U.S. House passes 'Red Flags' rule bill

The U.S. House of Representatives today passed legislation aimed at ensuring that the Federal Trade Commission (FTC) does not apply the so-called "Red Flags Rule" mandated by the 2003 Fair and Accurate Credit Transactions Act to the legal profession. The bill, H.R. 3763, was approved unanimously and now moves to the Senate. In response, American Bar Association President Carolyn B. Lamm commended the action but said the bill still needs work and encouraged lawmakers to fine-tune it to remove any confusion about whether the law applies to lawyers.

The TBA has joined the effort opposing the rule's application to lawyers, and has contacted the Federal Trade Commission and the Tennessee congressional delegation requesting that lawyers be excluded from the burdensome reporting requirements of the 2003 law.

Learn more about the issue in the TBA's letter to the FTC

TODAY'S OPINIONS
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JEROME WILLIAMS v. GEORGE LITTLE, et al.

Court: TCA

Attorneys:

Jerome Williams, Clifton, Tennessee, pro se.

Arthur Crownover, Nashville, Tennessee, for appellee.

Judge: FRANKS

Petitioner sought to withdraw a waiver he had signed as a prisoner. On a summary judgment motion by defendants, the Trial Court held that if the waiver was withdrawn, petitioner would serve more time and granted the motion. On appeal, we affirm the grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2009/williamsj_102109.opn.pdf


JIMMY LEE BONDS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Jimmy Lee Bonds.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Jimmy Lee Bonds, was convicted in the Davidson County Criminal Court of especially aggravated robbery, first degree premeditated murder, felony murder, and two counts of aggravated burglary. As a result, he was sentenced to life in prison plus twenty-eight years. Petitioner's convictions were affirmed by this Court on direct appeal. State v. Jimmy Lee Bonds, No. M2005- 02546-CCA-R3-CD, 2006 WL 2773455, at *1 (Tenn. Crim. App., at Nashville, May 16, 2006), perm. app. denied (Tenn. Jan. 22, 2007). The Tennessee Supreme Court denied permission to appeal. Petitioner then sought post-conviction relief on the basis that the convictions were based upon a coerced confession and that he received ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief. Petitioner appeals this decision. After our review of the record, we determine that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/bondsj_102109.pdf


STATE OF TENNESSEE v. JAMES R. BUTLER

Court: TCCA

Attorneys:

Glenn R. Funk, Nashville, Tennessee, for the appellant, James R. Butler.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, and Renee Erb, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, James R. Butler, was indicted by the Davidson County Grand Jury in 2003 for possession of cocaine in excess of twenty-six grams with the intent to sell or deliver in violation of Tennessee Code Annotated section 39-17-417. Appellant later pled guilty and received an eight-year sentence. The trial court ordered Appellant to spend six months in incarceration at 100% and the balance of the sentence on probation. A violation of probation warrant was served on Appellant, allegedly due to a subsequent arrest. As a result, the trial court ordered Appellant to serve the remainder of his eight-year sentence in incarceration. On appeal, Appellant argues that the trial court erred by revoking Appellant's probation "without a finding that the revocation was based on a preponderance of the evidence." We determine that the trial court improperly revoked Appellant's probation without a finding that the revocation was based on a preponderance of the evidence. Consequently, we reverse the revocation of probation and remand the case for a hearing in which the trial court determines whether the preponderance of the evidence justifies a revocation.

http://www.tba2.org/tba_files/TCCA/2009/butlerj_102109.pdf


NATHANIEL MORTON CHAMPION v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

H. Thomas Parsons, Manchester, Tennessee, for the appellant, Nathaniel Morton Champion.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Charles Michael Layne, District Attorney General; and Jason M. Ponder, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Nathaniel Morton Champion, appeals the trial court's denial of his petition for post- conviction relief. The petitioner contends that he is entitled to post-conviction relief from his conviction for possession of cocaine and the resulting three-year sentence because he received the ineffective assistance of counsel at trial. The state argues that this court should dismiss the petitioner's appeal because he did not file it within the one-year statute of limitations. We conclude that the petition was untimely, and we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2009/championn_102109.pdf


STATE OF TENNESSEE v. DARIUS MONTEZ EDWARDS

Court: TCCA

Attorneys:

F. Michie Gibson, Jr., Nashville, Tennessee, for the appellant, Darius Montez Edwards.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, and Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Darius Montez Edwards, was indicted in April of 2007 by the Davidson County Grand Jury for premeditated first degree murder and two counts of attempted first degree murder. Appellant subsequently pled guilty to facilitation of first degree murder and facilitation of attempted first degree murder in exchange for the dismissal of the remaining charge. After a sentencing hearing, the trial court sentenced Appellant to twenty-four years for facilitation of first degree murder and eleven years for facilitation of attempted first degree murder. Appellant appeals his sentence. We determine that the trial court properly sentenced Appellant and, therefore, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/edwardsd_102109.pdf


STATE OF TENNESSEE v. UNGANDUA INGRAM

Court: TCCA

Attorneys:

Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellant, Ungandua Ingram.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; Charles Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney General; and William Bottoms, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Ungandua Ingram, was charged with two counts of selling .5 grams or more of cocaine; two counts of delivery of .5 grams or more of cocaine; two counts of conspiring to sell .5 grams or more of cocaine; one count of possession of .5 grams or more of cocaine with intent to sell; and one count of possession of .5 grams or more of cocaine with intent to deliver, each a Class B felony. See Tenn. Code Ann. section 39-17-417(c)(1). He was also charged with one count of simple possession of marijuana and one count of possession of unlawful drug paraphernalia, each a Class A misdemeanor. See Tenn. Code Ann. sections 39-17-418(c), -425(c)(2). Following a jury trial, he was convicted of one count of the sale of .5 grams or more of cocaine; one count of conspiring to sell .5 grams or more of cocaine; one count of possession of .5 grams or more of cocaine with intent to sell; one count of simple possession of marijuana; and one count of possession of unlawful drug paraphernalia. The trial court sentenced the Defendant to an effective sentence of eight years and six months, one year of which it ordered to be served in the Marshall County Jail, with the remainder to be served on probation. In this direct appeal, the Defendant argues that: (1) the trial court erred in denying his motion to suppress evidence found on his person and in his home; (2) the trial court erred in upholding the State's use of a peremptory challenge under Batson v. Kentucky, 476 U.S. 79 (1986); (3) the State presented evidence insufficient to convict him of conspiring to sell .5 grams or more of cocaine; and (4) the trial court erred in admitting certain statements of his co-defendant. After our review, we conclude that the trial court erred in denying the Defendant's motion to suppress the fruits of a search of his person. Accordingly, we reverse the Defendant's convictions for the sale of .5 grams or more of cocaine and conspiring to sell .5 grams of more of cocaine. We remand those cases for a new trial. We affirm the Defendant's convictions for possession of .5 grams or more of cocaine with intent to sell, possession of marijuana, and possession of unlawful drug paraphernalia.

http://www.tba2.org/tba_files/TCCA/2009/ingramu_102109.pdf


STATE OF TENNESSEE v. ALPHEUS LERONE LOWE

Court: TCCA

Attorneys:

J. Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Alpheus Lerone Lowe.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, and Kyle Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

At the conclusion of a jury trial, Appellant was convicted of DUI, third offense. The trial court sentenced Appellant to eleven months and twenty-nine days with all but 120 days suspended. The rest of the sentence was to be served on supervised probation. On appeal, Appellant argues that the evidence was insufficient to support his conviction of DUI and that the trial court erred in neglecting to give the Allen or dynamite charge when the jury was unable to reach a verdict. We conclude that the evidence was sufficient and that the use of the Allen or dynamite charge is no longer approved of by our supreme court. Therefore, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/lowea_102109.pdf


JOHNNY L. McGOWAN, JR. v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Johnny L. McGowan, Jr., Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The pro se Petitioner, Johnny L. McGowan, Jr., appeals from the trial court's order denying his petition for the writ of habeas corpus. The State has filed a motion requesting that this court affirm the order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to state a cognizable claim for habeas corpus relief. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/mcgowanj2_102009.pdf


LADARIUS L. REFFEGEE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Cynthia M. Fort, Nashville, Tennessee, for the Appellant, Ladarius L. Reffegee.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Amy Eisenbeck and Rachel Sobrero, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Petitioner, Ladarius L. Reffegee, of second degree murder and unlawful carrying a handgun with the intent to go armed. Subsequently, he pled guilty to possession of more than 0.5 grams of cocaine with the intent to sell. He was sentenced to a total effective sentence of thirty-three years to be served in the Tennessee Department of Correction ("TDOC"). This Court affirmed the Petitioner's convictions and sentences on direct appeal. State v. Ladarius L. Reffegee, No. M2005-02891-CCA-R3-CD, 2007 WL 1836697, at *1 (Tenn. Crim. App., at Nashville, June 27, 2007), perm. app. denied (Tenn. Oct. 15, 2007). The Petitioner timely filed a petition for post-conviction relief, which was amended by appointed counsel. In his petition, he alleged relevant to this appeal that he received the ineffective assistance of counsel and that ballistic evidence offered by the State was unreliable, which caused him actual prejudice. The post-conviction court dismissed the petition, and, after a thorough review of the record and applicable authorities, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/reffegeel_102109.pdf


STATE OF TENNESSEE v. DAMION SEALS

Court: TCCA

Attorneys:

M. Brandon Barber, Alamo, Tennessee, for the appellant, Damion Seals.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, 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, Damion Seals, pled guilty to aggravated assault, a Class C felony, and was sentenced to five years as a Range I offender in the Department of Correction. On appeal, he challenges the sentence imposed by the trial court. After review, we affirm the sentencing decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/sealsd_102109.pdf


STATE OF TENNESSEE v. SHAWN I. SKINNER

Court: TCCA

Attorneys:

Guy R. Dotson, Jr., Murfreesboro, Tennessee, for the appellant, Shawn I. Skinner.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

In May 2007, the defendant, Shawn I. Skinner, pled guilty to violating the Motor Vehicle Habitual Offender Act, a Class E felony. The trial court sentenced him to two years probation. The Rutherford County Circuit Court revoked his probation and reinstated his original sentence based on his excessive use of alcohol. On appeal, the defendant argues that the evidence contained in the record is insufficient to support the trial court's revocation of his probation. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/skinners_102109.pdf


JEFFREY OWEN WALTERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the appellant, Jeffrey Owen Walters.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; Mike McCowen, District Attorney General, and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Jeffrey Owen Walters, was convicted of second degree murder by a Marshall County jury. As a result, the trial court sentenced him to twenty-three years and nine months in the Department of Correction. Petitioner's conviction was affirmed on appeal, and the supreme court denied permission to appeal. State v. Jeffrey Owen Walters, No. M2005-01856-CCA-R3-CD, 2006 WL 2405612, at *1 (Tenn. Crim. App., at Nashville, Aug. 21, 2006), perm. app. denied, (Tenn. Dec. 27, 2006). Petitioner subsequently sought post-conviction relief on the basis of ineffective assistance of counsel, including a claim that counsel was ineffective for failing to raise an issue about Blakely v. Washington, 542 U.S. 296 (2004). After a hearing, the post-conviction court denied the petition for relief. Petitioner appeals that decision. We determine Petitioner is not entitled to relief because, at the time of his direct appeal, a Blakely claim would not have been successful. Further, Blakely issues themselves are not cognizable in a post-conviction proceeding. The judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/waltersj_102109.pdf


Pardoned Felony Drug Offender Prohibited from Possessing or Purchasing Firearms

TN Attorney General Opinions

Date: 2009-10-21

Opinion Number: 09-168

http://www.tba2.org/tba_files/AG/2009/ag_09_168.pdf

Prohibiting Handguns in Jointly Operated Public Parks

TN Attorney General Opinions

Date: 2009-10-21

Opinion Number: 09-169

http://www.tba2.org/tba_files/AG/2009/ag_09_169.pdf

TODAY'S NEWS

Legal News
Politics
Upcoming
TBA Member Services

Legal News
Cocke County judge accused of misconduct
For the second time in as many years, Cocke County General Sessions Court Judge John A. Bell is facing misconduct charges from the Tennessee Court of the Judiciary. This time, he is accused of witness tampering, official misconduct and violating ethics rules. A criminal investigation also has been launched into his conduct, which stems from his handling of a 2007 civil lawsuit. Bell allegedly made an improper ruling in the case, failed to notify the parties of his judgment for nine months, and attempted to influence one of the parties to drop an ethics complaint against him. Last year Bell faced charges of employing a probation firm owned by a family member. That case was settled.
Learn more about the new charges in the News Sentinel
Former Sen. Miller 'not guilty'
Earlier today a jury found former state Sen. Jeff Miller not guilty on charges of official misconduct in connection with his former position as Bradley County back-tax attorney. The judge in the case previously had dismissed charges of conspiracy to commit official misconduct and conspiracy to commit aggravated perjury. The jury deliberated less than three hours before reaching the verdict. Miller had been accused of receiving as much as $22,500 for tax lien searches he did not complete.
The Times Free Press reports
Knox committee approves recall amendment
The Knox County Commission's Finance Committee today approved a measure to redraft language in the county charter that addresses the recall of elected officials. The proposed change, which is designed to simplify the recall process, could be considered by the full commission as early as Oct. 26. The move comes as county Law Director Bill Lockett faces a possible recall after revelations emerged that he took client money from his former law firm.
The News Sentinel has the details
Vandy ties for fifth place in law professor's analysis
Paul Caron, author of TaxProf Blog and the associate dean of faculty at the University of Cincinnati College of Law, analyzed the Princeton Review's "Best 172 Law Schools" to devise his own list of top schools. While the Princeton Review ranked schools in 11 different categories, it did not combine them for an overall top law schools list. In Caron's top 50, Vanderbilt University ties with Texas for fifth place. The University of Tennessee comes in at 48th place.
Read Caron's analysis
New edition of Supreme Court Hot List now available
Check out the new edition of Raybin and Richter's Tennessee Supreme Court Hot List to find an analysis of four cases recently granted review by the state Supreme Court.
Go to the Hot List now
Celebrate 'Freedom of Speech Week'
This week, Oct. 19-25, is National Freedom of Speech Week and the American Bar Association is making resources available to stimulate discussion about this important constitutional right. Visit the association's web site for articles, lesson plans, media resources, Supreme Court cases and a pop quiz on the First Amendment.
Check it out here
Politics
County asks parties to skip primaries
The Putnam County Commission is asking political parties to forego primaries during the 2010 election season to save money. Supporters of the move say the primaries bring such low voter turnout that they are not worth the cost. Others, however, expressed concern that skipping the primaries would lessen the democratic process.
The Cookeville Herald-Citizen reports
Upcoming
Food stamp case training available
The Tennessee Alliance for Legal Services will host a training session on food stamp modernization Nov. 2 from 10 a.m. to 4 p.m. at its offices in Nashville. Topics to be covered include use of the APA for systemic change, protections in the food stamp program and fair hearing and litigation strategies. Expert speakers include Professor David Super with the University of Maryland School of Law and Colleen Pawling from the Center on Budget and Policy Priorities.
Learn more here
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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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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