               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                      FILED
                               OCTOBER 1993 SESSION
                                                                    September 5, 1996

                                                                    Cecil W. Crowson
STATE OF TENNESSEE,                 )                              Appellate Court Clerk
                                    )
              Appellee,             )      No. 01C01-9304-CR-1282
                                    )
                                    )      Davidson County
v.                                  )
                                    )       Hon. Walter C. Kurtz, Judge
                                    )
ALFRED B. ROLLINS, et al.,          )       (Contempt)
                                    )
              Defendants,           )
                                    )
In re: JOHN HERBISON,               )
                                    )
              Appellant.            )




                                 CONCURRING OPINION



              I concur in the result reached in the majority opinion. I write separately,

though, to express my strong belief that the appellant’s conduct in this case is free of

any blame, given the context of the question in issue. In this respect, whether I or

anyone else would have found a more circumspect way to prove the point or make a

record is largely irrelevant. Likewise, whether all the evidence -- viewed in hindsight --

actually proved the points sought to be proved relative to the appellant’s question is

largely irrelevant.



              The defense in the underlying case contended that the gambling

promotion charges against the defendants should be dismissed because of an

unconstitutionally vindictive or selective prosecution. The trial court held a pretrial,

nonjury hearing relative to various motions, including the one for dismissal. In support

of the defense claims, defendant Rollins was called to testify and was asked by his own

attorney about what he called the female police officer in his discussion to then-Mayor
Boner. As the majority opinion notes, he did not answer directly, but stated that it was

vulgar and was a lesbian reference. It was only then that the appellant verified the

exact words used by Rollins in his opprobrious appellation.



              Significant to our inquiry is that neither objection nor question was raised

regarding the legitimacy or relevancy of this line of inquiry when Rollins’ counsel asked

his questions regarding the same subject matter. Moreover, given the inference sought

by defense counsel, that is, members of the police force would have reason to have

animosity toward Rollins and his associates, it certainly should be of interest to the trial

court and any reviewing court as to what was actually said. This is because some

name-calling may be more offensive to the recipient than others; ironically, a point

seemingly made by the trial court’s reaction in this case.



              In any event, the record plainly shows that the appellant’s question,

containing the words of the witness that the appellant sought to prove, was asked in

good faith as one relevant to the issues under inquiry. The fact that the language was

vulgar and coarse is of no consequence when it is contained in the statement of a

witness that is relevant to an issue at trial. I see neither misbehavior, ill motive, nor

improper willfulness in the appellant’s conduct. Rather, I see, as the appellant stated,

an attempt “to have a full picture of what, in fact, went on.” In this vein, when the facts

happen to be vulgar, the trial court should not question zealous counsel’s good faith

attempt to insure that the real facts are placed into the record.



                                                  ______________________________
                                                  Joseph M. Tipton, Judge




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