The ADA Act: The First 15 Years
May 19 - Tennessee Bar Center, Nashville

On July 26, 2005, we will celebrate the 15th Anniversary of the
signing of the Americans with Disabilities Act. This session will
cover the 1-2-3’s of the ADA as we look back on where we have come
from and envision where we are headed. The Course Offerings will
include substantive sessions in:
•Title I (Litigating Employment Discrimination cases in Tennessee)
•Title II (Panel discussion of Lane v.Tennessee from the front line
attorneys)
•Title III (Recent developments in Public Accommodation Accessibility
litigation from national experts, Fox & Robertson, P.C.)

This CLE is designed to be valuable to beginners and seasoned
practitioners alike, and will be followed by a reception for all
participants to meet the faculty and network.

Today's Opinions: March 30, 2005
Volume 11 — Number 059
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
15 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • 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. • 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. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


JENNIFER L. BISCAN, ET AL. v. FRANKLIN H. BROWN, ET AL.
WITH CONCURRING AND DISSENTING IN PART OPINION

Court:TSC

Attorneys:                          

Alan M. Sowell, Nashville, Tennessee, for the Appellant, Franklin H.
Brown.

John R. Hollins, Jr., Nashville, Tennessee, for the Appellant, Paul N.
Worley.

Philip N. Elbert and W. David Bridgers, Nashville, Tennessee, for the
Appellees, Jennifer Biscan and Robert Biscan.

Winston S. Evans, Nashville, Tennessee, for the Amicus Curiae, Mothers
Against Drunk Driving.

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether an adult who hosts a party
for minors and knows in advance that alcohol will be consumed has or
may voluntarily assume a duty of care towards the minor guests.  We
hold that the defendant adult host had such a duty of care even though
he did not furnish any alcohol.  We also hold that the trial court did
not err in excluding evidence regarding the minor plaintiff's prior
alcohol-related offenses and her prior experience with alcohol and
that the trial court did not err in determining that the plaintiff's
sister was not at fault as a matter of law pursuant to Tennessee's
statutory shield for furnishers of alcoholic beverages.  The Court of
Appeals affirmed the trial court in all respects.  We affirm the
result reached by the Court of Appeals on the separate grounds set
forth herein.

http://www.tba.org/tba_files/TSC/biscanjenniferl_opn.wpd

CONCURRING AND DISSENTING IN PART OPINION
http://www.tba.org/tba_files/TSC/biscanjenniferl_con.wpd

ALLEY-CASSETTY COAL CO., INC. v. RUTH JOHNSON, Commissioner of the
Tennessee Department of Revenue

Court:TCA

Attorneys:                          

John W. Lewis, John R. Wingo, Nashville, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Mary Ellen Knack,
Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal involves a trial court's grant of summary judgment to the
Tennessee Department of Revenue.  The taxpayer operates a brick and
block business on a ten-acre tract of land in Murfreesboro, Tennessee,
on which is located a block manufacturing facility and retail sales
office.  Upon undertaking an audit of the taxpayer, the department
inspected the property in Murfreesboro.  The department subsequently
assessed a sales and use tax liability against the taxpayer for the
Murfreesboro property.  The department determined that the
Murfreesboro property constituted one location, and sales of concrete
blocks manufactured at the facility constituted less than fifty-one
percent (51%) of the gross sales at this location.  The taxpayer filed
an action in the trial court alleging it was entitled to a sales tax
exemption under section 67-6-206 of the Tennessee Code because it
operated two "locations" at the Murfreesboro property under the
fifty-one percent (51%) test used by the department.  Both parties
moved for summary judgment.  The trial court granted the department's
motion and denied the taxpayer's motion.  The taxpayer filed an appeal
to this Court.  We affirm.

http://www.tba.org/tba_files/TCA/alleycassettycoalinc.wpd

APOLLO HAIR SYSTEMS OF NASHVILLE v. FIRST LADY INTERNATIONAL
CORPORATION, d/b/a NEW IMAGE

Court:TCA

Attorneys:                          

C. Edward Fowlkes, Nashville, TN; David A. Shaw, Seattle, WA, for
Appellant

Andree s. Blumstein, Mark T. Smith, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a contract dispute between a retail seller and
manufacturer of hair replacement products.  The parties entered into
an exclusive dealing contract, whereby the manufacturer agreed to sell
four models of hair replacement units exclusively to the retailer
within a geographically defined area of Tennessee.  In return, the
retailer agreed to purchase all hair replacement units from the
manufacturer and pay a $10.00 premium for the units purchased.  The
manufacturer subsequently sold hair replacement units to a competitor
of the retailer in Tennessee.  The retailer filed a complaint against
the manufacturer for inducement of breach of contract, pursuant to
section 47-50-109 of the Tennessee Code, and breach of contract.  The
manufacturer moved for summary judgment, and the trial court granted
the motion as to both causes of action alleged in the complaint.  We
affirm.

http://www.tba.org/tba_files/TCA/apollohairsys.wpd

GWYNNE T. BARTON, ET AL. v. ROY J. GILLELAND, ET AL.

Court:TCA

Attorneys:                          

Dudley W. Taylor, Knoxville, Tennessee, for the appellants, Gywnne T.
Barton, W. Coleman Bryan, Pat N. Fultz, Charles E. Jenkins, Howard F.
Johnston, Dr. Lawrence Kennedy, Jr., Paul Ledbetter, S. A. Mars, III,
Irene S. Nevels, Ralph V. Norman, Jr., Cary T. Rodgers, Kenneth F.
Scarbro, Lillian Scarbro, W.F. Scarbro, Lane T. Shipley, Edgar H.
Tenent, III, and Teresa S. Zohn.

Clark H. Tidwell, Nashville, Tennessee, for the appellees, Roy J.
Gilleland and J. Cleve Smith.

David L. Buuck, Knoxville, Tennessee, for the appellees, G & P
Claiborne Trust and Stanley C. Roy, Trustee.

Judge: SUSANO

First Paragraph:

The limited partners ("the plaintiffs") of Henry Manor, Ltd., a
Tennessee limited partnership ("the Partnership"), brought this
declaratory judgment action against (1) Roy J. Gilleland and J. Cleve
Smith, the Partnership's former administrative general partners, and
(2) the trust created by the Partnership's former, and now-deceased,
managing general partner, Glen R. Claiborne.  The plaintiffs seek
relief related to the Partnership's property, as well as an accounting
and an order for distribution of proceeds.  In 1992, Claiborne and his
wife formed the G & P Claiborne Trust ("the Trust") , to which they
transferred, among other assets, Claiborne's beneficial interest in
the Partnership.  Claiborne died in 1997. The apartment complex owned
by the Partnership, which was its primary asset, was sold in 2000. 
Subsequently, Gilleland and Smith sought a percentage of the proceeds
from the sale pursuant to the terms of the partnership agreement.  The
plaintiffs aver, among other things, (1) that Gilleland and Smith are
not entitled to any of the proceeds from the 2000 sale, as they
resigned from the partnership in 1982, and (2) that the Partnership
was dissolved in 1992 when Claiborne transferred his interest to the
Trust.  The parties filed competing motions for summary judgment.  The
trial court held that Gilleland and Smith are entitled to share in the
proceeds of the 2000 sale; that the Partnership did not dissolve until
the death of Claiborne in 1997; and that the plaintiffs are not
required to pay capital contributions that came due in 1983 and 1984. 
We agree with the trial court that Gilleland and Smith are entitled to
share in the sale proceeds under the terms of the original partnership
agreement.  We further agree with the trial court that the Trust's
claim against the plaintiffs for unpaid capital contributions is
barred by the applicable statute of limitations.  Although we disagree
with the trial court's judgment that Claiborne did not violate the
partnership agreement by transferring a part of his interest in the
Partnership to the Trust in 1992, we hold that the transfer, while a
violation of the agreement, does not constitute an event of
dissolution.  We affirm the trial court's judgment that the
Partnership did not dissolve until 1997.

http://www.tba.org/tba_files/TCA/bartongwynnet.wpd

TRESA DORIANNE BARKLEY YOUNG n/k/a TRESA B. FLOYD v. STEVEN GLEN YOUNG

Court:TCA

Attorneys:                          

Rodney M. Scott, Murfreesboro, TN, for Appellant

Rachelle L. Windrow, Murfreesboro, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal involves a wife's petition for civil contempt filed
against her ex-husband.  The wife sought an order holding the
ex-husband in civil contempt for failing to pay alimony in solido
pursuant to the divorce decree and commanding him to pay the amount of
the arrearage.  Following a hearing on Wife's petition, the chancery
court entered an order reclassifying the husband's alimony obligation
from alimony in solido to rehabilitative alimony due to the parties'
cohabitation after their divorce.  In addition, the chancery court
found that the wife was not entitled to alimony during the periods the
parties lived together following their divorce, and the court awarded
the wife a reduced sum of rehabilitative alimony.  The wife filed an
appeal to this Court.  We reverse and remand this case to  the chancery
court.

http://www.tba.org/tba_files/TCA/floydtresab.wpd

C. W. McMAHAN v. BARBARA JEAN GREENE

Court:TCA

Attorneys:                          

Mark S. Dugger, Elizabethton, Tennessee, for the appellant, Barbara
Jean Greene.

John Rambo, Jonesborough, Tennessee, for the appellee, C. W. McMahan.

Judge: SUSANO

First Paragraph:

This is a boundary line dispute.  C. W. McMahan ("the plaintiff") and
Barbara Jean Greene ("the defendant") owned adjacent tracts of land. 
Both parties received their respective tracts through a complicated
chain of title.  When a dispute arose as to the location of the
boundary line, the plaintiff brought this action seeking to clear
title.  Following a bench trial, the trial court found for the
plaintiff.  The defendant appeals.  We affirm.

http://www.tba.org/tba_files/TCA/mcmahancw.wpd

STATE OF TENNESSEE v. WILLIAM DARRYN BUSBY

Court:TCCA

Attorneys:                          

Robert D. Massey (at trial), Pulaski, Tennessee and Lloyd R. Tatum (on
appeal), Henderson, Tennessee, for the appellant, William Darryn
Bubsy.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Jeffrey L. Long, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, William D. Busby, was convicted by a jury of four
counts of rape of a child.  The trial court subsequently sentenced him
to four concurrent terms of twenty years in the Department of
Correction.  In this direct appeal, the Defendant contends that the
trial court committed reversible error by failing to instruct the jury
about the State's election of offenses.  Finding that the trial
court's error was harmless beyond a reasonable doubt, we affirm the
judgments of the trial court.

http://www.tba.org/tba_files/TCCA/busbywildar.wpd

STATE OF TENNESSEE v. RICHARD ALLEN BUTLER and STATE OF TENNESSEE v.
RE'LICKA DAJUAN ALLEN


Court:TCCA

Attorneys:                          

Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Richard
Allen Butler.

James A.H. Bell,  Joan M. Stallard, and Richard L. Gaines, Knoxville,
Tennessee, for the appellee, Re'Licka Dajuan Allen.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Kevin Allen, Assistant District Attorney General, for the
appellee/appellant, State of Tennessee.

Judge: GLENN

First Paragraph:

The issues presented by these consolidated Rule 9 interlocutory
appeals are whether Tennessee's sexual exploitation of a minor statute
is constitutional in light of Ashcroft v. Free Speech Coalition, 535
U.S. 234, 122 S. Ct. 1389 (2002), and whether the trial court may
require the State to provide the defense with a copy of the alleged
child pornography that forms the basis for the prosecution's case.  As
to these questions, the trial courts ruled that the State had to
provide the defense with copies of the alleged pornographic materials
and that while a portion of the statute is unconstitutional, the
remainder is not.  Following our review, we affirm the rulings of the
trial courts.

http://www.tba.org/tba_files/TCCA/butlerricharda.wpd

STATE OF TENNESSEE v. CHARLES O. EMESIBE

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher,
Assistant Public Defender; and Amy Dawn Harwell, Assistant Public
Defender, Nashville, Tennessee, for the appellant, Charles O. Emesibe.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; Katrin Miller, Assistant District Attorney General;
and Bret Gunn, Assistant District Attorney General, for the appellee,
the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, Charles O. Emesibe, was convicted
in count one of first degree felony murder during the perpetration or
attempted perpetration of the kidnapping of Ibiene A. Emesibe; in
count two of first degree felony murder during the perpetration or
attempted perpetration of the kidnapping of Letitia Abili; in count
three of first degree felony murder of Ms. Emesibe during the
perpetration or attempted perpetration of a burglary; in count four of
first degree felony murder of Ms. Abili during the perpetration or
attempted perpetration of a burglary; in count five of first degree
premeditated murder of Ms. Emesibe; and in count six of first degree
premeditated murder of Ms. Abili.  The trial court merged counts one
and five with count three, and counts two and six with count four. 
The trial court imposed life sentences for each felony murder
conviction and ordered Defendant's two life sentences to be served
consecutively.  On appeal, Defendant argues (1) that the evidence is
insufficient to sustain his convictions; (2) that the trial court
erred in admitting certain photographs into evidence; (3) that the
trial court erred in ruling certain statements admissible; (4) that
the trial court erred in admitting court documents pertaining to
Defendant's divorce into evidence; (5) that the trial court erred in
admitting the testimony of Ms. Emesibe's attorney concerning
Defendant's divorce proceedings; and (6) that the trial court erred in
ordering Defendant's two life sentences to be served consecutively. 
After a thorough review of the record, we affirm the trial court's
judgments.

http://www.tba.org/tba_files/TCCA/emesibecharleso.wpd

STATE OF TENNESSEE v. JAMES THERON HALE

Court:TCCA

Attorneys:                          

Steven T. Richardson, Clarksville, Tennessee, for the appellant, James
Theron Hale.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; John Carney, District Attorney General;
and C. Daniel Brollier, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant was found guilty by jury verdict of domestic assault, a
Class A misdemeanor.  He was sentenced to eleven months and
twenty-nine days with the sentence suspended, conditioned upon his
successful completion of probation.  The Defendant now appeals,
raising three issues: (1) there was insufficient evidence to support
his conviction for domestic assault; (2) the trial court erred by not
instructing the jury to elect the particular offense the Defendant was
guilty of; and (3) the Defendant suffered a due process right
violation when he was denied immediate access to his personal
property.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/halejamesthe.wpd

ANTHONY L. HARRIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Anthony Harris, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Pamela Anderson, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Anthony L. Harris, was found guilty by a jury of armed
robbery by use of a deadly weapon and aggravated kidnapping.  The
petitioner received a total effective sentence of ninety years
incarceration in the Tennessee Department of Correction. 
Subsequently, the petitioner filed a petition for relief under the
Post-Conviction DNA Analysis Act of 2001.  The post-conviction court
dismissed the petition, and the petitioner appealed.  Upon review of
the record and the parties' briefs, we affirm the judgment of the
post-conviction court.

http://www.tba.org/tba_files/TCCA/harrisantl.wpd

KEITH D. HENDERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Keith D. Henderson, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Keith D. Henderson, appeals from the dismissal of his
petition for the writ of habeas corpus.  The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  We find
the State's motion has merit.  Accordingly, the motion is granted and
the judgment of the trial court is affirmed pursuant to Rule 20, Rules
of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TCCA/hendersonkeithd.wpd

STATE OF TENNESSEE v. RONNELL JASON LEBERRY

Court:TCCA

Attorneys:                          

Hugh Poland (at trial); and Mark Olson (on appeal), Clarksville,
Tennessee, for the appellant.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; John W. Carney, Jr., District Attorney
General; Arthur Beiber, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Montgomery County jury convicted the Defendant, Ronnell Jason
Leberry, of aggravated assault, extortion, especially aggravated
kidnapping, and two counts of facilitation to commit aggravated rape. 
The trial court sentenced the Defendant to an effective sentence of
thirty-two years and six months.  On appeal, the Defendant contends
that: (1) the trial court erred when it failed to instruct the jury on
accomplice testimony; (2) he was denied a unanimous jury verdict; (3)
the trial court erred by failing to recuse itself; (4) the evidence is
insufficient to support his convictions; (5) he was denied his right
to an impartial jury because certain jurors considered evidence not
admitted at trial; (6) the trial court erred by failing to recuse the
Assistant District Attorney General at trial; (7) he was denied the
right to a fair trial because he was required to wear leg-shackles
during the trial; (8) he was denied a fair trial due to the racial
composition of the jury; and (9) the trial court erred by enhancing
the Defendant's sentences and ordering consecutive sentencing.  After
thoroughly reviewing the record, we affirm all of the Defendant's
convictions.  Further, we hold that the trial court improperly
enhanced the Defendant's sentences in light of Blakely v. Washington,
542 U.S. __, 124 S. Ct. 2531 (2004), and we reduce the Defendant's
sentences in accordance with this opinion to an effective sentence of
twenty-eight years.

http://www.tba.org/tba_files/TCCA/leberryronnellj.wpd

STATE OF TENNESSEE v. MALINDA L. MASON

Court:TCCA

Attorneys:                          

Peter D. Heil, Nashville, Tennessee, (on appeal); and Thomas Overton,
Nashville, Tennessee, (at trial), for the appellant, Malinda L. Mason.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; Jennifer Tackett, Assistant District Attorney
General; and Kristen Shea, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Malinda L. Mason, was indicted for driving under the
influence of an intoxicant and for violation of the implied consent
law.  Following a jury trial, Defendant was convicted of driving under
the influence, fifth offense, and sentenced to twenty-one months in
the county workhouse as a Range I, standard offender.  Defendant's
sole issue on appeal challenges the trial court's denial of her
request for a mistrial.  After a review of the record, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/masonmalindal.wpd

THOMAS M. McCORMICK v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          


onna Leigh Hargrove, District Public Defender, and Andrew Jackson
Dearing, III, Assistant Public Defender, for the appellant, Thomas M.
McCormick.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles and Ann L. Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.D
Judge: TIPTON

First Paragraph:

The petitioner, Thomas M. McCormick, appeals as of right the dismissal
of his petition for post-conviction relief by the Bedford County
Circuit Court.  He seeks relief from his conviction for aggravated
assault and sentence of twelve years as a Range III, persistent
offender.  The petitioner contends that he received the ineffective
assistance of counsel which caused him to enter an unknowing and
involuntary guilty plea.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/mccormickthomasm.wpd

JERRY ALLEN MILLSAPS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

R. Joshua McKee, Athens, Tennessee, for the Appellant, Jerry Allen
Millsaps.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Chal Thompson and Bill Reedy, Assistant District Attorneys
General, for the Appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Jerry Allen Millsaps, challenged his 1998 Monroe
County Criminal Court jury  conviction of first degree murder via
filing the October 1, 2001 post-conviction relief proceeding now under
review.  The post-conviction court conducted an evidentiary hearing
and dismissed the post-conviction petition.  On appeal, the petitioner
claims that the conviction was the result of ineffective assistance of
counsel and that the post-conviction court erred in dismissing the
petition. We disagree and affirm the dismissal.

http://www.tba.org/tba_files/TCCA/millsapsjerrya.wpd

RYAN JAMES MORAN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Ryan James Moran, pro se.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; T. Michael Bottoms, District Attorney
General; and Patrick Butler, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Ryan James Moran, pled guilty to multiple offenses
that occurred in 1995, and the trial court sentenced him to an
effective sentence of seventy-five years in prison.  The Petitioner
filed a pro se petition for post-conviction relief, which the
post-conviction court summarily dismissed because it was barred by the
statute of limitations.  The Petitioner appeals, contending that the
post-conviction court erred.  Finding no reversible error, we affirm
the post-conviction court's judgment

http://www.tba.org/tba_files/TCCA/moranryanj.wpd

STATE OF TENNESSEE v. RAYMOND D. SIMPSON
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

In an opinion filed on January 7, 2005, this court affirmed the trial
court's denial of probation but modified the defendant's sentence to
comply with the requirements of Blakely v. Washington, 542 U.S. ____,
124 S. Ct. 2531 (2004).  On January 18, 2005, the state filed a
petition to rehear pursuant to Tennessee Rule of Appellate Procedure
39.  The state asserts that this court erred by modifying the sentence
because the defendant waived any challenge under Blakely and because
the record was incomplete.

ORDER
http://www.tba.org/tba_files/TCCA/simpsonraymondc_ord.wpd

LA SOUTHAPHANH v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Bruce A. Poag, Nashville, Tennessee, for the appellant, La
Southaphanh.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, La Southaphanh, appeals from the Rutherford County
Circuit Court's dismissal of his two petitions for post-conviction
relief from his convictions for aggravated burglary, a Class C felony,
aggravated assault, a Class C felony, and theft over one thousand
dollars, a Class D felony.  He contends that he received the
ineffective assistance of counsel at his trial for aggravated burglary
and theft over one thousand dollars because his attorney failed to
move to suppress his confession, failed to move for a mistrial when
his co-defendant stated that the petitioner was in a gang, failed to
attack the credibility of one of the investigating officers, and
failed to meet with him and prepare for trial adequately.  He contends
that he received the ineffective assistance of counsel at his trial
for aggravated assault because his attorney failed to meet with him
and prepare for trial adequately.  We affirm the trial court.

http://www.tba.org/tba_files/TCCA/southaphanhla.wpd

JAMES WILLIAM TAYLOR, a/k/a LUTFI SHAFQ TALAL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James William Taylor, Only, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Elizabeth Bingham
Marney, Assistant Attorney General; and Ronald L. Davis, District
Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

In 1986, Petitioner, James William Taylor, a/k/a Lutfi Shafq Talal,
was convicted, following a jury trial, of receiving stolen property
over the value of $200.00 and concealing stolen property under the
value of $200.00.  The convictions were in docket number S86300 in the
Circuit Court of Williamson County.  No appeal was taken from these
convictions.  In 1987, he was sentenced to three years for receiving
stolen property and one year for concealing stolen property, with the
sentences ordered to be served concurrently.  However, the sentences
were suspended and he was immediately placed on supervised probation
for five years.  In December, 1987, following the filing of a
probation violation warrant, he was found to be in violation of his
conditions of probation and ordered to serve thirty days in the
Williamson County Workhouse, following which he would be released from
custody and his probation reinstated.  In June of 1991, the Circuit
Court of Williamson County entered an order again finding Petitioner
in violation of his probation due to convictions for burglary,
robbery, and first degree murder, and revoked probation and ordered
him to serve the three-year sentence consecutively to the new
convictions.  On April 15, 2004, he filed a petition for
post-conviction relief attacking the convictions for receiving stolen
property and concealing stolen property in case number S86300.  On
September 14, 2004, the Circuit Court of Williamson County dismissed
the petition for post-conviction relief because the three-year statute
of limitations, which existed at the time of his convictions, had long
since expired.  Petitioner appealed from this order, and the State has
filed a motion for this Court to affirm the dismissal pursuant to Rule
20 of the Rules of the Tennessee Court of Criminal Appeals.  Finding
merit in the motion, we grant same and affirm the judgment of the
post-conviction court.

http://www.tba.org/tba_files/TCCA/taylorjameswill_mem.wpd

STATE OF TENNESSEE v. HOWARD WALTER THOMAS
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

W. Thomas Dillard and Stephen Ross Johnson, Knoxville, Tennessee (at
trial and on appeal); Jeanne L. Wiggins and Russell T. Greene,
Knoxville, Tennessee (at trial), for the appellant, Howard Walter
Thomas.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and William H. Crabtree and Sally Jo Helm, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Howard Walter Thomas, was convicted of first degree
premeditated murder; especially aggravated robbery, a Class A felony;
especially aggravated kidnapping, a Class A felony; and attempted
first degree murder, also a Class A felony.  He was sentenced to life
imprisonment for the first degree murder conviction and sentenced as a
Range I, standard offender to twenty-two years for the especially
aggravated robbery conviction, twenty-two years for the especially
aggravated kidnapping conviction, and twenty-five years for the
attempted first degree murder conviction, with the twenty-two-year
sentences to be served concurrently and the twenty-five-year sentence
to be served consecutively, for an effective sentence of life plus
twenty-five years. On appeal, the defendant raises the following
claims: (1) the circumstances surrounding his identification by one of
the victims amounted to prejudicial error; (2) the trial court erred
by allowing the State to exercise a peremptory challenge based on the
juror's learning disability, by utilizing the pattern jury
instructions on the element of deliberation, by proceeding with a
death-qualified jury after the State withdrew its intent to seek the
death penalty post-trial, and by failing to provide any weight to the
mitigating factor of childhood/family background in sentencing for the
attempted first degree murder conviction; (3) the evidence was
insufficient to support a verdict of guilt with respect to the element
of deliberation; (4) the death penalty is unconstitutional under the
Tennessee and United States Constitutions; and (5) that cumulative
error denied the defendant a fair trial.  Following our review, we
affirm the convictions but, in light of the subsequent decision of the
United States Supreme Court in Blakely v. Washington,  542 U.S. __,
123 S. Ct. 2531 (2004), reduce the sentences for attempted first
degree murder, especially aggravated robbery, and especially
aggravated kidnapping to twenty-one years, eighteen years, and
eighteen years, respectively.  We affirm the consecutive sentencing of
the defendant.

http://www.tba.org/tba_files/TCCA/thomashowardwa_opn.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/thomashowardwa_dis.wpd

Constitutionality of Amendment to Definition of "Adult Bookstore" in
the Adult-Oriented Establishment Registration Act

Date: March 29, 2005

Opinion Number: 05-030

http://www.tba.org/tba_files/AG/2005/op30.pdf

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