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Wednesday, February 15, 2012

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'Don't say gay' bill wins subcommittee approval

Sen. Stacey Campfield's bill to ban discussion of all but "natural human reproduction science" before the ninth grade in public schools was voted out of a House subcommittee today. The "Don't Say Gay" bill has drawn national attention, much more since Sen. Campfield appeared on a talk show and said that the AIDS epidemic started when a man had sex with a monkey.

The Nashville Scene has more

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.

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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.

JAMES COLEMAN v. LAUDERDALE COUNTY, TENNESSEE, ET AL. STEVE SANDERS, SHERIFF OF LAUDERDALE COUNTY; AND HARRY R. HOPKINS, JR., DEPUTY SHERIFF OF LAUDERDALE COUNTY

Court: TCA

Attorneys:

C. Michael Robbins, Covington, Tennessee for Plaintiff/Appellant, James Coleman.

J. Thomas Caldwell, Ripley, Tennessee for Defendant/Appellees, Lauderdale County, TN, Sheriff Steve Sanders, and Deputy Sheriff Harry R. Hopkins.

Judge: KIRBY

This is a malicious prosecution case arising out of a dispute between neighbors. A dispute arose when the plaintiff neighbor hired a tree service to trim the branches of a tree near the border between the two neighbors' properties. After a confrontation, the police were called. After they arrived, the police cited both neighbors on charges of disorderly conduct. After the charges against the plaintiff neighbor were dismissed, he filed this malicious prosecution action against the defendant county and two of the police officers involved. The trial court granted summary judgment in favor of the defendants. The plaintiff neighbor now appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2012/colemanj_021512.pdf

STATE OF TENNESSEE v. ASHLEE N. APPLETON

Court: TCCA

Attorneys:

M. Keith Davis, Dunlap, Tennessee, for the appellant, Ashlee N. Appleton.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; J. Michael Taylor, District Attorney General; David McGovern, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Marion County jury convicted the Defendant, Ashlee N. Appleton, of tampering with evidence, and the trial court sentenced her to four years, to be served on community corrections after six months of incarceration. The Defendant appeals, contending that the State failed to establish the corpus delicti of the crime for which she was convicted. The State concedes the error, and both parties assert that this case be reversed. After a thorough review of the record and applicable authorities, we agree with the parties. Accordingly, we reverse and dismiss the Defendant's conviction.

http://www.tba2.org/tba_files/TCCA/2012/appletona_021512.pdf

STATE OF TENNESSEE v. EMOE ZAKIAYA MOSI BAKARI

Court: TCCA

Attorneys:

Jeffery A. DeVasher (on appeal), Tyler Chance Yarbro (at trial), and Jonathan F. Wing (at trial), Nashville, Tennessee, for the appellant, Emoe Zakiaya Mosi Bakari.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kristen Menke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court Jury convicted the appellant, Emoe Zakiaya Mosi Bakari, of attempted rape of a child, a Class B felony, and the trial court sentenced him as a Range I, standard offender to twelve years in confinement. On appeal, the appellant contends that the trial court erred by (1) allowing a State witness to testify about "delayed disclosure" in child sexual abuse cases; (2) allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation; (3) allowing the State to introduce a photograph of the victims into evidence; and (4) allowing the prosecutor during rebuttal closing argument to give personal examples in an attempt to vouch for the victims' credibility. Based upon the record and the parties' briefs, we conclude that the trial court erred by allowing a State witness to testify about "delayed disclosure," by allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation, and by allowing the prosecutor to give personal examples in an attempt to vouch for the victims' credibility. Moreover, we conclude that the cumulative effect of the errors warrants reversal of the appellant's conviction. Therefore, the appellant's conviction of attempted rape of a child is reversed, and the case is remanded to the trial court for a new trial.

http://www.tba2.org/tba_files/TCCA/2012/bakarie_021512.pdf

STATE OF TENNESSEE v. IAN ZRAIK MCCLELLAN

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Ian Zraik McClellan.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Megan King and Kyle Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Ian Zraik McClellan, pled guilty to an indictment against him. The State alleged that the indictment charged the Defendant with aggravated vehicular homicide, and the Defendant contended the indictment sufficiently charged him with only vehicular homicide. At the time he entered his plea, the Defendant agreed to allow the trial court to determine whether the indictment sufficiently charged him with aggravated vehicular homicide. After a hearing, the trial court determined the indictment sufficiently charged the Defendant with aggravated vehicular homicide. On appeal, the Defendant contends first that the indictment was not sufficient to charge him with aggravated vehicular homicide and only sufficiently charged him with vehicular homicide and second that his guilty plea was not validly entered. After a thorough review of the record and applicable authorities, we affirm the Defendant's conviction for aggravated vehicular homicide.

http://www.tba2.org/tba_files/TCCA/2012/mcclellanI_021512.pdf

STATE OF TENNESSEE v. ALLISON ELIZABETH MCLEAN

Court: TCCA

Attorneys:

Russell F. Thomas, Nashville, Tennessee, for the appellant, Allison Elizabeth McLean.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Kim Helper, District Attorney General; Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

In this extraordinary appeal, the Defendant, Allison Elizabeth McLean, appeals the Williamson County Circuit Court's order affirming the Assistant District Attorney's ("ADA") denial of pretrial diversion and the trial court's refusal to grant an interlocutory appeal of it's denial of her pretrial diversion request. On appeal, the Defendant argues that (1) the trial court erred in denying the Defendant's petition for writ of certiorari because the Assistant District Attorney ("ADA") abused her discretion by (a) failing to support her decision with "substantial evidence;" (b) failing to consider and give proper weight to the Defendant's amenability to correction; (c) giving weight to the circumstances of the case and the need for deterrence without supporting it with evidence; (d) considering improperly the victim's age to "enhance" the circumstances of the offense; and (e) giving "little or no weight" to the Defendant's lack of criminal record and her eight-year marriage; and (2) the trial court erred in denying the Defendant's application for interlocutory appeal. After a thorough review of the record and relevant authorities, we conclude that the trial court properly affirmed the ADA's denial of pretrial diversion. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2012/mcleana_021512.pdf

TODAY'S NEWS

Legal News
TennBarU CLE
Election 2012
Upcoming
Career Opportunities
TBA Member Services

Legal News

Six file for Shelby County General Sessions clerk race

Six candidates have filed to run against Shelby County General Sessions Court Clerk Otis Jackson. On the Democratic side are Marion Brewer, County Commission Chairman Sidney Chism, Ed Stanton Jr. and Karen Woodward. Republicans James R. Finney and Rick Rout also are running. Jackson, a Democrat, was elected in 2008. In July 2011 he was indicted on four counts of criminal misconduct, accused of pressuring staff members to contribute to his re-election campaign. His trial is set for July 16.

See profiles of the candidates in the Commercial Appeal

Washington County judges ask for third sessions judge

Washington County General Sessions judges Robert Lincoln and James Nidiffer appeared before a panel of the county commission yesterday to make their case for the hiring of a third judge. The two, who hear all civil, criminal and juvenile cases, say they are overloaded, that court goes on well past sunset some days, and that new cases are being scheduled four months out. After hearing the judges' testimony, the panel voted unanimously to send a recommendation for a third judge to the full commission.

Tricities.com reports

Fisk opposes state's appeal of art decision

Fisk University has asked the Tennessee Supreme Court to deny the state's request that it review a Court of Appeal's decision allowing Fisk to sell an interest in its prized Stieglitz Art Collection. In its Tuesday filing, the university argued that the case lacks relevancy to the public and is not an important question of public policy. It also points out that the case is controlled by New York law since that is where Georgia O'Keeffe resided when she made the gift to the school. The state argues that O'Keeffe imposed a no-sale condition on the gift, which makes co-ownership unacceptable.

Learn more from Channel 5

Judge Brown reveals health struggle

Despite ongoing medical issues that have prevented Criminal Court Judge Lynn Brown from hearing cases recently, Brown was scheduled to be on the bench in Jonesborough today. On previous court dates, Brown has talked about his medical situation publicly but not in depth. He now says that he cannot sit for long periods of time due to blood clots in his legs, and that his doctor has recommended he not work at all.

The Johnson City Press has more

Review: legal industry faces uncertain prospects

A client advisory from Citi Private Bank's Law Firm Group and the Hildebrandt Institute, a division of Thomson Reuters, finds that the economic performance of the legal industry in 2011 "was not able to redress the significant declines experienced in all key financial indicators during the first three years of the economic downturn." They cite sluggish performance, growing pressure on profitability, and expenses that outpace revenue as the main challenges facing the industry. With no major improvement in sight, the groups predict that "2012 may well be more challenging than 2009."

The Wall Street Journal's Law Blog looks at the issue

TennBarU CLE

Free webcast kicks off Law Tech Un-Conference

The TBA and its Law Office Technology & Management Section kick off this year's Law Tech Un-Conference with a free one-hour webcast Thursday at 9 a.m., featuring tech gurus Bill Ramsey and Phillip Hampton. More than 100 people have signed up to attend the day-long live program at the Tennessee Bar Center. In the Un-Conference format, attendees can come and go throughout the day, attending as many or as few programs as they like.

Find out more about Law Tech

Election 2012

Early voting begins today

Polls opened today for early voting in the March 6 presidential primary, which could help decide who will face President Barack Obama in November. Restore Our Future, a political action committee backing Republican Mitt Romney, was the first -- and so far only -- group to buy television advertising in Nashville during the primary season. In other news, Romney named Gov. Bill Haslam as chairman of his Tennessee campaign, and announced that former Gov. Winfield Dunn will lead a slate of 48 delegates to the Republican National Convention this summer.

The Tennessean has more

Upcoming

Bradley County Bar offers family law session

The Bradley County Bar Association, in cooperation with the Bradley County Law Commission and the public library, will host a "crash course" in family law Thursday evening beginning at 7 p.m. The session -- part of the association's quarterly Community Legal Forum for area residents -- will be led by lawyers Jack Tapper, Jerry Hoffer and Philip Jacobs. The bar association says its forums have been very popular and are a way for lawyers to support equal access to justice for area citizens.

The Cleveland Daily Banner reeports

Career Opportunities

Counsel On Call seeks health care litigator

The legal placement agency Counsel On Call is currently interviewing litigation attorneys to work at a Nashville-based healthcare company under a full-time contract. Candidates must be able to work on-site at the client's offices in Nashville, have at least six years of litigation experience in a top law firm or a health care company, have strong academic credentials and possess a Tennessee law license. Experience at a large law firm is a plus. Send resumes to dianne.neely@counseloncall.com.

Learn more on JobLink

Firm seeks associate with 3-6 years experience

The Columbia law firm of DuBois, DuBois & Bates PC is seeking one or two associate attorneys to work in its litigation and/or general practice areas. Preference will be given to applicants with three to six years of experience. To apply, send resume to James T. DuBois at jdubois@duboislegal.com or by fax to (931) 388-8137.