# FILED
September 10, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JULY 1999 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9805-CR-00209

) ) Davidson County v. ) ) Honorable Frank G. Clement,Jr., Judge ) SHAWN ROBERT COTTON ) (Vehicular homicide by intoxication) ) Appellant. )
For the Appellant : For the Appellee : Robert P. Ballinger Paul G. Summers 601 Woodland Street Attorney General of Tennessee Nashville, TN 37206 and (AT TRIAL AND ON APPEAL) Daryl J. Brand Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y John G. Ol iva Nashville, TN 37243-0493 601 Woodland Street Nashville, TN 37206 Victor S. Johnson, III (ON APPEAL) District Attorney General and Bernie McEvoy Assistant District A

ttorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N The defendant, Shawn Robert Cotton, appeals as of right his conv iction by a jury in the Da

vidson County Cri minal Court for vehicular homicide by intoxic

ation, a Class B felony. The trial court sentenced the defendant to serv e twelve years in the Department of Correction as a R ange I, standard offender. The defendant contends that: (1) the evidence is i nsufficient to support the convi ction,

(2) the trial court erred

during voir dire by impl iedly threatening to hold the jurors in contempt for perjury if they failed to return a verdict, (3) the state improperly struck African-American female jurors from the panel based upon their race and gende r, (4) the state imp roperly c omm ented upon the defendant’s silence and improperly appealed to the jury’s sympathy during argument, and (5) the cumulative effect of the errors violates the defe ndant’s right to a fair trial. We affirm the trial court’s judgment of convi ction.

Detective Rickey

Ollis testified that on Apr il 2, 1996, at 3:15 a.m., he wa s responding to another dispat ch when he heard tires s creech and a crash. He sai d that in less than thirty s

econds, he came upon a red Camaro embedded in an embankment across from a “T” intersect ion. He stated that on the dri ver’s side, he saw

an unconscious male seated behind the steering wheel. He said the man had long, dark hair and was of averag e build. He identified this man as the defendant. He said he saw a female slumped down in the passenger seat with her chin on her chest. He said her feet were bent underneath the passenger’s bucket seat , and her back was against the bottom of the seat as if she wer e sliding out of it. He s tated that the driver’s door was jammed, and he tapped on the dri ver’s window two or three times until the defendant started to move. He sai d the passenger’s door w as also jammed, but he could see the passenger’s chest rising and falling . He stated that he radioed for an3

ambulance and an extrication unit. He said that he then saw a third person rise up in the back seat.

Detective Ollis tes

tified that the fire department arr ived within five minutes and that he directed them to the passenger’s side, believing the fem ale had the most serious injuries. H e said that once they cut and pried the passenger’s door open, the defendant

immedia

tely c rawled out ov

er the fe male. He

said th at a lar

ge gear shift separated the car’s bucket s eats. He said that consider ing the distance between the seats and the d ashboard, it woul d not have been p ossible for two ad ults to change places in the car during the accident.

Metro Police Officer Donald Davidson testified that he w ent to the accident scene. He said that the front of the 1968 red Camaro was compacted but that the damage did not extend throug h to the passenger’s compartment. He said theoccupants were still inside the car when he arrived, and he saw a male with shoulderlength hair in the driv

er’s seat. He said that the man, whom he identified as the defendant, was looking around . He said he saw an uncons cious female in the passenger’s seat with her body mostly dow n on the floorboard. He said thi s woman was eventually identified as the victim, Helen Hollis.

Officer Davidson testified that he asked the defendant what happened and that the defendant told him tha t he thought the police were chasing them. He said the defendant appeared dazed. He sai d he went to the passenger’ s side a few seconds before the door was pr ied open. He said the defendant craw led over the victim and out the passeng er’s door. He said the bac kseat passenger, who w as later identified as Chad Jumps, craw led between the seats, ov er the victim and out the passenger’s door.4 Officer Davidson testified that he led the def endant away from the car, observed that the defendant’s ey es were red, and noticed the odor of alcohol on the defendant’s breath. He said that he asked the defendant what happened, and the defendant first responded that the vi ctim was driving . He said the defendant admitted that he had been drinking, st ated that the victim wa

s driving, and said

that a car pulled out in front of them. Officer Davids on said that when he told the defendant that he saw the defendant in the driver’s seat, the defendant said that the defendant had made a mistake, that he meant to say th at he was driving , and that he was tryi ng to help the victim because she had been dr inking that night. Officer Davidson said that he explained the implied conse nt law to the defendant and reque sted that the defendant submit to a blood alcohol test.He said the defendant replied, “ I’ll give you any f***ing thing you want becaus

e I wasn’t drivi ng.”

Officer Davidson testified that about three hours after the wr eck, he arrested the defendant and advised him of his Miranda rights. He said that the defendant nodded his head to indicate that he did understand his rig hts. He said he then asked if the defendant could te ll him what happened, and the defendant sh ook his head to indicate “no.” Officer D avidson said that he agai n asked the defendant if he could tell them who was driving or what happened, and the defendant again shook his head to indicate “no.”

Officer Davidson testified that the inside of the car was damaged from the occupants striking the dashboard and that the glove box was heavily dented in the area of the victim’s knees. H e admitted that the dents in the g love box did not rev eal the identity of the passenger. He stated that the cracks that extended across the car’s windshield resulted from the front of the car compacting upon i mpact and were not consistent with a pers

on’s head striking the w indshield. He said that the steering wheel was bent from impact with an occupant. He stated that based upon the physical5

evidence, the car hit the embankment straight on and that nothi ng indicated that the car had spun or rolled.

Sandra Fielder, an emergenc y room nurse, testified that she treated the defendant on April 2, 1996. She said that the defendant had two lacerations on his chin and abrasions on his left hand and r ight elbow. She said that she did not see any injuries to his chest. She stated that he smelled stron gly of alcohol. She sai d that he initially refused to su bmit to a blood alcohol test, c laiming that he did not li ke needles. She said that she laughed becaus e the defendant’s chest was cov ered with blue tattoos, and she told him she thoug ht that he could stand the test if he had been able to stand the tattoos. She said that the defendant later agreed to the tes t. She said that her notes from that day indicate that the defe ndant denied being the driver of the car.

Officer David Kitchens tes tified that he worked in the accident investigation div

ision of the Metro Police Department. He said that he w as called to an accident scene after 3:15 a.m. on Apr il 2, 1996. He said that he s aw a female in the passenger’s seat with her feet tucked underneath her. H e said that the defendant had just left the car and that the odor of alcohol from the defendant’s mouth was obvious to extreme. He said that he saw no evidence that the car had flipped or spun. He said the damage to the steering w heel stood out in his mind.

Officer Kitchens testified that he foll owed the defendant to the hospital where the defendant was loud, boisterous, profane a nd refused to stay on the bed. He said he read the implied consent law to the defendant again and as ked him to submit to a blood alcohol test. He sai d that the defendant refused the test. He s aid he informed the defendant that the officers would forc e him to submit to the test, and the defendant agreed to the test after speaki ng with another officer. H e said that while at the h ospital6

with the defendant, he saw a red, half-moon shaped mark across the defendant’s chest.

Metro Police Officer Jim Reed testified that he was at the hospital with the defendant when the defendant refused to submit t o a blood alcohol test because he was afraid of needles. He sai d that he told the defendant that his fear of needl es was illogical giv

en the fact that the defendant was cov ered with tattoos. He s aid that he noticed an obvious reddis h, semi-circular mark on the defendant’s chest similar to a mark that would be left upon colliding with a steering wheel.

Special Agent John Harri son of the Tennessee Bureau of Investigation (TBI) testified that he worked as a toxicologist at the state crime laboratory. He said that the defendant’s blood sample rev ealed a blood alcohol content of .17 per cent.
Dr. Bruce Levy, the

Davidson County Me

dical Examiner, testified as an expert in forensic patholog y. He said that he had rev iewed the autopsy repor t on the victim. He said that the report revealed that she suffered a broken jaw; chin lacerations; a broken neck; a crushed larynx and trachea; multiple broken ribs; tears in her liver; a broken spine; a broken right arm; two broken ankles; bruising to her knees, the front of her legs, and the ri ght side of her chest; and bleedi ng on the back of her scalp. He said that she died as a result of the blunt force injuries that she received in the accident. He said that th e injuries were cons istent with her sitting in the passenger’s seat of a car i nvolved in a front end col lision. He said that w hile it would be possible for her to have r eceived the injuries w

hile in the driver’ s seat, her most serious injuries were to her head and neck; whereas, had she been behind the steering wheel, the most serious injuries would have been to the ches t area. He noted that she did not have a steering wheel imprint.7 Joe Farmer testi fied that on A pril 2, 1996, he was working for BrowningFerris Industries relocating dumpsters from 1 a.m. to 1 p.m. He said that he likes cars and that between 2:40 and 2:50 a.m., he noticed a red Camaro across from him at an intersection. He said th at an attractive, dark- haired young woman w as driving, and she had two male passengers. Although he admitted that his t ruck sits very high up from the ground, he said that he w as positive about the gend er of the driver. He sai d that later that morning, another driver told him about an accident involving a red Camaro, in which a young w

oman was killed.
Chad Jumps testified that he is an acquaintance of the defendant. He said that in early Apr

il 1996, he was in Tennessee helping the defendant move back to Illinois. He said that he and the defendant went to a bar and spo ke with the bartender, who offer

ed to sho

w them a nother n ight sp ot call ed the Mi

x Facto ry wh en her sh ift ended. He said that he thought the bartender’s name was Christina Hollis. He said that she drove them to the Mi x Factory, and they

stayed until it clos

ed around 3:00 a.m. He stated that when they left the Mix Factory , Ms. Hollis drov e, the defendant sat in the passenger’s seat, and he sat in the backseat behind the defendant. H e said they stopped at a gas station and boug ht a twelve pack of beer.He said that Ms. Holl is was driving when they

left the gas station and that he does not remember anything from then until he awoke in the hospital about eight hours later.

Dr. Charles Harlan t

estified that he previously served as the chief medical examiner for the state of Tennessee, an d in addition to his private practice, he currently served on a contract basis as the county medical examiner for seven counties in middle Tennessee. He stated that he rev iewed the victim’s

medical records, includi ng the autopsy report and photogr aphs of the damage to the car, and he co ncluded that the victim was driv

ing the car at the time of the ac cident. He stated that the v ictim’s broken ankles were consistent with the victim br

acing her feet against the br ake pedal, the8

accelera tor peda l, or the f loorboa rd of the car. He sai d that he r liver injur ies could have been caused by impact with the bottom of the steering w heel. He said that her brok en ribs were consistent

with her chest hitti ng the sides of the steering wheel. He stated that her broken arm could hav e resulted from gripping or bracing against the steering wheel or dashboard at the ti me of impact. He said that he belie ved her neck injuries were caused by the impac t with the dashboard ov er the steering wheel . He admitted that the injuries to the victim’s neck could have been caused by striking the dashboard on either side of the car, but he said that the victim’s injuries were caused by multiple points of impact. He stated that i f the victim were in the passenger’s seat w hen the accident occurred, sufficient points of imp act would not have been present to explain all of her injuries.

Dr. Harlan testified that he had also reviewed the defendant’s em ergency room records and Metro Fi re Department EMS records from the time of the accident. He stated that the EMS records note that the defen dant had negative trauma to his chest. He said that the emerg ency room records rev eal that the doctor noted no bruising on the defendant’s chest in an off ice visit two days after the accident. He concluded that if the defendant had exhi bited a red semi-circl e on his chest on April 2, this injury woul d have also been apparent tw o days later. He noted tha t the defendant had pooling of blood and abrasions in the knee area. He stat ed that the defendant’s injuries were not consistent with him being the driver.

Based upon the foregoing evi dence, the jury found the defendant gui lty of vehicular homicide by

intoxication and vehi cular homicide by reck less endangerment. The trial court merged the t wo convictions int

o the vehicular homicide by intoxication count because the charges ste mmed from a single death.9 I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence i s insufficient to prove bey ond a reasonable doubt that he was driving the car at the time of the accident. He arg ues that because Dr. Harlan co ncluded that the victim w as the driver based upon her injuries and because Joe Far mer saw the victim dr

iving the car shor

tly before the accident, the state has failed to disprove all reasonabl e alternatives to the circumstantial evidenc

e placing him in the dri ver’s seat. The state cont ends that the evidence is sufficient.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evi dence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). For circumstantia l evidence to provi de the sole basis for the conv iction, the facts must be “so closely interwoven and connected that the finger of guilt is poi nted unerringly at the defendant and the defend ant alone.” State v. Crawford , 225 Tenn. 478, 484, 470 S.W.2d 610, 613 (1971). The evidence must be both consistent with th e defendant’s guilt and inconsis tent with the defendant’s innoce nce, exclude all other reasonable theories except that of guilt, and establish the defendant’s guilt so as to convince the mind beyond a reasonable doubt that he or she co mmitted the crime. Patterson v. State , 4 Tenn. Crim. App. 657, 661, 475 S.W.2d 201, 203 (1971). Whether other reasonab le inferences are excluded by the circumstantial evidence is also a que stion fo r the jury.10 Tenn. Code Ann. § 39-13-213(a)(2) defines vehicular homicid e as “the reckless killing

of another by the operation of an automobi le, . . . [a]s the proxi mate result of the driver’s intoxication as set forth in § 55-10-401.” Viewing the evidence in the light most favorable t o the state, Dr. Levy

testified that the victim died as a result of the injuries she sustained in the accident. Special Ag ent Harrison testified that the defendant’s blood alcohol content w as .17 percent on the morning o f the accident. Based upon this percentage, the defendant is presumed to be under the influ ence of an intoxicant and his abil ity to drive there by impaired. See Tenn. Code Ann. § 55-10- 408(b).

The circumstantial evidenc e points to the defendant as the driv er of the Camaro at the time of the accident. Officer Ollis testified that he found the defendant unconscious in the driver’s seat thirty seconds after he heard the crash. Off icers Ollis, Davidson and Kitchens all testified that the victim was on the passenger’s side with her feet bent beneath her seat. Off icers Kitchens and Reed reported seeing a red semicircular mark on the defendant’s chest shortly after the ac cident. Testimony and photographs introduced at the trial revealed that the Camaro had bucket seats separated by a tall gear shift. Both Officers Davidson and Kitchens fo und no evidence that the car had spun or rolled. Dr. Levy and Dr. Harlan both admitted that the victim’s injuries could have been sustained in either the dri ver’s seat or the pass

enger’s seat, with each providing

a different explanation of how the victim’s injuri es indicated a particular position. The j ury obviously a ccredited the explanation provided by Dr. Lev y. Although Mr. Farmer tes tified that he saw a woman dr iving the Camaro betw

een 2:40 and 2:50 p.m., he did not know w ho was driving the car at the time of the accident about twenty-five minutes later. Furthermore, M r. Farmer or any other witness failed to give any reasonable

explanation of how the defendant ca me to be located in the driver’s seat thir

ty seconds after the accident occurred. Thus, the evide nce taken in the11

light most favorable to th e state excludes all r easonable theories except that of the defendant as the driver.

II. TRIAL COURT’S STATEMENT TO THE JURY VENIRE The defendant contends that the trial cour t committed reversible e rror when it told the jurors during voir dire that they would be held in contempt for perjury if they failed to return a v erdict consistent wi

th the trial court’s i nstruction on the law. The defendant admits that he failed to object contemporaneously to the trial court’s statement. However, he asks that we find plain er ror because the trial cour t’s statement prejudiced the judicial process, thereby requiring a new trial even if the misconduct did not influence the verdict. See State v. Perry , 740 S.W.2d 723, 726 (Tenn. Crim. App. 1987) (holding that preju dice to the judicial proc ess resulting from a jur or’s exposure to extraneous information req uired a new trial ev en though the error probably had no effect on the trial’s outcome); Tenn. R. Crim. P. 52 (b).

The statement in question came duri ng the trial court’s explanation of the purpose of voir dire to the jury pool. The trial court told the potential jur ors that they need not disregard their individual life exper iences and their common sense w hen deliberating. The trial court then stated as follows:

It is important however, that your life experi ences an d your beliefs not interfere with your responsibilities. The most important thingthat I may say today is that for you to be a j uror, you must be able to be fair, impartial , and unbiased; fair, impartial, and unbiased. And the reason I say that is, think o f it this wa y: If you knew of someone who ha d a matter that needed to go to court and needed to be ruled upon byjurors, wouldn’t it be terribly unfairif one or more members of the jury had their minds made up before they ever heard the evidence, before they ever heard a witness testify, and before they ever heard what the l aw was? That wouldn’ t be fair. And you don’t want to be in that position and I sure don’t.
A nd I promise you, if you serve on th e jury, and thi s case may take two or t hree days to try. I f you serve on the jury, this jury, and if duri ng those deliberations, tw o or th ree12 days later yo u say, I’m sorry, I just c an’t apply the law tha

t Judge Clement read to us, I’ ve just got real stron g feelings about this and I don’t care what the law is, this is the way

I see it and I’m go ing to rule this way. W ell, you wi ll ha ve wasted eve rybody’s time. You will hav e offended at least [eleven] people i n t he jury room. And I may hold you in contempt for having comm itted pe rjury. So don’t put yourself or the others in that position. Be hones

t with yourse lf, be honest with me, be honest wit h your fel low ju rors when we a sk you i f you hav

e life experiences

or if you have opinions on the subject. Just share it with us. I t’s best t o get it out early. And what can I d o, I’ll vi sit w ith you and say, w ell, can you put that aside and make a decisi on based solely upon wh at the witness testified to and what the law is? And if yo u can answer that in good faith, then you’ll be a great juror. And if you say, I’m sorry, but my belief on this issue, or my life experience was so personal and so heartfelt that I just can’t put that aside. And then what I’ll sa y is, thank you very much fo r your h onesty, you’ve done w hat you should do. I would excuse you not from the whole jury panel but just from this case, because it may be this type of case might not be the best case for you. The defendant challenges the underli ned portion.

"The ultimate goal of voir di re is to insure that jur ors are competent, unbiase d and imp artial, a nd the de cision of how to cond uct voir dir e of pros pective jurors rests within the discretion of the tri al court." State v. Stephenson , 878 S.W.2d 530, 540 (Tenn. 1 994). Rul e 24(f), Tenn. R. Crim. P., d irects th at the tri al court “g ive the prospective juror

s appropriate admonitions regarding their conduct dur ing the selection process.” The tr ial court’s statement, w hen viewed in the contex t of the court’s explanation of the pot ential jurors’ respons ibilities, was mer ely an admonition to the potential jurors to r espond truthfully during voir dire. Giv

en this context, we do not believe it to be clear error that adversely affected a substantial right of the defendant as is required for a determi nation of plain error. See State v. Adkisson , 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).

III. BATSON CHALLENGE13 The defendant contends that the state used it s peremptory challenges to strike African-American females from the jury on the basis of their race and gender in violation of Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712 (1 986). He argues that the state’s alleged reaso n for striking these potenti al jurors was prete xtual. The state contends that the trial court properly determined that the state ch allenged these potential jurors based upon a valid, race-neutral reason.

The state questioned the jury panel about their view s on circumstantial evidence using sev

eral hypothetical scenar ios. Ms. Cage said that she would not want to find the defendant guilty if the evidence against him were circumstantia l. Ms. Lee did not believe the circumst antial evidence in the pr osecutor’s hypothetical was good strong evidence and even stated that the prosecutor had provided no evidence in his hypothetical. Ms. Tay

lor stated that she wanted more proof beyond the circumstantial evidence presented in the hy pothetical. In response to a h ypothetical burglar

y with a questionable eyewitness naming one perpetrator and circumstantial evi dence pointing to a second perpetrator, Ms.Akins said that she was not sure which indiv

idual was the perpetrator. The prosecutor asked for a show of hand s from the jury panel of those who thought the circumst antial evidence in his hypothetical was g ood strong evidence. Subsequent questioning reveals that Ms. Lee and Ms. Cage did not raise their hands, but the record does not reveal whether Ms. Taylor or Ms. Akins raised their hands.

The trial court denied the stat e’s motion to strike Ms.Cage for cause, noting that although it w as a close issue, she had not received the jury charge defining direct and circumstantial evidence. The state then used i ts peremptory challeng es to strike Ms. Cage, M s. Lee, Ms. Taylor, and M s. Akins. The defendant objected, and the trial court held a heari ng in chambers. The state noted that although it had struck four African-American women, thr ee of the four replacements were Afr ican-American women. The state said that it struck the women because they did not like14

circumstantial evidence. The trial court found that the record f ully supported the state’s reason, noting that the resp onses of the stricken juror s indicated that they “di d not much care for circumstantial evidence, to say the very least.”

In Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712 (1 986), the United States Supreme Court held that a state’s use of peremptory chal lenges to exclude intentionally jurors

of the defendant’s race violates the defendant’s Fourteenth Amendment right to equal prot ection. The Court upheld this principle in Powers v. Ohio , 499 U.S. 400, 111 S. Ct. 1364 ( 1991), but eliminated the req uirement that the defendant and the potential juror shar e the same race. The Court held that race was “irrelevant to a defendant’s standing to object to the discriminatory use of p eremptory challenges.” Id. at 416, 111 S. Ct. at 1373. The Cour t subsequently held that peremptory strikes bas ed solely on gender ar

e also constitutionally

impermissible. J.E.B. v. Alabama ex. r el T.B. , 511 U.S. 127, 140, 114 S. Ct. 1419,1427-28 (1994); see State v. Turner , 879 S.W.2d 819, 821-23 (Tenn. 1994).

A defendant seeking to raise a Batson claim has the initial bur den of making a prima facie showing of purposeful discrimination against a prospective juror. Batson 476 U.S. at 93-94, 106 S. Ct. at 1721; State v. Ellison , 841 S.W.2d 824, 826 (Tenn. 1992). Our supreme court has held that in order to est ablish a prima facie case, a defendant “must establish that a con sideration of all the relev ant circumstances raises an inference of purposeful discriminatio n.” Woodson v. Porter Brown Limestone Co. , 916 S.W.2d 896, 902-03 (Tenn. 1996). Once the defendant establi shes a prima facie showing of purposeful discr imination, the burden shifts to th e state to articulate a raceneutral reason for the challeng e. Batson , 476 U.S. at 97, 106 S. Ct. at 17 23. The state’s explanation “must be based on more than stereotypi cal assumptions, but it need not rise to the level required to justify the exercise of a challenge for cause.” Ellison , 841 S.W.2d at 826; Batson , 476 U.S. at 97, 106 S. Ct. at 17 23.15 In ruling on an objection to the discriminatory use of a peremptory challenge, the trial co urt must articulate specific reasons for each of its factual findi ngs. Woodson , 916 S.W.2d at 906. First, the court should explain why the obj ecting party has or has not established a prima facie showing of purposeful discrimination. Then, if the defendant has made a prima facie showing, the court mus t determine whether the state gave a race-neutr al explanation for the chall enge and whether it finds, based on the totality of the circums tances, that the challenge w as the result of purposeful discrimination. Id. “The trial court’s factual findings are imperativ

e in this context. On appeal, the trial court’s findings are to be accorded g reat deference and not set aside unless clearly erroneous.” Id.

In this case, the trial c

ourt did not explicitl

y state whether the defendant made a prima facie showing of discrimi nation. In Woodson , our supreme court concluded that the trial cour t had found that the objecting part y made a prima facie showing of purposeful discr imination, reasoning that i f the objecting party had not made
a prima facie showing, the trial court would not have r equired an explanation for the challenge. Id. at 905. In any event, the trial court in the pres ent case concluded that the state’s reason for challen ging the prospectiv e jurors was not dis

criminatory. The defendant claims that the trial c ourt only found that the state’s challenges were not discriminatory w

ith regard to race but made no finding concerning g ender. We note that the trial court stated that peremptory challeng es could not be used to discr iminate on the basis of race or gender. Although the court did p oint out that the state did not strike th e Africa n-Americ ans who rep laced the potenti al jurors i n questio n, we belie ve the record reveals that the trial court’s finding of no discrimination applies to bot h race and gender. The court accredi ted the prosecutor’s respons e that he challenged the jurors based upon their lac k of confidence in circumstantial evidence.16 The defendant contends that the state’s reason was pretextual because many jurors who w

ere not stricken expr

essed similar reserv

ations about circumstantial evidence. The defendant downplay s the four women’s distrus t of circumstantial evidence. Ms. Lee and Ms. Cage could not accept that circumstantial evidence could be good evidence. Ms. Tay lor stated that she would need proof beyond circumstanti al evidence. Ms. Akins declined to choose circumstantial evidence over questionable direct evidence. Althou gh some potential jurors indicated that they woul d have to carefully weigh the circumstantial evidence, the remaining members of the venire indicated that circumstanti al evidence could be good evidence. The one remaining potential juror who stated that direct evidence was better than circumstantial evidence also said that he could beli eve circumstantial ev idence. Based upon a careful examination of the record before us, we cannot say that the trial court’s f inding is clearly
erroneous.

IV. IMPROPER ARGUMENT

The defendant contends that the state improper ly commented upon the defendant’s silence during i ts opening statement, its cas e-in-chief and its closi ng argument. The defendant also argues that the state improperly appealed to the jury’s sympathy during cl osing argument. The state co ntends that the defendant mischaracterizes the pr osecutor’s analysis of the evidence as commenting upon the defendant’s silence. The state als o asserts that even if the pr osecutor’s reference to the victim’s family c

ould be considered a victim impact argument, it is harmless error at most.
The state initially cont ends that the defendant has waiv ed these issues by failing to object contemporaneous ly or to raise the i ssues in his motion for a new trial. The defendant argues that because his r ight against self-inc rimination under the Fifth Amendment is a fundamental right, the fai lure to make a contemporaneous objec tion17

does not bar this court’s consideration of the issue of whether the state improperly commented upon the defendant’s silence. With regard to the prosecutor’s alleged appeal to the jury’s sy

mpathy, the defendant contends that the tr ial court has a duty to insure sua sponte that closing arguments are appropriate, and the improper argument constitutes plain error . Failure to object contempor aneously to improper arg ument constitutes a waiver

pursuant to Rule 36(a), T.R .A.P. Furthermore, error s related to the misconduct of counsel must be present ed in the motion for a new tri al to be preserved for our review. T.R. A.P. 3(e). This court has p reviously held that the issue of whether the state improperly commented upon a defendant’s failure to testify was waived w

hen it was not included in the motion for a new trial. State v. Hix , 696 S.W.2d 22, 26 (Tenn. Crim. App. 1984). Thus, we will review

these issues to determine if pl ain error exists. See Tenn. R. Crim. P. 52(b).

A. COMMENTS UPON THE DEFENDANT’S SILENCE The defendant cites four points in the r ecord in which he char acterizes the prosecutor’s remarks or the testimony solicited as a comment upon the defendant’s refusal to answer questi ons from the investigating officer after the Miranda warnings were given. When a defendant elects not t o testify at trial, a pr

osecutor may not comment upon the defendan t’s failure to make a statement to the police becau se this would punish the defendant for ex ercising his or her

constitutional right to remain silent. Braden v. State , 534 S.W.2d 657, 659- 60 (Tenn. 1976) . The United S tates Supreme Court has held that it is “impermissible to penaliz e an individual for exer cising his Fifth Amendment privilege w hen he is under police custodi al interrogation. The pro secution may not, therefore, use at trial the fact that [a def endant] stood mute or claimed his privilege in the face of accusation.” Miranda v. Arizo na , 384 U.S. 436, 468, 86 S. Ct. 1602, 1625 (1966). A prosecutor may comment upon the defendant’s ver acity when the comment is supported by ev idence in the record. State v. West , 767 S.W.2d 387, 394 (Tenn. 1989); State v. Beasley , 536 S.W.2d 328, 33 0 (Tenn. 1976).18 The defendant asserts that the prosecutor commented upon the defendant’s silence when the pr osecutor related in the openin g statement that the defendant admitted driving but did not know how the acc ident occurred: During the course of the evening, police officers spoke to the defendant a number of times. And each time, h e to ld them a very, very

different story. The first time officers spoke to the defendant at the scene, the defendant said, police were chasing us, we were runni ng from the police and crashed. That wasn’t true. He spoke with the police a second time, he said a ca r pulled o ut in fro nt of us, and he pulled out of a gas station, it ran us off the road. That wasn’t t rue. He spoke to the police a third time, he said yes, [ I] have been drinking, but it doesn’t matter, I wasn’t driving . She was driving. Helen H ollis was driv ing. That wasn’t true. Finally, the defendant told the truth. He said to the officers, he was driving . He said, he didn’t remember how the crash occurred. That’s w hat happened. The defendant claims the underlined sec tion is a comment on his sil ence. We do not view the statement that the defendant admitte d driving to relate to the defendant’s failure to give a statement to the police. Instead, the pr osecutor simply pointed out to the jury which of defendant’s statements to the police should be believed. This portion of the statement was proper.

The reference to the defendant not remembering how the crash occurr

ed relates to the responses that the defendant gave Officer Davi dson after the officer advised the defendant of his Miranda rights. The defendant also chal lenges this portion of Officer Davidson’s testimony, which was as follows:

PROSECUTOR: [A bout three hours after the wr eck,] you once again questioned the defendant about the collision? DAVIDSON: Yes sir. At that time, I advised him of his consti tutional r ights and I asked him if he coul d tell me what happened--well, I asked him, did he understand his rights? He shook his head, yes, that he did. I asked him, could he tell me w hat hap pened i n the collision? He shook his head, no. I sai d, can you tell me who19 was driving or

what happened? And he again, shook his head, no. The defendant characterizes the negative head shake as a refusal to make a statement. The state contends that the de fendant’s responses were not a refusal to answer but rather w

ere voluntary answ

ers to the officer’s questio ns made after the defendant had been informed of his constitutiona l rights and had indicat ed that he understood those rights. When a defendant voluntarily makes a statement after being informed of his or her constituti onal rights, the state may comment upon the scope of that statement. See Ware v. State , 565 S.W.2d 906, 90 8 (Tenn. Crim. App. 1978). It is unclear whether the defendant’s responses to Officer Davi dson’s questions constituted answers to those questi ons or a refusal to answer. In any event, even if the responses were a refusal to make a stat ement, thereby making Officer Davidson’s testimony a nd the prosecutor’s reference to that testimony comments upon the defendant’ s silence, we believe this error to be harmless beyo nd a reasonabl e doubt in light of the remaining evidence supporting the defendant’s guilt.

The defendant also contends that the follow ing statement made by the state during its clos ing argument constitutes a comment upon the defendant’s silence: Has the defense given you any reasonable explanati on [about] how the defendant ended up in the driver’s seat and Helen Hollis ended up in the p assenger’s seat seconds a fter a viable, (sic) hi gh impact front-end collis ion? They haven’t. This court has held that comments i ndicating that the state’s proof remains uncontradicted do not implicat e the defendant’s choice not to testi fy. Thomps on v. State , 958 S.W.2d 156, 168 (Tenn. Crim. App. 1997) (rev iewing the failure to o bject to the state’s argument that the de fendant had offered no defense to the crime); State v. Thomas , 818 S.W.2d 350, 364 (Tenn. Crim. App. 1991) (analy zing the state’s comment that “there’s no other reas onable explanation, none gi ven”); State v. Blackmon , 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985) (analy zing the state’s arg ument that the defendant had offered no “excuse or justification” for his escape); State v. Coury , 69720

S.W.2d 373, 378 (Tenn. Crim. App. 1985). The state’s argument that the defendant failed to explain his and the victim’s positions immediately after the acciden t is of this nature. It was proper ar gument.
Finally, the defendant asserts that the state comme nted upon his silence during its rebuttal ar

gument by referring to his lack of remorse: The medical personnel finally get there. They h ave to use the jaws of life

to pry the car open. What is the first thing Shawn Cotton do es? I s he wondering how this person here [that] is just barely hang ing on to her life [is] doing? Do es he se e if sh e needs help? No. He climbs from the driver’s seat over her body to the passenger’s seat to get out. No remorse whatsoever for a p erson laying next to h im dying.

. . . . Let’s talkabout the defendant on April 2, 1996. We do know that from the get-go there wa s one statement, he denied driving. We do know that he asked numerou s times about his ca r. He was very ups et that h is car was to taled ou t. Did we hear any statements that he mad e conc erning the welfare of the passengers in the car? Nothing. All we he a rd [were] his concerns about his car

tryin g to shi

ft the burden . . . away fro m himself. The state contends that these wer e comments about the defendant’s demeanor and conduct shortly after the ac cident, and they are relev ant to the defendant’s intoxicat ion, an element of the crime. A prosecuto r may properly base his or her argument upon inferences supported by ev idence in the record. See State v. B rown , 836 S.W.2d 530, 552 (Tenn. 1992). We view these remarks to be an evaluation of the defendant’s demeanor based upon evidence in th e record.

B. SYMPATHY The defendant contends that the state appealed to the jury’s sympathy

by referring to the presence of the victim’s family dur

ing its closing ar

gument. Our supreme court has recogniz ed that closing argument i s a valuable privi lege for both the state and the defense and that counsel i s afforded wide latitude in pr esenting final argument to the jury. See State v. Cribbs , 967 S.W.2d 773, 783 (Tenn. 1998); State v.21

Cone , 665 S.W.2d 87, 94 (Tenn. 1984). When a prosecutor’s argument g oes beyond the latitude afforded, the test for determi ning if reversal is required is whether

the impropriety “affected the verdict to the prejudice of the de fendant.” Harrington v. State , 215 Tenn. 338, 340, 385 S.W.2d 758, 759 (1965). Factors r elevant to that determination include:

1. The conduct complained of viewed in context and in light of the facts and circumstances of the cas e. 2. The curative measures u ndertaken by the court and the prosecution. 3. The intent of the prosecutor in maki ng the improper statement. 4. The cumulative effect of th e i mproper conduct and any other errors in the rec

ord. 5. The relative streng

th or weakness of the case. Judge v. State , 539 S.W.2d 340, 34 4 (Tenn. Crim. App. 1976).

The prosecutor concluded his closing argument as follows: We do n’ t know much about Helen Hollis. We don’t know what sort of daughter she was to her parents. We don’t know what so rt of f riend s he was to the people she w orked with. We don’t know what sort of mother she was to her son. But we do know this, there were people who loved her, they’re here in the cou rtroom to day, her m other and her step-father. And they’ve been present for every moment, they’ve heard every word that was uttered. And for them, this is the most importantcriminal case in the world. And I know yo u will give it the consideration it deserves. While we view the reference to the importance of the case to the vi ctim’s parents to be inappropriate, we concl ude that it did not affect the verdi ct to the defendant’s prejudice. The context of the statement indicates that it was made to impres s upon the jury the importance of their deliberati ons. Considering the tr ial court’s instruction to the jury that the attorneys’ arguments were not evidence and the strength of the evidence against the defendant, we hold that the statemen t did not affect the verdict to the defenda nt’s prejudice.22 V. CUMULAT

IVE EFFECT OF ERROR The defendant argues that the cumu lative effect of the foregoing errors deprived him of a fair trial . We believe that the trial court’s errors are of such an inconsequential nature that no cumulative error exists.

In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

Joseph M. Tipto n, Judge

CONCUR:

James Curwood W itt, Jr., Judge
John Everett Williams, Judge