# FILED
February 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SE SSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9707-CR-00255

) ) Campbell County v. ) ) Honorable Lee Asbury, Judg e ) CURTIS CECIL WAYNE BOLTON, ) (First degree murder) ) Appellant. )
For the Appellant : For the Appellee : Charles Herman John Knox Walkup P.O. Box 337 Attorney General of Tennessee Jacksboro, TN 37757 and (AT TRIAL) Michael J. Fahey, II Assistant Attorney Gener al of Tennessee Martha J. Yoakum 425 Fifth Avenue North District Public Defender Nashville, TN 37243-0493 P.O. Box 386 Tazewell, TN 37879 William Paul Phillips and District Attorney General Laura Rule Hendricks P.O. Box 10 606 W. Main Street, Suite 350 Huntsville, TN 37756 P.O. Box 84 Knoxville, TN 37902-008 4 (ON APPEAL)

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Curtis Cecil W ayne Bolton, appeals as of right from his conviction by a jur

y in the Campbell County Criminal Court of first deg ree murder for which he received a sentence of life imprisonment in the c ustody of the Department of Correctio n. He pres ents the following issues fo r our review:

(1) whether the evidence i s sufficient tosupport his conviction; (2) whether a juror

’s fai lure to reveal a rela tionship with an assistant district attorney general deprived him of a fair trial; (3) whether impeachment of the defendant by a codefendant regarding the defendant’s prior bad acts denied him of a fair trial; (4) whether the trial court erred by allowi ng the introductionof a dia gram and the reference to a color photograph o f th e victim; and (5) whether the state’s bibl ical reference in closing argument prejudiced the verdict and denied the defendant of a fair trial. We conclude that no reversible error occurred.
At trial, Detective Eddie Barton of the Campbell County Sheriff’s Department testified that he assi sted in investigati ng the death of the victim, C ody Bolton, the defendant’s two and one- half-year-old son. He s aid he went to the defendant’s trailer at about 3:00 a. m. on November 23, 1995, after the v ictim was admitted to the hospital. He s aid Lisa Boyer, the defendant’s live-in girlfriend and the codefendant in this case, was at the trailer, and she told him that the victim had falle n out of his highchair. An autopsy photograph of the victim was admitted into evidence and reflected multiple injuri es and bruises on the vic tim’s face, chest and arms.
On cross-examination, Detective Barton said that Ms. Boyer was very calm and unemotional when he spok e with her. He said that she relayed the follow ing3

facts regarding that nig ht: The defendant went to the emergency room because he injured his finger at w

ork earlier that day.The victim was put to bed and cried when the defendant left the home, and she got him up to feed hi m at about 11:30 p.m. She put the victim in his hig hchair and went to was h his tray in the bathro om, then she heard a loud bang. She found the victi m lying in the floor w ith a bruise near his left t emple, and he was not breathing. S he became hysterical and sl apped the victim three times on the face to get him to breathe. The last time she slapped him hard, and he s tarted to breathe. She called her mother,then she called the emergency room to talk to the defendant. She told the defendant to come home because the victim had fallen out of his highchair, and the defendant came home and took the victim to the emergency room. She stayed home with her and the defendant’s four-week -old daughter, Alisha. The victim had been sick, and she had asked the defendant to call the clinic to get the victim an appointment, but the c linic was closed. The victim had no injuries when the defendant left to go to the emergency room fo r his finger.

Campbell County Sheriff Ron M cClellan testified that both the defendant and Ms. Boyer gave statements at the sheriff’s office. He s aid he noticed a bandage on the defendant’s finger, and he asked the defendant how he injured his finger. He said the defendant told him that he injured i t at work. He said the defendant told him that when he walked the v

ictim to his bedroom later that night, the victim w ould not listen, and he aggr

avated his injury by

swatting the victi m on the bottom.

Sharon Sutton testified that she li ved in the trailer acr

oss from the defendant and Ms. Boyer. She sai d that on November 22, 1995, she w ent to bed at about 8:30 or 9:00 p.m. She said that after she went to bed, she heard thumps. She stated that she got up and looked out of her front room window because she thought someone was on one of her vehicles. She said she discovered that the thum ps were4

coming from the defendant’s trailer. She said she saw a man and a woman running back and forth in the hall in the defendant ’s trailer.

On cross-examination, M s. Sutton said she had been in bed ab out thirty minutes when she heard the thumps. She said she gave a statemen t to the police in which she said she did not see or hear any children that night. She said she heard more than one thump, possibly three, and she heard the thumps betw een 9:00 and 9:30 p.m.
Dr. Cleland Blake, the as sistant chief medical examin er for Tennessee, testified that he performed an auto psy on the victim on November 23, 1995. He said the victim had many bruises of differing ages on his body. He said the victim had fresh bruises covering the left side of his face, a bruise under the high right part o

f his scalp, and a broken right colla rbone. He said the vic tim had deep bleeding under his scalp at the top of his head and in the right side of his brain under the skull. He said that this type of bleeding is caused by an impact to the left side of the head which forces the brain across the skull and causes it to bounce agains t the other side of the skull, tearing blood vessels and causing the bleeding. He said the victim had swelli ng and compression of the brain that pushed the brain stem down to the hol e in the base of the skull and cut off the victim’ s blood supply, ultimatel y causing his death.

Dr. Blake testified that the v ictim’s fatal injury was on the left side of the victim’s face on his jaw, left cheek, temple, and behind his left ea r. He said the injury was caused by the blunt impact of a surface that pressed the l eft ear against the head. He said that when the victim arrived at the emergency room at 11:00 p.m., the victim was unconscious. He said the injury would have occurred two to three hours earlier, not immediately before he was brought to the hospital. He said the victim had f resh injuries on the left side of his face, the back of his head, the back of his right shoulder, and his buttocks. He said that the bruise on top of the vic tim’s head was consiste nt5

with the victim falling out of a highchair, but it did not cause his death. He said it is inconceivable that the v ictim’s internal bleedi ng or brain injuries resulted from falling out of a highchair, and to receive such injuries from a fall, the victim would have had to fall more than twenty feet. He s aid the victim’s inj uries were consistent with child abuse, and the victim’s fatal inj ury had to be from a very forceful blunt impact between an object and the victim’s head. He said that after the victim received the injury, he would have gradually lo

st consciousness, whi ch could have caused him to fall out of the highchair. He said the

injuries on the victim’s back and right shoul der and his broken collarbone show that there were definitely two impacts.

On cross-e

xamination , Dr. Blake

testified th at the victim had some bruising where li

fe support equipment was attac hed, but he said the bruising was different from the victim’s inj uries. He said that attempts to resuscitate the vic

tim by slapping him hard on the face w ould not have caused the vi ctim’s injuries or hi s death. He said the victim’s bruises that were one to two days old did not contribute to his death.
Keith McKamey testified that he is a paramedic and that he saw the defendant bring the victim into the emergency room on the night of th e incident. He said the defendant was walk ing at a normal pace tow ard the hospital. He said he stopped the defendant and asked him what happened, and the defendant said the victim had fallen out of his highchair. He said he told the defend ant to take the victim inside. He said he went back to his ambulance to prepar e it for the next call and w hen he finished, he went into the emer gency room. He said the defendant was standing inside the door holding the victim. He said he as ked the defendant if anybody had helped him yet, and he could tel l the victim was i n bad condition. He said he c hecked the victim’s pulse, and it was in the fifties or s ixties. He said he to ok the victim back to6

the triage room. He said he was surprised that the defendant had not yet taken the victim back, and the defendant w as not yelling or as king anyone for help.

On cross-examination, M r. McKamey testified that there was one person working at the emerg ency room window, and she was talking to someone when he entered the room. He said the defendant carried the victim bac k to the examining room, and he showed the defendant w here to go.
Christy McCull ey testified that she was the registration cler

k at the emergency room that nig ht. She said she had gone to sc hool with the defendant. She said the defendant first regist ered at 10:57 p.m. with an inj ured hand. She said that while the defendant was w aiting to be treated, a female cal led to speak with the defendant. She said the woman, w ho was crying, told her it was an emerg ency and asked her to hurry. She said she rang the call t o the pay telephone in the w aiting area, and the defendant was told to answ er it. She said she saw the defendant thirty to forty minutes later with the v ictim, who looked asleep.She said she was reg istering another patient, and the defendant stood in the cor ner. She said the defendant never told her the victim’s conditio n, he was not emotional, and he d id not yell for help. She s aid that Mr. McKamey

finally dr

ew her atte ntion to the v ictim.
Vivian Loudy testified that she was working as a nurse in the emergency room that night. She said sh e saw the doctors’ assi stants carry the v ictim into the examination room. She said th e victim was ve ry pale, limp and cold, and he appeared to be near death. She said the v ictim’s pulse was v

ery slow, and his breathing was erratic. She said the poli ce were called.

Dr. Peter V. Claussen tes tified that he was on duty at the University of Tennessee Hospital in Knoxv ille that night. He s

aid the victim was flown to UT Hospital7

from Campbell County by Li feStar. He said the victi m’s symptoms were cons istent with a blunt, closed-head trauma, and the victim had massive bleeding inside th e brain. He said the victim had other injuries consistent with child abuse. He said the victim’s injuries could not have been caused by a fall from a highchair. He said the fall would have had to be from about twenty feet. He said the victim’ s injuries were co nsistent with him having been thrown into a wall with substantial force, and the fatal injuries occurred one to two hours before the victim was brought to the emergency room. He said the victim may have lost consciousness from the blow, regained consciousness, then deteriorated again. H e said it would take the victim one to two hour s after the injury to become cold, to have a weak pulse, and to be near death.

On cross-examination, D r. Claussen testified that i t would be possible for a strong, young adult male to throw the victim into a wall covered with paneling. He said that such a force woul d cause the injuries the v ictim received.
Lisa Boyer, the codefendant, testified that she began livi ng with the defendant a few weeks before the incident. She said she was s eventeen, and the defend ant was twen ty-two. She said she a nd the de fendan t had a fo ur-week-o ld baby, Alisha, at the time of the incident, and her delivery required a third degr ee episiotomy. She said she still had stitches from the episiotomy at the time of the incident. She said the victim was not her

child, but he lived w

ith her and the defendant, and she cared for him during the day w

hen the defendant was at work. She testified that the defendant was not a good father. She sa id he did not have a steady job, he did not buy groc eries for the family, and he did not pay for anything other than the rent. She said she had A.F.D.C. and W.I.C. benef its and food stamps.

Ms. Boyer testified that the weekend before the incident, the victim stayed with the defendant’s mother. She said that when the vic tim returned, he was si ck. She8

said he was weak and had a fever and loss of appetite. She said she gave the victim Tylenol and Triaminic. She s aid three doctor’s appointments had been scheduled for the victim, but the defendant cance led all of them. She said she coul d not take the victim to the doctor becau se she had no transportation and because the defendant would not allow it . She said that on November 22, 1995, she was baking p ies for Thanksgiving the nex

t day. She said the defendant came home fro m work at about 6:30 p.m. and said he had injured hi s finger at work. She said the defendant told her that he needed to get a car part , and she told him to pick up s ome Karo syrup while

he was gone. She said that when the defendant left, she finished feeding Alisha and went to give the victim a ba th. She sa id she too k off th e victim’s shirt and saw a massi ve amount of bruises on his chest. Sh e said this scared her, and she decided not to bathe him.
Ms. Boyer testified that the defendant returned a bout one and one-half hours later, but he had forgott en the Karo syrup. She sai d the defendant complained about his finger, and she told him to call his sister . She said the defendant took the victim into the bathroom, c hanged the victim’s cl othes, and talked to his sis ter with the door closed. She said he then l eft to get the syrup and came bac k about ten minutes later. She stated that she made di nner for the defendant and the victi m, and the defendant sat on the couch and ate. She said she tried to feed the victim, but he did not want to eat. She said sh e poured grape juice for the v ictim and told him that if he ate, he would get to dri nk the juice. She said the v ictim took a bite of food and chewed then drank some juice. She sai d she turned around, leaving the juice cup on the victim’s tray, a nd the victim tried to dr ink the whole cup of juice.She said this caused the victim to choke, and he sp it up his f ood on th e highcha ir tray.

Ms. Boyer testified that she asked the defendant to help her becaus e she was trying to t

ake care of Alisha. She said the defendant got the victim dow n from the9

highchair and said he w as tired of the victim g agging. She said the d efendant turned the victim over his

knee and spanked him. She said the defendant would not stop spanking the victim, and she finally told him to l eave the victim alone and to take him to his bedroom. She said the defendant cont inued to spank the victim a s they walked through the hall to the v ictim’s room, and the defendant hit the victim so hard he star ted to fall forward. She said th e defendant grabbed the victim b y his shirt collar

and carried him into the bedroom. She said she put Alisha down and took the victim’s tray to the bathroom to wash it. She said she passed the victim’s room and saw the victim standing up while the de fendant was pointing at him and talking to him. She said that she took the tray to the bathr oom and started to spray it off when she heard a loud thump from the victim’s bedroom. She said she ran to the bedroom and saw the defendant holding the victim by his ankle and wrist, and the defendan t threw the victim against the wall abov

e the victim’s bed. She s aid the victim bounced off the w all and landed face forward, limp on his bed. She said the defendant then reached u p and spanked the defendant’s bottom very hard. She said she screamed and told the defendant that he had done enough and to get out of the room. She said the defendant came out and said “I warped him so hard, I can’t believe he is not crying, I warped him so hard I hurt my hand.”

Ms. Boyer said she tol d the defendant to go to the hospital.She said that before he left, the defendant told her to try to feed the victim. She said the defendant told her if the victim would not eat, she should leave him and go to bed, and he would deal with him when he got home. She said she went to the kitchen and made the victim a new plate of food. She said she w ent to get the victim out of bed, but he was not responsive. She said sh e helped the victim out of bed, and she noticed that he was walking funny wi

th his legs crossed, an d he was slouched and scooti ng. She said the victim reached the hig hchair, and she told him to hop up . She said the victim di d not respond but made a moaning noise. She said she tried to pick up the victim while she10

was holding Alisha,but this caused her to stumble forward toward the hig hchair, and the victim bumped his head on the wall. She said she straightened the victim, gave him some food, and asked him to eat. She said th e victim stared straight ahead, and his eyes looked dilated. She s aid the victim started t

o slide back in his chai r and tried to slide down. She said she put Alisha down and went to the bathroom to get the victim’s tray, and she heard a loud thump. She said she ran to the kitchen and saw that the victim had fallen out of his highchair and was lying on the floor.

Ms. Boyer said she r

an to the victim and roll ed him over, but he was not breathing and had no pulse. She said she became panicked and scar ed, and she yelled the victim’ s name. She said she picked up th e victim, ran to the bathr oom, and splashed cold water on hi s head, but the victim did not respond. She said she slapped him lightly twi ce and hard once, and the vic tim began to breathe. She said she tried CPR on the victim but got no response. She said she noti ced extremely larg e bruises on the side of the victim’s face, and the victim was still not breathing normally. She said she called her mother who told her to call an ambulance. She said she did not call an ambulance because she had not liv ed in the trailer long,and she did not know the address or box number. She s aid she called her mother ag ain and was hysteri cal, and her mother told her to call the defendant. She said she called the defendant at the hospital and told him that the v ictim had fallen out of his highc hair and was not breathing. She said she ask ed the defendant if she should call an ambul ance, and the defendant told her she should not, and h e would be home in a few minutes. She said the defendant arrived and asked i f the victim was breathi ng, and she said she told the defendant, “ba rely.” S he said the de fendant dumped a glass of w ater on the v

ictim, then picked him up and took him to the hospital.

Ms. Boyer te stified that Dete ctive Bart on took h er statem ent early t he next morning. She said she told him about the victim falling out of the highcha ir, but she did11

not tell him what the defendant had d one because she was afraid of the defendant. She said she later told Detective Scott Smith wha t the defendant had done, and she waited so long because s he was afraid of the defendant and because s he felt guilty about letting the victim fall out of the highchair.

On cross-examination, M s. Boyer said that she fir st gave a statement to Detective Barton at the tr ailer on November 23 at 3:0 0 a.m. She said the defendant was not at the trailer

when she gave the sta tement. She said she gave a recorded statement to Detective Smith and Sheriff McClellan at the sher iff’s department on November 23 at 4:55 p.m. She sai d the officers talked to her for about an hour and one-half before her statement was r ecorded, and Detective Smith told her to cut through the “bulls**t” because he had a preliminary autopsy report indicating that the fa ll from the highchair and her efforts t o resuscitate the victim killed him. She said Smith told her that a request for a lawyer would be considered a lack of cooperation, and if she did not say what he wanted to hear, he would try to send her to the electric chair. She admitted that she was adv ised of her rights and w as willing to tal k without an attorney. She admitted that i n the second statement, she said that she picked up the victim and tossed him into his highchair and that hi s head flew back and hit the w all, but she testi fied tha t the stat ement was not in her own words. Sh e said tha t after s he gave the second statement, she was p laced in a cell and charg ed with murder. She said that five or six hours later, she gave a third statement to Detective Smith, and she finally told him what the defendant had done.

Ms. Boyer testified that the defendant had previously threatened her and told her that he knew ev erybody in town and

that they would belie

ve him not her. She said he told her that her baby would be taken away

and that he could cry at the drop of a hat. She said the defendant liked to aggravate the vi ctim. She said he thought it was funny to push the victim dow n. She said he would also straddle the victim on the floor12

and hold him down until the v ictim screamed or cried. She testified that the defendant would pick up the vi ctim by his head and shake hi m. She said that once during toilet training when the victim wet the floor, the defendant told her she should rub the victim’s nose in it like a dog. She said the defendant took the vic tim into the bathroom and put the wet underpants on the victim’s head as the victim cried. She said she did not take out an order of protection agai nst the defendant because she was s cared.

On cross-e xaminati on by her at torney, Ms . Boyer sta ted that she is five feet, one inch, and she weighs ninety-five pounds. She said she initially believed that the victim’s fall from the hi ghchair caused his death. She said she felt intimidated by Detective Smith, and she had seen him talking with the defendant’s family earlier. She said that the district att orney did not promise her anything for her testimony and that she was only testify

ing to tell the truth. S he said she did not cause the v ictim’s injuries and did not phy

sically punish the v

ictim.
Clyde Taylor, the defendant’ s brother-in-law, testified that the defendant worked for him at his busi ness, T&T Vinyl Siding, on November 22, 1995. He sai d the defendant injured his right hand at work that day. He said the defendant finished working but complained about his hand. He said the defenda nt left his car at Taylor’s house that morning, and the defendant r ode with him to his house after work to pick up his car. He said that l ater that night, the defendant call ed Taylor’s wife and tol d her that the victim was ill, and he said his wife went to the hospital. He said he called Lisa Boyer at the trailer, and Ms. Boyer told him that she had been feeding the victim in his highchair when she l eft to wash his tray. He said Ms. Boyer tol d him that she heard a thump and found the victim lyi ng unconscious on the floor. M r. Taylor testified that he went to the trailer the day after the victim die d to get things for Alis ha, who was stayi ng with him and his wife, and the trailer was cl ean and orderly. He sai d the victim’s bed was made. He said the defendant had not been back to the trailer s ince the incident.13

Mr. Taylor said the defendant was a good employee, and he never saw the defendant mistreat the

victim.

On cross-examination, M r. Taylor testified that th e defendant had worked for him full-time for eight months preceding the victi m’s death. He said the defendant was making as much as thr ee hundred dollars each week. He said he did not know that the defendant had applied for food stamps and A. F.D.C. benefits on October 23, 1995. He identified an A.F.D.C . application in whic h the defendant reported that he earned four hundred and fifty dollar s the preceding month. Mr . Taylor said the defendant no longer works for him, but he denied that the defendant was fired because of drug use. He said his w ife maintains the payroll r ecords for his business, and the records do not contain the hourly wages paid to employees.

Lisa Taylor, the defendant’s si ster, testified that she operate s her husband’s business office. She said she some times prepares the payroll. She said she never saw the defendant mi streat the victim, and the y had a normal father/son relationship. She said she drove the defendant and their parents to UT Hospital the morning of the incident, and the defendant was crying and appeared to be devastated. She said that two interns at UT told them that the victim had head injuries. She sai d the interns told the m the inj uries w ere not c onsiste nt wit h the vi ctim fal ling out of a highchair, and the defendant looked shocked. She said the defendant saw the victim at UT before he died, and the defendant was c rying and looked li ke he might faint. She said that earlier that day when the defendant and her husband ret urned from work, the defendant’s finger was taped. She said the defendant called her la ter that night at 8:58 p.m. She said that she went with her husband to the defenda nt’s trailer after the victim died, and the trailer w

as immaculate.14 On cross-examination, M s. Taylor testified that the defendant worked for her husband periodically . She said he worked mostl y full-time during the year preceding the victi m’s death. She said the defendant made about s even dollars an hour, and he worked long hours in the weeks preceding the victim’s death. She said she was unaware that a month before the victim’s death, the defendant had applied for A.F.D.C. benefits and food stamps. She acknowledged that on the appl ication, the defendant reported earning four hundr ed and fifty dollars per month, and she said that was a lie. Ms. Taylor said that their mother, Ruth Bolton, was the victim’s primary caretaker, but she said both M r. and Mrs. Bolton wer e sick around Thanksgiv ing of 1995. She said she and her other s iblings felt it was too much for their parents to tr y to care for the victim, and they felt the defendant should take care of his own child.

Ella Nolan testified that she was in the emergency room with her daughter on November 22, 1995. She said the pay telephone rang, and s he answered it. She said a female who seemed calm asked for the defendant, and the defendant took the call. On cross-ex

amination, she said she did not k now if it was the rec

eptionist who rang the pay telephone.

Ella Suzanne Nolan, the g randdaughter of Ella Nolan, t estified that she was at the emergency room that night, and her grandmother asked her to find Curtis Bolton. She said she found him, and the de fendant answered the telephone. She said the defendant left and returned about tw enty or thirty minut

es later carrying

the victim. She said the defendant took the vic tim to the front desk, then went back into the examination room. She said th e defendant then came out and paced up and down the hall.
Brian Lloyd, the defendant’s c ousin, testified that the defendant, the defendant’s ex-wife, and the v ictim lived with him for a few months in the earl y fall of15

1994. He said he never saw the defendant mistreat the vict im, and they had a good relationship. He said th e defendant would scold the v ictim and smack his hand. On cross-examination, he said he did not observe the defendan t when he lived with Ms. Boyer, and the victi m was barel y walki ng when he l ived with him.
The defendant’s mother, Mary Ruth Bolton, testified that after the defendant divorced his first w ife, the victim’s mother, the defendant and the victim liv ed with her and her husband. S he said the defendant and victim had a loving relationsh ip, and she never saw the defendant mistreat the victim. Sh e said the defendant paid her one hundred dollars per w eek to buy the victim’ s food and supplies. She said the defendant also made a car payment to her. She denied telling Ms . Boyer to keep an eye on the victim w

hen the defendant was around.

Mrs. Bolton testified that th e defendant called her from the hospital on the night of the incident. She sai d she and her husband arriv ed at the hospital about ten minutes later, and the defendant was crying. She said the defendant could not tell her what was wrong , and he only said that the v ictim fell out of his highchai r. She said her daughter drove them to UT Hospital, and the defenda nt cried the entire way. She said the defendant said, “He couldn’t ha ve hit his head that hard, he couldn’t have.” She said that when they arr ived at UT Hospital, the defendant sat and cried. She said he tried to see the victi m, but he was not allow ed. She said the defendant has liv ed with her and her husband since the in cident.

Mrs. Bolton said that on the night of the incident, she talked with Ms. Boyer on the telephone. She said Ms. Boyer told her that the victim was sitting in his highchair, and the defendant was at the hospital getting his finger treated . She said she could hear t he victim talking.16 On cross-examination, M rs. Bolton testified that she t ook care of the victim when the defendant worked or went out to eat. She admitted that she took care of the victim a lot more than the defendant did, but she denied that the v ictim went to live with the defendant because her other children said he should. She said the victim went to live wi

th the defendant because the defendant wanted to make a home for the victim. She said that s he would do anything for the defendant and that she would not be much of a mother if she did not. She sai d she bought a car for the defendant, but he paid her for it. She said s he paid off the defendant’s bad checks. She sa id if the defendant needed something, he would not hesitate to ask her for it.With regard to the defendant’s application for A.F.D. C. benefits and food stamps, she said tha t she believed the defendant requested that she not be contacted because the defendant knew she would gi

ve him money and that he thoug ht she had given him enoug h. She said the defendant was not wor king full time. She said th at she did not want the defendant to go to jail. She sai d that the defendant had been living with Ms. Boyer about two or three week s before the victim’s death.She said that it was l ater than 5:00 p.m. when she talked to Ms. Boyer on November 22. On redirect examination, Mrs. Bolton said that she would not lie under oath for the defendant.

The def endant t estifie d that he worked fo r his broth er-in-law a t T&T Vin yl Siding periodically for two years. He said he also worked at Goody’s, Little Caesars Pizza and T aco Bell. He said he was fired f rom Good y’s becaus e of exces sive absenteeism. He said that his brother-in-law did not fire him from T& T Vinyl Siding. He said that when he work ed for his brother-in-law, his weekly pay check varied from one hundred to two hundred dollars. He said he paid three hundred dollars per mo nth in rent, and he occasionally bought food for his family. He said that Ms. Boyer had A.F.D.C. benefits and food stamps. He said he provided clot hing for the victim, and his parents helped buy things for the victim. He sai d the victim spent a gr eat deal of time at17

his parents’ house. He sai d his mother was ver y attached to the victi m. He said he loved the victim w

ith all his heart.

The defendant testified that on November 22, 1995, he worked on a job for his brother-in-law . He said he had been work ing steadily there for

the preceding three or four weeks. He said he injured his hand that day at about 2:00 or 3:00 p.m., but he continued to work. He said that when he retur ned home from work, Ms. Boy er told him that earlier that da y, the victim had a temper ature of one hundred and one degrees, and she had giv en him medicine. The defendant said the v ictim looked like he did not feel well and was unresponsive. He said he tried to make a doctor’s appoint ment fo r the victim , but the clinic was cl osed fo r Thanks giving. He sa id he gave the victim a bath while Ms. Boyer fed Alisha. He said that when he finished, he told Ms. Boyer that he was going to Wal-Mart to get a car part, and Ms. Boyer asked him to pick up Karo syrup. He said he did not find the car part, and h e came back home, but he forgot the syrup. He sa id Ms. Boyer raised her voice, and he went back out and got the syrup.

The defendant stated that when he retur ned home, Ms. Boyer prepared dinner. He said he told M s. Boyer that he might go to the emergency room lat er that night because of his finger, and he said he called his si ster because she had studied nursing. He said he put the victim in his highchair to get him to eat. He said the victim started choking on his por k chop, and Ms. Boyer tol d the victim he could not hav e any juice until he ate. He sai d he told Ms. Boyer to g ive the victim the j uice. He said the victim drank the juice but would not eat. He said he took the victim out of the highchair and sat the victim beside h im on the couch. He said the v ictim watched televi sion and still would not eat. He said that at about 10:30 p.m., he t old Ms. Boyer he wa

s going to the emergency room, and he put the victim to bed. He sai d he took the victim by the18

hand and led him to bed. He said the victim crawled into bed and cuddled up to his pillow. He said he tu rned out the l ight and tol d the victi m he loved hi m.

The defendant testified that he went to the emergency room and whi le he was waiting, he received a telephone call from Ms. Boyer. He sai d Ms. Boyer was crying and frantic, and she told him that the victim had fallen out of his highchair. He said he immediately sped home. He said it never occur red to him to get an ambulance. He said that when he arr ived home, the victim w as lying face down i n his bed and appeared pale, limp and helpless. He said he rolled the victim over and tested f or a pulse, and the victim’s eyes were dilated. He said he scooped up the vi ctim, ran through the trailer, and told Ms. Boyer he would be back later or he would call her.

The defendant stated that when he arri ved at the emergency r oom with the victim, two para medics asked him what happened. He said he told them that the victim had fallen out of his highchair. He said one of the parame dics took the victim’s pulse, and the defendant took the vi ctim into the examining room. He said he left the victim and went to mov e his car, and when he came ba ck, the doors leading to the victim were lock

ed. He said he sneaked in behin d an employee but was escor ted out to the waiting room. He said he asked the front desk staff w hat was happening, but they did not give him any information. He said he calle d his parents from the pay tel ephone, and they came to the hospital. He said he repeatedly tr ied to get information on the victim’s condition but

could not. He said when an employee asked him to giv e consent to have the victim flow

n to UT Hospital on LifeStar, he was shocked because he did n ot know the victim’s condition was that serious. He said he and his family went to UT Hospital where he stayed until 2:00 or 3:00 p.m. Thanksgiving day. He said he was told that the victim suffered a heav y blow to the head and had v ery little chance of sur

viving.19 The defendant testified tha t he never told Ms. Boyer to wake up the victim and feed him. He said his methods of discipline includ ed a slight swat on the victim’s diaper or a smack on his hand. He said he did not throw the victim against a wall.

On cross-examination, the defendant testifie d that the day before his testimony at trial, he called to speak to a friend, Bridgette Vickory, and he told Vickory’s friend Rita Jean Dabney that if Vickory loved him, she should do something becau se the situation was not looking good. He said that by “situation,” he meant the trial. He testifi ed that h e is healt hy and stro ng and tha t his jobs have enta iled a lot of heavy lifting. He said he knew that Ms. Boyer had a difficult pregnancy with Alisha. He said that dur ing the pa st year, Al isha had been in DH S custod y, and he h ad called only two or three times to check on her welfare. He said that i n the past several months, he had made no effort to check on her welfare

.

The defendant testified tha t he did not purchase pain medication for his finger when he went to look for a car part because he had pain medication at home. He admitted to giving a statement to Detective Smith on November 23 in whic h he said he did not have any pain medic ation in the house. He admitted t o giving a statement t

o Detective Barton in which he said that on the night of the incident, he fed the victim juice and gave him Tylenol as he was walking out the door to go to the hospital for his finger. He admitted that his testimony on the stand was different from the statement he gave to Detective Barton.

The defendant stated that after he receiv ed the call from Ms. Boyer at the hospital, he ran to his car which was parked where the ambulance was parked. He said he did not ask anyone at the hos pital for help. He said that when he returned to the hospital with the vi ctim, two paramedics w ere flirting with the desk worker, and he had to get their attention. H e denied swatting the v ictim’s bottom that night. The defendant20

admitted that things wer e not going well ar

ound the house in the weeks pr eceding the victim’s death. He sai d he slept on the couch, and Ms. Boyer slept with the children. A statement by the defendant to Detecti ve Smith was read int

o evidence in which the defendant stated that he suspected Ms. Boyer of seeing someone else and that he had glued the delete button on their caller identification box so that Ms. Boyer coul d not delete her telephone calls. At trial, he denied glui ng the delete button.

The defendant stated that he d id not think about taking the victim with him to the emergency room the first time even though Ms. Boyer had told him that the victim had been sick for two w eeks. He admitted that he might have failed to keep three doctor’s appointments that Ms. Boyer had made for the victim. He said that he and Ms. Boyer had agreed that he would discipline the victim, and he said he never saw Ms. Boyer discipline the v

ictim. He said he rarel

y saw the victi m other than fifteen minutes before work and fifteen minutes aft er work.

With respect to the application for A.F.D.C . and food stamps, the defendant admitted that he listed his income as four hundred and eighty dollars per month. The defendant’s tax records were admitted into evi dence, and they reflected that the defendant earned four thousand sev en hundred and eighty doll ars during a four month period.The defendant ad mitted that he lied on the A .F.D.C. and food stamp applicat ion for t he purpo se of rec eiving mon ey. He expla ined tha t he must have inadvertently check

ed the “do not contact” box, listing his mother and Ms. Boyer, due to his poor eyesight. H e admitted that he had seven w orthless check charges and that passing a worthless

check is a form of lying.He said that the jury had no reason to believe his testimony at trial.

Detective Scott Smith tes tified that he took a statement from Ms.Boyer on November 23, 1995 , at 4:55 p.m. He sa id he talk ed to her f or thirty to thirty-fi ve21

minutes before taping the statement. He said tha t he may have intimidated Ms. Boyer, but he did not threaten her. He said he interviewed Ms. Boyer again at 1 1:21 p.m., and a portion of the statement was read into evidence. In the statem ent, Ms. Boyer said that she was holding Al isha and trying to hel p the victim into his hi ghchair, but she was dropping both of them. She said she was trying to drop the victim into the highchair, and she did not mean to throw hi m into the highchair. She s aid she did not think the victim would hit hi s head.

On cross-examination, Detective Smith testified that when he interview

ed Ms. Boyer, he did not have the autopsy results. He said he did not know that the victim was already dying of a head injury when Ms. Boyer tried to get the victim in his highchair. He said Ms. Boyer looked like she felt guilty about the victim falling out of his highchair. He said that his original theory of the case was that the victim was fatally injured from falling out of the hig hchair but that his theory changed when he receiv ed the autopsy results.

Arthur Jones, Jr., the boyfriend of Ms. Boyer’s mother, testified tha t since the incident, Ms. Boyer had seen Alisha three days per week and as often as she w as allowed. He said Ms . Boyer called to check on Alisha nearly ev

ery night. He said

that when Ms. Boyer is

angry, she withd raws and does not become agg ressive.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his conviction. Specifical ly, he argues that Ms . Boyer was an accompl ice, and her testimony was not cor

roborated. The state contends that M s. Boyer was not an accomplice and that even if she was, her testimony w as adequately corrobor ated.22 Our standard of review when the sufficiency of the ev idence is questioned on appeal is “whether, after viewing the ev

idence in the light most fav orable 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 w e do not reweigh the ev idence but presume that the jury has resolv

ed all conflicts in the testimony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

In Tennessee, a conviction may not be based upon the uncorroborated testimony of an accomplice. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). An accomplice is an indiv

idual who knowing ly, voluntarily and with common intent participates with the principal offender in the commissi on of an offense. State v. Lawson , 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). “M ere presence at the scene of a crime does not make one an accompli ce, nor does the mere fact that one w as indicted for the same offense as th e accused.” Letner v. State , 512 S.W.2d 643, 647 (1974). When the facts are undisputed regardi ng a witness’s participation in the crime, whether he is an accompli ce is a question of law for the trial court. State v. Perkinson , 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992). How ever, when the facts are disputed or susceptible to different inferences, it is a question for the j ury. Conner v. State , 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975). The jury determines whether an accomplice’s testimony h as been sufficiently corrobor ated. Pennington v. State , 478 S.W.2d 892, 898 (Tenn. Crim. App. 1971) (citati on omitted). The general rul e is that:

there must be some fact testified to, entirely indep endent of the accomplice’s testimony,which, taken by itself, leadsto the inference, not only that a crime has been committed, but also that the defendant is implic ated in it; and this independent corrobor ative testimony must also include some fact establ i shing the def endant’ s identit y. This cor roborati ve evidence may be direct or entirely circumstantial, and it need not be a dequa te, in and of itself, to support a conviction; it is sufficient to meet the requirements of the r ule if it fairly an d legitimately tends to connect the defendant with the23 commission of the crime charged. It is not necessary that the corroboration ex tend to every part of the accomplice’s evidence. The corroborati on need not be conclusive, but it is sufficient if this e vidence, of itself, tends to con nect the de fendant with the commission of the offense, al thoug h th e evidence be slight and entitled, w hen standing alone, to but little consideration. Hawkins v. State , 469 S.W.2d 515, 52 0 (Tenn. Crim. App. 1971) (citations omitted).

In the present case, Ms. Boy er was indicted along

with the defendant for first degree murder. The tri al court submitted to the jur y the issue of whether M s. Boyer was an accomplice and instructed the jury on the need for corroborating evidence if it found Ms. Boyer to be an accompl ice. With respect to the state’s arg ument that the jury’s acquittal

necessitates a conclusion that it found her not to be an accompli ce, our supreme court has concluded that a codefendant’s acquittal does not affect his or her status as an accomplice w itness. See Ripley v. State , 189 Tenn. 681, 688, 227 S.W.2d 26, 29 (1950). Thus, the jury could still find Ms. Boy er to be an accomplice despite her acquittal.
However, we believe that ample evidence exists from which a jury could conclude that Ms. Boyer was not an accomplice. The j ury could have chosen t o accredit Ms. Boyer’s testimony, thus negating a finding that she knowingly, voluntarily and with common intent united w ith the defendant to commit the offense. In any event, we also believe that if the jury did find Ms. Boyer to be an accomplice, the evidence sufficiently corroborates her testimony. The medical examiner testif ied that the victim’s injuries did not come from a highchair fall but rather from a stron g impact to the victim’s head with a blunt ob ject. It is significa nt that wh en Ms. Boye r finally t old Detec tive Smith about the defendant slamm ing the victim into the wall, it was before the autopsy results, which suppor

ted Ms. Boyer’s statement , were available. Furthermore, the medical examiner’s testi mony regarding the ti ming of the victim’s inj uries is consistent with Ms. Boyer’ s testimony, as is the te stimony of Sharon Sutton. The doctor who24

treated the victim when he arrived at UT Hospital testified that the victim’s injuries were consis tent with a str

ong, y oung adu lt male throwi ng the v ictim i nto a wa ll. She riff McClellan testified that the defendant told him he aggrav ated his finger by sw

atting the victim on the bottom that night. Finally, the defendant testif ied that he was the sole disciplinarian of the vi ctim and that he had never seen Ms. Boyer discipli ne the victim. We hold that this evidence sufficiently c orroborates the testimony of Ms. Boyer.

II. JUR OR B IAS The defendant contends that he was denied a fair trial when a jur or failed to reveal a past relati onship between the juror a nd a prosecutor during v oir dire. The state responds that the defendant failed to prove that the juror w

as impartial or biased against him. We conclude that the juror ha d an obligation to reve

al his relationship w

ith the prosecuting attorney , and the failure to do so results in a presumption of bias. However, we bel ieve that the presumption of bias was sufficiently rebut

ted.
The juror at issue is Bar ry Myers. Dur

ing voir dire, the

trial court asked the prospective juror

s, “Do any of you at thi s time have or have y ou at any time in the past had any relationship with any of these parties or attorneys whic

h might in any way affect your impartiality

as jurors?” One prospec tive juror told the c

ourt that he was the neighbor of one of the defense attorneys and that he did not feel he could ig nore the relationship and decide the c ase on the evidence. The prospec tive juror was d ismissed by the trial court. A

nother member of the venire v olunteered that he was friends with Sheriff McClellan, a state’s witness, and that he thoug ht it was possible that the relationship might inter fere with his impartial ity. The prospective juror was also ex cused by the trial court. A

nother prospective jur

or stated that he was a former client of one of the defense attorneys but that he bel ieved he could fairly decide the case, and he remained on the panel.25 The transcript of the voir dire reflects that the state and the d efense attorneys conducted individual questioning of each potential juror. Of the seven venire members who were ques tioned before Mr. Myers , the state specifically asked five of them if they knew Assist ant District Attorney

General Shayne Sexton or any other member of the district attorney ’s office. Mr. Myers was not asked by either the state or the defense if he knew any members of the district atto rney’s office, but the state did ask him if he knew of anythin g the trial court shoul d know that had not been asked, an d he replied that he did not. Of the r emaining venire members, some were asked specifically if they k

new members of the district attorney’s office and some wer e not.
At the hearing on the defendant’s motion f or a new trial, Mr. Myers testified that he went to hig h school with Assist ant District Attorney

General Shayne Sexton. He said that he and an other person were roommates with General Sexton for nine months during the 1982-83 school year at The University of Tennesse e. He said that after college, he saw General Sexton possibly once a year or every two years. He said he considered General Sexton to be a friend, but he did n ot have regular contact with him. He said he remembered being asked if any venire members had a past relationship with the attorneys that would affect their impartiality, and he admitted that he made no response. He said he r emembered that one venire member st ated that he was the neighbor of an attor ney, and that person was excused.

On cross-examination, M r. Myers testified that the questions were as ked in the context of whether the relationship would affect the jurors’ impa rtiality. He said he did not intend to conceal the relationship, rather he did no t feel that it would affect his decision. He testifie d that he served as a juro r on a case two weeks before the present case in which G eneral Sexton was the l ead prosecutor. He said the trial resulted in a hung jury, and he voted to acquit the defendant. He said he based his decision in the present cas e on the law and evidence presented, and he said he voted26

to find Ms. Boyer not gui lty. He said he w as never asked if he knew General Sexton, and although he considered General Sexton to be a friend, he did not have much contact with him.

Assistant District A

ttorney General Shayne Sexton testified that he had passing contact with Mr. Myers since college, and he considered him to be a friend. He said he did not remember telling District Attorney General Phillips or Assistant District Attorney General Ripl ey about his relationshi p with Mr. Myer s, although he said he might have told them that M r. Myers would make a good juror. He ack nowledged that he did not disclose the relationship to the defense a ttorneys or to the trial court. He said he did not think that his association with any

juror would affect that jur or’s fairness.
Challenges to juror qualifications generally fall into two categories -- propter defectum or propter affectum. Partin v. Henderson , 686 S.W.2d 587, 589 (Tenn. Ct. App. 1984). General disqualifications such as alienage, f amily relationship or statutory mandate are classified as propter defectum and must be challenged before the return of a jury ve rdict. State v. Akins , 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). An objection based upon bi as, prejudice or partial ity is classified as propter affectum and may be made after the jury v erdict is returned. State v. Furlough , 797 S.W.2d 631, 652 (Tenn. Crim. App. 1990). The burden of proof w ith respect to juror bias or partiality rests with the party alleging the bias. Durham v. State , 182 Tenn. 577, 584, 188 S.W.2d 555, 559 (Tenn. 1945).

In Akins , this court addressed the issue of a juror’s failure to disclose information reflecting potential bias or partiality and stated as f ollows:

We hold that when a ju ror’s response to relevant, direct voir dire questioning, whether put to that juror in parti cular or to the venire in general, does

not fully and fairly i nform counsel of the matters which reflect on a potenti al juror’s pos si ble bias, a presumption of bias arises. While that presumption may be re butte d by an absence of actual prejudice, the court must27 view th e totality of the circumst ances, and not merely th e juro r’s self-serving clai m of lack of partiality, to de termine whether the presumption is overcome. 867 S.W.2d at 357. The court also stated that the “integrity of the voir dire process depends upon the venire’s free a nd full response to questions posed by counsel. When jurors fail to disclose relevant . . . info rmation, counsel are hampered in the jury selection process,” and the defendant’s right to a fair trial and an impartial jury are affected. Id. In this vein, we believe that Mr. Myers had an obligation to reveal his relationship with General Sexton. Although Mr. Myers was never specifically asked if he knew General Sexton, the questions posed by the trial court to the venire as a whole and to other prospective j urors individually would lead a reasonable per son to conclude that the relationship was relevant.
Because Mr. Myers fail ed to reveal the relatio nship, Akins instructs that a presumption of bias arises. H owever, we do not believe that the failure to di sclose the relationship warrant

s reversal in this

case because the presumption of bias has been sufficiently rebutted. The trial court concluded that th e relationship between Mr. Myers and General Sexton had been casual at best since college and that there was no showing that the relationship affected the outcom e of the proceedings. This court is required to accredit the findings of fact made by the trial court, and we canno t reverse the holding unless the ev idence preponderates against the trial court’s conclusions. See State v. Tate , 615 S.W.2d 161, 16 2 (Tenn. Crim. App. 1981). In light of the nature of the relationship shown by the evidence and Mr. Myers’ testimony, we conclude that it does not.

III. IMPEACHMENT BY PRIOR BAD ACTS

The defendant contends that he was denied a fair trial when Ms. Boyer’s attorney questioned him on cross-examination regarding his previous conviction and charges for passing w

orthless checks. He cl aims that the evidence is h ighly prejudicial28

and that his conviction s hould be reversed. The state responds that questions regarding the defendant’s co nviction for passing w orthless checks wer

e appropriate under Rule 609, Tenn. R. Evid. and that the defen dant opened the door on direct examination to questions about the charges that did not result in convictions. W e hold that the questions were proper.

The record reflects that on dir ect examination, the defendant testi fied that he was charged with passing worthles s checks in 1994. He testi fied that he pled guilty to some of the charges, that the other s were paid and that he rec eived probation. On cross-examination, Ms . Boyer’s attorney questioned the defendant more specific ally on the charges. He elicited from the defendant that he had five charges in Campbell County that were pa id, one 1994 co nviction in Anders on County, and o ne 1995 charge in Knox County. The defendant further admitte d that passing a worthless check is a form of lying.
Pursuant to the conditions and procedures set forth in Rule 609, Tenn. R. Evid., the credibility of the accused may be attack ed by presenting evi dence of prior convictions. The convi ctions must be punishable by death or imprisonment over one year or must involv

e a crime of dishonesty or fals e statement. Tenn. R. Evid. 609( a)(2). With respect to the cross-examination regarding the defendant’s co nviction, the questioning was pr

oper under Rule 609. See State v. Bivens , 967 S.W.2d 821, 825 (Tenn. Crim. App. 1996) (concluding that passing a worthless check is dishonest conduct and is an appropriate s ubject for cross-examination). With respect to the defendant’s complaint about the cross-examina tion regarding his worthless check charges, we believ

e that the defendant opened the door to this questioning by testi fying generally about the char ges on direct examinati on. Ms. Boyer’s attor ney was allowed to clarify the exact natur

e of the charges and their res olution. Having ra ised the issue on29

direct examination, the defendant cannot now complain that the ev idence was too prejudicial. This iss ue is without merit.

IV. INTRODUCTION OF DIAGRAM A ND REFERENCE TO COLOR PHOTOGRAPH The defendant contends that the trial court erred by allowing into evidence a diagram of the victim’s body and by allowi ng the medical examiner t o refer to color photographs that were not admitted. He contends that the dia gram and the medical examiner’s references to the color photographs w ere unduly prejudicial . The state contends that the issues are w aived because the defendant failed to obj ect at trial and failed to raise the issues in his motion for a new trial.

The transcript of evidence r eveals that before trial, the defendant made a motion t o exclude autopsy p hotograp hs of the victim. Th e state so ught to in troduce two color photographs and one black and white autopsy photograph depicting the victim’s injuries. In his argument, the defendant’s attorney stated tha t the photographs were unnecessary because the medic al examiner was go ing to use a diagram to ex plain the extent of the victim’s i njuries. The trial cour t concluded that one photograph w as admissible and allowed the defense attorneys to select the least o bjectionable photograph. The attorneys c hose the black and white phot ograph.
During the medical ex

aminer’s testimony, he used a diagram consisting of an outline of a child’s body . The medical examiner had dra wn the location of the victim’s bruises on the diagram and had used purple a nd yellow pencils to depict the age of the bruises. Twice during his testimony , the medical examiner referr ed to the inadmissible color photog raphs. Once, he explained that he had colored the bruises on the diagram as closely as possible to the color depicted in the photographs. He also stated, in explaining an injury on the vic tim’s right shoulder,that the injury could be30

seen better in the color photog raphs. No objection wa s made to the admissibility of the diagram or to the references to the color photographs.

The defendant has waived these is sues by failing to objec t timely. See T.R.A.P. 36(a). Furthermor e, the defendant’s failure to include these issues in the motion for a new trial bar s our review. See T.R.A.P. 3(e). In any event, we note that in his pretrial motion to ex clude the photographs, the defendant’ s attorney acknowledged that the probative valu e of the diagram was not outw eighed by any prejudi ce. See Tenn. R. Evid. 403. Further more, although the defendant character izes the medical examiner ’s refere nces to th e color ph otograph s as repea ted, the re were just two innocuous references that can only be described as harmless.

V. BIBLICAL

REFERENCES The defendant contends that the state’s bib lical references during closing argument were improper and violated his rig ht to a fair trial as guar anteed by both the United States and Tennessee Constitutions such that a new tr ial is warranted. The state contends that the defendant’s failur e to object to the argument or to raise the issue in his motion for a new trial waives the issue. The state further arg ues that the defendant has failed to establish that the prosecutor’s comments had an effect on the verdict.
The relevant portion of the state’s closing argument is as follows:

There was a man long ago, a t eacher. He was wal king along a dusty road and others w ere f ollowing him. Hi s closer f ollowe rs called him rabbi. Teacher. And beside his close followers, there was a big cr owd that follo wed him nearly everywhere he went. And as the man, the leader, the teacher, wentalong, he hea rd his close followers arguing amongst themselves. And he turned around and he said - why are y’all arguing? And they were sheepish. Because they didn’t want to tell the rabbi why the y were arguing. But he press ed them. He said - tell me, why are you arguing. And they said - w ell, rabbi, we just w

ere wonder

ing in the k

ingdom that you are goin g t o set up, which one of us will be the greatest- who will31 be number one, and who wil l be number two, who will b e on your right h and an d who will be on y our left hand? And the teacher, he kind of took a test, he said- whoev er - whoever would be gre at, he must be last and the least, and whoeverwhoever would be great among y ou, must be the servant of all. And then he t urned aro und and i n the crowd that wasgathered around him which is always - almost a lways there, he found a little child, a boy. He took the little boy

and he sat the little boy in the midst of his close followers and he said - whoeve r receives a little onelike this, receiv es me. Whoever receives a little one like this recei ves me. Bu t you know, h e didn’t l eave i t there. He didn’t leav e it there. He went on t o s ay sternly
- bu t anyone, anyone who caus es one of these little ones t o stumble, it would be better for him if a mil l stone was put around his neckand he was drowned in the s ea. The good rabbi said that. Members of the ju ry, we simply ask for justice. Let justice come down like the mighty waters. The reco rd reflec ts that th ere was no o bjection made by th e defen dant’s at torney.

The state initially cont

ends that the defendant waived the issue by failing to object during trial

and by failing to rais

e it in his motion for a new trial. SeeT.R.A.P. 36(a); 3(e). Howev

er, an error that affects a substa ntial right of a defendant may be raised at any time whe n necessary to do substanti al justice. See Tenn. R. Crim. P. 52(b); T.R.A.P. 13(b); State v. Adkisson , 899 S.W.2d 626, 636-38 (Tenn. Crim. App. 1994). Accordingly, our review will be limited to whether plain error exists.

Our supreme court has recognized that closing argument is a valuable privilege for both the state and the defense and tha t counsel is afforded wide latitude in presenting final argument t o the jury. See State v. Cribbs , 967 S.W.2d 773, 783 (Tenn. 1998); State v. Cone , 665 S.W.2d 87, 94 (T enn. 1984). However, the argument must be temperate, predicated on evi dence introduced at trial and relevant to the issues of the case. State v. Keen , 926 S.W.2d 727, 73 6 (Tenn. 1994). When a prosecutor’s argument goes beyond the latitude afforded, th e test for determining if reversal is32

required is whether

the impropriety “affected the v erdict to the prejudice of the defendant.” Harrington v. State , 385 S.W.2d 758, 759 (1965).

In the present case, the impropriety of the prosecutor’s argument is obvious. See Cribbs , 967 S.W.2d at 783-84 (“It is well-established in Tennessee law that references to biblical passages or religi ous law during the co urse of a criminal trial are inappropriate”); Kirkendoll v. State , 198 Tenn. 497, 281 S.W.2d 243, 254 (Tenn. 1955). The prosecutor’s omiss ion of specific references to the Bi ble or to Jesus in no way disguises the biblical heritage of the story. We also believe that the ar gument had the potential to be inflammatory.

This type of argument has been admoni shed by both this court and our supreme court, yet the arguments continue to be made. However, the fact s of this case constrain us to conclude that the argument did not affect the ver dict to the prejudice of the defendant. The circumstantial ev idence of the defendant’s guilt w as strong. The testimony from Ms. Boyer, Sharon Sutton, the medical ex aminer, the victim’s tr

eating doctors, and the p aramedi cs suppor t the verdi ct, as doe s the def endant’ s own testimony. Although the ar gument was improper, and w e admonish the prosecutor to refrain from making such arguments in the future, we conclude that the argument did not affect the verdict. See State v. Cauthern , 967 S.W.2d 726, 737 (Tenn. 1998) (holding that the prosecut or’s repeated references to the defendant as “the evil one,” though improper, did not affect the verdict to the prejud ice of the defendant).33 In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

________________________________ Joseph M. Tipto n, Judge

CONCUR:

_________________________ Gary R. Wad e, Presiding Judge

_________________________ David H. Welles, Judge