Commission pulls controversial criminal records proposal

A controversial American Bar Association proposal that urged sealing records of certain past criminal convictions and arrests was pulled from the agenda of the association's House of Delegates meeting in San Francisco. The proposal had been presented by the ABA's Commission on Effective Criminal Sanctions. News organizations had protested that the proposal would seal off from the public a significant segment of public records.

http://www.law.com/jsp/article.jsp?id=1186840718735

TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2007/certlist_081307.pdf


RALPH L. POORE V. BI-LO, LLC AND TENNESSEE DEPARTMENT OF LABOR, SECOND INJURY FUND

Court: TWCA

Attorneys:

Thomas O. Sippel, Chattanooga, Tennessee, for the appellant, Bi-Low, LLC.

Roger L. Ridenour, Clinton, Tennessee, for the appellee, Ralph L. Poore.

Robert E. Cooper, Jr. Attorney General and Reporter, Nashville, Tennessee and Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Labor, Second Injury Fund.

Judge: DANIEL

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. The trial court found that the employee was permanently and totally disabled as a result of the work-related back injury and awarded permanent and total disability benefits, allocating the responsibility for paying those benefits 85 percent to Bi-Lo and 15 percent to the Secondary Injury Fund. The employer, Bi-Lo has appealed the trial court's award contending that the trial court erred in finding the employee permanently and totally disabled. The employer also appeals the allocation of responsibility for the vocational disability between itself and the Second Injury Fund. After a careful review of the record, we conclude that the trial court should be affirmed as modified.

http://www.tba2.org/tba_files/TSC_WCP/2007/poorer_081307.pdf


RONALD M. FLOYD, ET AL. v. PRIME SUCCESSION OF TN, ET AL.

Court: TCA

Attorneys:

Stuart F. James, Chattanooga, Tennessee, for the appellant, T. Ray Brent Marsh.

William J. Brown, Cleveland, Tennessee, for the appellees, Ronald Floyd, Jeffrey Floyd, Michael Floyd, and Amanda Clark.

Judge: SUSANO

This lawsuit was filed by the husband and children of Gail Lavan Floyd, who died in March 2000. T. Ray Brent Marsh ("Marsh") and the company managed by him, Tri-State Crematory, Inc. ("Tri-State"), are the only remaining defendants. The instant case is one of many civil actions filed against Marsh and Tri-State following the discovery of over 300 bodies on the company's premises. The bodies were to have been cremated, but were not. Criminal charges were brought against Marsh in Georgia and Tennessee. He pleaded guilty to many of the charges. Following Marsh's sentencing, he was noticed, for the second time, to give a deposition in the instant action. At an earlier deposition, he had invoked his Fifth Amendment privilege against self incrimination. As to the present notice, the trial court concluded that Marsh could no longer invoke his Fifth Amendment privilege because, in the court's judgment, he is no longer facing criminal prosecution. The court ordered Marsh to give a second deposition and further ordered that he could not refuse to answer any question posed to him at the deposition if his refusal was predicated upon the Fifth Amendment. We granted Marsh's Tenn. R. App. P. 9 application for an interlocutory appeal. We affirm in part and vacate in part.

http://www.tba2.org/tba_files/TCA/2007/floydr_081307.pdf


MICHAEL DELANEY GALLIGAN v. LINDA MEDDERS GALLIGAN

Court: TCA

Attorneys:

Winston S. Evans, Nashville, Tennessee, for the appellant, Michael Delaney Galligan.

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Linda Medders Galligan.

Judge: FARMER

This is the second appeal of a domestic relations case. On remand, the trial court divided the marital assets equally; declined to award the wife attorney's fees and prejudgment interest; and denied the husband's Rule 60 motion based upon wife's concealment of financial information. On appeal, the husband asserts that the short duration of their marriage dictates an award of all marital property to him and additionally challenges the trial court's denial of his Rule 60 motion. The wife, on the other hand, asserts she is entitled to prejudgment interest and attorney's fees incurred at trial and on appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2007/galliganm_081307.pdf


ANTHONY M. CLARK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick T. McNally, Nashville, Tennessee, for the Appellant, Anthony M. Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Anthony M. Clark, appeals the Sumner County Criminal Court's denial of his petition for post-conviction relief. Clark, pursuant to a plea agreement, pled guilty to aggravated sexual battery, a Class B felony, and unlawful photographing in violation of privacy, a Class A misdemeanor and received concurrent sentences of twelve years at 100 percent and eleven months, twenty-nine days, respectively. On appeal, Clark contends that his guilty plea to aggravated sexual battery was not knowingly and voluntarily entered due to the ineffective assistance of counsel in failing to adequately investigate the case. Following review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/clarka_081307.pdf


STATE OF TENNESSEE v. MINDY HALL

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and Leslie S. Hale, Assistant Public Defender, for the Appellant, Mindy Hall.

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

Judge: WITT

The defendant, Mindy Hall, pleaded guilty to 11 counts of forgery, Class E felonies, see T.C.A. section 39-14-114 (2006), and 11 counts of identity theft, Class D felonies, see id. section 39-14-150, in case number S51,833. The defendant also pleaded guilty to 11 counts of forgery, see id. section 39-14-114, and 13 counts of identity theft, see id. section 39-14-150, in case number S51,834. Via plea agreement, the defendant received an effective three year sentence on each indictment to run consecutively to each other and consecutively to case numbers S49,945; S50,379; S50,758; and S50,835 and consecutively to a Virginia sentence. The defendant's total effective sentence for all Tennessee cases was 16 years, with ten years suspended and the six years in case numbers S51,833 and S51,834 to be determined by the trial court. After an evidentiary hearing, the trial court ordered the defendant to serve the six years in the Department of Correction. The defendant appeals the trial court's order and claims that the trial court erred in denying her full probation or some other form of alternative sentencing for these six years. We disagree and affirm the trial court's order; however, we remand for correction of errors in the judgments in case number S51,833.

http://www.tba2.org/tba_files/TCCA/2007/hallm_081307.pdf


JAMES EDWARD HOLT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, James Edward Holt.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Deputy District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, James Edward Holt, a.k.a. Jimmy Holt, was indicted by a Lewis County grand jury for first degree premeditated murder on April 2, 1992. The Petitioner pled guilty to second degree murder on October 19, 1992. The negotiated plea agreement recommended that the Petitioner be sentenced as a Range II, multiple offender to serve forty years in the Department of Correction. The trial court imposed the recommended sentence. On May 9, 2006, the Petitioner filed a "Petition for Post-Conviction Relief, Correction of Sentence or, in the alternative, Habeas Corpus Relief" in the Williamson County Circuit Court. The post-conviction court summarily dismissed the petition without a hearing. Finding no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/holtj_081307.pdf


RONNIE KERR v. GIL MATHIS, WARDEN

Court: TCCA

Attorneys:

Ronnie Kerr, Nashville, Tennessee, Pro se.

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

Judge: OGLE

The petitioner, Ronnie Kerr, filed a petition for a writ of habeas corpus, alleging that the indictment underlying his conviction was void because it charged an offense committed outside the statute of limitation. The habeas corpus court dismissed the petition for failure to comply with procedural requirements. The petitioner now appeals. Upon our review of the record and the parties' briefs, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2007/kerrr_081307.pdf


ROBERT MITCHELL v. CHERRY LINDAMOOD, WARDEN, and the STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert Mitchell, Clifton, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder and Brian Clay Johnson, Assistant Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Robert Mitchell, was convicted by a jury of multiple offenses. Thereafter, the petitioner filed a petition for a writ of habeas corpus, which petition was dismissed by the habeas corpus court for failure to state a cognizable claim for habeas corpus relief. On appeal, the petitioner challenges the dismissal of the petition. Upon our review of the record and the parties' briefs, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2007/mitchellr_081307.pdf


NARRELL C. PIERCE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paula Ogle Blair, Nashville, Tennessee, for the Appellant, Narrell C. Pierce.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Narrell C. Pierce, appeals the Davidson County Criminal Court's denial of post-conviction relief. His 2005 petition for post-conviction relief challenged his guilty-pleaded 2004 convictions of aggravated robbery (four counts) and attempt to commit aggravated robbery (three counts) on the grounds, inter alia, (1) that he received ineffective assistance of trial counsel and (2) that his guilty pleas were involuntary. Following an evidentiary hearing, the post-conviction court denied relief and dismissed the petition. Because the record supports this action, we affirm the post-conviction court's order.

http://www.tba2.org/tba_files/TCCA/2007/piercen_081307.pdf


STATE OF TENNESSEE v. ROBERT WILLIAM ROCKWELL

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; Jennifer Bledsoe and John Bledsoe, Assistant Attorneys General; Randall E. Nichols, District Attorney General; and Patricia Cristil, Assistant District Attorney General, for the appellant, State of Tennessee.

Donald A. Bosch and Melissa A. Franklin, for the appellee, Robert William Rockwell.

Judge: THOMAS

The state appeals the Knox County Criminal Court's order dismissing the indictment and remanding the defendant's case to the Knox County General Sessions Court for completion of a preliminary hearing. Initially, the defendant urges this court to dismiss this appeal due to the state's failure to file a timely notice of appeal pursuant to Tennessee Rule of Appellate Procedure 4(a). Following our review, we agree with the defendant and conclude that the interest of justice does not demand that this court waive the timely filing of the notice of appeal. Accordingly, the state's appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2007/rockwellr_081307.pdf


STATE OF TENNESSEE v. RUSSELL L. TIPTON

Court: TCCA

Attorneys:

Robert T. Carter, Tullahoma, Tennessee, for the appellant, Russell L. Tipton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Mike Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Russell L. Tipton, was charged with reckless operation of a motor vessel and failure to observe the motor vessel light law. The appellant applied for pretrial diversion and has twice been denied. In the instant appeal, the appellant challenges the prosecutor's second denial of his application for pretrial diversion. Upon our review of the record and the parties' briefs, we reverse the judgment of the trial court upholding the prosecutor's denial of diversion and remand to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2007/tiptonr_081307.pdf

HAYES Concurring
http://www.tba2.org/tba_files/TCCA/2007/tiptonr_con_081307.pdf


STATE OF TENNESSEE v. JOE CARPENTER TYREE

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Joe Carpenter Tyree.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Joe Carpenter Tyree, was convicted of aggravated robbery following a jury trial in Marshall County. The Defendant was sentenced as a Range I, standard offender to twelve years in the Department of Correction. On appeal, the Defendant asserts that the evidence is insufficient to support his conviction beyond a reasonable doubt, that the sentence imposed was excessive, and that the trial court erred by not instructing the jury on the lesser-included offense of attempted aggravated robbery. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/tyreej_081307.pdf


TODAY'S NEWS

Legal News
Politics
Upcoming
TBA Member Services

Legal News
Governor appoints temporary Knox County judge
Gov. Phil Bredesen today appointed Kenneth F. Irvine Jr. to serve as special Knox County Criminal Court judge effective Aug. 20. Irvine, who currently serves as the Knox County assistant district attorney general, will fill in for Judge Ray Lee Jenkins while he recovers from an illness. Jenkins requested the replacement.
Learn more in the News Sentinel
Paper: courts and commission should be diverse
An editorial in the Mountain Press supports the state's process for filling appellate court vacancies, but laments the current lack of diversity on those courts, as well as on the Judicial Selection Commission -- the body responsible for selecting candidates.
Read the full editorial
News Sentinel writer suggests public selection process
The Knoxville News Sentinel's Nashville bureau chief writes that the state's appellate selection process would be improved by requiring the Judicial Selection Commission to make its decisions in public.
Read his opinion
Tennessee young lawyers receive ABA award
Two Tennessee young lawyers, who are active in the American Bar Association, received the ABA Young Lawyers Division's "Star of the Year" award for their service. Nashville lawyer David Johnson, who chaired the ABA YLD CLE Committee this past year, and Memphis lawyer Danny Van Horn, who served as speaker of the ABA YLD Assembly, received their awards at the ABA YLD Assembly over the weekend.

Open-meetings suit restored
Knox County Chancellor Daryl R. Fansler is reviving a lawsuit that alleges county commission members violated the state's Open Meetings Act on Jan. 31, when they met to appoint replacements for term-limited officials. In May, Fansler had dismissed the suit brought by several former commissioners. In restoring the suit, he stated that the county had produced no facts to refute the claims. Fansler also indicated he might grant Knoxville Herbert S. Moncier's request to join the lawsuit with a similar one being pursued by the News Sentinel. He previously has denied such a move.
Read more in the News Sentinel
Ford wants wiretap evidence blocked
Convicted of bribery in Memphis on the strength of undercover video and audiotapes, former state Senator John Ford wants to block prosecutors from using the evidence in his Nashville corruption case. Ford argues that the recordings contain "sensitive information that should not be made available to the public at large." His motion to suppress will get a hearing on Aug. 20.
The Commercial Appeal has more
Retrial for race bias case
The 6th U.S. Circuit Court of Appeals has ordered a Clarksville police detective to go back to court after winning a racial discrimination suit against his department in 2005. The appeals court dismissed several claims, finding that the city was immune from liability on those charges, and ordered a new trial due to concerns that testimony about a verdict in a similar suit was inappropriately disclosed.
Download the opinion
or read more in the
Knoxville News Sentinel
Lawmaker feels bite over dog fighting vote
U.S. Representative David Davis, R-Johnson City, is being hounded about his vote against federal penalties for illegal transportation of fighting dogs. Davis defended his vote, saying "you don't need a federal law for everything."
The News Sentinel reports
Richter appointed referee
Lisa Sherrill Richter, the immediate past president of the TBA Young Lawyers Division, was recently appointed the new child support referee for the 19th Judicial District. She took the bench in Clarksville on Aug. 8. Formerly with the Law Offices of Larry Wilks in Springfield, Richter maintained a general practice with an emphasis on family law. In commenting on her appointment, Richter credited her volunteer experience with the TBA as an important factor in securing the appointment.

Politics
Knox lawyer considering Congressional race
Tennessee Democratic Party officials are looking to Knoxville attorney Gordon Ball as a possible challenger for the state's 1st Congressional District seat now held by freshman Republican David Davis. Ball grew up in Newport and said he would move back to the area if he joined the race.
Read more in the Tri-Cities Times News
Upcoming
YLD to participate in Memphis law orientation
The TBA YLD will be on the University of Memphis campus this Friday, Aug. 17, to welcome first year students to the study of law. Representatives of the division's Law School Outreach and Membership committees will host an information table in the student lounge beginning at 10 a.m. TBA members are welcome to stop by and support this outreach effort. For more information contact Stacey Shrader at sshrader@tnbar.org

Equal justice conference on tap for September
The Tennessee Alliance for Legal Services' 2007 Equal Justice Conference, co-sponsored by the Tennessee Bar Association, will take place Sept. 26-28 at the Manchester-Coffee County Conference Center. Highlights of the conference include keynote addresses by Ashley Wiltshire, former director of the Legal Aid Society, and Tennessee Supreme Court Justice Cornelia A. Clark, as well as new programming for emerging leaders within the legal service and advocacy communities. For more information or to register visit www.tals.org

TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at 1-800-368-2734
or get an online rate quote

 
 
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