Solo and Small Firm Forum
May 13 - Tennessee Bar Center, Nashville

The TBA Solo and Small Firm Conference offers a unique opportunity for
practitioners from all over the state to come together to focus on
specific issues impacting them in the practice of law. CLE course
offerings will include substantive sessions in practice areas most
common to the solo and small firm practitioner including: PERSONAL
INJURY AND WORKERS COMP LAW, JUVENILE & FAMILY LAW, WILLS, ESTATES &
PROBATE , SOCIAL SECURITY UPDATE , CRIMINAL DEFENSE, and ETHICS.
There will also be many opportunities for networking with your fellow
practitioners during this conference — including a cocktail reception
after the program.

Today's Opinions: March 31, 2005
Volume 11 — Number 060
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.
00 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
04 New Opinion(s) from the Tennessee Court of Appeals
10 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 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


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. DALE
BARUCHMAN

Court:TCA

Attorneys:                          

William T. Winchester, Memphis, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Elizabeth C. Driver,
Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This is a parental termination case involving a mother with a
documented history of severe mental illness.  The Department of
Children's Services filed a petition to terminate the mother's
parental rights to her minor son in February 2002, alleging the
grounds of persistent conditions and failure to substantially comply
with the permanency plans. The department filed an amended petition in
August 2002, seeking to terminate the mother's parental rights to her
minor daughter based upon the same grounds.  In September 2002, the
department filed another amended petition alleging as an additional
ground for termination the mother's mental incompetence.  Following a
hearing over two non-consecutive days, the chancery court entered an
order finding the department had proven all the grounds it alleged for
terminating the  mother's parental rights by clear and convincing
evidence, and terminating the mother's parental rights would be in the
children's best interest.  While we disagree with the trial court's
finding that DCS proved each ground for termination by clear and
convincing evidence, we affirm the chancery court's decision to
terminate the mother's parental rights.

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

IN RE: CONSERVATORSHIP OF ALVIN A. MOORE 

Court:TCA

Attorneys:                          

Nathan S. Moore, Nashville, Tennessee, for the appellant, Mary Scott.

Charles E. Rich, Memphis, Tennessee, for the appellees, Virginia
Quinley and Kaye Wages.

Judge: FARMER

First Paragraph:

Separate petitions for the appointment of conservator were filed, one
by the two nieces of the disabled person and the other by a daughter. 
Notwithstanding the statutory preference given to the daughter, the
probate court determined that it was in the best interest of the
disabled person to grant the petition filed by the nieces.  We affirm.

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

CITY OF MORRISTOWN v. REBECCA A. LONG

Court:TCA

Attorneys:                          

P. Richard Talley, Dandridge, Tennessee, for the Appellant, Rebecca A.
Long

Paul G. Summers, Attorney General and Reporter, and Warren A. Jasper,
Assistant Attorney General, Nashville, Tennessee, for the Appellee,
James G. Neely, Commissioner, Tennessee Department of Labor and
Workforce Development

Lori L. Jessee, Morristown, Tennessee, for the Appellee, City of
Morristown

Judge: LEE

First Paragraph:

The appellant was discharged from her job by the City of Morristown
based upon allegations that she participated in the use, possession,
sale and distribution of marijuana in violation of the City's policy
against illegal drugs in the workplace.  She applied for unemployment
benefits and her claim was denied.  She appealed the denial of
benefits and both the Appeals Tribunal and the Board of Review of the
Employment Security Division of the Tennessee Department of Labor and
Workforce Development ruled that she was eligible for unemployment
benefits because the City failed to prove the alleged illegal drug
activity. The trial court reversed the decision of the Board of
Review.  We hold that the trial court exceeded its authority under the
applicable standard of review, and therefore, we reverse the judgment
of the trial court and remand.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. TAKETA
PURYEAR and JOHNNIE B. McNEAL

Court:TCA

Attorneys:                          

J. Barney Witherington, IV, Covington, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Sharon G. Hutchins,
Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

The Tennessee Department of Children's Services began providing
services to the biological parents of three minor children in December
of 2000.  Eventually, all three children were removed from the home
after the juvenile court determined they were dependent and neglected
due to the parents' failure to provide for their medical and
nutritional needs.  The department created a permanency plan for each
child calling for the parents to provide adequate housing, provide for
the children's medical and nutritional needs, undergo a psychological
evaluation and follow through with treatment recommendations, and
participate in counseling/parenting classes designed to teach the
parents how to adequately provide for their children.  The department
subsequently filed a petition to terminate the biological parents'
parental rights, alleging the grounds of abandonment, substantial
noncompliance with the responsibilities in the permanency plans,
persistent conditions, and the mother's alleged mental incompetency. 
Following a trial, the juvenile court entered an order terminating the
biological parents' parental rights to their minor children.  The
juvenile court found that the department proved by clear and
convincing evidence that the parents abandoned the children,
substantially failed to comply with the responsibilities in the
permanency plans, and allowed conditions to persist which made it
unsafe to return the children to the parents.  In addition, the
juvenile court found that terminating the parents' parental rights was
in the children's best interest.  Only the mother filed an appeal to
contest the juvenile court's judgment.  We affirm.

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

JAMES BEASLEY v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

James Beasley, pro se.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The Petitioner James Beasley appeals the trial court's denial of his
petition for habeas corpus ad testificandum.  The State has filed a
motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
An appeal as of right does not exist from a denial of a petition for
habeas corpus ad testificandum.  Accordingly, the above-captioned
appeal is dismissed.

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

STATE OF TENNESSEE v. WILLIAM BELCHIA

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender, and Robert H.
Gowen, Assistant Public Defender, for the appellant, William Belchia.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Theresa McCusker, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, William Belchia, was convicted by a Shelby County
Criminal Court jury of theft of property over $1000 but less than
$10,000, a Class D felony, for failing to return a rental car.  He was
sentenced as a career offender to twelve years in the Department of
Correction.  In a timely appeal to this court, he argues that the
State failed to prove beyond a reasonable doubt that he intended to
deprive the rental car company of its property and that the trial
court erred by not instructing the jury on the temporary taking of a
vehicle, Tenn. Code Ann. S 55-5-104, as a lesser-included offense of
theft of property.  Following our review, we affirm the judgment of
the trial court.

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

STATE OF TENNESSEE v. MICHAEL BARNETT BILLS AKA MICHEAL/MICHAEL
BURNETT BILLS

Court:TCCA

Attorneys:                          

Karen Tucker Fleet, Bolivar, Tennessee, for the appellant, Michael
Barnett Bills aka Micheal/Michael Burnett Bills.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Joe Van Dyke, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

On appeal, the defendant contends that: (1) the trial court erred in
ruling that he could not use his peremptory challenges to "strike
back" jurors after the first two rounds of challenges; and (2) the
State failed to comply with Tennessee Rule of Criminal Procedure 16,
by failing to disclose a letter written by the defendant to his
girlfriend, thus disadvantaging his trial preparation.  Upon our
review, we affirm the defendant's conviction.

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

STATE OF TENNESSEE v. FREDDIE T. INMAN, JR.

Court:TCCA

Attorneys:                          

Karen Tucker Fleet, Bolivar, Tennessee, for the appellant, Freddie T.
Inman, Jr.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant was convicted of theft of property greater than $1,000
but less than $10,000, a Class D felony, and was sentenced as a career
offender to twelve years in the Department of Correction.  On appeal,
the defendant raises the following issues: (1) whether the evidence
was sufficient to sustain his conviction; and (2) whether the trial
court erred in granting the State a continuance over the defendant's
motion to dismiss, in not granting the defense a continuance because
of a missing witness, in limiting cross-examination of a witness, in
denying a continuance due to a witness who was not subpoenaed, in not
allowing the testimony of two witnesses at the hearing on the motion
for a new trial, and in sentencing the defendant as a career offender.
 Finding the evidence sufficient to support the conviction and no
reversible error, we affirm the judgment of the trial court.

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

ANTONIO JACKSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Juni S. Ganguli, Memphis, Tennessee, Attorney for the Appellant,
Antonio Jackson.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Betsy Carnesdale, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Antonio Jackson, appeals the denial of his petition for
post-conviction relief by the Shelby County Criminal Court.  On
appeal, Jackson contends that he was denied the effective assistance
of counsel at trial.  Specifically, he contends that his trial
attorneys were ineffective by failing to pursue an alibi defense and
by failing to properly investigate and prepare the case for trial. 
After review, we affirm the denial of the petition.

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

STATE OF TENNESSEE v. CARL MCINTOSH
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

George Morton Googe, District Public Defender; Brigitte N. Tubbs,
Assistant District Attorney General; Jackson, Tennessee, (on appeal)
and Micheal Mosier, Jackson, Tennessee, (at trial), for the appellant,
Carl McIntosh.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Angela R. Scott, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Carl McIntosh, was convicted by a jury for: the sale of
0.5 grams or more of cocaine on October 5, 2001, the delivery of 0.5
grams or more of cocaine on October 5, 2001; and two counts of simple
possession on October 9, 2001.  The trial court sentenced the
Defendant as a Range I, standard offender, to an effective sentence of
twelve years, eleven months and twenty-nine days.  On appeal, the
Defendant contends that: (1) the trial court erred in admitting the
forensic chemistry report dated October 31, 2001 into evidence; (2)
the trial court erred in ordering his sentences for the current
offenses to be served consecutively; (3) the trial court erred in
ordering the Defendant's misdemeanor sentence to run consecutively to
his paroled sentences; and (4) the trial court's enhancement of the
Defendant's misdemeanor and felony sentences beyond the presumptive
minimum sentence violated the rule set forth in Blakely v. Washington,
___ U.S. ___, 124 S. Ct. 2531 (2004).  After a thorough review of the
record, we affirm the Defendant's convictions and sentences.

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

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

STATE OF TENNESSEE v. LARRY PORTER

Court:TCCA

Attorneys:                          

Donna J. Armstard (at trial), and Garland Ergueden (on appeal),
Memphis, Tennessee, for the appellant, Larry Porter.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Emily Campbell, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Larry Porter, was convicted of aggravated assault, and
the trial court sentenced the Defendant to eight years, as a multiple
offender.  On appeal, the Defendant contends that: (1) the evidence is
insufficient to sustain his conviction; and (2) the trial court erred
when it sentenced him.  Finding no reversible error in the judgment of
the trial court, we affirm the Defendant's conviction and sentence.

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

STATE OF TENNESSEE v. CARLOS SOMMERVILLE

Court:TCCA

Attorneys:                          

Larry Nance (at trial) and Garland Ergueden (on appeal), Memphis,
Tennessee, for the appellant, Carlos Sommerville.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Tom Hoover and Vanessa King, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Carlos Sommerville, was convicted  of second degree
murder, first degree felony murder, and attempted first degree murder.
 On appeal, the Defendant contends that: (1) the evidence is
insufficient to sustain his convictions; and (2) the trial court erred
when it admitted certain autopsy x-rays and photographs into evidence
at trial.  Finding no error, we affirm the judgments of the trial
court.

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

KEITH DALE THOMAS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Joe H. Byrd, Jr., Jackson, Tennessee, for the appellant, Keith Dale
Thomas.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Alfred L. Earls, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Keith Dale Thomas, was convicted by a jury in the
Madison County Circuit Court of first degree murder and possession of
a deadly weapon with intent to employ it in the commission of an
offense.  He received a total effective sentence of life plus two
years incarceration in the Tennessee Department of Correction. 
Subsequently, the petitioner filed a petition for post-conviction
relief, alleging that his trial counsel and his appellate counsel were
ineffective.  The post-conviction court denied the petition, and the
petitioner now appeals.  Upon our review of the record and the
parties' briefs, we affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. JASON WHITE

Court:TCCA

Attorneys:                          

Robert C. Brooks (on appeal), and Lawrence R. White and Timothy Albers
(at trial), Memphis, Tennessee, for the appellant, Jason White.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Reginald Henderson and Eric Christensen, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Jason White, was convicted by a jury in the Shelby
County Criminal Court of first degree felony murder and sentenced to
life imprisonment.  On appeal, the appellant contends that (1) the
trial court improperly limited the scope of cross-examination of a
State's witness; (2) the trial court erred by admitting gruesome
photographs of the deceased victim; (3) the trial court's improper
remarks in the presence of the jury prejudiced the appellant; (4) the
trial court erred by admitting hearsay evidence as an excited
utterance; and (5) "[t]he form of the jury verdict [was] so lacking in
meaning as to render it ineffective to convict the [appellant]."  Upon
review of the record and the parties' briefs, we affirm the judgment
of the trial court

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

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