Death penalty records: No way to track costs, files missing

The new Death Penalty Study Committee is having a hard time getting the information it needs, discovering missing files and a lack of spending records, the Associated Press reports. "We found inconsistencies in the Administrative Office of the Courts data and Department of Corrections data and data from local clerks, including people that were missing from our sample, inconsistent spelling of names, inaccurate or missing dates of birth and inaccurate or missing sentence types," said Douglas Wright, assistant director of the Comptroller's Office of Research and Education Accountability. AOC director Elizabeth Sykes will appear before lawmakers and others studying the death penalty this week to address the criticism. Read more in the Memphis Commercial Appeal.
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/2007/certlist_102907.pdf


ROBERT KELLOW v. TML RISK MANAGEMENT POOL AND THE CITY OF LEBANON

Court: TWCA

Attorneys:

Jennifer O. Locklin and William M. Bates, Nashville, Tennessee, for the appellants, TML Risk Management Pool and the City of Lebanon.

William J. Butler and Frank. E. Farrar, Lafayette, Tennessee for the appellee, Robert Kellow.

Judge: LADD

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the Employee's bilateral shoulder injury to be compensable and awarded benefits for 50% permanent partial disability to the body as a whole. Employer asserts that the trial court erred by accepting the evaluating physician's opinion that Employee suffered an 11% impairment and by awarding Employee 50% permanent partial disability to the body as a whole. Employer also contends that the permanent partial disability award should be limited to one and one-half times Employee's medical impairment rating because there was a meaningful return to work. We find the trial court did not err in accrediting Employee's medical proof, but we conclude that the evidence in the record preponderates against the trial court's finding that Employee did not have a meaningful return to work. Thus, the trial court erred in awarding benefits in excess of the one and one-half statutory cap. We modify the trial court's judgment and award one and one-half of the medical impairment rating of 11% or 16.5% to the body as a whole.

http://www.tba2.org/tba_files/TSC_WCP/2007/kellowr_102907.pdf


CHRISTIN PICKENS v. DELTA FAUCET

Court: TWCA

Attorneys:

P. Allen Phillips, Jackson, Tennessee for Appellant, Delta Faucet.

James R. Krenis, Jackson, Tennessee for Appellee, Christin Pickens.

Judge: WALLACE

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Delta Faucet, argues that the trial court erred in finding that the date of injury was prior to July 1, 2004, and that the award was therefore not subject to the "cap" of 1.5 times the anatomical impairment pursuant to Tennessee Code Annotated 50-6-241(d)(1)(a) (Supp. 2004). The employee argues that the award of 25% permanent partial disability to both arms is inadequate. We conclude that the injury occurred after July 1, 2004, and modify the award to 15% permanent partial disability to both arms.

http://www.tba2.org/tba_files/TSC_WCP/2007/pickensc_102907.pdf


BYRD & ASSOCIATES, PLC v. JENNIFER and ALAN SILISKI

Court: TCA

Attorneys:

Jennifer Siliski, Franklin, Tennessee, Appellant, Pro Se

Kenneth J. Sanney, Franklin, Tennessee, for Appellees Byrd & Associates, PLC, Kenneth J. Sanney, and Rebecca Byrd

Judge: KIRBY

This is a breach of contract and legal malpractice case. The defendant client is the mother of four minor children. In January 2004, the client's children were removed from her home after authorities found, among other things, 216 dogs and 14 cats living at the residence. The defendant client hired the plaintiff law firm to represent her in the ensuing criminal and juvenile court proceedings. When the client allegedly failed to pay her legal fees, the law firm filed this lawsuit to collect the fees and to set aside an allegedly fraudulent conveyance of realty from the client to her ex-husband. In response, the client filed counterclaims alleging legal malpractice, negligence, breach of contract, fraudulent misrepresentation, and promissory fraud. The law firm filed a motion for summary judgment supported by several expert affidavits. The client filed a response arguing against the summary judgment motion, and filed expert affidavits in support of her position. The trial court apparently excluded the expert testimony proffered by the client and granted the law firm's motion for summary judgment. The client now appeals the grant of summary judgment. We affirm in part and reverse in part, affirming the trial court's exclusion of the client's proffered expert testimony, but reversing the grant of summary judgment on certain claims that would not require the client to produce expert testimony.

http://www.tba2.org/tba_files/TCA/2007/byrd_102907.pdf


BRENDA CARR LAW v. MELVIN DOUGLAS LAW, JR.

Court: TCA

Attorneys:

Suzette Peyton and G. Thomas Nebel, Nashville, Tennessee, for the Appellant, Melvin Douglas Law, Jr.

John J. Hollins, Jr., Nashville, Tennessee, for the Appellee, Brenda Carr Law.

Judge: SWINEY

Brenda Carr Law ("Wife") and Melvin Douglas Law, Jr. ("Husband") were divorced in April of 2004, at which time the Trial Court approved a marital dissolution agreement ("MDA") submitted by the parties. The MDA required, among other things, that Husband pay for the college education of the parties' son, Stephen, but that"[t]he selection of a school to be attended by Stephen shall be based on the mutual agreement of Stephen and [Husband] ... [and Husband's] approval shall not be unreasonably withheld." After Husband refused to pay for Stephen's college education for various reasons, Wife filed a petition seeking to have Husband held in contempt. This was one of several petitions for contempt filed by the parties post-divorce. The Trial Court granted Wife's petition and ordered Husband to pay for Stephen's college education. We affirm in part, vacate in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/lawb_102907.pdf


REGINALD WILLIAMS v. TENNESSEE BOARD OF PROBATION AND PAROLE

Court: TCA

Attorneys:

Reginald Williams, Clifton, Tennessee, pro se Appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Brenner, Civil Rights and Claims Division, Nashville, Tennessee, for the Appellee, Tennessee Board of Probation and Parole.

Judge: LEE

Reginald Williams, an incarcerated state inmate, was denied parole by the Tennessee Board of Probation and Parole. After losing his administrative appeal, he filed a petition for writ of certiorari in chancery court. Mr. Williams argues that (1) the Board's use of amended rules and guidelines that were not in effect at the time of his sentencing in 1982 are a violation of the State and Federal Ex Post Facto Clauses and (2) the Board's stated reason of "seriousness of offense" for denial of parole is arbitrary and in excess of the Board's discretion. In dismissing the petition, the trial court determined there was no ex post facto violation and that the Board may consider "seriousness of offense" in deciding parole. After careful review, we find no error and affirm.

http://www.tba2.org/tba_files/TCA/2007/williamsr_102907.pdf


GUADALUPE ARROYO v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Guadalupe Arroyo, Pro se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Guadalupe Arroyo, appeals the Knox County Criminal Court's summary dismissal of his pro se petition for post-conviction relief upon the ground that it was time-barred. On appeal, Arroyo contends that his petition was timely filed because it was delivered to prison authorities within the limitations period. The State concedes that the petition was timely filed but, nonetheless, argues that the petition was properly dismissed because it failed to allege any facts supporting Arroyo's ineffectiveness claim. Following review, we agree that the petition should not have been dismissed as time-barred. Moreover, we must reject the State's argument to affirm the dismissal on other grounds, despite the fact that no supporting facts are included in the petition. Instead, the case is remanded to the post-conviction court to consider, pursuant to the discretionary provision of Tennessee Code Annotated section 40-30-106(d), whether Arroyo should be allowed to amend his pro se petition.

http://www.tba2.org/tba_files/TCCA/2007/arroyog_102907.pdf


STATE OF TENNESSEE v. ALBERTO CAMACHO

Court: TCCA

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, (on appeal) and Assistant Public Defender, Micaela Burnham, Sevierville, Tennessee, (at trial) for the appellant, Alberto Camacho.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General and Steven Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Alberto Camacho, was indicted on six counts of theft and one count of impersonation of a licensed professional. After a jury trial, Appellant was convicted of four counts of theft over one thousand dollars, a Class D felony, two counts of theft over five hundred dollars, a Class E felony, and one count of impersonation of a licensed professional, a Class E felony. The trial court sentenced Appellant to four years for each Class D felony and two years for each Class E felony. The trial court ordered the sentences to run concurrently, for a total effective sentence of four years. The trial court further ordered Appellant to serve 200 days of the sentence day-for-day, with the balance of the sentence to be served on supervised probation. Appellant was also ordered to pay $750 per month toward restitution. Appellant appeals, arguing that the evidence was insufficient to support his convictions, that the trial court improperly instructed the jury on the charge of impersonation of a licensed professional and that his sentence is improper. Because the evidence was sufficient to support the convictions, the trial court properly instructed the jury and the trial court properly applied enhancement factors (2) and (16), we affirm the judgments of the trial court. However, because the trial court erred in imposing a sentence ordering Appellant to serve 200 days of the sentence day-for-day, we reverse that portion of the sentence and remand to the trial court for entry of an order deleting the requirement that the sentence be served day-for-day.

http://www.tba2.org/tba_files/TCCA/2007/camachoa_102907.pdf


ALAN RAY HALL v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Alan Ray Hall, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Cameron L. Hyder, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Alan Ray Hall, was denied the writ of habeas corpus by the Johnson County Criminal Court based upon his claim that his life sentence is void because he was erroneously advised that he would be eligible for release after twenty-five years. Upon review, we hold that the trial court properly determined that the petitioner's claim was not cognizable in habeas corpus proceedings. We affirm the trial court's order dismissing the claim.

http://www.tba2.org/tba_files/TCCA/2007/halla_102907.pdf


STATE OF TENNESSEE v. KEVIN PAUL LANDEEN

Court: TCCA

Attorneys:

Mark E. Stephens, District Public Defender; and John R. Halstead, Assistant Public Defender, Knoxville, Tennessee, for the Appellant, Kevin Paul Landeen.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Kevin Paul Landeen, pled guilty in the Knox County Criminal Court to the crimes of vehicular homicide by intoxication, reckless endangerment, and driving on a revoked or suspended license. Following a sentencing hearing, the trial court denied Landeen's request for an alternative sentence and instead ordered that his sentences be served in the Department of Correction. Landeen now appeals the sentencing court's decision denying him the alternative sentence of split confinement. After thorough consideration of the entire record, we affirm.

http://www.tba2.org/tba_files/TCCA/2007/landeenk_102907.pdf


STATE OF TENNESSEE v. GREGORY LEE SMITH

Court: TCCA

Attorneys:

Benjamin C. Mayo, Jackson, Tennessee, for the appellant, Gregory Lee Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Gregory Lee Smith, was indicted for aggravated rape. Following a jury trial, he was convicted of the lesser included offense of aggravated sexual battery, a Class B felony. The trial court sentenced Defendant as a Range I, standard offender, to twelve years. On appeal, Defendant challenges the sufficiency of the convicting evidence and argues that the sentence imposed by the trial court is excessive. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/smithg_102907.pdf


TODAY'S NEWS

Legal News
Politics
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
Yarbrough takes oath as new U.S. Attorney
Edward M. Yarbrough took the oath of office to become the new U.S. Attorney for the Middle District of Tennessee during investiture ceremonies today in Nashville. Senior Judge Thomas A. Higgins administered the oath during the program, which featured comments from Sen. Lamar Alexander, Nashville attorney Lew Conner and Tennessee Bar Association Immediate Past President Larry Wilks.
See photos from the event
Panel recommends funding for 14 Tennessee legal projects
A Blue Ribbon Commission meeting in Nashville today recommended distributing $1.2 million in grant funds to 14 different projects, including a TBA initiative to webcast legal information to lawyers across Tennessee. The panel also recommended money for: a series of free CLE programs for pro bono lawyers presented by the Tennessee Alliance for Legal Services ($166,000); a revolving loan fund to be administered through the Tennessee Lawyers Assistance Program ($100,000); law school loan repayment assistance for public service attorneys ($100,000); the University of Tennessee Can Learn program ($90,000); CASA of Nashville ($35,000) and Memphis ($25,500); the Nashville Conflict Resolution Center ($50,000); Renewal House ($30,000); Jackson/Madison County child support pro se clinics ($10,000); the Tennessee Association of Professional Mediators student peer mediation program ($87,000); TACDL Capitol Bench Book ($44,000); and the Community Legal Center ($50,000). The Knoxville, Nashville, Memphis and Chattanooga bar associations will receive funding for webcasting as part of the joint project with the TBA ($355,808). The recommendations now go to the Supreme Court for approval.

Evaluation commission seeks comments for 2008 elections
The Judicial Evaluation Commission is seeking comment in preparation of evaluation of appellate judges who will appear on the August 2008 general election ballot for retention election. The judges involved are Tennessee Supreme Court justices Gary R. Wade, William C. Koch Jr.; Court of Criminal Appeals Judge D. Kelly Thomas Jr. ; and Court of Appeals Judge Andy Bennett. Deadline for comment is Nov. 29. Comments may be sent to Aaron Conklin.

Opinion: Sunshine law should be left alone
Columnist Otis Stanford admits that those in his news profession are sometimes a "combination of Lt. Columbo and Gladys Kravitz" but that the Sunshine law should not be tampered with. "Public officials should not treat the state's Open Meetings Law as an annoyance. It is there for the public's benefit and it shouldn't be tampered with willy-nilly, and it certainly shouldn't be weakened."
Read the column in the Commercial Appeal
Case puts spotlight on judge's actions
A divorce case in Knox County, which began seven years ago and was moved to another county because of the high-profile lawyer involved, is raising questions of integrity and honesty for one Blount County judge.
Read the story in The Daily Times
ABA urges executions to stop pending more study
The American Bar Association has called for a nationwide freeze on executions until compromises with "fairness and accuracy" can be addressed, it said in a report issued Sunday. "Every state with the death penalty should review its execution procedures before killing anyone else," it said. The report is a compilation of separate reviews over the past three years of how the death penalty operates in eight states: Alabama, Arizona, Georgia, Florida, Indiana, Ohio, Pennsylvania and Tennessee.
Read more in the Tennessean
$30 million verdict overturned, lawyer's antics 'inappropriate'
A record-breaking $30 million medical malpractice award was overturned by the Ohio Supreme Court, citing, among other courtroom misbehavior, a theatrical closing argument by the controversial Michigan attorney representing the brain-injured plaintiff. Attorney Geoffrey Fieger's courtroom antics, including his assumption at closing of the persona of his client, when he allegedly was an oxygen-deprived baby during the delivery process, were inappropriate and tainted the jury's decision, the supreme court held yesterday in a 6-1 ruling.
Read more in The Plain Dealer
Politics
Presidential candidates: What kind of lawyers were they?
Lawyers are dominating this year's presidential field to the point that the New York Times observes that you could put together a pretty decent little law firm with the two former prosecutors -- one intense and the other folksy -- a civil litigator from a tony regional firm, a superstar trial lawyer and a scrappy kid from Harvard who gave up the big money to do civil rights work. The Times looks at the practices they pursued, and how they handled themselves in the process, to find what it says about their values and temperaments, and whether it provides the outlines of how they would conduct a presidency.
Read the full story
Upcoming
Valerie Plame to speak at Vanderbilt
Valerie Plame Wilson,former CIA operative, will speak at Vanderbilt University on Nov. 28, at 7 p.m. Wilson will be speaking about her experiences and her new book, "Fair Game: My life as a spy, my betrayal by the White House." A Justice Department investigation found that Wilson's "outing" was coordinated by the president's deputy chief of staff, Karl Rove, and I. Lewis "Scooter" Libby, chief of staff to Vice President Dick Cheney, and Deputy Secretary of State Richard Armitage.
Get more information in the Tennessean
Disciplinary Actions
Nashville lawyer suspended
The law license of Nashville lawyer Jack Howell Davis Sr. was temporarily suspended Oct. 18 upon a finding that he failed to respond to the Board of Professional Responsibility concerning a complaint of misconduct.
Read the BPR release
TBA Member Services
Alimony Bench Book now available
The 5th Edition of the Alimony Bench Book is now available from the TBA Family Law Section. This newest edition is available for purchase at the TBA's online bookstore or by calling 800-899-6993 or in Nashville at 383-7421.
Order online now

 
 
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