Lawmakers call for more judicial oversight

State lawmakers gathered Monday for the first meeting of a committee created to study the Court of the Judiciary. The issues at stake include the closed deliberations of the court, use of private reprimands, the sealing of complaints that are dismissed and the makeup of the panel. Sen. Dewayne Bunch, R-Cleveland, chair of the committee, said legislators have done a poor job overseeing the court and that he is in favor of making more of the court's activities open to the public. He also wants to revise the court's makeup to include more trial court judges and strip the Tennessee Bar Association of its ability to appoint members. Under current law, the Supreme Court appoints 10 judges, the TBA appoints three lawyers and the governor and speakers of the state House and Senate each appoint one member of the public.

The Tennessean has more on the hearing

TODAY'S OPINIONS
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STATE OF TENNESSEE v. H.R. HESTER

Court: TSC

Attorneys:

Rich Heinsman and Lee Davis, Chattanooga, Tennessee, for the appellant, H.R. Hester.

Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Senior Counsel; and James E. Gaylord, Assistant Attorney General; R. Steven Bebb (on appeal) and Jerry N. Estes (at trial), District Attorneys General; and William W. Reedy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: KOCH

This appeal involves a defendant who bound up two victims, doused them with kerosene, and then set them on fire because one of the victims had refused to loan him ten dollars to buy beer. One of the victims lost his life in the ensuing fire. A McMinn County grand jury indicted the defendant for first degree murder, attempted first degree murder, and aggravated arson. A jury found the defendant guilty on all counts. During the sentencing phase of the trial, the jury, finding the existence of the aggravating circumstances in Tenn. Code Ann. section 39-13-204(i)(5) and (14) (Supp. 1999), sentenced the defendant to death for the murder of the victim who died in the fire. Thereafter, the trial court sentenced the defendant to consecutive sentences of twenty-five years for attempted first degree murder and twenty years for aggravated arson. The Court of Criminal Appeals affirmed the defendant's convictions but reduced his twenty-five year sentence for attempted first degree murder to twenty years because the trial court had considered improper enhancing factors. The Court of Criminal Appeals also determined that the trial court had erred by excluding mitigating evidence offered by the defendant during the sentencing phase of the trial but that this error was harmless. After conducting its own comparative proportionality review, the Court of Criminal Appeals concluded that the defendant's sentence of death was proportionate to punishments imposed in similar cases. State v. Hester, No. E2006-01904-CCA-R3-DD, 2009 WL 275760 (Tenn. Crim. App. Feb. 5, 2009).

We hold as follows: (1) the manner in which the district attorney general gave notice of the State's intention to pursue the death penalty was not improper; (2) the defendant was not denied his right of self-representation; (3) the trial court did not err by denying the defendant's request for a continuance filed eight days before the trial; (4) the defendant failed to establish a prima facie case that the process used to select the jury venire deprived him of his right to select a jury from a fair cross-section of the community; (5) the defendant failed to make the necessary pretrial objections to raise an argument that the jury selection procedures violated Tenn. Code Ann. section 22-2-304(e) (1994) and has failed to demonstrate any prejudice that he suffered from any violations thereof; (6) the trial court did not err by denying the defendant's request to retain an expert statistician; (7) even assuming two of McMinn County's jury commissioners were not statutorily qualified for their positions, Mr. Hester suffered no resulting prejudice; (8) the trial court did not commit reversible error with regard to its decisions relating to the admission or exclusion of evidence; (9) the trial court did not improperly comment on the evidence; (10) the trial court's instruction on reasonable doubt was not erroneous; (11) the trial court did not err when it replaced a juror during the sentencing phase of the trial; (12) the record contains sufficient evidence of premeditation; (13) the defendant's due process rights were not infringed by the denial of compulsory process, the trial judge's failure to recuse himself sua sponte, or the manner in which the trial court considered his motion for new trial; (14) the defendant is not entitled to a reversal of his conviction and sentence because of the cumulative effect of errors during the entire proceeding; and (15) the defendant's multiple challenges to Tennessee's death penalty statutes and the procedures and the protocol for carrying out the death penalty are without merit.

Finally, in accordance with our obligation under Tenn. Code Ann. section 39-13-206 (2006), we have thoroughly reviewed the record and have determined: (1) that the defendant's sentence of death was not imposed in an arbitrary fashion; (2) that the evidence fully supports the jury's finding of the existence of the aggravating circumstances in Tenn. Code Ann. section 39-13- 204(i)(5) and (14); (3) that the evidence supports the jury's finding that these aggravating circumstances outweigh the mitigating circumstances presented by the defendant; and (4) that the defendant's death sentence, taking into consideration the nature of the offense and the defendant himself, is neither excessive nor disproportionate to the penalty imposed in similar cases. We have also independently determined that the defendant should receive two twenty- year sentences for his convictions for attempted first degree murder and aggravated arson and that these sentences should be served consecutively with each other and with the defendant's death sentence. In all other respects, the judgment of the Court of Criminal Appeals, as modified by this opinion, is affirmed.

http://www.tba2.org/tba_files/TSC/2010/hesterh_100510.pdf


LARRY H. COLEMAN v. MATTHEW KISBER, ET AL.
With Concurring Opinion


Court: TCA

Attorneys:

Stephen A. Riley and James N. Bowen, II, Nashville, Tennessee, for the appellant, Larry H. Coleman.

Robert E. Cooper, Jr., Attorney General and Reporter; Janet M. Kleinfelter, Deputy Attorney General; Joe R. Shirley, Assistant Attorney General; Virginia Barham, Assistant Attorney General for appellees, Matthew Kisber and Reagan Farr.

Judge: STAFFORD

This case involves a petition for access to certain documents pursuant to the Tennessee Public Records Act, Tenn. Code Ann. section 10-7-101 et seq. The Appellees asserted in the trial court, and on appeal, that the documents are confidential and privileged pursuant to the tax information and tax administration information exceptions found in Tenn. Code Ann. section 67-1-1702; pursuant to the "ECD exception" provided in Tenn. Code Ann. section 4-3-730(c); and also pursuant to the Deliberative Process Privilege. The trial court denied the Appellant's petition finding that the ECD exception applied and therefore, held that the documents at issue should remain confidential for five years. The trial court, however, found that the tax information and tax administration information exceptions did not apply and declined to apply a Deliberative Process Privilege. Appellant appealed the trial court's denial of his petition. On appeal, the Appellees assert that the trial court erred in not finding the tax information and tax administration information exceptions applicable and in not applying the Deliberative Process Privilege. After reviewing the record, including the withheld documents, we find that the trial court erred in not finding that the tax information and tax administration information exceptions, as provided in Tenn. Code Ann. section 67-1-1702, applied. Consequently, we affirm the trial court's denial of the Appellant's petition but for different reasoning.

http://www.tba2.org/tba_files/TCA/2010/colemanl_100510.pdf

KIRBY concurring
http://www.tba2.org/tba_files/TCA/2010/colemanl_CON_100510.pdf


LEWIS FRYER v. CONSERVATORSHIP OF MARY JO FRYER, ET AL.

Court: TCA

Attorneys:

John M. Higgason, Jr., Chattanooga, Tennessee, for the appellants, Treva Schlosshan and Travelers Casualty and Surety Bond.

Robert T. Davis, Chattanooga, Tennessee, for the appellee, Lewis Fryer.

Judge: MCCLARTY

This appeal involves a dispute regarding unpaid spousal support from Social Security benefits. Mr. Fryer filed a petition against numerous defendants, seeking spousal support owed to him from his deceased wife's Social Security benefits. Serving in the capacity of conservator, the decedent's daughter received her mother's monthly Social Security benefits. After a bench trial, the court determined that the conservator was liable to Mr. Fryer for the unpaid spousal support and entered a judgment against the conservator and Travelers Casualty and Surety Bond. Additionally, the trial court, sua sponte, applied the statute of limitations to reduce the amount of the award to Mr. Fryer. This appeal ensued. We affirm in part, reverse in part, and remand.

http://www.tba2.org/tba_files/TCA/2010/fryerl_100510.pdf


MICKEY JOE HALL v. KIMBERLIE KAE DAVENPORT HALL

Court: TCA

Attorneys:

J. Terry Holland, Knoxville, Tennessee, for the appellant, Kimberlie Kae Davenport Hall.

Nicholas D. Bunstine, Knoxville, Tennessee, for the appellee, Mickey Joe Hall.

Judge: SUSANO

This is a post-divorce child support modification case. Kimberlie Kae Davenport Hall ("Wife") filed a petition against her former husband, Mickey Joe Hall ("Husband"), seeking an increase in child support. Wife's petition, filed October 23, 2001, was followed by numerous hearings before special masters over the course of several years. The masters filed reports from each of the hearings, all of which were objected to by one or both of the parties. Interspersed among the masters' hearings, the trial court addressed various matters including the issue of child support. On January 23, 2009, the trial court held a hearing at which it ruled that the Income Shares formula for calculating child support under the Child Support Guidelines ("the Guidelines") as they existed at the time of the hearing, i.e., on January 23, 2009, was applicable to the calculation of support for the period from November 1, 2001, forward. The final order being appealed by Wife applied the formula and determined that Husband had overpaid his child support by $27,377.25. The court allowed Wife certain offsets which reduced the final judgment against Wife to $24,810.65. We affirm in part and vacate in part and remand for an upward modification of Husband's support due to a "hardship" imposed on Wife by the rigid application of the Income Shares formula.

http://www.tba2.org/tba_files/TCA/2010/hallm_100510.pdf


STATE OF TENNESSEE v. MITCHELL EADS

Court: TCCA

Attorneys:

Wesley D. Stone, Knoxville, Tennessee, for the appellant, Mitchell Eads.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William Paul Phillips, District Attorney General; and Jared Ralph Effler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Mitchell Darnell Eads, was sentenced as a persistent offender to fourteen years' confinement for possession of contraband in a penal facility, a Class C felony, and to six years' confinement for felony escape, a Class E felony, to be served concurrently to each other and consecutively to the Defendant's sentences for six prior convictions. On appeal, the Defendant contends that the trial court erred by ordering his sentences to be served consecutively to his prior sentences. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/eadsm_100510.pdf


STATE OF TENNESSEE v. LEON GOINS

Court: TCCA

Attorneys:

Danny H. Goodman, Jr., Tiptonville, Tennessee (on appeal), and James E. Lanier, District Public Defender, and Timothy J. Boxx, Assistant Public Defender (at trial), for the appellant, Leon Goins.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Leon Goins, was convicted by a Dyer County jury of possession of Schedule II cocaine with intent to sell or deliver, a Class B felony, and was sentenced to a term of twenty-five years in the Department of Correction. On appeal, the defendant has raised the single issue of sufficiency of the evidence. Following review of the record, we affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2010/goinsl_100510.pdf


JAMES IVY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James Ivy, Edgefield, South Carolina, pro se.

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

Judge: WITT

The petitioner, James Ivy, appeals from the denial of his petition for writ of error coram nobis. In this appeal, the petitioner contends that he is entitled to coram nobis relief on the basis that his 1996 guilty-pleaded conviction of burglary and his 2000 guilty-pleaded convictions of burglary and vandalism were not voluntarily entered. Because the writ of error coram nobis is not available to a guilty-pleading petitioner and because the petition in this case is time-barred, we affirm the judgment of the coram nobis court.

http://www.tba2.org/tba_files/TCCA/2010/ivyj_100510.pdf


MARIO JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James P. DeRossit, IV, Memphis, Tennessee, for the appellant, Mario Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tracye Jones, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Aggrieved of the Shelby County Criminal Court's denial of post-conviction relief from his convictions of first degree murder, especially aggravated robbery, and facilitation of first degree murder, the petitioner, Mario Johnson, appeals and claims that his convictions were infirm due to the ineffective assistance of trial counsel. We affirm, however, the order of the criminal court.

http://www.tba2.org/tba_files/TCCA/2010/johnsonm_100510.pdf


STATE OF TENNESSEE v. PAUL RICHARDSON

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the Defendant-Appellant, Paul Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William L. Gibbons, District Attorney General; Dean DeCandia and Paul Hagerman, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Paul Richardson, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, aggravated burglary, a Class C felony, aggravated assault, a Class C felony, and unlawful possession of a handgun by a convicted felon, a Class E felony. He was sentenced as a persistent offender to twenty-five years for the aggravated robbery conviction, ten years for the aggravated burglary conviction, and fourteen years for the aggravated assault conviction. He was also sentenced as a career offender to six years for the unlawful possession of a handgun by a convicted felon conviction. The court ordered the sentences for the aggravated robbery and aggravated assault convictions to be served consecutively and the remaining sentences to be served concurrently, for an effective sentence of thirty-nine years. In addition, all of the sentences in this case were ordered to be served consecutively to a prior federal sentence for unlawful possession of a handgun by a felon. On appeal, Richardson argues that (1) the trial court erred in charging the jury on aggravated assault by intentionally or knowingly causing another to reasonably fear imminent bodily injury when the indictment charged him with aggravated assault by knowingly causing bodily injury to another, and (2) the evidence was insufficient to support his convictions. Upon review, we affirm the judgments for aggravated robbery, aggravated burglary, and unlawful possession of a handgun by a convicted felon, but we reverse and vacate the judgment for aggravated assault and remand this matter for the purpose of allowing the trial court to restructure the manner of service of the remaining sentences to include consecutive sentences, if the court deems it to be appropriate.

http://www.tba2.org/tba_files/TCCA/2010/richardsonp_100510.pdf


TODAY'S NEWS

Celebrate Pro Bono
Tenn. Supreme Court
Election 2010
U.S. Supreme Court
Upcoming
Disciplinary Actions
Career Opportunities
TBA Member Services

Celebrate Pro Bono
Free CLE Wednesday trains lawyers for pro bono work
A free CLE in Memphis tomorrow, Oct. 6, will train lawyers on the types of cases they can expect to encounter during Saturday Legal Clinics in the city. The seminar, titled "How To Do Good When You Don't Have a Clue," is sponsored by the Memphis Bar Association Young Lawyers Division and Memphis Area Legal Services. It will take place at the Memphis Bar Association, 80 Monroe Avenue, Suite 220 from 1 to 4:30 p.m.
See a list of all Celebrate Pro Bono events taking place this month
Tenn. Supreme Court
Court upholds two death sentences
The Tennessee Supreme Court has upheld the death sentences of John Patrick Henretta and H.R. Hester. Henretta was convicted for the rape, murder, robbery and kidnapping of Frances Rose Crabtree of Bradley County. The court set his execution for Oct. 4, 2011. Hester was convicted for the first-degree murder of Charles Haney, the attempted first-degree murder of his ex-wife Dora Mae Hester and aggravated arson. The court set his execution for Oct. 11, 2011.
Read more from the court
Election 2010
Court date delayed for election case
The trial in the disputed Shelby County Aug. 5 election, which was set to begin Monday, was delayed until Wednesday because Democrat candidates claim the Republican-controlled Election Commission hasn't given them all the documents they need, including a list of voters. Chancellor Arnold Goldin directed the commission to produce the documents by 4:30 p.m. Monday. The judge also certified expert witnesses, rejecting two that the candidates wanted to call.
The Commercial Appeal reports
U.S. Supreme Court
Court won't hear Shelby strip club appeal
The U.S. Supreme Court announced this week that it won't hear an appeal from strip clubs protesting new regulations in Shelby County. The court's action will make it easier for the county to begin enforcing new rules that ban alcohol, require workers to obtain licenses and screen those with recent criminal records, not only at strip clubs, but at adult bookstores, escort services and other sex-related businesses. The rules previously were upheld by the federal trial court and the 6th Circuit Court of Appeals.
The Commercial Appeal has more
Upcoming
Swearing-in ceremony set for new TVA board member
Anderson County lawyer Neil McBride, general counsel and managing attorney for the Legal Aid Society in Oak Ridge, will be sworn in as a Tennessee Valley Authority (TVA) board member this Thursday, Oct. 7, at 9 a.m. at the West TVA Tower in Knoxville. The ceremony will include remarks by TVA President Tom Gilgore, board chair Dennis Bottorff and U.S. Sen. Lamar Alexander. U.S. District Court Judge Sandy Mattice will administer the oath of office. The event is open to the public.

Memphis Law to hold moot court competition
The University of Memphis Law School Moot Court Board is hosting its annual Advanced Moot Court Competition for second- and third-year students, and is seeking attorneys to volunteer as judges from Oct. 13 to early November. Rounds will be held in the late afternoon and early evening. This year's problem deals with two issues in labor law: the ministerial exception as it relates to employment discrimination claims, and back pay for undocumented aliens. Please contact LaChina Algers at (901) 678-2679 or lkalgers@memphis.edu to volunteer.
Email the board for more details
Disciplinary Actions
Two lawyers reinstated
Abram V. Conway II of Hartford, Ky. and Barry K. Maxwell of Madisonville were reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education. Conway was reinstated on Oct. 5, while Maxwell was reinstated on Sept. 29. They both were suspended on Sept. 7 for failing to meet 2009 CLE requirements.
View all attorneys suspended and reinstated for 2009 CLE violations
Career Opportunities
Memphis trial lawyer needed for defense firm
The Memphis insurance defense firm of Petkoff and Feigelson is seeking a trial attorney with two to five years' experience to handle aviation, automobile, trucking, products and casualty cases. Candidates should submit resume, references, transcripts and writing sample to Frances Anderson, Petkoff and Feigelson, 305 Washington Ave., Memphis 38103. Anderson may be contacted at (901) 523-1050 or fanderson@pf-law.net.
Read more on JobLink
Technology contract attorney sought in Nashville
Counsel On Call is seeking an attorney with significant technology contracts experience (five years or more) for an assignment expected to last a few months. Work will be done on-site in the office of a downtown Nashville law firm. Responsibilities include negotiating, drafting and reviewing various information technology contracts. Interested individuals should email resumes to Claudia Levy.
Get more details from JobLink
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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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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