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| Monday, February 06, 2012 |
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Death penalty defense lawyer Bill Redick dies
Nashville criminal defense lawyer and death penalty opponent William P. Redick died Feb. 4 after a long battle with cancer. He was 68. A 1970 graduate of the University of Tennessee College of Law,
he worked on death penalty cases from the early 1980s and served as the director of the Capital Case Resource Center of Tennessee (CCRC) from its founding in 1988 until its closing. In 1992 Redick was the first recipient of the Tennessee District Public Defenders Conference's (TACDL) Death Penalty Award; in 2003 he received the National Coalition to Abolish the Death Penalty Legal Service Award; and in 2010 he received TACDL's Lifetime Achievement Award. He wrote about the death penalty in Tennessee in this 2009 Tennessee Bar Journal article. Arrangements are incomplete at this time.
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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/2012/certlist_020612.pdf
CHARLES F. "FRANK" HOLLAND AND MARY LOU HOLLAND, ET AL. v. CITY OF MEMPHIS
Court: TCA
Attorneys:
B. J. Wade, Memphis, Tennessee, for the appellants, Charles F. "Frank" Holland and
Mary Lou Holland.
Allan Jerome Wade, Memphis, Tennessee, for the appellee, City of Memphis.
Judge: PER CURIAM
Upon determining that the order appealed in this matter is not a final judgment, we dismiss
this appeal for lack of jurisdiction.
http://www.tba2.org/tba_files/TCA/2012/hollandc_020612.pdf
NEAL LOVLACE and NORMA JEAN LOVLACE v. TIMOTHY KEVIN COPLEY AND BETH COPLEY
With two separate concurrence and partial dissents
Court: TCA
Attorneys:
Thomas F. Bloom, Nashville, Tennessee and Grant C. Glassford, Brentwood, Tennessee, for
the appellants, Neal Lovlace and Norma Lovlace.
Rebecca K. McKelvey and Gregory D. Smith, Nashville, Tennessee, for the appellees,
Timothy Kevin Copley and Beth Copley.
Judge: STAFFORD
This is a modification of child visitation case, involving grandparent visitation. The
Appellant grandparents appeal the trial court's order, denying their request for more
visitation with the minor child, as well as the failure of the trial court to find the Appellee
Mother guilty of all alleged incidents of civil contempt. In the posture of Appellees, the
mother and her husband (the child's adoptive father) argue that the Appellants are not
entitled to any visitation. We conclude that in modification of grandparent visitation cases,
if the parent is the movant, his or her burden is to show, by a preponderance of the evidence,
that there has been a material change in circumstance affecting the child's best interest.
However, where the movant is the non-parent, we hold that the grandparent visitation statute
provides that the burden is on the non-parent to show, by a preponderance of the evidence,
that there has been a material change in circumstance that would present a substantial risk
of harm to the child if modification is denied. Because the trial court incorrectly applied the
best interest standard, we vacate its order modifying the visitation arrangement. We also
conclude that the trial court did not abuse its discretion in finding the mother in civil
contempt on five counts; however, we conclude that the award of attorney's fees for that
contempt is not clear as to what portion, if any, of those fees was expended for prosecution
of the contempts, and what portion, if any, was expended in pursuit of the Appellees' attempt
to modify the visitation order. Therefore, we also vacate the award of attorney's fees and
remand for an award of those fees associated only with the prosecution of the contempts.
Vacated in part, affirmed in part, and remanded.
http://www.tba2.org/tba_files/TCA/2012/lovlacen_020612.pdf
HIGHERS concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2012/lovlacen_CON_020612.pdf
KIRBY concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2012/lovlacen_CON2_020612.pdf
STATE OF TENNESSEE v. JESSICA BIRKHEAD
Court: TCCA
Attorneys:
Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Jessica Birkhead.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Brian Findley,
Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
Appellant, Jessica Birkhead, appeals under Tennessee Rule of Appellate Procedure 3 after
the trial court's grant of judicial diversion on a charge of vandalism under $500. On appeal,
Appellant asks this Court to determine: (1) whether the evidence was sufficient; (2) whether
the trial court improperly considered irrelevant evidence; (3) whether the trial court
improperly excluded responses to requests for admissions in a related civil suit; and (4)
whether the trial court should have remanded the matter for a preliminary hearing because
there was no transcript or recording of the hearing. We determine that no final judgment of
conviction exists that would entitle Appellant to an appeal pursuant to Tennessee Rule of
Appellate Procedure 3 and that Appellant has not presented a compelling case for the grant
of an extraordinary appeal under Tennessee Rule of Appellate Procedure 10. Accordingly,
Appellant's appeal is dismissed.
http://www.tba2.org/tba_files/TCCA/2012/birkheadj_020612.pdf
GARY WAYNE CALHOUN v. DAVID MILLS, WARDEN
Court: TCCA
Attorneys:
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; and Russell Johnson, District Attorney General, for the appellant, the State of
Tennessee.
Dan R. Smith, Johnson City, Tennessee, for the appellee, Gary Wayne Calhoun.
Judge: WOODALL
The Criminal Court of Morgan County granted habeas corpus relief to the Petitioner, Gary
Wayne Calhoun, for convictions in the Criminal Court of Sullivan County for "bringing
stolen property into the State valued in excess of $200.00" in case number 21,478 and for
"simple robbery" in case number 22,532. The Respondent, David Mills, Warden, has
appealed. After a thorough review of the record, we reverse the judgment of the habeas
corpus court.
http://www.tba2.org/tba_files/TCCA/2012/calhoung_020612.pdf
STATE OF TENNESSEE v. JOHNNY COFFEY
Court: TCCA
Attorneys:
Matthew C. Rogers and Randy Rogers, Athens, Tennessee, for the appellant, Johnny Coffey.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and Aubrey Wayne Carter and Cynthia
Lecroy-Schemel, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, Johnny Coffey, appeals his Bradley County Circuit Court jury conviction of
second degree murder, claiming that the trial court erred by denying him funds to procure
additional expert assistance, by denying his request to play witness statements in their
entireties, by refusing to grant his motion for a mistrial, by denying his request for a jury
instruction on self-defense, and by failing to apply certain mitigating factors to reduce his
sentence. Discerning no reversible error, we affirm.
http://www.tba2.org/tba_files/TCCA/2012/coffeyj_020612.pdf
STATE OF TENNESSEE v. ROBERT FUSCO
Court: TCCA
Attorneys:
Bryan P. Stephenson, Nashville, Tennessee, for the appellant, Robert Fusco.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; Helen O. Young, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: THOMAS
Following a jury trial, the Defendant, Robert Fusco, was convicted of two counts of
especially aggravated kidnapping, which were merged, and one count of each of the
following offenses: conspiracy to commit aggravated robbery, conspiracy to commit
aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. See Tenn.
Code Ann. sections 39-12-101, -12-103, -13-202, -13-304, -13-305, -13-402, -13-403, & -14-403.
The trial court determined that the Defendant was a Range II, multiple offender for
sentencing purposes and imposed an effective 65-year sentence. In this appeal as of right,
the Defendant raises the following issues: (1) whether the trial court erred in failing to
charge the lesser-included offense of attempted especially aggravated kidnapping; (2)
whether the assistant district attorney general committed prosecutorial misconduct during
closing argument; (3) whether the evidence is insufficient to support his convictions for
especially aggravated kidnapping, conspiracy to commit aggravated robbery, and conspiracy
to commit aggravated kidnapping; (4) whether his dual convictions for especially aggravated
kidnapping and attempted aggravated robbery violate due process concerns because the
restraint of the victim was not beyond that necessary to complete the robbery; (5) whether
the trial court erred by not merging his two conspiracy convictions because the offenses were
the object of the same agreement; (6) whether the trial court erred by using certain out-ofstate
convictions to enhance his sentencing range; and (7) whether his sentence was
excessive. Following our review, we remand this case to the Montgomery County Circuit
Court for the entry of corrected judgments to reflect merger of the Defendant's conspiracy
convictions. In all other respects, we conclude that there is no reversible error in the
judgments of the trial court and affirm.
http://www.tba2.org/tba_files/TCCA/2012/fuscor_020612.pdf
TRACY THOMAS HEPBURN v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Tracy Thomas Hepburn, Whiteville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; Howard Lee Chambers,
Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
The Petitioner, Tracy Thomas Hepburn, was convicted of twenty-four counts of burglary, three
counts of attempted burglary, fourteen counts of misdemeanor vandalism, eight counts of
felony vandalism, ten counts of misdemeanor theft, and three counts of felony theft. The trial
court sentenced him to an effective sentence of 100 years in the Tennessee Department of
Correction ("TDOC"). This Court affirmed the Petitioner's convictions and sentence, and the
Tennessee Supreme Court denied permission to appeal on January 13, 2011. State v. Tracy
Thomas Hepburn, No. M2008-01979-CCA-R3-CD, 2010 WL 2889101 (Tenn. Crim. App., at
Nashville, July 23, 2010) perm. app. denied (Tenn. January 13, 2011). The Petitioner filed a
petition for post-conviction relief in which he alleged that: (1) his convictions were based on
a coerced confession; (2) his convictions were based on a violation of the privilege against
self-incrimination; and that (3) he received the ineffective assistance of counsel. The post-conviction
court summarily dismissed the petition, finding that the Petitioner failed to state a
colorable claim. The Petitioner appealed, and, on appeal, both parties agree that the post-conviction
court erred and that the case should be reversed and remanded. After a thorough
review of the record and applicable authorities, we agree with the parties that the petition for
post-conviction relief raises a colorable claim. We, therefore, reverse and remand to the post-conviction
court for proceedings consistent with this opinion.
http://www.tba2.org/tba_files/TCCA/2012/hepburnt_020612.pdf
STATE OF TENNESSEE v. DENNIS LEE ROSE
Court: TCCA
Attorneys:
Larry R. Dillow, Kingsport, Tennessee, for the appellant, Dennis Lee Rose.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin,
Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
A Sullivan County Criminal Court Jury convicted the appellant, Dennis Lee Rose, of first
degree premeditated murder and two counts of aggravated assault. The trial court sentenced
him to concurrent sentences of life for the murder conviction and three years for each of the
aggravated assault convictions. On appeal, the appellant contends that (1) the evidence is
insufficient to support the convictions; (2) the trial court erred by admitting evidence of prior
bad acts under Rule 404(b), Tennessee Rules of Evidence; (3) the trial court erred by refusing
to allow the defense to use the prosecutor's notes for impeachment and by refusing to allow
the defense to make an offer of proof regarding the State's failure to provide the notes to the
defense before trial; (4) the trial court erred by refusing to allow the defense to present
surrebuttal testimony; and (5) the appellant's convictions for premeditated murder and one
count of aggravated assault violate double jeopardy. Based upon the record and the parties'
briefs, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2012/rosed_020612.pdf
IN RE DAVID REUBEN BUCK, BPR 015382
Court: TSC-Disciplinary_Order
Judge: KOCH
Reinstatement
http://www.tba2.org/tba_files/TSC/2012/buckd_020612.pdf
IN RE KIMBERLY LYNN ANNE HAAS, BPR 006670
Court: TSC-Disciplinary_Order
Judge: KOCH
Suspension
http://www.tba2.org/tba_files/TSC/2012/haask_020612.pdf
IN RE KING BETHEL HARRIS, III, BPR 023282
Court: TSC-Disciplinary_Order
Judge: KOCH
Disbarment
http://www.tba2.org/tba_files/TSC/2012/harrisk_020612.pdf
IN RE CAROL LYNN MITTLESTEADT, BPR 005919
Court: TSC-Disciplinary_Order
Judge: KOCH
Vacate Suspension Order
http://www.tba2.org/tba_files/TSC/2012/mittlesteadtc_020612.pdf
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| TODAY'S NEWS |
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Legal News
Upcoming
Judicial Selection, Retention
TBA Member Services
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| Legal News |
| Haslam swears in Judge Smith |
| Judge Derek Smith, a former deputy district attorney in Williamson County, was sworn in as 21st Judicial Circuit Court judge by Gov. Bill Haslam this morning at the Capitol.
Smith replaced Judge Jeff Bivins, and is running for the seat in the March 6 primary against attorneys Mike Binkley and Judy Oxford. The Tennessean reported. |
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| Man claims he was jailed with no information, no attorney |
| A Bradley County man has said he spent more than two days locked up in the county jail last fall with no bond, no phone calls and no attorney contact.
The day before Greg Workman was jailed, Bradley County General Sessions Court Judge Sheridan Randolph signed the warrant for his arrest based on a claim that Workman had been seen
with one of Randolph's guns that was taken during a late summer burglary of the judge's office.
Workman, who was in jail from a Friday morning until Monday afternoon, says he asked guards if he was under arrest and "they said yes." The Tennessee Bureau of Investigation has confirmed that it began an investigation
of Randolph in September 2011. |
NewsChannel 9 has the story
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| New York lawyer nominated ABA president-elect |
| New York City lawyer James R. Silkenat, a partner in the national law firm of Sullivan & Worcester, was nominated today to become president-elect of the American Bar Association. The ABA House of Delegates will vote on the nomination in August. If elected, Silkenat will serve a one-year term as ABA president-elect before taking office as president of the association in August 2013 at the ABA Annual Meeting in San Francisco. |
Learn more from the ABA
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| Jurors under tight security in Memphis murder trial |
| Jury selection began today in the federal trial of two alleged hit men from one of the largest drug-trafficking rings in Memphis' history, with ties to a deadly Mexican cartel.
For their protection, jurors will be escorted each morning by armed U.S. Marshals from a secret location to federal court, as directed in a Jan. 26 court order by U.S. District Judge Samuel H. Mays Jr.
Jurors will be known by numbers displayed across their chests and their identities shielded. |
The Commercial Appeal reports
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| Award-winning law student credits pro bono with keeping her in school |
| When University of Tennessee Law student Brittany Thomas was recently named the Tennessee Bar Association's Law Student Volunteer of the Year, she became the unofficial voice of public service.
"Pro bono saved my law school career," she says of how much she disliked her first semester of law school -- until she was reminded through pro bono work why she went to law school in the first place: "to help people." Read more about her and see a video about how her volunteer work has transformed the school's pro bono efforts. |
Tennessee Today has it
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| Follow the British Supreme Court on Twitter |
| Britain's Supreme Court today launched a presence on Twitter
to issue real-time news on its latest judgments, a court spokesman said, calling the move an extension of the court's commitment to making its proceedings as accessible as possible and engage a new audience who might not be familiar with the court's work. |
WSMV has this AP story
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| Opinion: Was 'Citizens United' naive or calculated? |
| Washington Post columnist E.J. Dionne writes that the Citizens United decision will be remembered
"as one of the most naive decisions ever rendered by the court."
But a more troubling interpretation, he says, is that a conservative majority knew exactly what it was doing, setting out to remake our political system "in order to strengthen the hand of corporations and the wealthy." |
Read the opinion piece
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| Attendance flags at part-time law schools |
| According to a panel of legal educators who gathered during the Association of American Law Schools (AALS) annual meeting in January, enrollment in part-time programs is declining. The group cited as contributing factors
lagging employer support, workers' fears about losing their jobs, the growing popularity of Master of Business Administration programs, rising tuition and the tough legal job market. Even with the decline, law schools have continued to create part-time programs. |
The National Law Journal looks into it
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| Upcoming |
| Cleveland's Red Shoe Gala this Saturday |
| Bradley County Juvenile Judge Dan Swafford and Sarah Anderson of Bradley County's Court Appointed Special Advocates spoke to the
Cleveland Kiwanis Club recently to explain the important roles CASA volunteers play in the lives of many children and teens.
Anderson was also promoting CASA's fundraiser, the Red Shoe Gala, which is scheduled for 6 p.m., Feb. 11, at Cleveland's Old Woolen Mill. |
Read it in The Cleveland Dailey Banner
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| Judicial Selection, Retention |
| Politics is inevitable part of judicial funding |
| When the American Bar Association's Task Force on Preservation of the Justice System convened during the ABA's 2012 Midyear Meeting in New Orleans last week, the overall message was that whether they like it or not, leaders of the judiciary must be willing to play politics in efforts to preserve funding for their state and local court systems.
"The courts are nonpartisan, and support for the courts is nonpartisan," said Gail Stone, the law and justice policy advisor for the office of the King County executive in Seattle, "but revenue is a very partisan issue." |
The ABAJournal tells you more
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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 2012 Tennessee Bar Association
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