard L. Holcomb, Knoxville, Tennessee, for the Appellant, Kevon Fly.

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Amber Depriest, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Kevon Fly, pleaded guilty to possession of cocaine, a Schedule II controlled substance with intent to sell or deliver and while employing a deadly weapon, see T.C.A. § 39-17-417(a)(4), (c)(2) (2003), and to unlawful possession of a weapon, see id. § 39-17-1307(c)(1). Via certified questions of law that test the constitutionality of a police traffic stop, see Tenn. R. Crim. P. 37(b)(2)(i), the defendant appeals the trial court's denial of a motion to suppress the contraband obtained from the traffic stop and resulting search. The questions of law are properly reserved for appellate review, and because an unlawful detention in the form of a "dog sniff" led to unconstitutional searches and seizures, we reverse the trial court's order. The search-and-seizure issue is dispositive of the case; thus, we vacate the judgments of conviction and order the dismissal of the charges against the defendant.

http://www.tba2.org/tba_files/TCCA/2007/flyk_072607.pdf


MICHAEL DAVID RUSSELL v. VIRGINIA LEWIS, Warden, and STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael David Russell, Appellant, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; C. Daniel Lins, Assistant Attorney General; and James Michael Taylor, District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Michael David Russell, appeals the Bledsoe County Circuit Court’s dismissal of his petition for a writ of habeas corpus. Because the record and the law support the habeas corpus court's determination that the petitioner's claims were inapt for habeas corpus relief, we affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2007/russellm_072607.pdf


STATE OF TENNESSEE v. LARRY BRIAN SHELTON

Court: TCCA

Attorneys:

Greg W. Eichelman, District Public Defender, for the Appellant, Larry Brian Shelton.

Robert E. Cooper, Jr., Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Douglas Godbee, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Larry Brian Shelton, appeals his Hawkins County Criminal Court jury convictions of first degree felony murder, see T.C.A. § 39-13-202(a)(2) (2006), and theft, see id. § 39-14-103, -105(1), and his effective sentence of life without the possibility of parole. On appeal, he claims that (1) the evidence is insufficient to support his first degree murder conviction, (2) the trial court erred in admitting some photographs of the victim's body into evidence, (3) the trial court erroneously denied the defendant's motion to suppress evidence seized from the defendant's home, (4) the trial court erroneously denied the defendant's motion to suppress his pretrial statement, and (5) the life sentence was improperly imposed without the possibility of parole. Upon our review, however, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/sheltonl_072607.pdf


TODAY'S NEWS

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TBA Member Services
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Legal News
Attorney, psychologist guided Anna Mae transition
For five months, attorney Christine Stephens and clinical psychologist Catherine Collins worked to prepare Anna Mae He for the transition back to her natural parents. After the move took place this week, Collins and Stephens talked about the experience in an interview with the Memphis Commercial Appeal.
Read the interview
Democrats call for Gonzales perjury investigation
FBI Director Robert Mueller's testimony today in Congress apparently contradicted Attorney General Alberto Gonzales' sworn testimony and left Senate Democrats requesting a perjury investigation.
Learn more from MSNBC
What's the verdict on Thompson the lawyer?
So what kind of a lawyer was Fred Thompson before becoming a DA on NBC's "Law and Order" and a likely presidential candidate? A Washington Post story today looks at his law practice and some of the cases he took on while practicing from the late 1970s to the early 1990s.
Read the full story
State decertifies Benton County Jail
Two days after the Benton County commission approved money to build a new jail, the state said too late. The Tennessee Corrections Institute (TCI) decertified the county's jail Wednesday after meeting with the county mayor and sheriff and a local legislator.
Read about it on the Camden Chronicle
County to consider magistrate pay increase
Hamilton County officials hope a pay raise and other efforts will improve the quality of its magistrate program. A proposal for increasing pay to $57,000 was approved by the commission’s legal committee today and will now go before the full commission for approval.
Read about it at the Chattanoogan.com
Vick recruits all-star legal team for case
Fans of Atlanta Falcons quarterback Michael Vick say he has never had enough premier players around him. That wasn't the case today, when legal proceedings against him began in a Richmond federal courthouse.
The American Lawyer has the story
State probe finds problems in drug task force
The 23rd Judicial District Drug Task Force Charlotte office had "internal control weaknesses" and failed to properly account for seized cash, the state Comptroller's Office reported yesterday after investigating a case in which thousands of dollars in cash seized from a suspected drug dealer went missing.
Read about it in the Tennessean
TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
Visit the site
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Search and you shall find
Frustrated by the results you are getting from Google searches? Here's help. This National Law Journal article discusses some advanced search techniques in Google that can improve the relevance of search results.
Read it on Law.com

 
 
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