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Friday, January 21, 2011

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Court asked to move client protection fund into BPR

A petition filed with the Tennessee Supreme Court Thursday asks to move responsibility of the agency that handles the Tennessee Lawyers' Fund for Client Protection from the Commission on Continuing Legal Education and into the Board of Professional Responsibility. The action would amend Section 6.01(e) of Supreme Court Rule 25.

Download the proposed amendment

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.

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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.

STATE OF TENNESSEE v. UNGANDUA ANDRE INGRAM

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Senior Counsel, Nashville, Tennessee; Charles Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney General; William Bottoms, Assistant District Attorney General, for the appellant, State of Tennessee.

Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellee, Ungandua Andre Ingram.

Judge: LEE

Police officers had probable cause to arrest the defendant on drug charges based on information from a confidential informant and their surveillance of an illegal drug transaction. Shortly thereafter, when they observed the defendant commit a minor traffic offense, they pulled in behind him at a gasoline station and turned on their blue lights. The officers searched the defendant and told him that they had grounds to arrest him for drug distribution if they "wanted to." The search of his person produced cash from the drug transaction. The police then searched the defendant's residence based on his consent, although the defendant disputed that he consented to the search. The search produced, among other things, cocaine and marijuana. The defendant was advised of his Miranda rights, but was not taken into custody. About four months later, the defendant was indicted on ten counts of drug-related charges. The defendant moved to suppress the fruits of the search of his person and his residence. After the trial court denied the motion to suppress, the defendant was convicted of selling cocaine, conspiring to sell cocaine, possession of cocaine with intent to sell, possession of marijuana and possession of unlawful drug paraphernalia. On review, we hold that the defendant was not under arrest at the time of the search of his person, and therefore the warrantless search was invalid. The warrantless search of his residence, however, was proper because the defendant consented to the search and the consent was not the product of the previous illegal search of the defendant's person. The defendant's convictions are reversed in part and affirmed in part.

http://www.tba2.org/tba_files/TSC/2011/ingramu_012111.pdf

G. THOMAS NEBEL v. BOARD OF PROFESSIONAL RESPONSIBILITY

Court: TSC

Attorneys:

The Board of Professional Responsibility filed a petition for discipline against G. Thomas Nebel. The hearing panel found that Mr. Nebel should be disbarred, disgorge unearned fees, and pay restitution to clients. In addition, the hearing panel set forth requirements for Mr. Nebel to be eligible for reinstatement of his license. Mr. Nebel applied to the chancery court in Davidson County for judicial review of the hearing panel decision. The chancery court entered an order on January 6, 2010, affirming Mr. Nebel's disbarment but reversing the hearing panel's order of restitution of amounts to clients where no disciplinary complaint had been made.

http://www.tba2.org/tba_files/TSC/2011/nevelg_012111.pdf

IN RE CONSERVATORSHIP OF KARUBAH CARNAHAN

Court: TCA

Attorneys:

John P. Konvalinka and Katherine Higgason Lentz, Chattanooga, Tennessee, for the appellant, Helen Exum Carnahan.

C. Crews Townsend, William A. Harris, and A. Chantelle Roberson, Chattanooga, Tennessee, for the appellee, Misty L. Carnahan Guerry.

Judge: MCCLARTY

In this conservatorship case, a daughter filed a petition asking the court to appoint her as the conservator of her father, who had experienced cognitive decline after a stroke and required full-time care in an inpatient facility. The father's spouse protested the appointment of the daughter as the conservator and requested that a neutral third party be appointed instead. After a hearing, the trial court determined that the daughter was the appropriate person to serve as conservator. The spouse appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2011/carnahank_012111.pdf

DAN KENNETH KELLY v. SONYA FRANCES KELLY

Court: TCA

Attorneys:

Jack Robinson Dodson, III, Nashville, Tennessee, for the appellant, Dan Kenneth Kelly.

David Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellee, Sonya Frances Kelly.

Judge: BENNETT

In this post-divorce dispute, the trial court denied the petitions of both parents to modify the parenting time but granted the mother's petition to modify child support. We affirm the trial court's decision with respect to parenting time but reverse and remand for a proper determination regarding modification of child support.

http://www.tba2.org/tba_files/TCA/2011/kellyd_012111.pdf

IN RE SPENCER E.

Court: TCA

Attorneys:

Connie Reguli, Brentwood, Tennessee, for the appellant, Christopher E.

James Timothy Street, Franklin, Tennessee, for the appellee, Heather W.

Judge: BENNETT

Father filed a petition to relocate with the parties' minor child, and the trial court denied his petition. On appeal, Father argues that the trial court made evidentiary and procedural errors necessitating vacating its decision, that the trial court's decision denying his petition to relocate was erroneous, and that the trial court erred in declining to award him his attorney fees in defending against Mother's petition for dependency and neglect. We affirm the decision of the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2011/spencere_012111.pdf

STATE OF TENNESSEE v. LAWRENCE J. BROZIK

Court: TCCA

Attorneys:

Tina L. Sloan, Assistant District Public Defender (on appeal); Paul Crouch, Office of the Public Defender (at trial), LaFollette, Tennessee, for the appellant, Lawrence J. Brozik.

Robert E. Cooper, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William Paul Phillips, District Attorney General; and John G. Galloway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Lawrence J. Brozik, was charged with ten counts of especially aggravated sexual exploitation of a minor, a Class B felony. See Tenn. Code Ann. section 39-17-1005(c) (2003). Following a jury trial, the Defendant was convicted of ten counts of facilitation of especially aggravated sexual exploitation of a minor, a Class C felony. See Tenn. Code Ann. section 39-11-403(b) (2003). The trial court sentenced the Defendant as a Range I, standard offender to five years for each count and ordered that five of his sentences be served consecutively, for a total effective sentence of twenty-five years. In this direct appeal, he contends that: (1) the State presented insufficient evidence to convict him; (2) the State failed to disclose promises made to, or agreements with, the minor victim's husband; (3) the trial court erred when it found that he was the leader in the commission of an offense involving two or more criminal actors; (4) the disparity between the Defendant's sentence and the minor victim's husband's sentence violated the Tennessee Criminal Sentencing Reform Act of 1989; (5) the trial court erred by imposing consecutive sentences; and (6) the trial court erred when it found that evidence presented at the motion for new trial hearing was not sufficient to support a new trial. After our review, we affirm the Defendant's convictions but modify his sentences to be served concurrently.

http://www.tba2.org/tba_files/TCCA/2011/brozikl_012111.pdf

DANIEL BUCK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Daniel Buck.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; John W. Carney, District Attorney General; and Dent Morris, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Petitioner, Daniel Buck, was convicted of aggravated rape, a Class A felony, and aggravated sexual battery, a Class B felony. See Tenn. Code Ann. sections 39-13-502(b), -504(b). This Court affirmed his convictions on direct appeal. See State v. Daniel Buck, No. M2005-02818-CCA-R3-CD, 2006 WL 3831390 (Tenn. Crim. App., Nashville, Dec. 12, 2006), perm. to appeal denied, (Tenn. Apr. 23, 2007). The Petitioner filed a timely petition for post- conviction relief, claiming that his trial counsel was ineffective for failing to preserve the issue that his convictions were barred by the statute of limitations. The post-conviction court denied relief, and this appeal followed. After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2011/buckd_012111.pdf

STATE OF TENNESSEE v. JASON MICHAEL FINT

Court: TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee (on appeal); and Charles G. Wright, Jr., Chattanooga, Tennessee (at trial), for the appellant, Jason Michael Fint.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; R. Steven Bebb, District Attorney General; and Stephen Hatchett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Bradley County Criminal Court jury convicted the defendant, Jason Michael Fint, of one count of theft of property valued at $1,000 or more but less than $10,000. Finding that the defendant qualified as a career offender, the trial court imposed the maximum Class D felony sentence of 12 years' incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence and contends that the sentence is excessive. Discerning no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/fintj_012111.pdf

STATE OF TENNESSEE v. JOHN C. HOWARD

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, (on appeal); Edward Dewerff and Sharon Massey, Clarksville, Tennessee, (at trial), for the appellant, John C. Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Robert J. Nash, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Appellant, John C. Howard, was indicted for three counts of aggravated child abuse. Appellant subsequently pled guilty to two counts of aggravated assault in an open, best interest plea. After a sentencing hearing, a five-year split confinement sentence was imposed. The trial court ordered Appellant to serve one hundred twenty days in incarceration for each offense, followed by five years of probation, and ordered the sentences to be served concurrently. The trial court further denied judicial diversion. Appellant seeks a review of the trial court's denial of diversion. Because we determine that the trial court did not abuse its discretion in denying judicial diversion, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/howardj_012111.pdf

STATE OF TENNESSEE v. TIMOTHY WASHINGTON LYONS AND ANTONIO LAMONT SCALES

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Timothy Washington Lyons.

Colin B. Calhoun, Nashville, Tennessee, for the appellant, Antonio Lamont Scales.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Hugh Ammerman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Davidson County Criminal Court jury convicted the defendants, Timothy Washington Lyons and Antonio Lamont Scales, of the attempted second degree murder of Teresa Crenshaw and the reckless aggravated assault of Quanita Robinson. The trial court sentenced each defendant to 22 years' incarceration. In this appeal, both defendants challenge the sufficiency of the convicting evidence, the trial court's failure to provide the "missing witness" instruction, and the propriety of the sentences imposed. Discerning no reversible error, we affirm the convictions. Because the trial court mistakenly believed it was imposing sentences for Class C felony aggravated assault rather than Class D felony aggravated assault, utilized improper enhancement factors, and imposed consecutive sentences without making required findings of fact, the sentences imposed are vacated, and the case is remanded for resentencing. In addition, new judgment forms for the aggravated assault convictions must be entered to reflect that the defendants were convicted of Class D felony aggravated assault.

http://www.tba2.org/tba_files/TCCA/2011/lyonst_012111.pdf

DOUGLAS MARSHALL MATHIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Douglas Marshall Mathis, Nashville, Tennessee, pro se.

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

Judge: OGLE

The Petitioner, Douglass Marshall Mathis, filed in the Davidson County Criminal Court a petition for a writ of habeas corpus, seeking relief from his conviction for first degree murder and accompanying life sentence. The habeas corpus court dismissed the petition, finding that the Petitioner's conviction and sentence were not void. Upon review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2011/mathisd_012111.pdf

STATE OF TENNESSEE v. WENDELL WAYNE SWEETON

Court: TCCA

Attorneys:

C. Parke Masterson, Jr., Chattanooga, Tennessee, for the appellant, Wendell Wayne Sweeton.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William H. Cox, District Attorney General; and Cameron Williams and Brian Chapuran, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Wendell Wayne Sweeton, was convicted by a jury of driving under the influence (DUI), third offense. The trial court imposed a sentence of eleven months and twenty-nine days, with 150 days to be served in confinement and the remainder to be served on probation. On appeal, the appellant challenges the trial court's rulings regarding purported discovery and Brady violations, the denial of appellant's suppression motion, and the admissibility of the appellant's prior DUI convictions. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/sweetonw_012111.pdf

STATE OF TENNESSEE v. WADE TYLER

Court: TCCA

Attorneys:

Jerry Scott, Murfreesboro, Tennessee, for the appellant, Wade Tyler.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, Jr. , District Attorney General, and Laural Hememway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Wade Tyler, was indicted by the Rutherford County Grand Jury for one count of rape, one count of incest, and one count of statutory rape by an authority figure. Appellant was convicted by a jury and sentenced to eight years for the rape conviction, four years for the incest conviction, and four years for the statutory rape by an authority figure conviction. The sentences for rape and incest were ordered to be served concurrently. The sentence for statutory rape by an authority figure was ordered to be served consecutively to the sentence for rape, for a total effective sentence of twelve years. After the denial of a motion for new trial, this appeal ensued. On appeal, the following issues are presented for our review: (1) whether the evidence is sufficient to support the convictions; (2) whether the trial court erred by refusing to allow cross-examination of the victim about specific instances of conduct; (3) whether the trial court improperly imposed consecutive sentencing; and (4) whether the indictment was defective. After a review of the record and applicable authorities, we determine that the evidence was sufficient to support the convictions and that the trial court properly ordered consecutive sentencing. Further, we determine that the trial court properly refused to allow cross-examination of the victim about specific instances of conduct and that the indictment was sufficient to inform Appellant of the charges against him. However, because we have identified several discrepancies in the record, we remand the matter for correction of the judgment form for statutory rape by an authority figure. Accordingly, the judgments of the trial court are affirmed and the matter is remanded.

http://www.tba2.org/tba_files/TCCA/2011/tylerw_012111.pdf

Authority of City Manager and Commissioners under City Manager-Commission Charter

TN Attorney General Opinions

Date: 2011-01-21

Opinion Number: 11-11

http://www.tba2.org/tba_files/AG/2011/ag_11_11.pdf

TODAY'S NEWS

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Tenn. Supreme Court

Year's first 5 cases reviewed

The Raybin-Perky Hot List reviews the first five cases granted review by the Tennessee Supreme Court this year. The two civil cases include a split decision on whether an expert's hearsay opinion constituted "facts or data," and an interpretation of the statutory requirement of written rejection or selection of uninsured motorist coverage. The three criminal appeals involve two evidentiary sufficiency cases and whether Fifth Amendment protections apply in post-conviction proceedings.

Read the Hot List

Legal News

20-year grand jury foreman let go, fires back at judges

The foreman of the Hamilton County Grand Jury has essentially been fired, when she was not reappointed by Criminal Court Judge Barry Steelman. Marsha Crabtree said the move came because she criticized the court. The three judges responded on Thursday, saying they appreciated her service but said she had become "increasingly negative and lacked objectivity." Crabtree also questioned whether the new Grand Jury foreman, Pastor Ruth Thomas, who is "a friend of one of judges ... will dare to criticize the criminal justice system in Hamilton County."

Chattanoogan.com tells you more

West's lawyer: 'excruciating pain' possible with injection

Representing condemned killer Stephen Michael West, federal public defender Stephen Kissinger argued in court today that prison officials cannot ensure West won't suffer excruciating pain during his execution merely by gently shaking him to check that he's unconscious before injecting poison into his veins. But Mark Hudson, senior counsel with the state attorney general's office, said that didn't matter. "The Eighth Amendment does not require the state to eliminate all risk," he told Davidson County Chancellor Claudia Bonnyman. The lawyers for the state were asking the chancellor to give the state authority to resume executions, arguing that prison officials have a new death penalty procedure in place. Bonnyman said she would rule Feb. 16.

The City Paper has more

Cook, Sobieski named 'Quest Scholars'

Joseph G. Cook and John L. Sobieski Jr., both professors at the University of Tennessee College of Law, were selected as "Quest Scholars, which highlights the work of a faculty member at UT Knoxville who is doing outstanding work. In December 2010, the most recent revision of their authoritative seven-volume treatise on civil rights law, Civil Rights Actions, was published. This marks the fiftieth release of this nationally recognized work, which according to the university, "is widely considered the most in-depth coverage of civil rights law."