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Tuesday, April 26, 2011

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Senate Judiciary recommends judicial selection Constitutional amendment

A constitutional amendment to authorize the General Assembly to adopt merit selection and retention elections moved out of the Senate Judiciary Committee late this afternoon. SJR 183 by Mark Norris, R-Collierville, was taken up out of order on the calendar and saw little discussion. One amendment, making the permissive language even more permissive, was adopted. If passed in its present form, the legislature could change from popular election to merit and back again on an annual basis.

Tom Humphrey at the News Sentinel has more

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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MALCO THEATERS, INC. v. RICHARD H. ROBERTS, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Report, Michael E. Moore, Solicitor General, and Gregory O. Nies, Assistant Attorney General, Tennessee, for the appellant, Richard H. Roberts, Commissioner of Revenue, State of Tennessee.

James A. Delanis, John B. Burns, Nashville, Tennessee and William H. D. Fones, Jr., Memphis, Tennessee, for the appellee, Malco Theaters, Inc.

Judge: FARMER

This appeal concerns the franchise tax liability of a corporation operating motion picture theaters in Tennessee. The Tennessee Department of Revenue assessed deficiencies against the corporation in 2001 and 2004 after audits revealed the corporation did not include the value of rented films within its minimum franchise tax base. The corporation filed separate lawsuits in chancery court disputing the assessments. After consolidating the cases, the chancery court granted summary judgment in favor of the corporation. We reverse the grant of summary judgment, grant partial summary judgment in favor of the Commissioner of Revenue, grant partial summary judgment in favor of the corporation, and remand.

http://www.tba2.org/tba_files/TCA/2011/malcotheaters_042611.pdf

WILLIAM G. ALLEN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James A. Simmons, Hendersonville, Tennessee, for the Appellant, William G. Allen.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Robert Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 1968, a Davidson County grand jury indicted the Petitioner, William G. Allen, along with his four co-defendants, for the murders of two Davidson County police officers. The two murder cases were tried separately, and the Petitioner was convicted of the first degree murder of Officer Thomasson, after which he received a sentence of ninety-nine years. On direct appeal, this Court affirmed the Petitioner's conviction and sentence. The Petitioner brought his first petition for post-conviction relief in 1971. The post-conviction court denied this petition, and this Court affirmed its denial on appeal. In 1990, the Petitioner brought his second petition for post-conviction relief, which the post-conviction court dismissed without a hearing. On appeal, our supreme court remanded the case for a hearing, and, in 1994, the Petitioner, pursuant to the supreme court's instructions, re-filed his second petition for post-conviction relief. The Petitioner amended this petition three times and, in 2001, submitted a consolidated petition for post-conviction relief. After a hearing in 2007 and another in 2008, the post-conviction court denied relief. The Petitioner appeals, contending he is entitled to post-conviction relief because: (1) the grand jury that indicted him and his co-defendants did not represent a fair cross-section of the population, as required by the equal protection and due process clauses of the United States and Tennessee State Constitutions; (2) the sentencing statute under which he was sentenced was unconstitutional; and (3) the trial court improperly instructed the jury. After a careful review of the record, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/allenw_042611.pdf

STATE OF TENNESSEE v. GEORGE D. OAKES

Court: TCCA

Attorneys:

R. Alexander Brown, Knoxville, Tennessee, for the appellant, George D. Oakes.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, George D. Oakes, was charged with one count of second degree murder, a Class A felony. See Tenn. Code Ann. section 39-13-210. Following a jury trial, the Defendant was convicted of the lesser included offense of voluntary manslaughter, a Class C felony. See Tenn. Code Ann. section 39-13-211. The trial court sentenced the Defendant as a Range III, persistent offender to 15 years. In this appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain his conviction for voluntary manslaughter and (2) the trial court abused its discretion in sentencing the Defendant. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/oakesg_042611.pdf

STATE OF TENNESSEE v. NORMAN L. RICKS

Court: TCCA

Attorneys:

John Allen Brooks, Chattanooga, Tennessee, for the appellant, Norman L. Ricks.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William H. Cox, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the appellee.

Judge: OGLE

The appellant, Norman L. Ricks, pled guilty to voluntary manslaughter in exchange for an agreed sentence of ten years. The plea agreement provided that the trial court would determine whether the sentence would be served concurrently with or consecutively to a previously imposed federal sentence. On appeal, the appellant argues that the trial court erred in imposing consecutive sentencing. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/ricksn_042611.pdf

GREGORY L. SAIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Daryl M. South, Murfreesboro, Tennessee, for the appellant, Gregory L. Sain.

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

Judge: MCLIN

On January 24, 2006, a jury convicted the petitioner, Gregory L. Sain, of one count of delivery of a Schedule II drug to a minor, one count of possession of a Schedule II drug with the intent to deliver, one count of introduction of contraband into a penal facility, one count of contributing to the delinquency of a minor, and simple possession of marijuana. A panel of this court affirmed the jury's verdict and modified the petitioner's sentence on March 6, 2008. The petitioner sought post-conviction relief and the same was denied pursuant to an order dated February 19, 2010. On appeal, the petitioner alleges ineffective assistance of counsel at both the trial and appellate levels. The petitioner claims that counsels' performance was deficient because: (1) trial counsel failed to request a Batson hearing after the peremptory challenge of an African American female juror; (2) trial counsel failed to conduct a proper investigation into the petitioner's case; (3) trial counsel and appellate counsel both failed to challenge an improper jury instruction. Upon a thorough review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/saing_042611.pdf

STATE OF TENNESSEE v. RALPH WILHOITE

Court: TCCA

Attorneys:

Richard L. Burnette (on appeal) and Bryan E. Delius (at trial), Sevierville, Tennessee, for the appellant, Ralph Wilhoite.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General; and Gregory C. Eshbaugh, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

After a bench trial, the Sevier County Circuit Court convicted the appellant, Ralph Wilhoite, of driving under the influence (DUI), third offense; violating the implied consent law; and violating the financial responsibility law. On appeal, the appellant claims that (1) the trial court erred by failing to grant his motion to suppress evidence that was obtained as the result of an illegal arrest for DUI and (2) the evidence is insufficient to support the convictions. Based upon the record and the parties' briefs, we affirm the appellant's convictions for DUI and violating the financial responsibility law but modify his conviction for Class A misdemeanor violation of the implied consent law to non-criminal violation of the implied consent law. The case is remanded to the trial court for correction of that judgment and for correction of a clerical error on the judgment of conviction for violating the financial responsibility law.

http://www.tba2.org/tba_files/TCCA/2011/wilhoiter_042611.pdf

TODAY'S NEWS

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Legal News

Burkes, Green and Sword on list for 6th District seat

Charles Cheatwood Burks, G. Scott Green and Steven Wayne Sword today made it to the next round in the process of filling the vacancy in the 6th Judicial District created by the retirement of Judge Richard Baumgartner. The Judicial Nominating Commission interviewed eight applicants and held a public hearing in Knoxville before recommending the three candidates to Gov. Bill Haslam. Burks is an attorney with Justice, Noel & Burks; G. Scott Green is an attorney with Valliant, Harrison, Schwartz, & Green PA; and Steven Wayne Sword is and assistant district attorney general in the Knox County District Attorney General's Office.

See pictures of the interviews and read more from the News Sentinel

Court: Medical examiner does not have to supply records

Former Knox County medical examiner Sandra Elkins will not have to turn over her mental-health, prescription drug and disciplinary records in a court case involving a couple charged in the death of their 11-month-old child. Elkins performed the autopsy. The Tennessee Supreme Court today let stand a ruling that the couple was not entitled to Elkins' records.

The News Sentinel has this story

Lack of death drug opens capital punishment debate

Writers in the Tennessean today express views on the death penalty, in light of the shortage of drugs to carry it out. One man whose brother was murdered is angry toward the killer but stands by his beliefs that capital punishment is no solution, and "is unequally applied, falling mainly on the poor, the friendless, the mentally unstable and minority groups." State Rep. Barrett Rich, R-Somerville, writes that "at issue is how to balance humanity with the implementation of the verdict of a jury, and that there is bound to be a "chemical solution" available.

Is speech still free when judges are threatened?

What happens to the First Amendment when judges are threatened? The line between hateful, even violent speech and calls to violence has been blurred with the advent of the Internet. But should the lines around the First Amendment change? The judges, prosecutors, and jurors who are themselves the targets of such frightening speech may not always be in the best position to make these judgments.

Explore the subject with Slate.com

Holder defends Clement

Saying he did not know what happened between Paul Clement and firm of King & Spalding, Attorney General Eric Holder Jr. said Clement's decision to leave the firm to pursue same-sex marriage litigation does not deserve criticism. Clement resigned in protest after the law firm's request to withdraw from lawsuits about the Defense of Marriage Act. "I think those who were critical of him for taking that representation," Holder said, "that criticism is very misplaced."

The Blog of Legal Times reports

General Assembly News

Committee approves direct corporate gifts, higher limits

The Senate State and Local Government Committee split on a party-line vote today -- Republicans voting yes; Democrats no -- so that corporations will be able to make direct contributions to Tennessee political candidates. Also, the amount of money that can be donated by all contributors would be raised by about 40 percent. The House version of the bill is expected to win approval of the House State and Local Government Committee later today. The bill's sponsor, Senate Speaker Pro Tempore Jamie Woodson, R-Knoxville, said the move is a logical response to a U.S. Supreme Court decision last year that struck down a federal law barring corporations from making independent expenditures in political campaigns.