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Wednesday, June 22, 2011

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TBA announces retirement of Sharon Ballinger

The Tennessee Bar Association announced today that Sharon Ballinger, the longtime voice of the Bar, is retiring effective June 30. Sharon's retirement will permit her to spend more time with her pets Deuce and Belle and her granddaughter Brickelle. "Because she cares so deeply for our members and for the public, Sharon's attentive, careful, compassionate, diligent, patient and gracious manner has always come through in the thousands of contacts she has every year as the main receptionist for the TBA," said Executive Director Allan Ramsaur. "Her delightful, personal greeting will be sorely missed." Sharon has been the TBA receptionist since November 1998. She will be honored at a luncheon given by the TBA and TBA staff on Thursday, June 30. Members or others who have stories or messages they would like to pass on to Sharon are encouraged to send them to Jenny Jones at jjones@tnbar.org to be collected in a memory book, which will be presented to Sharon.

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 JOSHUA S.
BRYAN L. AND ROBIN L. v. JENNIFER N.C. AND JOSHUA M. S.
CORRECTION: This opinion originally was filed on June 16, 2011, but was not formatted correctly

Court: TCA

Attorneys:

Laura S. Hash, Law Office of Laura S. Hash, Clinton, Tennessee, for Petitioner/Appellees Bryan L. and Robin L.

Brian J. Hunt, Clinton, Tennessee, for Respondent/Appellant, Jennifer N.C.

David K. Vander Sluis, Oak Ridge, Tennessee, for Respondent/Appellant, Joshua M.S.

Amy Brown, Knoxville, Tennessee, Guardian Ad Litem.

Judge: KIRBY

This appeal involves the termination of parental rights. The State removed the child at issue from the custody of the parents due to neglect, parental absence, and underlying substance abuse. The child was ultimately placed with the petitioner foster parents. Subsequently, the biological parents moved out of Tennessee. The foster parents later filed a petition to terminate the parental rights of the biological mother and father, as a predicate to adoption. The trial judge terminated the parental rights of the biological parents on the grounds of persistent conditions and abandonment by failure to provide a suitable home, failure to visit, and failure to support. The mother and father appeal. We reverse on the grounds of persistent conditions, abandonment by failure to pay support, and abandonment by failure to provide a suitable home. However, we affirm on the ground of abandonment by failure to visit and affirm the termination of parental rights.

http://www.tba2.org/tba_files/TCA/2011/joshuas_COR_062211.pdf

KIMBERLY E. LOVE v. STEVEN D. BEARD

Court: TCA

Attorneys:

Kimberly E. Love, Murfreesboro, Tennessee, Pro Se.

S. Jason Whatley, Columbia, Tennessee, for the appellee, Steven D. Beard.

Judge: CLEMENT

The plaintiff filed this action against her brother alleging that he misused her power of attorney and that he stole some of her property. Following a bench trial, the trial court held that the plaintiff failed to prove her claims, with the exception of her claim for theft of her automobile, and ordered the defendant to pay restitution for the vehicle. Plaintiff appealed; however, she failed to file a transcript of the proceedings or a statement of the evidence for which we must accept the findings of the trial court as correct. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2011/lovek_062211.pdf

STATE OF TENNESSEE v. CALVIN AUSTIN

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; and Tony N. Brayton and Michael J. Johnson, Assistant Public Defenders, for the appellant, Calvin Austin.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; William L. Gibbons, District Attorney General; and Damon Keith Griffin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Calvin Austin, was indicted for aggravated robbery, aggravated burglary, and employment of a firearm during the commission of a dangerous felony. The trial court dismissed the employment of a firearm charge. Following a jury trial, the trial court declared a mistrial as to the aggravated burglary charge because the jury had failed to reach a verdict on that count. The Defendant was convicted of the lesser-included offense of robbery, a Class C felony, and sentenced as a Range III, persistent offender to 14 years in the Tennessee Department of Correction. In this appeal as of right, the Defendant contends that the evidence is insufficient to sustain his conviction of robbery. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/austinc_062211.pdf

STATE OF TENNESSEE v. McARTHUR BOBO

Court: TCCA

Attorneys:

Michael R. Working (on appeal) and Robert Parris (at trial), Memphis , Tennessee, for the appellant, McArthur Bobo.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Marianne Bell and Abby Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, McArthur Bobo, was convicted by a Shelby County Criminal Court jury of second degree murder, a Class A felony, and sentenced by the trial court as a career offender to sixty years in the Department of Correction at 100%. On appeal, he raises the following issues: (1) whether the trial court erred by allowing the State to impeach a defense witness's testimony by introducing a tape-recorded conversation between himself and the witness that took place during his pretrial incarceration; (2) whether the trial court erred by denying his motion to suppress evidence of a pretrial photographic lineup by which two eyewitnesses identified him as the shooter; and (3) whether the trial court erred by allowing testimony by a witness that the victim's children were at the victim's home at the time the victim was killed. Based on our review, we conclude that the defendant has waived consideration of the suppression issue by his failure to include an adequate record on appeal. We further conclude that the defendant has waived the remaining two issues by his failure to raise them in his motion for new trial. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/bobom_062211.pdf

STATE OF TENNESSEE v. ANTHONY BOYLAND

Court: TCCA

Attorneys:

Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Anthony Boyland.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William L. Gibbons, District Attorney General; Steven Crossnoe and Cavett Ostner, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

A Shelby County Criminal Court jury convicted the defendant, Anthony Boyland, of first degree murder committed in the perpetration of an aggravated burglary, see T.C.A. section 39-13-202(a)(2)(2006); aggravated assault by the use of a deadly weapon, see id. section 39-13-102(a)(1)(B); and aggravated burglary, see id. section 39-14-403(a), and the trial court imposed an effective life sentence in the custody of the Department of Correction. In addition to attacking the sufficiency of the evidence to support his convictions, the defendant contends that the trial court erred by (1) determining that he was competent to stand trial, (2) excluding evidence of a mental disease or defect that would have negated mens rea, (3) excluding evidence of a victim's pending criminal charges, (4) denying his special requests for jury instructions concerning imperfect self-defense and passion, and (5) instructing the jury concerning flight. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/boylanda_062211.pdf

STATE OF TENNESSEE v. TRACY J. BROOKS

Court: TCCA

Attorneys:

Robert W. White, Maryville, Tennessee, for the appellant, Tracy J. Brooks.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; R. Steven Bebb; District Attorney General; and Krista Oswalt and Andrew Freiberg, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Tracy J. Brooks, pled guilty in the McMinn County Circuit court to driving under the influence (DUI) and received a sentence of eleven months, twenty-nine days to be served as forty-eight hours in jail and the remainder on probation. As a condition of her plea, the appellant reserved a certified question of law, namely whether the police officer had reasonable suspicion to initiate a traffic stop. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/brookst_062211.pdf

CHRISTOPHER CARTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Todd Mosley (on appeal), and Ruchie Patel (at trial), Memphis, Tennessee, for the appellant, Christopher Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Christopher Carter, appeals the denial of his petition for post-conviction relief. In this appeal, he contends that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2011/carterc_062211.pdf

JAMES HATHAWAY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joseph A. McClusky (on appeal) and Larry Sargent (at trial), Memphis, Tennessee, for the appellant, James Hathaway.

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

Judge: TIPTON

The Petitioner, James Hathaway, appeals the Shelby County Criminal Court's denial of post-conviction relief from his convictions of first degree felony murder and especially aggravated robbery, for which he is serving consecutive sentences of life without parole and twenty-five years. On appeal, he contends that trial counsel rendered ineffective assistance by failing to request lesser included offense instructions and failing to obtain additional expert assistance. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/hathawayj_062211.pdf

STATE OF TENNESSEE v. JAWASKII WILLIAMS

Court: TCCA

Attorneys:

Stephen Bush, District Public Defender; Phyllis Aluko, Assistant Public Defender (on appeal); and Dianne Thackery, Assistant Public Defender (at trial), for the appellant, Jawaskii Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; Marianne Bell and Chris West, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Jawaskii Williams, was convicted of second degree murder, a Class A felony, and aggravated assault, a Class C felony, by a Shelby County Criminal Court jury. He was sentenced to twenty-one years for the murder conviction and five years for the aggravated assault conviction, to be served concurrently in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and the sentences imposed by the trial court. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/williamsj_062211.pdf

County Commissioner Employed by the County

TN Attorney General Opinions

Date: 2011-06-22

Opinion Number: 11-50

http://www.tba2.org/tba_files/AG/2011/ag_11_50.pdf

TODAY'S NEWS

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Legal News

AG wins case against tax prep company

The Tennessee attorney general has obtained a civil contempt order and permanent injunction against tax preparation company JK Harris after the company failed to abide by the terms of a 2008 agreement to refund consumers and pay penalties for misleading advertising allegations. The order requires the company to pay $26,000 in penalties, $32,522 in restitution to 11 consumers, and civil contempt penalties of $650 per day until it is compliant with the order. Consumers who have been harmed by the company may file a complaint by calling (800) 342-8385 or (615) 741-4737 or visiting the AG's website. The deadline for filing is Dec. 20.

Read the AG's press release

ABA to expand data in law school guide

The American Bar Association (ABA) will add more job and salary data to its official guide of law schools in response to demands for more information about the employment prospects for law school grads. The new data will include statewide salary data for newly hired law school graduates; whether jobs are full or part-time; whether the jobs are funded by the law school or university; and whether jobs require, prefer or do not require a law degree. The new information will be published in the June 2012 guide. The National Jurist has the story.

In related news, U.S. News & World Report said it would probably change its law school ranking methodology to reflect the new information being provided by the ABA.