### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Brief O ctober 16, 2002 Session STATE OF TENN ESSEE v. DENNIS R . GOLTZ Direct Appeal from the Circuit Court for Hickman County No. 00-5092CR-II Timothy L. Easter, Judge

No. M2001-02019-CCA-R3-CD - F iled January 15, 2003

The Appellan

t, Dennis R. Goltz, was convicted by a Hic kman County jury

of class E felony

theft and sentenced to a term o f two y

ears, w ith sixty

day s to be ser

ved in con

finemen t. On appe al, Goltz raises the following issues: (1) whether the trial court err ed by removing

a juror during the trial after that juror expressed concern about his ability to be fair and impartial; (2) whether he was denied a fair trial due to prosecutorial misconduct during t he State’ s closing

argume nt; and (3 ) whethe

r his sentence was excessive based upon the trial court’s failure to apply a mitigating factor. After review, we find no error with respec t to issues (1) and (3). With regard to issue (2), we f ind that the pr osecutor’s closing argument affected the verdict to the prejudice of Goltz. Accor dingly , th e judgmen t of the tr ial cour t is rever sed, and

this case is remand

ed for a new tria l.
Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Revers ed and Rem

anded. D AV ID G. H AYES , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OHN E VERE TT W ILLI AMS , JJ. joined. Timot hy V. Pot ter, Dick son, Tenne ssee , for the A ppel lant, Denn

is R. G oltz. Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; Thomas E

. Williams, II

I, As sistant Att

orney Genera l; Ronald L. Davis, District

Attorney Genera l; and Ken

neth Crites, Assistant District Attorney Gener al, for the Appellee, State of Tennessee.

OPINION Factua l Background On June 8, 20 00, the Ap pellant, in the cou

rse of hi s duties a s a deputy with the H

ic kma n County Sheriff’s Office, was dispatche d to Hig hway 100 whe re a Centerville police officer had detainedtwo female suspects for burglarizing ve nding machines. A search of the suspect s’ car-2-

yielded various burglarious instruments and a bag o f coins. T

he Appellant and h

is partner , Deputy Carl Hutchinso n, arre sted both t he drive r of the v ehic le, Ja mie Freels, and her passenge r, Sharon Duncan. The two suspects were then transported to the Hickman County Sheriff’s O ffice. Duncan, who was released first, retrieved the c ar from the impound lot and picked

up Free ls after she w as re

leas ed on bail. The next

mor ning Freels discovered that three rings were missing from her car and contacted sever al law enforcement personnel, including D etective Terry Chandler at the Hickman County

Sheriff ’s Depa rtment. Freels explained that shehad removed the rings prior to burglarizing the machines and placed the m in the console because she did not want the rings damaged. Detective Chandler asked the Appellant if he had seen the rings during his search of the suspects ’ car. The Appellant denied a ny k nowledg e of the r

ings. Additionally, Deputy Hutchinson was questioned about the rings, and he a lso advised t

hat he ha

d no knowledge asto their disappearance. On June 23, 2000, an envelope addressed to Freels was delivered to the sheriff’s de partment markedby the post office “retur n to sender.” On the envelope, “Terr y Chandler” w as shown as the sender. Insid

e the envelope were the three missing ring s. A TBI investiga tion followed, during which a forensic document examiner determined that the handwriting on the address portion of the envelope was that of the Appellant. The document examiner was unable to conclude, however, that the return address on

the envelope was written by the Appellant. In addition, Deputy Hutchinson recanted his prior statement and admitted he had observed the rings in the Appellant’s possession during the search of the vehicle. On November 6, 2000, the Appellant was indicted by the Hickm an County

grand jury

for theft of p roperty over $50 0 but less than $1000. At the conclusion of the trial on May 17, 2001, a jury found the Appellant guilty of theft as charged. The Appe llant was subsequently sentenc ed to two ye ars in the

Tenness ee Depa

rtment of Correct ion, with all but sixty day s of the sentence suspended. The Appellant was also barred from serving as a law enforcement officer in Tenne ssee.
Analysis I. Removal of Juror The Appellant asserts that he should have been granted a new trial

because he was prejudiced by the trial court’s r

emoval of J uror #50, w hen the juror informed the court that he had observed conduct in the cour

troom whic

h he felt was fav orable t

o the Appe

llant. The

juror, wh ile seated in the jury box, overheard Shar on Duncan, a prosecution wi tness, who atthe time was seated in the courtro om, tell Jamie Freels “I g ot his ass.” The fol lowing c oll oquy occurr ed between the trial judge and the juror at a hearing of the issue:1 Th e pro of estab lished th at the witne ss Du ncan had b een p revio usly con victed of forge ry. -3- Q. [Tria l Judg e]: Does that incident cause y ou any conc ern that’s going

to affect y our ability to be fair a nd impartial if you st ay o n t hi s j ur y? A. [Jur or]: Yes, bec aus e I t hink, in my opinion, [Du

ncan] set him up . That’s what she was say ing. A nd th e fact that she was accuse d of forgery , really emphasize s that. 1

Over the objection of the defense, the juror was removed and re placed by an alternate. The Appellant contends that this removal, occurring after the State’sclose of proof, w as highl

y pr ejudicia l to his case. Furthermore, he argue s that, because the conduct was observed by the juror in the courtroom from the jury box, it was evidence w hich the j u ror was entitled to consider. This appears to be a question of first impression before the courts of this state. Consistent with constitutional guarantees, this court has previously observe d that “[b]oth the defendant an d t he St at e a re en ti tl ed to a f ai r t ri al by u nb ia se d j ur or s a nd it is th e d ut y o f th e trial judge to discharge any

juror who for any

reason cannot or will not do his duty in th is regard.” Waldenv. State , 542 S.W.2d 635, 637 (Tenn. Cr im. App. 1976). Tennessee Rule of Criminal Procedure 24(e)(1) clearly contemplates the repl acemen t of a juro r with an a

lternate if, at an y tim e prior to the jury ’s withdr

awal to consider its verdict, the trial court finds the juror “to be unable or disqualified to perform [his] duties.” State v. Max , 714 S.W.2d 289, 293 (Tenn. Crim. App. 1986) (citing Tenn. R. Crim. P. 24(e)(1)). The determination of whether a juror is unable or disqualified to perform

his duties l

ies within the sound d

iscretio n of the tr

ial cour t. State v. Forbes , 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995). The defendant bears the bur den of demonstrating that the trial court abused its discretion and that he was prejudiced by the substitution. Max , 714 S.W.2d at 294. If the statement was not evidenc e, clearly the trial judge was acting within its di scretion to remove the juror because of the juror’s strong belief that the A

ppellant was “se t up.” Evid

ence is definedas “ any species of proof legally presented at trial through the medium of witnesses, record s, document s, exhibits, and concre te objec ts for the

purpose of inducing belief in the minds of the court or jury.” 29 A

M . J UR . 2d Evidence § 1 (1994) . Matter w hich was not i ntroduced or presented as evidence at trial does not come within the commonly ac cepted definition of evidence

. Id. at § 3. At the conclusion of a trial in this state, the trial court instructs the jury that “ [e]vidence is whatever has been admitted b

y the cou rt during t

he cours e of the t

rial for you the jury to see, hear, or examine.” T.P.I.–CRIM. 42.01 (e mphasis added). We conclude that the statement heard by the jurorwas no t e vi de nc e, as it wa s n ot le ga ll y pr es en te d b y an ac t o f t he pa rt ie s o r a dm it te d b y t h e court. The admission of

evidence is determined by rules of law, i.e ., Tennessee Rules of Evidence. To permit a single juror’s observation of a sta tement no t made und er oath o r subjec t to crossexamination would obviate the rule. Because the juror admitted bias, the trial

court wa s within its discretion in removing the juror. According ly, we find no er ror.-4-

II. Prosecutorial Misconduct The Appellant argues that he was denied a fair trial because of p rosecutorial misconduct during the State’s closing argument. Citing to specifi c instanc es of improper comments by the prosecutor, the Appellant now contendsthat these comments w ere soprejudicial as to warrant a new trial. Our

supreme court has long recognized thatclosing argume nt is a valu able

privi lege for both the State and

the defe nse and h ave allo wed wide latitude t o counsel in arguing the

ir cases to th e j ur y. State v. Cauthe rn , 967 S.W.2d 726, 737 (Tenn. 1994). Trial judges in turn are acc orde d wide discretion in their control of those arguments, State v. Zi rkle , 910 S .W.2d 874, 888 ( Tenn. Crim. App. 1995), a

nd this discretion will not be interfered with on appeal in the absence of abuse thereof. Smithv. State , 527 S.W.2d 737, 739 (T enn. 1975). Notwithstanding such, arguments must be temperate, based up on the evi dence in troduce d at trial , releva

nt to the iss ues being tri ed, and not otherwis e improper

under the facts or law. Coker v. State , 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). We are mind ful of the oft quote d princip le that a p rosecut or must be

free to present his arguments with logical

force a nd vigor , “[b]ut, while he may strike ha rd blows, he is not a

t liberty to strike foul ones.” Berger v. United States , 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). When argument is found to be improper, the established test for dete rmining whether there is reversible error

is whether the conduct was so improper or the arg ument so inflammatory

that it affected the verdict

to the Appellant’s detriment. Harrington v. State , 385 S.W.2d 758, 759 (Tenn. 1965). In measuring the pr ejudicial impact of any

misconduct, this court should conside r: ( 1) the facts and circumstances of the case; (2) a ny curative me asures undertaken by the cou rt and the prosecutor; (3) the intent of the prosecution; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative strength or

weakness of the case. Judge v . State , 539 S.W.2d 340, 344 (Tenn. Cr im. App. 19 76); see also

State v. Buck , 670 S.W.2d 600, 609 (Tenn. 1984). It is impossible to set out in detail what can andcannot be said in closing argument. Var ious factors are involved in this determination including the facts of the particular case and of tentimes responses to argument of oppos ing coun sel. In this regar d, we find the A MERI CAN B AR A SSOC IATI ON S TANDA RDS R ELATI NG TO T HE P ROS ECUTI ON F UNCTIO N AND T HE D EFENSE F UN CTIO N helpful. Although these standards set forth objectives for professional conduct, they have, to a la rge de gr ee , b ee n a do pt ed by o ur su pr em e c ou rt in ca se de ci si on s a nd , t o t ha t e xt en t, ar e d ir ec to ry. Withinthe closing argument, five g eneral areas of prosecutorial misconduct are recognized: 1. It is u n professional conduct for the prosecutor in te nt io na ll y t o misstate the evidence or mislead the jury asto the inferences it may draw.2 We would ackno wled ge that the instances of miscond uct which we referen ce are mo re encom passing than those

spec ifically chall enged as impro per b y the Ap pellan t. No nethele ss, bec ause the misco nduc t is of the sam e cha racter , to do subst anti al jus tice , our r eview i s exte nded to the enti rety of th e prosec u to r’ s c lo si ng ar gum ent . Te nn. R. Cri m. P. 52(b). -5- 2. It is unprofessional conduct for the prosecutor

to express his personal belief or opinion as to the truth or falsity of a ny testimony or evidence or the guil tof the defendant. See State v. Thornton , 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999); Lackey v. State , 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978); T ENN . C O DE OF P ROF ’ L R ESP ONSIBI LI TY DR 7-106 (c)(4). 3. The prosecu

tor should

not use ar

guments ca lculated to inflame the passions or prejudices of the jury

. See Cauth ern , 967 S.W.2d at 737; State v. Stephenson , 878 S.W.2d 530, 541 (Tenn. 1994). 4. The prosecu

tor should refra in from ar gument w hich woul ddivert the jury from its du

ty to decid e th e case on the evidence, by injecting issues broa der t han the guilt or innocence of the acc used under the controlling law, or by making predictions of

the consequences of the jury’s verdict. See Cauthern , 967 S.W.2d a t 737; State v. Keen , 926 S.W.2d 727, 736 (Tenn. 1994). 5. It is unprofessional conduct for a prosecu tor to inte ntionally refer to or argue facts ou tside the r

ecord un less th e facts are matters of common public knowledge. S T ANDARDS R ELAT IN G T O T HE P ROSEC UTION F UNCTIO N A ND T HE D EFENSE F UNCTIO N §§5.8-5.9 Commentary (AB A Project on Standards for Criminal Justice, Approved Draft 1971).

After review of the State’s closing arg ument, we find violations occurring within four of the above defined areas and repea ted and ongoing violations throug ho ut the entire closing argument within two o f these a

reas. 2 A. Vo uching

for th e credibi lity o

f witne sses a

nd exp ress ion of p erso nal be lief. Expressions by the prosec utor are a f

orm of unswor

n, unche cked tes timony

and tend t

o exploit the influence of the prosecutor’s office and undermine the object ive detachment which should separate a lawy

er from the cause for which he a rgues. Id. at § 5.8 (b) Commentary b. The prohibition prevent s the advo cate fr om person all yendorsing or vouching for or g iving his or her opinion; the cause should turn on the evidence, not on the standing of the a dvocate, and thewitnesses must stand on their own. Id

.-6-

The following comments during closing argument illustrate the pr osecutor’s violations of vouching for the credibility of witnesses and his expression of personal belief as to the guilt of the Appellant and the evidence. And I promise y

ou for Assistant Chief Overbey

. . .

. . . if it weren’t any

thing but the truth beyond a ll do ubt in these officers mind, we wouldn’t be here. . . .

. . . Robert Muehlberg er, prob ably one of the

finest ha ndwriting analy sis in th e country, . . .

. . . I f ind it terr ibly intensive (sic) no t only

do this man ta ke a bad ge and steal from people out here on the road, . . .

. . . I’m going

to tell you, I

know for a fact that Carl Hutchinson is honest, and I know Robert Muehlberger Mr. Potter: Objection to the testimony The Court: Sustain the objection. General y ou know that’s improper. Whether these at to rn eys believe the credibility of the ir witnes s es, should be disregarded by you. You are to de

termine t he cred ibility of these witnesses, not

these at torney s. Gener

al, you know that’s improper. Sustain the objection. . . . . . . I don’t see any

credible evidence on the side of the defe ndant, . . . And I promise y

ou, these officers that

got up here and testified, they don’t like to do it. It’spainful, because

even though it doesn’t rationally or shouldn’t affect their own personal integrity a

nd credibility, they

feel like it does. . . . Let

me tell you somet hing. I defend p eople fo

r a lot of y

ears, a nd I h ave nev er ever

been re al exci ted about government corruption, and this case has bee n called that. . . . So I’m a hundred per

cent competent that Dennis Goltz mailed this envelope. I bet my life on it. That’s how convincing this is. . . . He’s guilty. He is g

uilty as sin, and I ’m going to tell y ou , I, f rom tim e to time tr

y to control my anger, but I’m angry

that he wo

uld come in here a

nd lieto y ou. I ’m angr

y th at a polic e offic er would steal from a c itizen. I ’m angr y th at he lied t o you, and tried to ruin Carl Hutc hinson’s reputation, witha bunchof bogus lies and allegations try

ing to say that Car

l’s testimony is not credible. So he can escape this and go back to wor k. . . .-7-

I hate it, because I ha

ve to stand here, y ou know, case after case, I have to ask y

ou to believe these police officers. How am I going to do that with Dennis Goltz? . . . I’m here to judge

his acts on that particular day , and he’s guilty

. . . . And I’m telling y

ou, he’s telling y ou the truth. That’s all it is. It’s just that simple. It’s the truth. . . .
B. Prosecutorial argument offered to intentionally inflame or prejudice the jury. Argume nts which re

ly u pon raci al, relig

ious, ethnic, p olitical, economic or other prejudices of the jurors introduc e e lements of irrelevance and irrationality into the trial which cannot be toleratedin a society base d upon the equality of all citizens befor e the law. Id. at

§ 5.8 Commentary c. If the jury ’s pre-disposition agains tsome p arti cula r segment o f soc iety

is expl oited

to sti gma tize the accuse d or his wit

nesses, s uch arg

ument hasclearly

tresp assed the bound s of rea sonable inference or fair comment on the evidenc e. Id

. The following are

illustrations of the prosecutor’s closing argument which w e findviolate this standard. You can’t have a criminal like Dennis Goltz behind a badge and a gun . . . . . . just an unhanded thief. . . . C. Message to the comm unity. The prosecutor should refrain from arg ument which would div ert the ju ry from its du

ty to decide the case on the evidence, by injecting issues broader

than the guilt or innocence of the acc used under the controlling law, or by making predictions of the consequences of the jury ’s verdict. Id. at § 5.8 (d). Predictions as to the consequ ences of an acqu ittal on la wlessnes s in the com

munity also go bey ond the scope of the issues in the trial and are to be avoided. Id. The following are illustrations of the pr osecutor ’s closing

argume nt which w e find vio late this standard: And as a result of whe n one bad apple does something wrong, it affects the community

and their view of law enforcement, and the resp ect for

it. And it affec ts each officer individually

. . . . And two, it ain’t just a theft case, okay . It’s a case a bout safe ty a nd secur ity o f this community. . . .-8-

I want you to think

about whe

ther we w ant Denn

is Goltz inside

of resid ences in this community

investig ating b urglaries, whether we wa nt Dennis Goltz stopping our wives, daughters, sons, and husbands out on some dark road at night, because each of us put our trust in these law enforcement. . . . . . . if Dennis Goltz walks out of here, he’ll back on the police force again. . . . And if you cut him loose, he’s g oing to be ri ght bac k out there a gain, a ccording to him, tomorrow night with a gun and a badge , and that is wrong. . . .

. . . but he w ill come

in here a nd lieto you and never

blink about it. And why can he do that, because he’s done it for a long time. A long time, and he’sused to doing it. He’s used to ha

ving th e power to get away with it, and I ain’t going to let him get away with i t o n m y w atch. I

t’s not rig

ht. And I

want to be

lieve, th at when my family gets on the road late at night, their not going to e ncounter Dennis Goltz. . .

. In this case he re, it ’s bri ngs me b ack to some o ld feel ings about why it’s so important to have thes e consti tutional protection in place and people in places like law enforcement

that you can trust, bec ause they g ot a lot of power. They ’re going to be in your house on certain things on warrants, pulling somebody over or stopping people on the side of the roads, a nd youkn ow , t hi s i s a ti me wh er e yo u c an sa y, you’re g uilty of this crime and we’ re not going to have it, y ou know. . . .

. . . because he wants to go back to being a police officer where he c an corrupt ly make money

by s tealing . That’s w

hy it’s import

ant for h imto come her

e and lie to you. . . . Officers take the stand and they don’t make incriminating statements and they leave very little tra cks, and if it wasn’t for this right here, we might not ever ha ve got h im.

. . . So he can escape this and go back to work. I ’m going to tell y ou if you cut hi m loose, and you

go home and he’sout there

and the ne

xt time he co mmits a

crime or get somebody, wh o are you g oing to c all? Is th is who we [w ]ant in our house investigating theft, or riding on the roads, pulling people over at night when there’s nobody there but him and them? Is this kind of person y ou want handling people’s evidence and money, jewe lry as in this case? Guns? Is that what we want? And the reasonthey

tell y ou that is don’t cut him loose for sympathy , or just because y ou’re not co mfort able re nderi ng a guilty verdict. Don’t do it. Don’t do it to y ourselve s? Don’t do it to this community? . . .-9-

And what about the gu

ys t hat have to ride ou t there a t night wi th him and in

vestiga te thin gs and deal with dangerous felons, and they have to depend on them. What about them? They deserve the rig ht thing to be done. . . . If we cut him loose, he’ll go right back. He is the w orst kind to put in that position. He steals. H e will lie

without blinking at you, and folks, that’s just a step away from horrible acts. This is somebody y ou got to trust and use discretion about legal force, and when you vie

w all those things, those are thing y ou need to think about. . . So when you g o back there, y ou’ve got to do theright thing, and follow the law and you got to vote g

uilty. . . . Do you want to rely

on your safe

ty when you ge tpulled over by him? I don’ t think so. I’m g oing to a sk y ou to go b ack ther e and co me back with a guilty verdict and do it, you know, for this community and family. . .
D. Arguing

facts outs ide the re

cord. It is unprofessional for a prosecutor to intentionally refer to or argue

facts outside the record unless the facts are matters o f common public knowledge. Id. at § 5.9. Arguing facts outside the record could involve a risk of serious prejudice. Id

. The following are illustrations of the prosecutor’s closingargume nt which w e find vio late this standard: They testify every

day, and they

basically, to a degree , are pr ofession al witnes ses. They’re not easy to catc

h. . . . I ha ve sever al items th at my

mom left me , and I ’d like to t hink their worth a w

hole lotof money and a

lot of them I’ve never ha

d an appraisal done, but they ’re worth a lot to me; a whole lot. . . . Now, I want to make

some to do about DNA; why we didn’t do a DNA, fingerprint analysis. L

et me tell you, if y

ou do a DNA test, you de stroy it for. . . Mr. Potter: Objection The Court: Sus tained. G

eneral , evidenc e has bee

n conclud ed. You a rgue w hat’s in evidence.-10-

It is obvious from a review of the record of the closing argument that theimproper comments were not isolated utterances by the prosecutor. Although the trial cou rt sustained two obj ections to the argume

nt, the impr

oper com ments con

tinued una

bated. T he prosecutor’s reoccurring them e throughout

his entire argument focused not upon the evidence , but rather, upon the need for the jury to “save t he com muni ty” and, t hus, s end a m essage t hrough its verdict. The pros ecutor r epeate dly cha racterized the Appellant as a thief and a liar and commented that “. . . he ’s done it for a long time.” Fi na ll y, we are

unable to ignore the prosecutor’sinjection of his per sonal bel

iefs with in his argument and his vouching for the credibi lity of s tate witnesses. Indeed, be cause the proof in the case was not overwhelming, the issue of witness credibility was cr itical. In sum, we

conclude that the prosecu

tor’s impr

oper com me nts were so egregious as to permeate the jury’s ver

dict to the Appellant’s detriment. Accordingly , we find the error reversible. III. Applica

tion of Miti gating F actor at Sentencin g The Appellant contends that the trial court erred by failing to a

pply mitigating f

actor (5), that “[b] efore detection, the defendant compensated or made a good faith attempt to compensat e th e victim of criminal conduct

for the damage or injury

the victim sustained.” Tenn. Code Ann. § 40-35- 113(5). The trial court denied application of this mitigator based upon the Appellant’s contention at trial th at he wa s not the pe rson who r

eturned the ring s. We agree with the Appellant that a mitigating factor may be applicable despite pleading not guilty to acrime and protest

ing one ’s innoce

nce. Nonetheles s, inthe case before us, we find that the trial judge c orrect

ly refused to apply

mitigating factor (5). T he App ellan t’s ac t of ma ilin g the ri ngs was motivated, not by a g ood fa ith at tempt to co mpensate the victim , but rather, in an attempt to avoid det ection of his crime . This issue

is without me

rit. CONCLUSION While we find n o error

in the trial court’s removal of the juror or refusal to apply mitigating factor (5), we do find reversible error based on the prosecutor’s repeated improper and inflammatory commentsduring closing argument, which we conclude affected the ve rdict to the prejudice of the Appellan t. Accord ingly , the judgment of c onviction is reversed, and the case is remanded for a new trial.

___________________________________ DAVID G. HAYES, JUDGE