Haynes appointed chief deputy attorney general

Tennessee Attorney General Bob Cooper today announced that Associate Chief Deputy Lucy Honey Haynes will be the new chief deputy atto rney general. Haynes will fill the position vacated by former Chief Deputy Andy Bennett, who was appointed to the Court of Appeals last fall.

Read the news release from the Attorney General's office:

http://www.tba2.org/tbatoday/news/2008/chiefdeputyhaynes_010708.pdf

TODAY'S OPINIONS
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HIRAM LEON ALLEN v. MARGARET ANN ALLEN

Court: TCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the app ellant, Hiram Leon Allen.

Dennis W. Powers, Gallatin, Tennessee, for the appellee, Margaret Ann Allen.

Judge: STAFFORD

Husband and Wife were divorced in 1978. Husband was ordered to pay Wife $400.00 per month alimony in futuro as well as child support. Husband fulfilled his child support obligations and is current on his alimony payments. In June 2006, Husband filed a Petition to Terminate Alimony alleging there had been a material change in circumstances since the divorce was granted nearly twenty-nine years ago. Wife counter-petitioned seeking an increase in alimony. The Circuit Court for Sumner County dismissed Husband's petition, dismissed Wi fe's counter-petition, and denied Wife's request for attorney's fees. Husband appeals the dismissal of his petition and Wife appeals the matter of attorney's fees. We affirm the order dismissing Husband's petition to terminate alimony but remand for further proceedings to reassess the d istribution of attorney's fees between Husband and Wife.

http://www.tba2.org/tba_files/TCA/2008/allenh_010708.pdf


JESSICA N. KELSO v. DAVID DECKER

Court: TCA

Attorneys:

Thomas M. Parker and Stanley F. LaDuke, Knoxville, Tennesse e, for the Appellant, David Decker.

F. D. Gibson III, Maryville, Tennessee, for the Appellee, Jessica N. Kelso.

Judge: SWINEY

This appeal involves a jurisdictional dis pute concerning modification of the parties' child custody arrangement. David Decker ("Father") and Jessica N. Kelso ("Mother") were divorced in Ohio. Mother then moved to Tennessee with the parties' daughter. Post-divorce litigation continued in Ohio. Mother filed a petition in the Tennessee court to register a September 9, 2003, judgment entered by the Ohio court and also then to modify co-parenting time. Father did not respond to the motion or enter an appearance before the Tennessee court. Howev er, Father did file a motion in the Ohio court regarding visitation and contempt issues, and Mother responded by denying that the Ohio court had subject matter jurisdiction. The Ohio court held a hearing on Fathers motion after communicating with the Tennessee cour t regarding the petition filed by Mother in Tennessee, and the parties entered into a consent agreement in the Ohio court after this hearing. The Tennessee court then held a hearing on Mother's petition. After this hearing, the Tennessee court entered a default judgment against Father registering the Ohio judgment and modifying Father's visitation by adopting a new permanent parenting plan proposed by Mother. Mother later filed a motion for relief from the Ohio court's judgment entered as a result of her consent agreement with Father. The Ohio court issued a detailed opinion denying Mother's motion and stating that the Ohio court retained jurisdiction of the parties' custody matters and did not relinquish jurisdiction to Tennessee. Less than one year after the Tennessee judgment was entered, Father filed a Rule 60.02 motion in the Tennessee court, arguing that the Tennessee judgment was void for lack of subj ect matter jurisdiction. The Trial Court overruled Father's Rule 60.02 motion as being untimely. Father appeals. We find that Father's motion was timely filed, and therefore, the Trial Court erred by overruling the motion on that basis. Consequently, we reverse the order of the Tr ial Court overruling Father's Rule 60.02 motion. Furthermore, we hold that Father is entitled to post-judgment relief because the portion of the Trial Court's judgment modifying visitation was void for lack of subject matter jurisdiction. We affirm the Trial Court's registration of the Ohio Court's judgment but vacate the remainder of the Trial Court's judgment.

http://www.tba2.org/tba_files/TCA/2008/kelsoj_010708.pdf


PATRICIA "KAY" PROVONSHA, v. STUDENTS TAKING A RIGHT STAND, INC. (STARS)

Court: TCA

Attorneys:

Doug S. Hamill and Steven F. Dobson, Chattanooga, Tennessee, for appellant.

Kelly P. Kirkland and Bruce D. Gill, Chattanooga, Tennessee, for appellee.

Judge: FRANKS

The gravamen of this action is an alleged retaliatory discharge. Plaintiff charged defendant with a common law violation, as well as a violation of the Tennessee Pub lic Protection Act. Defendant moved for summary judgment which the Trial Court granted. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2008/provonshap_corr_010708.pdf

STATE OF TENNESSEE V. MARK DEWAYNE CULBERTSON

Court: TCCA

Attorneys:

Robert L. Vogel, Knoxville, Tennessee (on app eal) and James Greenlee, Sevierville, Tennessee (at trial) for the Appellant, Mark Culbertson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; Al Schmutze r, District Attorney General; Jeremy Ball, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Sevier County jury convicted the Defendant, Mark Dewayne Culbertson, of possession of a controlled substance in a penal institution, a class C felony. The trial court sentenced the Defendant, a Range II offender, to eight years and six months in prison. On appeal, the Defendant contends that the trial court erred when it: (1) denied his motion to suppress his statement; (2) denied his motion for judgment of acquittal; (3) denied his motion for a new trial because he was not notified pretrial that the controlled substance was destroyed during testing; (4) denied his motion for new trial based upon prosecutorial misconduct; (5) failed to order a new trial because of newly discovered evidence; and (6) imprope rly sentenced the DefFinding that there exists no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/culbertsonm_010708.pdf


DARRYL LEE ELKINS V. STATE OF TENNESSEE AND RHONDA GRILLS V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Larry Dillo w, Kingsport, Tennessee, for the appellant, Darryl Lee Elkins.

Gene Scott, Jr., Johnson City, Tennessee, for the appellant, Rhonda Grills.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioners, Darryl Lee Elkins and Rhonda Grills, were jointly tried and convicted of offenses against the minor child of Rhonda Grills by the Criminal Court for S ullivan County. Petitioner Elkins was convicted of rape of a child (Class A felony) and attempted rape of a child (Class B felony). He was sentenced to twenty-five years with a fine of $50,000 for the Class A felony and to twelve years for the Class B felony, to be served consecutively. Petitioner Grills was convicted of facilitation of rape of a child (Class B felony) and sentenced to ten years with a fine of $25,000. Each petitioner appealed, and their sentences were affirmed. See State v. Elkins, 102 S.W.3d 578 (Tenn. 2003); State v. Grills, 114 S.W.3d 548 (Tenn. Crim. App. 2001). Both petitioners subsequently filed petitions for post-conviction relief, which are the subject of this appeal. The post- conviction court granted Petitioner Elkins a new trial on hi s conviction for attempted rape of a child but denied relief on the conviction for rape of a child. Petitioner Grills was denied any post- conviction relief. The State, Petitioner Elkins, and Petitioner Grills have all appealed from the order of the post-conviction court. After careful review, we affirm the judgment of the post-conviction court granting relief to Petitioner Elkins, and we affirm the denial of the remaining issues on appeal for both Petitioner Elkins and Petitioner Grills.

http://www.tba2.org/tba_files/TCCA/2008/elkinsd_010708.pdf

TIPTON concurring
http://www.tba2.org/tba_files/TCCA/2008/elkinsd_CON_010708.pdf


STATE OF TENNESSEE v. ISAAC EUGENE JONES, III

Court: TCCA

Attorneys:

Ardena J. Garth and Donna Robinson Miller, C hattanooga, Tennessee (on appeal); and Karla Gothard, Mary Ann Green, and Richard A. Heinsman, Chattanooga, Tennessee (at trial) for the Appellant, Isaac E. Jones, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe and Renee W. Turner, Assistant Attorneys General; William H. Cox, III., District Attorney General; Barry Steelman, Assistant District At torney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A jury in Hamilton County convicted the Defendant, Isaac Eugene Jones, III, of one count of second degree murder, and the trial court sentenced him to tw enty-five years in prison. On appeal, the Defendant contends that the trial court erred when it: (1) failed to conduct a Momon hearing; (2) excluded testimony about the ultimate issue of insanity; (3) allowed the State to close its argument with a prejud icial statement; (4) admitted evidence of his prior bad acts; (5) failed to instruct the jury on mutual combat, diminished capacity, and insanity; and (6) failed to consider applicable mitigating factors when sentencing him. Finding no error, we affirm t he trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/jonesi_010708.pdf


STATE OF TENNESSEE v. ALFORD LEE MORGAN

Court: TCCA

Attorneys:

Russell T. Greene, Knoxville, Tennessee, for Appel lant, Alford Lee Morgan.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General and William H. Crabtree and S. Jo. Helm, Assistant District Attorneys General, for the Appellee, S tate of Tennessee.

Judge: SMITH

Appellant, Alford Lee Morgan, threw a rock from an interstate overpass. This incident resulted in the death of a passenger in a vehicle traveling un der the overpass. A jury convicted Appellant of first degree murder by a destructive device, reckless homicide, eight counts of reckless endangerment, two counts of aggravated assault, and one count of assault. Following the trial, the trial court merge d Appellant's conviction for reckless homicide into the conviction for first degree murder by destructive device. The trial court also merged the various aggravated assault and reckless endangerment convictions so that the remaining convictions were two convictions for aggravated assault and one conviction for reckless endangerment. The trial court sentenced Appellant to a life sentence for first degree murder, six years for each aggravated assault, and two years for reckless endangerment. Both the aggravated assault sentence an d the reckless endangerment sentence were ordered to run consecutively to the life sentence and to each other. Appellant filed a timely notice of appeal. On appeal, Appellant argues that: (1) T.C.A. section 39-13-202(a)(3) is unconstitutionally vague; ( 2) the trial court erred in creating a definition for "destructive device" to include in the jury instructions; and (3) the trial court erred in failing to instruct the jury on reckless aggravated assault as a lesser included offense of aggravated assault. After a thorough review of the record, we reverse and dismiss Appellant's conviction for first degree murder by a destructive device. Therefore, we set aside his conviction for first degree murder, ord er the reinstatement of his conviction for reckless homicide, and affirm the remaining convictions.

http://www.tba2.org/tba_files/TCCA/2008/morgana_010708.pdf


MATHIS T. VAUGHN v. JAMES WORTHINGTON, WARDEN

Court: TCCA

Attorneys:

Mathis T. Vaughn, Petros, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel E. Willis (on appeal) and John H. Bledsoe (at trial), Assistant Attorneys General, for the appellee, State of Tennessee.

Judge: WITT
The petitioner, Mathis T. Vaughn, appeals the summary dismissal of his petition for writ of habeas corpus. In this appeal, he asserts that the habeas corpus court erred by dismissing his petition prior to the appointment of counsel and that his conviction for first degree felony murder is void because (1) the trial court failed to charge any lesser included offenses of felony murder and (2) the indictment did not charge an underlying felony to support the felony murder charg e. The judgment of the habeas corpus court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/vaughnm_010708.pdf


TODAY'S NEWS

Legislative News
Legal News
Disciplinary Actions
TBA Member Services

Legislative News
New legislative session to cover topics from lottery to public meetings
The Commercial Appeal looks into the issues that will likely be taken up this year by the legislature, which begins its session Tuesday. Topics include expansion of Tennessee's lottery scholarships, prekinde rgarten, long-term care for the elderly, cable TV competition, drunken driving and public meetings.
Read the Commercial Appeal's roundup
Session will start tomorrow ... without Ford
Sen. Ophelia Ford's attorney has notified the state Senate that the ailing senator will be in the hospital "a few more weeks" and will not be in attendance for Tuesday's opening day of the legislative sessio n.
Read more in the Tennessean
Stewart may run for Briley seat
An attorney who almost made it to the state House once before is preparing to run for Rep. Rob Briley's District 52 seat -- even if the embattled Briley chooses to run for re-election. Nashville attorney Mike Stewart narrowly lost a race for the 52nd District seat to former mayor Bill Boner in 1996, and Stewart told The City Paper over the weekend he is preparing to run for the seat again this year.
Read The City Paper's story
Legal News
U.S. Supreme Court takes up lethal injection question
The Supreme Court today appeared unconvinced that the lethal-injection procedure used for capital punishment nationwide poses enough risk of pain to inmates that it raises constitutional objections as "cruel and unusual" punishment, Legal Times reports. The three-drug "cocktail" used to anesthetize, paralyze and then kill death row inmates is the focus in Baze v. Rees, a Kentucky appeal brought by two inmates convicted of separate double murders in the early 1990s. "I'm very reluctant to send it back to the trial court so we can have a nationwide cessation of all executions," Justice Antonin Scalia said. "Ultimately, well, it could take years."
Read more
Harlan cause of new questioning from convicted killer
Lawyers for convicted double-murderer Gary Wayne Sutton have been given permission to access the files of the Tennessee Bureau of Investigation and prosecutors in both Blount and Sevier counties -- an extrao rdinary order given that Sutton has no legal right to go fishing for evidence this late in the judicial game. U.S. District Magistrate Judge Clifford Shirley also authorized Sutton's attorneys to question under oath prosecutors in both counties. The attorneys showed "good cause" that Blount County prosecutors might well have hidden from Sutton information about the misdeeds of Charles Harlan, a defrocked doctor who once served as the top medical examiner for both Davidson County and the state.
Follow the story in the News Sentinel
Suit asks city to pay for identity theft protection
A class-action lawsuit filed by three Davidson County voters is asking the city, the security company and the subcontractor to pay to try and protect all voters, after two laptop computers were taken on Chri stmas Eve from Metro Election Commissioner Ray Barrett's office. The lawyers are also asking for Metro to notify the three major credit reporting agencies of possible fraud and pay for 90 days of credit monitoring for everyone on the list -- about 337,000 people.
WSMV-TV has more
Legal profession among those with falling numbers
The legal and medical professions are seeing a drop in numbers, reports The New York Times, and although some firms are addressing the problem, surveys seem to point to dissatisfaction and overwork as reason s associates are leaving in droves. One firm even has started a "Happiness Committee." Forty-four percent of lawyers recently surveyed by the American Bar Association said they would not recommend the profession to a young person.
Read The New York Times story
Lawyers everywhere are reading and commenting on the issue. The story is currently the Times' most emailed article and the Wall Street Journal's Law Blog followed with commentary and comments.
Read the Law Blog comments
Disciplinary Actions
Kingston attorney disbarred
The Supreme Court of Tennessee on Dec. 13 entered an order disbarring Kingston attorney Thomas Alva Austin. Austin had been suspended since Oct. 6, 2006, when he plead guilty to extortion. In Tennessee, disb arred lawyers may apply for reinstatement of their law licenses after five years.
Read the BPR release
TBA Member Services
TBA, Bank of America team up for no-fee credit card
The TBA World Points Rewards MasterCard from Bank of America places a new world of rewards, privileges, and service at your command -- with no annual fee.
Click here to learn more

 
 
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