Senate plan cuts indigent defense

A budget plan proposed yesterday by Republican leadership in the Senate would cut some $978,600 from funds needed to properly fund indigent defense representation in the next fiscal year. The program, which pays the costs of court appointed counsel and approved experts for indigent defendants, is expected to need $29.6 million in the next fiscal year. In order to address underfunding of this constitutionally mandated services, the state, in the past, has employed the practice of deferring payments for claims received at the end of the fiscal year. This year's budget and supplemental appropriations are needed to fund representation for the coming year. Discussions regarding budget plans are expected to continue throughout the week as the legislature prepares to wind down.
TODAY'S OPINIONS
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BRENDA DUNCAN ALBRIGHT, v. RANDOLPH & SHERRY TALLENT

Court: TCA

Attorneys:

Lance W. Parr, Athens, Tennessee, for the appellant, Brenda Duncan Albright.

A. Scott McCulley, Knoxville, Tennessee, for the appellees, Randolph and Sherry Tallent.

Judge: FRANKS

Plaintiff brought this action, asserting that defendants were constructing a fence which impacted on her driveway right-of-way, and sought an injunction against the construction of the fence. The Trial Court determined the fence was being constructed on defendants' property and denied plaintiff relief. However, the Trial Court also determined that the fence served no useful purpose, and suggested it was a spite fence. Plaintiff has appealed. On appeal, we affirm the Trial Judge as modified, the modification being that the defendant had testified in the Trial Court that he was building a fence of the same style and character as the fence around the rest of his property, which was a split board type, and would not block plaintiff's view. We modify the Judgment to restrict the defendants to constructing a fence as depicted in the exhibits filed in the Trial Court, i.e., the same type of fence he has constructed around the remainder of his property.

http://www.tba2.org/tba_files/TCA/2010/albrightb_051210.pdf


McKENZIE BANKING COMPANY v. BILLY L. COUCH

Court: TCA

Attorneys:

Harold R. Gunn, Humboldt, Tennessee, for the appellant, Billy L. Couch.

Stephen L. Hughes, Milan, Tennessee, for the appellee, McKenzie Banking Company.

Judge: HIGHERS

The parties each own a one-half undivided interest in property previously used as medical offices. MBC filed a complaint for partition and sale, which the trial court granted, finding that the property could not be partitioned in kind and that it was to the parties' advantage to sell it. Dr. Couch appeals, and we affirm.

http://www.tba2.org/tba_files/TCA/2010/couchb_051210.pdf


RACHEL SUMNER, ET AL. v. METROPOLITAN BOARD OF PUBLIC HEALTH

Court: TCA

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the appellants, Rachel Sumner, et al.

Sue B. Cain, The Department of Law of the Metropolitan Government of Nashville and Davidson County; Lora Barkenbus Fox; Paul Jefferson Campbell, II, for the appellee, Metropolitan Board of Public Health.

Judge: COTTRELL

Petitioners challenge a mosquito spraying plan adopted by a local board of health alleging that it violates an ordinance on the same subject. Dismissal by the trial court is affirmed since there is no conflict between the plan and ordinance and petitioners fail to allege a legally cognizable ground to challenge the plan since dissatisfaction with the plan is not sufficient.

http://www.tba2.org/tba_files/TCA/2010/sumnerr_051210.pdf


LEVI BATTLE, III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Levi Battle, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Rob McGuire, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Petitioner, Levi Battle, III, of possession of twenty-six grams or more of cocaine with intent to sell or deliver, and the trial court sentenced him as a career offender to thirty years in the Tennessee Department of Correction. On direct appeal, the Petitioner challenged the denial of his motion to suppress, and we affirmed the trial court's judgment. State v. Levi Battle, III, No. M2006-00288-CCA-R3-CD, 2007 WL 957207, at *1 (Tenn. Crim. App., at Nashville, Mar. 29, 2007), perm. app. denied (Tenn. Aug. 13, 2007). The Petitioner then filed a petition for post-conviction relief in which he alleged that he received the ineffective assistance of counsel, and, after a hearing, the postconviction court dismissed the petition. After a thorough review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/battlel_051210.pdf


STATE OF TENNESSEE v. CHRISTINA KAY DEERING

Court: TCCA

Attorneys:

Christina Deering, appellant, pro se.

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

Judge: OGLE

The petitioner, Christina Kay Deering, appeals from the Jefferson County Circuit Court's dismissal of a petition for post-conviction relief filed on her behalf by her mother, Melissa Deering. The State has moved to have this court summarily affirm the dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the motion and affirm the order of dismissal pursuant to Rule 20.

http://www.tba2.org/tba_files/TCCA/2010/deeringc_051210.pdf


STATE OF TENNESSEE v. RONALD DILLMAN, JR.
CORRECTION


Court: TCCA

Attorneys:

Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellant, Ronald C. Dillman, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William Paul Phillips, District Attorney General; and Jared Ralph Effler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Ronald Dillman, Jr., was convicted of especially aggravated burglary, a Class B felony, aggravated assault, a Class C felony, robbery, a Class C felony, attempted aggravated assault, a Class D felony, and assault, a Class A misdemeanor. He was sentenced as a Range II, multiple offender to serve eighteen years for especially aggravated burglary, eight years for aggravated assault, eight years for robbery, and five years for attempted aggravated assault. He was sentenced to serve eleven months and twenty-nine days for the misdemeanor conviction. All sentences were concurrent, resulting in an effective eighteenyear sentence. On appeal, he challenges the sufficiency of the evidence, the trial court's denial of his motion for judgment of acquittal, the trial court's approval of the verdict in its role as thirteenth juror, and the exclusion from evidence of Robert Collins's plea agreement document. We affirm the convictions, but we vacate the judgments for aggravated assault and attempted aggravated assault and remand the case for entry of a judgment merging the attempted aggravated assault conviction with the aggravated assault conviction.

http://www.tba2.org/tba_files/TCCA/2010/dillmanr_CORR_051210.pdf


STATE OF TENNESSEE v. LAYTHANIEL HANEY

Court: TCCA

Attorneys:

J. Derreck Whitson, Newport, Tennessee, attorney for appellant, Laythaniel Haney.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James B. Dunn, District Attorney General; and Joe C. Crumley, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant was indicted for sale and delivery of less than .5 grams of a Schedule II controlled substance, both Class C felonies. A jury acquitted the Defendant of the sale of a Schedule II controlled substance but convicted him of the lesser-included offense of simple possession or casual exchange of a Schedule II controlled substance. The jury also convicted the Defendant of delivery of a Schedule II controlled substance. The trial court sentenced the Defendant as a career offender to fifteen years confinement for the delivery conviction. In his appeal as of right, the Defendant raises five issues for this court's review: (1) whether the verdicts were inconsistent; (2) whether the convictions for simple possession or casual exchange merge with the delivery conviction; (3) whether the Defendant received a fair trial when jurors were found sleeping during the presentation of evidence; (4) whether the evidence was sufficient to convict the Defendant of delivery of a Schedule II controlled substance; and (5) whether the Defendant received a fair trial when he was intoxicated and unable to assist trial counsel at the time of trial. We conclude that the issues regarding the sleeping jurors and the Defendant's alleged intoxication are waived because the Defendant failed to file a timely motion for a new trial. Following our review, we conclude that the verdicts were not inconsistent and that the evidence was sufficient to support his convictions. However, we conclude that the judgments do not properly reflect the jury's verdict or the trial court's merger of the offenses Therefore, we remand the case for correction of the judgments.

http://www.tba2.org/tba_files/TCCA/2010/haneyl_051210.pdf


STATE OF TENNESSEE v. ANDY B. MCAMIS

Court: TCCA

Attorneys:

Jean M. Brock, McMinnville, Tennessee, for the appellant, Andy B. McAmis.

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

Judge: SMITH

The Warren County Grand Jury indicted Appellant, Andy McAmis, for one count of aggravated assault in connection with a fight. After a jury trial, Appellant was found guilty of reckless aggravated assault. The trial court sentenced Appellant to eight years as a Range I, standard offender. On appeal, Appellant argues that the evidence was insufficient to support his conviction and to rebut his assertion of the affirmative defense of self-defense; the trial court erred in denying his motion for mistrial; and the trial court erred in admitting inflammatory photographs. After a thorough review of the record, we conclude that the evidence was sufficient and that the trial court did not err in denying the mistrial or allowing the photographs into evidence. Therefore, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/mcamisa_051210.pdf


STATE OF TENNESSEE v. JOSEPH POLLARD

Court: TCCA

Attorneys:

Harry E. Sayle III (on appeal), Robert Wilson Jones, District Public Defender, and Latonya Burrow and Robert Gowen, Assistant Public Defenders (at trial), Memphis, Tennessee, for the appellant, Joseph Pollard.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen Baity and Alexia Fulgham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

A Shelby County jury found the defendant, Joseph Pollard, guilty of first degree murder, attempted voluntary manslaughter, a Class D felony, and aggravated assault, a Class C felony. He received a life sentence for his first degree murder conviction, two years as a standard offender for attempted voluntary manslaughter, and three years as a standard offender for aggravated assault, to be served concurrently in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence was insufficient to support a first degree murder conviction and that the trial court erred in dismissing his motion for mistrial. Following our review of the record, the parties' briefs, and the applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/pollardj_051210.pdf


STATE OF TENNESSEE v. JASON LEE WHITE

Court: TCCA

Attorneys:

Lance Miller, Clarksville, Tennessee, for the appellant, Jason Lee White.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; John W. Carney, District Attorney General; and Robert Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Jason Lee White, was convicted by a jury of one count of burglary, one count of aggravated robbery, and one count of especially aggravated kidnapping. In this direct appeal, he contends that the trial court erred: (1) in denying his motion to set aside his conviction for especially aggravated kidnapping; and (2) in upholding the State's use of a peremptory challenge under Batson v. Kentucky, 476 U.S. 79 (1986). After our review, we reverse and dismiss the Defendant's especially aggravated kidnapping conviction. In all other respects, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2010/whitej_051210.pdf


Medication Aides Certified

TN Attorney General Opinions

Date: 2010-05-12

Opinion Number: 10-65

http://www.tba2.org/tba_files/AG/2010/ag_10_65.pdf

TODAY'S NEWS

Flood Impact
Legislative News
Supreme Court Report
Upcoming
Passages

Flood Impact
Mass suits filed against insurance agents
Hundreds of flooded homeowners are suing their insurance agents, claiming they did not provide enough information about their insurance options. Many policy holders are finding out the hard way that their coverage does not include the contents of their homes. According to Nashville lawyer David Raybin, many insurance agents did not provide these details to clients. "There's too many people in a new situation for it to just be random chance," he said in remarks about insurance company culpability.
WSMV reported the news
Disaster legal services web cast draws 100+ lawyers
More than 100 lawyers registered to watch a web cast on providing legal services after a disaster, which was presented live today by the TBA Young Lawyers Division. One participant said the CLE helped her feel more comfortable and competent in responding to flood related questions. Another participant said the seminar was a "great and valuable course for those of us who wish to volunteer...time and legal services to assist with the flood disaster recovery efforts." The web cast is now archived and may be watched at any time for free. It provides one hour of CLE credit.
Watch it here
New FEMA centers open
The Federal Emergency Management Agency has opened four more disaster centers in the state. In addition to previously announced centers in Dyersburg and Millington, centers are now open in Cheatham County at the Pegram City Hall, in Davidson County at the 100 Oaks Mall, in Hickman County at the Centerville Community Church of Christ and in Williamson County at the Franklin City Hall. All centers are open from 7 a.m. to 7 p.m. daily.
See a more detailed list with addresses on FEMA's Web site
FEMA uses social media to provide information
FEMA is using social media as a way to provide information about its recovery efforts in Tennessee. Check out its new facebook page and updates from its Twitter account.

Miller & Martin deploys clean-up team
Attorneys with the law firm of Miller & Martin PLLC recently gathered with firm staff, friends and family to help with clean-up efforts following recent flooding in Nashville.
See photos from the effort at twitpic
Legislative News
Bredesen puts off veto decision on 'guns in bars' bill
The Associated Press reported today that Tennessee Gov. Phil Bredesen will wait to decide whether to veto a new bill that allows handgun permit holders to bring their weapons into bars and restaurants that serve alcohol. Bredesen vetoed a similar measure last year and the law ultimately was ruled unconstitutionally vague. Despite the changes, Bredesen did not seem persuaded, saying amendments have not made it any better.

Supreme Court Report
Nominee has thin 'paper trail'
Associated Press writer Mark Sherman says Supreme Court nominee Elena Kagan's public record is thinner than most earlier Supreme Court nominees and offers supporters and critics alike little assurance about how she would vote as a justice. Prevailing wisdom suggests that Kagan will vote the same way as Justice John Paul Stevens on most issues, but Sherman concludes this assessment is based more on Kagan's affiliation with two Democratic administrations than on her own record.
WRCB-TV Chattanooga has the AP article
Does lack of judicial experience matter?
In light of criticism that Elena Kagan, President Obama's nominee to the high court, has no prior experience on the bench, NPR reporter Nina Totenberg looks at whether prior judicial experience really matters. She argues that while today's court is composed of justices who all previously served on federal appeals courts, in historical terms, this is a new phenomenon. Walter Dellinger, a constitutional law professor and Supreme Court advocate, points out in the story that justices from across the ideological spectrum have risen to the job despite lack of prior court experience. Among those he mentions are Chief Justice John Marshall, Chief Justice Earl Warren, Chief Justice William Rehnquist and Justices Louis Brandeis and Felix Frankfurter.
Read the piece here
Upcoming
Project SALUTE needs Tennessee volunteers
Project SALUTE will conduct free veterans legal clinics in northeast Tennessee on June 18 and 19. While the group does not need attorneys on hand those days, it does need volunteers to handle cases that come out of the clinic. Web-based training on how to appeal a Veterans' Administration decision will be offered on June 3 and 4. For more information contact Alesa G. Silver at silverag@udmercy.edu
Download an agenda for the webinar
Passages
Memphis attorney dies
Memphis attorney James Minor Tait Jr. died May 8 at the age of 83. Tait earned his law degree from the Southern University College of Law in 1954. After graduation, he was appointed assistant district attorney for the 15th Judicial Circuit where he served for almost nine years. Tait left the DA's office in 1964 to join the law firm of McDonald, Kuhn, McDonald, Crenshaw and Smith (now McDonald Kuhn). In 1968, he was appointed part-time assistant Shelby County attorney where he served until his retirement in 1997. Tait served on the board of directors of the Memphis and Shelby County Bar associations and the Tennessee Defense Lawyers Association. He was president of the latter group from 1989 to 1990. In lieu of flowers, the family suggests that memorials be sent to the King's Daughter's and Son's Home.


 
 
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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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