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| Wednesday, September 07, 2011 |
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Fitting timing for Donald confirmation
U.S. District Judge Bernice Donald came back from the Labor Day holiday to a busy Tuesday, that ended late in the day with the U.S. Senate voting to confirm her appointment to the federal appellate bench. Commenting on her confirmation, U.S. Sen. Lamar Alexander said, "It is coincidental, but I think it is fitting that Judge Bernice Donald, a pioneer in so many ways in our state's history, will be the first nomination for the federal bench that this body will consider after the opening of the Martin Luther King Memorial in the nation's capital. Her life, which is full of education and service and achievement, is a testimonial to the success of Dr. King's movement and the kind of leadership he inspired."
Though she was confirmed, a three-year-old transcript error that misattributed her words caused a bit of trouble along the way, but was cleared up before the vote.
Read about that issue in the Blog of Legal Times
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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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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_090711.pdf
O'RANE M. CORNISH, SR. v. THE CITY OF MEMPHIS, ET AL.
Court: TCA
Attorneys:
O'Rane M. Cornish, Sr., Memphis, Tennessee, pro se.
Philip E. Oliphant, Memphis, Tennessee, for the appellee, City of Memphis and City Council.
Robert B. Rolwing, Memphis, Tennessee, for the appellee, Shelby County.
Larry E. Fitzgerald, Memphis, Tennessee, for the appellee, East Haven Church and Development Corp.
Judge: HIGHERS
Petitioner filed a complaint for declaratory judgment seeking a declaration that the city council's decision one year earlier to grant a special use permit was arbitrary and capricious.
The trial court dismissed the complaint upon concluding that the petitioner should have challenged the decision by filing a petition for writ of certiorari within sixty days. We affirm.
http://www.tba2.org/tba_files/TCA/2011/cornisho_090711.pdf
DANIEL H. JONES v. MARK GWYN, DIRECTOR, ET AL.
Court: TCA
Attorneys:
Daniel H. Jones, pro se appellant.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Benjamin A. Whitehouse, Assistant Attorney General; for the appellees, Mark Gwyn, Director of the Tennessee Bureau of Investigation, and Avis Stone, Coordinator, Tennessee Bureau of Investigation.
Judge: SWINEY
Daniel H. Jones ("Jones") filed a petition for writ of mandamus against Mark Gwyn and Avis Stone ("Respondents"), Director and Coordinator, respectively, of the Tennessee Bureau of Investigation ("TBI"), in the Circuit Court for Sullivan County ("the Trial Court"). Jones sought to have the Trial Court direct Respondents to act on an earlier order by the Criminal Court for Sullivan County at Blountville, Tennessee ("the Criminal Court") to expunge all public records related to a dismissed rape charge against Jones. Respondents moved to dismiss. The Trial Court granted Respondents' motion to dismiss on the basis of improper
venue. Jones appeals. We find that the Trial Court did not err in dismissing Jones's petition. We affirm the judgment of the Trial Court.
http://www.tba2.org/tba_files/TCA/2011/jonesd_090711.pdf
IN RE: DON JUAN J.H., et al.
Court: TCA
Attorneys:
Philip M. Jacobs, Cleveland, Tennessee, for the appellants, Nathan and Pamela Riddle.
Alice W. Wyatt, Dunlap, Tennessee, for the appellees, Kelly and Misty Thurman.
Robert E. Cooper, Jr., Attorney General and Reporter, and Marcie E. Greene, Assistant
Attorney General, Nashville, Tennessee, for the Tennessee Department of Children's Services.
Judge: FRANKS
Petitioners filed a Petition to Adopt the minor child, Don Juan J.H., and the Department of Children's Services then filed a Waiver of Guardianship stating that DCS approved of
adoption by the petitioners. The Trial Court granted petitioners partial guardianship of the child before trial, and the appellants filed a Petition to Intervene in the adoption proceeding which the Trial Court granted. Upon trial of the case, the Trial Court dismissed appellants' intervening petition and granted the adoption. Appellants appealed, arguing that the Trial Court refused to conduct a comparative fitness analysis between petitioners and appellants to determine the best interests of the child. We affirm the Judgment of the Trial Court because appellants were required to contest the guardianship before they would have been
eligible to petition for adoption of the child.
http://www.tba2.org/tba_files/TCA/2011/juand_090711.pdf
STATE OF TENNESSEE v. CALVIN CATHEY
With Dissenting Opinion
Court: TCCA
Attorneys:
J. Diane Blount (on appeal) and Rachael Scott (at trial), Trenton, Tennessee, for the appellant, Calvin Cathey.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel W. Willis, Assistant Attorney General; Garry G. Brown; District Attorney General; and Edward L. Hardister and Matthew
Hooper, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: OGLE
The appellant, Calvin Cathey, pled guilty in the Crockett County Circuit Court to possession of .5 grams or more of a Schedule II controlled substance with intent to sell or deliver and received an eight-year sentence to be served as one hundred eighty days in jail and the remainder on probation. As a condition of his plea, the appellant reserved a certified
question of law, namely whether the search warrant obtained to search his home sufficiently described the property to be searched. Based upon the record and the parties' briefs, we
affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/catheyc_090711.pdf
SMITH dissenting
http://www.tba2.org/tba_files/TCCA/2011/catheyc_DIS_090711.pdf
ELMER HARRIS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Sean H. Muizers, Memphis, Tennessee, for the Defendant-Appellant, Elmer Harris.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Bryan Davis, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, Elmer Harris, appeals the post-conviction court's denial of his petition for post-conviction relief. He was convicted by a jury of aggravated assault, attempted
aggravated robbery, and aggravated robbery. The Petitioner received an effective sentence of twenty-nine years in confinement. In this appeal, he argues that he was denied the
effective assistance of counsel at trial and on appeal. He claims that trial counsel was ineffective for failing to adequately investigate witnesses, failing to question discrepancies in the witnesses' statements, and failing to provide complete discovery until after trial. He further claims appellate counsel was ineffective because the Petitioner was not notified that his direct appeal had been denied until after the deadline to file a Rule 11 appeal to the Tennessee Supreme Court had expired. We affirm the judgment of the post-conviction court with respect to trial counsel. In regard to appellate counsel, we conclude that the Petitioner
is entitled to petition the Tennessee Supreme Court for further review pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure.
http://www.tba2.org/tba_files/TCCA/2011/harrise_090711.pdf
STATE OF TENNESSEE v. STEVEN MALONE
Court: TCCA
Attorneys:
C. Anne Tipton, Memphis, Tennessee, for the appellant, Steven Malone.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; Betsy Carnesale and Jennifer
Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: WELLES
A Shelby County jury convicted the Defendant, Steven Malone, of second-degree murder and aggravated assault. He was sentenced to concurrent sentences of twenty-five years for the second-degree murder and four years for the aggravated assault. On appeal, the Defendant argues that the evidence was insufficient to sustain his conviction for second-degree murder, that the State failed to establish a proper chain of custody as to certain evidence, that extraneous information improperly influenced the jury's verdict, and that cumulative error requires a reversal of his convictions. Following our review, we affirm the judgments of the
trial court.
http://www.tba2.org/tba_files/TCCA/2011/malones_090711.pdf
ROBERT EARL SMITH v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Michael R. Working, Memphis, Tennessee, for the Defendant-Appellant, Robert Earl Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda H. Dwyer, Assistant
District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The petitioner, Robert Earl Smith, appeals from the denial of post-conviction relief by the Criminal Court for Shelby County. He was originally convicted of second degree murder and received a sixty-year sentence as a Range III, career offender. In this appeal, the petitioner claims that he received ineffective assistance of counsel based on the following grounds: (1) trial counsel's failure to argue the standard of proof beyond a reasonable doubt during
closing argument; (2) trial counsel's failure to prepare and investigate the case; (3) trial counsel's failure to challenge the validity of four prior felony convictions at sentencing; and
(4) appellate counsel's failure to argue the validity of the same prior convictions on appeal. Upon review, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/smithr_090711.pdf
ARTIS WHITEHEAD v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Sean G. Hord, Memphis, Tennessee, for the appellant, Artis Whitehead.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The petitioner, Artis Whitehead, appeals from the denial of his untimely petition for post-conviction relief. The post-conviction court denied the petition after finding that due process concerns did not toll the statute of limitations. The petitioner argues that due process concerns should toll the statute of limitations because (1) appellate counsel still represented him when she sent a letter informing him of the incorrect deadline for filing his petition for post-conviction relief and (2) that incorrect information was a misrepresentation sufficient to cause due process concerns to toll the statute of limitations. Upon our careful review of
the record, the parties' arguments, and the applicable law, we affirm the denial of post-conviction relief.
http://www.tba2.org/tba_files/TCCA/2011/whiteheada_090711.pdf
JOHN WILLIAMS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Robert C. Brooks, Memphis, Tennessee, for the appellant, John Williams.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and Alexia Fulgham, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: TIPTON
The Petitioner, John Williams, appeals the Shelby County Criminal Court's denial of post-conviction relief from his convictions for five counts of especially aggravated kidnapping
and three counts of aggravated robbery, with an effective sentence of 161 years. He contends that the trial court violated his constitutional right to a public trial and that counsel rendered ineffective assistance by failing to object to partial closure of the trial and failing to raise the issue on direct appeal. Because the trial court's order denying post-conviction relief is incomplete, we reverse the judgment and remand the case to the trial court for findings of
fact and conclusions of law on the ineffective assistance of counsel claim.
http://www.tba2.org/tba_files/TCCA/2011/williamsj_090711.pdf
DANIEL WADE WILSON v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Robert Payne Cave, Jr., Johnson City, Tennessee, for the appellant, Daniel Wade Wilson.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Barry Staubus, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
The petitioner, Daniel Wade Wilson, appeals the Sullivan County Criminal Court's denial of his petition for post-
conviction relief from his convictions for first degree felony murder, second degree murder, and especially aggravated robbery and resulting effective sentence of life in confinement. On appeal, he contends that he is entitled to post-conviction relief because his confession to police was coerced and because he received the ineffective assistance of counsel. The State argues that the post-conviction court erred by determining that the one-year statute of limitations for filing the post-conviction petition was tolled and,
therefore, that the petition is time-barred. Based upon the record and the parties' briefs, we agree with the State that the statute of limitations was not tolled in this case because trial counsel did not mislead the petitioner regarding the status of his appeal to the Tennessee Supreme Court. Therefore, the appeal is dismissed.
http://www.tba2.org/tba_files/TCCA/2011/wilsond_090711.pdf
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| TODAY'S NEWS |
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Legal News
TBA in the News
Upcoming
TBA Member Services
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| Legal News |
| New ADA named in 23rd Judicial District |
| Dan M. Alsobrooks, the 23rd Judicial District Attorney General, recently announced the appointment of Brooke Marie Orgain as an assistant district attorney in his office. Orgain was sworn in to office by Judge Andrew Jackson on Aug. 31. Her duties will include prosecution of criminal cases in general sessions court, cases in juvenile court and cases in the municipal courts of Cheatham, Dickson, Houston, Humphreys and Stewart counties. Orgain is a graduate of Mississippi College School of Law.
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The Tennessean has a photo of Orgain's swearing-in ceremony
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| Gaile Owens faces first parole hearing |
| At Gaile Owens' first parole hearing today, one member of the Tennessee Board of Probation and Parole -- the only one present -- voted to release her from prison. She needs three votes to be paroled. Whether she will be released will be decided by the full panel at a later date. Owens was convicted and sentenced to death in 1986 for hiring a man to kill her husband. After the trial, information came out that he had physically and sexually abused her. On July 14, 2010, just 77 days before she was scheduled to die by lethal injection, former Gov. Phil Bredesen commuted her sentence to life, making her eligible for parole.
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The Tennessean has more
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| CASA names lawyers as board leaders |
| Tennessee Court Appointed Special Advocates (CASA) Association has elected Meagan Frazier Grosvenor as president and Kevin Balkwill as vice president of its 2011-2012 board of directors. Grosvenor is a lobbyist and lawyer at Smith Harris & Carr in Nashville. She graduated from the Nashville School of Law in 2007. Balkwill is a disciplinary counsel at the Board of Professional Responsibility. He earned his law degree from the University of Memphis School of Law in 1999. |
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| Memphis divorce firm models collaborative law |
| The Memphis law firm of Shea, Moskovitz & McGhee is taking a less adversarial approach to divorce, avoiding the traditional avenues of litigation and mediation. Offering a "third way," the lawyers are championing the concept of collaborative law, in which both parties are represented by their own attorneys but agree to cooperate, share information and be kind to one another. The process also is confidential and privileged so it cannot be used later in court, and if the process breaks down, both parties must start over with new lawyers. According to Linda Warren Seely, an attorney for Memphis Area Legal Services, only about 20 attorneys are trained in collaborative law but it's just a matter of time before it takes over a large portion of the market.
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The Commercial Appeal has more
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| Law firm takes over historic space |
| The law firm of Bennett, Parkerson & Bray opened its new offices at 108 N. Church St. on Murfreesboro's Public Square with a ribbon cutting ceremony last week. Having been home to two of Murfreesboro's most prominent drugstores, one of which became a favorite lunch spot for lawyers, clerks and judges, the new tenants -- Thomas Parkerson, Stan Bennett and Thomas Bray -- are excited to share the space with the community. The building has been renovated to celebrate the original design, and notable features include the exposed 1800s brick and original tin ceiling with molding details.
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The Murfreesboro Daily reports
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| Leak forces court clerks to improvise |
| A leaking roof at the Blount County Justice Center this week left the General Sessions Court clerk's office with water damage and forced personnel to share space with the Circuit Court clerk's office in order to keep the court open and on schedule. Circuit Court Clerk Tom Hatcher said it could take up to five days to clean up the mess and get the office reopened.
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Blount Today has more
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| Knoxville OKs funds for child predator task force |
| The Knoxville City Council yesterday approved a police department proposal to spend nearly $150,000 in federal funds to help other agencies participate in a regional task force that combats sexual predators who target children on the Internet. The bulk of the funds will go to the Tennessee Association of Chiefs of Police to provide training for the officers participating in the Internet Crimes Against Children Task Force.
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The News Sentinel has more
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| One way to save money: Jurors give up pay |
| In April, Sue Bell Cobb, who was chief justice of the Alabama Supreme Court at the time, ordered circuit court clerks and judges to ask jurors to forego their pay to help the state judicial system save money. So far, it hasn't netted much income. In Alabama, jurors receive $10 per day and 5 cents per mile for travel from their home to the courthouse. Alabama spends about $2 million to pay jurors each year. "The jurors make so little that it's embarrassing to even ask them to give up their pay, but we do because the state told us to," Lauderdale Circuit Court Clerk Missy Homan Hibbett said. |
The Times Daily reports
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| Legal field is most difficult for job placement |
| An employment website has bad news for unemployed lawyers: the legal field is the most difficult industry for job placement. According to data from job search engine SimplyHired.com, there is less than one job opening for every 100 working lawyers, making it the career that is most difficult for job placement. Meanwhile, data from the Bureau of Legal Statistics shows the legal industry added only 100 new jobs in August, according to the Am Law Daily.
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Learn more from the ABA Journal
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| Advocacy firms take on big cases, big bucks |
| Jay Sekulow sits as the principal officer of two closely related multimillion-dollar legal charities: Christian Advocates Serving Evangelism (CASE) which he founded in San Francisco, and the better-known American Center for Law and Justice, founded by Pat Robertson and based in Virginia Beach. The organizations have been proactive, taking on issues such as national health care and the ground zero mosque, and have been successful -- paying out more than $33 million to members of Sekulow's family and businesses they own or co-own. But questions have surfaced about how the two organizations interact and whether donors know where their money goes.
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The Tennessean explores
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| TBA in the News |
| Paper profiles TBA President Van Horn |
| The afternoon edition of the Memphis Daily News includes a profile of TBA President Danny Van Horn reflecting on his career path, his greatest professional accomplishments to date and his plans for the year. A litigator at heart, Van Horn sums up his view of the law by saying "My worst day in the courtroom is better than any day outside of the courtroom." |
Read the piece here
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| Upcoming |
| Constitutional expert Barry Lynn to speak on Monday |
| Barry Lynn, a nationally recognized authority on matters relating to the separation of church and state, will be in Chattanooga on Sept. 12 for a presentation and discussion at the Pilgrim Church beginning at 7 p.m. Lynn, who is executive director of Americans United for Separation of Church and State will provide an overview of the historical context of the Establishment Clause and how it applies today in public school settings. A reception with Lynn will follow the presentation.
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Get more details on Chattanoogan.com
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| TBA Member Services |
| Let JobLink help you with your next career move |
| A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
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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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