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How do experienced criminal law practitioners break down a case to win an acquittal? Find out from some of the best at the upcoming "Anatomy of an Acquittal" CLE April 20 at the Tennessee Bar Center in Nashville. Using a hypothetical vehicular homicide, attorneys Ed Yarbrough, Roger May and Hal Hardin will look at each critical stage of the proceeding, including how to deploy a theme and examination of experts. Providing insights into the case from the state's perspective will be District Attorney General Tommy Thompson.

https://www.tba2.org/tennbaru/acquittal_042007.html

TODAY'S OPINIONS
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Editor-in-Chief, TBALink

CITY OF COVINGTON EDUCATION ASSOCIATION v. CITY OF COVINGTON, ET AL.

Court: TCA

Attorneys:

Richard L. Colbert and Courtney L. Wilbert, Nashville, Tennessee, for the appellant, City of Covington Education Association.

Edward J. McKenney, Jr., Memphis, Tennessee, for the appellee, City of Covington.

R. Dale Thomas and Jesse D. Nelson, Jackson, Tennessee, for the appellee, City of Covington Board of Education.

Valerie B. Speakman, Memphis, Tennessee, for the appellee, Tipton County Board of Education.

C. Barry Ward, Memphis, Tennessee, for the appellee, Tipton County.

Judge: FARMER

Plaintiff City of Covington Education Association filed a petition for writ of mandamus and complaint for damages against Defendants City of Covington and the Covington Board of Education, alleging its members were entitled to a pay increase in addition to that paid by Defendants and to a bonus that was approved and subsequently disapproved by the Board of Education. The trial court denied the writ and entered summary judgment in favor of Defendants. We affirm.

http://www.tba2.org/tba_files/TCA/2007/covingtoneducationassn_040507.pdf


MARK LUNSFORD v. MONTGOMERY COUNTY, TENNESSEE

Court: TCA

Attorneys:

Peter T. Skeie, Nashville, Tennessee, for the appellant, Mark Lunsford.

Neil M. McIntire, Nashville, Tennessee, for the appellee, Montgomery County, Tennessee.

Judge: SCOTT

This appeal involves a retaliatory discharge claim pursuant to 42 U.S.C. Section 1983. The Plaintiff's complaint alleges that the Montgomery County Sheriff's Department terminated him for exercising his first amendment rights by filing a complaint against John Zimmerman, District Attorney General Pro Tem, several detectives, the Clarksville Police Department and the Montgomery County Sheriff's Department, alleging "gross negligence and deliberate indifference" during the criminal investigation of the Plaintiff's stepson's death. The trial court granted the Defendant's Motion for Summary Judgment. On appeal, the Plaintiff claims that the complaint addressed a matter of public concern, his rights as a citizen outweigh the Defendant's rights as an employer, and the issue of whether the Defendant terminated the Plaintiff because of the complaint is a question of fact that a jury must decide. We conclude that the complaint addressed a matter of public concern, that the Plaintiff's rights as a citizen to address a matter of public concern outweigh the Defendant's rights as an employer and that a genuine issue of material fact exists as to whether the Plaintiff's complaint was a substantial and motivating factor in the Defendant's decision to terminate the Plaintiff and whether the Defendant would have terminated the Plaintiff even in the absence of the protected speech. Therefore, we reverse and remand the case to the trial court for trial before a jury.

http://www.tba2.org/tba_files/TCA/2007/lunsfordm_040507.pdf


STATE OF TENNESSEE v. LINDA KAY BATTS

Court: TCCA

Attorneys:

Steven L. West, McKenzie, Tennessee, for the appellant, Linda Kay Batts.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin D. McAlpin, Assistant District Attorney General, attorneys for the appellee, State of Tennessee

Judge: WOODALL

Following a jury trial, Defendant, Linda Batts, was convicted of possession of methamphetamine with intent to deliver and possession of drug paraphernalia. She was sentenced to serve eight years in the Department of Correction for the intent to deliver conviction, and eleven months, twenty-nine days in the county jail for the paraphernalia conviction, with the sentences to be served concurrently, for a total effective sentence of eight years. Defendant now appeals the judgments of the trial court arguing (1) the trial judge failed to exercise his duty to act as thirteenth juror and overturn the jury's verdict, (2) the jury selection process was tainted in violation of her constitutional rights; and (3) the trial court improperly denied her motion to suppress evidence. After a thorough review of the record, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2007/battsl_040507.pdf


STATE OF TENNESSEE v. JEFFREY LEE FIELDS

Court: TCCA

Attorneys:

Victoria L. DiBonaventura, Buchanan, Tennessee, for the Appellant, Jeffrey Lee Fields.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General; Hansel Jay McCadams, District Attorney General; and Stephen D. Jackson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

A Carroll County Circuit Court jury convicted the defendant of driving under the influence of an intoxicant (DUI), third offense, see T.C.A. Section 55-10-401 (2006), possession of a handgun while under the influence of an intoxicant, see id. Section 39-17-1321(a) (2006), and possession of marijuana, see id. Section 39-17-418(a), all Class A misdemeanors. The jury acquitted the defendant of unlawful possession of drug paraphernalia, rolling papers, see id. Section 39-17-425(a)(1) (2006), and unlawful possession of a prohibited weapon, a throwing star, see id. Section 39-17-1302(a)(8) (2006). The court sentenced the defendant for the DUI conviction to 11 months and 29 days suspended after serving 120 days. For the possession of a handgun charge he received 11 months and 29 days suspended after serving 30 days. Likewise, he received 11 months and 29 days suspended after 30 days for the possession of marijuana conviction. All sentences were to run concurrently. The defendant filed a timely notice of appeal and complains, only in regards to his DUI conviction, that (1) the trial "was fundamentally unfair due to the State's failure to preserve the video tape of the field sobriety tests . . ., which . . . would have been exculpatory in nature," and (2) "the verdict . . . was unreliable based upon [the deputy's] erroneous testimony . . . concerning the Breathalyzer Machine and the test he gave and the manner in which he gave it." After review of the record and the briefs submitted by the parties, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/fieldsj_040507.pdf


STATE OF TENNESSEE v. ARIKO T. HALIBURTON

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Ariko T. Haliburton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Ariko T. Haliburton, pled guilty to one count of possession with intent to sell 0.5 grams or more of cocaine, a Class B felony. Defendant agreed to a sentence of three years as a Range I standard offender, and left to the determination of the trial court whether the sentence should be served consecutively to or concurrently with his sentence for a conviction of attempted second degree murder in an unrelated case. The trial court imposed consecutive sentencing based upon Defendant's status as a professional criminal. On appeal, Defendant does not challenge the trial court's determination that Defendant is a professional criminal. However, Defendant argues that the trial court erred by ordering consecutive sentencing because certain sentencing principles were not found by the trial court. After a thorough review, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2007/haliburtona_040507.pdf


STATE OF TENNESSEE v. WADIE MICHAEL HOLIFIELD

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; Periann Houghton, Assistant Public Defender (on appeal); Julie K. Pillow and Ray Glasgow, Assistant Public Defenders (at trial), for the appellant, Wadie Michael Holifield.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Colin A. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Wadie Michael Holifield, was convicted of aggravated sexual battery, a Class B felony, and sentenced as a violent offender to serve eighteen years in the Department of Correction. He appeals two issues: (1) the sufficiency of the evidence; and (2) whether the trial court erred by denying his motion for a new trial because the jury allegedly was tainted by overhearing courtroom conversations between the victim and her family. Following our review, we affirm the judgment of the trial court but remand for entry of a corrected judgment to reflect the date of the offense as January 16, 2005, rather than February 4, 2005.

http://www.tba2.org/tba_files/TCCA/2007/holifieldw_040507.pdf


STATE OF TENNESSEE v. CARLOS ALVAREZ LEVY

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the Appellant, Carlos Alvarez Levy.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Carlos Alvarez Levy, appeals the imposition of consecutive sentences by the Marshall County Circuit Court. Levy's sentences stem from his guilty pleas to one count of aggravated assault, two counts of especially aggravated kidnapping, one count of aggravated robbery, one count of attempted aggravated robbery, and one count of unlawful possession of a weapon. Following a sentencing hearing, the trial court imposed the minimum sentence of fifteen years for each of the especially aggravated kidnapping convictions, as a violent offender, and ordered that the sentences be served consecutively. The sentences imposed for the remainder of the convictions were ordered to be served concurrently for an aggregate effective sentence of thirty years. After review, the trial court's sentencing decision is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/levyc_040507.pdf


STATE OF TENNESSEE v. REGINALD J. MCGILL

Court: TCCA

Attorneys:

Adrian Chick, Nashville, Tennessee (on appeal), and Paul J. Walwyn, Madison, Tennessee (at trial), for the appellant, Reginald J. McGill.

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Reginald J. McGill, pled guilty in the Cheatham County Circuit Court to aggravated kidnapping, and he received a sentence of twelve years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's application of two enhancement factors. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mcgillr_040507.pdf


STATE OF TENNESSEE v. GINA LOLA SMITH

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Christopher G. Clark, Assistant District Attorney General, for the appellant, State of Tennessee.

Rebecca F. Stevens, Assistant Public Defender, for the appellee, Gina Lola Smith.

Judge: GLENN

The defendant, Gina Lola Smith, was indicted for one count of theft over $500 and one count of theft over $1000. She applied for pretrial diversion, and the State denied her request. After granting her petition for a writ of certiorari, the trial court ruled that the State abused its discretion in denying pretrial diversion. Subsequently, the trial court denied the State's motion to reconsider but granted permission to file this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Following our review, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2007/smithg_040507.pdf


STATE OF TENNESSEE v. THOMAS D. STRICKLIN

Court: TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee; and James D. White, Jr., Celina, Tennessee, for the appellant, Thomas D. Stricklin.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William Edward Gibson, District Attorney General; and David Patterson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Thomas D. Stricklin, was found guilty in count one of the indictment of rape of a child, a Class A felony, and in counts two, four, five, and six of aggravated sexual battery, a Class B felony. The State entered a nolle prosequi as to count three of the indictment which charged rape of a child. After a sentencing hearing, the trial court sentenced Defendant to concurrent sentences of twenty years for his rape conviction and eight years for each aggravated sexual battery conviction, for an effective sentence of twenty years. In his appeal, Defendant argues that (1) the trial court erred in not severing the charges relating to the two victims; (2) the trial court's instructions to the jury erroneously defined the mental element of the charged offenses; (3) the trial court erred in not instructing the jury on attempted rape of a child as a lesser included offense of the charged offense; (4) the evidence was insufficient to support the convictions; and (5) the trial court erred in its evidentiary rulings. After a thorough review of the record, we conclude that the proof fails to establish a penetration as required by the offense of rape of a child as charged in count one of the indictment. We find the evidence is legally sufficient, however, to support a conviction of aggravated sexual battery for count one of the indictment. Accordingly, Defendant's conviction for rape of a child in count one is modified to aggravated sexual battery, the sentence for Defendant's rape conviction is vacated, and the case is remanded to the trial court for resentencing for the offense of aggravated sexual battery. We affirm the trial court's judgments in all other respects.

http://www.tba2.org/tba_files/TCCA/2007/stricklint_040507.pdf


Operating Guidelines of the Division of Mental Retardation Services

TN Attorney General Opinions

Date: 2004-04-20

Opinion Number: 07-42

http://www.tba2.org/tba_files/AG/2007/ag_07-42.pdf

TODAY'S NEWS

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Legal News
Tapes can be used in Ford trial
U.S. District Judge J. Daniel Breen ruled today that parts of undercover videotapes -- with multiple camera angles showing alleged payoffs to former state Sen. John Ford -- could be shown to the jury in next week's federal bribery trial. Although parts of the tapes will not be used because some audio is unintelligible, on other parts of the tapes Ford brags that he can deliver local government contracts to a firm because he has brothers on the Memphis City Council and the Shelby County Commission, and that he "he has pull with the state, in part, because he's close to a high-ranking female employee with whom he once had a sexual relationship."
The Commercial Appeal has the story
Sweat doesn't want part of Gibson defense
One of the key figures in a pending complaint filed by a judge against District Attorney William "Bill" Gibson says much of what was published about her is wrong. In an email sent to the Crossville Chronicle last week, Tina Marie Sweat says she does not feel it is fair that she is being dragged into the prosecutor's problems with a state regulatory board, according to the paper. Judge John Turnbull had filed an ethics complaint against Gibson after learning that Sweat and Gibson had become friends, which was not disclosed when Gibson sought the judge's signature on an order setting aside Sweat's conviction relating to a methamphetamine raid.
Read the story in the Crossville Chronicle
Cooper says no to O'Keeffe/Fisk settlement
Attorneys for Fisk University said the school will "forge ahead" toward a planned July court date and is not surprised by today's decision by Tennessee Attorney General Bob Cooper to decline to approve a proposed legal settlement between Fisk and New Mexico's Georgia O'Keeffe Museum, the Tennessean reports. The agreement would have granted the museum the exclusive right to purchase for $7 million O'Keeffe's "Radiator Building" painting, which is part of the university's renowned Stieglitz Collection.
Read the attorney general's letter to Fisk's attorneys
Open records suit argued before state Supreme Court
Lawyers for The Jackson Sun and the city of Jackson argued before the Tennessee Supreme Court on Tuesday about the dangers and the benefits of releasing police records that are at the center of a 2005 open records lawsuit brought by the newspaper. "This was a result of two separate requests for public records that received no response from the city," the newspaper's attorney, Charles Purcell, told the four justices.
Read more about the case in the Jackson Sun
Former Gonzales aide will take the 5th
Former senior counsel to Attorney General Alberto Gonzales, Monica Goodling, has told the House Judiciary Committee she would neither testify publicly nor submit to private questioning about the firings. Goodling was the department's White House liaison before she took a leave last month amid the uproar over the firings of eight U.S. attorneys. House Judiciary Committee Chairman John Conyers, D-Mich., asked Tuesday that Goodling submit to a closed-door interview on the matter, saying she had nothing to fear if she told the truth. In a Wednesday letter responding to that request, her lawyers said her decision not to testify "can in no way be interpreted to suggest that Ms. Goodling herself participated in any criminal activity." Her lawyers say the request is "reminiscent of Senator Joseph McCarthy."
Tri-Cities.com carried this AP story
Legislative News
The beginning of the end?
No, not yet
The Tennessee General Assembly is now in its 11th week of the regular session and the first signs that legislators will begin considering, thinking about, inching toward adjournment are starting to emerge.
Read more
BPR Actions
Johnson City lawyer censured
On April 2 the Board of Professional Responsibility issued a public censure to Johnson City lawyer Lewis A. Holt. Holt was retained in a lawsuit but then did not return phone calls to the client, closed his office, and has not returned an original contract that is vital to the client's lawsuit. Holt was thereby found to have violated RPC 1.3, 1.4, 1.5, and 1.16 of the Tennessee Rules of Professional Conduct.
Read the BPR's release
TBA Member Services
Free online legal research is newest TBA benefit
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
Log in now to try it out

 
 
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