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Tuesday, August 11, 2009

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Convention CLE programs now available on video

If you missed any of the popular CLE programming at this year's TBA Annual Convention in Memphis, you can now take them as online video courses through the TBA's TennBarU.

-- What it Takes to Get America Back on Track. Former U.S. Senator Howard Baker and former U.S. Congressman Harold Ford Jr. bring their experience and insight to this 1.5-hour program.

-- Anatomy of a Hoax. The attorneys who were ethics prosecutors in the Duke University Lacrosse team case provide insight into this controversy.

-- Discovery of Electronically Stored Information. Two state chancellors and two federal magistrate judges discuss the importance of discovery of electronically stored information.

-- Jury Education and Selection. With the lack of educational focus on civics and changes in communications, the old methods of juror education and instructions are increasingly ineffective. This course looks at new ideas.

Learn more about these programs or register now

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.

IN RE ADOPTION OF: J.B.H.

Court: TCA

Attorneys:

Vanedda Prince Webb, Dyersburg, Tennessee, for the Appellant.

Thomas E. Weakley, Dyersburg, Tennessee, for the Appellee.

Judge: FARMER

Respondent/Appellant appeals the trial court's termination of her parental rights based on abandonment. We affirm.

http://www.tba2.org/tba_files/TCA/2009/jbh_081109.pdf

JEREMY ROBBINS v. REAGAN FARR, COMMISSIONER OF REVENUE FOR THE STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter, Michael E. Moore, Solicitor General, and Brad H. Buchanan, Assistant Attorney General, for the appellant, Reagan Farr, Commissioner of Revenue for the State of Tennessee.

Richard L. Holcomb, Knoxville, Tennessee, for the appellee, Jeremy Robbins.

Judge: KIRBY

This is a constitutional challenge to Tennessee's "Drug Tax." The petitioner sought, inter alia, a declaratory judgment that the tax assessed against him for being in possession of untaxed, unauthorized substances was unconstitutional. The trial court agreed and granted summary judgment to the petitioner, holding that the tax is unconstitutional. The Commissioner of Revenue appeals. After initially holding the appeal in abeyance, we now affirm in light of the holding of the Tennessee Supreme Court in Waters v. Farr, No. E2006-02225-SC-R11-CV, 2009 WL 2214185 (Tenn. July 24, 2009).

http://www.tba2.org/tba_files/TCA/2009/robbinsj_081109.pdf

LESLIE NATHAN ROSE v. PAMELA BERNICE ROSE

Court: TCA

Attorneys:

Leslie Nathan Rose, pro se Appellant.

Mark R. Orr, LaFollette, Tennessee, for the Appellee, Pamela Bernice Rose.

Judge: SWINEY

In this divorce case involving a long term marriage, Leslie Nathan Rose ("Husband") filed suit seeking a divorce from Pamela Bernice Rose ("Wife"). Following a trial, the Trial Court granted Wife a divorce, divided the marital property, and awarded Wife alimony in futuro. Husband appeals. We find that: (1) Husband has waived the procedural issues he attempts to raise on appeal; and (2) the various factual issues pertaining to the division of marital property and award of alimony must be affirmed due to Husband's failure to file a transcript or statement of the evidence in accordance with Tenn. R. App. P. 24.

http://www.tba2.org/tba_files/TCA/2009/rosel_081109.pdf

TRACY ALVIN ARMSTRONG v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Tracy Alvin Armstrong.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Mike McCowen, District Attorney General, and Weakley E. Bernard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Tracy Alvin Armstrong, also known as "Ta," pled guilty to two counts of selling cocaine weighing in excess of .5 gram, both Class B felonies, and one count of selling cocaine weighing less than .5 gram, a Class C felony. In exchange for the guilty plea, three charges against Petitioner were dismissed. He received a sixteen-year sentence on each Class B felony and a ten-year sentence on the Class C felony. Petitioner was sentenced as a multiple offender for an effective sentence of sixteen years. Petitioner now seeks post-conviction relief, on the alleged basis that he received ineffective assistance of counsel and that his guilty plea was involuntarily entered. Petitioner also claims that the post-conviction statute is unconstitutional and that he was sentenced in violation of Blakely v. Washington, 542 U.S. 296 (2004). We determine that Petitioner has failed to show that his guilty plea was entered involuntarily or that he received ineffective assistance of counsel. Further, Petitioner raises the constitutionality of the statute for the first time on appeal, waiving the issue. Finally, Blakely does not apply to cases on collateral appeal. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/armstrongt_081109.pdf

STATE OF TENNESSEE v. JOHN M. BANKS

Court: TCCA

Attorneys:

J. Runyon, Clarksville, Tennessee, for the appellant John M. Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Chris Clark, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, John M. Banks, was convicted of possession of twenty-six grams or more of cocaine with the intent to sell, a Class B felony. The trial court sentenced Defendant as a Range I, standard offender, to ten years. On appeal, Defendant argues that (1) the evidence was insufficient to support his conviction; (2) the trial court erred in not granting Defendant's motion for a mistrial; (3) the trial court erred in allowing the testimony of a witness not appearing on the State's witness list; (4) the trial court erred in admitting testimony concerning the cocaine recovered from Defendant's vehicle into evidence as an exhibit at trial; and (5) the trial court erred in denying Defendant's motion to exclude evidence. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/banksj_081109.pdf

DEMORRIS MARCEL CHILDRESS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Emerterio R. Hernando, Lewisburg, Tennessee, for the Appellant, Demorris Marcel Childress.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Demorris Marcel Childress, pled guilty in Bedford County to two counts of possession of a Schedule II substance for resale, both Class B felonies, on two separate dates. Subsequently, Petitioner filed two petitions for post-conviction relief, in which he argued that he had ineffective assistance of counsel and that his guilty pleas were unknowing and involuntary. The post-conviction court dismissed the petitions after a hearing. We determine that Petitioner has failed to show that he received ineffective assistance of counsel or that his guilty pleas were entered involuntarily. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/childressd_081109.pdf

STATE OF TENNESSEE v. SAMUEL RYAN HAWKINS

Court: TCCA

Attorneys:

B.F. "Jack" Lowery and G. Jeff Cherry, Lebanon, Tennessee, for the Appellant Samuel Ryan Hawkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Bill Gibson, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

In May of 2006, a three-month-old baby was admitted to Vanderbilt Hospital with retinal hemorrhaging and subdural hematomas. After an investigation, Appellant, Samuel Ryan Hawkins, confessed to shaking the baby. As a result, a Putnam County Grand Jury indicted Appellant for aggravated child abuse. Appellant was convicted as charged by a jury and subsequently sentenced to eighteen years to serve at one hundred percent incarceration. On appeal, Appellant argues that the evidence was insufficient to support his conviction. After a thorough review of the record, we conclude that the evidence was sufficient. Therefore, we affirm Appellant's conviction.

http://www.tba2.org/tba_files/TCCA/2009/hawkinss_081109.pdf

JOE ERVIN HUNTER v. CHERRY LINDAMOOD, WARDEN

Court: TCCA

Attorneys:

Joe Ervin Hunter, Pro Se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Joe Ervin Hunter, pled guilty to possession of less than .5 gram of a controlled substance with intent to sell. In March 2008, Petitioner filed an application for a writ of habeas corpus which was summarily dismissed by the habeas corpus court. On appeal, he argues that the habeas corpus court erred in summarily dismissing his application. After a thorough review of the record, we conclude that Petitioner did not comply with the procedural requirements as set out by statute and that he did not base his plea for habeas corpus relief upon a cognizable claim. Therefore, we affirm the summary dismissal of his application.

http://www.tba2.org/tba_files/TCCA/2009/hunterj_081109.pdf

TODAY'S NEWS

Legal News
Politics
TBA Member Services

Legal News

Bookkeeper embezzles from Nashville firm

A bookkeeper who worked for the Nashville law firm of Harwell Howard Hyne Gabbert & Manner PC has admitted to issuing firm checks, forging names and depositing the money into her account, the Nashville Post reports. According to multiple affidavits filed in Davidson County General Sessions Court, Claire K. Thurman (a.k.a. Claire Harvey Hulsey) issued herself unauthorized checks from H3GM's escrow account. "Court records show two $50,000 checks," firm spokesman Mark Manner told the Post. "The amount is significantly higher than that. This occurred over a several-year period." Manner stressed that it was the firm's money and not client money.

NashvillePost.com has the story [subscription required]

Two Tennessee firms praised for flexible work schedules

Two Tennessee firms are listed on Working Mother Magazine's Top 50 Law Firms for Women: Bass, Berry & Sims PLC and Frost Brown Todd LLC. Nearly all of the list's top 50 firms offer reduced-hour schedules, 62 percent offer full-time telecommuting and 42 percent have written flexible-schedule policies. Both firms have offices in Nashville.

ABAJournal.com gives you the big picture

Lockett hearing set for next spring

A disciplinary hearing date for Knox County Law Director Bill Lockett before the Tennessee Supreme Court's Board of Professional Responsibility has been set for May 25-26, 2010, Lockett's Memphis attorney Lucian Pera said today. That will be a year after Lockett admitted to the Knox County Retirement and Pension Board that he pocketed clients' payments from his former clients at his former law firm.

The News Sentinel has the story

Rove and Miers: Documents show plan to oust U.S. attorney

The dismissal of New Mexico U.S. Attorney David C. Iglesias in December 2006 followed extensive communication among lawyers and political aides in the White House who hashed over complaints about his work on public corruption cases against Democrats, according to newly released e-mails and transcripts of closed-door House testimony by former Bush counsel Harriet Miers and political chief Karl Rove. The disclosures made today mark the end of a 2 1/2 year investigation by the House Judiciary Committee, which sued to gain access to Bush White House documents in a dispute that struck at the heart of a president's executive power.

The Washington Post has more

Cussing judge gets time-out

A Nebraska judge who left a profanity-laced message on a prosecutor's voice mail is off the bench for four months.

Read the *&^$#! story on Law.com

Politics

Kyle makes higher ed focus of gubernatorial campaign

It's official, even though it's been talked about for days: State Sen. Jim Kyle of Memphis is running for governor. He made the announcement at the University of Memphis campus today, where he outlined two higher-education proposals he intends to put at the center of his campaign. Kyle said he wants to use lottery reserve funds to allow college dropouts within one academic year of receiving their degree to return and finish, and he said he would deliver a promise as governor that "so long as you are making sufficient progress toward attaining a degree, we will never, never raise your tuition. What you paid as a freshman you will pay as a senior."