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Tuesday, January 19, 2010

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Luncheon honors Access to Justice Award winners

The Tennessee Bar Association's Access to Justice Award winners were recognized Saturday during the annual TBA Access to Justice Luncheon featuring former American Bar Association President Robert Grey as keynote speaker. The luncheon was a highlight of the TBA's Leadership Conference, its annual gathering of leaders for educational programming, governance activities and recognition of good works.

See photos on TBAConnect

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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
06 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_011910.pdf

ROBERT KENT DRAKE, ET AL. v. PAULA MAE DRAKE

Court: TCA

Attorneys:

W. Douglas Collins, Morristown, Tennessee, for the appellant(s), Paula Mae Drake.

Cynthia J. King, Newport, Tennessee, for the appellee(s), Robert Kent Drake and Dennis Solomon Drake.

Judge: FRANKS

Brothers of defendant mother brought this action to have a conservator appointed for their mother on the grounds that the mother suffered dementia, Parkinson's disease and other infirmities and was incompetent and unable to make decisions about her health and finances. Following trial, the Trial Court found there was clear and convincing evidence that the mother was disabled and in need of supervision, protection and assistance by means of a conservatorship due to her permanent mental incapacity. The sons were named as co-conservators of her person and estate. The attorney for the mother filed an appeal, and we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2010/draker_011910.pdf

TENNESSEE RISK MANAGEMENT TRUST v. LORI ANN YANCEY, ET AL.

Court: TCA

Attorneys:

Howard R. Ellis, Oneida, Tennessee, for the appellant, Lori Ann Yancey, next of kin and representative of the estate of Hubert Dean Yancey.

John D. Schwalb, Franklin, Tennessee, for the appellee, Tennessee Risk Management Trust.

Judge: SWINEY

Tennessee Risk Management Trust ("TRMT") sued Lori Ann Yancey ("Yancey"), next of kin and representative of the estate of Hubert Dean Yancey, and Marty Carson ("Carson") seeking a declaratory judgment with regard to governmental liability insurance coverage provided by TRMT to Carson's employer, Scott County. TRMT filed a motion for summary judgment. The Trial Court granted TRMT's motion for summary judgment holding, inter alia, that the policy at issue does not provide coverage for Carson's intentional shooting and killing of another Scott County employee. Yancey appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2010/yanceyl_011910.pdf

IN RE: TYRONE A. BYRD, D/B/A A ALPHA BAIL BOND AGENCY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Tyrone A. Byrd, Jackson, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; and D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The appellant, Tyrone A. Byrd, acting pro se, appeals from an order revoking his right to issue bail bonds in the Twenty-Fifth Judicial District. On appeal, he argues that the trial court erred in suspending his right to issue bonds. After careful review, we affirm the order from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/byrdt_011910.pdf

STATE OF TENNESSEE v. TAMMY L. MCDONALD

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal); Raymond Mack Garner, District Public Defender, and Stacey D. Nordquist, Assistant Public Defender, (at trial), for the appellant, Tammy L. McDonald.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Tammy M. Harrington, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Tammy L. McDonald, appeals her conviction upon a guilty plea in the Blount County Circuit Court for theft of property over $60,000, a Class B felony. Pursuant to a plea agreement, the Defendant received a Range I, ten-year sentence with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court ordered the Defendant to serve the sentence in confinement. The Defendant appeals, contending that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/mcdonaldt_011910.pdf

STATE OF TENNESSEE v. ABBY L. MILLS

Court: TCCA

Attorneys:

Rebecca S. Mills, Ripley, Tennessee, for the appellee, Abby L. Mills.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Julie Pillow, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: MCLIN

This case is before the court upon the Tennessee Supreme Court�s remand for further consideration in light of its opinion in State v. Saine, 297 S.W.3d 199 (Tenn. 2009). The defendant, Abby L. Mills, was indicted by the Lauderdale County Grand Jury for possession of a Schedule II controlled substance, cocaine, with the intent to deliver; possession of a Schedule III controlled substance, Hydrocodone, with the intent to deliver; and possession of a Schedule VI controlled substance, marijuana, with the intent to deliver over .5 ounces. After a hearing, the trial court granted defendant's motion to suppress evidence of items found in the defendant's home. On appeal, the state asserted that the trial court erred in suppressing the evidence obtained as a result of a valid search warrant. This court initially affirmed the trial court's suppression of evidence based on lack of probable cause to support the issuance of a search warrant. Upon review, we hold that the warrant to search the defendant's home was supported by probable cause. We therefore reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/millsa_011910.pdf

DEREK T. PAYNE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the appellant, Derek T. Payne.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Summer Morgan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Derek T. Payne, appeals as of right the Shelby County Criminal Court's denial of his petition for post-conviction relief. The Petitioner was convicted by a jury of second degree murder and attempted especially aggravated robbery, and he received an effective sentence of thirty-seven years. On appeal, he argues that the denial of his petition was error because he did not receive the effective assistance of counsel at trial or on appeal. Specifically, he contends that counsel failed to raise or challenge certain jury instruction issues, failed to fulfill promises made during the opening statement, failed to introduce evidence of the victim's past conduct to show that the victim was the first aggressor, and failed to object to the State's improper closing argument. Additionally, he contends that his sentence was unconstitutionally imposed based on Blakely v. Washington, 542 U.S. 296 (2004). Following our review of the record and the parties' briefs, we conclude that the Petitioner has not shown that he is entitled to relief. The judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/payned_011910.pdf

STATE OF TENNESSEE v. MICHAEL D. SWEAT

Court: TCCA

Attorneys:

Mike Whalen, Knoxville, Tennessee, for the appellant, Michael D. Sweat.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Michael D. Sweat, was convicted by a jury in the Knox County Criminal Court of aggravated robbery, a Class B felony, and was sentenced by the trial court as a Range II, multiple offender to seventeen years in the Department of Correction. The Defendant appeals, contending (1) that the evidence is insufficient to support his conviction, (2) that he was denied his constitutional right to a fair trial when the State suborned perjury, (3) that the State impermissibly shifted the burden of proof to the Defendant when it questioned why additional alibi witnesses were not called, (4) that the trial court erred when it allowed the admission into evidence of his prior convictions, (5) that the trial court erred when it failed to allow the Defendant to poll the jury, and (6) that he was denied a fair trial because the verdict was based on juror misconduct. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/sweatm_011910.pdf

STATE OF TENNESSEE v. STEPHEN LOUIS YOUNG

Court: TCCA

Attorneys:

Thomas T. Overton, Nashville, Tennessee, for the appellant, Stephen Louis Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Hansel J. McCadams, District Attorney General; and Beth Boswell-Hall, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A Decatur County jury found the defendant, Stephen Louis Young, guilty of one count of rape of a child, a Class A felony, and one count of aggravated sexual battery, a Class B felony. The court sentenced the defendant to twenty-five years for rape of a child to be served concurrently with twelve years for aggravated sexual battery at 100% in the Tennessee Department of Correction. On appeal, the defendant argues that (1) the district attorney's comments during closing arguments constituted prosecutorial misconduct; (2) the trial court erred in sentencing the defendant; and (3) the trial court erred in ruling that the defendant's confession was voluntary. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/youngs_011910.pdf

Effect of 2009 Tenn. Pub. Acts, ch. 324, on blood tests for alcohol or drug content

TN Attorney General Opinions

Date: 2010-01-19

Opinion Number: 10-01

http://www.tba2.org/tba_files/AG/2010/ag_10_01.pdf

State Legislator Contracting with Non-Profit State Grant Recipient: Use of State Grant Funds

TN Attorney General Opinions

Date: 2010-01-19

Opinion Number: 10-02

http://www.tba2.org/tba_files/AG/2010/ag_10_02.pdf

TODAY'S NEWS

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Legal News

Court: Holmes should not have been denied a second lawyer

The state Supreme Court has ruled that a criminal defendant, Tommy Holmes, who assaulted his attorney in 2003 should not have been punished by having to represent himself. "Because the defendant was erroneously denied his fundamental constitutional right to counsel," the court said in its unanimous ruling, "we must reverse his conviction and remand this matter for appointment of new counsel and a new trial."

The Commercial Appeal has the story

Lawyer wants charges dropped in 'judge-shopping' case

An attorney who prevailed in his claim that the state wildlife agency engaged in judge shopping wants a drunken boating charge against his client dismissed.

WKRN.com reports this AP news

Just this once, get out of jail free in Hawkins County

On Sunday, officials at the new Hawkins County Justice Center and Jail Complex gave county residents and visitors a one-time opportunity to tour the new $15 million facility that turned a former Kmart building into a state-of-the-art jail facility and justice center.

Learn more about it from the Citizen Tribune

Does money earned after divorce filing count? Court says yes

The state's high court opted to use East Tennessee lawyer Gordon Ball's divorce case to tackle the issue of whether money earned or debt incurred between the filing of a divorce complaint and final judgment is marital property subject to a division between warring spouses. "As a result of Ball's class-action practice, the parties amassed a sizable estate, including large bank accounts, vehicles, vacation properties, and a private plane," Chief Justice Janice Holder wrote. Mr. Ball got 60 percent and Mrs. Ball got 40.

The News Sentinel tells the story

10 Commandments back in Kentucky courthouse

Saying the 10 Commandments wasn't religiously oriented, a federal appeals court has allowed Grayson County, Ky., officials to return the commandments to the county courthouse.

The Tennessean carried this AP story

Local landmarks named for civil rights icons explored

In honor of Martin Luther King Day, the Tennessean highlighted local landmarks, buildings and streets that are named after African-Americans who have been prominent in Nashville's history and civil rights struggle, including lawyers Z. Alexander Looby and Avon Williams.