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Thursday, May 05, 2011

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AOC working to improve indigent defense fund

The Administrative Office of the Courts (AOC) yesterday announced new efforts to improve the indigent defense fund, which compensates private attorneys who represent criminal defendants when a public defender is not available. The move comes as funding has fallen short in recent years but the need for representation has increased. Last fall, the AOC hired a compliance officer to verify the accuracy of fee claims. In addition, for nearly a year it has worked with a legislative study committee to explore ways to improve the appointment process. As a result, the AOC is encouraging judges to use public defenders when possible and has proposed contracting with lawyers in certain types of cases to help reduce costs. Finally, in July, the AOC's new online claims system will be completed. It will streamline the payment process by eliminating more than 90 percent of the 126,000 paper claims it receives each year.

Read more about these efforts

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.

IN RE DECIANDRA M., ET AL.

Court: TCA

Attorneys:

Christina Ferrell Daugherty, Franklin, Tennessee, for the appellant, Crystal S.

Francis King, Nashville, Tennessee, for the appellant, Lavondal M.

Robert H. Plummer, Jr., Franklin, Tennessee, as Guardian Ad Litem.

Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Judge: DINKINS

Mother and Father appeal the termination of their parental rights to four children. Father's rights were terminated on grounds of abandonment by failure to visit the children within four months prior to the filing of the petition and wanton disregard for the children's safety based on his criminal history; Mother's rights were terminated on grounds of severe child abuse, substantial noncompliance with permanency plans, and persistence of conditions. Finding no error, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2011/deciandram_050511.pdf

ROGER WILKES, ET AL. v. SHAW ENTERPRISES, LLC

Court: TCA

Attorneys:

Jean Dyer Harrison, Nashville, Tennessee, for the appellants, Roger Wilkes and Vittoria Wilkes.

Barton E. Kelley, Columbia, Tennessee, for the appellee, Shaw Enterprises, LLC.

Judge: COTTRELL

This is an appeal of the trial court's determination on remand that the Appellee did not breach the parties' contract when it constructed the Appellant's house without through-wall flashing and weep holes, as required by the applicable building code. The parties' contract provided that the builder would construct the house in accordance with "good building practices." The trial court concluded the builder constructed the house in accordance with good building practices even though it was not in strict conformance with the building code. We affirm this holding. The Appellants also appeal the trial court's failure to award them their attorneys' fees and costs incurred in their first appeal. We remand this matter to the trial court with directions that it award to Appellants reasonable attorneys' fees and costs incurred in their first appeal, as determined by the trial court.

http://www.tba2.org/tba_files/TCA/2011/wilkesr_050511.pdf

STATE OF TENNESSEE v. MICHAEL C. BENNETT

Court: TCCA

Attorneys:

James L. Deaton, Dandridge, Tennessee, for the appellant, Michael C. Bennett.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James B. Dunn, District Attorney General; and Tonya D. Keith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Grainger County Circuit Court jury convicted the appellant, Michael C. Bennett, of aggravated burglary, a Class C felony, and theft of property valued one thousand dollars or more but less than ten thousand dollars, a Class D felony. After a sentencing hearing, the trial court sentenced him as a Range III, persistent offender to fifteen years for the aggravated burglary conviction and twelve years for the theft conviction. The sentences were to be served concurrently. On appeal, the appellant contends that the trial court's failure to rule on his pretrial motion to prohibit the State from impeaching him with prior convictions pursuant to Rule 609, Tennessee Rules of Evidence, affected his right to a fair trial. The State contends that the issue is waived. Based upon the record and the parties' briefs, we conclude that the appellant waived the issue and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/bennettm_050511.pdf

STATE OF TENNESSEE v. JAVON FRAZIER

Court: TCCA

Attorneys:

Andre B. Mathis, Memphis, Tennessee, for the appellant, Javon Frazier.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Summer Morgan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Javon Frazier, appeals the trial court's termination of his judicial diversion, arguing that he was denied due process at the revocation hearing, and the State concurs. After review, we reverse the judgment of the trial court and remand for a new revocation hearing.

http://www.tba2.org/tba_files/TCCA/2011/frazierj_050511.pdf

STATE OF TENNESSEE v. MONTREL GILLIAM

Court: TCCA

Attorneys:

James E. Thomas (on appeal and at trial) and Juni Ganguli (at trial), Memphis, Tennessee, for the appellant, Montrel Gilliam.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Reginald Henderson and Pamela Fleming, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Montrel Gilliam, was convicted by a Shelby County jury of first degree premeditated murder and three counts of attempted first degree murder. He was sentenced by the trial court to consecutive terms of life imprisonment for the first degree murder conviction and as a Range I standard offender to twenty-five years, twenty-two years, and twenty years, respectively, for the attempted murder convictions, for an effective term of life plus sixty-seven years in the Department of Correction. On appeal, he challenges the sufficiency of the evidence in support of his convictions and argues that the trial court erred by instructing the jury on his silence as a tacit admission to the crimes. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/gilliamm_050511.pdf

STATE OF TENNESSEE v. KEVIN MILLEN

Court: TCCA

Attorneys:

Kevin Millen, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PER CURIAM

The pro se defendant, Kevin Millen, appeals the order of the Shelby County Criminal Court affirming the Shelby County General Sessions Court's finding that he was guilty of contempt. Following our review, we affirm the judgment of the criminal court.

http://www.tba2.org/tba_files/TCCA/2011/millenk_050511.pdf

STATE OF TENNESSEE v. ANTONIO T. SMITH

Court: TCCA

Attorneys:

Benjamin L. McGowan, Chattanooga, Tennessee, for the appellant, Antonio T. Smith.

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

Judge: SMITH

In Hamilton County, Appellant, Antonio T. Smith, pled guilty to one count of possession of less than .5 grams of cocaine for resale and one count of attempted possession of contraband in a penal facility. The trial court sentenced him to an effective sentence of eight years to be served on probation. Subsequently, a probation violation report was filed, and the trial court held a hearing. At the conclusion of the hearing, the trial court revoked Appellant's probation and ordered him to serve his six-year sentence in confinement and his remaining two-year sentence on probation. Appellant appeals the revocation of his probation. He argues that the trial court abused its discretion in revoking his probation because the testimony of the arresting officers was not credible. He also claims the trial court erred in denying his request for a mental evaluation. After a thorough review of the record, we conclude that the trial court did not abuse its discretion. Therefore, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/smitha_050511.pdf

TODAY'S NEWS

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Legal News
Passages
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Court of the Judiciary

Reprimand issued for Judge Hamilton

The Court of the Judiciary issued a public reprimand yesterday for Circuit Court Judge Jim T. Hamilton of Columbia. The reprimand came in response to the judge's handling of certain cases in 2006 and 2007 in which he signed ex-parte orders of dismissal and ex-parte orders expunging convictions without confirming whether the orders had been approved by the district attorney.

Download the letter of reprimand

Judge Taylor files answer to charges

Hawkins County Juvenile Judge James Taylor yesterday filed an answer to formal charges brought against him by the Court of the Judiciary on March 29. Responding to charges that he inappropriately became involved in fundraising to support a courthouse display of historical documents, Taylor maintains his conduct was proper and that he has not violated the Code of Judicial Conduct.

Download his answer here

Legal News

Former chancery court employee investigated

The FBI is investigating an embezzlement scheme believed to involve hundreds of thousands of dollars that are missing from the Shelby County Chancery Court clerk's office. The investigation is focused on former bookkeeper Brandon Gunn, who recently resigned from the office.

The Commercial Appeal has more

State shared lethal injection drug

Tennessee agreed to share its stock of sodium thiopental with the state of Alabama so it could execute an inmate on May 19. But now federal agents have seized the lethal injection drug from both states. The Tennessee Department of Correction says it has a DEA permit to handle the drug and that its actions have been above board. After its supply was seized, Alabama decided to replace the drug with pentobarbital, an anesthetic sometimes used in animal euthanasia.

The Leaf Chronicle reports

Court clerk returns to work

Davidson County Criminal Court Clerk David Torrence was back at work yesterday after having taken off Wednesdays and Fridays for some time. He issued an apology saying he plans to work five days a week. The move comes as a Metro Council member filed a resolution calling for his resignation and the district attorney said he was reviewing whether Torrence could be removed from office.

WSMV News 4 reports

Walker Tipps names new managing partner

Nashville law firm Walker Tipps & Malone has named John Hayworth as its new managing partner. He has been with the firm since its inception in 2000. The firm also named Charles Malone as recruiting partner. Malone joined the firm in 2003.

The Nashville Post reported the news (subscription required)

Speakers needed for Equal Justice University

The Tennessee Alliance for Legal Services is seeking presenters for the 2011 Equal Justice University -- a three-day event planned for Oct. 12-14 at Paris Landing State Park. Those interested in speaking to the group are invited to submit a proposal by May 31. Proposals should include a description or presentation outline. Training may be on substantive legal issues, advocacy, or general professional issues. Sessions are generally 90 minutes in length. Submit proposals to lprimm@tals.org.

Recent law grad wins TBA writing contest

Erica Stansell, who graduated from the University of Tennessee College of Law in December 2010, has won first prize in the 2011 Jon Hastings Memorial Award Writing Competition sponsored by the Tennessee Bar Association Environmental Law Section. The paper, which was titled "TVA Megasite Presents Environmental Justice Concerns in West Tennessee" was published in the section's latest newsletter.

Read the essay here

Volunteer Attorney newsletter available

The Tennessee Bar Association Access to Justice Committee published the spring issue of The Tennessee Volunteer Attorney this week. This edition looks at changes in the rules for pro bono emeritus attorneys, local pro bono and public service efforts, the state's first pro bono summit, and the TBA's public service award winners.

Read it here

Southern Poverty Law Center marks 40th year

This week, more than 2,000 people are in Montgomery, Ala., to celebrate the 40th anniversary of the Southern Poverty Law Center. Morris Dees, 64, founded the SPLC with fellow attorney Joe Levin in 1971. The former SPLC president answered some questions about how the organization came about, what it has accomplished and where it might be headed.

The Tennessean reports

Passages

Chattanooga lawyer dies

Chattanooga lawyer and longtime Chambliss, Bahner & Stophel partner William Crutchfield Jr. died April 30 after a lengthy illness. A graduate of the Vanderbilt University Law School, Crutchfield began his law practice with Chambliss in 1963 but took a leave of absence to serve as a judge advocate for the Army. He returned to the firm in 1968 and for many years was a leading partner practicing in the areas of bankruptcy and debtor-creditor relationships. For 20 years he served as a member of the TBA House of Delegates and for many years was the TBA's representative on the IOLTA Grant Review Committee. A memorial service was held on May 4. In lieu of flowers, contributions may be made to Reflection Riding, the American Red Cross or a charity of choice.