Kagan nomination approved by Senate Judiciary Committee

Today a polarized Senate Judiciary Committee approved Elena Kagan to be the fourth female justice on the U.S. Supreme Court. Just one Republican joined Democrats to approve Kagan's nomination and send it to the full Senate, where she's expected to win confirmation within weeks. Sen. Lindsey Graham, R-S.C., broke with his party to cast the sole GOP "yes" vote on President Obama's nominee to succeed retiring Justice John Paul Stevens. The vote was 13-6.

Find out more about the vote from the Associated Press

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Court: TCA


Mark E. Brown, Knoxville, Tennessee, for the appellant, John Tabor and Tabor Construction, Inc.

Julie Cochran Fuller, Knoxville, Tennessee, for the appellees, Berkeley Park Homeowners Association, Inc., and Southern Traditions Partners, LLC.


Berkeley Park Homeowners Association, Inc., and Southern Traditions Partners, LLC (collectively referred to as "Berkeley Park") filed a motion for contempt against John Tabor and Tabor Construction, Inc. (collectively called "Tabor"), seeking to enforce a 20061 mediated settlement agreement governing the construction of a house being built by Tabor in Southern Traditions' development known as Berkeley Park Subdivision. Berkeley Park alleged that Tabor was in violation of numerous provisions of the mediated agreement, while Tabor contended that the parties had reached another agreement in 2007 that superseded the earlier agreement. Following a bench trial, the court held that there was no superseding agreement and that the evidence clearly and convincingly showed Tabor had violated the provisions of the mediated agreement. The court entered judgment in favor of Berkeley Park, awarding it damages of $34,042.11, including attorney's fees. Tabor appeals. We affirm.



Court: TCCA


Douglas A. Trant, Knoxville, Tennessee, for the appellant, Jevon Bryant.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Michael McCusker and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.


The petitioner, Jevon Bryant, appeals the denial of post-conviction relief. On appeal, he argues that: counsel was ineffective; the trial court erred in denying his request to wear his wedding ring at trial; the prosecution made improper comments during voir dire; his prior felony should not have been stipulated for admission; his relatives were improperly banned from the courtroom; and his right to the Confrontation Clause was violated. After careful review, we affirm the judgment from the post-conviction court.



Court: TCCA


Michael F. McClellan Carrico, Gate City, Virginia, for the appellant, Terry Lynn Byington.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Mark Fulks, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, the State of Tennessee.


Defendant, Terry Byington, was convicted of DUI, fourth offense, and was sentenced to three years in the Department of Correction as a Range II, multiple offender for this Class E felony, with a minimum of 150 days to be served day for day. On direct appeal, this Court held that he waived all issues presented except for the sentencing issue and a challenge of the sufficiency of the evidence, because the motion for new trial was not timely filed, and was therefor a nullify. See State v. Terry Lynn Byington, No. E2003-02316-CCA-R3-CD, 2004 WL 1606993, (Tenn. Crim. App. at Knoxville, July 19, 1004) perm. app. denied. (Tenn. Dec. 28, 2004). Subsequently, Defendant filed a petition for post-conviction relief and, pursuant to T.C.A. section 40-30-113, a delayed appeal was ordered by the post-conviction court. Upon delayed appeal, this Court dismissed the appeal because the order denying the motion for new trial was not in the record. The Supreme Court granted Defendant's application for permission to appeal, and subsequently vacated this Court's judgment and remanded the case to this Court "for review of the issues raised by [Defendant] in his motion for new trial." See State v. Byington, 284 S.W.3d 220, 227 (Tenn. 2009). After review of the issues presented, the briefs of the parties, and the entire record, we affirm the judgment of the trial court.



Court: TCCA


Jerry P. Black, Jr., Knoxville, Tennessee, for the appellant, Joseph Daniel Drew.

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

Judge: WITT

The defendant, Joseph Daniel Drew, appeals the Knox County Criminal Court's denial of probation on his 12-year effective sentence for guilty-pleaded convictions of robbery and attempted aggravated robbery. Discerning no reversible error, we affirm the judgments of the trial court.



Court: TCCA


Bud Sharp, McMinnville, Tennessee, for the appellant, Deonray J. Fisk.

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


Following a jury trial, Defendant, Deonray J. Fisk, was found guilty of three counts of attempted second degree murder, a Class B felony, three counts of aggravated assault, a Class C felony, and one count of unlawful possession of a handgun by a convicted felon, a Class E felony. The Trial Court sentenced Defendant as a Range I, standard offender, to eleven years for each attempted murder conviction, six years for each aggravated assault conviction, and two years for the weapons conviction. The trial court ordered Defendant to serve his sentences for attempted murder consecutively. The trial court ordered Defendant to serve his sentences for aggravated assault concurrently with each other and with Defendant's sentence for attempted second degree murder in count one of the indictment. The trial court ordered Defendant to serve his sentence for his weapons conviction consecutively with his conviction for attempted second degree murder in count one and concurrently with the other sentences for an effective sentence of thirty-five years. On appeal, Defendant argues that the trial court erred in determining the length and manner of service of his sentences. After a thorough review, we affirm the trial court's judgments. We conclude, however, that double jeopardy principles require that Defendant's aggravated assault convictions in counts 4, 5, and 6 of the indictment be merged with Defendant's convictions of attempted second degree murder in counts 1, 2, and 3, and we remand for the entry of corrected judgments consistent with this opinion. Defendant's effective sentence of thirty-five years remains unchanged.



Court: TCCA


Paul J. Bruno, Nashville, Tennessee, for the appellant, Sarrah Hewlett.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; John Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, the State of Tennessee.


Petitioner, Sarrah Hewlett, appeals the trial court's dismissal of her petition for post-conviction relief because it is time-barred. On appeal, Petitioner argues that due process considerations require the tolling of the one-year statute of limitations for filing a post- conviction petition. After a thorough review, we affirm the judgment of the trial court.



Court: TCCA


Hugo Mendez, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Lauren Fowler, Assistant District Attorney General, for the appellee, Hugo Mendez.


Pursuant to a negotiated plea agreement, the defendant, Hugo Mendez, pled guilty in 2007, to vehicular homicide by intoxication, a Class B felony, and to leaving the scene of an accident causing death, a Class E felony. The agreement provided for sentences of eight years and one year for the respective convictions, to be served concurrently in the Department of Correction. Nonetheless, the record indicates that the defendant remained incarcerated in the Shelby County Jail. Approximately two years later, the defendant filed a pro se petition requesting that he be allowed to serve the balance of the sentence on probation. The trial court issued an order summarily denying the petition without conducting a hearing. On appeal, the defendant contends that the court abused its discretion in denying his request for probation and also challenges findings which he alleges were set forth in the order. Following review of the record before us, we affirm the denial of the petition.



Court: TCCA


Jonathan Davis, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Matthew Bryant Haskell, Assistant Attorney General, for the Appellee, State of Tennessee.


The Petitioner, Jonathan Davis, appeals from the Bledsoe County Circuit Court's summary dismissal of his petition for habeas corpus relief. The habeas corpus court found that the Petitioner failed to state a cognizable claim for relief. Upon review, we affirm the judgment of the habeas corpus court.



Court: TCCA


Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Ladonte Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Tom Thurman, Deputy District Attorney General, for the appellee, the State of Tennessee.


Petitioner, Ladonte Smith, was convicted by a Davidson County jury of one count of first degree murder and two counts of attempted first degree murder stemming from a drive-by shooting that occurred at a market. State v. Ladonte Montez Smith, M1997-00087-CCA-R3- CD, 1999 WL 1210813, at *1-5 (Tenn. Crim. App., at Nashville, Dec. 17, 1999), perm. app. denied, (Tenn. Oct. 9, 2000). He received a sentence of life with the possibility of parole for the first degree murder conviction and seventeen years for each conviction for attempted first degree murder, to run consecutively to the life sentence. Petitioner subsequently filed a timely pro se petition for post-conviction relief, alleging, among other things, ineffective assistance of counsel. The post-conviction court held a hearing on the petition, after which the petition was denied. Petitioner now appeals. After a thorough review, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.



Legal News
Election 2010
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TBA Member Services

Legal News
Legal aid groups gets grants to help flood victims
The Community Foundation dispensed $726,000 in grants last week to nine local organizations providing flood relief and restoration services to victims of the May 2 flood. Recipients included state and local Legal Aid Societies, which received $75,000 to provide direct legal assistance to flood survivors. The foundation has awarded a total of $2.1 million since the disaster.
Learn more from the Tennessean
Anti-notario info given to Hispanics at festival
Members of the TBA Immigration Section and the TBA UPL Committee participated in the 2nd Annual El Protector Festival on July 18 at the Metro Soccer Field in Nashville. The event brought together the Metro Police Department and the Hispanic Community, as well as churches, social services groups and community-based organizations. The day featured food, music and dance; health and safety information; and crime prevention tips. Section and committee members handed out anti-notario flyers, which provided information about the difference between lawyers and notarios and the immigration status risks of using notarios.
See pictures of the event on TBAConnect
Memphis Bar Foundation grant applications due July 30
The Memphis Bar Foundation, the charitable arm of the Memphis Bar Association, is seeking grant applications from 501(c)(3) organizations for law-related programs or projects. The deadline to apply is 4:30 p.m. on July 30. The MBF funds programs and projects that further its objectives and purposes, which are to advocate and support public awareness of the legal profession; promote social justice; promote legal education; and recognize professionalism among members of the bar.
Learn more from the Memphis Bar Foundation
Roane County criminal docket overruns its space and time
Roane County General Sessions Court judges Dennis Humphrey and Jeff Wicks have criminal dockets on Mondays that are so long that recently they didn't recess for the day until around 8 p.m. Humphrey explains that the courthouse is very busy and they will be lenient on people who show up late if it's because of crowding in the courthouse. "If there's a line out there or if they had to park some distance away, we consider that."
The Roane County News has the story
Williamson Bar elects officers
The Williamson County Bar Association has elected new officers. They are: President Kim Helper, District Attorney General; President-elect Charles Morton IV with Puryear, Newman & Morton PLLC; Secretary Craig Brent, a solo practitioner; and Treasurer Elaine Beeler, Williamson County Clerk and Master. Helper takes over from past president Jack Welch Jr. with Sidwell Barrett & Welch PC. All are from Franklin.

Only 'official' chaplains allowed in death chamber
Under Tennessee law, only official chaplains employed by the state are allowed in the death chamber during an execution. Most states have similar rules, but Maryland may loosen its policy by allowing an inmate to have a spiritual adviser who is not a state employee inside the chamber during an execution. Corrections officials say they are trying to balance security with religious freedom during a condemned inmate's final moments.
The Tennessean reports
Memphis council considers anti-discrimination law for sexual orientation
An ordinance to ban discrimination based on sexual orientation began moving its way through the Memphis City Council this morning. The measure was sent to the full council without a recommendation from the Personnel Committee because members wanted to hear whether the Wharton administration supports the change. Three readings are required before the ordinance can become law. A final vote will happen in four to six weeks.
The Commercial Appeal reports
Bill protects U.S. writers from foreign libel rulings
The U.S. Senate on Monday unanimously passed a bill, S. 3518, to protect American authors, journalists and publishers from foreign libel judgments that undermine the United States' guarantee of free speech. The voice vote sent the bill to the House for final action. The House has already passed its own version of the bill, H.R. 2765, by voice vote.
The First Amendment Center has this AP story
Election 2010
Voter challenged for 'crossing over' in primary, panel agrees
Recently a poll watcher in East Tennessee challenged Mickey Eldridge's right to vote when she requested a Republican primary ballot. The poll watcher knew Eldridge was a Democrat and said she could not cross over. Today a three-judge political panel denied Eldridge the chance to cast her vote in the Republican primary. The "voter challenge" falls within a little known Tennessee law. Election officials say they have a list of rules they have to follow in order for a challenge to occur, one of which permits a challenge when the voter "is not a bona fide member of political party in whose primary he seeks to vote." However, the rule also states, "it would be extremely rare to deny a citizen the right to vote in a primary he wished to vote in because Tennessee has no registration by party."
WBIR reports
Career Opportunities
Knox County seeks deputy law director
The Knox County Law Director's Office is seeking a chief deputy law director to represent Knox County commissioners, constitutional officers and staff in a wide range of state and federal litigation and transactional matters. The position also is responsible for training and supervising attorney and support staff. Interested candidates should apply by July 30. Learn more about the position on JobLink.

Download the job description and application instructions
TBA Member Services
New resources available for TBA members
The TBA Law Office Technology & Management Section has purchased a collection of resource materials to be added to the TBA Lending Library for use by all members. Those materials include:

-- Letters for Litigators: Essential Communications for Opposing Counsel, Witnesses, Clients and Others
-- Letters for Lawyers: Essential Communications for Clients, Prospects and Others, Second Edition
-- Risk Management: Survival Tools for Law Firms, Second Edition
-- The 2009 Solo & Small Firm Legal Technology Guide: Critical Decisions Made Simple
-- The Lawyer's Guide to Adobe Acrobat, Third Edition (Covers Adobe Acrobat 8.0)
-- The Lawyer's Guide to Collaboration Tools & Technologies: Smart Ways to Work Together + CD-ROM Supplement
-- The Lawyer's Guide to Governing Your Firm
-- The Lawyer's Guide to Marketing on the Internet, Third Edition
-- The Lawyer's Guide to Microsoft Excel 2007
-- The Lawyer's Guide to Microsoft Outlook 2007
-- The Lawyer's Guide to Practice Management Systems Software, Second Edition

Books may be borrowed for up to two weeks. To request a book, please email Sharon Ballinger or call her at (615) 383-7421.

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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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