Kagan back for third day of testimony

U.S. Supreme Court nominee Elena Kagan was back before the Senate Judiciary Committee for a third day of questioning today. Democrat members wrapped up their second round of questioning followed by Republicans, who began their second round. The committee will take a break from proceedings tomorrow from 10 a.m. until 4 p.m. ET while the body of the late Sen. Robert C. Byrd, D-WV, lies in repose in the Capitol.

Follow the hearings on Law.com or the ABA Journal
TODAY'S OPINIONS
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TY AMANNS, ET AL. v. JEFF GRISSOM, ET AL.

Court: TCA

Attorneys:

Darren V. Berg, Martin L. Ellis, and Steven B. Johnson, Knoxville, Tennessee, for the appellants, Ty Amanns and Kim Amanns.

Linda J. Hamilton Mowles, and Jimmy D. Holbrook, Jr., Knoxville, Tennessee, for the appellees, Jeff Grissom, and Grissom Heat & Air, Inc. John M. Neal, Knoxville, Tennessee, for the appellees, Jon Pence, and East Tennessee Gas Products, Inc.

Judge: SWINEY

This suit was filed in Circuit Court after first being filed and then voluntarily non-suited in Chancery Court. After multiple discovery abuses, the Trial Court entered an order pursuant to Tenn. R. Civ. P. 37 dismissing the plaintiffs' suit. Plaintiffs appeal to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2010/amannst_063010.pdf


REGINALD DENARD USHER, SON OF REGINALD SMITH, DECEASED v. CHARLES BLALOCK & SONS, INC. ET AL.

Court: TCA

Attorneys:

Bo Bruner, Birmingham, Alabama; Sidney W. Gilreath, Bryan L. Capps, and Donna Keene Holt, Knoxville, Tennessee; and Charmaine Nichols, Sevierville, Tennessee; for the appellant, Reginald Denard Usher.

Stephen C. Daves and Frank Q. Vettori, Knoxville, Tennessee, for the appellee, Charles Blalock & Sons, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael B. Moore, Solicitor General; and Dawn Jordan, Senior Counsel; Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: SUSANO

Reginald Smith ("the Decedent") died when the exposed metal edge of a device known as a "Guardrail Energy-Absorbing Terminal" ("the crash cushion") penetrated the window of the cab of his moving overturned tractor-trailer and cut him nearly in half. His son, Reginald Denard Usher ("the plaintiff"), filed this action in the trial court against Charles Blaylock & Sons, Inc. The plaintiff also filed a claim against the State with the Tennessee Claims Commission. The essence of the claims is that the crash cushion was negligently placed at the end of a series of concrete barriers that served to separate traffic entering on and exiting from the roadway connecting to the temporary end of Interstate 140 in Blount County. The alleged negligence was the failure to install a "transition panel" between the last concrete barrier and the crash cushion. Such a panel is designed to cover the otherwise exposed edge of the crash cushion thereby preventing vehicles from "snagging" the exposed metal edge. Eventually, the claim against the State was joined with the claim against Blaylock. The case was tried to a jury with the circuit judge sitting as the Claims Commissioner; the jury was utilized by the trial judge in an advisory capacity with regard to the claim against the State. The jury returned a verdict in favor of the plaintiff. The jury found that the plaintiff's total damages were $2,000,000. It apportioned fault 25% to the Decedent, 37.5% to the State, and 37.5% to Blaylock. Acting as the Claims Commissioner, the trial court went against the advice of the jury and dismissed the claim against the State. The court found (1) that the plaintiff failed to carry the burden of proof with respect to the applicable standard of care for installing crash cushions; (2) that the plaintiff failed to prove a breach of duty; and (3) that, in any event, the Decedent was at least 50% at fault for speeding through a construction zone in foggy conditions. Later, the trial court granted Blalock's motion for judgment notwithstanding the verdict and entered judgment in its favor. The court held (1) that Blalock was not responsible, as a matter of law, for leaving off the transition panel because the State's inspector on the scene "directed" Blalock to leave it off; (2) that the plaintiff failed to carry the burden of proving, by expert testimony, what a reasonably prudent contractor would have done under the circumstances; and (3) again, that the Decedent was at least 50% at fault. The court, acting as 13th juror, conditionally granted Blalock a new trial in the event the judgment in its favor was vacated or reversed. The plaintiff appeals. We affirm the judgment in favor of the State. We vacate the judgment in favor of Blalock and remand for a new trial as to that defendant.

http://www.tba2.org/tba_files/TCA/2010/usherr_063010.pdf


STATE OF TENNESSEE v. RUSSEL B. CAIN

Court: TCCA

Attorneys:

John E. Herbison, Nashville, Tennessee, for the appellant, Russel B. Cain.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason L. Lawson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Russel B. Cain, entered a plea of guilty to three counts of aggravated sexual battery of a victim under the age of thirteen, a Class B felony, but reserved a certified question of law to Counts Two and Three of the indictment. Specifically, he requests this court to review: "If an indictment alleges multiple counts of child sexual abuse, and if the dates of the separate counts are state[d] as 'the ___ day of _______, 2007,' does the conviction of Count One of the indictment bar the conviction on Counts Two and Three of the indictment under the double jeopardy protection of the Constitution." The defendant also argues that he was improperly sentenced to consecutive sentences. After careful review, we conclude that the conviction on Count One of the indictment does not bar the convictions on subsequent counts of the indictment when the dates of the offenses are stated as "the ___ day of ____, 2007" and that consecutive sentencing was appropriate. Accordingly, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/cainrb_063010.pdf


STATE OF TENNESSEE v. QUIDON CLEMONS

Court: TCCA

Attorneys:

Harry E. Sayle, III, (on appeal), Memphis, Tennessee; and Constance Barnes, Assistant Public Defender (at trial), Memphis, Tennessee, for the appellant, Quidon Clemons.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General; for the Appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Quidon Clemons, was convicted of assault, a Class A misdemeanor, aggravated stalking, a Class E felony, and violation of an order of protection, a Class A misdemeanor. The trial court sentenced Defendant as a Range I, standard offender, to two years for aggravated stalking. As to the misdemeanors, Defendant was sentenced to eleven months, twenty-nine days for assault, and eleven months, twenty-nine days for violation of an order of protection. The sentences were ordered to be served consecutively. On appeal, Defendant argues that his sentence is excessive. After a thorough review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/clemonsq_063010.pdf


KENNETH J. CRADIC v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kenneth J. Cradic, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Kenneth J. Cradic, appeals the summary dismissal of post-conviction relief by the Sullivan County Criminal Court. The Petitioner was convicted of three counts of rape of a child, a Class A felony, and three counts of incest, a Class C felony. He received a sentence of twenty years for each rape of a child conviction and a sentence of four years for each incest conviction. The trial court ordered that two of the twenty-year sentences for rape of a child be served consecutively to one another but concurrently with the third conviction and ordered that the three counts of incest be served consecutively to one another but concurrently with the rape of a child convictions, for an effective sentence of forty years. On appeal, the Petitioner contends that the post-conviction court erred in summarily dismissing his petition for post-conviction relief without appointing counsel. Upon review, we reverse the judgment summarily denying post-conviction relief and remand this case to the post- conviction court for a full evidentiary hearing on the Petitioner's claim of ineffective assistance of counsel regarding the misapplication of the sentencing law.

http://www.tba2.org/tba_files/TCCA/2010/cradick_063010.pdf


JOEY D. HERRELL v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Joey D. Herrell, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; and Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Joey D. Herrell, appeals the trial court's dismissal of his application for his petition for the writ of habeas corpus. In six separate cases, the petitioner pled guilty to the following: theft of property under $500, aggravated robbery, aggravated burglary, especially aggravated robbery, three counts of attempted aggravated burglary, theft of property over $1000, and evading arrest. The offenses in four of the cases were committed while the petitioner was released on bond from the remaining two cases. All pleas were entered on the same day, and the trial court imposed concurrent sentencing, which resulted in the petitioner receiving an effective sentence of twenty years. He has filed the instant habeas corpus petition alleging that the imposition of concurrent sentencing resulted in illegal sentences because they were imposed in direct contravention of a statute, as he had been released on bond at the time some of the offenses were committed. The habeas corpus court and the State agreed that the sentences were illegal, and the court found that the illegal portion of the sentences was not "a material element" of the petitioner's guilty plea agreement and that, therefore, he was not entitled to withdraw the plea. Rather, the court remanded the case to the trial court for imposition of consecutive sentencing. On appeal, the petitioner disagrees and asserts that he should be allowed to withdraw the plea. Following review of the record, we agree with the petitioner, reverse the decision of the habeas court, and remand with instruction to conduct a hearing to determine whether the illegal sentences were a material, bargained-for element of the plea agreement.

http://www.tba2.org/tba_files/TCCA/2010/herrellj_063010.pdf

TIPTON CONCURRING
http://www.tba2.org/tba_files/TCCA/2010/herrellJ_con_063010.pdf


ROY E. KEOUGH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Donald E. Dawson and Sara Willingham, Nashville, Tennessee, for the appellant, Roy E. Keough.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General; James E. Gaylord, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL,

Petitioner Roy E. Keough appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On May 9, 1997, a jury found the Petitioner guilty of the premeditated murder of his wife, Betty Keough, and the attempted first degree murder of Kevin Berry. For the murder conviction, the jury found that the Petitioner had previously been convicted of one or more felonies for which the statutory elements involve the use of violence to the person. See T.C.A. S 39-13-204(i)(2). The jury further found that this aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt. The jury then sentenced the Petitioner to death. The trial court imposed a forty-year sentence for the attempted murder conviction to be served consecutive to his sentence of death. The Petitioner's convictions and sentences were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Keough, 18 S.W.3d 175 (Tenn. 2000). On December 12, 2000, the Petitioner filed a pro se petition for post-conviction relief. An amendment was filed on February 14, 2003, and an addendum to the amended petition was filed on November 6, 2007. The post-conviction court held hearings on various dates in September, October, and November 2007. On July 23, 2008, the post-conviction court entered an order denying relief. On appeal to this Court, the Petitioner presents a number of claims that can be characterized in the following categories: (1) the Petitioner's trial counsel were ineffective, (2) the Petitioner's appellate counsel were ineffective; (3) the Petitioner was denied a fair trial and (4) Tennessee's death penalty statutory scheme is unconstitutional. Following a thorough and exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/keough_063010.pdf


STATE OF TENNESSEE v. RODNEY A. LUCAS

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender; Sarah R. King, (on appeal); Charles S. Bloodworth (at trial), Assistant Public Defenders, Clarksville, Tennessee, for the Defendant-Appellant, Rodney A. Lucas.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Rodney A. Lucas, pled guilty in the Circuit Court of Montgomery County to possession of 0.5 grams or more of cocaine with intent to deliver, a Class B felony. He received a sentence of eight years to be served on probation. The trial court revoked Lucas' probation after his second violation. On appeal, Lucas admits that he violated his probation for a second time; however, he claims the trial court erred by revoking his probation and ordering confinement. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/lucasr_063010.pdf


AMBRECO SHAW V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchinson and Matthew S. Lyons, Memphis, Tennessee, for the appellant, Ambreco Shaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Ambreco Shaw, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial. Specifically, Petitioner contends that (1) counsel failed to fully investigate all possible defenses; (2) counsel failed to adequately meet with Petitioner and allow him to be involved in his defense; (3) counsel failed to properly convey and explain settlement offers; (4) counsel failed to properly advise Petitioner concerning his right to testify; (5) counsel improperly allowed Petitioner to appear at trial in prison clothing; (6) counsel failed to request a mental evaluation in a timely manner; and (7) counsel failed to cross-examine witnesses and provide proof at the sentencing hearing. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/shawa_063010.pdf


STATE OF TENNESSEE v. TREMAINE NATHANIEL POINTER

Court: TCCA

Attorneys:

Dawn Deaner, District Public Defender; Emma Rea Tennent (on appeal); Jessamine Grice (at hearing), Assistant Public Defenders, Nashville, Tennessee, for the Defendant-Appellant, Tremaine Nathaniel Pointer.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Tremaine Nathaniel Pointer, appeals the revocation of his probation by the Criminal Court of Davidson County. In case number 2006-D-2927, Pointer entered a guilty plea to possession with intent to sell .5 grams or more of cocaine, a Class B felony. In case number 2007-B-1142, Pointer pled guilty to felony failure to appear, a Class E felony. Pursuant to his plea agreement, he was sentenced as a Range I, standard offender to an eight year term of imprisonment for the drug conviction and was ordered to have a mental health and drug assessment. He was also sentenced to one year for the felony failure to appear conviction, which was imposed to run consecutively to the eight year sentence, for an effective nine-year sentence. The trial court ordered Pointer to serve six months in jail and the remainder of his sentence on supervised probation. After a revocation proceeding on September 19, 2008, Pointer was placed back on probation to be supervised by the community corrections program, and that placement was revoked on June 1, 2009, when the court ordered Pointer to serve his sentence. On appeal, Pointer contends that the trial court abused its discretion by ordering him to serve his sentence in confinement after revoking his probation. Upon review, we affirm the judgment of the trial court revoking Pointer's probation in cases 2006-D-2927 and 2007-B-1142.

http://www.tba2.org/tba_files/TCCA/2010/tremainep_063010.pdf


TODAY'S NEWS

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Court of the Judiciary
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TBA Member Services

Legal News
Court rejects ban on domestic partner's overnight stay
The Tennessee Court of Appeals, for the second time, has struck down a ruling that prohibited a custodial parent from having her longtime partner spend the night when the children came to visit. In 2008, a Gibson County judge required a divorcing couple to add a so-called "paramour provision" to their parenting plan to prohibit the wife's partner from spending the night when the children were in the house. The Appeals Court ruled there was no evidence the provision was necessary.
Download the opinion
Read the Tennessean's coverage
Gun ruling may bring lawsuits
According to gun rights watchers, the state may see a wave of lawsuits after a Supreme Court decision Monday that limits the ability of states and cities to check firearms. Gun rights groups could challenge restrictions on carrying handguns into local parks, the state's licensing requirements and other firearms limitations. But legal observers say most cases probably would fail because the court left room for "reasonable regulations," which could protect many of Tennessee's laws.
Read more in the Tennessean
Law firms launch referral agreement
Memphis law firms Glankler Brown PLLC and Ford & Harrison LLP are launching a referral agreement they hope will increase business and keep current clients satisfied. It's the first time the firms have taken the normally informal process and publicly identified each other as referral partners. Industry watchers say the move is part of an evolving business model as law firms try to expand their talent pool to meet client demands in ways that don't add to the bottom line.
The Memphis Business Journal reports
Eight lawyers named to Leadership Nashville class
Leadership Nashville has chosen 44 community leaders for its 2011 class. Among them are eight lawyers: Jon Cooper, director and counsel with the Metro Council Office of Special Counsel; Ben Cundiff, a partner with Cundiff Farms; David Esquivel, a partner with Bass Berry & Sims; David Lewis a partner with Wyatt Tarrant & Combs; Benjamin Rawlins, senior vice president, general counsel and secretary with Meharry Medical College; Jason Rogers, vice president for administration and university counsel at Belmont University; Nancy Vincent, of counsel with Baker, Donelson, Bearman, Caldwell & Berkowitz; and Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee.
See a full list of the class in the Nashville Business Journal
AG in Afghanistan to discuss corruption
U.S. Attorney General Eric Holder was in Afghanistan today to discuss a crackdown on corruption and other law enforcement issues. He is the first U.S. attorney general to visit the country. Afghan President Hamid Karzai has pledged to crack down on corruption, but critics say he's been too slow to address problems. Speaking about the mission, Holder said "Fighting corruption and supporting the rule of law in Afghanistan are top priorities for this administration, and we will continue to assist the Afghan government in creating and sustaining the effective criminal justice system to which the Afghan people are entitled."
The ABA Journal reported the news
District courts need $40M for border plan says AOC official
President Barack Obama has proposed a $600 million border security plan that envisions more than 1,000 new Border Patrol agents, seven gunrunner teams, five FBI task forces and more prosecutors and immigration judges. What it does not include is $40 million that a judiciary official says is needed to help overwhelmed federal courts along the U.S.-Mexico border deal with what is expected to be an increased criminal caseload. James Duff, director of the Administrative Office of the United States Courts, testified before Congress that the current workload in the border's five district courts is "staggering." He said the funds would go toward a new judge in each border district, attorneys for indigent defendants, court security officers and other staff.
Read the AP story online from WRCB-TV
Court of the Judiciary
Prosecutor: Bell should pay cost of substitute judge
Disciplinary Counsel Joseph S. Daniel is asking the Court of the Judiciary to assess Judge John Bell with the costs of hiring a substitute general sessions court judge while Bell serves a three-month suspension. Daniel argues it would be "inequitable, unfair and unjust" to require taxpayers to bear the expense. Earlier this month, Bell was suspended for 90 days and ordered to attend judicial ethics training for failing to timely decide a case, initiating ex parte conversations and refusing to recuse himself in a matter.
Download the motion
Read the Newport Plain Talk's story
Legislative News
House panel approves LSC increase for FY 2011
The U.S. House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies yesterday approved a $440 million budget for the Legal Services Corporation (LSC) -- a $20 million increase from current year funding. LSC President Victor M. Fortuno praised the move, saying needs are increasing and the new funding will help legal aid programs better serve the nation's poor. The legislation continues existing restrictions on the use of funds, but lifts the restriction on consolidating cases into class-action suits. The LSC reported the development.
Read more on the agency's web site
Career Opportunities
City of Murfreesboro hiring staff attorney
The City of Murfreesboro is looking for a staff attorney to provide legal representation and advice to city officials, employees and commissions; handle litigation brought on behalf of the city or against the city; and handle real estate transactions, construction contracts and compliance matters. Applicants should have a minimum of two years of civil law experience. Litigation, government or corporate experience is preferred but not required. The salary starts at $60,214. Download a job description or application and instructions.
Get more details on TBA Joblink
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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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