Tennessee agency gets grant for medical-legal partnership

The Baptist Healing Trust has awarded nearly $36,000 to the Legal Aid Society of Middle Tennessee and the Cumberlands for its Medical-Legal Partnership for Children, a collaboration between the Monroe Carell Jr. Children's Hospital at Vanderbilt University and the Legal Aid Society. Medical-legal partnerships are projects that bring doctors and lawyers together to address legal issues contributing to the poor health of low-income patients. Such programs are in existence in more than 25 states.

Learn more from the Center for Medical Legal Partnerships

TODAY'S OPINIONS
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ANDREW CARTER v. QUALITY OUTDOOR PRODUCTS, INC. ET AL.
CORRECTION On page one (1) of the opinion, the last name of counsel for appellee was incorrectly listed as Joshua Davis "Barker" and has been corrected to Joshua Davis "Baker", Assistant Attorney General.


Court: TSC

Attorneys:

Alex C. Elder, Memphis, Tennessee, for the appellants, Berkley Regional Insurance Company and Quality Outdoor Products, Inc.

Charles L. Hicks, Camden, Tennessee, for the appellee, Andrew Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, Second Injury Fund.

Judge: HOLDER

The employee filed suit seeking workers' compensation benefits and provided notice to the employer of his intent to rely at trial on a physician's report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer's motion to exclude the physician's report but granted the employer permission to seek an interlocutory appeal. We hold that the physician's unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician's written report inadmissible. We further hold that the physician's report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2010/cartera_CORR_012510.pdf


SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_012510.pdf


ROBERT KENT DRAKE, ET AL. v. PAULA MAE DRAKE
CORRECTION on first page


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

Children 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_CORR_012510.pdf


STATE OF TENNESSEE v. RICHARD BEHELER

Court: TCCA

Attorneys:

Robert R. Kurtz, Knoxville, Tennessee, attorney for appellant, Richard Beheler.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; R. Steven Bebb, District Attorney General; and Andrew Freiburg, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Richard Beheler, appeals by permission from the judgment of the Circuit Court of McMinn County. Following a jury conviction of aggravated sexual battery for which he received a sentence of nine years to be served at one hundred percent, the trial court granted the Defendant's motion for new trial based upon its finding that trial counsel committed ineffective assistance. The Defendant then filed a motion to compel the State to reinstate its original plea offer of sexual battery by an authority figure with a four year sentence to be served as a Range I, standard offender. The trial court denied the motion based upon its finding that the Defendant failed to establish a reasonable probability that he would have accepted the original plea offer had it been properly communicated to him. The trial court granted the Defendant's application for interlocutory appeal of this issue. Tenn. R. App. R. 9. In this appeal by permission, the Defendant contends that the original plea offer should be reinstated. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/behelerr_012510.pdf


RODNEY N. BUFORD v. STATE OF TENNESSEE and RICKY J. BELL, WARDEN

Court: TCCA

Attorneys:

Rodney N. Buford, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and Victor S. Johnson, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

After pleading guilty to four counts of armed robbery and one count of felony murder in Davidson County, Petitioner, Rodney N. Buford, was sentenced to life in prison for the felony murder conviction and ten years for each armed robbery conviction. Two of the armed robbery convictions were ordered to run consecutively resulting in an effective sentence of twenty years with regard to the armed robberies. Petitioner filed a petition for writ of habeas corpus relief in which he argued that his ten-year sentences were imposed under the incorrect sentencing act and, therefore, were illegal. The habeas corpus court summarily dismissed the petition. On appeal, Petitioner argues that the habeas corpus court erred in dismissing his petition. After a thorough review of the record, we conclude that the ten-year sentences imposed by the trial court were authorized by both the sentencing acts in question, therefore, Petitioner's sentences were not unlawful and, as such, are not a basis for habeas corpus relief. We affirm the summary dismissal of the petition by the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2010/bufordr_012510.pdf


STATE OF TENNESSEE V. ANGELA ANN COLLINS

Court: TCCA

Attorneys:

William B. Lockert, III, District Public Defender and Lila Kathleen Mitchell, Assistant District Public Defender, for the appellant, Angela Ann Collins.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; and Dan Alsobrooks, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Angela Ann Collins, was indicted by the Dickson County Grand Jury for driving under the influence ("DUI") and violation of the implied consent law. She was convicted by a jury. Appellant appeals her conviction and the sentence imposed by the trial court. Because we determine that the evidence was sufficient to support the conviction and that the trial court did not abuse its discretion in sentencing Appellant, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/collinsa_012510.pdf


STATE OF TENNESSEE v. KEITH DEWAYNE HUXOLL

Court: TCCA

Attorneys:

Randall D. Fleming, Kingsport, Tennessee, for the Appellant-Defendant, Keith Dewayne Huxoll.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Appellant-Defendant, Keith Dewayne Huxoll, appeals his conviction for evading arrest, a Class D felony. He received a twelve-year sentence as a career offender for evading arrest and was ordered to pay a $3,000 fine. Huxoll claims he is entitled to a new trial because he could have been convicted of the lesser-included offense, the Class E felony of evading arrest, if "the Trial Court had instructed the jury properly prior to its initial deliberation." Because Huxoll failed to timely file his motion for new trial, and none of the claims presented amount to plain error, these issues have been waived. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/huxollk_012510.pdf


STATE OF TENNESSEE v. LAURA JUNE MAYS

Court: TCCA

Attorneys:

Wayne T. DeWees, Bolivar, Tennessee, for the Defendant-Appellant, Laura June Mays.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Laura Mays, was convicted by a Hardeman County jury of theft of property between $10,000 and $60,000, a Class C felony. She received a three-year sentence, but was subsequently placed on probation. Her probation was revoked by the trial court because of her failure to make restitution payments. In her first appeal, this court reversed the trial court's revocation of her probation and directed the trial court to set a reasonable amount for restitution payments. On remand, the trial court again revoked Mays' probation. Mays now appeals the revocation of her probation, claiming the trial court did not follow this court's mandate from her first appeal. Upon review, we again reverse the judgment of the trial court, and remand this matter for a determination of Mays' ability to pay restitution.

http://www.tba2.org/tba_files/TCCA/2010/maysl_012510.pdf


STATE OF TENNESSEE v. STEPHEN GREGORY SPENCER, ALIAS GREGORY SPENCER

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender (at trial); and Richard Kenneth Mabee, Assistant Public Defender (on appeal), attorneys for appellant, Stephen Gregory Spencer.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Stephen Gregory Spencer, pled guilty to two counts of possession of marijuana, Class E felonies, one count of possession of a handgun with the intent to go armed, a Class A misdemeanor, one count of theft of property valued at over one thousand dollars, a Class D felony, and one count of theft of property valued at over ten thousand dollars, a Class C felony. The trial court imposed an effective sentence of eight years as a Range I, standard offender to be served in community corrections. A community corrections violation warrant issued alleging that the Defendant failed to report and continued to use illegal drugs. Following an evidentiary hearing, the trial court revoked the community corrections sentences and ordered the sentences to be served in incarceration. In this appeal as of right, the Defendant contends that the trial court erred in ordering the service of his sentences in incarceration. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/spencers_012510.pdf


STATE OF TENNESSEE V. JAMARCUS SYDNOR

Court: TCCA

Attorneys:

James O. Martin, III, Nashville, Tennessee, for the appellant, Jamarcus Sydnor.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, and Trevor Lynch, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jamarcus R. Sydnor, was indicted by the Rutherford County Grand Jury for attempted second degree murder, three counts of aggravated assault, attempted aggravated robbery, reckless endangerment with a weapon, and use of a firearm during the commission of a felony. Prior to trial, Appellant pled guilty to two counts of aggravated assault, one count of attempted aggravated robbery, and one count of reckless endangerment with a weapon. The trial court sentenced Appellant to an effective sentence of five years and denied Appellant's request for an alternative sentence. On appeal, Appellant challenges the trial court's denial of an alternative sentence. After a review of the record, we determine that the trial court failed to place the reasons for the denial of an alternative sentence on the record. Therefore, we reverse and remand the judgments of the trial court. On remand, should the trial court determine that a denial of alternative sentencing is appropriate, the trial court should place the reasons for the denial of alternative sentencing on the record.

http://www.tba2.org/tba_files/TCCA/2010/sydnorj_012510.pdf


CHESTER WAYNE WALTERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Billy K. Tollison, Sparta, Tennessee, for the appellant, Chester Wayne Walters.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Randall A York, District Attorney General; William Locke, Assistant District Attorney General; and Ben Fann, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Chester Wayne Walters, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that trial counsel's assistance was ineffective during the cross-examination of the victim. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/waltersc_012510.pdf


STATE OF TENNESSEE v. GERRALDO WHITE

Court: TCCA

Attorneys:

Mark Mesler, Memphis, Tennessee, for the appellant, Gerraldo White.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; Glen Baity and Alexia Fulghum, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Gerraldo White, was charged with one count of first degree premeditated murder and one count of felony murder. See Tenn. Code Ann. section 39-13-202(a)(1), (2). He was also charged with one count of especially aggravated robbery, a Class A felony. See Tenn. Code Ann. section 39-13-403(b). Following a jury trial, he was convicted of one count of felony murder, one count of especially aggravated robbery, and one count of second degree murder, a Class A felony. See Tenn. Code Ann. section 39-13-210(c). The trial court sentenced the Defendant as a Range I, standard offender to fifteen years for second degree murder and fifteen years for especially aggravated robbery. It also sentenced him to life in prison for felony murder. The trial court ordered that the Defendant serve his sentences concurrently with one another, for a total effective sentence of life in the Department of Correction. In this direct appeal, the Defendant contends that: (1) the trial court erred in denying his motion to suppress a statement he made to police; and (2) the State presented evidence insufficient to convict him of felony murder, second degree murder or especially aggravated robbery. After our review, we affirm the Defendant's conviction for first degree felony murder. We direct that the second degree murder conviction be merged into the first degree murder conviction. We modify the conviction for especially aggravated robbery to a conviction for aggravated robbery, and we remand for sentencing on the aggravated robbery conviction.

http://www.tba2.org/tba_files/TCCA/2010/whiteg_012510.pdf


Authority of Board of Probation and Parole to Supervise Individuals on Pretrial Diversion

TN Attorney General Opinions

Date: 2010-01-25

Opinion Number: 10-07

http://www.tba2.org/tba_files/AG/2010/ag_10_07.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
Disciplinary Actions
TBA Member Services

Legal News
Lockett recall will not get on August ballot
The campaign to recall Knox County Law Director Bill Lockett on the August ballot is being suspended, an organizer reported today, saying there is not enough time or volunteers to collect the necessary 50,000 signatures to get the matter on the ballot in compliance with the county charter. Lockett has admitted taking payment from clients for his own use from his former law firm.
The News Sentinel has the story
In related news, the Knox County Commission today approved a provision that would make it easier to recall elected officials after weeks of contentious debate over how many voters' signatures should be needed to get a recall election on the ballot. If voters ultimately put their stamp of approval on the measure, it will take only 10 percent of the number of registered voters instead of the current threshold of 15 percent to force a recall vote.
The News Sentinel reports
Public opinion and the court: Former Vandy law professor explains
In his new book, legal scholar and former Vanderbilt law professor Barry Friedman sets out to show that the Supreme Court has never been insulated from popular sentiment. In fact, he argues that the long-term effect of the court's rulings is always determined by the public's reaction. "One of the most valuable things that occurs in response to a Supreme Court decision," he writes in The Will of the People: How Public Opinion has Influenced the Supreme Court and Shaped the Meaning of the Constitution, "is backlash."
Read a review of the book in The City Paper
Hamilton County courts get a techno-makeover
After years of working with antiquated equipment that has made routine business a logistical mess, all three Hamilton County criminal courts are in the final stages of a technological makeover. The biggest change will allow criminal court judges to conduct arraignments via video, which is expected to be available in the coming weeks.
The Times Free Press reports
Opinion: Time for criminal justice overhaul
Last Thursday the bipartisan National Criminal Justice Commission Act of 2009 was approved by the U.S. Senate Judiciary Committee by voice vote. The legislation, which now goes to the full Senate, would create a commission to conduct a thorough evaluation of the nation's criminal justice system and offer recommendations for reform at every stage of process. Tennessean columnist Dwight Lewis suggests it is time for an overhaul.
Read the column
Hearing on lethal injection set for this week in Kentucky
Kentucky's proposed lethal injection procedures are vague and unnecessarily secretive in critical areas, experts say. A public hearing on the proposed protocol is to be held on Friday in Frankfort. It comes a month after the Kentucky Supreme Court ordered all executions halted because the state skipped public hearings on the administrative regulations that make up the protocol. It is the first time the state has allowed public comment on the execution method.
WKRN.com carried this AP story
Hawkins County Justice Center open for business
Sessions Court began this morning in the new Hawkins County Justice Center for the first time after moving into the new facility. Other courts that have moved in include Circuit, Juvenile and Child Support -- as well as their respective clerks.
The Kingsport Times-News has the story
Supreme Court Report
Court won't intervene in Mississippi, Tennessee water dispute
The U.S. Supreme Court today declined to intervene in the state of Mississippi's claims that Tennessee's largest city is pumping too much water out of an aquifer shared by the two states.
The Commercial Appeal carried this AP story
Vehicle search to change, court directs
In a 5-4 decision, the U.S. Supreme Court put the brakes on the routine practice of what's known as a "vehicle search incident to arrest," in which a suspect is handcuffed and stuffed in the back of a cruiser and the suspect's vehicle searched without a warrant or probable cause. Knoxville Assistant Law Director Lisa Hatfield described the change as "one of those watershed events."
The News Sentinel reports
5-4 splits abound on high court now
It comes down to this at the Supreme Court, one writer says: "If you've got Justice Anthony Kennedy on your side, you can pretty much do what you want. Without him, you're the author of an angry dissent."
The News Sentinel carried this AP story
Disciplinary Actions
Brentwood lawyer censured
On Jan. 21, Brentwood lawyer Charles Craig Morrow received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court, for violating Rule of Professional Conduct 4.2 (communication with person represented by counsel).
Read the BPR news release
Memphis attorney censured
Memphis lawyer Murray B. Wells received a public censure from the Board of Professional Responsibility on Jan. 21 for violating Rule of Professional Conduct 5.3(b) (failure to supervise non-lawyer assistant) and 1.15 (safekeeping property).
Read the BPR news release
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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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