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| Monday, November 28, 2011 |
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Feds celebrate Cyber Monday by seizing 150 web sites
For their part in "Cyber Monday," federal authorities shut down 150 domain names for web sites that featured alleged knock-offs of authentic jerseys, handbags, sports equipment and other items.
The Blog of Legal Times reports
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TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_112811.pdf
KENNETH E. DIGGS v. DNA DIAGNOSTIC CENTER
Court: TCA
Attorneys:
Kenneth E. Diggs, Pro se.
James E. Looper, Jr., and J. Bart Pickett, Nashville, Tennessee, for the appellee, DNA Diagnostic Center.
Judge: FARMER
The trial court dismissed Plaintiff's action for fraud based on the statute of limitations. We affirm.
http://www.tba2.org/tba_files/TCA/2011/diggsk_112811.pdf
TAVARSKI CHILDRESS V. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Lance R. Chism, Memphis, Tennessee, for the appellant, Tavarski Childress.
Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; Chris West, Assistant District Attorney General; for the appellee, State of Tennessee.
Judge: BIVINS
The Petitioner filed for post-conviction relief alleging ineffective assistance of counsel in conjunction with his trial that resulted in convictions of first degree felony murder and especially aggravated robbery. After an evidentiary hearing, the post-conviction court denied
relief, and the Petitioner has appealed. After a thorough review of the record, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/childresst_112811.pdf
STATE OF TENNESSEE v. MONTEZ DUNCAN
Court: TCCA
Attorneys:
Justin Gee (at trial) and Neil Umsted (on appeal), Memphis, Tennessee, for the appellant, Montez Duncan.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Pam Fleming, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
The appellant, Montez Duncan, pled guilty in the Shelby County Criminal Court to attempted first degree murder, especially aggravated robbery, and especially aggravated kidnapping. The trial court sentenced the appellant to a total effective sentence of twenty-five years in the Tennessee Department of Correction. On appeal, the appellant challenges the length of the
sentences imposed by the trial court. Upon review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/duncanm_112811.pdf
STATE OF TENNESSEE v. JUSTIN GIBSON
Court: TCCA
Attorneys:
Jeremy W. Parham, Nashville, Tennessee, for the Defendant-Appellant, Justin Gibson.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Kim R. Helper, District Attorney General; and Kelly Lawrence, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
Defendant-Appellant, Justin Gibson, pled guilty to driving under the influence with a blood alcohol level of .08 percent or more, a Class A misdemeanor. He agreed to a sentence of eleven months and twenty-nine days, all of which was suspended after seven days' incarceration. Gibson entered a conditional plea agreement and attempted to reserve a certified question of law under Tennessee Rule of Criminal Procedure 37. The certified question of law addressed whether the search of Gibson's home violated his constitutional rights and whether evidence obtained as a result should be suppressed. On appeal, he argues
that the warrantless search was not justified by either consent or exigent circumstances. We conclude that we are without jurisdiction to consider the appeal because the order stating the certified question was not filed until after Gibson filed his notice of appeal. The appeal,
therefore, is dismissed.
http://www.tba2.org/tba_files/TCCA/2011/gibsonj_112811.pdf
STATE OF TENNESSEE v. BARRY D. HARRIS, JR.
Court: TCCA
Attorneys:
Sandra L. Wells, Franklin, Tennessee, for the Defendant-Appellant, Barry D. Harris, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Kim R. Helper, District Attorney General; and Tammy J. Rettig, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
Defendant-Appellant, Barry D. Harris, Jr., pled guilty in the Circuit Court of Williamson County to aggravated assault, a Class C felony, unlawful carrying or possession of a weapon, a Class E felony, and simple possession of a controlled substance, a Class A misdemeanor. The trial court sentenced Harris as a Range I, standard offender to an effective term of six years' imprisonment in the Department of Correction. Harris attempted to reserve a certified question of law under Rule 37 of the Tennessee Rules of Criminal Procedure, addressing
whether the trial court erred in denying his motion to suppress evidence discovered as a result of a search of his residence. Because Harris failed to comply with the proper procedure for reserving such a question, we conclude that we are without jurisdiction to consider it. Additionally, Harris appeals the length of his sentence, arguing that the sentence does not conform to the statutory purposes of sentencing. Upon review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/harrisb_112811.pdf
STATE OF TENNESSEE v. MICHAEL D. JOHNSON
Court: TCCA
Attorneys:
Guy T. Wilkinson, District Public Defender and Richard W. DeBerry, Assistant District Public Defender, Camden, Tennessee for the Defendant-Appellant, Michael D. Johnson.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Hansel J. McCadams, District Attorney General; and Ed. N. McDaniel, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
Defendant-Appellant, Michael D. Johnson, was convicted by a Hardin County jury of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony. Johnson was sentenced to twenty-five years in the Department of Correction for rape of a child and ten
years for aggravated sexual battery, to be served concurrently. On appeal, he argues that the evidence was insufficient to support his convictions. Upon review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/johnsonm_112811.pdf
RICKY JOHNSON v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Ricky Johnson, Mountain City, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel, Assistant Attorney General; James (Jerry) G. Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, Ricky Johnson, was convicted by a Madison County jury in 1989 of burglary of an automobile and grand larceny and was sentenced to concurrent eight-year sentences as a Range II, persistent offender. More than twenty-one years later, the Petitioner filed a petition for writ of error coram nobis, alleging that there was a variance between the
indictment and the proof at trial and that his convictions violated double jeopardy protections. The Madison County Circuit Court summarily dismissed the petition. On appeal, the Petitioner argues that the coram nobis court erred: (1) in dismissing the petition
without an evidentiary hearing and without appointing counsel; and (2) in denying him relief. Upon review, we affirm the judgment of the coram nobis court.
http://www.tba2.org/tba_files/TCCA/2011/johnsonr_112811.pdf
STATE OF TENNESSEE v. DEBRA ELAINE MOORE KIRK
Court: TCCA
Attorneys:
Carter S. Moore, Newport, Tennessee, for the appellant, Debra Elaine Moore Kirk.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James B. Dunn, District Attorney General; and Amanda H. Inman, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, Debra Elaine Moore Kirk, stands convicted of criminally negligent homicide, a Class E felony, and aggravated child abuse, a Class A felony. The trial court sentenced her as a Range I, standard offender to an effective sentence of 25 years in the Tennessee Department of Correction. In a previous appeal, this court ruled that the defendant waived
all issues other than sufficiency of the evidence by failing to file a timely motion for new trial and affirmed the judgments of the trial court. See State v. Debra Elaine Moore, No. E2007-00533-CCA-R3-CD (Tenn. Crim. App., Knoxville, June 23, 2008). A post-conviction
court granted post-conviction relief in the form of a delayed appeal. In this appeal, the defendant argues that the trial court erred by allowing certain testimony from the medical examiner and that the evidence was insufficient to support her convictions. Our previous determination that the evidence was sufficient to support the defendant's convictions is the law of the case, and we do not consider this issue. Following our review of the remaining issues, we conclude that the trial court committed no reversible error and affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/kirkd_112811.pdf
STATE OF TENNESSEE v. CONNIE R. MARTIN
Court: TCCA
Attorneys:
Tom W. Crider (at trial and appeal), District Public Defender, Trenton, Tennessee; Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee, for the Defendant-Appellant, Connie Martin.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Garry G. Brown, District Attorney General; and Stephanie Hale, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
Defendant-Appellant, Connie R. Martin, appeals from the Gibson County Circuit Court's order revoking her probation. She was originally convicted of two counts of solicitation of first degree murder, aggravated burglary, forgery, and misdemeanor theft. She received an
effective twenty-year sentence, part of which was to be served on probation. In this appeal, Martin claims that the trial court erred in revoking her probation. Upon review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/martinc_112811.pdf
STATE OF TENNESSEE v. LANDON CHRISTOPHER MCGAHEE
Court: TCCA
Attorneys:
Ardena J. Garth, District Public Defender, and Richard Kenneth Mabee, Assistant Public Defender, for the Defendant, Landon Christopher McGahee.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William H. Cox, District Attorney General; Bates W. Bryan, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: THOMAS
The Defendant, Landon Christopher McGahee, pled guilty to five counts of burglary of an automobile and was sentenced to serve six years on community corrections. He appeals as of right from the Hamilton County Criminal Court's revocation of his community corrections sentence and order of incarceration. The Defendant contends that the trial court erred by
ordering four years of the previously imposed sentence to be served in confinement. Following our review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/mcgaheel_112811.pdf
TARREAN V. NUBY v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Terita M. Hewlett, Memphis, Tennessee, for the appellant, Tarrean V. Nuby.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Corliss Shaw, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The petitioner, Tarrean V. Nuby, appeals the denial of his petition for post-conviction relief from his convictions for attempted first degree murder and aggravated robbery, arguing that he received ineffective assistance of both trial and appellate counsel. Following our review, we affirm the denial of the petition.
http://www.tba2.org/tba_files/TCCA/2011/nubyt_112811.pdf
TIMOTHY GARVIN ODOM v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Gary F. Antrican, District Public Defender; and Shana Johnson, Assistant Public Defender (at trial and of counsel on appeal), for the appellant, Timothy Garvin Odom.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe L. VanDyke, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The petitioner, Timothy Garvin Odom, appeals the denial of his petition for post-conviction relief from his conviction for rape of a child. On appeal, he argues that the trial court erred in denying his petition because he received the ineffective assistance of counsel. After
review, we affirm the denial of the petition.
http://www.tba2.org/tba_files/TCCA/2011/odomt_112811.pdf
STATE OF TENNESSEE v. JONI MICHELLE OSBORNE
Court: TCCA
Attorneys:
Casey A. Long, Franklin, Tennessee, for the appellant, Joni Michelle Osborne.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Kim R. Helper, District Attorney General; and Christopher K. Vernon, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
A Williamson County Circuit Court jury convicted the defendant, Joni Michelle Osborne, of simple possession of a controlled substance (methamphetamine), see T.C.A. section 39-17-418(a) (2006), and violation of the seatbelt law, see id. section 55-9-603. Following the jury's verdict, the trial court found the defendant guilty of felonious simple possession based upon her prior
history of drug convictions, see id. section 39-17-418(e), and imposed an effective sentence of two years consisting of 30 days' incarceration in jail and the service of the remaining portion of her sentence on probation. On appeal, the defendant argues that the trial court erred by denying her motion to suppress the fruits of the search of her vehicle, denying her motion to
continue the trial, and referring to an exhibit as "illegal drugs" in its instructions to the jury, and that the cumulative effect of these errors deprived her of a fair trial. Discerning no error, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/osbornej_112811.pdf
KEVEN SCOTT v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
R. Todd Mosley, Memphis, Tennessee, for the appellant, Keven Scott.
Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; Doug Carriker, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: BIVINS
The Petitioner was convicted by a jury for possession of cocaine, possession of more than .5 grams of cocaine with the intent to deliver, and possession of marijuana. These convictions were sustained on appeal. The Petitioner subsequently filed for post-conviction relief, alleging ineffective assistance of counsel at trial. Specifically, the Petitioner argues that his trial counsel performed ineffectively by failing to file a motion to suppress the evidence obtained during a police search. Following an evidentiary hearing, the post-conviction
court denied relief, and the Petitioner has appealed. After a thorough review of the record, we conclude that the Petitioner has not met his burden of proving that he was prejudiced by his trial counsel's failure to file a motion to suppress. Consequently, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/scottk_112811.pdf
Creditors' Claims under the Tennessee Investment Services Act of 2007
TN Attorney General Opinions
Date: 2011-11-28
Opinion Number: 11-79
http://www.tba2.org/tba_files/AG/2011/ag_11_79.pdf
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| TODAY'S NEWS |
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Legal News
Passages
General Assembly News
Upcoming
U.S. Supreme Court
TBA Member Services
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| Legal News |
| Weirich files to stay in office |
| Shelby County District Attorney General Amy Weirich filed her qualifying petition last week to run in the March 6 Republican primary for the post she has held since last January.
Weirich was appointed the county's chief prosecutor by Tennessee Gov. Bill Haslam after he appointed Bill Gibbons, her predecessor, to be the state commissioner of safety and homeland security.
The 2012 special election is to fill the remaining two years left on Gibbons' eight-year term of office. |
The Daily News reports
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| Judge apologizes to Kelo for eminent domain decision |
| A state Supreme Court justice in Connecticut told Susette Kelo that
he was sorry that he joined the court majority in upholding the improper eminent domain action against Kelo and others. He told her that he would have ruled differently had he known the implications of the decision. In an editorial, the Times Free Press calls it a "startling apology."
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Read the editorial
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| Chancellor: Spirit of FOIA is paper copies |
| Chancellor Robert Corlew III ruled last week that the Rutherford County Board of Education could provide paper copies of email records -- instead of electronic versions -- in response to a parent's open records lawsuit against Campus School and the school district.
"The spirit of the (Freedom of Information) act means we are going to be dealing with hard copies," Corlew said. "We still require the paper copy." This means the parents will be have to pay the $1,146 printing bill.
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The Daily News Journal has more
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| Gibson wants its wood back |
| Attorneys for Gibson Guitar will return to federal court as early as Dec. 12 to argue that valuable ebony woods seized by the federal government in a 2009 raid must be returned.
The Nashville guitar maker has been raided twice in two years by U.S. Fish and Wildlife Service agents on suspicions it violated the environmental protection law that bars imports of woods from endangered forests. |
Read it in the Tennessean
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| Editorial: Be careful with changes to immigration law |
| An editorial in the Paris-Post Intelligencer points out that "it's going to be a delicate task" for legislators who want to tighten rules on illegal immigrants while not driving away foreign farm workers essential to the state's agriculture.
Temporary skilled labor is essential to the harvest, the paper says, and warns that
"as it pursues immigration justice, the legislature must exercise the rare virtue of prudence." |
Read the editorial
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| Sirhan seeks release or new trial, cites evidence of innocence |
| Sirhan Sirhan, convicted of the 1968 assassination of presidential candidate Sen. Robert F. Kennedy, should be freed from prison or granted a new trial based on "formidable evidence" asserting his innocence and "horrendous violations" of his rights, defense attorneys said in federal court papers filed last week. |
CNN reports
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| Nashville firm changes name |
| Nashville law firm Drescher & Sharp has changed its name to DHPM and added several new attorneys. |
Learn more from the firm
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| Family lawyer Cohen is profiled |
| Memphis lawyer Adam Cohen talks about his first job, his hopes for the way child custody cases should be handled, and his movie collection. |
Read this profile in the Commercial Appeal
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| Passages |
| Memphis lawyer Boyd dies |
| Memphis attorney Arch Boyce Boyd III died Nov. 25 at the age of 61. He was a practicing Memphis attorney for 36
years, graduating from law school at Memphis State University in 1975.
Visitation will be 5 to 7 p.m. Tuesday and services will be at 10 a.m. Wednesday at Memphis Funeral Home. A second visitation and service will be held in Campbell, Mo., his hometown, at Landess Funeral Home on Wednesday evening with burial at 10 a.m. Thursday at Woodlawn Cemetery in Campbell. Donations may be given to First Baptist Church, Campbell, or to the charity of choice. |
Read his obituary in the Commercial Appeal
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| General Assembly News |
| Gun rights advocates gearing up for next session |
| Gun rights advocates in Tennessee are embracing an Arizona law that does away with a requirement that handgun owners get a permit before carrying their weapons in public. The groups also say they will lobby the legislature next year to open all parks in the state to handguns and making it easier to carry guns into school and workplace parking lots. |
Read about it in the Tennessean
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| Upcoming |
| Hon. George Paine to be honored at MSCLI |
| A lunch honoring Judge George C. Paine II on his retirement after serving 30 years on the bench will be part of this year's
Mid-South Commercial Law Institute. A panel of prominent judges will share their experiences and stories about Judge Paine.
The Institute is Dec. 1-2 at the Nashville Marriott at Vanderbilt University. For more information, contact
W. Neal McBrayer,
president, Mid-South Commercial Law Institute, at
615-744-8514 or at nmcbrayer@millermartin.com.
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| U.S. Supreme Court |
| Recusals not coming for Kagan, Thomas in health care case |
| Conservative interest groups and Republican lawmakers want Justice Elena Kagan off the health-care case. Liberals and Democrats in Congress say it's Justice Clarence Thomas who should sit it out.
Neither justice is budging -- the right decision, according to many ethicists and legal experts. |
The Tennessean has the story
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| TBA Member Services |
| Office Depot Discounts |
| Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from the store. |
Find out more
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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.
© Copyright 2011 Tennessee Bar Association
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