TBA announces Access to Justice Award recipients

The Tennessee Bar Association today announced the recipients of the 2007-2008 Access to Justice Awards. Winners are: Ross Booher with Bass, Berry & Sims in Nashville, who will receive the Harris Gilbert Pro Bono Attorney of the Year Award for his pro bono work on behalf of the Kipp Academy and an armed forces client; Russell Overby who will receive the Ashley T. Wiltshire Public Service Attorney of the Year Award for representing indigent clients at the Legal Aid Society of Middle Tennessee and the Cumberlands; and Peggy Smith, a recent graduate of the Nashville School of Law, who will receive the Law Student Volunteer of the Year Award for her work assisting the Tennessee Committee of Employer Support of the Guard and Reserve. Awards will be presented at the TBA's annual public service luncheon on Jan. 19, 2008 in Nashville.
TODAY'S OPINIONS
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CITY OF CHATTANOOGA v. JOHN FRANK HARDEN, JR.

Court: TCA

Attorneys:

John Edward Herbison, Nashville, Tennessee, for the appellant, John Frank Harden, Jr.

Phillip Alden Noblett, Chattanooga, Tennessee, for the appellee, City of Chattanooga.

The owner and operator of an adult theater/bookstore in Chattanooga was found guilty and fined fifty dollars for violating a municipal ordinance prohibiting the operation of an adult entertainment business without a license issued by the City. Mr. Harden does not deny that he operated his business without the required license but contends that the judgment should be vacated because the City of Chattanooga failed to comply with the requirements of the ordinance by initially refusing to accept his proffered application and after receiving such application, failing to notify him as to whether it had been approved or denied. Although the City's noncompliance is not sanctioned by this Court, we affirm the judgment of the trial court due to the particular facts presented in this case. At the time Mr. Harden submitted his application, a prior court order prohibited the City from issuing a license for an adult entertainment business at the location of the defendant's business until November of 2006 due to previous revocation of a license at that location. Therefore, even had the City followed its procedures, Mr. Harden could not have been granted a license at that location.

http://www.tba2.org/tba_files/TCA/2007/hardenj_103107.pdf


JOSEPH LEE v. ANDERSON COUNTY ELECTION COMMISSION, et al.

Court: TCA

Attorneys:

Wendell K. Hall, Sevierville, Tennessee, for appellant.

William A. Reeves, Knoxville, Tennessee, for appellee, Anderson County Election Commission. Harry L. Lillard, Oak Ridge, Tennessee, for appellee, Jerry Creasey. Michael W. Ritter, Oak Ridge, Tennessee, for appellee, John Shuey.

Judge: FRANKS

The Trial Court dismissed this election contest on Motion. On appeal we hold the allegation that enough illegal votes were cast to change the outcome of the election when taken as true stated a cause of action.

http://www.tba2.org/tba_files/TCA/2007/leej_103107.pdf

FRANKS dissenting
http://www.tba2.org/tba_files/TCA/2007/leej_DIS_103107.pdf


JOHN KIRK TARVER, ET AL. v. GARRISON'S CUSTOM CABINETS, INC.

Court: TCA

Attorneys:

Robert A. Talley of Memphis, Tennessee for Appellant, Garrison's Custom Cabinets, Inc.

Eulyse M. Smith of Memphis, Tennessee for Appellee, John Kirk Tarver, et ux

Judge: CANTRELL

Based on a Special Master's report, the Circuit Court of Shelby County entered judgment against the appellant for damages for breach of a contract to install cabinets in the appellee's home. The appellant contends that the trial judge did not independently review the evidence in the record and that the damage award was not supported by the evidence. We affirm.

http://www.tba2.org/tba_files/TCA/2007/tarverj_103107.pdf


REGINALD WILLIAMS v. TENNESSEE BOARD OF PROBATION AND PAROLE
CORRECTION


Court: TCA

Attorneys:

Reginald Williams, Clifton, Tennessee, pro se Appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Brenner, Civil Rights and Claims Division, NaTennessee Board of Probation and Parole.

Judge: LEE

Reginald Williams, an incarcerated state inmate, was denied parole by the Tennessee Board of Probation and Parole. After losing his administrative appeal, he filed a petition for writ of certiorari in chancery court. Mr. Williams argues that (1) the Board's use of amended rules and guidelines that were not in effect at the time of his sentencing in 1982 are a violation of the State and Federal Ex Post Facto Clauses and (2) the Board's stated reason of "seriousness of offense" for denial of parole is arbitrary and in excess of the Board's discretion. In dismissing the petition, the trial court determined there was no ex post facto violation and that the Board may consider "seriousness of offense" in deciding parole. After careful review, we find no error and affirm.

http://www.tba2.org/tba_files/TCA/2007/williamsr_corr_103107.pdf


BOBBY JOE McCAULEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Bobby Joe McCauley.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Bobby Joe McCauley, pled guilty to first degree felony murder and received a sentence of life without the possibility of parole. In this post-conviction appeal, he argues that he received the ineffective assistance of counsel relative to his mental health condition and whether his plea was knowingly entered. The trial court denied relief, and we affirm that judgment.

http://www.tba2.org/tba_files/TCCA/2007/mccauleyb_103107.pdf


STATE OF TENNESSEE v. ANTONIO OLIVER

Court: TCCA

Attorneys:

William D. Massey and Lorna S. McClusky, Memphis, Tennessee (on appeal); and Coleman W. Garrett and Jocelyn V. Henderson, Memphis, Tennessee (at trial), for the appellant, Antonio Oliver.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and James A. Wax, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Antonio Oliver, was convicted by a Shelby County Criminal Court jury of first degree murder. He was sentenced as a violent offender to life in the Department of Correction. In this direct appeal, he claims that insufficient evidence exists to support his conviction and that he is entitled to a new trial based upon prosecutorial misconduct during voir dire, opening statement, and closing argument. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/olivera_103107.pdf


STATE OF TENNESSEE v. ANTONIO LAMAR OSBORN

Court: TCCA

Attorneys:

Paul E. Meyers, Assistant Public Defender, for the appellant, Antonio Lamar Osborn.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Antonio Lamar Osborn, appeals the revocation of his probation, arguing that the trial court lacked jurisdiction to modify his probation order because more than thirty days had elapsed since the entry of the order. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/osborna_103107.pdf


STATE OF TENNESSEE v. SZUMANSKI STROUD

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender, and Trent Hall (at trial) and Phyllis L. Aluko (on appeal), Assistant Public Defenders, for the appellant, Szumanski Stroud.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michelle L. Kimbril-Parks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Szumanski Stroud, appeals from his Shelby County Criminal Court jury trial convictions of two counts of aggravated assault, Class C felonies, for which he received seven-year and six-month sentences, to be served consecutively in the Department of Correction as a Range II offender. In this appeal, he claims (1) that the evidence is not sufficient to support his convictions, (2) that the trial court erroneously instructed the jury on the definition of "intentionally" and "knowingly" mental states, and (3) that he was excessively sentenced. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/strouds_103107.pdf


STATE OF TENNESSEE v. DEMARCUS YOUNG

Court: TCCA

Attorneys:

Robert Jones, District Public Defender; Phyllis Aluko (on appeal) and Robert Felkner (at trial), Assistant District Public Defenders, for the appellant, Demarcus Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; Patience Branham and Marianne Bell, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant was convicted by a Shelby County jury of aggravated robbery, a Class B felony, and sentenced to eight years in prison as a Range I, standard offender. On appeal, the defendant contends that the evidence produced at trial was insufficient to support the jury's guilty verdict, and he also contends that the trial court committed plain error in admitting evidence of the robbery victim's identification of the defendant as the perpetrator. After reviewing the record, we conclude that the evidence produced at trial was sufficient to support the defendant's conviction, and that the identification issue is waived on appeal. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/youngd_103107.pdf


TODAY'S NEWS

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Disciplinary Actions
Passages
TBA Member Services

Legal News
Second Bredesen adviser to leave
Following an announcement by Gov. Bredesen's senior advisor Kim McMillan that she is leaving to take a position at Austin Peay State University, the governor's top policy adviser, Robert Gowan, announced Tuesday that he is following suit. Gowan, who was responsible for shepherding Bredesen's agenda through the legislature for the last two years announced he will leave on Nov. 15.
Read more in the Tennessean
Preliminary hearing for Briley postponed, charge reduced
The preliminary hearing for state Representative Rob Briley was postponed today for three weeks to give prosecutors time to examine new material provided by defense attorneys. Also today, prosecutors reduced a vandalism charge related to his arrest in September to a misdemeanor. Briley will be back in court Nov. 21.
Read more from News Channel 5
Prospects for Mukasey confirmation dim
Prospects for Michael Mukasey's confirmation as the nation's 81st attorney general dimmed Wednesday after he again refused to equate waterboarding with torture, although he repudiated the technique and promised to study its legality if confirmed. Democrats in Congress are looking for assurances from him now that waterboarding amounts to torture and is illegal.
The Associate Press reports
Online law school merges with Kaplan University
The nation's first Internet law school -- Concord Law School -- now is officially part of Kaplan University, which will allow both institutions to cooperate on program offerings and allow Concord students to apply for federal financial aid for the first time. While Concord is not accredited by the ABA, the merger has the potential for moving it in that direction.
Read about the merger on ADN Newsnetwork
Lawson known as singing judge
During the week, 3rd Judicial District Circuit Judge Kindall Lawson can be found in a courtroom, handing down sentences and settling disputes. On the weekends, however, he heads up the gospel music quartet, Brighter Day, which is known throughout the region. Lawson plays guitar and sings for the group, which is getting ready to release its third CD.
The Greeneville Sun has this profile
Supreme Court Report
Supreme Court halts Mississippi execution
The Supreme Court halted an execution in Mississippi yesterday, less than an hour before a convicted killer was scheduled to die by lethal injection. The last-minute reprieve is the third granted by the justices since they agreed late last month to decide a challenge to Kentucky's lethal injection procedures, the Knoxville News Sentinel reported.

Court considers law banning promotion of child porn
The court heard arguments yesterday about the constitutionality of a law banning the promotion of child pornography. Opponents say that the law limits legitimate creative expression and makes a crime out of merely talking about illegal images or possessing material that someone else might find pornographic. The government's lawyer, however, told justices that the law is meant to eliminate the child porn market and is not intended to cover mainstream entertainment.
Listen to an NPR report that includes excerpts of the exchange between justices and lawyers
Disciplinary Actions
Two attorneys reinstated after paying fees
Rahkel Bouchet Jackson of Washington, D.C. and Rodney M. Phelps, previously of Nashville and now residing in Texas, have been reinstated to the practice of law in Tennessee after paying the annual BPR fee.
View all attorneys suspended and reinstated for 2007 fee violations
Attorneys reinstated after completing CLE requirements
Kristin Alyse Godsey of Powell, Don Anthony Handley of Memphis and Karen Denise Johnson of Mountain City and have been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education.
View all attorneys suspended and reinstated for 2006 CLE violations
Passages
Dickson lawyer dies Monday
Lawrence "Larry" Ramsey, a partner with Dickson Title LLC and Ramsey Thornton & Barrett PLC in Dickson, died Monday. As attorney to the Dickson Housing Authority, the Industrial Development Board of Dickson County and many local realtors, Ramsey was instrumental in much of the county's development. He earned his law degree from the Vanderbilt University Law School in 1970.
Read tributes from his colleagues in the Ashland City Times
Clarksville lawyer dies
Tim Wallace with Olson & Wallace PC in Clarksville passed away this morning after a long illness. Funeral arrangements have not been set, but will be held at the Neal-Tarpley Funeral Home in Clarksville (931-645-6488). Also, at the request of the deceased, a wake will be held at the law offices of Olson & Wallace in the coming days. Colleagues at the firm say that Wallace wanted the legal community to gather and celebrate not only his life but also the fact that the community "pulled together" to help one of its own.

TBA Member Services
Guide to pro bono assistance
The TBA YLD has released a new resource to help volunteer attorneys provide meaningful legal services to victims of natural disasters. The 83-page document addresses a wide range of legal and social service issues disaster victims most frequently face. And unlike other resources that have been used in the past, this manual is Tennessee specific.
Download a copy today

 
 
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