### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON O ct obe r 6, 200 9 S es sio n ST A TE OF TE N N ES SE E v
. D A R R EN BR OW N
Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 06-08194 Chris Cr aft, Judge

No. W2008-01866-C CA-R 3-CD - Filed Janu ary 5, 2010

The de fenda

nt, Darr en B rown, wa s convicted by a Shelby County Criminal Court jury

of first deg ree preme ditated murder

and sente nced to life imprisonment. On appea l, he argues that (1) the e vidence was insuffic ient to sustain his conviction; (2) the trial court e rre d in denying his motion for mistrial in light of the pr osecutor’ s improper c losing ar gument; and (3) the State’s comment on the defe ndant’s post-ar

rest s il e n c e constitutes plain error . Following our re view, we aff irm the judg ment of the trial c ourt. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed
A LA N E. G LE NN , J., delivered the opinion of the court, in which D. K EL LY T HOMAS , J R . and C AM I LLE R. M C M ULLEN , JJ., joined.
Lanc e R. Chism (on appeal) ; Juni Ganguli and Jame s Thomas (a t trial), Memphis, Tenne ssee, f or the appe llant, Darr en Brown.
Rob e rt E. Coo pe r, Jr ., At torne y Ge ne ra l a ndRe po rt e r; Cla re nc e E. Lu tz , A ssi sta nt A tto rn e y G e ne ra l; William L. Gibbons, District Attorney Ge nera l; and Alanda Dwyer and Colin Campbell, Assist ant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.
OP IN ION

F AC TS
This case arises out of t he defenda nt’s killing t he victim , Dar ren Ta y lor, on April 23, 2006, for whic h he wa s i n d i ct ed on one count of preme ditated first deg ree murder. A t the time he was kil le d, the vic tim wa s sitti ng in a re nte d M its ub ish i G a lant v e hic le wi th h is g ir lf ri e nd ou tsi de County L ine Groc ery

in Memphis, Tennessee

. At trial, Dorothy

Vester , the victim’s mother, testified that the victim’s nic kname was “ GooMan.” She sa id that the victim was shot at C ounty L ine Grocery on April 23, 2006, and died from his injuries shortly

there afte r.W e not e t hat t hi s w i t nes s ’ s fi r s t na m e i s s pel l ed “Al t hea ” t hr oughout t he t r i al t r ans cr i pt , but he r s i gnat ur e on 1 th e A d v ic e to W itn e ss V ie w in g P h o to g ra p h ic D isp la y fo rm re fle c ts th a t h e r fir st n a m e is sp e lled “ A th e lia.”

T h e re c o rd re fle c ts th a t t h e re is a liq u o r sto re tw o d o o rs d o w n fro m th e g ro c e ry sto re in th e sa m e p la z a
. 2
-2- Athelia F razier testified that she was at County L ine Groc ery on April 23, 2006, when she 1 observe d a two-tone Crowne Victoria circ ling the block. She also noted a “brow nish g oldish color
car ” par ked in front of

the g roce ry

store. F razier sa

w a man, later ide ntified as the de fenda nt, ge t out o f the Crowne Victoria on the side of the liquor store

. The de fenda nt walked a

round the ba ck of 2 the building, r eappe are d on the s ide of the gr ocer y store, and a

pproac hed the br own-g old car . The defe ndant shot into the car six or seven times, l eft, and was picked up ag ain by the Crowne V ictoria.

F ra zie r t e sti fi e d th a t sh e wa s p utt inghe r d a ug hte r i n h e r c ar, wh ic h w a s p ark e d a

pp ro xima te ly t wo s p ac es aw ay

fr o mt h e b ro wn -go l d

ca r, d u ri n g t h e i n ci d en t

. S h e no t ed t h at s h e wa s cl o s e e n o u gh to h e ar v oic e s tw o c ars do wn , bu t all she he ard wa s gun fi re . Sh e sa id t

hat th e re we re tw o p e op le inside the brown- g old car , the victim and a woma n. Fr azier observed that the woma n was sca red. After war d, Fr azier left the sc ene be cause she wa s scar ed but returne d fiftee n or twenty minutes later.

Fr azier testified that upon re turning to the s cene , she told the police what she had obser ved
and de sc ri be d th e g un man a s “ sh or t, b ro wn sk inn e d, ha d a

low ha ir c ut, he ha d on a hat, so me g la sse s, a white T- shirt and bluejea n shorts.” F razier identifie d t he def endant a s the g unman out of a ph o to g r a p h ic ar r ay o nM ay 2 , 2 0 0 6

. Sh e a dmi tt e d

th a t s h e id e n ti f

ie d s o me o n e o th e r

th anthe defe ndant from a g roup of individuals at a he aringin J uly 2006. Fr azier explained that she identified the wrongperson be cause “[h] e thre w [her] off because he had on gla sses, like rea ding g lasses, and he didn’t have them on at the time of the murde r.” F razier s ai d t h at s h e wa s cer tain that the defe ndant was the g unman.
On cr oss-examinatio n , Fr az i er s tated that ther e wa s a ca r par ked betwe en her

car and the vic tim ’s c ar. She a c kn ow le dg e d th a t she wa s kne e lin g do wn wh e n th e sh oo tin g too k p la c e bu t sa id that she “c ould see a lot.” Howeve r, when asked, “So y ou rea lly couldn’t see what wa s g oing on on this side of the car,” Fra zier responde d, “No, sir.” Fr azier said that afte r t he shooting , befor e she le ft the sce ne the f

irst time, she saw the woman who was in t he victim’s ca r drive a way from the sc ene in the victim’s car . She also explained that, when she orig inally left t he scene, she went home a nd talked to her

mother and a

neig hbor and the n returne d to the scene to talk to the police.
Victoria Williams testi fied that on April 23, 2006, she had be en datingthe victim for two or three y ear s. On that date, the victim a nd Wil liams went to County L ine Groc ery

to ge t some snacks befor e a ba

rbec ue that the victim’s aunt was prepa ring was ready

. The unarmed victim went inside t h e s t o re an d t h en re tu rn ed t o t h e car
. T h e vi ct i m an d W i l l i am s s at i n t h e car t al k i n g an d

l au gh i n g, and the victim was pr epar ing a marijuana

cig are tte. Suddenly , the back passeng er’ s side door opene d
a nd the d e f

e n d an tf i r e d s e v e r a l s h o t s i n s i d e t h e c ar
. W h e ns h e h e ar d t h e g u n s h o t s , W i l l ia ms “droppe d down” to the f

loor of the c ar. Williams descr ibed t he gun as black with “a spin thing on-3-

it. ” B e fo re the sh oo tin g sta rt e d, Willi a ms “ he ard mor e tha n o ne vo ic e ” bu t di d n ot h e ar t he vic tim say any thing.
Wil liams te stified that at some point a fter the shooting, the victim e x ited the car an d went inside the store. Wi l l i am s we n t i n side afte r the victim and found him lying on the floor. Af ter speakingto the victim briefly , Wil liams left the sce ne and w ent to the vi ctim’s aunt’s house to see k help bec ause she did not realize the seve rity of the victim’s injuries. She denie d t h at s he lef t the
scene to dispose of a gun or marijuana

. When Wil liams and the victim’s aunt re turned to the g roce ry store, the police were on the s cene
. She went to the pol ice station and tol d them that she thoug ht she could identify

the g unman. On May 3, 2006, Wil liams ide ntified the def endant a s the g unman from
a ph oto g ra ph ic arr ay . Sh e a lso ide nti fi e d th e de fe nd ant f ro m a g ro up of

ind ivi du a ls at a

he ari ngin J uly 2006.
Offic er Thoma s Ellis wit h the Memphis Police Depa rtment testified that he wa s working as a dete ctive in the F elony

Response Unit in April 2006. Offic er Ellis testified that on April 23, 2006, he re sponded to a c all at County L ine Groc ery to determine if the store had vide o surveillance of the incident. Officer Ellis was informed that the camera s wer e not rec ording that day , and he ve rified that information. The pa rties stipulated that retire d policeman, Captain Don C arpe nter, would have testified that he proc essed the 2006 Mitsubishi Galant in this ca se for latent fing erpr ints and found no latent prints that matched the de fenda nt, Michael Pressley , or Dorr ell J ones.
Offic er Marlon Wright with the Memphis Poli ce D epar tment testified that he wa s working
as a c rime sce ne office r on April 23, 2006, and in that capa city responde d to the scene in this case. Offic er Wrig ht p h o t o graphe d and diag rame d the sce ne as w ell as inspecte d the victim’s vehicle. Offic ers discove red blood inside the vehicle but did not find any bullet holes. The off

icer s did not fi nd a fi re arm ins ide the ve hic le . O ff

ic e r Wr ig ht e xpla ine d th a t the dif fe re nc e be tw e e n a

se miautoma ti c an d a r e v o lv e r is th a t th e c a s in g s h a v e to b e p h y s ic a ll y r e mo v e d f r o m a r e v o lver. The of fi c e rs did no t f ind any sh e ll c a sin g s a t the sc e ne
. Of fi c e r Wri g ht t e sti fi e d th a t “ a .3 8 o r 3 57 ” wo uld ty pically be fire d from a r evolver

. Dorre ll Jones, who was char g ed with f acilitation of the murde r in this case, te stified that he, the def endant, a nd Michae l Pressley

wer e drivingaround toget h er o n Ap ril 23, 2006, in the defe ndant’s Gr and Mar quis or Crowne Vic toria. Jones was driving

. As they wer e drivingaround, Pr e ssl e y s aw “ G o o - M an ” i na p a s s i n g c ar
. Up o nm e n t i o no f “ G o o - M an , ” t h e d e f

e n d an tb e c a me fidg ety and “w anted to know who ha d a we apon so he [could ] protect himself beca use there wer e . . . threats goingthroug h the neig hborhood about

. . . him a nd Goo-Man.” No one in the c ar ha d a
wea pon, so they

drove to g et one f

rom “the little g uy

aro u n d t h e co rner.” The “little dude” g ave J ones a g un wra

pped in a towel, which J ones in tur n handed to the de fenda

nt. After r ece iving the g un, the def

endant wa s “kind of cool” and “nor mal.”-4-

J ones testified that he then drove himself, the def endant, a nd Pressley

to Co u nty L in e Gr ocer

y to pu r c h a s e c ig ar s
. A s th e y

p u ll e d u p to th e s to r e , th e y

n o ti c e d th e v ic ti m’ s c ar

p ar k e d in f r o n t of the store. At that point, the def endant sa id that “he was going to g o talk to him” and exited the car

. T h e d e f e n d an t h a d th e g u n w it

h h im , an d Jo n e s an d Pr e s s le y dr o v e o f f

. H o w e v e r , a s the y

wer e dr ivi ngup the str e e t, P re ssl e y no tic e d th e de fe nd ant r

unnin g tow ard

the m, s o th e y

tur ne d a ro un d to pick him up. The def

endant still had the g un with him and was not injured.

J ones testified that he asked the defe ndant what ha d happe n ed , an d the def endant sa id,

“ [D]on ’t wo rr y a bo ut i t . . . jus t leave .” Th e de fe nd ant expr e sse d that he ha d s ho t th e vic timbe c a us e

“ he a c te d like he did

n’ t want to tal k an d he sta

rt e d r e a c hin g fo r s ome thi ng .” Th e g ro up imm e diate ly drove to the de fenda

nt’s g randmother ’s home in east Memphis where Jones hid the gun in the backyard. Jones expl ained that he had to g et rid of the gun beca use of his “le g al situation.” After he wa s arr ested, Jones led the police to whe re he had burie d the g un, but it was not there.

J ones testified that he later g ave two statements to the police, the first on May 3, 2006, and the se c on d o n M ay

4, 20 06

. He state d that he pe rs on a lly a sk e d to c ha ng e the fi rs t st a te me nt b e c a us e he “f elt like it was the rig ht thing to do,” and that led t o his givingthe sec ond statement. He said that the sec ond statement wa s more truthful a nd complete than the first statement. Jones stated that he told the police that the def endant had said that the vi ctim was reac hing, but he admitt ed that was not in h is s e c on d s tate me nt. On c ro ss- e xami natio n, Jone s te sti fi e d th a t th e de fe nd ant t old him the vic tim pulled something a

nd that was why

he shot him.

J ones testified that the dispute be tween the victim and the defe ndant was over “ either dope or money ,”and the defe ndant had said that the victim ha d robbed him be fore

. J ones stated that he had dre adlocks on Apr il 23, 2006, but he could not remembe r how he had them styled.

Dr. Ka ren Chanc ell o r, C hief Medic al Examiner for Shelby County , testified that she perf ormed the a

utopsy of the victim and de termined the c ause of d ea t h t o b e multipl e gunshot wounds to the bac k. Dr. Chanc ellor found six g unshot w ounds on the victim’s body cause d by four bullets, two of

which re mained in the body and two that exited the body . One bullet ente red f rom the bac k of t he victim ’s upper rig ht shoulder and exit ed on the front of the rig ht shoulder. Another bu lle t e nte re d th e ba c k of the vic tim ’s ri g ht arm and e xite d thr ou g h the inn e r fr on t pa rt of his arm
. One bullet e ntere d the back of the victim’s r ight shoulder, and Dr. Chance llor rec overe d that bullet from the front of his c hest. The fa tal bullet entere d the rig ht side of the victim’s bac k and dama g ed his internal org ans. That bullet was recove red from the vi ctim’s chest wa ll. Dr. Chance llor testified that the rec overe d bullets w ere of a medium c aliber consistent with a .38 or .357 ca liber projec tile. The toxi colog y

repor t did not reve al t he presence of alcohol or narcotics i n the vi ctim’s blood.
On cr oss-examination, Dr. Chance llor testified that the victim’s blood teste d positive for the brea kdown produc t of marijuana , which indicate d he had use d marijuana in the past two or thre e we e ks . Sh e sa id t

hat hi s b lood als o te ste d p os iti ve fo r atr op ine , w hic h is a su bs tanc e us e d to
resusc itate the human body

.-5-

Serg eant Ela ine Shelby

with the Shelby

County Sheriff’ s Offic e testified that she was a ssi g ne d a s an inv e sti g a tor wi th the dis tr ic t a tto rn e y ’s of fi c e and a ssi ste d wi th the inv e sti g a tio n in this c ase. Serg eant Shelby said that she attempted unsucce ssfully to locate Micha el Pressley . She
was a ble to locate a

nd subpoena Ta

mika J olly

with m u ch d i ff

i cult ly . Serg eant Shelby

descr ibed J o l ly ’s demea

nor, whe n serve d with the subpoena, a s “ner vous. She was upset a

nd she said she wasn’t g oing to testify .”
Se rg e ant R

us se ll M ane ss w iththe Me mph is Po lic e De pa rtme nt te sti fi e d th a t he wo rk e d in the Homicide B urea

u in April 2006 and wa s involved in the investigation in this c ase. Duringthe
course o f h i s investigation, Serg eant Ma ness took Michae l Pressley to the Hickory

Hill area of Memphis in an attempt to locate a Crowne Victoria believed to have be en involved in the homicide. Se rg e ant M ane ss r e c a lle d th a t Pr e ssl e y “ wa s a bo ut c ry ing s cared ,” wh ic h le d Se rg e ant M ane ss t o place a bagwith ey e holes ove r Pressley ’s hea d to make him fee l more comfor table. Serg eant M. Oliver

with the Memphis Poli ce D epar tment tes t i fied that he worke d in the Homicide B urea

u in April 2006 and wa s the ca se coor dinato r fo r t h e investi g ation in this case. Duringthe cour se of the investigation, Ser g eant Oliver spoke with Mic hael Pressley who was “ rea l helpful” at first. Howeve r, towar d the end of the investig ation, Pressley “wa s scar ed [and] fearf

ul for his life.” Serge an t Ol i v er te stified that afte r looking for the de fenda nt for appr ox imately

two wee ks, he finally rea ched the defe ndant by calling his c ell phone. Serg eant Oliver told the defe ndant he nee ded to come to the police station or a war rant would be issued for

his arre st, and the def

endant complied.
Se rg e ant O liv e r t e sti fi e d th a t he too k a sta te me nt fr om the de fe nd ant, wh ic h w a s p la c e d in a supplement, but the de fenda nt did not give a formal ty ped st atement. The defenda nt told S erg eant Oliver that he did not own a Crowne V ictoria a nd denied r idi n g in one. He sa id that “he kne w nothing of

[t he victim’s] death, he he ard it throug h the g rape vine.” The defe ndant said he wa s not involved in the victim’s mur der a nd declined to talk f

urther w ith the police. Serg eant Oliver stated that the def

endant did not mention any thing a bout t h e k illing beingin self-de fense , and no inf or ma tio n w a s r e ve a le d d

ur ingthe inv e sti g a tio n th a t led him to be lie ve the de fe nd ant w a s a fr a id of the victim. Following the conc lusion of the proof, the jur y convicte d t h e d efe ndant as c harg ed. The defe ndant appe aled.
AN AL YSI S
I. Su ff iciency of the Evid ence
The de fenda

nt challeng es the suff

i ci ency of the c onvicting e vidence , arguing that the
e vid e nc e su

pp or te d a n a c qu itt a l ba se d on sel f-d e fe ns e or , in the a lte rn a tiv e , th e e vid e nc e a t be st supported a ve rdict of voluntar y manslaug hter. When re viewing a cha lleng e to the sufficie ncy of the convicting evidenc e, we note that the re leva n t q u es t i o n of the re viewing court is “whe ther, a fter-6-

viewing the evidenc e in the light most fa vorable to the prosec ution, any ra tio na l trie r of

fa c t c ou ld have f ound the essential e lements of the crime be y ond a re asonable doubt.” J ackson v. V irg inia, 443 U. S. 30 7, 31 9, 99 S. Ct. 27 81 , 27 89 (1 97 9) ; se e a lso Te nn . R. Ap p. P. 1 3( e ) ( “ F ind ing s o f guil t in
c ri min a l a c tio ns wh e the r b y the tr ia l court or jur

y sh a ll be se t a sid e if

the e vid e nc e is i ns uf

fi c ie nt t o support the finding s by

the trier of

fac t of g uilt bey ond a re asonab l e d o u b t

. ”) ; State v. Evans, 838 S.W .2d 185, 190-92 (Te nn. 1992); State v. Ander son, 835 S.W .2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the c redibility of witnesses, the w eig ht and value to be g iven the evidenc e, and a ll fact ual issues are resolved by the trier of

fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty verdic t by

the jury , approve d by t h e t ri al judg e, acc redits the testimony

of the witnesses for the State and resolves all conflicts in favor of the the ory of th e S t at e. ” S t at e v. Grace , 493 S.W .2d 474, 476 (Tenn. 1973) . Our supre me cour t stated the rationale for this rule:
This well-settled rule rests on a sound f oundation. The trial judg e and the jury see the witnesses fa ce to f

ace , hear their testimony

and obser

ve their de meanor

on the sta nd . T hu s th e tr ia l ju dg e and jur y are the p ri mary

ins tr ume nta lity

of jus tic e to deter mine the weig ht a

nd cre dibilit y to be g iven to the testimony of witnesses. In the trial forum a lone i s there human atmos phere and the totality of t he evidence c annot be re pr od uc e d w itha

wr itt e n r e c or d in

thi s Co ur t.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963))

. “A jury conviction re moves the pre sumption of innocence with which a defe ndan t i s in it ia ll y

c lo a k e d an d r e p la c e s it

w it h o n e o f g u il t, s o th a t o na

p p e a l a c o n v icted defe ndant has the bur den of demonstrating that the evidenc e is insufficient.” State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

. First deg ree murder is “ [a] preme ditated and intentional kil ling of another [.] ” Te nn. Code Ann. § 39-13-202( a)( 1) (2006) . “Preme ditation” is defined a s

an ac t done af

ter the e x erc ise of reflec tion and judgment. “Premeditation” means that the intent to kill m ust ha

ve been formed prior to the ac t itself. I t is not necessar y that the purpose to kill pre-ex i s t i n the mind of the ac cused f or any definite pe riod of tim e . T he me nta l st a te of

the a c c us e d at the tim e the a c c us e d a lle g e dly de c ide d to kil l must be car efully

considere d in order to de termine whe ther the a ccuse d was sufficie ntly

fre e fr om excitement and passion as to be c apable of pre meditation.

I d. § 39-13-202( d). The pre sence of premeditation is a question of fac t for the jury to determine ba sed upon a consideration of all the evidenc e. See State v. S u t t l es, 30 S .W.3d 252, 261 (Tenn. 2000). Premeditation may

be infe rre d fr o m circ umstantial evidence surroundingthe cr ime, including the
mann e r a nd c ir c ums tanc e s o f t

he kil lin g
. Se e State v. Pik e , 978 S.W. 2d 90 4, 91 4 ( Te nn . 1 99 8) ; State v. Addison, 973 S.W

. 2 d 2 6 0 , 265 (Tenn. Crim. App. 1997) . Fa cts from whic h the jury may infer-7-

preme ditation include the use of a deadly wea pon on an unar

med victim; the lack of provocation on the pa rt of the vic tim ; th e de fe nd ant’ s d e c lara tio ns of his int e nt t o k ill ; th e de fe nd ant ’s failur e to re n d er ai d to the victim; the establishment of a motive for the killing; the par ticular c ruelty

of the killing; the def

endant’ s procur ement of a wea pon, prepa

rations to conce al the cr ime, and destruc tion
o r s ec re t i o no f e v i d en ce o f t h e k i l l i n g; an d a d ef en d an t ’s ca l m n es s i m m ed i at el y af t er t h e k i l l i n g. State v. Thac ker, 164 S.W.3d 208, 222 (Tenn. 2 0 0 5 ); S t at e v. L eac h, 148 S.W .3d 42, 54 (Tenn. 2004); State v. L ewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000) (c itations omi tted).

I n th e lig ht mos t favo ra

ble to the State , the e vid e nc e sh ow s tha t th e de fe nd ant a nd tw o o f h is fr ie nd s were drivin g aro un d th e ir ne ig hb or ho od wh e n h e saw t

he vic timin a

pa ssi ngc ar, be c a me “fidg ety ,” and immediately soug ht to arm him self. The defenda nt obtained a w eapon f

rom someone in the neig hborhood, afte r which he a cted “ cool” a nd “norma l.” The de fenda nt was droppe d off by his friends at County

L i n e Groc ery , saying he was g oing to spe ak with the victim. The de fenda nt walked a round the ba ck of the building, appr o ac h ed the victim’s ca r fr om the passeng er side, a nd shot the victim in t he bac k four times f rom the rea

r passeng er side of the c ar. The defe ndant ra n off, was picke d

u p b y h is f r ie n d s , an d

a d mi tt e d to h is f r ie n d s th a t h e s h o t t

h e v ic ti m. T h e g roup proce eded to a

nother pa rt of town to bury

the g un in the defe ndant’s g randmother ’s bac ky ard. Ba sed on this evidence , we conclude that a rational trier of fa ct could have found that the de fenda nt killed the victim after

the exercise of

ref lection and judg ment.
The defe n d an t questions the cre dibilit y of Athelia F razier a

nd Victoria Williams and eac h witness’s re spective a

bility to view var ious aspects o f t h e i n cident. Howe ver, a ny questions
conce rning the testimony and the cre dibilit y of the witnesse s were resolved by the jury as the trier of fa ct. The de fenda

nt also alleg es that Dorr ell J ones’s testimony that the def

endant told him the victim was rea ching for something was supporte d by Dr. Chanc ellor’s testimony reg ardingthe locations of the victim’s gunshot wounds as evidenc e of his theor y of self- defe nse. Whether the defe ndant ac ted in self-de fense is an issue for the jury to decide. State v. I vy , 868 S.W .2d 724, 727 (Tenn. Crim. App. 1993) . I t is withi n t h e p rerog ative of the jury to rejec t a claim of se lf-def ense. State v. Go o d e, 9 56 S.W .2d 521, 527 (Tenn. Crim. App. 1997) . Ag ain, the jury assessed the
c r e d ib il it y o f Jo n e s ’ s te s ti mo n y

an d dr e w it s o w n in f

e r e n c e s f r o m D r
. Ch an c e ll o r ’ s te s ti mo n y
. We will not subst itute the jury ’s infer ence s drawn f rom the evide nce f

or that of our

own.
II. Cl os ing Ar gum e nt
The de fenda

nt argues that the trial c ourt abused its discre tion in fa iling to g rant a mistrial at three differ ent points du ri ng the State’s closingargument. He spe cifica lly argues that the State’s closing argument was im p ro p er in that (1) the pr osecutor c ommented that Michae l Pressley and Tamik a Jolly we re in fea

r f or the ir liv e s; ( 2) the pr os e c uto r c omm e nte d th a t th e fi rs t ti me Do rr e ll J ones mentioned that the defe ndant said the victim wa s rea ching for somethingwas at trial; and (3) the prosec utor asked the defe ndant rhe torical que stions.
Whe the r t o d ecl are a

mis tr ia l li e s w ith in t

he so un d d isc re tio n o f t

he tr ia l c ourt , a

nd its decision in this reg ard w ill not be overturned on appea l absent a showing of an abuse of discre tion.-8-

State v. L and, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A mistrial sh o uld be dec lare d in a criminal ca se only

when something has occ urre d that would preve nt an impartial ver d i ct , there by resulting in a miscarr iag e of justice if a mistrial is not declar ed. See id. ( citing State v. Mc Pherson, 88 2 S.W. 2d 36 5, 37 0 (T e nn . Cr im. Ap p. 19 94 )) ; Sta te v. Jone s, 15 S.W. 3d

88 0, 89 3 ( Te nn . Cr im. A p p
. 1 9 9 9 ) ( c i t i n g A r

n o l d v
. S t a t e , 5 6 3 S

. W

. 2 d 7 9 2 , 7 9 4 ( T e n n
. C r i m
. A p p
. 1 9 7 7 ) )

. “ G e n e r a l l y a mistrial will be declar ed in a criminal case only when there is a ‘ma nifest nec essity ’ re quiring such action by the trial judg e.” State v. Millbrooks, 8 1 9 S

. W

. 2 d 4 41, 443 (Tenn. Crim. App. 1991) (quoting Arnold, 563 S.W.2d at 794). The burde n to show the nec essity for a mistrial f

alls upon the party seekingthe mistrial. L and, 34 S.W.3d at 527 (citing State v. Wil liams, 929 S.W .2d 385, 388 (Tenn. Crim. App. 1996) ).

Te nn e sse e c ourt s “ have tr a dit ion a lly pr ov ide d c ouns e l wi th a wi de latit ud e of dis c re tio n in the content of t h ei r fi n al argument” and tr ial judge s with “wide discr etion in control of the argument.” State v. Z irkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 19 9 5 ). A party ’s closing argument “must be temper ate, pr edicated on evidenc e introduce d duri n g t h e t ri al, re levant to the issues being tried, and not other wise improper

under the fac ts or law.” State v. Middlebrooks, 995 S.W. 2d 55 0, 55 7 ( Te nn . 1 99 9)

. Th e fi ve g e ne ra lly re c og nize d a

re a s o f p ro se c uto ri a l mi sc on du c t in closing argument occur

when the pr osecutor intentionally misstates the evidenc e or misleads the jury on the infer ence s it may

drawfrom the e vidence ; expresses his or her pe rs o n al o p inion on the evidenc e or the defendant’s guilt; uses arg uments calc ulated to inflame the passions or pre judices of the jury ; diverts the jury fr o m its duty to decide the case on the evidenc e by injecting issues broade r than the guilt or innocence of the a ccuse d under the controlling law or by making predic tions on the conse quence s of the jury ’s ver dict; and intentionally ref ers to or ar g ues fa cts outside the
rec ord, other tha

n those which a

re matters of c ommon public knowle dg e. State v. Goltz, 111 S.W .3d 1, 6 (Tenn. Crim. App. 2003)

. For a def endant to be e ntitled to a new trial on the basis of alleg edly improper r emar

ks during the c los ing argume nt, the y mus t be sh ow n to have pr e jud ic e d th e c a se by

a ff e c tin g the jur

y ’s ve rd ic t. Middlebrooks, 995 S.W .2d at 559. I n deter mining whether

this occurr ed, we consider the following fac tors: (1) the c onduct viewe d in light of the circ umstances and fac ts in the ca se; (2) a ny curative
measure s taken by

the trial cour

t and the prose cution; (3) the pr osecutor’ s intent in making the improper state ments; (4) the cumulative effec t of t he prosecutor’s statements and other err ors in the
rec ord; and (5) the re lative streng th and wea kness of the c ase. I d. at 560.
A. F earful Witnesses
At trial, Serg eant Oliver testified that he spoke with Mic hael Pressley during the cour se of his investigation, and Pre ssley was “rea l helpful” at first but “wa s scar ed [ and] fear ful for his life” toward the end of the investigation. Serg eant Maness testified that he took Mic hael Pre ssley to the Hickory Hill area in an attempt to loca t e t he Crowne Victoria, a nd Pressley

“wa s about cry

ing
scar ed” so Serg eant Maness place d a bag with ey e holes over Pressley ’s head to make him fee l more comforta ble. Serg eant Shelby

testified that she attempte d to locate Pre ssley and Tamika J olly

for t r i a l

. S h e w a s u n a

b l e t o l o c a t e P r e s s l e y, b u ts h e l o c a t e d an d s u b p o e n a e d J o l l y w i t h m u c h d i f

f i c u l t y.-9-

Serg eant Shelby

stated that, whe n serve d with the subpoena, Jolly “see med ner

vous. She was upset and she sa id she wasn’ t goingto testify .”

Duri ngits c los ingargume nt, the de fe ns e a sse rt e d th a t th e de fe nd ant w a s a fr a id of the vic tim

. At a sid e ba r c on fe re nc e , th e State argue d th a t th e re wa s no pro of that the de fe nd ant fe are d th e vic tim

. Th e c ourt ru le d th a t the jur

y c ou ld inf

e r fe ar fr om the pr oo f. Th e n, in i ts r e bu tta l argume nt, the State sug g ested that the defe ndant was actua lly the one people fea red as evidenc ed by

Michae l Pressley ’s action s
. The de fenda

nt objected, a

rg uing the re w as no proof that Pressley

was a fra id of the de fe nd ant. Th e c ourt

ins tr uc te d th e State , s imi larl y

to how it inst

ru c te d th e de fe ns e , to no t dr aw i ts own conc lusions but t ell the jury that it could infer f

ear from the pr oof.
The court g ave both pa

rties latitude in arguing to the jur y the var ious infere nces it could dra w fr om t he e vid e nc e . T he State ’s argume nt w a s in re bu tta l to the de fe nd ant’ s a sser tio ns ma de in closing . Ba sed on the testimony at trial, the jury could rea sonably infer that Pressley

was a fra id of the def endant. With reg ard to Ta mika J olly , the def

endant a rg ues that the State’s c omment that “Tam[ i] ka Jol ly

would rathe r g o to jail than t estify ag ainst this defenda

nt” was not supporte d by

the proof a nd was a n unrea sonable infe renc e. We disag ree
. One of the reasonable infere nces the jury could draw from Serg eant Shelby ’s testimony was that Tamika J olly was a fra id to testify

ag ainst the defe ndant. A party “must be given the opportunity to argue not only the facts in the record but any
rea sonable infe renc es there from.” Middlebr ooks, 995 S.W .2d at 568 (c iting Russel l v. State, 532 S.W .2d 268, 271 (Tenn. 1976) ). Ther efor e, the tria l court did not abuse its discretion in finding no manifest nec essity

for a mistrial.

B. D or r e ll J one s’ s St at e m e nt Duringthe Stat e’s dire ct examination of Dorre ll J ones, Jones testified that the defe ndant admitted shooting the vic tim because the victim started to re ach f or som ething

. J ones then testified that he g ave two dif

fer ent statements to the police, w ith the second sta t em en t being more truthful and complete than the first. When aske d wh et h er h e told the police in his statement that the defe ndant said the victim was r eac hing f or something , J ones said, “Y es
. ” However , when shown his second stateme nt, J ones admitted that it did not contain any mention of the def

endant’ s having said that the victim was re achingfor something . Neither statement wa s admitted into evidence

. I n h i s closing a

rg ument, defe nse counse l relied on Dor rell Jones’s testimony

that the de fe nd ant s a id h e sh ot t

he vic timbe c a

us e he wa s r e a c hin g fo r s ome thi ng . T he pr os e c uto r, the n, in
re bu tta l, a sse rt e d th a t th e fi rs t ti me Jone s me nti on e d th e vic tim re a c hin g fo r s ome thi ngwa s at tr ia l. On appe al, t he defenda

nt argues t hat t he prosecutor mi sstated t he evidence beca use “a fair

rea ding of the

. . . d ir e c t e xami natio n o f D or re ll Jon e s sh ow s th a t Mr . Jon e s to ld t he po li ce i n h is f ir st statement that De fenda

nt told him that the victim was re achingfor a g un.”
We discern no a

buse of discr etion in the trial court’ s finding no ma nifest n ec es s i t y for a mis tr ia l. C on tr ary

to t he de fe nd ant’ s a sse rt ion , th e pr os e c uto r d id no t mis state the e vid e nc e . Just
a s th e jur y c ou ld i nf e r f ro m th e te sti mony that J on e s must have me nti on e d th e vic tim“ re a c hin g ” inT h e d efen d an t fai l ed t o rai se t h e i ss u e i n his m o t i o n for new t ri al

. See T en n
. R

. A p p
. P. 3 (e). 3
-10- his first statement, the j ury could just as easily infer that whateve r Jones said in his first statement was untruthful, or inf

er that J ones neve r m en t i o ned the “ rea ching ” until trial. Both par ties were wi thi n th e wi de latit

ud e g ra nte d in c los ingargume nt t o a

rgue the dif

fe re nt i nf e re nc e s f ro m this testimony

. C. Rhe to r ic al Q ue st ion s Duringrebuttal c losing a

rg ument, the prosec utor said: [The] [d] efe nse would have y ou believe that [ the victim] was a dang erous a

nd violent dr u g d e a l e r
. N o t [ t h e v i c t i m ] t h o u g h , i s i t , [ t h e d e f e n d an t ] ? W e l l , w h a ta

b o u ti t ? If y ou’re in this line of work a nd y our name is L ittle D and y ou’re a small stature how d o y o um a k e y o u r

w ay ?
Def ense c ounsel objected o n grounds t hat the prose cutor a sked the de fenda nt a question when he could not answe r. T he cour t found that it was not improper to use r hetorica l questions during closing argument and that the jury would not expect an answer. The court also noted that the prosec utor “didn’t g o up to [ the defendant] and shake her f inge r in his fac e or w ait for a n answe r, she just kept rig ht on g oing.” For the first time on appea l, the defendant asserts that the prosec utor’s use of these rhetoric al questions serve d to inflame the jury

. Upon re view, we note that the prosecu t o r was rebutting the de fenda nt’s asser tion that the victim was a fe are d man in the community by use of rhetoric al questi ons, which are re ally no more than statements. As noted by the court, the prosecutor di d not shake he r fing er at the defe ndant or make a ny sort of ac cusatory

g estures t o wa rd hi m that could have ma de the r hetorica l questions inflammatory

in nature. G iven the natur e of c losing a rg ument and the wide latitude g rante d the parties in makingtheir ar g uments, we c annot conclude t hat the prose cutor’s use of these r hetorica l questions served to inflame the passions or pr ejudices of the jury

. III
. P ost-Ar restSilence
The de fenda

nt la stly asks this c ourt to r ecognize a s plain err or Serg eant Oliver ’s testimony 3 that the def

endant ha d never

told him “in t he last two y ear s that this had som ething to do with selfde fe ns e .” He a sse rt s th a t suc h tes tim ony wa s an imp e rm iss ibl e c omm e nt r e g ard inghis sil e nc e po starr est.
The doc trine of plain e rror provides that whe re ne cessa ry to do s ubstantial justice, an appellate court may

take notice of a “ plain err or” not ra ised at t rial if it aff ecte d a substantial rig htE ff e c tiv e Ju ly 1 , 2 0 0 9 , R u le 5 2 (b ) o f t h e T e n n e sse e R u le s o f C rim in a l P ro c e d u re w a s d e le te d , an d th e p la in 4

er r or l angua ge w as a dded t o Rul e 36( b) of t he Tenne s s ee Rul es of A ppel l at e Pr oce dur e. Se e Tenn. R. A pp. P. 36( b)
an d T en n
. R

. C ri m
. P. 5 2 , A d v i sory C o m m ’n C m t s. (20 0 9 ). -11- of the de fe nd ant. Te nn . R. Crim. P. 36( b)

. I n ord e r fo r us t o f ind pla in e rr or , “ (a ) t

he re c or d mu st 4 clea rly establish what occur

red in the trial court; (b) a clea r and unequivoca l r

ule of lawmust have been brea ched; (c) a substantial r ight of the acc used must have been adver sely aff ecte d; ( d ) t he
acc used did not waive the issue for ta ctical r easons; and ( e) c onsideration of the err or is ‘nec essar y to do substantial just ice.’ ” State v. Smith, 24 S .W.3d 2 7 4 , 2 8 2 (T enn. 2000) (quoting State v. Adkisson, 899 S.W .2d 626, 641-42 (Tenn. Crim. App. 1994)). The error must have bee n “‘of such a g reat mag nitude that it probably chang ed the outcome of the trial.’ ” Adkisson, 899 S.W .2d at 642 (quoting United States v. Ker ley , 838 F.2d 932, 937 ( 7th Cir. 1988)). A court’s discre tion to noti ce plain err or is to be “spa

ring ly ex er ci s ed

. ” State v. B ledsoe, 226 S.W.3d 349, 354 (Tenn. 2007). Consideration of all five fac tors is unnece ssary when it is clea r from the record that at l east one of them cannot be satisfied. I d. at 355. Prior to Serg eant Oliver ’s testimony , a benc h co n fe renc e wa s held in which the pa rties discussed the de fenda

nt’s motion to s uppress his statement to Serg eant Oliver that he had nothing to do with the homicide. Appar ently , t h e motion was not argued ea rlier be cause the State did not think the defe ndant’s stateme nt was re levant. Howe ver, the State deter mined that the statement wa s rele vant and wa

nted to have the issue hear d. The defense responde d that the S tate had a g ree d not to use the statement unless the defe n d an t chose to testify and said that “ [a] t this poi nt it is our int e nti on tha t [th e de fe nd ant] is go ing to te sti fy , an d rathe r tha n h a ve [Ser g e ant] O liv e r h a ve to c ome back f or re buttal testimony

we don’ t have a

ny problem with havingthe State ask that.”
The trial c ourt ca

utioned that it wo u l d be better for the pa

rties to know whethe r the defe ndant’s stateme nt would be admissible be fore the defe ndant testified. The defe nse re sponded that it did not have any objection t o the s tatement coming in beca use “it could be used for

rebuttal any way , and [the defe ndant] is going to testify .” The court a g ain ca utioned that the def

endant ha d a constitutional rig ht to chang e his mind and not testify , but the def ense sa id it was withdrawingthe motion to s uppress. At trial, Serg eant Oliver

testified that he que stioned the defe ndant, and the de fenda nt denied
an y i n v o l v em en ti nt h e v i ct i m ’s m u rd er
. S er gea n t Ol i v er s ai d t h at t h e d ef en d an td en i edo wn i n g a Crowne Vic toria or riding in one. Ser g eant Oliver rec alled that the de fenda

nt stated “that he knew not h i n g of [the victim’s] death, he hear d it through the g rape vine.” Ser g eant Oliver said that the de fe nd ant d id n ot w ant t o ta lk a bo ut t he matte r a

ny fu rt he r. Whe n ask e d if

the de fe nd ant h a d to ld Serg eant Oliver

in t h e l as t two y ear s that the shooting ha d something to do with self- defe nse, Serg eant Oliver

said, “No, ma ’am.” The de fenda nt objected, a

nd the cour

t noted that “[i] f the defe ndant wer e to testify and say that it was self

-d ef en s e t h en y ou question the defe ndant about whether or not he told anyone af

ter he had testified but not y et.” The court immediately g ave the jury
a cur ative instruction that it could not consider that the defendant “just decide d not to call the police and say something a g ainst [hi mself].”S t a t e v
. J o n a t h a n D

. R o s e n b a l m, N o
. E 2 0 0 2

- 0 0 3 2 4

- C C A

- R 3

- C D , 2 0 0 2 WL 3 1 7 4 6 7 0 8 , a t * 5 ( T e n n
. C r i m. 5 Ap p
. De c
. 9 , 2 0 0 2 ) , p e r m. t o a p p e a l d e n i e d ( Te n n
. M a y 2 7 , 2 0 0 3 ) ; S t a t e v
. C h r i s Ha i r e , No

. E 2 0 0 0

- 0 1 6 3 6

- C C A- R 3

- C D, 2 0 0 2 W L 83 6 0 4 , at *1 4 -15 (T en n
. C ri m
. A p p
. J an
. 22 , 20 0 2 ), pe rm
. t o ap p eal de n i ed (T en n
. J u n e 2 4 , 20 0 2 ). -12- I n discussing the jury

char g e with the par

ties, the court addressed the issue that the State had
a sk e d Se rg e ant O liv e r w he the r t he de fe nd ant ha d volu

nta ri ly c a lle d th e po lic e so me tim e be tw e e n h is initial stateme nt a

nd trial to sa

y the shooting was in se lf-def ense. The court rec alled the history of
c a se s th a t di sc us se d w he the r a de fe nd ant’ s p os t- arr e st s ile nc e c ou ld b e c omm e nte d o n, e nd ingwi th Fletc her v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312 (1982), whic h allowed c ross-examination
as to post-a

rre st, pr e-Mira

nda, silence when a defe ndant chooses to te stify , and t wo unrepor ted Tenne ssee c ases discussing Weir. The c ourt noted that this is sue ar ose bec ause the parties we re 5 tr yingto p re ve nt t

he of fi c e r f ro m hav ing to te sti fy

a g a in l a te r, bu t w he n th e de fe nd ant c ha ng e d h is mind about testify ing, it mea nt that the office r’s testimony was no long er a

ppropriate impeachme nt testimony . There fore , the jury neede d an additional instruction.

I n i t s ch ar ge t o t h e j u ry p ri o r t o cl o s i n g ar gu m en t , t h e t ri al co u rt em p h as i z ed , u s i n g l an gu age the de fe nd ant c on c ur

re d w ith , th a t: You also may

not c onsider the fac t if y ou so find proven that the defe ndant didn’t call the police and ma[ k]e statements reg arding his case afte r makinghis init ial statement to the police. H is election not to initi ate f urther c ontact with the police
re g ard ingthe inv e sti g a tio n o f his case c an’ t be c on sid e re d f or a ny purp os e a g a ins t him, nor can you drawany infere nce f

rom that as we ll.
We decline to re cog nize plain error in this cas e b ecause doingso is not necessar y to do
su bs tanti a l ju sti c e . H e re , the qu e sti on e d tes tim ony wa s b ri e f a

nd iso late d, the tr ia l c ourt

imm e diate ly g ave the jury

a cur ative instruction, and the c ourt g ave the jury a ver y thoroug h limit ing instruc tion in i ts c ha rg e . M or e ov e r, the e vid e nc e of pr e me dit a tio n w a s st ro ng , c on sis tin g of

, in the lig ht m os t favor abl e to th e St a te , th e d e f e n d an t’ s u s e o f

a d e a d ly w e a p o no nanu n ar

me d v ic ti m, th e la c k

of provocation on the part of the vic tim, the defenda nt’s procur ement of a

wea pon, and sec retion of evidenc e af

ter the kill ing. Wherea s, the defense theory of self-defe nse was not impugned sole ly by the def endant’ s silence on the subje ct, but primarily by his deny i n g any

involvement to Serg eant Ol ive r a nd the qu e sti on e d c re dib ili ty of Do rr e ll J on e s’ s tes tim ony . T he de fe nd ant i s n ot e nti tle d to plain err or re lief.-13- CO NC LU SION

B a se d o n the fo re g oin g a

uth or iti e s and

re a so nin g , w e a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

.

___________________________________ ALAN E. G LENN, JUD GE