Chief Justice Barker to retire in September

Chief Justice William M. Barker will retire Sept. 1 after a judicial career spanning 25 years. Barker, 66, is a native of Chattanooga. He earned his bachelor's degree from the University of Chattanooga and his law degree from the University of Cincinnati School of Law. In in a letter to Gov. Phil Bredesen, Barker said he has "seen countless positive changes in both substantive and procedural laws" while serving as a judge. Read more about Barker and his career from the Administrative Office of the Courts.

http://www.tsc.state.tn.us/index.htm

TODAY'S OPINIONS
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STATE OF TENNESSEE v. KACY DEWAYNE CANNON

Court: TSC

Attorneys:

Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public Defender, Chattanooga, Tennessee, for the appellant, Kacy Dewayne Cannon.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie Price, Assistant Attorney General; William Cox, III, District Attorney General; Mary Sullivan Moore and Boyd Patterson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: BARKER

Defendant was convicted of aggravated rape. The Court of Criminal Appeals affirmed his conviction but remanded for re-sentencing. Thereafter, we granted permission to appeal to consider the following issues: 1) whether the State failed to establish a proper chain of custody for the admission into evidence of pantyhose the victim was allegedly wearing at the time of the rape; 2) whether the evidence is sufficient to support the conviction; 3) whether the trial court erred in denying the defense motion to suppress the identification of his DNA profile from a DNA database; 4) whether admission of the victim's statements into evidence through third parties violated Defendant's constitutional right of confrontation; 5) whether the friendship between the trial court and one of the prosecuting attorneys created a serious appearance of impropriety and biased the trial court against Defendant; and 6) whether the Court of Criminal Appeals erred by remanding this case for re-sentencing. After considering these issues, we conclude that the State failed to establish a proper chain of custody for the admission into evidence of the pantyhose and that the victim's statements describing the assault to the police officers and her statements to the sexual assault nurse examiner were testimonial and admitted in violation of Defendant's right of confrontation. We further hold that the trial court properly denied Defendant's motion to suppress and Defendant's motion for recusal. Because the error in admitting the pantyhose into evidence was not harmless, however, we reverse Defendant's conviction for aggravated rape and remand for a new trial.

http://www.tba2.org/tba_files/TSC/2008/cannonk_042908.pdf

WADE concurring
http://www.tba2.org/tba_files/TSC/2008/cannonk_CON_042908.pdf


JOSEPH AMOS, JR., ET AL. v. CHRISTINA TAYLOR, ET AL.

Court: TCA

Attorneys:

Leroy Johnston Ellis, IV, Nashville, Tennessee, for the appellants, Larry T. Hunter, Thomas Edward Winstead, Sr., and James Walter Winstead, Individually and as Representative Trustees.

Douglas Berry, Nashville, Tennessee, for the appellees, Joseph Amos, Jr., Johnie Mae Pope, Charlie R. Amos, and Gladys Carter.

Judge: CLEMENT

The matters at issue arise out of an action filed by four co-tenants against numerous other co-tenants to quiet title to the real property pursuant to doctrine of title by prescription. The trial court granted the plaintiffs' motion for summary judgment, thereby quieting title in the plaintiffs. The defendants appeal contending the trial court erred by granting the plaintiffs' motion due to the undisputed fact that some of the co-tenants were under the disability of minority during the period of prescription. The parties to this action acquired title to the property as heirs-at-law following three generations of intestacy. The plaintiffs' claim is based upon the exclusive possession and occupancy of the property by their father, Pete Amos, who had exclusive use, possession and occupancy of the property for a period of twenty-one years, 1958 through 1979. When Pete Amos died in 1979, his wife and children acquired his interest in the property by intestacy, thereby becoming tenants in common along with the various other co-tenants; however, they did not actively farm the property or continuously occupy the property thereafter, as Pete Amos had done for the previous twenty-one years. Thus, the prescriptive period at issue is from 1958 to 1979. The plaintiffs, who are children of Pete Amos, filed this action to quiet title to the property to the exclusion of the other co-tenants, based upon the prescriptive period of 1958 to 1979. The record reveals, and it is undisputed, that one or more of the co-tenants between 1958 and 1979 were under the disability of minority. An essential element of a claim based upon the doctrine of title by prescription requires affirmative proof that none of the co-tenants were under a disability during the prescriptive period of twenty years. We therefore vacate the trial court's order granting the plaintiffs' motion for summary judgment and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2008/amosj_042908.pdf


LEE HAYES v. GIBSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

Floyd S. Flippin and Terri S. Crider, Humboldt, Tennessee, for the Appellant, Gibson County, Tennessee.

J. Mark Johnson, Trenton, Tennessee, for the appellee, Lee Hayes.

Judge: FARMER

This appeal arises from a declaratory judgment action in which Plaintiff sought a declaration of his rights under Tennessee Code Annotated section 8-24-102 as amended in 2001. Plaintiff asserted that the 2001 amendments to the general statute repealed by implication a 2000 private act establishing the compensation of the Gibson County Juvenile Court Clerk. The trial court determined the amendments to the statute superceded the private act, and that the salary for the juvenile court clerk should be established according to Tennessee Code Annotated section 8-24-102 as amended in 2001. We reverse.

http://www.tba2.org/tba_files/TCA/2008/hayesl_042908.pdf


STATE OF TENNESSEE v. JERRY LEE HANNING

Court: TCCA

Attorneys:

Wade V. Davies and Kimberly A. Pride, Knoxville, Tennessee, for the appellant, Jerry Lee Hanning.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Russell Johnson, District Attorney General; and Frank A. Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Jerry Lee Hanning, pled guilty to driving under the influence after the trial court denied his motion to suppress. The defendant's plea agreement preserved a certified question of law regarding the legality of the police encounter which preceded his arrest. Upon consideration of the certified question, we hold that the trial court projudgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/hanningj_042908.pdf


STATE OF TENNESSEE v. MALCOLM COLLINS LEWIS

Court: TCCA

Attorneys:

Emma Rae Tennent, Assistant Public Defender (on appeal) and Allegra Montgomery, Assistant Public Defender, (at hearing), for the Appellant Malcolm Collins Lewis.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Malcolm C. Lewis, pled guilty in Davidson County to possession of a controlled substance with intent to sell. As part of the plea agreement, Appellant agreed to a five-year sentence. Appellant subsequently filed a petition to suspend sentence pursuant to Tennessee Code Annotated section 40-35-314(c). The trial court denied the petition stating that it was "without authority" to alter Appellant's sentence. Because the trial court's order is unclear as to its basis for the denial of Appellant's petition, we remand the case for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/lewism_042908.pdf


TODAY'S NEWS

Legal News
Legislative News
Supreme Court Report
Disciplinary Actions
TBA Member Services

Legal News
Moncier suspended from practice in Eastern Division
Knoxville lawyer Herbert Moncier was suspended from practicing law in any federal court in the Eastern District of Tennessee today by Chief U.S. District Judge Curtis Collier in an 80-page ruling. The order states that Moncier will be under "active suspension" for five years with another two years of suspension under a probationary status.
The News Sentinel broke the news
Walker applies for Criminal Appeals slot
Joe H. Walker III, a 25th Judicial District Circuit Judge, has joined two others in applying for the vacancy on the Court of Criminal Appeals created by the retirement of Western Division Judge David Hayes. The deadline to submit an application is May 9.
Find out more from the AOC web site
Stinnett reappointed to bankruptcy seat
R. Thomas Stinnett has been reappointed as a U.S. Bankruptcy Judge for the Eastern District of Tennessee. The oath of office was administered by Chief United States District Court Judge Curtis L. Collier. Judge Stinnett was first appointed bankruptcy judge in 1994.
Read more from Chattanoogan.com
'Kelo' lawyer to meet with Music Row property owner
Scott Bullock, the attorney who argued the landmark eminent domain case, Kelo v. New London, at the U.S. Supreme Court, will be in Nashville tomorrow to meet with a Music Row property owner and the media. At issue is the construction of a $100 million mixed-used office and hotel project by The Lionstone Group, a Houston-based developer. Recently the developers indicated they are ready to move forward with construction, even though the footprint for the project includes a piece of property the developer does not yet own.
The Nashville Business Journal has the story
Law firms digging into credit
Law firms are being affected by the economy too. The American Lawyer reports that firms are borrowing more from their credit lines. "On average, firms are digging 25 percent deeper into their lines of credit than they did last year," says Dan DiPietro, head of the law firm group at Citi Private Bank.
American Lawyer has more
Legislative News
Lobbyists to stop asking for advisory ethics opinions
The Tennessee Lobbyist Association (TLA) has asked its members to refrain from seeking advisory opinions from the Tennessee Ethics Commission for the foreseeable future. When asked about reason for the moratorium, TLA chairperson Anne Carr said "There is a growing concern among TLA members that the TEC staff are drifting away from interpreting the law and towards making policy."
NashvillePost.com has the story [Subscription required.]
Convicted lawmakers won't lose benefits after House action
A House panel effectively killed a bill today that would have revoked the state's health insurance benefits for lawmakers convicted of felonies involving their office. The bill had unanimously passed the state Senate.
Read about it in the City Paper
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Supreme Court Report
Indiana's voter ID law upheld
Some observers were surprised when liberal Justice John Paul Stevens wrote a lead opinion for the U.S. Supreme Court yesterday that upheld Indiana's voter ID law. He wrote that the plaintiffs had not met the "heavy burden" needed for a facial challenge to the law. However, Stevens also acknowledged there was no evidence of voter fraud, the cited justification for the law, but said the risk of fraud was real.
The ABA Journal connects you to the story
Disciplinary Actions
Memphis attorney censured
On March 17, the Board of Professional Responsibility issued a public censure to Memphis lawyer Richard Brian Fields. The censure was based on two complaints, related to misrepresentations and failure to respond to clients. He thereby violated RPC 1.3 (diligence on behalf of clients), 1.4 (adequate attorney-client communications), 1.15 (returning client's property -- his file) and 8.4 (misconduct -- conduct prejudicial to the administration of justice) of the Rules of Professional Conduct (Supreme Court Rule 8).
Read the BPR release
Memphis attorney suspended
Memphis attorney Ryan B. Feeney has been suspended from the practice of law by the Tennessee Court's order filed April 16. The suspension is for one year retroactive to Nov. 1, 2007, with that imposition being suspended and Feeney being on probation. He will be eligible to petition for reinstatement of his law license on Nov. 1.
Read the BPR release
TBA Member Services
Save at FedEx Kinkos
Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
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.

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