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Tuesday, February 08, 2011

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John Adams' legacy is focus of Law Day contests

The 2011 Law Day Art and Essay Contest is now underway in Tennessee. Elementary and middle school students are invited to participate in the art contest, while high school students are encouraged to participate in the essay contest. This year's theme is "The Legacy of John Adams From Boston to Guantanamo," which focuses on the rule of law and the rights of the accused in the American judicial system. The contests are sponsored by the Tennessee Bar Association's Young Lawyers Division. Submissions are due on April 22. Cash prizes are available.

Learn more about the art contest

Learn more about the essay contest

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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ADVANCED PHOTOGRAPHIC SOLUTIONS, LLC v. NATIONAL STUDIOS, INC., ET AL.

Court: TCA

Attorneys:

Brian E. McGovern, and James A. Hajek, Chesterfield, Missouri admitted pro hac vice, and M. Andrew Pippenger, Chattanooga, Tennessee, for the appellants National Studios, Inc. a/k/a NSI Closeout, Inc., and Harold C. Lewis.

William J. Brown, Cleveland, Tennessee, for the appellee, Advanced Photographic Solutions, LLC.

Judge: SWINEY

Advanced Photographic Solutions, LLC ("Advanced") sued National Studios, Inc. a/k/a NSI Closeout, Inc. ("National") and Harold C. Lewis ("Lewis") alleging that National owed on an account that was in default. After a jury trial, the Trial Court entered its Final Judgment on the jury's verdict finding, inter alia, that Advanced had a contract with National, that National had breached the contract, that Lewis had a contract with Advanced providing his personal guaranty to pay National's debt, and that Lewis had breached his contract of personal guaranty. The Final Judgment awarded Advanced judgment against National and Lewis jointly and severally in the amount of $400,526.70, and judgment against Lewis solely in the amount of $54,806.00 as attorney's fees. National and Lewis appeal to this Court. The issues raised on appeal concern whether there was material evidence to support the jury's verdict. We find that the record contains material evidence to support the jury's verdict, and we affirm the Trial Court's Final Judgment.

http://www.tba2.org/tba_files/TCA/2011/advancedphotographic_020811.pdf

MELANY FAYE (ELLETT) MORRIS v. JOHNNY EDWARD MORRIS, II

Court: TCA

Attorneys:

Andrew S. Johnston, Minor, Johnston, Douglas, PLLC, Somerville, Tennessee, for Plaintiff/Appellee, Melany Faye (Ellett) Morris.

Courtney S. Vest, McNabb, Bragorgos & Burgess, PLLC, Memphis, Tennessee, forDefendant/ Appellant, Johnny Edward Morris, II.

Judge: KIRBY

This is a divorce case. One minor child was born of the marriage. After the parties filed for divorce, the wife relocated out of state with the parties' child without obtaining court permission to do so. The husband filed a petition to hold the wife in contempt for relocating out of state with the child. The trial court declined to hold the wife in contempt, designated the wife as the primary residential parent, and ordered the husband to pay child support. In dividing the marital property, the husband was ordered to pay the statutory penalty for early withdrawal of the monies in his retirement savings account. The wife was awarded rehabilitative alimony and attorney fees as alimony in solido. The husband now appeals the relocation decision, the designation of primary residential parent, the assessment of the retirement account penalty, and the award of attorney fees. We affirm.

http://www.tba2.org/tba_files/TCA/2011/morrism_020811.pdf

LEVI BATTLE III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Levi Battle III, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Kim Helper, 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 to thirty years, at 60%, in the Tennessee Department of Correction. The Petitioner filed a petition for habeas corpus relief, in which he alleged that his sentence was illegal because he was sentenced outside of his sentencing range. The habeas corpus court dismissed the petition, and the Petitioner appeals the habeas corpus court's judgment. After careful review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2011/battlel_020811.pdf

SHAWN BLAIR v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Shawn Blair, Oakdale, Louisiana, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence Lutz, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General; for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Shawn Blair, appeals the post-conviction court's dismissal of his petition for post-conviction relief from his two convictions for simple possession of marijuana and resulting sentences of eleven-months, twenty-nine days for each conviction to be served consecutively. The post-conviction court summarily dismissed the petition without appointing counsel or conducting a hearing on the basis that the Petitioner had filed it while his direct appeal was pending. The Petitioner argues that he is entitled to post-conviction relief because he did not plead guilty knowingly and voluntarily and because he received the ineffective assistance of counsel. The State contends that the post-conviction court improperly dismissed the petition because the Petitioner did not file it prematurely. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand the case for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2011/blairs_020811.pdf

STATE OF TENNESSEE v. ROBERT CONLEY

Court: TCCA

Attorneys:

J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Robert Conley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Robert Conley, filed a pro se notice of appeal which was timely as to the trial court's order denying Defendant's motion for reduction of sentence pursuant to Tennessee Rule of Criminal Procedure 35. The trial court subsequently appointed counsel to represent Defendant. In his brief on appeal, Defendant challenges the trial court's order revoking his community corrections sentence and ordering service of the fourteen-year sentence by incarceration, in addition to arguing that the trial court erred by denying his Rule 35 motion. We conclude that the issue regarding revocation of the community corrections sentence is waived by Defendant's failure to timely appeal that order. Further, we find that the trial court did not abuse its discretion by denying Defendant's Rule 35 motion, and, accordingly affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/conleyr_020811.pdf

STATE OF TENNESSEE v. IVAN CHARLES GRAVES

Court: TCCA

Attorneys:

Bruce E. Poston and Richard Holcomb (at trial) and Katherine L. Harp (on appeal), Knoxville, Tennessee, for the appellant, Ivan Charles Graves.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Knox County Criminal Court jury convicted the appellant, Ivan Charles Graves, of first degree premeditated murder and felony murder committed during the perpetration of a kidnapping. Immediately after the jury's verdict, the trial court merged the convictions and sentenced the appellant to life in prison. On appeal, the appellant contends that (1) the evidence is insufficient to support the premeditated murder conviction because the State failed to show he premeditated killing the victim; (2) the evidence is insufficient to support the convictions because the testimony of one of the witnesses was irreconcilable with the physical evidence; (3) the State's use of his recorded jail conversations during its case-in-chief violated his constitutional rights; (4) the trial court committed plain error by allowing the jury to have transcripts of the recorded conversations during its deliberations; (5) the trial court erred by dismissing a potential juror for cause and failing to dismiss another juror for cause; and (6) the trial court erred by allowing a State witness to testify about the appellant's prior bad acts. Although the trial court erred with regard to the transcripts, the errors do not warrant reversal, and we affirm the appellant's convictions.

http://www.tba2.org/tba_files/TCCA/2011/gravesi_020811.pdf

JAMES PAUL HURT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Melissa L. Thomas, Fayetteville, Tennessee, for the appellant, James Paul Hurt.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, James Paul Hurt, was convicted by a Marshall County jury of selling 0.5 grams or more of cocaine and delivery of 0.5 grams or more of cocaine. The trial court merged the convictions, and on direct appeal, this court affirmed the judgment of the trial court. State v. James Paul Hurt, No. M2006-02381-CCA-R3-CD, 2007 WL 4552987 (Tenn. Crim. App. at Nashville, Dec. 27, 2007), no perm. to app. filed. Subsequently, Petitioner timely filed a petition for post-conviction relief. Following an evidentiary hearing, the trial court denied relief and dismissed the petition. Petitioner appeals, arguing that his trial counsel provided ineffective assistance of counsel. Following review of the briefs and the record, we affirm the judgment of the post-conviction trial court.

http://www.tba2.org/tba_files/TCCA/2011/hurtj_020811.pdf

DONALD RAY JONES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James F. Taylor, Rogersville, Tennessee, for the appellant, Donald Ray Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Doug Godbee, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Donald Ray Jones, pleaded guilty to two counts of first degree murder and received concurrent terms of life with the possibility of parole. The Petitioner filed a timely petition for post-conviction relief and, after a hearing, the post-conviction court denied relief. In this appeal, the sole issue that the Petitioner raises is that he was denied effective assistance of counsel because his Trial Counsel failed to request insanity and competency evaluations. After our review, we conclude that the Petitioner's appeal should be dismissed because his notice of appeal was not timely filed.

http://www.tba2.org/tba_files/TCCA/2011/jonesd_020811.pdf

STATE OF TENNESSEE v. MARTHA PATLAN

Court: TCCA

Attorneys:

Paula Ogle Blair (on appeal), and Paul Walwyn, Ross Alderman, District Public Defender, and Amy Harwell, Assistant Public Defender, Nashville, Tennessee, for the appellant, Martha Patlan.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin Miller and Brian Holmgren, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

A Davidson County jury convicted the defendant, Martha Patlan, of aggravated child abuse, a Class A felony, and first degree felony murder during the perpetration of aggravated child abuse. The trial court sentenced the defendant to a mandatory sentence of life imprisonment for the murder conviction and, consecutive to the life sentence, twenty years for the aggravated child abuse conviction both to be served in the Tennessee Department of Correction. On appeal, the defendant argues that (1) the evidence was insufficient to convict her of aggravated child abuse and felony murder; (2) her felony murder conviction is unconstitutional; (3) the trial court erred when it failed to require the state to elect an incident of neglect; (4) the trial court erred when it refused to allow testimony regarding bruises on the defendant's face; (5) the trial court erred when it allowed certain photographs into evidence; (6) the trial court erred in overruling the defendant's objection to the use of the term Battered Child Syndrome; and (7) the trial court erred by ordering that the defendant serve her sentences consecutively. After reviewing the record, the parties' briefs, and applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/patlanm_020811.pdf

STATE OF TENNESSEE v. SONNY WAYNE SMITH

Court: TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender; and Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Sonny Wayne Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Sonny Wayne Smith, was indicted by the Marshall County Grand Jury for harassment, a class E felony, in violation of Tenn. Code Ann. section 39-17-308. Defendant entered a guilty plea to the offense as charged. Following a sentencing hearing, Defendant was sentenced as a Range I standard offender to serve two years in confinement, and his sentence was ordered to be served consecutively to a misdemeanor sentence. In this direct appeal, Defendant challenges the length of his sentence and the consecutive sentencing. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/smiths_020811.pdf

STATE OF TENNESSEE v. DEWITT WILLIAM STICKLE, III

Court: TCCA

Attorneys:

G. Kerry Haymaker, Nashville, Tennessee, for the appellant, Dewitt William Stickle, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Justin Harris, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Dewitt William Stickle III, was charged with two counts of aggravated assault. Following a jury trial, he was convicted of one count of the lesser-included offense of assault, a Class A misdemeanor. See Tenn. Code Ann. section 39-13-101(b)(1). In this direct appeal, the Defendant, who maintained that he hit the victim in self-defense, contends that the trial court erred when it excluded testimony intended to corroborate his theory that the victim was the first aggressor. After our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/stickled_020811.pdf

TODAY'S NEWS

Legal News
Passages
Upcoming
TBA Member Services

Legal News

Richard Ruth first with 'pro bono emeritus' status

Richard R. Ruth of Chattanooga is the first attorney in the state to receive pro bono emeritus status from the Tennessee Supreme Court. Ruth will provide pro bono services under the supervision of Legal Aid of East Tennessee. The court's new pro bono emeritus program allows retired attorneys to provide pro bono legal services through legal assistance organizations that offer free services to Tennesseans who are unable to afford legal counsel. The program became effective Jan. 1 with the adoption of Supreme Court Rule 50A.

One punishment finished for Moncier

U.S. District Judge Samuel H. Mays Jr. told Herbert S. Moncier there would be no further punishment for an act of contempt in 2007 that put a misdemeanor on his record, led to his suspension from federal practice in East Tennessee and has placed his ability to practice state law in jeopardy. "There's no point of further probation," Mays said.

The News Sentinel tells you more

Judges don't see load of docket the same way

There are two Williamson County General Sessions judges, and one of them is asking for a third because of an overwhelming docket. "We end up pretty much rubber stamping," Judge Al Nations said of plea agreements in criminal cases such as domestic violence or drunken driving. "The same goes for civil agreements." But his colleague on the court, Judge Denise Andre disagrees, saying the court isn't as bogged down as the numbers might suggest.

The Tennessean has the story

Backlog of immigration cases lessens in Tennessee

Tennessee had 4,261 cases pending at the Memphis Immigration Court as of Dec. 31. 2010, compared with 4,302 at the same time the previous year, the Transactional Records Access Clearinghouse at Syracuse University reported. The clearinghouse examines trends in the country's federal courts, finding that Tennessee's decrease runs counter to the national trend of a growing backlog. Tennessee ranked 14th in the number of cases unresolved. But the backlogged cases in Tennessee took longer this year -- pending an average of 309 days, up from 284 days at the same time the previous year.

The Tennessean has this story

Open judgeships continue to rise, adding to crisis

Since President Obama took office, federal judicial vacancies have risen steadily as dozens of judges have left without being replaced by the president's nominees. There are now 101 vacancies among the nation's 857 district and circuit judgeships, with 46 classified as judicial emergencies in which courts are struggling to keep up with the workload. At least 15 more vacancies are expected this year as judges retire at the rate of more than one per month, according to the administrative office of the U.S. Courts.

The Washington Post reports on the judicial crisis

13 states ask government for help finding execution drug

The Justice Department says it's reviewing a request by 13 states asking for help finding sodium thiopental, a drug used for executions. Sources for the drug are scarce after its sole U.S. manufacturer ceased production and some overseas supplies dried up. The states, including Tennessee, asked U.S. Attorney General Eric Holder Jan. 25 for help identifying sources for the drug or making federal supplies available to states.

WKRN.com carried this AP story

Passages

Former U.S. attorney John Roberts dies

John Roberts, former U.S. Attorney for the Middle District of Tennessee, died Feb. 6. He was 74. The Livingston attorney was appointed U.S. attorney by President Bill Clinton, and he remained in that capacity for the entirety of the Clinton era. Visitation is today (Feb. 8) from 3 to 9 p.m. at Hall Funeral Home in Livingston. The funeral service is at 2 p.m. Wednesday at First Christian Church in Livingston. Read his obituary here, and

more about him in NashvillePost.com

Upcoming

Reception to honor Judge Summitt planned in Atlanta

The Tennessee Bar Association will hold a reception honoring Judge Robert M. Summitt on Saturday at the ABA Mid-Winter Meeting in Atlanta. The event will take place from 5:30 to 7 p.m. at the Marriott Atlanta Marquis in Room A601. All Tennesseans at the meeting are invited to attend. Judge Summitt began practicing law in Chattanooga in 1949. In 1968 he was appointed to the Eleventh Judicial District Court. Among his accomplishments, he served as president of the Tennessee Judicial Conference, chair of the National Conference of State Trial Judges, member of the ABA House of Delegates and member of the ABA Nominating Committee.

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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.