Services today, Tuesday for Judge Barker

Federal Administrative Law Judge Joseph Vance "Joey" Barker, 63, of South Pittsburg died suddenly on Saturday. Barker graduated from the University of Tennessee College of Law in 1973 and practiced law in South Pittsburg for 19 years. He also served as attorney for the city and for the Marion Natural Gas & Water Board. In 1994, he was appointed an administrative law judge in Raleigh, N.C., where he worked for one year before moving back to Chattanooga and assuming the same position there. The family will receive friends on Monday, Dec. 5, from 3 to 8 p.m. Central time at Rogers Funeral Home. The funeral will be held Dec. 6 at 11 a.m. at South Pittsburg First Baptist Church. In lieu of flowers, the family requests that donations be made to the Joseph Vance Barker Scholarship Fund, c/o David Abbott, Peoples State Bank of Commerce, 315 South Cedar Ave., South Pittsburg 37380.

Read more about his life at Chattanoogan.com

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_120511.pdf


TERESA SMITH, AS DEVISEE OF RONNIE CRABTREE v. LINDA D. HATFIELD

Court: TCA

Attorneys:

Harold E. Deaton, Jamestown, Tennessee, for the Plaintiff/Appellant Teresa Smith.

S. N. Garrett, Jamestown, Tennessee, for the Defendant/Appellee Linda D. Hatfield.

Judge: KIRBY

This is a breach of contract case. The defendant seller entered into a contract to sell a mobile home to the plaintiff's decedent. The contract required the decedent to make monthly payments by a date certain for eighty-four months, and if he failed to do so, all of his payments would be forfeited as rent. The decedent failed to make all of his payments in a timely manner. Later, the decedent died. The plaintiff, the decedent's sole devisee, offered to pay the contract off by making a lump-sum payment to the defendant. The defendant rejected this offer. The plaintiff filed this lawsuit against the defendant, seeking to require the defendant to accept the lump-sum payment and convey the property to her. The trial court dismissed the plaintiff's claims upon the close of her proof, because the undisputed evidence showed that she had not made the required monthly payments under the contract.The plaintiff now appeals. We affirm and award attorney fees for a frivolous appeal.

http://www.tba2.org/tba_files/TCA/2011/smitht_120511.pdf


DONNA F. SMITH THOMPSON v. AMERIQUEST MORTGAGE COMPANY

Court: TCA

Attorneys:

Donna F. Smith, Pro se.

No attorney listed for Defendant.

Judge: FARMER

Plaintiff filed a complaint seeking to set aside the foreclosure sale of her property. The trial court dismissed the case based on Plaintiff's failure to effect service of process on the Defendant. We affirm.

http://www.tba2.org/tba_files/TCA/2011/thompsond_120511.pdf


STATE OF TENNESSEE v. ROBERT JASON BURDICK

Court: TCCA

Attorneys:

John E. Herbison, Nashville, Tennessee, for the appellant, Robert Jason Burdick.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Robert Jason Burdick, was indicted for several offenses by the Davidson County Grand Jury in May of 2008. At issue herein is Appellant's indictment for aggravated rape allegedly occurring on March 1, 1994. After a trial in October of 2009, Appellant was found not guilty of aggravated rape but guilty of the lesser included offense of attempted aggravated rape. As a result, Appellant was sentenced to ten years in incarceration, to be served consecutively to sentences for other convictions that are unspecified in the record herein. On appeal, Appellant argues that the issue before this Court is whether his conviction is barred by the statute of limitations. We hold that the affidavit of complaint in this case establishes probable cause and that a John Doe warrant with a DNA profile as identifying information is sufficient to commence a prosecution. Therefore, from the record before us it appears that the prosecution against Appellant commenced with the issuance of a valid arrest warrant, well within the applicable statute of limitations. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/burdickr_120511.pdf


STATE OF TENNESSEE V. GUY STEVEN CATHEY

Court: TCCA

Attorneys:

Olin J. Baker, Charlotte, Tennessee, for the appellant, Steven Guy Cathey.

Robert E. Cooper, Jr., Attorney General & Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; Kelly L. Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

The defendant pled guilty to driving under the influence of an intoxicant ("DUI"), first offense, and reserved the following two certified questions: (1) "Whether a magistrate that conducts field sobriety tasks upon a defendant prior to issuance of a warrant is qualified as [a] 'neutral and detached' magistrate for purposes of the Fourth Amendment to the Constitution of the United States or its laws and/or in violation of the Constitution of the State of Tennessee and its laws"; and (2) "Whether the issuance of a warrant after the administration of field sobriety tasks by a magistrate to a defendant [was] in violation of the Constitution of the State of Tennessee and/or its laws." After the challenged warrant was issued, the Grand Jury indicted the defendant, charging him with one count of DUI. We hold that the certified questions are not dispositive of the defendant's case because the subsequent indictment cured any defects in the warrant. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2011/catheyg_120511.pdf


STATE OF TENNESSEE v. ANGELA COLLEY
With Dissenting Opinion


Court: TCCA

Attorneys:

Katherine L. Tranum, Kingsport, Tennessee, for the Defendant-Appellant, Angela Colley.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and D. Adam Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Angela Colley, entered guilty pleas to selling 0.5 grams or more of cocaine on June 9, 2008 (count one), delivering 0.5 grams or more of cocaine on June 9, 2008 (count two), selling less than 0.5 grams of cocaine on June 17, 2008 (count three), and delivering less than 0.5 grams of cocaine on June 17, 2008 (count four) in the Sullivan County Criminal Court. Pursuant to her plea agreement, count two merged with count one and count four merged with count three, and Colley received a sentence of eight years at thirty percent for count one and a concurrent sentence of three years at thirty percent for count three, for an effective sentence of eight years, with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court denied all forms of alternative sentencing. On appeal, Colley argues that the trial court erred in denying her request for an alternative sentence. Upon review, we reverse the judgments of the trial court and remand for entry of judgments sentencing Colley to community corrections and for consideration of other terms and conditions that the trial court deems appropriate pursuant to the Community Corrections Act.

http://www.tba2.org/tba_files/TCCA/2011/colleya_120511.pdf

WILLIAMS dissenting
http://www.tba2.org/tba_files/TCCA/2011/colleya_DIS_120511.pdf


STATE OF TENNESSEE v. MAREASE ANTONIO CRAWFORD

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Marease Antonio Crawford.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: SMITH

Marease Antonio Crawford, Appellant, was indicted by the Bedford County Grand Jury in July 2010 in a multi-count indictment. Appellant entered an open plea to the indictment with sentencing to be determined by the trial court. After a sentencing hearing, the trial court sentenced Appellant to an effective sentence of twelve years. Appellant appeals the imposition of consecutive sentences and the failure of the trial court to merge two of the convictions. After a review of the record, we determine that Appellant did not waive the issue of double jeopardy by virtue of his guilty plea but that double jeopardy does not bar the convictions for Count Three, sale of marijuana, and Count Seven, possession of marijuana for resale. However, we conclude that double jeopardy bars Appellant's convictions for both simple possession and possession of marijuana for resale where the offenses arose out of one incident of possession. We affirm the trial court's imposition of consecutive sentencing on the basis that Appellant had an extensive criminal history. Accordingly, we vacate Appellant's conviction for simple possession. Appellant's remaining convictions and sentences are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/crawfordm_120511.pdf


STATE OF TENNESSEE v. DAVID HARRIS, JR.

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee (at trial), for the appellant, David Harris, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Matthew Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

On appeal, the appellant, David Harris, Jr., complains that the trial court abused its discretion by revoking his two-year probationary sentence for the promotion of methamphetamine manufacturing and ordering him to serve his sentence in confinement. He contends that after revoking his sentence, the trial court should have granted him a sentence of split confinement. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/harrisd_120511.pdf


STATE OF TENNESSEE v. JACKIE DARRELL MESSER

Court: TCCA

Attorneys:

Edward C. Miller, District Public Defender; Keith E. Haas, Assistant Public Defender, Newport, Tennessee, for the Defendant-Appellant, Jackie Darrell Messer.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General; and Tonya D. Thornton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Jackie Darrell Messer, was indicted by the Cocke County Grand Jury for rape of a child, a Class A felony. He subsequently entered a guilty plea as a Range I, standard offender to the offense of attempted sexual battery by an authority figure, a Class D felony, with the length and manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the court imposed a sentence of four years in the Tennessee Department of Corrections. On appeal, Messer argues that the trial court erred in denying his request for an alternative sentence. Upon review, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/messerj_120511.pdf


WILLIE D. ROBINSON v. DAVID R. OSBORNE, WARDEN

Court: TCCA

Attorneys:

Willie D. Robinson, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Willie D. Robinson, was convicted by a Shelby County jury of first degree felony murder in the perpetration of a robbery and received a sentence of life imprisonment. He subsequently filed a petition for writ of habeas corpus in the Morgan County Criminal Court, which was summarily dismissed. On appeal, the Petitioner argues that the indictment charging him with first degree felony murder was so defective as to deprive the convicting court of jurisdiction to impose judgment. Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

http://www.tba2.org/tba_files/TCCA/2011/robinsonw_120511.pdf


STATE OF TENNESSEE v. ISAAC THOMAS

Court: TCCA

Attorneys:

Ardena J. Garth and Richard Kenneth Mabee (on appeal) and Blake F. Murchison (at trial), Chattanooga, Tennessee, for the appellant, Isaac Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; William H. Cox, District Attorney General; and Charlie Minor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Isaac Thomas, pled guilty to aggravated assault and received a probationary sentence of three years. Subsequently, the trial court revoked the appellant's probation and imposed a sentence of split confinement, with eleven months and twenty nine days to be served in jail and the remainder to be served on supervised probation. On appeal, the appellant challenges the revocation of his probation and the trial court's imposition of split confinement. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/thomasi_120511.pdf


PATRICK THURMOND v. DAVID SEXTON, WARDEN

Court: TCCA

Attorneys:

Patrick Thurmond, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Patrick Thurmond, was convicted by a Davidson County jury of one count of aggravated burglary (count 1), two counts of aggravated rape (counts 2 and 3), one count of attempted aggravated rape (count 4), and one count of aggravated sexual battery (count 5). He subsequently filed a pro se petition for writ of habeas corpus in the Johnson County Criminal Court, which was summarily dismissed. On appeal, the Petitioner argues: (1) the habeas corpus court erred in dismissing his petition without an evidentiary hearing, and (2) his judgments for counts one, three, four, and five are void because they violate the double jeopardy clauses of the United States and Tennessee Constitutions. Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

http://www.tba2.org/tba_files/TCCA/2011/thurmondp_120511.pdf


TODAY'S NEWS

Legal News
Election 2012
Passages
TBA in the News
TBA Member Services

Legal News
Three named for Davidson County judicial vacancy
The Judicial Nominating Commission met in Nashville today to review 10 applicants for the 20th Judicial District vacancy created by the retirement of Judge Barbara Haynes. After holding a public hearing and interview for each, the commission voted to recommend the following three candidates to the governor: Stanley A. Kweller with Jackson, Kweller, McKinney, Warden, Lewis & Hayes; attorney Phillip Robinson; and Davidson County Juvenile Court Magistrate W. Scott Rosenberg.
Read more from the AOC
Jones barred from selecting practice monitor
U.S. Magistrate Judge Clifford Shirley has issued an injunction against Nancy Jones, chief disciplinary counsel for the Board of Professional Responsibility, barring her from deciding who should monitor veteran attorney Herbert S. Moncier while he is on probation. The state Supreme Court had directed Jones to select the practice monitor as part of its decision to suspend Moncier. But Moncier claimed Jones was trying to force him to use an expensive law firm and monitor him to a degree that was "crushing his practice," according to the News Sentinel. Shirley agreed with Moncier that the board, not Jones, must select the monitor and the parameters of the monitoring.
Learn more about the issue
Knox DA considers appeal of Blackwood ruling
Knox County prosecutors reportedly are considering an appeal of Special Judge Jon Kerry Blackwood's decision to grant new trials to four defendants in the deaths of Channon Christian and Chris Newsom. "That's not a simple answer," said John Gill, special counsel to District Attorney General Randy Nichols, when asked about the possibility. He went on to say that employees in the office have discussed the issue and sought advice from the state attorney general. As for the possibility of plea deals, Gill said that was "highly unlikely." The office will have to decide whether to appeal or not within the next 30 days.
The News Sentinel reports
Paper applauds release of Baumgartner details
In related news, the Knoxville News Sentinel applauded Judge Blackwood's decision to provide an explanation of his ruling from the bench and release a redacted version of former judge Richard Baumgartner's investigative file. The paper had sought the full TBI report. Editors note that while the decision was the right one, the road ahead could be difficult saying, "Justice, in the end, must prevail, but the road to recovery will be long, sometimes painful and will require the vigilance of all involved."
Read the editorial
Crowds reach danger point at Bedford courthouse
"Dangerous overcrowding" occurred in the Bedford County General Sessions Court last week, according to Shelbyville's fire marshal, who is requesting a meeting with local officials to develop a plan to reduce risk to the public. The marshal responded to a citizen's complaint about unsafe and overcrowded conditions at the courthouse and ended up clearing one of the General Sessions courtrooms.
The Shelbyville Times Gazette has more
Counties seek to alter 'sunshine' laws
Sullivan and Unicoi County Commissions recently passed resolutions allowing them to discuss county matters behind closed doors -- a violation of the state's current "sunshine" laws. Although county officials are allowed to meet privately with a lawyer to be briefed, state law prohibits them from deliberating, voting or otherwise taking action on those matters in secret. Supporters of the private sessions argue that both the legislative and executive branches at the state level enjoy exemptions from the law, and that counties should be given the same right. Those opposed say the public deserves to know the issues pending before local government bodies.
The Elizabethton Star reports
Election 2012
Romney: Holder should resign
Republican presidential candidate Mitt Romney this weekend called on U.S. Attorney General Eric Holder to resign based on the Justice Department's flawed law enforcement initiative known as "Operation Fast and Furious." Speaking to reporters after a rally in New Hampshire, Romney said Holder has misled Congress and "brought shame" on the Justice Department.
WKRN has the story
Court clerk's race might include incumbent
Interim General Sessions Court Clerk Ed Stanton Jr. reportedly picked up a qualifying petition to run for the office in the March Democratic primary. He joins former clerk Otis Jackson, Shelby County Commission Chairman Sidney Chism, Marion Brewer, Curtis Byrd, James Finney and Patricia Jackson in considering a run. Stanton, the former head of the court's civil division, was appointed interim clerk in August after Otis Jackson was suspended. Contenders have until Dec. 8 to file their election paperwork.
The Memphis Daily News reports
District attorney primary field grows
Former Memphis City Council member Carol Chumney, former federal prosecutor Linda Nettles Harris and attorney Glenn Wright have picked up petitions to challenge incumbent Amy Weirich for the post of Shelby County district attorney. Weirich took office in January after Gov. Bill Haslam appointed her to replace Bill Gibbons, who took a job in Haslam's government.
The Commercial Appeal reports
Passages
Retired circuit judge dies
Retired circuit court judge Elmer Davies Jr. died Nov. 27 at the age of 85. Davies earned his law degree from Tulane Law School and went on to work as the attorney for Davidson County and as a district attorney general. From 1982 to 1989, he served as 21st Judicial District Circuit Court judge. Memorials may be made to The Lucy Lee Davies Educational Trust, c/o First National Bank, 206 South 1st St., P.O. Box 289, Pulaski 38478, Attn: Tish Lochridge.
The Williamson Herald has more on his life
TBA in the News
Paper covers TBA's court presentation
The Tennessean ran a story over the weekend about the TBA's efforts to update the state's Code of Judicial Conduct and adopt new procedural rules to address disqualification of judges. The coverage focused on the presentation made Friday to the Supreme Court.
Read it here
TBA Member Services
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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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