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.
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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
06 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
04 - TN Supreme Court - Disciplinary Orders

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

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

TODAY'S NEWS

Legal News
Upcoming
Judicial Selection, Retention
TBA Member Services

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.

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
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
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
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
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
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
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
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
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
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

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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