TBA-backed bills moving through General Assembly

The House today passed the TBA-backed family law housekeeping bill (SB2910/HB3044) that was drafted by the TBA Family Law Section. The bill cleared the Senate Judiciary Committee last week and is scheduled for action before the full body on Monday. Also this week:

-- The full Senate on Monday passed a bill making technical corrections to the Construction Lien Law bill passed last year. The TBA-backed legislation (SB2950/HB3102) has been placed on the Commerce Committee's Utilities, Banking and Small Business Subcommittee for review next Tuesday.

-- The Judiciary Committee in both Houses passed the TBA bill dealing with expenses in shareholder derivative actions (HB3866/SB3982). It has been placed on the Senate's Calendar for floor action on Monday.

-- The Senate delayed until Monday taking action on the TBA-fostered Tennessee Condominium Act of 2008. The bill (SB2935/HB2752) has won committee approval in both chambers and awaits floor action from the Senate and House.
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Court: TSC


Robert Wilson Jones, Shelby County Public Defender, and Tony N. Brayton, Garland Ergüden, Timothy J. Albers, and Donna Armistead, Assistant Shelby County Public Defenders, for the appellant, Judge Brooks.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich and Theresa McCusker, Assistant District Attorneys General, for the appellee, State of Tennessee.


This case involves the applicability of the forfeiture by wrongdoing hearsay exception. We hold that the forfeiture by wrongdoing exception requires a showing that a defendant's actions were intended, at least in part, to prevent a witness from testifying. The prosecution in this case failed to prove that a motive for the murder was to make the victim unavailable as a witness. Admission of her hearsay statements, therefore, violated Tennessee Rule of Evidence 804(b)(6). We further conclude that the error affected the result of the trial. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case for a new trial.



Court: TCA


Bradley L. Henry, Knoxville, Tennessee, for appellant.

Christopher D. Heagerty and Kristi M. Davis, Knoxville, Tennessee, for appellee.


In the Trial Court, at the conclusion of plaintiff's proof, defendant moved for the entry of an involuntary dismissal pursuant to Rule 41.02(2), and before the Trial Judge ruled on that Motion plaintiff moved for a voluntary dismissal which the Trial Court denied, and granted defendant's Motion for an involuntary dismissal with prejudice. On appeal, we hold that the Trial Court erred in refusing to grant plaintiff's Motion for a voluntary dismissal.


S.L.C., b/n/f E.C. and M.C. and A.J.C. , b/n/f L.A.S., v. ALDEN JOE DANIEL, JR.

Court: TCA


Alden Joe Daniel, Jr., pro se.

Roger E. Jenne, Cleveland, Tennessee, for appellees.


Plaintiffs were granted a voluntary dismissal of their action, and defendant has appealed on the grounds that the Trial Court and attorneys were guilty of fraudulent conduct, and that he had a counter-claim pending at the time the action was dismissed. We affirm the Judgment of the Trial Court.



Court: TCA


Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Barry Pierce Moore.

Derek Ray Howard and Diana Benson Burns, Murfreesboro, Tennessee, for the appellee, Janet Hughes Moore.


The sole issue presented in this appeal is the trial court's award of periodic alimony to the wife in the sum of $650.00 per month until she reached the age of 62. The trial court granted the parties' divorce pursuant to Tenn. Code Ann. section 36-4-129(b). The husband appeals the trial court's award of periodic alimony arguing that an award of transitional alimony $450.00 is the proper award. We modify the judgment of the trial court and award transitional alimony for a period of three years in the sum of $450.00 per month.



Court: TCA


Cynthia A. Cheatham, Manchester, Tennessee, for the Appellant, Angela Scalf.

Vanessa A. Jackson, Tullahoma, Tennessee, for the Appellees, Judy and Johnny Harmon.


Following the death of her father, Angela Scalf ("Plaintiff") filed this lawsuit against Judy and Johnny Harmon ("Defendants") claiming they improperly converted property from her father's estate. The lawsuit was filed by Plaintiff in her individual capacity as the only beneficiary of her father's will with respect to the property at issue. After trial, the Trial Court concluded that Defendants had converted various items of property and entered a judgment accordingly. The judgment included an award of attorney fees. Defendants filed a motion to strike the award of attorney fees, which the Trial Court granted. Plaintiff appeals and claims that the Trial Court erred when it granted Defendants' motion to strike the previous award of attorney fees. We affirm.



Court: TCCA


A. Jackson Dearing, III, Shelbyville, Tennessee, for the Appellant, John W. Biaselli.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; Charles Crawford, District Attorney General; Michael D. Randles and Ann L. Filer, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: SMITH

Appellant, John W. Biaselli, pled guilty to two counts of possession for resale of a Schedule II controlled substance. He was sentenced to eleven years in prison. On appeal, Appellant contends that the trial court erred in sentencing him to incarceration rather than an alternative sentence involving community corrections. It appears to this Court that Appellant is ineligible for community corrections under Tennessee Code Annotated section 40-36-106(c), the so called "special needs" provision of the Community Corrections Act, because he is ineligible for probation pursuant to Tennessee Code Annotated section 40-35-303. Moreover, Appellant is not eligible for a routine community corrections placement pursuant to Tennessee Code Annotated section 40-35-106(c) because he was found in possession of a weapon at his residence when found in possession of drugs. Finally, Appellant's conduct demonstrated such a lack of potential for rehabilitation that he would not be entitled to community corrections even if he were statutorily eligible.



Court: TCCA


Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn and Robert E. McGuire, Assistant District Attorneys General, for the appellant, State of Tennessee.

Ross E. Alderman, District Public Defender, and Jeffrey A. Devasher, Laura J. Getz, and Carol Dawn Deaner, Assistant Public Defenders, for the appellee, Shundell L. Dickerson.


The defendant, Shundell L. Dickerson, was convicted of facilitation of first degree murder (Class A felony) and sentenced as a Range III, persistent offender to sixty years in prison. He appeals his conviction and sentence. He argues the trial court erred in: (1) precluding him from entering into evidence an anonymous letter mailed to the police in which other persons were named as responsible for the crime; (2) limiting the questioning of a witness regarding his expectations of favorable treatment in exchange for his testimony; and (3) allowing the prosecutor to make improper remarks during closing argument. Finally, the defendant argues enhancement factors were improperly applied to increase his sentence. After careful review, we affirm the trial court with regard to the letter, the questioning of the witness, and the remarks of the prosecution. However, we remand to the trial court with regard to the issue of sentencing.



Court: TCCA


Robert E. Cooper, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William E. Gibson, District Attorney General; Doug Crawford, Assistant District Attorney General; and Beth Willis, Assistant District Attorney General, for the Appellant, the State of Tennessee.

Will F. Roberson, Cookeville, Tennessee, for the Appellee, Gary Shane Howell.


Defendant, Gary Shane Howell, was charged in a five-count indictment with the following offenses: (1) possession with intent to sell or deliver more than 0.5 grams of methamphetamine, a schedule II controlled substance; (2) possession with intent to sell or deliver diazepam, a schedule IV controlled substance; (3) possession of drug paraphernalia; (4) misdemeanor evading arrest; and (5) unlawful felonious possession of a handgun after being convicted of a felony drug offense. Defendant subsequently filed a "Motion to Dismiss and/or Suppress Evidence." Following an evidentiary hearing, the trial court announced from the bench, "the Motion to Dismiss in this case is granted." An order was later entered in which the trial court stated, "the defendant's Motion to Suppress the evidence herein is granted." The State appealed the trial court's order pursuant to Tennessee Rule of Appellate Procedure 3(c). After a thorough review of the record and arguments of the parties, we affirm in part and reverse in part.



Court: TCCA


Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Gary Joseph Latham.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William E. Gibson, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, Gary Joseph Latham, was convicted by a Cumberland County Criminal Court jury of aggravated child abuse and sentenced to serve twenty-two years in the Department of Correction as a Violent Offender. In his appeal, he claims that the trial court erred in (1) denying the motion for judgment of acquittal, (2) admitting evidence of his prior acts toward the victim, (3) admitting a statement he made at the victimís bedside in violation of the clergy-penitent privilege, and (4) admitting opinion testimony from two of the stateís expert witnesses. Concluding no error exists, we affirm the judgment of the trial court.



Court: TCCA


Andrew Jackson Dearing, III, Shelbyville, Tennessee (at trial and on appeal), and Mike Collins, Lewisburg, Tennesseee (at trial), for the appellant, Nicholas Shawn Marshall.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard and Brooke Grubb, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Nicholas Shawn Marshall, pled guilty in the Marshall County Circuit Court to three counts of aggravated burglary, and he received a total effective sentence of eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's denial of alternative sentencing. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court but remand for an entry of a corrected judgment reflecting that case number 17365 is to be served consecutively to case number 17364.



Court: TCCA


Roger E. Nell, District Public Defender (on appeal); and Collier W. Goodlett, Assistant District Public Defender (at trial), Clarksville, Tennessee, for the Appellant, Alec Joseph Mesot.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and Arthur Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Alec Joseph Mesot, was convicted by a Montgomery County jury of five counts of rape of a child and one count of sexual exploitation of a minor. On appeal, Mesot challenges only his convictions for rape of a child, asserting: (1) that the evidence is insufficient to support the convictions because: (a) the State failed to sufficiently corroborate his confessions in order to independently establish the corpus delicti of the offenses and (b) the State failed to prove the element of penetration; and (2) that the trial court erred by failing to sua sponte provide a limiting instruction with regard to the introduction of pornographic images recovered from Mesot's computer. Following review of the record, we conclude that the State has failed to produce independent evidence to corroborate Mesot's confessions, which alone support the corpus delicti of the crimes of rape of a child. Accordingly, the evidence is insufficient with regard to those convictions. As such, the judgment of the trial court is reversed, and the five convictions for rape of a child are dismissed. Mesot's remaining issues are without merit.


WOODALL concurring and dissenting


Court: TCCA


Roger E. Nell, District Public Defender; and Collier W. Goodlett, Assistant District Public Defender, for the appellant, Lloyd Montgomery.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; John W. Carney, District Attorney General; and Art Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.


The Defendant, Lloyd Montgomery, appeals the judgment of the Montgomery County Circuit Court revoking his community corrections sentence and imposing confinement. The Defendant twice pled guilty to possession of less than .5 grams of cocaine and, consequently, he was placed in the Community Corrections Program. He was subsequently arrested on new drug charges, and a violation warrant was issued. The trial court ultimately suppressed the evidence underlying the new charges but revoked the Defendant's community corrections sentence, concluding by a preponderance of the evidence that the Defendant illegally possessed drugs in violation of the conditions of his community corrections sentence. The Defendant appeals the revocation of his sentence, arguing that there was no evidence presented at the motion to suppress hearing to support the trial court's finding that he possessed illegal drugs. The State concedes error on the merits of the issue. The trial court's order of revocation is reversed, and the case is remanded for further proceedings consistent with this opinion.



Court: TCCA


Paul D. Cross, Monteagle, Tennessee, for the appellant, Edward Poe.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Finley, Assistant Attorney General; and Sherry Gouger, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: WITT

A Marion County Circuit Court jury convicted the defendant, Edward Poe, of one count of manufacturing a controlled substance, one count of attempted possession of a controlled substance with intent to sell, and one count of felony possession of drug paraphernalia. On appeal, he alleges that a directed verdict should have been granted based on the insufficiency of evidence as a whole, as well as based on insufficient evidence for the paraphernalia charge because there was no proof of intent to deliver the paraphernalia. He also alleges that the convictions for manufacturing a controlled substance and felony possession of drug paraphernalia were inconsistent and that the court should not have excluded testimony from a court clerk regarding the filing of the January 23, 2002 search warrant. Upon review, we affirm the judgments as modified.



Court: TCCA


Claude Sharkey, Clifton, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee.


The petitioner, Claude Sharkey, pro se, appeals the summary dismissal of his petition for habeas corpus relief. He claims that his indictments were deficient and that his sentences were improper. After review, we conclude his judgments are facially valid with no jurisdictional defect or illegal sentences. The summary dismissal is affirmed.



Court: TCCA


James L. Weatherly, Jr., Nashville, Tennessee, for the appellant, Thomas M. Sullivan.

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


The defendant, Thomas M. Sullivan, was convicted of reckless homicide, a Class D felony. He requested judicial diversion or probation, but the court denied those motions and imposed a sentence of two years in confinement. On appeal, he contends that the trial court erred in denying his request for judicial diversion or alternative sentencing. After careful review, we conclude no error exists and affirm the judgment from the trial court.



Court: TCCA


Robert W. Newman, McMinnville, Tennessee, for the appellant, Alex L. Vance.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; and Lisa Zavogiannis, District Attorney General, for the appellee, State of Tennessee.


The Defendant, Alex L. Vance, pled guilty to reckless aggravated assault, a Class D felony, and reckless endangerment, a Class A misdemeanor. Sentencing was left to the discretion of the trial court. The trial court sentenced him to three years for the felony conviction and ordered that he serve four months in the county jail, with the remainder to be served on probation. He was also sentenced to a concurrent term of eleven months and twenty-nine days for the misdemeanor offense. On appeal, the Defendant argues that the trial court erred by denying his request for judicial diversion and by ordering a sentence of split confinement rather than full probation. Following our review, we affirm the sentences imposed by the trial court.


Legality of Future Rebate Contingent Upon The Winner of The NCAA Basketball Tournament

TN Attorney General Opinions

Date: 2008-03-20

Opinion Number: 08-59


Application of the "Under Color of Office" Doctrine Regarding a Revenue Agent's Collection of Evidence Out of State

TN Attorney General Opinions

Date: 2008-03-20

Opinion Number: 08-60


Statutory Authority of the Tennessee Student Assistance Corporation ("TSAC") to Promulgate Rules for the Tennessee HOPE Scholarship Program

TN Attorney General Opinions

Date: 2008-03-20

Opinion Number: 08-61


Tenn. Code Ann. Section 36-6-110, Parental Bill of Rights

TN Attorney General Opinions

Date: 2008-03-20

Opinion Number: 08-62


Legislator Nominated As Candidate For Sheriff

TN Attorney General Opinions

Date: 2008-03-20

Opinion Number: 08-63



Legislative News
Legal News
Supreme Court Report
TBA Member Services

Legislative News
Wilder won't seek re-election
Former Lt. Gov. John Wilder announced this afternoon he will not seek re-election to the state Senate seat he has held for 44 years. Wilder announced his decision on the Senate floor, disclosing that he had long deliberated the decision. Read more in the Tennessean or
read his remarks in the Chattanoogan.com
Legal News
Memphis mayor to step down
Saying it is time to pursue other challenges, Memphis Mayor Willie Herenton, the longest-serving mayor in the city's history and its first elected black chief executive, announced late this afternoon he will step down July 31. Last fall, Herenton was re-elected to an unprecedented fifth term. He reportedly is now considering a run for superintendent of the school system or the U.S. Congress.
The Commercial Appeal has more
Dean can keep seat during sheriff's race
An opinion from the state attorney general's office found that Rep. Vince Dean, R-East Ridge, may continue to serve in the legislature while campaigning for sheriff. At issue was a state law prohibiting members of the assembly from being nominated or commissioned as sheriff. The attorney general ruled that the law applies when the lawmaker is elected sheriff by the voters, not when nominated by a party to be a candidate. Read the AG opinion or learn more from
The Chattanoogan.com
Baker boosts pro bono efforts
Baker, Donelson, Bearman, Caldwell & Berkowitz has launched an expanded firm-wide pro bono initiative that will function under new Pro Bono Shareholder Lisa Borden of Birmingham, and its Pro Bono Committee, led by Nashville attorney Jonathan Cole. Esther F. Lardent, president and chief executive of the Pro Bono Institute at Georgetown University Law Center, praised the action, saying, "Baker Donelson's pro bono commitment and services will not only have a powerful impact on the people and communities they serve, it also raises the bar for other law firms in the Southeast to ramp up their programs as well."
Jaffe Legal News Service reports
Ragsdale apologizes for financial mismanagement
Knox County Mayor Mike Ragsdale apologized to county residents Wednesday for mismanaging his administration's purchasing cards, but defended continued use of the cards under revamped policies. He also released his official response to the draft audit that first disclosed the questionable charges. The News Sentinel has the story. This morning Ragsdale said his administration needs to take a closer look at employees' spending practices and announced he would not seek independent counsel if the county pursues restitution for improper expenses.
Read more on that development
AG to join defense of strip club ordinance
Tennessee Attorney General Robert Cooper filed a motion in federal court this week to intervene in a case brought against Shelby County's strip club ordinance. The suit was filed by seven strip club owners and challenges the constitutionality of the ordinance and the state law on which it is based.
Learn more about the case in the Memphis Daily News
Katrina victims sue over trailer safety
Nearly 100 residents of Louisiana, Mississippi, Texas and Alabama have sued the Federal Emergency Management Agency over dangerous formaldehyde levels that have been found in trailers they were given in the aftermath of Hurricane Katrina. Recent government tests found formaldehyde levels averaging five times higher than what is faced in most modern homes. The Associated Press reported the news yesterday.

Anderson County delays decision on juvenile court
The Anderson County Commission has again delayed a decision on where to locate its juvenile court. The issue of whether to move the court to the county administration building or keep it in the courthouse has been under debate for more than a year. On Monday, the commission voted to seek cost estimates through a bid process rather than rely on quotes from the architectural firm that has been working on the project.
The Oak Ridger reports
UTC professor to review NIJ grant requests
Dr. Helen Eigenberg, professor and head of Criminal Justice at the University of Tennessee at Chattanooga, has been chosen to serve as a peer reviewer for the National Institute of Justice's Crime and Justice Research program, according to Chattanoogan.com. In this role she will review research projects designed to enhance state and local justice policy and practice with regards to victims of crime and make funding recommendations. Each year, NIJ provides $4 million in grants to public and private research institutions across the country.

Internet free speech event features Gore, Seigenthaler
Nobel Peace Prize winner Al Gore will be joined March 27 by journalist John Seigenthaler, author Cass Sunstein and representatives from Wikapedia and the New York Times at an event on free speech and the Internet. The daylong event at Middle Tennessee State Universality will be held in the Keathy University Center Theater beginning at 9:45 a.m. For more information call (615) 898-5150.

Supreme Court Report
Court rejects juror's exclusion
The U.S. Supreme Court has ruled a trial court erred when it allowed a prosecutor to remove a black juror on grounds he appeared nervous and had too many scheduling conflicts. The court also ruled that the error justified overturning the conviction in the case.
SCOTUS Blog reports
Quirky questions cut to heart of complex legal issues
Justice Stephen Breyer is the high court's most frequent practitioner of the hypothetical question, and when he leans toward his microphone, lawyers can expect to be asked almost anything. Northwest Tennessee Today features this AP story on the unusual and occasionally bizarre questions for which Breyer has come to be known.
Read more here
Knoxville lawyer dies
Knoxville lawyer William C. Skaggs Jr. died March 16 at the age of 85. A native of Knoxville, he earned his undergraduate and law degrees from the University of Tennessee and spent his entire legal career with the firm of Ayres & Parkey. An active member of the bar and the community, he served as president of the Knoxville Bar Association, the Cherokee Country Club and The Cotillion Club. Funeral services were held this morning at Sacred Heart Cathedral with Father T. Allen Humbrecht officiating. The family requests that memorials be made to Catholic Charities (3009 Lake Brook Blvd., Knoxville 37909) or the giver's charity of choice.

TBA Member Services
Free Fastcase CLE helps build research skills
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.

Online training sessions are also available. The TBA and Fastcase offer free one-hour CLE webinars to help you use Fastcase online research more effectively in your practice.
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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