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| Friday, July 08, 2011 |
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Haslam names lawyers to boards
Gov. Bill Haslam recently announced new appointments to several state boards and commissions. Lawyers appointed include: Tomeka Hart, Memphis, Education Commission of the States; Wadrick Hinton, Chattanooga, Tennessee Motor Vehicle Commission; Lynn Lawyer, Nashville, Tennessee Advisory Council on Workers' Compensation; Robert Martineau, Nashville, TVA Regional Resource Stewardship Council; Brian Ragan, Dickson, Civil Service Commission; and Herbert Slatery, Nashville, State Board of Equalization.
Humphrey on the Hill has the list of all the appointments
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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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ANGELA L. (LYLES) MELTON v. JACKIE B. MELTON
Court: TCA
Attorneys:
Danny C. Garland, II, Knoxville, Tennessee, for the appellant, Jackie B. Melton.
Henry Forrester, Clinton, Tennessee, for the appellee, Angela L. (Lyles) Melton.
Judge: MCCLARTY
In this divorce case, the husband challenges the trial court's distribution of the marital property, valuation of the marital residence, and award of alimony to the wife. Without a transcript or statement of the evidence, this court cannot adequately review the issues raised by the husband. Finding that the trial court did not err as a matter of law, we affirm.
http://www.tba2.org/tba_files/TCA/2011/meltona_070811.pdf
STATE OF TENNESSEE v. PHILLIP BREWER
Court: TCCA
Attorneys:
Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Phillip Brewer.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Kelly Lawrence, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: MCLIN
A Williamson County jury convicted the defendant, Phillip Brewer, of driving under the influence, second offense, a Class A misdemeanor. The trial court sentenced him to eleven months, twenty-nine days in the county jail, with forty-five days to serve in confinement and the remainder to serve on probation. On appeal, the defendant argues that (1) the trial court
erred by denying his motion to suppress, (2) the trial court erred by denying the defendant's request for special jury instructions, and (3) the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/brewerp_070811.pdf
LESTER ARNOLD CLOUSE v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
John Wayne Allen, Cookeville, Tennessee, for the appellant, Lester Arnold Clouse.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Randall A. York, District Attorney General; and Howard Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WOODALL
The petitioner, Lester Arnold Clouse, requests that this court grant him a new post-conviction hearing, asserting that the post-conviction court below did not address all of the issues raised in his petition for post-conviction relief nor did it memorialize its findings of fact and
conclusions of law in writing as required by statute. After reviewing the entire record, including the transcript of the original post-conviction hearing, we conclude that the order filed by Judge Wallace is sufficient for appellate review as it adopted the earlier oral findings of fact made by Judge Sells. All other issues are waived for failing to file an adequate record
for review and for failing to provide appropriate citations to the record. Therefore, we affirm the judgment of the post-conviction court denying the petitioner post-conviction relief.
http://www.tba2.org/tba_files/TCCA/2011/clousel_070811.pdf
RODNEY CORLEY v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Rodney Corley, Pro se, Henning, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: WEDEMEYER
The Petitioner, Rodney Corley, was convicted in 1985 of first degree murder, armed robbery, and employing a firearm in the commission of a felony, and he was sentenced to life plus five years. In 2010, the Petitioner filed a petition for a writ of error coram nobis, in which he alleged the existence of newly discovered evidence, and the trial court dismissed the petition without a hearing. On appeal, the Petitioner contends that the coram nobis court erred when it denied his petition without a hearing. After a thorough review of the record and relevant authorities, we affirm the coram nobis court's judgment.
http://www.tba2.org/tba_files/TCCA/2011/corleyr_070811.pdf
STATE OF TENNESSEE v. MICHAEL FARMER AND ANTHONY CLARK
With Concurring and Dissenting Opinion
Court: TCCA
Attorneys:
Patrick Stegall, Memphis, Tennessee, for the appellant, Michael Farmer.
Robert Wilson Jones, District Public Defender, and Tony N. Brayton and Dianne Thackery, Assistant Public Defenders, for the appellant, Anthony Clark.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
The defendants, Michael Farmer and Anthony Clark, were convicted of especially aggravated robbery, a Class A felony, and aggravated robbery, a Class B felony. They were each sentenced to fifteen years for the especially aggravated robbery and to a concurrent eight years for aggravated robbery, for a total effective sentence of fifteen years. On appeal, both defendants claim that the evidence is insufficient to support their convictions, asserting that no evidence put forth at their trial established that they actually took money from either
victim. Defendant Clark further claims that the straight, pass-through bullet wound inflicted on one victim's left thigh failed to pose a substantial enough risk of death to qualify as a serious bodily injury of the type necessary to sustain a conviction for especially aggravated robbery. Defendant Farmer further claims that the trial court erred by failing to sentence him
as an especially mitigated offender. After carefully reviewing the defendants' arguments and the record evidence, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/farmerm_070811.pdf
TIPTON concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCCA/2011/farmerm_CON_070811.pdf
STATE OF TENNESSEE v. DAMON HOUSTON
Court: TCCA
Attorneys:
Randall Tolley (on appeal) and Joseph S. Ozment (at trial), Memphis, Tennessee, for the appellant, Damon Houston.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
On March 8, 2009, the defendant was convicted of especially aggravated robbery, a Class A felony, and sentenced to fifteen years in the Department of Correction. On appeal, the defendant claims that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred by admitting certain evidence; (3) his due process rights were violated by prosecutorial misconduct; and (4) his sentence is excessive. After careful review of the record, we reject each of these claims and affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/houstond_070811.pdf
STATE OF TENNESSEE v. ANTON MAYHEW AND TRAVIS BROWN
Court: TCCA
Attorneys:
Lance R. Chism, Memphis, Tennessee, for the appellant, Anton Mayhew.
Patricia A. Woods, Memphis, Tennessee, for the appellant, Travis Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
Defendant Anton Mayhew was convicted of two counts of aggravated robbery, a Class B felony, and was sentenced as a Range I, standard offender to a pair of concurrent twelve-year terms. Defendant Travis Brown was convicted of two counts of aggravated robbery, a Class B felony, and one count of aggravated rape, a Class A felony. He was sentenced as a Range I, standard offender to concurrent twelve-year terms for the aggravated robberies and to a concurrent twenty-five-year term as a violent offender for the aggravated rape, for a total effective sentence of twenty-five years. On appeal, Defendant Mayhew claims that the trial court erred in admitting a portion of one witness's testimony and that the evidence is insufficient to support his convictions. Defendant Brown claims that the evidence is insufficient to support his convictions and that the trial court erred by denying his request for
a jury instruction relating to missing evidence, by requiring him to stand next to an enlarged photograph in open court, and by sentencing him to the maximum sentence. After careful review of the record and the arguments raised by both defendants and the State, we affirm the judgments of the trial court in all respects.
http://www.tba2.org/tba_files/TCCA/2011/mayhewa_0708.pdf
STATE OF TENNESSEE v. DUSTIN LEE OWENS
Court: TCCA
Attorneys:
Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Dustin Lee Owens.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Defendant, Dustin Lee Owens, was indicted for two counts of solicitation of a minor and one count of attempted aggravated statutory rape. Defendant entered an open guilty plea to all counts and was sentenced by the trial court to serve two years concurrently for Counts 1 and 2 and two years for Count 3, to be served consecutively to Counts 1 and 2, for a total effective sentence of four years as a Range I standard offender. In this appeal, Defendant challenges the trial court's order of consecutive sentencing, the length of the sentences, and the requirement that the sentences be served by incarceration. We find no error and affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/owensd_070811.pdf
JEROME LIONEL PRICE v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Jerome Lionel Price, Nashville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
The petitioner, Jerome Lionel Price, appeals the Davidson County Criminal Court's summary dismissal of his petition for post-conviction relief. The post-
conviction court dismissed the petition, without appointment of counsel, finding that the petitioner had failed to present a claim upon which a petition for post-conviction relief may be founded. On appeal, the
petitioner contends that the decision was in error because he asserts that he did, in fact, state a colorable claim for relief. We agree. As such, we reverse the order summarily dismissing the petition and remand the case for further proceedings pursuant to the Post-Conviction Procedure Act.
http://www.tba2.org/tba_files/TCCA/2011/pricej_070811.pdf
STATE OF TENNESSEE v. CHRISTOPHER LAWRENCE RODGERS
Court: TCCA
Attorneys:
Amanda Cox, Nashville, Tennessee, for the appellant, Christopher Lawrence Rodgers.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Robert Homlar, Assistant District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Defendant, Christopher Lawrence Rodgers, appeals the trial court's revocation of his probation sentence. Defendant was originally indicted for one count of domestic assault, three counts of indecent exposure, and four counts of stalking. Defendant entered guilty
pleas, pursuant to a negotiated plea agreement, to one count of domestic assault and one count of stalking and was sentenced to serve 11 months and 29 days for each conviction to be served concurrently, and his sentence was suspended on probation. Subsequently, a probation violation warrant was filed, which alleged that Defendant had acted in an abusive and intimidating manner towards his ex-girlfriend by continuing to contact her after she requested that he stop. At the probation revocation hearing, the warrant was amended, with the consent of Defendant, to allege that Defendant violated the conditions of his probation
by using intoxicants to excess. Following the hearing the trial court revoked Defendant's probation and entered a judgment placing Defendant's original sentence into effect. We conclude that the evidence does not preponderate against the trial court's finding of a
violation, and therefore affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/rodgersc_070811.pdf
STATE OF TENNESSEE v. WANDA F. RUSSELL
Court: TCCA
Attorneys:
Gerald L. Melton, District Public Defender and Russell N. Perkins, Assistant Public Defender, for the appellant, Wanda F. Russell.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, and Jennings Jones, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
A Rutherford County jury convicted Appellant, Wanda F. Russell, of three counts of theft over $1,000. Prior to trial, the State filed a notice that it was intending to introduce Appellant's prior convictions to impeach her testimony. At the conclusion of a jury-out hearing during trial, the trial court concluded that the State could use Appellant's prior convictions for passing worthless checks pursuant to Rule 609(a)(3) of the Tennessee Rules of Evidence to impeach Appellant. Appellant elected not to testify. She now appeals to this
Court arguing that the trial court erred in determining that her prior convictions were admissible for impeachment. We have reviewed the record on appeal. We have concluded that the trial court did not err in ruling that the prior convictions were appropriate for
impeachment of Appellant. Therefore, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/russellw_070811.pdf
STATE OF TENNESSEE v. RITA WHITE
Court: TCCA
Attorneys:
Kenneth D. Quillen, Nashville, Tennessee, for the appellant, Rita White.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; Dan M. Alsobrooks, District Attorney General; and Kelly Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Rita White, was convicted by a Dickson County Circuit Court jury of driving under the influence (DUI), a Class A misdemeanor, and pled guilty to failure to obey a required traffic control device, a Class C misdemeanor. See T.C.A. sections 55-10-401 (Supp.2009) (amended 2010), 55-8-109 (2010). She was sentenced to eleven months and twenty-nine days for the DUI conviction, with ten days to be served in confinement and the remainder on probation. She was sentenced to thirty days' probation for the traffic device conviction, to be served concurrently with the DUI sentence. On appeal, the Defendant contends that (1) the evidence was insufficient to support the conviction, (2) the trial court erred by denying her motion to suppress evidence, and (3) the trial court erred by denying her motion for a new trial based on prosecutorial misconduct during closing argument. We affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/whiter_070811.pdf
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| TODAY'S NEWS |
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Legal News
Politics
Upcoming
Disciplinary Actions
TBA Member Services
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| Legal News |
| Groups sue to stop Alabama immigration law |
| Civil rights groups sued today (Friday) in federal court to block Alabama's new law cracking down on illegal immigration. The suit says
the law is of "unprecedented reach" and goes beyond similar laws passed in Arizona, Utah, Indiana and Georgia. Federal judges already have blocked all or parts of the laws in those states.
Alabama's law, which takes effect Sept. 1, allows police to arrest anyone suspected of being an illegal immigrant if the person is stopped for some other reason. It also requires businesses to check the legal status of new workers and requires schools to report the immigration status of students. |
NPR carried this AP story
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| Torrence will resign before removal process starts |
| After Davidson County Criminal Court Clerk David Torrence received a letter from District Attorney General Torry Johnson, he decided it was time to retire. The letter said that if he did not resign by July 15, Johnson would seek to have him permanently removed from office. In an email to his staff today, Torrence said he would retire at 11 a.m. July 15. Johnson launched an investigation in May after a news story showed Torrence frequently came to the courthouse only three days a week and used his government vehicle to run personal errands. The longtime criminal court clerk will receive more than $80,000 a year pension, according to Metro officials, the Tennessean reports.
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WSMV has this recap
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| Davidson sworn in as assistant DA in 25th |
| Mark E. Davidson was sworn in by Circuit Court Judge J. Weber McCraw June 30 as the new assistant district attorney general in the 25th Judicial District. The district serves Lauderdale, Tipton, Fayette, Hardeman and McNairy counties.
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WMC-TV has the story
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| Key is new Foundation chair |
| Memphis lawyer Charles Key, a member of Wyatt, Tarrant & Combs' Health Care Practice, recently was installed as chairman of the Tennessee Bar Foundation. The Commercial Appeal reported the news. |
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| Editorial: Assistant DA's dedication will be missed |
| An editorial praises Assistant District Attorney David Puckett as he retires after
22 years handling cases in Cannon County.
Puckett's "quiet commonsense approach to the law has served Cannon County's residents well as he handled cases, large and small, with the same dedication," the paper says. |
Read the editorial in the Daily News Journal
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| Tennessee part of JP Morgan Chase settlement |
| Tennessee is one of 25 states to reach a $92 million settlement with JP Morgan Chase & Co. as part of an ongoing national investigation into charges the investment brokerage was involved in anticompetitive and fraudulent activities in the municipal bond derivatives industry. "Regardless of the means used to carry out the various schemes, the objective was to enrich the financial institution and/or the broker at the expense of the issuer," Attorney General Cooper said in a statement. |
The News Sentinel has this story
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| Garcia executed despite international appeals |
| The U.S. Supreme Court on Thursday refused to block the execution of a Mexican man who was not granted consular access that he was entitled to under international law. Humberto Leal Garcia was executed Thursday night at the Texas State Penitentiary in Huntsville.
The court's majority opinion rejected the White House's request for the execution to be delayed until Congress can pass legislation that requires states to honor the 1963 Vienna Convention. The Convention requires citizens of one nation arrested in another to be granted access to consular attorneys.
In addition to President Obama's request,
former President George W. Bush, the U.N. and several international judicial bodies called for a stay of execution, but Texas Gov. Rick Perry declined.
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The Blog of Legal Times has more
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| Suspension over just in time for re-election bid |
| A Nashville Metro at-large councilman running for re-election should be able to practice law again sooon. The Tennessee Supreme Court last week suspended Jerry Maynard's law license for 18 months but made it retroactive to Jan. 25, 2010 -- the date he was temporarily suspended from practicing law. Election Day is Aug. 4, with early voting beginning July 15. |
The City Paper reports
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| Confidentiality or withholding evidence? |
| The husband of a missing woman had given their home computers to his lawyer, Lee Davis, and when investigators looked for them they didn't know where they were.
Attorneys handling evidence of a potential crime belonging to clients they represent is a gray area in the law, said Wesley Oliver, an associate law professor at Widener University in Pennsylvania, who used to practice law in Nashville.
Law offices are "not a storage unit," Oliver said. "At what point does he have an obligation to the court to prevent obstruction of justice and turn this over?"
"If we get any information on there that helps us identify or direct where [she] went, certainly, we would share that with [authorities] immediately," Davis said. |
The Chattanoogan reports
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| Possible jail time for Willie Nelson |
| A Texas judge says Willie Nelson will need to be treated like everyone else and be charged with possession of marijuana, which could mean up to one year in jail. The prosecutor had suggested
the lesser charge of possession of drug paraphernalia, which is not punishable with jail time. Hudspeth County Judge Becky Dean-Walker said no, pointing out that the prosecutor "doesn't do that for anybody else." |
The Tennessean has this AP story
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| Politics |
| Fincher campaign investigation closed |
| The Federal Election Commission investigation of U.S. Rep. Stephen Fincher, R-Tenn., has been closed.
Fincher has been under investigation for violating election laws regarding filing requirements and a loan to his campaign. In an undated letter to Fincher's lawyer Elliot S. Berke, Acting Deputy Associate General Counsel for Enforcement Susan L. Lebeaux wrote that three violations were reviewed, but that a majority of the six-member commission did not vote to take action. |
Learn more about it from the Commercial Appeal
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| Upcoming |
| 'Hot Coffee' film looks at facts of McDonald's case |
| "Hot Coffee," a documentary centered around the infamous 1994 McDonald's case, is now playing on HBO as part of its Summer Documentary Series.
The case routinely has been cited as an example of how citizens have taken advantage of America's legal system, but the film questions if that is a fair rendition of the facts. "Hot Coffee" reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald's, while also exploring how and why the case garnered so much media attention, who funded the effort, and to what end. |
Learn more about it
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| Disciplinary Actions |
| Waynesboro lawyer suspended |
| On July 5, John Wilburn Castleman Jr. of Waynesboro was suspended for one year for failing to communicate with clients, diligently pursue clients' divorce matters and return unearned fees. However, the Supreme Court made the suspension retroactive to Dec. 14, 2009, the date of Castleman's temporary suspension. The court also ordered that he pay restitution and pay the costs of his reinstatement proceeding. |
Download the BPR press release
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| Davidson County lawyer reinstated |
| Davidson County lawyer Frank G. Abernathy was reinstated to the practice of law on July 1 after having been suspended since April 1, 2002. A hearing panel determined that he should be reinstated with these conditions: engage a practice monitor for three years, participate in an additional 15 hours of continuing legal education each year for three years, and attend the Mid-South Commercial Law Institute and Southeast Bankruptcy Institute each year for three years.
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Download the BPR press release
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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.
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